Legal News

Harbison v. Bell or Scalia v. Breyer?

By Dan Slater

Conflicting jurisprudence turned to judicial crossfire at the High Court yesterday, when Justice Scalia took issue with a comment made by Justice Breyer.

The court, as the NYT reports, was trying to make sense of a federal law that provides lawyers to poor inmates on state death rows when their cases move to federal court. The question for the justices was whether the law also requires the federal government to pay those lawyers to present clemency petitions to governors and other state officials.

For the background of Harbison v. Bell, go to Scotusblog. Here’s the transcript of the argument.

William M. Jay, an assistant to the solicitor general, said the law applies only to “federal proceedings before a federal officer.” But Dana C. Hansen Chavis, a federal public defender, argued, among other things that the phrase “executive or other clemency” indicated Congress’s intent to include state proceedings in which other parts of the government — i.e. the federal government — play a role in granting clemency.

Scalia liked that textual argument. What he didn’t like was when his colleague, Justice Breyer, mentioned that Representative John Conyers Jr. (D., Mich.) had said he understood the law to apply to state clemency proceedings.

Scalia: I thought this was a federal law. Is this a Conyers law; is that what it is here?

Breyer: He happens to be the person who wrote it. . . . I think Conyers knew what he said.

Scalia: Did his colleagues know what he said?

Breyer: Yes, they did.

Chief Justice Roberts [addressing the assistant SG]: I’m sorry. Counsel, you lead. We direct our questions to counsel.

Full post as published by Law Blog - WSJ.com on January 13, 2009 (boomark / email).