2004 term per curiam opinions of the Supreme Court of the United States

Decided November 15, 2004

Texas Court of Criminal Appeals reversed and remanded

The state court upheld a death sentence over the defendant's argument that the jury instructions prevented the full consideration of his mitigation evidence. The court found the instructions, which permitted the jury to consider mitigation only if it nullified two questions regarding the defendant's deliberateness in the crime, to be either irrelevant, because the defendant's mitigation evidence was constitutionally insufficient, or sufficiently distinguishable from instructions the Court had previously found unconstitutional. The Supreme Court reversed, ruling that the defendant had presented evidence relevant to mitigation, which the state court found insufficient by applying an incorrect and unduly strict test. The Court also ruled that the nullification instructions were constitutionally inadequate.

Justice Scalia, joined by Justice Thomas, dissented, stating without elaboration that he would have affirmed.

Decided December 6, 2004

Ninth Circuit Court of Appeals reversed and remanded

The Court of Appeals ruled that a police officer's First Amendment rights were violated when he was fired for selling online a sexually explicit video of himself in a generic police uniform. The court found that his conduct fell under the protected speech category of commentary on matters of public concern, because it did not relate to an internal workplace grievance, took place while he was off-duty and away from his employer's premises, and was unrelated to his employment.

The Supreme Court reversed, ruling that the video implicated legitimate concerns of the city police department. Though his specific department was not identified, the officer still deliberately linked the video to his profession, bringing the department into disrepute. The video's expression did not qualify as a matter of public concern under any view of the test, or based on any Court precedent.

Decided December 14, 2004

Ninth Circuit Court of Appeals reversed and remanded

The Court of Appeals ruled that an officer who had shot an individual fleeing in an automobile was not entitled to qualified immunity from the individual's section 1983 claim for violating his Fourth Amendment rights. The Supreme Court reversed, ruling that the officer was entitled to qualified immunity because Court precedent did not clearly establish that his conduct was in violation of the Constitution.

Justice Breyer, joined by Justices Scalia and Ginsburg, filed a concurring opinion that urged the Court to adopt a rigid rule in which courts decided the constitutional question prior to deciding the issue of immunity.

Justice Stevens dissented, arguing that the officer's conduct was objectively unreasonable because deadly force should not have been used to prevent the suspect's escape. He also believed that the immunity issue should have been decided by a jury, and that the Court should have held full briefing and argument on the case.

Decided January 24, 2005

Writ of certiorari dismissed

The petitioner argued that the Mississippi courts violated his Eighth Amendment rights by refusing to require a jury instruction about a lesser included offense in his capital case. However, he failed to raise this claim before the Mississippi Supreme Court, leaving no decision on that issue for the Supreme Court to review. The writ of certiorari was accordingly dismissed as improvidently granted.

Decided January 24, 2005

Sixth Circuit Court of Appeals reversed and remanded

The Supreme Court had previously addressed the case in Bell v. Cone, 535 U.S. 685 (2002) on the issue of the habeas petitioner's ineffective assistance of counsel claim. On remand, the Court of Appeals now ruled that the aggravator language applied to the petitioner's capital sentencing was too vague to prevent the death penalty from being imposed arbitrarily, and that the Tennessee Supreme Court had failed to cure that defect on review by applying a narrowing construction to the language. The Supreme Court reversed, ruling that the Court of Appeals did not grant the proper deference to the state court's decision, and had also erroneously assumed that it had failed to apply Tennessee law. The state court's failure to cite to federal law or explicitly use a narrowing construction did not establish that federal constitutional standards were disregarded.

Justice Ginsburg filed a concurrence, joined by Justices Souter and Breyer, which sought to clarify the Court's assumption that the state court had adjudicated all of the petitioner's arguments. Ginsburg urged that, had the state court failed to address an argument, that there would be no grounds for assuming that it had nevertheless sub silentio decided that issue on the merits instead of merely overlooking it.

Decided May 23, 2005

Writ of certiorari dismissed

The Court of Appeals had ruled that a Mexican national could not base a habeas petition on denial of the right to consular access under the Vienna Convention on Consular Relations, because that Convention was not enforceable in U.S. courts, and in any event that argument was forfeited because of procedural default. However, after the International Court of Justice ruled in Mexico v. United States, 2004 I.C.J. No. 128, that the Convention did create enforceable individual rights, President George W. Bush issued a memorandum declaring that the United States would discharge its obligations under the ICJ decision by having state courts give effect to it in accordance with principles of comity. The petitioner subsequently filed a new petition in state court on this basis, and the Supreme Court dismissed certiorari as improvidently granted, ruling that it should not dispose of issues that the state proceedings could resolve.

Justice Ginsburg filed a concurrence, of which the section criticizing O'Connor's dissent was joined by Justice Scalia.

Justice O'Connor filed a dissent, joined by Justice Stevens, Souter, and Breyer, which argued that the Court's dismissal was based on speculation as to what the state court might do. O'Connor preferred to remand the case with instructions to consider whether the decision of the ICJ was binding on American courts, and to what extent the Convention created enforceable rights that could not be forfeited through procedural default.

Justice Souter and Justice Breyer also filed dissents that were supportive of O'Connor's, though with additional reasoning and qualifications. Breyer's dissent was also joined by Justice Stevens.