The Steps To The Supreme Court

Contents

Preface: “How Did You Get Here?”

Introduction: “The Judicial Power of the United States”: How Our Courts Were Framed and How They Function

Part I: “No Reasonable Juror”: The Death-Row Ordeal of Paul House

Chapter 1: The Murder of Carolyn Muncey

The Turning Points in a Criminal Case

Chapter 2: The Murder Trial of Paul House

Setting a Time Frame for Carolyn Muncey’s Disappearance

Billy Ray Hensley Takes a “Glance” Down Ridgecrest Road

Paul House’s Phony Alibi and the Discovery of His “Blood-Spotted” Jeans

Nailing Down the Time Frame and the Cause of Carolyn Muncey’s Death

The “93 Percent Probability” That Carolyn Muncey’s Blood Was on House’s Jeans

Paul House’s Defense against the Murder Charge

Closing Arguments from the Lawyers

Judge Porter’s Charge, the Jurors’ Verdict, and the Sentencing Hearing

Chapter 3: Paul House’s Appeals in the Tennessee State Courts

Chapter 4: Paul House’s Federal Habeas Corpus Petition and Hearing

Little Hube Muncey’s Abuse of Carolyn, His Concocted Alibi, and His Confession

Little Hube’s Semen and Carolyn Muncey’s Blood

Prosecutorial Misconduct, Ineffective Counsel, or Both?

The State’s Lawyers Counter the Claims of a Flawed Trial

Little Hube Muncey and Paul House Finally Take the Stand

Judge Jarvis Delivers His Verdict

Chapter 5: Paul House Seeks Relief from the Sixth Circuit Court of Appeals

Eight Judges Uphold Judge Jarvis’s Denial of Habeas Relief

Seven Judges Dissent from the Majority’s Ruling

Chapter 6: Paul House’s Appeal to the United States Supreme Court

Oral Argument in the Supreme Court

The Supreme Court Decides the House Case

Chapter 7: The House Case Returns to the Federal and State Courts

The Final Rounds in the Federal and State Courts

An Evaluation of the House Case

Part II: “An Establishment of Religion”: The Ten Commandments and Crosses in the Courts

Chapter 8: A Tale of Two Cities and Two Cases

The Ten Commandments Case from Austin, Texas

Filing the Complaints in the Kentucky and Texas Cases

A Side Trip to a Law School Classroom

Chapter 9: The Hearings and the Opinions in the McCreary County and Van Orden Cases

Van Orden’s Day in Federal Court

The Counties’ Appeal to the Sixth Circuit Court of Appeals

Van Orden’s Appeal to the Fifth Circuit Court of Appeals

Chapter 10: The Supreme Court Appeals in the Ten Commandments Cases

Oral Argument in the Supreme Court

The Supreme Court Opinions in the Ten Commandments Cases

Chapter 11: The Impact of Justice Breyer’s Concurrence on Pending Ten Commandments Cases

The Eagles Monument in Plattsmouth, Nebraska

Another Eagles Monument in Everett, Washington

“The Lord Had Burdened My Heart”—The Ten Commandments Monument in Haskell County, Oklahoma

“We All Love Jesus Christ”—The Ten Commandments Display in Grayson County, Kentucky

Chapter 12: The Influence of Politics in Religion Cases: The Mt. Soledad Cross Case

The Legal Challenge to the Easter Cross

Putting the Easter Cross to a Vote

A Second Effort to Sell the Easter Cross

A Third Effort to Sell the Easter Cross

Asking Congress to Save the Easter Cross

The Cross Case Moves to State Court

Back to Congress with Another Plan to Save the Cross

Back to the Federal Courts with a New Lawsuit

Chapter 13: Religious Politics, Judicial Snarls, and the Mojave Desert Cross Case

The Supreme Court Looks at the “Land Swap” Deal

An Evaluation of the Ten Commandments and Cross Cases

Conclusion

Appendix of Supreme Court Opinions

I. Opinions in House v. Bell

II. Opinions in McCreary County v. ACLU of Kentucky

III. Opinions in Van Orden v. Perry

Sources and Suggestions for Further Reading

Index

Also by Peter Irons

The New Deal Lawyers

Justice at War: The Story of the Japanese American Internment Cases

The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court

Justice Delayed: The Record of the Japanese American Internment Cases (edited, with an introductory essay)

Brennan Vs. Rehnquist: The Battle For the Constitution

A People’s History of the Supreme Court

Jim Crow’s Children: The Broken Promise of the Brown Decision

Cases and Controversies: Civil Rights and Liberties in Context (edited casebook)

War Powers: How the Imperial Presidency Hijacked the Constitution

God on Trial: Dispatches From America’s Religious Battlefields

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Preface

“How Did You Get Here?”

There’s an old story, perhaps apocryphal, about an exchange between former Justice Felix Frankfurter and a lawyer from Texas, making his first argument in the Supreme Court. Frankfurter asked, “How did you get here?” The puzzled lawyer paused and then replied, “I took a train from Houston to Washington, and a cab from Union Station to the Court.” After the courtroom laughter subsided, the red-faced lawyer realized that Frankfurter was asking how his case got to the Court, not about his own travel. Frankfurter, a stickler for procedural regularity, may have spotted a problem in the case record and wanted it clarified.

I’ve tried to track this story down, with no success yet, but it does make a point that I’ll develop in this book, whether it’s true or not. Most people have no idea how the cases the justices decide each year—fewer than 2 percent of those they are asked to review—get to the Supreme Court for argument, a process that often takes four or five years between their initial filing in a state or federal court and their final decision.

Justice Frankfurter’s question to the neophyte lawyer—if he really did ask it—was not meant to be facetious or badgering. Frankfurter was the acknowledged expert on Supreme Court procedure; as a Harvard Law School professor before he was named to the Court in 1939 by President Franklin D. Roosevelt, he had cowritten a classic book, The Business of the Supreme Court, and was a leading force behind congressional passage of the Judiciary Act of 1925. This law gave the justices “discretionary jurisdiction” over which cases they would hear and decide and freed them from a deluge of what Frankfurter called “peewee” cases that wasted the Court’s time. As we will see throughout this book, the concept and exercise of “discretion” are essential at every stage of the legal process, allowing judges to focus on cases that raise important questions. There are still “peewee” cases, but few of them reach the Supreme Court or even come to trial.

By the end of our tour, we will have visited twenty courtrooms in thirteen states and the District of Columbia, in cases that were heard and decided by more than a hundred judges and argued by more than thirty lawyers on both sides. My role as your tour guide is to explain each step in the legal process and to leave you with a better understanding of both the strengths and the weaknesses of a system that affects the lives of every American. I have tried to explain legal terms and concepts in plain English, in case they may not be familiar to all readers, and I have placed many words and phrases in boldface type, both for emphasis and to assist readers, especially students, in taking notes (because certain words and phrases might appear in legal documents or on exams).

The aim of this book is to discuss a few cases, both civil and criminal, in enough depth so that readers can follow each step in the legal process and understand what lawyers and judges were doing and also to meet the people involved on both sides of these cases. I chose the Paul House murder case from Tennessee for several reasons. First, there is no more serious criminal offense than murder, and the charge against House, once I read the Supreme Court opinion on his case, seemed to me such a travesty of justice that it deserved a full autopsy, so to speak.

Given my personal interest in law and religion, I chose the Ten Commandments cases from Kentucky and Texas, in part because their differing outcomes showed the difficulties imposed on lower-court judges in pending Decalogue cases by the Court’s conflicting opinions. I have also included accounts of two cases that involved challenges to the display of Latin crosses on public property, one on Mt. Soledad, the highest point in San Diego, California, the other in a remote area of the Mojave Natural Preserve, a national park in southern California, both of which illustrate the influence of local and national politics on conflicts over religion in the public sphere.

Another reason I chose these cases is that most Americans have strong opinions about the issues they raise, on both sides of the political spectrum. Public opinion polls have consistently shown majorities supporting capital punishment, although by diminishing margins in recent years, and favoring the display of religious symbols in public places, but with outspoken opposition to both practices. It’s easy to provoke debate, mostly civil but sometimes heated, on these issues, with partisans on both sides often impervious to countering opinions and arguments. Those factors make these cases and their underlying issues ideal, in my view, for a book whose goal is not to change opinions, but to educate readers and to stimulate thought about the legal (and moral) issues these cases raise. When you finish this book, I hope you’ll agree that I’ve succeeded in my goal. So let’s begin our tour of the American legal system.