WHAT A DIFFERENCE 50 YEARS MAKE

(Posted May 11, 2020) After 15+ years of covering the Supreme Court of Virginia, I’ve seen a lot. It takes quite a bit to surprise me anymore. But sometimes …

Over the weekend, my appellate pal George Somerville sent me a passage from a 1974 SCV published opinion. What I read was jaw-dropping. I had to read it twice. All that process did was make my jaw drop a second time.

Because I love history, and because this story unfolds in an eerie parallel to one of our nation’s signal historical events, I’ll lay out the stories side-by-side.

In June 1972, three days before would-be burglars botched an attempt to break into Democratic headquarters at the Watergate Hotel in Washington, a defendant named Saunders received the unwanted gift of a substantial period of free room and board with the compliments of the Virginia Director of Corrections.

He appealed to the Supreme Court – there was no Court of Appeals back then – but the justices refused his petition for appeal in February 1973, a week after two of the ostensible burglars, Gordon Liddy and James McCord, were convicted in connection with the break-in.

Saunders then filed a habeas petition in the Supreme Court of Virginia. Instead of the grounds that we usually see nowadays – typically an assertion of ineffective assistance of counsel – he raised some interesting arguments about the nature of appellate review in Virginia. For example, his first claim arose from this statutory language: “A writ of error shall lie in a criminal case to the judgment of a circuit court … from the Supreme Court of Appeals.” Saunders argued, unsuccessfully as it turns out, that the use of the word shall meant that he was entitled to a writ as a matter of law.

But his second contention is what caught George’s attention, and mine. Saunders argued that the Supreme Court denied him equal protection of law by refusing his petition while granting others. Before you dismiss that out of hand, know that there’s more: He claimed that the Supreme Court had sharply curtailed the number of writs it granted. He cited a law-review article from 1971 (57 Va.L.R. 3 if you want to check it out) written by a couple of U.Va. Law professors, Graham Lilly and Antonin Scalia. The article bore the enticing title, Appellate Justice: A Crisis in Virginia?

I have your attention now, don’t I? The authors of that article accused the Supreme Court – that’s our Supreme Court; not the one in Washington – of rejecting meritorious petitions for appeal. Basing their argument on statistics showing a precipitous decline in writs granted, they asserted that the justices had stopped granting writs based on legal error, and were instead granting them only based on societal importance.

Sound familiar? Modern lawyers often mutter that the Supreme Court is refusing meritorious petitions – at least, they’re meritorious in the lawyers’ eyes – for one reason or another. This, then, is not a new refrain.

The Nixon era Supreme Court of Virginia decided that this issue was important enough to warrant one of those precious merits slots. The justices directed briefing and even oral argument on the habeas petition.

In April 1974, a week after substitute special prosecutor Leon Jaworski irritated the president by subpoenaing a certain set of highly incriminating audiotapes, the Robes in Richmond handed down their decision. In Saunders v. Reynolds, 214 Va. 697 (1974), the court recites the professors’ criticisms in detail. The opinion then addresses this critique: “We readily acknowledge that the increased number of petitions filed in recent years has created a greater burden for this court.” Id. at 700. But it continues that the justices “know, however, the cause of the apparent imbalance – the increase in the number of frivolous petitions presented.” Id. at 701 (emphasis in original).

The court insists that it evaluated each appeal based solely on merit, and denies that it refused petitions that would have been considered writworthy in years past. The court unambiguously blames “newly enunciated constitutional principles and the extension of rights of the indigent defendant” for tempting convicted defendants to appeal an issue, any issue, merely because they could. This is an unmistakable swipe at the 1960s criminal-law rulings from the Warren Court, likely including Gideon v. Wainwright, Escobedo v. Illinois, and Miranda v. Arizona. In the end, the court denies the habeas petition.

To me, the astonishing thing is that the court chose to address these issues at all. Today’s Supreme Court would never do that – this, at least, is my perception – and would instead regard its internal decisional process as being no one else’s business. You might occasionally hear statements about this topic at MCLE programs or at bar-association functions; but never in an official court publication such as an opinion in Virginia Reports.

There’s one other aspect of this scenario that merits mention here. I have statistics from the court going back to 1970. That year is likely the most recent set of stats that were available to Profs. Lilly and Scalia when they fired their broadside. I thought it might be interesting to compare that year’s numbers to those from 2019. Get ready for your jaw to drop this time:

1970

Criminal petitions granted – 75

Criminal petitions refused – 354

Grant rate – 17½%

2019

Criminal petitions granted – 27

Criminal petitions refused – 690

Grant rate – 3½%

The law professors saw the 1970 court’s granting only one criminal petition out of six, and felt that that was a crisis (their word, not mine). One can only speculate what they’d say about the modern court, which grants just one out of thirty.

Incidentally, if you handle civil appeals, you’re probably curious now about how those appellants fared in 1970. The answer is that they achieved success that you can only dream about: 127 grants against 182 refusals, for a grant rate of 41%. Last year, that figure was 16%, and it’s been that way for years now.

Finally, here’s a note on overall caseload. In 1970, the court granted 207 petitions for review and refused 669, for a total of 876 rulings. Last year, it granted 98 and refused 1082, which adds up to 1180 rulings. (I’m omitting last year’s 220 procedural dismissals.) That’s fewer than half the number of writs granted, despite an additional 300+ decisions.

Make no mistake: This is not happenstance but the result of conscious decisions at Ninth and Franklin to reduce the merits caseload. The alternative explanation would be that modern lawyers have become dreadful appellate advocates, and I don’t buy that. The justices are handing out writs with tweezers. If you get one, you’ve beaten some fearsome odds.