Court plays small ball.

Photographer: Alex Wong/Getty Images

Shorthanded Supreme Court Ducks the Big Questions

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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On Monday the Supreme Court issued no fewer than six opinions. The one that will make headlines -- involving the contraceptive mandate of the Affordable Care Act -- wasn’t really a decision at all, but an attempt to make the lower courts do the case over.

The other five were business as usual -- and in this strange eight-justice term, that means they were all decided on narrow, technical grounds. The theme was small-ball, if you will: the court is avoiding big issues that it can’t resolve or decide.

QuickTake U.S. Supreme Court

One highly technical decision was Spokeo Inc. v. Robins. The case involved the potentially interesting issue of whether you can bring a class-action against a firm that issued a supposed credit report based on inaccurate information. The court resolved it by sending it back to the U.S. Court of Appeals for the Ninth Circuit on the ground that the appellate court hadn’t correctly analyzed the question of "standing" -- whether the case even qualified to be heard.

Justice Samuel Alito, who likes to make it as hard as possible for cases to get into federal court, wrote for a six-justice majority that the appellate court hadn’t adequately checked to see if the plaintiff had suffered “concrete” harm. Alito hastened to add that “concrete” harm isn’t necessarily “tangible harm.” That legal absurdity should give you all the flavor you need. Generally, if you run into a concrete wall, it’s pretty tangible. Not so, apparently, in standing doctrine.

In Husky International v. Ritz, the court resolved the equally pressing question of whether it’s “actual fraud” or just “fraud” when someone drains his company of assets to avoid paying a debt, then declares bankruptcy. The difference matters in determining whether the debt can be discharged in bankruptcy.

The arguments that draining assets isn’t “actual” fraud turned on the notion that you aren’t lying to anyone directly when you do it. Fortunately, the court, per Justice Sonia Sotomayor, went with common sense, holding that fraud is fraud and that you can’t avoid paying a debt in bankruptcy when the assets have been drained. Rest assured that Justice Clarence Thomas dissented. But as you can imagine, it’s not as if the fate of the Republic rests on the decision.

In a unanimous opinion, the court absolved the state of Ohio from having violated the federal Fair Debt Collection Practices Act by assigning consumer debt claims to private counsel, who then send the collection letters using letterhead from the attorney general of the state. The opinion was a nice vindication of the Sixth Circuit's Judge Jeffrey Sutton, a George W. Bush appointee with a sterling legal reputation. Sutton had dissented from the appeals court opinion, and indicated that there was something more than a little odd about the federal government interfering in a state’s sovereign act of collecting debts.

Justice Ruth Bader Ginsburg’s opinion mentioned that. But she seemed more convinced by the fact that the attorney general had, in fact, authorized the collection procedures, making the use of the letterhead not exactly “false” or “misleading.” No grand pronouncements here -- and no controversy.

You might have thought the court could squeeze some controversy out of a case about naked shorts, which are stock bets made without actually borrowing the shares you would have to hand over if the contract required it. The issue was whether a federal court has jurisdiction over a suit brought under a New Jersey law that basically says you can’t break any securities regulations, state or federal.

Justice Elena Kagan wrote an extremely sensible opinion, applying the same standard under the 1934 Securities Exchange Act that already applies under the law that says a federal court can hear any case “arising under” federal law. It’s hard to imagine an opinion more appealing to judicial minimalism than one saying that existing legal standards will be applied to a parallel situation.

That leaves what was probably the most technical opinion of a day of technical decisions. The court, writing in an unsigned, unanimous decision, made it just a tiny bit harder for state prisoners to have their case heard in the federal courts under a writ of habeas corpus.

The shockingly named Antiterrorism and Effective Death Penalty Act of 1996 makes it hard enough already. It says that a state prisoner can’t go to federal court until the state courts have ruled on his or her claim. Then it says that, if the state courts have rejected the claim on its merits, the federal court can’t overrule the state courts unless the decision is not only wrong, but represents an unreasonable interpretation of federal law. In other words, if the state court is wrong, but not unreasonably wrong, you stay in prison and your conviction holds.

The issue before the Supreme Court was whether a state supreme court’s summary denial of a prisoner's habeas corpus petition counts as a decision “on the merits,” which would render a subsequent application to federal court almost impossible to win.

The Ninth Circuit granted the habeas petition, saying the state supreme court’s denial was not on the merits. The Supreme Court reversed, holding that the California high court’s decision must have been on the merits. It reasoned that the state supreme court couldn’t have been the wrong venue since there isn’t another one -- so the state court must have been considering the merits when it denied the petition.

I’m not sure the justices were right. Perhaps the California high court was just holding that the lower court really was the wrong venue, and that the prisoner should go back and do it again. But the justices clearly thought that the Ninth Circuit was pulling a fast one, trying to avoid the draconian rules of the antiterrorism act.

Among judges, technicalities are the great uniter. In the next month, with no 5-4 decisions possible after the death of Justice Antonin Scalia, the end of the Supreme Court’s term is likely to see lots more technicality.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Susan Warren at susanwarren@bloomberg.net