"A typical jury will understand that the victim is going to have a family, and they're going to be sorry he's dead..."

"... and they might be there at the trial. The buttons don't seem to add much to what the jury will derive from seeing the family seated behind the prosecution bench."

So said Chief Justice John Roberts at oral argument yesterday. The question was whether a federal court on habeas should overturn a murder conviction because during the trial, members of the victim's family sat in the courtroom wearing buttons showing a picture of the victim. The standard on habeas -- after the revisions in the Antiterrorism and Effective Death Penalty Act -- is whether the state trial judge's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” The 9th Circuit overturned the conviction of Matthew Musladin, and I think we know how the Supreme Court will decide this, given the difficulty of meeting the standard.

The linked article is David Savage's piece in the L.A. Times, but you can read the whole transcript here. I found it interesting that Justice Kennedy toyed with the idea of using the case to "clearly establish" the law for future cases:

Supposing we all thought that this practice in this particular case deprived the defendant of a fair trial, but we also agreed with you that AEDPA prevents us from announcing such a judgment. What if we wrote an opinion saying it is perfectly clear there was a constitutional violation here, but Congress has taken away our power to reverse it. Then a year from now, the same case arises. Could we follow -- could the district court follow our dicta or could it -- would it be constrained to say we don't know what the Supreme Court might do?

The lawyer for the state quickly reminded him that the Court in Williams v. Taylor (second link, above) said that only holdings count toward clearly establishing the law for habeas purposes and that Musladin will only win this case if the law was already clearly established. Perhaps Kennedy can find some way to extract the Court from this bind, which severely undercuts the role of the Court in saying what the law is at precisely the point where the statute -- AEDPA -- makes the Court's articulation of the law crucial.

ADDED: Linda Greenhouse's report on the argument is much better than what is at the first link. She explains the federalism problem extremely well:

The Supreme Court has had various things to say over the years about the unduly prejudicial impact of such practices as placing a defendant in shackles or in prison garb in the presence of the jury. But it has never said a word about a murder victim’s relatives wearing buttons.

So, did the federal appeals court in this case, the United States Court of Appeals for the Ninth Circuit, have the authority to extrapolate from the old Supreme Court precedents to the new situation? Did it have the authority to apply one of its own cases, a 1990 ruling that overturned a rape conviction because female spectators at the trial had worn buttons declaring “Women Against Rape”?...

Suppose, Justice Anthony M. Kennedy asked Mr. Ott, that there was no Supreme Court ruling on a particular issue, but that the courts of five federal appellate circuits had looked at the issue and had all reached the same conclusion. “And they all say, ‘We think the general rule of the Supreme Court is as follows,’ ” Justice Kennedy said, asking: “Isn’t that entitled to some weight? You’re not supposed to cite that when you go to the Sixth Circuit court or you go to the state court?”

Such a decision, even if widely shared among the appeals courts, could not be considered “clearly established” law, Mr. Ott replied. “To redefine or shape this court’s holdings beyond the face of those holdings, our position is that cannot be done with state or circuit law,” he said.

Read the whole thing, especially if you haven't thought about AEDPA before and need to get a grip on it.