Federal Gov't Must Pay for Counsel on Some State Clemency Proceedings

The Supreme Court decided Harbison v. Bell yesterday. The majority held that 18 U.S.C. Sec. 3599 requires, in some circumstances, that the federal government pay for a death row inmate's counsel in state clemency proceedings.

The holding is important and sound, I think; but, what is most interesting is Scalia's opinion concurring in part and dissenting in part. As we all know, Scalia espouses an original meaning approach and is generally opposed to reliance upon legislative history. Yet, Scalia's dissent rebuts a portion of the majority's reasoning with such history, to wit:

The current text of subsection (e) first appeared ina version of the bill that included what is now subsection (a)(1) (which the Court concedes deals only with federalproceedings), but not subsection (a)(2) (which the Court would deem applicable to state proceedings). 134 Cong.Rec. 22995 (1988). In other words, at the time of its intro-duction, subsection (e) applied only to federal defendants, and the phrase “or other clemency” was unquestionably superfluous.

Now, in Scalia's defense, he was only responding to the majority's use of the Congressional Record. But it is nonetheless importnat to note that Scalia is perfectly willing to depart from the originalism--which he vivacously defends--when it is convenient

Supreme Court Releases Entergy Corp. v. Riverkeeper, Inc.

Today, the Court released Entergy Corp. v. Riverkeeper, Inc. The case relates to Section 316(b) of the Clean Water Act. Question presented: whether the EPA may conduct a cost-benefit analysis under the statute. If CBA is permitted, the environment is less protected; if it is disallowed, industry is burdened.

In an opinion wrote by Justice Scalia, the Court sustained the EPA's use of CBA. Breyer drafted an opinion concurring in part and dissenting in part (he argued that a limited CBA should be permitted). Ginsburg, Stevens, and Souter dissented.

The opinions can be accessed here.

I did a moot court on this case a few months ago. Very complicate statutory/regulatory scheme.

LATE UPDATE: The New York Times published this op-ed on Riverkeeper, entitled Ruling by Justices Backs Power Plants.