The Precedential Value of Robinson, a Reply to Josh

Like a lot of people, I think that the Supreme Court’s ruling in Robinson v. California (1962) is a mess.  It’s a due process decision presented as an Eighth Amendment ruling.  With that said, I disagree with my colleague Josh Blackman’s view that the case is entitled to no precedential weight because it turned out that Robinson had died in 1961, before the Court took the case.  Josh writes:

Jurisdiction can be raised at any time, even after death. The Court lacked jurisdiction to decide Robinson v. California because there was no actual case or controversy. The state was prosecuting a dead body. Robinson gives new meaning to habeas corpus. That decision is entitled to no precedential weight. I think the California Attorney General could, in theory at least, petition to vacate Robinson on those grounds. That probably won’t happen. But next time Robinson comes up, the government should flag the issue.

It seems worth noting that this issue was raised before the Supreme Court in 1962.  After the Supreme Court’s ruling, the California Attorney General filed a motion to vacate the judgment or rehear the case that alerted the Court to Robinson’s death.

According to California’s petition, dated July 20, 1962, none of the counsel for the parties had known that Robinson was dead. (This is not entirely uncommon in criminal cases involving low-level charges; appellate counsel can have a hard time staying in touch with clients who are not being detained and who don’t have a fixed address.)  California’s motion states that the fact of Robinson’s death was only revealed by reporters who were looking into the case after the Supreme Court ruled:

It should be noted, however, that the fact of the appellant’s death was unknown to either counsel for appellee or counsel for Amicus Curiae until the public press brought the matter to the attention of counsel for Amicus Curiae on June 25, 1962, subsequent to the issuance of this court’s opinion on that date.

The Supreme Court nonetheless denied California’s motion on November 13, 1962. Justice Clark, joined by Justices Harlan and Stewart, objected to that denial:

In my view this action by the Court is but a meaningless gesture utterly useless in the disposition of the case—the appellant being dead—and, as I read our cases, is contrary to the general policy this Court has always followed in the issuance of its mandates. Under our decisions this appeal abated as moot upon the death of the appellant, Menken v. City of Atlanta, 131 U.S. 405, 9 S.Ct. 794, 33 L.Ed. 221 (1889), and the judgment should have been vacated and the case remanded to the state court for such proceedings as might be appropriate under state law.

This is true even though the opinion and judgment of June 25 had been handed down prior to the notice of appellant’s * death. See Stewart v. Southern R. Co., 315 U.S. 784, 62 S.Ct. 801, 86 L.Ed. 1190 (1942), vacating the prior judgment in the same case, 315 U.S. 283, 62 S.Ct. 616, 86 L.Ed. 849. Moreover, there is no question of costs involved here as there was in Wetzel v. Ohio, 83 S.Ct. 111. I would therefore grant the petition for rehearing and vacate the judgment as moot.

Whether one agrees or disagrees with the Court’s denial of California’s motion, it seems to me that this issue was settled for Supreme Court purposes 62 years ago.  The Supreme Court is certainly free to recast Robinson as a due process case someday—which I personally think they should, as that’s what Robinson really is.  But the motion to account for Robinson’s untimely death was litigated a long time ago, back when Elvis Presley had a Top 10 hit with “Return to Sender.”

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