New York Times

WASHINGTON — The Supreme Court decided 66 cases in the usual way this last term, after full briefing and oral arguments. It also quietly issued eight other decisions.

Those rulings, more than 10 percent of the court’s docket, were brief and unsigned. Presumably meant to correct errors so glaring that they did not warrant extended consideration, they nonetheless illuminated a trend in the court’s work.

In most of them, one of two things happened. Prisoners challenging their convictions lost. Or law enforcement officials accused of wrongdoing won.

A recent article by Judge Stephen R. Reinhardt, who sits on the federal appeals court in California, connected the dots between the two kinds of cases, which do not at first glance seem to have much in common. But both turned on whether there was a precedent that “clearly established” a right to relief.

A prisoner who turns to the federal courts to challenge a state conviction must show that it was at odds with, in the words of a 1996 statute, “clearly established federal law.” A plaintiff suing over, say, a police officer’s use of excessive force must show, the Supreme Court has said, that the officer violated a “clearly established” legal right.

The Supreme Court, Judge Reinhardt wrote in The Michigan Law Review, has taken to using a narrow definition of what counts as “clearly established.” Instead of looking to general principles, he said, the court requires the prisoner or plaintiff to do something that is all but impossible in most cases: to identify a decision that concerned nearly identical factual circumstances.

Much of the action in this area has taken place in unsigned decisions. Judge Reinhardt counted, for instance, 15 unsigned reversals of federal court decisions granting relief to state prisoners from October 2007 through this spring.

The most recent, in March, involved Cory Donald, who is serving a life sentence in Michigan for his role in the killing of a drug dealer. He said he had been denied effective assistance of counsel at his trial because his lawyer had been absent for part of it.

A federal trial court and a divided panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, agreed, relying on a Supreme Court decision that says a defendant’s constitutional rights are violated whenever his lawyer is absent from a critical portion of the trial.

The Supreme Court reversed in an unsigned opinion. It said the Sixth Circuit had “framed the issue at too high a level of generality.” There was, the opinion said, no precedent addressing “the specific question presented by this case.”

“None of our holdings,” the opinion said, framing the issue much more narrowly, “address counsel’s absence during testimony that is irrelevant within the defendant’s own theory of the case.”

In a second characteristic move, the opinion said it was agnostic about whether Mr. Donald’s constitutional rights had indeed been violated when his lawyer decided to skip part of the trial. All it decided under the 1996 law, the opinion said, was that the question was an open one.

That kind of reasoning, Judge Reinhardt wrote, has stunted the development of constitutional law and has “unfortunate parallels” in another body of decisions, those involving civil claims against government officials accused of misconduct.

Such officials are generally entitled to qualified immunity, which requires plaintiffs to show that the officials had violated “clearly established” legal principles. Here, too, the court has engaged in a kind of semantic leapfrog, often deciding that a right had not been clearly established without saying whether that right was in fact required by the Constitution.

An unsigned decision last month illustrates the point. The family of a mentally troubled man, Christopher Barkes, sued Delaware prison officials for not doing enough to keep Mr. Barkes from killing himself while in custody for violating his probation.

A divided panel of the Third Circuit, in Philadelphia, rejected the officials’ claim to qualified immunity. Understanding the legal terrain, the majority noted that “the ‘clearly established’ game is won or lost on how broadly or narrowly one defines the right at issue.”

The appeals court lost the game. “No decision of this court,” the Supreme Court’s unsigned opinion said, “establishes a right to the proper implementation of adequate suicide prevention protocols.”

Here again, the court based its decision on the absence of precedent and not on whether there was such a right.

Judge Reinhardt was appointed by President Jimmy Carter. He is an avowed liberal, and his court, the United States Court of Appeals for the Ninth Circuit, has a liberal reputation. But he is not alone in having reservations about the 1996 law, which Emily Bazelon recently subjected toa critical appraisal in The New York Times Magazine, or about how hard it is to hold officials accountable for constitutional violations.

Judge Alex Kozinski, who was appointed by President Ronald Reagan, also sits on the Ninth Circuit, and in some ways he is Judge Reinhardt’s ideological opposite. But in a sweeping overview of the criminal justice system published last month in The Georgetown Law Journal, Judge Kozinski called for doing away with prosecutors’ absolute immunity from lawsuits, saying it emboldens brazen misconduct. He also shared Judge Reinhardt’s low opinion of the 1996 law.

“We now regularly have to stand by in impotent silence,” Judge Kozinski wrote, “even though it may appear to us that an innocent person has been convicted.”

Judge Reinhardt concluded his own article with a more general point, mentioning the national debate over race and police actions in Ferguson, Mo., in Cleveland and on Staten Island. Members of minority groups have lost faith in the justice system, Judge Reinhardt said, and the Supreme Court is not helping.