The Warren Court's "Accidental Ruling" In California v. Robinson That Should Have No Precedential Weight

Nat Lewin relays the story from his 1962 clerkship with Justice Harlan.

In Grant's Pass v. Johnson, the Supreme Court upheld a local law prohibiting camping on public property. In doing so, the Court declined to extend California v. Robinson (1962). Here is how I described Robinson:

Robinson v. California (1962) may be peak Warren Court activism. California made it a crime to be addicted to narcotics–not simply to use drugs, but to be addicted to using them. Robinson argued that this law violates some sort of substantive due process right. This was three years before Griswold, so the Court still was stuck under the New Deal settlement that rejected substantive due process. So what does the Warren Court do? It manufactures a new standard based on the Eighth Amendment out of whole cloth. Sort of like a penumbra. (Griswold favorably cites Robinson.) The Robinson Court held that it would violate the Eighth Amendment to punish someone because of the "status" of being a drug addict. The Court ruled that when punishing "'status,'" "[e]ven one day in prison would be . . . cruel and unusual." Id., at 666–667.

Justice Gorsuch's majority opinion all-but-rule that Robinson was wrongly decided. For sure, the Court declined to extend that precedent to the facts of Grants Pass.

Now, Nat Lewin writes in the Wall Street Journal how that "accidental ruling" came to be. Lewin clerked for Justice Harlan that term. Lewin and his co-clerk identified Robinson's petition from a stack of "flimsies" (cert petitions that were nor pri Justice Harlan flagged the petition with his brethren, and said the case should be put on the "discuss" list. The Court then granted the petition.

At conference, it was expected that the Court would rule based on the Due Process Clause:

After the justices discussed the case at their Friday conference, Harlan told his clerks, with great satisfaction, that a majority had voted to vacate Robinson's conviction. Opinions were customarily assigned the following week. Much to our surprise, Chief Justice Earl Warren assigned Justice Stewart to write the majority opinion in Robinson. No explanation was usually given for these assignments, but Harlan and I had hoped he would get it and were disappointed not to be able to craft a decision explaining the "serious constitutional questions" that justified plucking it from the trash. Still, we were confident that Stewart's opinion would declare due process didn't allow criminalizing "the status of being a drug addict" rather than a defendant's conduct.

But, to Harlan's surprise, the circulated majority opinion instead relied on the Eighth Amendment--and issue that wasn't brief and was barely mentioned at oral argument.

It seems that Justice Douglas influenced Justice Stewart:

Then as now, the end of each Supreme Court term was chaotic. Confronted with an imminent deadline, the justices are writing, dispatching, receiving and joining majority opinions, concurrences and dissents. I recall receiving Stewart's Robinson majority opinion days before the end of the term and being startled by its reliance on the Eighth Amendment. Justice William O. Douglas, a frequent outlier, distributed a lengthy concurrence explaining why he believed it violated the Cruel and Unusual Punishments Clause "to treat as a criminal a person who is a drug addict." I speculated that Douglas or his law clerk had influenced Stewart to choose that unusual rationale.

As I noted in my prior post, 1962 was before Griswold, and the Justices were still laboring under the New Deal settlement. Justice Stewart would go on to dissent in Griswold. He was not comfortable with substantive due process. So perhaps this decision should not have been so surprising in hindsight.

Harlan personally wrote a two-paragraph concurrence that rejected the Eighth Amendment analysis:

Pressed for time, Harlan personally composed a two-paragraph concurrence expressing his disagreement with Stewart. He disclaimed reliance on the Eighth Amendment but observed that Robinson had been found guilty "on no more proof than that he was present in California while he was addicted to narcotics."

The Court would decide fifteen opinions on June 25, 1962. (Can you imagine the Justices nowadays handing down 15 opinions in a single session, with all of the dissents from the bench? It would take all day!) One of those cases was Engel v. Vitale! Robinson v. California was less noticed.

Finally, Lewin provides some fascinating, and disturbing insights into the facts of the case. Turns out Robinson was dead, from a drug overdose, as it were.

Neither Justice Harlan nor I knew that Lawrence Robinson was black (as were the other three occupants of the car). If his case had reached the Supreme Court today, he might have been celebrated in the media. Reporters would have discovered that Robinson had died of a drug overdose on Aug. 5, 1961, months before the court agreed to hear his case.

In the event, even the state's lawyers evidently didn't know. Only in mid-July (after I had finished my clerkship) did California's attorney general file a petition to rehear or dismiss the case because the petitioner had died while the case was pending. When the court reconvened in October 1962, it denied the motion. Justices Tom Clark, Harlan and Stewart noted their dissent.

Worse still, Robinson's lawyer likely knew of the death, but did not disclose those facts to the Court!

Robinson's lawyer was Samuel Carter McMorris, who later won some notoriety for representing the Black Panthers. During McMorris's oral argument, he told the justices that he had represented Robinson at trial, that he had "handled a great number of narcotics cases" in the Los Angeles courts, and that Robinson's was the "third such case" in which he personally participated.

Did McMorris know that his client was dead? Reported discipline decisions of the California Supreme Court point toward an answer. The state high court suspended McMorris's law license four times between 1977 and 1981 for failing to communicate with his clients. He was disbarred in 1983.

Not only did the Court make up a standard out of whole cloth, but it did so in a case where the defendant was dead! It has happened that Ninth Circuit judges signed opinions from the great beyond, but last time I checked, a criminal prosecution terminates at death.

Lewin ends with this question:

Did today's justices know any of this history when they considered and decided whether to retain Robinson v. California as a binding precedent?

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.

Update: I appreciate Orin's post which points out that California filed a motion for reconsideration after learning of Robinson's death. That petition was denied, over a dissent from Justices Clark, Harlan, and Stewart. This is especially curious since Justice Stewart wrote the majority opinion! He voted to vacate his own decision. I am happy to stand corrected.