The Supreme Court was in session today for a rare Thursday hearing, after rescheduling the arguments that were originally to be heard this past Tuesday due to Hurricane Sandy.  It was odd to be in the courthouse on a Thursday, and it was mostly empty.  Which is a shame, because the arguments in Chaidez v. United States are important and were very well made by both advocates in the case (Jeffrey Fisher for Ms. Chaidez, and Deputy Solicitor General Michael Dreeben for the United States).

But the Justices, of course, were in the house, and today we saw Hurricane Ginsburg make landfall (albeit in her usual elegant, well-mannered, and pointed yet respectful way).  However, before getting into this morning’s argument in more detail, it is worth briefly recounting the facts of the case.  Petitioner Roselva Chaidez, a citizen of Mexico, came to the United States in 1971 and became a lawful permanent resident in 1977.  In 2003, Ms. Chaidez, on advice of counsel, pleaded guilty to mail fraud in connection with an insurance fraud scheme; she received $1,200 from the scheme, and in its entirety the fraud operation netted about $26,000.  Ms. Chaidez was sentenced to four years of probation under the terms of her guilty plea.  Unfortunately for Ms. Chaidez—and unbeknownst to her at the time she pleaded guilty—under federal immigration law, a fraud conviction involving a total loss in excess of $10,000 constitutes an “aggravated felony” for which a non-citizen can be deported.  In 2009, after Ms. Chaidez unsuccessfully filed a petition for naturalization (and subsequently disclosed her criminal conviction in the interview, reflecting her lack of awareness of its immigration consequences), the U.S. government initiated removal proceedings based on her conviction.

Ms. Chaidez filed a motion for a writ of coram nobis to set aside the conviction, arguing that her attorney had failed to inform her that a guilty plea could result in removal from the United States, her home for most of her life and where her U.S.-citizen family members live.  She maintains that, if her attorney had informed her of the possible immigration consequences of the plea bargain, she would not have accepted it.  While Ms. Chaidez’s motion was pending, the Supreme Court issued its decision in Padilla v. Kentucky, in which the Court held that the Sixth Amendment right to effective assistance of counsel includes within its ambit advice concerning the deportation consequences of a guilty plea. (The brief CAC filed in Padilla can be found here.)  The question now before the Court in Chaidez is whether Padilla applies retroactively to benefit those, such as Ms. Chaidez, whose convictions became final before the Padilla decision was announced.

Most of the discussion in the Court this morning was about whether Padilla announced a “new rule” under Teague v. Lane (1989), in which the Court held that a new procedural rule announced by a court could not be applied retroactively in a collateral attack on a criminal conviction.  As the dissenters from Padilla pointed out this morning, they certainly thought Padilla created a new rule, and the Court’s decision in Padilla conflicted with most of the prior lower court rulings on the subject—a point Justice Sotomayor made short shrift of by noting that “uniform error” from the lower courts cannot dictate how the Supreme Court views the law and its precedents.  (And, as for the dissenters, the implication was essentially, sorry, guys, you lost that one.)  Jeff Fisher argued for Ms. Chaidez that, using the Teague test, Padilla did not announce a “new rule,” but rather simply applied the well-established rule that ineffective assistance of counsel violates the right to counsel under the Sixth Amendment using the well-known Strickland test (in other words, (1) was counsel’s performance inadequate, and 2) did it prejudice the defendant.

But back to Hurricane Ginsburg.  She skillfully pressed a point that she plucked out of the briefs (in fact, CAC’s amicus brief), asserting that Teague shouldn’t even be an issue in Ms. Chaidez’s case because her conviction was under federal, not state, law.  Justice Ginsburg noted that the reluctance to apply new rules retroactively announced by the Supreme Court to state convictions is rooted in federalism concerns about undue intrusion in state justice systems.  This federalism concern is absent, of course, when a federal rule is applied in federal court to a conviction under federal law.  It’s a sharp point—I’m admittedly biased—that would essentially demolish the government’s argument against Ms. Chaidez.  As if to emphasize her complete mastery of the case, down to the smallest detail, Justice Ginsburg did not miss a beat when Deputy SG Dreeben asserted that a relevant change to the Federal Rules of Civil Procedure was “pending before the Judicial Conference,” interrupting him to point out that the rule had been accepted in September.   Anyone in the courtroom today—which was, alas, just a handful of people—can attest that Justice Ginsburg does not seem ready to retire any time soon.

The other Justices were harder to read, and predicting what the Justices will do based on oral argument is riskier than forecasting the weather.  We will just have to wait for the Court’s ruling, likely to come in the next few months.