The Justices decided 3 cases today and got 2 of them pretty clearly right (IMHO). In Jones v. Bock CJ Roberts wrote for a unanimous Court that lower federal courts can't impose additional procedural hurdles on habeas petitioners beyond those contained in the Prison Litigation Reform Act (and other statutes). For admin jocks, think of this as the Vermont Yankee of habeas.
In Osborn v. Haley Justice Ginsburg wrote for the Court that a federal court ruling remanding to state court a case removed under the Westfall Act is reviewable, despite the existence of a statute that says it's not reviewable. Justices Scalia and Thomas dissented on the ground that, well, the statute says the case is not reviewable. Justice Ginsburg's majority opinion seems to rely on a kind of implied "obviousness exemption." The Westfall Act makes the AG's determination that the facts justifying removal authoritative on the federal courts, and the lower court here disregarded the AG's determination. Count this case as a defeat for textualism if you're keeping score at home.
And then there's Cunningham v. California, in which the Court once again invoked the Apprendi line of cases to strike down a sentencing scheme that permits the aggravation of a criminal sentence based on a factual finding made by a judge on the basis of a preponderance of the evidence, rather than by a jury based on proof beyond a reasonable doubt. There were some distinctions between Cunningham and the prior cases, which Justice Alito (joined by Kennedy and Breyer) gamely argued, but for the most part the case was a straightforward application of Apprendi (which Kennedy and Breyer insist was wrongly decided). For my money, this whole line of cases is hopelessly confused because it permits judicial determinations to authorize a sentencing reduction but not an increase. Thus the rulings are easily rendered irrelevant by a sufficiently clever legislature.
In today's decision, for example, the Court invalidated a scheme in which the baseline sentence for the offense is 12 years, with the judge capable of going downward to 6 years if mitigators outweigh aggravators (if any), and capable of going upward to 16 years if aggravators outweigh mitigators (if any). (There are no in-between sentences.) So suppose California now amends its law to make 16 years the baseline offense, permitting a judge to depart downward to 12 years if she finds that no aggravators outweigh mitigators and to depart downward to 6 years if she finds that mitigators outweigh aggravators. That would be functionally equivalent to the scheme struck down today, but under the Court's assumption that judges can be given the power to reduce sentences w/o jury participation, it would be valid. I'll wait for the test case.