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Today’s Supeme Court Scoreboard


Due process 6, Texas-fried Catch-22s 3. The case is yet another reminder that Althouse and Stuart Taylor were right that Alito is no Scalia — he’s much, much worse.

…more here and here.

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  • Joe

    Justice Thomas , with whom Justice Kennedy and Justice Alito join, dissenting.

    Scalia and Thomas split a few times already this term, including this case, where Ginsburg (see Scotusblog) was careful to underline the ruling is only opening a small space for defendants here.

  • c u n d gulag

    Yeah, but Thomas is usually the other “Old Reliable” right along with Alito when it comes to being on the Kafkaesque side of an argument.

    Scalia sometimes surprises.

    • timb

      Amen. Thomas sides with insanity and Alito with authority and the Church. Scalia has principles; I don’t agree with many of them, but he has them.

      What does it say that 3 Federal Javert’s are willing to see an innocent man stay in jail based upon where he sued and which statute it was under? Disgustung

  • howard

    i think that kennedy and alito are clearly the dumbest members of the court, but i thought that thomas at least had some set of principles.

    i don’t have the time or expertise to get into the details of the dissent scott: that’s your job! what’s thomas’ excuse?

    • Warren Terra

      I’ve read someplace that his record on this is not perfectly consistent, but as a rule Thomas just doesn’t seem to believe in rights for individuals facing corporations, for defendants, or especially for convicts. It’s not a very pretty principle, but there you are. Given that a lower court found a way to rule against the defendant here, it’s not like Thomas had to go to any great effort to concoct a legal theory that would let him exercise his biases; all he had to do was rule that the lower court was right.

      • howard

        warren, my low-information sense is that on that modest number of decisions upon which thomas and scalia differ, thomas’ viewpoint is normally more principled and less statist than scalia’s.

        which, of course, doesn’t mean that he would have any sympathy for defendant’s rights, and you may well be correct that the principle, in this case, is non-interference.

        but i also figured that scott or someone else better informed might have some further knowledge.

        • mds

          thomas’ viewpoint is normally more principled and less statist than scalia’s.

          According to Thomas, the state can criminalize private sexual activity between consenting adults, and even break down your door on a pretext to arrest you for it. The state can strip-search your teenaged daughter for ibuprofen on hearsay.** The state can sanction minors who attempt to exercise First Amendment rights away from school property. The state can execute people who have been flagrantly denied due process. And habeas corpus can be summarily nullified for US citizens whenever the Executive says so.** On the other hand, federal anti-marijuana laws go too far in overriding state laws only because they’re based on an expansive reading of the Commerce Clause, a clause that isn’t even in Thomas’ reactionary 13th-century crayon-scrawled copy of the Constitution.

          See, I’d be better able to marshal grudging respect for Thomas’ “anti-statist principles” if he weren’t repeatedly cheering on the jackboot stomping ordinary citizens’ faces to a bloody pulp. “Say what you will about the tenets of National Socialism, Dude, but at least it’s an ethos” isn’t actually all that reassuring a justification for a Supreme Court justice’s decisions.

          **These in particular are a couple of cases on which Scalia and Thomas differed, and not in a way that’s even remotely complimentary to Thomas.

          • timb

            Yeah, that’s my reading too. Thomas is nuts and, in certain areas (like Admin law) Scalia actually makes sense

  • richard

    And Roberts also joined in the majority decision. I still hold out hope that Roberts will become more moderate.

    • c u n d gulag

      You ARE an optimist!

      • R. Johnston

        Given how opinion assignments are handed out, reading anything about a Chief Justice’s substantive views into the mere fact that he joined a majority opinion in a case that didn’t come down 5-4 is always unduly optimistic regardless of the Chief Justice involved.

        In that vein, it’s worth noting that the decision as written is pretty much as minimalist as a decision for the prisoner possibly could have been. Maybe it would have been that way without Roberts exerting control over the opinion assignment, but maybe not.

        • Scott Lemieux

          Right. Roberts is probably a touch more moderate than Alito, but as I’ve said before when he joins the liberals it’s almost always as a superfluous vote. Unlike Scalia, he’ll never be vote 5/

  • mds

    Dear Deity,

    I was going to ask that Anthony Kennedy finally disappear the rest of the way up his own pasty ass before January 2013, but then I remembered that You managed to add even more reactionary fuckwits to the Senate than when the best we could possibly manage was Elena Kagan. So consider this just a sarcastic “Thank You” note for jerking around those of us who want the world to get better … yet again.

    –S. Quatch, Esq.

    • strategichamlet

      Not to cause trouble, but I often think about that beautiful world where nobody voted for Nader and Breyer became the swing vote on the court.

      • Joe

        We might have the same split, but a Republican could have picked the last two, instead of Roberts/Alito.

        Voting for Nader was pretty uncontroversial … in most states.

  • Job

    Tell me about it. He can be a real bastard sometimes.

  • jackd

    The attorney for Skinner in the oral argument, Robert C. Owen, is my old college roommate. Brilliant guy, has spent much of his legal career doing death penalty appeals in Texas.

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