According to Scalia the latest new “Dred Scott” is Kelo, a perfectly straightforward application of precedent perfectly consistent with the text of the Constitution. It seems worth noting at this point that 1)Roe v. Wade is very popular, 2)it will enter its fourth decade next year having been supported by the vast majority of Supreme Court justices to have hear the issue, and 3)Scalia’s view that the Constitution does not have an implicit protection of privacy rights is so popular that justices who share his view can only get confirmed to the Supreme Court if they dissemble about their views during confirmation hearings.
The punchline, of course, is the guy who not only joined Bush v. Gore but wrote the stay opinion in is willing to call other Supreme Court decisions “stretches beyond the Constitution” in public. For that matter, it’s amazing the guy who wrote the stay opinion in Bush v. Gore is even willing to show his face in public.
I’m about to take the worst kind of red-eye flight, i.e. the one that leaves at 6 so you don’t get any sleep but it’s morning when you land. But I will end up in Ireland,so even if it’s a mostly working trip no complaints! In the meantime, I have pieces about the latest Roberts Court opportunity to insure that nobody in the New Orleans DA’s office is held accountable for systematic evidence suppression and a piece about the constitutional implications of prison privatization for your reading pleasure.
Litwhwick’s depressing account of the oral arguments in Perry v. New Hampshire makes it pretty clear that the Supreme Court is disinclined to require any changes to how courts deal with eyewitness testimony despite extensive evidence that its unreliability is particularly likely to lead to miscarriages of justice:
In his rebuttal, Guerriero tries to explain again that the reason you want to take fallible eyewitness identifications away from the jury is precisely because eyewitness testimony is both powerful and wrong: “The witness’s sincerity has a powerful effect on the jury,” he explains. But it’s clear that this court will either dismiss or slide right past the old precedents that suggest that eyewitness evidence is uniquely dangerous. Oddly enough, the fact that other compelling evidence may prove equally untrustworthy seems to have immunized all the bad eyewitness evidence.
See also Liptak.
I have a piece up at Alternet about the myth of Robert Bork. Nocera’s representative whining notwithstanding, the defeat of Bork wasn’t unprecedented, it wasn’t obstructionist, it was justified, and it was crucial to maintaining fundamental constitutional rights. And there’s a reason why so many hacks just quote the Ted Kennedy speech without bothering to point out why it was wrong:
Nocera is typical in that he quotes Kennedy as if his comments were self-evidently dishonest, without bothering to cite anything in the speech that was factually wrong. This is understandable because everything in Kennedy’s speech was based on Bork’s public writings. Bork did write an article for the New Republic denouncing the Civil Rights Act as unconstitutional and “based on a principle of unsurpassed ugliness.” (Nor was Bork’s opposition to the Civil Rights Act purely an academic exercise; according to Rick Perlstein’s Before the Storm, Bork was instrumental in convincing Republican presidential candidate Barry Goldwater to oppose it.) Bork was a critic of the exclusionary rule – which prevents the state from profiting from illegal searches and hence inhibits them. He wrote a widely discussed article in 1971 that the free speech clauses of the First Amendment should “not cover scientific, educational, commercial or literary expressions as such.” He was a long-standing critic not only of Roe v. Wade but the right to privacy in general, and whether opponents of reproductive rights wish to acknowledge it or not bans on abortion lead to women getting maimed or killed by back-alley abortions.
The point about Roe is particularly crucial, because the Senate’s rejection of Bork saved Roe. In 1992, the Supreme Court re-affirmed Roe by a 5-4 vote, with Bork’s replacement Anthony Kennedy as the swing vote in the majority. Had Bork confirmed, abortion would be illegal in a significant number of states, and important extensions of the right to privacy to gays and lesbians would have been thwarted.
It’s also worth noting that Bork also believed that not only the landmark Afrcian-American disenfranchisement case Baker v. Carr but the housing discrimination case Shelley v. Kramer were wrongly decided. Bork, in other words, on civil rights was to the right of a unanimous Supreme Court from 1948. We’re supposed to see his defeat in 1987 as some massive outrage against human decency?
Part of what’s going on is the phenomenon Krugman recently discussed: allegedly the dirtiest political tactic there could ever be is to discuss the consequences of conservative policies. Apparently, one can only discuss motivations and assume that conservative motivations are pure as spring water. This went double for Bork, since the many ugly consequences of his views were allegedly just unintended consequences of Deeply Held Legal Principles. But the problem, as the Ackerman piece I discussed the other day makes very well, is that Bork’s “originalism” doesn’t even rise to the level of law-office history. He spent most of his academic career as a theory-driven law-and-economics libertarian, and made his late switch to “originalism” without developing any substantial depth of historical knowledge. The “originalism” in The Tempting of America consists almost entirely of question-begging and bare assertion that happens in virtually every case of ongoing controversy to line up with Republican policy preferences. The idea that it was beyond the pale to note the consequences of Bork’s confirmation was absurd then and it still is.
Looks like we’ll know by November 14th. Like Denniston, I think it’s overwhelmingly likely that it will.
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Adam Liptak has a useful roundup of yesterday’s oral argument in Florence v. Board of Chosen Freeholders of Burlington County. The case involves a blanket policy of strip searching people arrested for minor offenses. It is a classic case where Supreme Court intervention to protect Fourth Amendment rights is warranted. The state is apparently unable to provide evidence of safety risks to would remotely justify suspicionless searches of people arrested for minor, non-violent offenses, and at an absolute minimum the Supreme Court should establish a standard of individualized reasonable suspicion for such searches that has some teeth. There seems to be some skepticism of the state’s position from the Court, but my concern is that because of their unwillingness to set clear rules even if the Court rules against the state I can see an opinion for the Court so “minimalist” it doesn’t really stop states from doing anything.
Another point that should be made is that the term “contraband” conflates things that have different implications for safety within prisons. The state has a very strong interest in insuring that people don’t smuggle weapons into prisons, but how many people arrested without warning for any offense — let alone minor, non violent offenses — are likely to have dangerous weapons hidden in intimate areas? If the contraband we’re talking about is drugs smuggling might be a little more likely but this doesn’t entail a risk posed to other prisoners. It’s a classic case of the War on (Some Classes of People Who Use Some) Drugs being used as an acid to dissolve the Bill of Rights; combining drugs and weapons into a generic “contraband” category allows the state to pretend there’s a more compelling justification for intrusive, humiliating searches than there actually is. Both generally and in individual cases, it would better if they were kept distinct, although there’s virtually no chance anyone on this Court will do so.
Rick Perry continues to long for the golden age of Hammer v. Dagenhart.
Adam Liptak’s roundup of a the forthcoming Supreme Court term — one that could produce the most landmark rulings of any in quite some time — is of course useful. What is likely to be the biggest case is well-known. This is one less prominent case I’ll be keeping an eye on:
In a pair of cases to be argued on Oct. 31 — Lafler v. Cooper, No. 10-209, and Missouri v. Frye, No. 10-444 — the justices will consider whether defendants who were not told of favorable plea deals or were advised to reject them may pursue claims for ineffective assistance of counsel. A great majority of prosecutions are resolved with guilty pleas, and more vigorous judicial supervision of how the pleas are reached would have a broad practical impact.
Given that over 90% of cases plead out, rulings about trial procedure are relevant to most accused persons only indirectly, to the extent that they provide more bargaining leverage to the defense or prosecution. It’s important that the Supreme Court engage in some supervision of the plea bargaining process, where inadequate counsel may be less visible but is nonetheless a serious problem.
In light of the Davis execution, this case will get more attention:
The court will also consider the use of eyewitness evidence, in Perry v. New Hampshire, No. 10-8974. Such evidence, as the New Jersey Supreme Court found in a major decision in August, is often unreliable and has been the cause of many wrongful convictions. The justices will consider whether trial courts must be particularly wary of allowing such evidence to be presented when it has been tainted by suggestive circumstances not created by the authorities.
I would like to think that the Supreme Court would follow the lead of the New Jersey court, but as of now I’m betting the other way.
In light of the Obama administration’s decision not to seek an en banc rehearing of the 11th Circuit’s ruling that the ACA is unconstitutional, there has been some good stuff written about the possibility that the Supreme Court will duck the issue with a jurisdictional ruling.
I have a piece up at the Prospect that makes a couple points about this I haven’t see elsewhere yet. First, the fact that the Roberts Court has limited standing in other areas is neither here nor there in terms of whether they will do it here. Supreme Court majorities limit standing to litigants whose claims they favor approximately never. And, second, for the Supreme Court to duck the issue now and then issue a ruling after the election would be the worst of all worlds. While paeans to the passive virtues have become increasingly common, I prefer transparency myself. Anyway, click over for the whole argument.
This is a different kind of injustice than Willingham, in that there seems to be good evidence that Buck killed somebody, but as for the death sentence:
In May 1997, a psychologist took the stand in a courtroom here during the sentencing hearing of Duane Buck, a black man found guilty of killing his former girlfriend and her friend.
The psychologist, Walter Quijano, had been called by the defense, and he testified that he did not believe Mr. Buck would be dangerous in the future. But on cross-examination, the prosecutor asked Mr. Quijano more detailed questions about the factors used to determine whether Mr. Buck might be a danger later in life.
“You have determined that the sex factor, that a male is more violent than a female because that’s just the way it is, and that the race factor, black, increases the future dangerousness for various complicated reasons,” the prosecutor asked Mr. Quijano. “Is that correct?”
“Yes,” the psychologist replied.
The question now becomes what the Supreme Court does next. I’m rarely optimistic when the Supreme Court deals with the death penalty, but you have to think that this could shock Anthony Kennedy’s normally dormant conscience. Even given the narrow standard established by McCleskey, this seems like a no-brainer 14th Amendment violation.
More on the Texas execution railroad here.
I’m not quite as pessimistic as Ruth Bader Ginsburg is about the possibility of someone with her record being confirmed to the Supreme Court again. I do agree with Carmon and Millhiser that it’s hard to imagine Ginsburg being confirmed under the same circumstances she was — not only with a
Republican Senate but with the recommendation of the chair of the Judiciary Committee.* I do think that Ginsburg could be confirmed in a Senate under Democratic control, although that’s partly because her record was an appellate judge was actually quite moderate. At any rate, it is striking how much the context for judicial nominations has changed.
*A commenter is correct; the Democrats controlled the Senate when RBG and Breyer were appointed; Hatch simply agreed to let her go without substantial opposition. Obviously, that wouldn’t happen today, but it’s possible that she could be confirmed under those circumstances…
Here I do think Obama’s unwillingness to consider the option reflects his preferences, or if not certainly reflects a serious misreading of what the Court is actually likely to do.