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April 27, 2007

Little capital respect for a SCOTUS elder

Mark Sherman has this interesting AP article spotlighting the snippy dissent penned by Chief Justice Roberts in the AEDPA death penalty rulings on Wednesday.  The piece also discusses SCOTUS voting patterns and notes Justice Kennedy's hot streak: "Kennedy is a robust 31-1 in signed opinions issued since the court began its current term in October. He is 12-0 in 5-4 cases, the only justice in that narrow majority each time in cases concerning abortion, the death penalty and global warming."

I found notable that CJ Roberts' dissent showed so little respect for Justice Stevens' recounting of the Supreme Court's capital jurisprudence, particularly given that Justice Stevens was a central player in the development of this jurisprudence.  Justice Stevens was a key vote developing the Court's early guided discretion jurisprudence in late 70s, before the Chief had even graduated law school.  This is not to say that the Chief should have completely deferred to Justice Stevens' take on the death penalty law he helped develop, but he surely could have been a little nicer when expressing his disagreement. 

April 27, 2007 at 12:51 AM | Permalink


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Roberts was probably disgusted with a naked results-oriented decision for the benefit of a murderer. Hence the outrage. Plus he was probably disgusted by the fact that the Supreme Court made a mess and then ipse dixit proclaimed that it didn't.

Posted by: federalist | Apr 27, 2007 2:29:13 AM

Had the result gone the other way with a snippy dissent from the liberals, I imagine that most of the pundits would be praising the dissenter for "bravery" or something silly like that.

Roberts thinks that the majority opinion is unsupportable, as opposed to something on which reasonable people can disagree, and he said so. Good for him.

Posted by: | Apr 27, 2007 7:24:07 AM

I think Roberts and everyone else on the court owes much respect to Justice Stevens. Not only is he often 100% correct, he writes short and direct opinions that resolve the issues head-on. If Stevens had written in Sternberg v. Carhart it would have been about 3 paragraphs.

My Model Stevens Opinion:

1. We already decided this. One of the parties was the same damn guy. We're not doctors, and neither is Congress. I voted not to grant cert. But since we're here again, here's the decision, in case you (like Congress) somehow forgot the law of the land.

2. Gov't can regulate abortion[1] when there is a compelling state interest but can't strike at the right itself. Casey. Regulations can't contain an effective veto by 3rd parties. Danforth. Regulation of minors must contain judicial bypass. Bellotti. Regulations must contain exceptions to save the life life and perserve the health of the mother. Casey, Sternberg, Ayotte.

3. The congressional findings of fact are bullshit. Bill Frist couldn't diagnose his way out of a wet paper bag with scissors in both hands. Since the law does not have a health exception, it is unconstitutional.

[Footnote 1]: Suck it, Thomas. If gov't can regulate sales of pornographic movies under the commerce clause, it can certainly regulate abortion.

Posted by: tekel | Apr 27, 2007 11:30:09 AM

doh, of course i mean "if Stevens had written in Gonzales v. Carhart."

Posted by: tekel | Apr 27, 2007 11:31:27 AM

Seems like this is in part motivated by the fact that Stevens is 87 years old, and so the press--and this blog, perhaps--feels that the other justices shouldn't be so hard on him. But why should his age matter? If he's made the decision that he's sharp enough to continue in active service on the Court, he shouldn't be given any special deference simply because he's elderly.

Posted by: Law Clerk | Apr 27, 2007 12:46:08 PM

I'm surprised by this post. If a Justice vehemently disagrees with the reasoning of a majority, how do you propose he express his/her disagreement? Through kid gloves? Glancing suggestions? Or, instead, should it be through forcible writing and reasoning that confronts the majority head on?

I simply don't understand how it is "disrespectful" for a Justice to accuse the majority of playing fast and loose with precedents. And I certainly don't understand why it should matter that the Justice writing the majority played a role in "developing" that line of law.

Justice Kennedy was one of the three Justices who formulated the heart of Casey. Was Justice Ginsburg's Carhart dissent, taking aim at Kennedy's majority and accusing it of ignoring precedent, thereby "disrespectful"? Or was it instead "impassioned"?

Posted by: bill | Apr 27, 2007 5:16:33 PM

If Roberts and Law Clerk don't respect their elders they should certainly respect their betters. As alluded to by mentioning Stevens was a "central player" in creating current capital jurisprudence, the Court's elder jurist has already well-earned his legacy, while Roberts is just beginning his journey. We don't really know who Roberts is yet except a guy who whines like a spoiled frat boy when he loses while insisting he wants "consensus."

Bottom line, the USSC sent Smith back to Texas, and Texas' high criminal court thumbed their nose and said the issue the Supremes remanded over was "harmless error." Perhaps you don't believe me when I say that if they didn't hold the line there, it's almost unimaginable what rights might be pawned off by that egregious court in the future under the same rubric. (They're really that bad: Texas Monthly called them "Texas' worst court"; the Austin Statesman this year called on the Legislature to de-fund it!) There is a real-world context to these decisions, not only pedantic legal reasoning that occurs in a vacuum or some ivory tower. Judges have to obey the law and higher courts. The Texas court refused.

Roberts was happy to see the Texas CCA thumb its nose at the USSC majority on the death penalty and his opinion was little more than rah-rah cheering for what he myopically and wrongly viewed as an insurgency aimed at his opponents on the court. He'll learn as he goes, though, that he has an insitutional interest to maintain, too - one that he did not uphold in this instance.

Posted by: Gritsforbreakfast | Apr 27, 2007 5:18:33 PM

I should have said the snippy portions of Roberts' opinion were cheering, not the whole thing which I've skimmed but not read - I was only characterizing his dismissiveness of the majority.

Posted by: Gritsforbreakfast | Apr 27, 2007 5:29:42 PM

My biggest problem with the Chief Justice's opinion is that it promises to ignore stare decisis. Reeeal conservative.

Posted by: rothmatisseko | Apr 27, 2007 5:30:56 PM

Part of respecting your colleagues when you're a judge is being fully candid when you disagree. Judges aren't medieval courtiers or politicians or professors.

Roberts didn't call Justice Stevens names, he didn't call him stupid or evil or dishonest or unfit to be a judge. He just wrote a forceful dissent attacking the opinion on its merits. Many "liberal" justices who have spoken well of Rehnquist have said that one of the things they respected most about him was that he confined his disagreements with his colleagues to the particular case--it was never personal and disagreement in one case never affected other cases. I see no reason to think that Roberts and Stevens view their disagreement in this case as anything more serious than their disagreement in any other case.

I also haven't seen any substantive critiques of Roberts's opinion in the comments, just adverbs and epithets.

Posted by: | Apr 27, 2007 5:36:56 PM

Roberts was in fact snide in closing his dissenting opinion. There is nothing wrong with dissenting. But, the Chief Justice of the United States Supreme Court shouldn't write like a snide first year associate.

I did that too as a first year associate, and the partner always caught it and took it out. Expecting Roberts to act like a grown up in the way he writes his opinions is not too much to ask.

Posted by: ohwilleke | Apr 27, 2007 8:38:27 PM

"My biggest problem with the Chief Justice's opinion is that it promises to ignore stare decisis. Reeeal conservative."

If you're basing this on the end of the CJ's opinion, which you quoted in another comment thread, you're simply misunderstanding it.

Posted by: JLP | Apr 27, 2007 11:07:12 PM

"not the whole thing which I've skimmed but not read"

Well, I think that about says it all, folks. How in the world can you critique an opinion if you don't bother to read the whole thing? How on earth can you judge whether certain comments criticizing the majority are inappropriate if you haven't even read the reasoning that leads to those comments?

The fact that you would critique before even reading the opinion suggests that you simply identified the outcome of the case, recognized which side you agreed with, and then started to look for reasons to disagree with the other side. That's not legal analysis; that's uninformed partisanship.


Posted by: bill | Apr 28, 2007 9:31:07 AM

The fact that you would critique before even reading [...] That's not legal analysis; that's uninformed partisanship.

Welcome to the internet. You must be new here.

(tongue firmly in cheek...)

Posted by: tekel | Apr 28, 2007 1:29:19 PM

I'm surprised by this post for two reasons.

First, DAB has always rightly criticized the Court for spending far too much time on capital cases, which affect far fewer than 1% of the criminal defendants in the United States, and spending too little time on other crucial sentencing matters that would affect thousands. I had always thought that DAB recognized that one reason the Court does so is because its capital jurisprudence usually hinges on the views of a single Justice apt to changing his mind. JGR's criticism, though pointed, shows that AMK's indecision has required the Court to spend countless hours on this narrow issue, rather than the other cases with much broader impact that DAB often brings to our attention. I would think this point quite worth making in DAB's view, even if doing so was impolite to JPS.

Second, JGR's dissent is so heated in part because it shows, along with AS's dissent, that several petitioners with identical claims to last week's victors *actually died* when certiorari was denied. (For examples of 2 now-dead petitioners who would've prevailed if AMK had changed his mind earlier, see AS's dissent in Brewer at 5.) When a decision you think unpersuasive manages to garner a swing vote and thus move the law against you, that's frustrating. But when the swing voter, having voted to deny certiorari in two prior cases where the petitioner *actually died,* later changes his mind and joins an unpersuasive majority opinion, harsh language seems to me quite in order. And when that swing voter was the *author* of the decision that mandates that those two petitioners die (AMK *wrote* Johnson, don't forget), I do not think the dissenters can be asked to check their pens.

That is why, with all due respect to previous commenters, I do not think that JGR's opinion is at all like the overly broad language in a first-year associate's memorandum, or even a green law clerk's bench memos. It is an articulation of the utter embarassment our chief judicial officer feels at the constantly shifting sands of the Court's capital jurisprudence, and I think him quite entitled, and indeed obligated, to express it. Even for those who are happy that this particular skirmish came out the way it did, the amount of time and energy invested in producing the outcome-oriented opinions in this essentially ideological war should give all good lawyers pause.

Posted by: Section 3553(a) | Apr 29, 2007 3:58:48 AM

For all those whining about Stevens getting dissed--take a look at his lame-o dissent in Scott v. Harris, wherein he talks about the Court being jurors and wherein he talks about the court not following the rule of law.

Posted by: federalist | Apr 30, 2007 6:22:53 PM

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