August 6, 2008
Medellin Executed After Supreme Court Ruling
Yesterday, in a 5-4 decision, the Supreme Court denied Jose Medellin's application for a stay of execution. Medellin was executed soon thereafter. There continues to be an extraordinary degree of coverage of the story, including a comprehensive write-up by SCOTUSblog, available here.
Among the other noteworthy features of the decision was the filing of four separate dissents by Justices Stevens, Souter, Ginsburg, and Breyer. Each gave separate reasons for his or her vote to grant the application for a stay of execution. As Justice Breyer observed, only four votes are needed to grant a petition for a writ of certiorari; but in the context of a death case, a fifth vote is necessary to stay the execution. Justice Breyer found it "particularly disappointing that no Member of the majority has proved willing to provide a courtesy vote for a stay" in order to consider the Solicitor General's as-yet-unfiled views. The majority apparently felt that seeking the Solicitor General's views was too slender a procedural reed to justify the delay, when in fact it would take action by Congress or the Texas legislature to set aside the sentence, the possibilities of which were "too remote" to justify a stay.
August 6, 2008 at 09:25 PM | Permalink
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In one respect this was surreal. After all of his normal appeals (state direct, state post-conviction and federal habeas--note, a situation where a state's right to enforce its death sentence becomes especially strong), Texas won a 6-3 Supreme Court judgment allowing it to execute Medellin. Texas sets a date (which it had every right to do) for execution. Medellin then files papers with the Supreme Court a scant four days before the scheduled execution, and the Supreme Court seriously considers staying the execution. Wow.
There is considerable institutional credibility at stake where the Supreme Court issues a judgment. That judgment is expected to be the final word. But four Justices were willing to trade some of its credibility for the sake of a brutal murderer. I think that sends an unmistakable message that a significant portion of the Court is fundamentally opposed to capital punishment and care deeply about the issue.
The easy answer here would have been to simply deny cert. etc., the rationale (unstated, of course) being that all of the issues had been decided and there really wasn't anything new (i.e. "been there; done that"), and, oh by the way, why did you wait to file with four days until execution. But that wasn't the answer.
Instead, the dissenters said some silly things (e.g., Stevens--what's the harm in waiting a little more (it never is, see, e.g., Cooey) after 14 years? or Breyer--stating that there was a violation of international law, thereby giving those who want to bad mouth the country some choice quotes--or how about the surpassing silly reliance on the ability of Congress to pass the pending bill when any serious observer has to realize that the likelihood of that bill passing is remote, at best).
It is possible to argue that the international issues drove the dissenters--but I doubt that. I think the outrage over the so-called violation of international law was feigned. It was just a vehicle to save Medellin's life. Moreoever, I doubt the dissenters cared a whit about Texas' interest in enforcing its laws.
The interesting thing to watch, I think, is if executions ramp up, and there is a significant possibility of that. Will the Supreme Court grow tired of the last minute appeals etc.? Will more death cases be heard? We shall see.
Posted by: federalist | Aug 6, 2008 10:18:49 PM
federalist, I don't know what *really* drove the dissenters.
I should note, though, that state legislatures and Congress are both capable of acting really quickly when it wants to save someone's life and when its members disapprove of court proceedings. The Terry Schiavo legislation was rammed through both houses of Congress in record time. The state legislation passed swiftly as well, if I recall correctly.
As the per curiam majority noted here, however, neither Congress nor the Texas legislature has done much in the past 4 years. In my view, they've had more than enough time to act (had they wanted to) since the Supreme Court issued Medellin, if the Schiavo stuff is any indication.
Posted by: | Aug 6, 2008 10:51:09 PM
I agree with your discussion of the dissenters' motivation. Scalia made the same point in his devastating concurring opinion about three years ago in Kansas v. Marsh.
The post following yours is also correct in noting that Congress had plenty of time to act had it been serious. It has been known at least since March that Congress needed to act in order to give effect to the treaty. But nothing was done. Instead, August arrives and Speaker Pelosi decides it's time for her and her troops to hit the beach, so they adjourn.
What a group!
Posted by: Bill Otis | Aug 6, 2008 11:19:12 PM
Four years? The treaty was determined to have been non-self-executing only a few months ago. Congress would have had no reason to think it needed to do anything before the Medellin decision. To state otherwise (as the per curiam did) is nothing short of disingenuous.
Federalist, your comments have no basis in reality and are wholly uninformed. The validity of the Supreme Court's decision in Medellin was not at stake. All it did was say that Congress was required to act to make the treaty enforceable in domestic courts of law. It did not "allow[ Texas] to execute Medellin." That is absolutely incredible as legal analysis. It merely reviewed whether Texas was permitted to apply a state procedural bar to Medellin's claim, i.e., it answered a procedural question. Medellin came back to the Supreme Court (after having returned to both the ICJ and the state court) and asked it to stay his execution to prevent a single Texas district attorney from frustrating the Congress's constitutional prerogative to execute treaties and protect the nation from breach.
And to suggest Breyer was mistaken to say that "there was a violation of international law"? This is what the Supreme Court said in Medellin itself: "No one disputes that the Avena decision—a decision that flows from the treaties through which the United States submitted to ICJ jurisdiction with respect to Vienna Convention disputes—constitutes an international law obligation on the part of the United States." What is it about "no one" that you don't understand? You can't just make things up and pass them off as legal analysis, you know.
Your divorce from reality was completed with this gem: "It is possible to argue that the international issues drove the dissenters--but I doubt that. I think the outrage over the so-called violation of international law was feigned. It was just a vehicle to save Medellin's life. Moreoever, I doubt the dissenters cared a whit about Texas' interest in enforcing its laws." I assume you also think Bush--the person who presided over more executions than any other American--Rice, and Mukasey were driven by the same interest in "a vehicle to save Medellin's life"? Your blithe dismissal of this country's compelling interests in protecting Americans abroad is truly staggering.
With this (unsigned) per curiam decision, the Bush Supreme Court has unquestionably removed the U.S. from among those nations that adhere to the rule of law. It's a betrayal and will be viewed by history as exactly such.
Posted by: DK | Aug 6, 2008 11:20:11 PM
DK-The violation of int'l law occurred years earlier, when Medellin wasn't given consular access upon his arrest. So what, in your view, should the remedy have been? Retrial? Release? If you're going to say "just don't execute him," that strikes me as pretty anti-DP results oriented, because what does keeping him in prison rather than executing him have to do with the violation of the treaty, which already happened years ago regardless?
Posted by: Jay | Aug 6, 2008 11:32:48 PM
1) honestly, I don't think anyone will care about this in a week. Other than people like you, the perpetually outraged.
2) do you really think that Bush, Rice or Mukasey were doing much more than going through the motions?
3) I didn't suggest anything about Breyer's comment--other than it gives aid to those who want to badmouth us.
4) With respect to the decision in Medellin, I think youre confusing the opinion with the judgment. There is a difference that even this third-tier law school grad understands. Medellin wouldn't get a do-over if Congress purported to give him another weapon with which to fight Texas' death sentence.
Posted by: federalist | Aug 6, 2008 11:33:16 PM
1) I doubt anyone, except the perpetually outraged (i.e., people like you) will give a flying _____ at a rolling donut within a week of this "betrayal".
2) You know, even this graduate from a third tier law school understands the difference between an opinion and a judgment. Since when does new federal legislation give a losing litigant the right to a do-over of an adjudicated claim?
3) Do you really think Bush, Rice and Mukasey were doing anything but going through the motions on this one?
4) I didn't suggest Breyer was wrong--I merely said that he is helping those who want to badmouth the country.
Posted by: federalist | Aug 6, 2008 11:40:48 PM
The Avena decision requires only a judicial determination of whether any prejudice resulted from the original violation. Medellin received that determination many years ago in a state habeas proceeding in which he had the assistance of the consulate.
There was no violation of the treaty obligations of the United States in proceeding with this execution.
Posted by: Kent Scheidegger | Aug 7, 2008 12:38:10 AM
Considering that you are ALL confusing the MANDATE of the Supreme Court with a judgment of a lower court, maybe you all went to TTTs.
Posted by: S.cotus | Aug 7, 2008 10:35:13 AM
Who is perpetually outraged. Most of the time I see people screaming about how “liberals” are oppressing the government or some silly crap like that.
Posted by: S.cotus | Aug 7, 2008 10:36:18 AM
The mandate issue is irrelevant, that's why not discussed. Of course, the Supreme Court can withdraw its mandate.
Posted by: federalist | Aug 7, 2008 11:01:40 AM
Oh, and S.cotus, before you talk about TTTs, let's not forget your exposition on selective incorporation.
Posted by: federalist | Aug 7, 2008 11:04:49 AM
Can anyone tell me whether Ohio- or any other state- has a "safety valve" provision for first time drug offenders that is similar to the federal provision? I have a friend who has been rotting in an Ohio jail for 5 years for a cocaine deal that would have netted him about $400, and it appears that if the case had been heard in federal court he would be on his way out instead of looking at 5 more.
Posted by: Josh | Aug 7, 2008 11:06:11 AM
I am not sure how selective incorporation plays into the Medellin Discussion. If I recall correctly, this is really a supremacy clause debate. But, since, as you say, you are not a lawyer, maybe you are getting these things confused.
Posted by: S.cotus | Aug 7, 2008 11:13:46 AM
"I don't think anyone will care about this in a week. Other than people like you [DK], the perpetually outraged."
A week would appear to be an overestimate. There was precious little coverage of it even the next day (in contrast to the coverage given the MCain v. Paris Hilton dust-up). Today, a scant 48 hours later, I can't find a thing about it.
I'm not certain why this is, although I have a suspicion. One reason is that, procedurally, it's a pretty complicated case, a little beyond what most news producers want to deal with or can work into a one-minute segment.
My other reason for thinking the coverage was deliberately skimpy is that the anti-DP crowd, which is larger in the media and the academy than in the population at large, would on the whole prefer that it go away. It has some use in lambasting the USA as an "international outlaw," but this is outweighed by two other factors.
The first is that the Bush Administration was on Medellin's side as respects the most important issue, to wit, whether the federal government had the authority to force Texas to stand down. My experience is that it drives liberals nuts when they have to say the least little thing nice about George Bush, so they'd rather just keep quiet.
The other and more important reason for the skimpy coverage is that there was no way to cover the case without, well, covering it. The news that "the USA is an outlaw for executing Medellin" was quite likely -- as the media knew -- to give rise to the question, "Well, why did he get executed?" This in turn invites attention to the gruesome facts of Medellin's participation in this stomach-churning double gang rape/murder.
Avoiding a discussion of the specifics of the defendant's sadistic conduct is, in this case more than most, crucial to the abolitionist argument. But the only way to avoid that discussion was to bury the case. So buried is what it got, and we have Paris Hilton (again) instead.
Posted by: Bill Otis | Aug 7, 2008 11:14:45 AM
South of the border, the case got a shrug from Juan Q. Publico. AP story here.
Posted by: Kent Scheidegger | Aug 7, 2008 11:39:07 AM
Mr. Otis, The press is fickle, and necessarily so. They cater to the lowest of the low. The lay people. (Or “those people” or “little sh*ts” or “victims” as prosecutors would say.) Little people really don’t have the brain power to read cases or even try to understand what they are about. Instead, they like flashy things. They are simply of a different species and we must do whatever we can to help them without getting too close. Lawyers (at least ethical ones) read every case and know what the real debates are. Cases never disappear. They are always there. So, it seems strange that anyone would refer to a case as obscure since we are ethically bound to have read every case.
Therefore, it is silly to say that you can’t “find” a thing about it when you are just looking at sources that cater to the moronic masses. They are more concerned with sit-coms.
Anyway, most of the time it is not too hard to get a message out to the little people. They are easily manipulated by anyone with the inclination. However, seeing that we are a government of laws not of men (whatever that silly phrase means), most people with clients on death row see little use in talking to the little people about legal arguments. So, this issue isn’t going to get much play in the news.
There are, however, important issues in this case. Most of them we could never explain to the little folks. The big one, I think, was the president’s assertion that he could order state courts to do things. (This had the illusion of putting a death row prisoner on the same side as the Connecticut liberals in the white house.) But, arousing public sentiment is simply not worth the trouble in this case.
Finally, I think we can all agree that in most death row cases the defendant’s conduct was sadistic. Even though you believe that people can be put to death without a trial if the government says “war” everyone on death row has gotten a trial. Further, they have all gotten additional proceedings about whether or not they should be killed or merely put in a hole. So, I think we agree on that. But, when dealing with issues of whether the death penalty is, itself, constitution, or whether procedural requirements were complied with, the manner in which the defendant committed the crime is only relevant to the lay people. Lawyers are more interested in the questions of whether the requirements exist or not, and whether it was complied with. Unless you are lowering yourself to talking to the uneducated non-lawyer scum, you know this. It doesn’t matter how “bad” the defendant’s crime was, constitutional requirement exist regardless of whether he is black, white, or really evil, or just a little evil.
Now, this situation cuts both ways. Obviously for the “abolitionists” as you call them it means that maybe some people won’t be killed by a state employee. But, for the “lets kill lots of people” crowd, ignoring the “severity” of a crime (provided someone was convicted and sentenced) and talking purely about procedure legitimizes the death penalty. It tactically concedes that defendants are entitled to some kind of process, but it also takes the debate from one of “who is more barbaric” to a question of “just when” the state employees get to kill people in secret. (As I have noted, executions in the US seems to be strangely secret, whereas Iran does it in the open. I suspect this is because some governments don’t want the public to see the execution, in fear that people will make an informed choice and end the death penalty via the democratic processes.)
Posted by: S.cotus | Aug 7, 2008 11:42:06 AM
While it is every America’s patriotic duty to read all Supreme Court cases, Mexicans are under no such duty, and therefore, they don’t need to care.
Posted by: S.cotus | Aug 7, 2008 11:43:43 AM
Whatever one thinks of the merits of the claim, Medellin never received a hearing on the treaty issue. Although it was mentioned in some of the proceedings, the issue was whether the treaty violation was itself a constitutional violation - not whether the treaty violation, by itself, afforded a basis for relief.
Texas could have afforded him such a hearing, as other states have done, and as Texas has promised to do in future cases. But it chose not to do so here, vigorously contested all of Medellin's efforts to do so, and rushed to execute him before any law could be enacted that would give him the right to such a hearing.
If Medellin had received a hearing, it obviously would not have been necessary for the Supreme Court to decide the issue that it decided in the Medellin case.
I do not understand why Texas (and its defenders) continue to insist that Medellin received a hearing that he did not receive.
Posted by: rn | Aug 7, 2008 2:05:07 PM
Apparently we'll soon have "Son of Medellin." A quite similar case is now before Justice Scalia, as Circuit Justice. This one involves a Honduran national facing execution in Texas. You can check it out on Scotusblog.
Posted by: Bill Otis | Aug 7, 2008 3:03:24 PM
And, Bill, that is why these issues don't "die." There are other case. We a a nation of laws. Not of men. That is why whether the media or the little people care does no matter.
While the little people might not understand it, Chi is not making a VC argument. And the SCOTUSblog points out that he is not seeking to re-argue Medellin. Despite the fact that these two cases will involve different legal arguments, people generally feel free to tell the lay people that they are the same. But the lay people deserve no better.
Posted by: S.cotus | Aug 7, 2008 3:13:09 PM
federalist, as basically everyone who has responded to your comment in both threads has stated already, you are completely wrong when you say that Medellin would have no recourse had Congress made the treaty binding.
The Supreme Court held that A -> B, where A is an absence of Congressional implementation of a non-self-executing treaty provision, and B was that Bush could not order Texas to give Medellin the review he was seeking.
If Congress did in fact implement the treaty, A would no longer hold, therefore B would not necessarily follow from the Medellin decision, and Medellin would be free to go to court again to argue his case. To assert that B would hold regardless of whether A held is, as another poster put it, quite incredible legal analysis.
If the system acted like you pretended it did, how could there be any habeas review after the Supreme Court already ruled against the defendant (or denied cert) in direct review? There are countless numbers of cases where the Supreme Court issues multiple judgments over time in a particular case, dealing with different issues or sets of circumstances.
Posted by: Kenny | Aug 7, 2008 5:33:44 PM
You know, Kenny, Plaut has the very answer to the question.
The dissent promises to provide "[a] few contemporary examples" of statutes retroactively requiring final judgments to be reopened, "to demonstrate that [such statutes] are ordinary products of the exercise of legislative power." Post, at 12. That promise is not kept. The relevant retroactivity, of course, consists not of the requirement that there be set aside a judgment that has been rendered prior to its being setting aside--for example, a statute passed today which says that all default judgments rendered in the future may be reopened within 90 days after their entry. In that sense, all requirements to reopen are "retroactive," and the designation is superfluous. Nothing we say today precludes a law such as that. The finality that a court can pronounce is no more than what the law in existence at the time of judgment will permit it to pronounce. If the law then applicable says that the judgment may be reopened for certain reasons, that limitation is built into the judgment itself, and its finality is so conditioned. The present case, however, involves a judgment that Congress subjected to a reopening requirement which did not exist when the judgment was pronounced. The dissent provides not a single clear prior instance of such congressional action.
The dissent cites, first, Rule 60(b), which it describes as a "familiar remedial measure." Post, at 12. As we have just discussed, Rule 60(b) does not provide a new remedy at all, but is simply the recitation of pre-existing judicial power. The same is true of another of the dissent's examples, 28 U.S.C. § 2255 which provides federal prisoners a statutory motion to vacate a federal sentence. This procedure " `restates, clarifies and simplifies the procedure in the nature of the ancient writ of error coram nobis.' " United States v. Hayman, 342 U.S. 205, 218 (1952) (quoting the 1948 Reviser's Note to §2255). It is meaningless to speak of these statutes as applying "retroactively," since they simply codified judicial practice that pre-existed. Next, the dissent cites the provision of the Soldiers' and Sailors' Civil Relief Act of 1940, 54 Stat. 1178, 50 U. S. C. App. §520(4), which authorizes courts, upon application, to reopen judgments against members of the Armed Forces entered while they were on active duty. It could not be clearer, however, that this provision was not retroactive. It says: "If any judgment shall be rendered in any action or proceeding governed by this section against any person in military service during the period of such service . . . such judgment may . . . be opened . . . ." (Emphasis added).
Posted by: federalist | Aug 7, 2008 7:01:22 PM
I agree with S.cotus. We are a nation of laws. Which is why the "son of Medellin", Heliberto Chi, just had his stay request rejected by the Supreme Court: https://www.scotusblog.com/wp/new-treaty-based-challenge-to-execution/ S.cotus is certainly correct in noting that Chi is not making a VC argument. Even his lawyer conceded that Medellin v. Texas closed that option. Unfortunately for Mr. Chi, it would appear that the Court chose not to entertain his Honduran treaty argument, either. It might take a while, but eventually, all these silly arguments will be disposed of.
Posted by: realist | Aug 7, 2008 8:16:15 PM
Federalist, let's say hypothetically that you are correct. Then why was that position not even argued? The argument about the latest stay request was whether or not the possibility Congress might change the law was too remote. Texas argued that such a possibility was too remote, and both the lower courts and the SCOTUS agreed. The SCOTUS wrote an opinion that said exactly that.
If you were correct, the remoteness of the possibility that Congress might change the law would be irrelevant. Even if it was a certainty that Congress would change the law, Medellin could still get no relief.
The Supreme Court clearly does not agree with your view, given that they analyze the likelihood of Congress passing new legislation, and they make no mention of the possibility that even if they did introduce implementation legislation, that Medellin could still get no relief. The likelihood of Congress passing legislation would not be pertinent under your theory.
So is the Supreme Court wrong?
Posted by: Kenny | Aug 7, 2008 8:25:45 PM
Realist, At the Supreme Court ANY result can be justified by the platitude that we are a “nation of laws.” Indeed, since cert. grants, and stay grants are completely discretionary, any decision to grant or deny them is ALWAYS legal, and therefore we a nation of laws.
Of course, seeing that there is often disagreement amongst MEN as to whether such things should be granted or not granted, then perhaps we are a nation of “men.”
Or maybe these are just silly platitudes that are only for use when talking to the idiot lay scum that infest my country.
Whatever the case, as someone with an interest in criminal law and international law:
1. VC and counselor cases are not really the most important out there. I think the 5th and 6th amendment RTC is much more vibrant than any convention.
2. Of international law questions these also are not the most important out there.
Since I think that DP issues should be litigated on their merits (e.g. DID he do it, DID he get a fair trial, or IS it cruel and unusual) I don’t think this has much to do with the DP, anyway. Moreover, the VC applies to misdemeanors with as much force as it does death-eligible crimes.
To me, what WAS important was that the decision that the president can’t direct state courts to do anything. And that was decided. Texas and me agreed on the legal analysis.
Posted by: Scotus | Aug 7, 2008 8:34:53 PM
We may be in danger of agreeing with one another too often:
1. I agree that the Court answered the presidential power question in Medellin correctly.
2. As for the 6th Amendment, you have here a vote in favor of the entire Apprendi-Blakely line of cases (though not Booker remedy). I believe Bill also agrees with the Stevens-Scalia position on the Booker remedy question.
3. On Confrontation Clause, I'm with Justice Scalia on everything from Maryland v. Craig to the recent Giles v. California.
4. It seems to me that the criminal defense bar should do better in terms of raising the enumerated powers argument and try to limit the reach of the Commerce Clause. That approach had been fruitful before. (see US v. Lopez, US v. Morrison).
It is no wonder, then, that scotusblog analysis of the 24 criminal cases in the Court's recently-concluded term showed that Justice Scalia voted in favor of criminal defendants 11 times. That's nearly half. As a basis of comparison, consider Justice Kennedy, whose score is 12, and Justice Stevens, whose score is 13. In other words, if we measure them by how often they vote with criminal defendants, the difference between one of the most conservative justices and one of the most liberal ones is a difference of 2 cases.
Posted by: realist | Aug 7, 2008 9:09:43 PM
Kenny, I doubt anyone thought of the effect Plaut may have had, and the Supreme Court majority didn't have to even think about it, as it determined that the speculative nature of the Congressional action was reason enough not to grant the stay.
It's pretty weak to argue that I am wrong on the basis that the Supreme Court didn't delve behind what would happen if, by some miracle, Congress passed the pending legislation.
Posted by: federalist | Aug 7, 2008 9:46:30 PM
"I believe Bill also agrees with the Stevens-Scalia position on the Booker remedy question."
Correct. Their dissent on that point just blows away the majority.
The fact that Scalia, and to a lesser extent Thomas, have voted recently in favor of defendants, to nearly the same extent as Stevens, should put the lie to the notion that they are nothing but conservative ideologues.
They really don't peak to see who's going to win. They both have quite well-formed views of how the Constitution should be interpreted, and they follow that where it leads.
Posted by: Bill Otis | Aug 7, 2008 10:11:44 PM
Bush v. Gore. Follow where it leads my ass. The normalization of extremism in this country is downright frightening.
Posted by: DK | Aug 7, 2008 10:52:35 PM
The decisive votes in Bush v. Gore were cast by O'Connor and Kennedy. Is it your view that they are extremists?
Posted by: Bill Otis | Aug 7, 2008 11:39:45 PM
DK, didn't seven justices agree that EPC was violated by SCOFLA? And was the remedy analysis really all that wrong?
Posted by: federalist | Aug 8, 2008 12:36:17 AM
In light of DK's latest post, this research seems to be appropriate: Liberals are 12 times more likely to use profanities than conservatives - https://washingtontimes.com/news/2008/aug/07/profanity-greater-on-liberal-blogs/
This research also seems appropriate:
"Only one major group in the population has gotten angrier: people who call themselves "very liberal." While conservatives, moderates and nonextreme liberals all have seen their average levels of outrage fall over the past 12 years, the number of angry days among our leftiest neighbors has risen 56% (to 2.28 from 1.46), and the percentage with no angry days in the past week has fallen to 31% from 37%. Today, very liberal people spend more than twice as much time feeling angry as do political moderates. One in seven is outraged seven days a week."
Posted by: realist | Aug 8, 2008 2:09:56 AM
The Great State of Texas kills again. Yeehaw!
Posted by: mpb | Aug 8, 2008 5:13:49 AM
There is a book out describing why conservatives are happier than liberals. I haven't read it, and I don't know the title, but it was the subject of an entry a couple of months ago on the insightful conservative blog Power Line. (Full disclosure: I was best man at the wedding of one of the Power Line authors, and have appeared there from time to time as a contributor).
My own view is that there are two obvious reasons conservatives are happier than liberals. The first is that, increasingly, liberalism takes root in a culture of grievance and (unmet) entitlement. By definition, a culture of grievance is going to produce aggrieved people.
The second reason is that conservatives are more likely than liberals to view the United States as a fair and decent society. Living in a society seen in that way is going to make for more happiness than living in a society seen as a cauldron of class hatred, racism, privation, violence and so on.
My guess is that the statistical tendency of conservatives to be more religious and more successful at making good living is also in the mix, but that is just an intuition.
This is a fascinating subject, and there's a good deal more to say about it, but I'm sure I've gotten myself in enough trouble already.
Thanks for posting the articles.
Posted by: Bill Otis | Aug 8, 2008 7:00:45 AM
Realist, Counting votes probably is not too helpful. When an criminal issue is presented to the Supreme Court it has been vetted by so many layers of advocacy, so that, for the most part, it is the most “extreme” case imaginable and a case where there is actual debate between the parties.
Moreover, depending on the issue, a “vote” one way or the other can will have a much larger impact than a vote on another issue. For example, Scalia's opinion in Blakely and Crawford changed the shape our criminal procedure far more than pretty much anything Thomas ever wrote. So, in the long run, these vote-counts are not that informative.
On the other hand, suppose that some state decided that it could designate anyone it wanted an “enemy of the state” and detain them indefinitely (like the feds are starting to claim now regarding Arabs). It would only take one vote to eliminate all of our criminal justice system.
I see commerce clause challenges in criminal issues all the time. But, right now, the Supremes don't seem too interested in analyzing another internet pr0n case, so unless one of the Circuits decides to stick its neck out, it isn't coming up. However, the commerce clause doesn't help the criminal defense bar in general, since it only means that the state can prosecute on pretty much the same evidence.
And come on, I think we will both agree that calling onself happy or content isn't narcissistic for most people that like politics.
Posted by: S.cute.us | Aug 8, 2008 7:15:26 AM