Why I Loved Sandra Day O'Connor

Source: Annenberg Public Policy Center

We learned last week that she had passed away. We knew it was coming. We knew she was quite ill and that the Justice O'Connor we knew had already left us. But we are, nevertheless, newly aggrieved that she is gone.

I didn't know Justice O'Connor well on a personal or social level. But I did have the opportunity to meet her and to spend some time chatting informally several times. The first time was in February 1986 when she was escorting the Supreme Court Fellowship finalists, then a few times during my fellowship year, and once or twice again at some event at the Court or elsewhere.

Credit: Alan Day/Western Horseman

We usually just engaged in small talk. Nothing jurisprudential or otherwise profound, except for our shared, profound love of the Arizona desert. She would speak of her home in the Southwest and growing up on a cattle ranch--a real "cowgirl of the Arizona desert." I would talk of my two Army tours at Fort Huachuca, Arizona, and riding on post for hours every weekend--a wannabe cowboy. I confess feeling a bit special that she would remember me and our Arizona chats each time we met.

So yes, for that reason alone she has had a special place in my heart.

(A dear friend of mine who taught at the University of Arizona became close to her in her latter years on the bench and thereafter, and everything he told me about Justice O'Connor confirmed that my heart was in the right place.)

But let me speak as one who follows the Supreme Court, and who believes that the Court is at its best when it protects civil rights and liberties--limited only by legitimately overriding interests. I have certainly not always agreed with Justice O'Connor. Though she might well have had the better position on many issues.

[Yes, there's Bush v. Gore (2000), perhaps the most dishonest, unprincipled Court decision of the modern era--regardless of how one feels about the ultimate outcome. Her vote in the bare majority was inexcusable. Later in life, she seemed to recognize that.

N.B., many of the great Justices in Supreme Court history have likewise cast a deplorable vote or authored some dreadful majority opinion.]

Nevertheless, without surveying her entire body of judicial work, it would be accurate, albeit barely relevant, to say that I did agree with her on many of the most important issues of the day. Much much more important than that, however, I admired how she typically strove to strike a wise balance between the competing needs of liberty and order, as opposed to elevating some rigid ideologically-driven methodology for decision-making.

Here are just a few of Justice O'Connor's opinions that, in my view, show what a fine Justice she was:

Credit: Kevin Wolf/Invision/AP

Mississippi University for Women v. Hogan, 1982: O'Connor wrote the opinion for the 5-4 majority that the state nursing school's restriction to women was invalid sex discrimination. Rejecting the dissenters' insistence that the women-only institution was "discriminat[ing] invidiously against no one," she explained that the state was actually perpetuating "archaic and stereotypic notions" about the proper roles for men and women.

Planned Parenthood v. Casey, 1992: O'Connor co-authored a three-Justice plurality opinion to sustain a woman's right to choose. Articulating an "undue burden" standard to balance the "personal liberty" of deciding whether to carry a pregnancy to term against "the demands of organized society," she rejected the four dissenters' absurd argument that there could be no such constitutionally protected right to choose an abortion because, among other things, "the Constitution says absolutely nothing about it."

[For more on that preposterous argument, see The Leaked [Dobbs] Opinion--Constitutional Nonsense Revisited* (Part 1), May 7, 2022. Of course, Dobbs overruled O'Connor's balanced approach.]

Lawrence v. Texas, 2003: O'Connor joined the Court's 6-3 decision to invalidate Texas's law criminalizing "sodomy" engaged in by members of the same sex. She did so, in a separate concurring opinion, based on constitutional equal protection, arguing that mere "moral disapproval" does not "justify a law that discriminates among groups of persons"--notwithstanding the dissenters' reliance on "the moral opprobrium that has traditionally attached to homosexual conduct."

Grutter v. Bollinger, 2003: O'Connor authored the Court's 5-4 decision upholding the limited consideration of race to ensure the "compelling" benefits of diversity in education. But, while rejecting the dissenters' argument that racial preferences were necessarily prohibited by equal protection, she did insist that educational institutions must ensure "narrow tailoring," such that any "race-conscious admissions program [does] not unduly harm members of any racial group."

[Of course, as with her balanced approach on the right to choose in Casey, the Court recently overruled her approach to affirmative action, invalidating any consideration of race in education admissions, in Students for Fair Admissions v. Harvard (2023).]

Ewing v. California, 2003: O'Connor wrote a plurality opinion which, however, secured a majority of her colleagues for the proposition that the "cruel and unusual" prohibition of the 8th Amendment did forbid punishments that were grossly disproportionate. She rejected the view, repeated by a couple of Justices in several cases, that the Constitution prohibited only "horrid modes of punishment" such as "flaying alive, rending assunder with horses...maiming, mutilating and scourging to death." [Justice Scalia's reference to his opinion in Harmelin v. Michigan, (1991).] To O'Connor, the mere fact that the term "excessive" was not used to modify "punishments" in the 8th Amendment did not exclude the possibility that such a punishment could be "cruel and unusual."

Hamdi v. Rumsfeld, 2004: O'Connor authored the Court's opinion, holding that an American citizen imprisoned in this country as an "enemy combatant"--without charges or a hearing--does have a due process right to receive notice of the Government’s factual assertions and an opportunity to rebut them in a judicial proceeding. The dissenters argued that she was "transmogrifying the Great Writ." But she explained that, in the absence of a valid suspension of habeas corpus by Congress, "it would turn our system of checks and balances on its head" to deny a citizen the right to judicially challenge the basis for his detention government, "simply because the Executive opposes making available such a challenge."

To be sure, Justice O'Connor was not always in the majority. At least two of her dissenting opinions deserve mention as underscoring her wise sense of balance and care about preserving fundamental principles despite competing interests.

Atwater v. Lago Vista, 2001: In a case involving a seat belt violation, the majority held that the 4th Amendment permitted a warrantless arrest for any criminal offense, regardless of how minor, as well as a full custodial search and detention in a jail cell at the police precinct during "processing"--all incident to that arrest. O'Connor was appalled. Noting that the majority itself recognized that the arrest and detention of the driver--a mother with children in the back seat--was a "pointless indignity" serving no legitimate law enforcement interest, she found it incongruous that the majority could nevertheless adopt an unqualified bright line that rendered the "extraordinary intrusion" on a mere seat-belt violator to be constitutionally permissible. As she put it, "the Court's position is inconsistent with the explicit guarantee of the Fourth Amendment" that prohibits searches and seizures that are unreasonable.

Employment Division of Oregon v. Smith, 1990: In a case involving the application of a criminal drug law against the use of peyote by members of a Native American church in an ancient religious ritual, the majority reversed the decision of Oregon's high court which had ruled that a religious exemption was constitutionally required. Writing for the majority to reject any such exemption, Justice Scalia declared that the Supreme Court had "never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law." In her separate concurring opinion--joined in most part by the dissenting Justices--O'Connor comprehensively detailed how Scalia's assertion was simply dishonest and "dramatically departs from well settled First Amendment jurisprudence."

As O'Connor showed, the Court had frequently repeated that only those laws that are "essential to accomplish an overriding governmental interest" could constitutionally burden religious free exercise. Indeed, despite the majority's mischaracterization of such a test as a "constitutional anomaly," she noted that it was actually the "constitutional norm" to protect fundamental rights and prohibit racial discrimination.

Source: Sandra Day O'Connor Institute

Beyond that, she took the majority to task for insisting that an unavoidable and acceptable consequence of democratic government was to "place at a relative disadvantage those religious practices that are not widely engaged in." Citing, among other decisions, Chief Justice Warren Burger's opinion for the Court in Wisconsin v. Yoder (1972), she felt compelled to remind the majority that, "the First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility. The history of our free exercise doctrine amply demonstrates the harsh impact majoritarian rule has had on unpopular or emerging religious groups."

[I know I have spent more time on this case than others. But I find Scalia's majority opinion particularly galling in its dishonesty and callous disregard of a minority religion. For like reason, I find Justice O'Connor's separate opinion so imperative. Those who follow the Court's religious liberty jurisprudence know that the Court has done whatever it can to bypass the Smith decision. Several Justices have already made clear that the decision should be "reconsidered." It is almost certain that O'Connor's opinion will eventually be expressly vindicated by the Court.]

This has been a brief survey of some of the most significant and representative opinions of Justice Sandra Day O'Connor. Perhaps more than any other member of the Court over the last few generations, she has been a wise and candid balancer of the strong competing interests at issue in virtually all the cases that reach the Court. And unlike some of her colleagues who have seemed ideologically blind or otherwise uncompromising to disfavored or less-favored interests, or who avow fidelity to some politically induced and supposedly neutral interpretive methodology, she has been motivated by the practical realities and the real-world ramifications of her decisions. That is anathema to some Justices.

"Just apply the law" is a mantra that fails to recognize that there is almost always strong legal support for both sides in appeals at the Court. For Justice O'Connor, the actual consequences from embracing one legally supported position or the other was necessarily a foremost consideration. For that reason, her opinions made sense. Like the very best Justices in the Court's history, wisdom and decency and reality, as opposed to some cramped formalistic legalism, were the hallmarks of O'Connor's jurisprudence.

Want Scalia-type Justices? Really? (Part 4: Punishment)

Here's wishing the newly inaugurated President lots of success in doing what's best for our country.

If Scalia's view of gay rights--"homosexual sodomy," as he insisted on putting it--was anachronistic and offensive, his positions on crime and punishment were downright medieval.

Yes, this may sound like over-the-top criticism. But even self-proclaimed Scalia admirers, at least most of them, would find the positions he advocated to be startling. Indeed, very few Scalia enthusiasts are likely aware of his actual record on legally acceptable punishment. They are almost certainly unaware of his extreme views on what constitutes "cruel and unusual."

Let's review Scalia's actual record. The positions he actually advocated. And again, let's consider whether the supposed Scalia fans--the newly inaugurated President, his prospective Supreme Court nominees, and the Senators who will vote on confirmation--are really fans of that, or would be willing to admit it.

Scalia insisted that excessive punishments, no matter how extremely excessive, were perfectly constitutional. In fact, he insisted that the Constitution's "cruel and unusual" prohibition only prohibited "flaying alive" and similarly barbaric punishments. Nothing else.

Yes, you read that correctly. (I wish I were kidding.)

Let's first look at Scalia's major judicial writing on "cruel and unusual punishments."

Harmelin v. Michigan (1991)
This case involved a state law that mandated life imprisonment, without the possibility of parole, for possession of a large quantity (6.5+ grams = ~1 1/2 pounds) of cocaine. By a 5-4 vote, the Court upheld the sentence.
Justice Scalia wrote the opinion for the Court's majority.

To be precise, however, only 6 paragraphs of Scalia's 36 page writing in Harmelin constituted the majority opinion. As for the rest of what Scalia wrote, only Justice Thomas signed on.

Of the remaining 7 Justices on the Court, 3 voted in a separate concurring opinion written by Justice Kennedy. They concludd that the life sentence for that drug crime was not too harsh. Together with Scalia and Thomas, that made a majority of 5 votes to uphold the sentence, for one reason or another. The remaining 4 Justices dissented. They argued that that the sentence was too harsh. In sum, 7 of the 9 Justices--the 3 who concurred in the result and the 4 who dissented--disagreed vehemently with all but a few paragraphs of Scalia's 36 page opinion.

Why? What was it that Scalia wrote in those 36 pages that 7 of the 9 Justices would not join?

Other than the 6 paragraphs that garnered a 5-4 majority, Scalia devoted his 36 page opinion to his view that harsh sentences, regardless of how excessive, did not violate the Constitution. Yes, the 8th Amendment explicitly prohibits "excessive bail" and "excessive fines." But as for "punishments," the 8th Amendment only prohibits what is "cruel and unusual." And in Scalia's view, even the most excessive punishments are not covered by "cruel and unusual."

Here are his own words:

[T]here is no cause to believe that the provision was meant to exclude the evil of a disproportionate punishment. [The opposite] argument has force only for those who believe that the Constitution prohibited everything that is intensely undesirable -- which is an obvious fallacy.
[My emphasis added. ("No cause" at all? And an "obvious" fallacy?)]

He further explained his rather stingy reading of the 8th Amendment's prohibition:

[A] disproportionate punishment can perhaps always be considered "cruel," but it will not always be (as the text also requires) "unusual."

He then argued that the Court's previous decision on the subject, which had held exactly the opposite of his view,

was simply wrong; the Eighth Amendment contains no proportionality guarantee.

[T]here is no proportionality requirement in the Eighth Amendment.
[My emphasis added.]

Along the way, in support of his position, Scalia cited with approval a decision that upheld a sentence of 40 years imprisonment for the possession and sale of marijuana. He also approvingly cited another decision that upheld a life sentence for a third minor offense--i.e., the fraudulent use of a credit card to obtain a mere $80 worth of purchases. Scalia even refused to concede that a life sentence imposed for a parking violation would be unconstitutional. Instead, he insisted that such extremely excessive punishments would be rare and that, even if they were adopted, the choice of the voters or legislators should be respected.

Again, 7 of the other Justices refused to join those sections of Scalia's opinion in Harmelin and would only sign onto a different 6 paragraphs of what he wrote. Justice Thomas was alone in agreeing with Scalia's entire 36 pages.

So, one might ask, what, according to Scalia, does the 8th Amendment prohibit? He did discuss that in exhausting detail in that 36 page opinion. The "cruel and unusual" prohibition, in his view, prohibited "only certain modes of punishment." He repeated that several times: "the clause only outlawed certain modes of punishment."

So what exactly are those "certain modes" that are prohibited by the Constitution? Scalia explained what he meant by quoting some early 19th century commentators. Those commentators had written that the "cruel and unusual" prohibition

'would not tolerate the use of the rack or the stake, or any of those horrid modes of torture, devised by human ingenuity for the gratification of fiendish passion.'
[And]
'various barbarous and cruel punishments inflicted under the laws of some other countries...furnish sufficient reasons for this express prohibition. Breaking on the wheel, flaying alive, rending assunder with horses, various species of horrible tortures inflicted in the inquisition, maiming, mutilating and scourging to death, are wholly alien to the spirit of our humane general constitution.'
[My emphasis added.]

One might well agree with those commentators. The "cruel and unusual" prohibition would certainly seem, at the very least, to prohibit such punishments. But according to Scalia in Harmelin, such "'horrid modes" were the only punishments that were prohibited by the 8th Amendment. Not to be misunderstood, Scalia proceeded to dismiss the views expressed by other commentators of the same time period, as well as in judicial decisions, that "cruel and unusual" referred to more than that. Those contrary views, according to him, were either wrong or irrelevant.

Now, someone might suggest that Scalia was overstating his position. Maybe he was only emphasizing his real point that the Constitution does not prohibit punishments just because they are excessive. Well, no. Scalia later made clear that he meant exactly what he wrote in Harmelin. For example, there was the lethal injection case 17 years later.

Baze v. Rees (2008)
In this case, a 7-2 majority of the Court upheld the lethal injection procedure used by Kentucky and other states. Writing for the Court, Chief Justice Roberts explained that punishment would be unconstitutionally "cruel and unusual" if it presented an "objectively intolerable risk" of "severe pain," and if that pain could be "significantly reduce[d]" by a "feasible, readily implemented" alternative. In short, the Constitution is violated if there is no "legitimate penological justification for adhering" to that currently used painful punishment.

Justices Scalia and Thomas agreed that the lethal injection at issue was valid. But they refused to join the Chief Justice's opinion. They emphatically rejected his formulation for "cruel and unusual."

Scalia, and Scalia alone, joined Thomas's separate concurring opinion to express their shared view about the 8th Amendment. The "cruel and unusual" prohibition only prohibits punishments with

the defining characteristic of burning at the stake, disemboweling, drawing and quartering, beheading, and the like...[that] were designed to inflict torture as a way of enhancing a death sentence; [that] were intended to produce a penalty worse than death.
[My emphasis added.]

That's right. Just like Scalia had written in Harmelin, the Constitution only prohibits punishments like  "maiming, mutilating" and "drawing and quartering, beheading, and the like." Today, with Scalia gone, Thomas is the only Justice remaining who embraces that extremely constricted view of "cruel and unusual punishments."

Do the avowed Scalia admirers, including the supposed Scalia-types that are being touted as prospective Supreme Court nominees, share that extremely cramped view of the 8th Amendment? Are they even aware that Scalia had such a view?

Would they--the new President, the Senators, and the nominees--be willing to admit and defend that view at Supreme Court confirmation hearings? Excessive punishments, even extremely excessive ones--fine? Painful punishments, even unnecessarily painful, except for disemboweling and the like--fine? I guess we shall soon see.

Before concluding, mention should be made of another one of Scalia's views, expressed in Atkins v. Virginia (2002), about executing the severely mentally disabled. By a 6-3 vote, the Court held in that case that the death penalty imposed on a defendant who had a 59 IQ was unconstitutional. Scalia disagreed. He joined the dissenting opinion of Chief Justice Rehnquist disagreeing with the Court's decision. But Scalia also wrote a separate opinion himself to add his own protest that

mental retardation does not render the offender morally blameless [and]
that society’s moral outrage sometimes demands execution of retarded offenders.

Then there's the related matter of torture. Scalia repeatedly insisted that government's torturing of an inmate, a prisoner, or a detainee does not violate the Constitution. His reasoning? The Constitution only prohibits "cruel and unusual punishment." So unless torture is an explicit part of a judicially imposed criminal sentence, it is not per se "punishment" and thus, according to Scalia, it is not constitutionally prohibited. (Once more, not kidding.)
(See e.g., Antonin Scalia's Case for Torture, The Atlantic [2014]; Justice Scalia on the Record, 60 Minutes' Lesley Stahl Interview [2008].)

Then there's the execution of someone who is innocent. Scalia actually dissented when the Court ordered a federal trial judge to consider a substantial claim of innocence by a murder defendant who might have been wrongfully convicted and sentenced to death. (In re Davis [2009].) Scalia-- in an opinion joined only by Thomas-objected to the Court's ruling. Why? This is what he wrote:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.

That position was nothing new or out of the ordinary for Scalia. It was actually just a repetition of a view  he had advocated for a long time. So, for example, 16 years earlier, in Herrera v. Collins (1993), he wrote a separate concurring opinion to express his view that:

There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.

Well, we could go on. But hopefully the point is well made. Scalia had some....uh...very curious, even frightening, views about punishment and what the Constitution permitted. Do his self-proclaimed admirers really admire those views? Really agree with them? Are they even aware of his views? Well, that is Scalia's actual record.

Next in this series, we'll take a look at yet another aspect of Scalia's actual record.

Justice Scalia's Record (Part 5: Punishment)

Back from spring break and the Easter holiday. Yes, the big news concerning the high court is President Obama's nomination of federal appeals court judge Merrick Garland to fill the Scalia vacancy. As we continue with the examination of  Justice Scalia's record, readers who are eager to learn more about Judge Garland might want to take a look at 2 posts on New York Court Watcher from 2010 (Merrick Garland [1] & Merrick Garland [2]) and listen to an interview last week on Susan Arbetter's Capitol Pressroom [@ ~21:50 mins]).

photo: AP/Manuel Balce Ceneta

The 8th Amendment prohibits "cruel and unusual" punishments. Justice Antonin Scalia viewed that prohibition as outlawing only punishments that are both extremely gruesome and extremely rare. Applying those criteria, he voted to uphold the 8th Amendment constitutionality of whatever sentence came to the Court for review.

A look at a few cases in which Scalia participated and wrote an opinion will illustrate his rather narrow and unyielding perspective on what qualifies as "cruel and unusual."

Punishment

Harmelin v. Michigan (1991): the 5-4 majority held that a life sentence, without the possibility of parole, for possession of 650 grams of cocaine was not unconstitutionally excessive.

Three Justices in the majority concluded that the sentence was not so excessive as to be "cruel and unusual."

Four dissenting Justices viewed the sentence as so disproportionate that it did violate the 8th Amendment.

That made 7 of the 9 Justices who agreed that the "cruel and unusual" prohibition of the 8th Amendment did include an excessiveness component.

Justice Scalia, on the other hand, had a different view. Writing for himself and Chief Justice Rehnquist [The majority joined only part 5 of his 5-part opinion.], he took the position that the sentence was clearly constitutional. But that was so, according to him [I.e., in the 4 of 5 parts of his opinion that the majority did NOT join.], because "the Eighth Amendment contains no proportionality guarantee." Instead, the "cruel and unusual" prohibition only "disables the Legislature from authorizing particular forms or 'modes' of punishment — specifically, cruel methods of punishment that are not regularly or customarily employed." Quoting with approval from some historical studies, Scalia insisted that the "cruel and unusual" prohibition referred only to such punishments as "[b]reaking on the wheel, flaying alive, rending assunder with horses, various species of horrible tortures inflicted in the inquisition, maiming, mutilating and scourging to death to punishments."

Atkins v. Virginia (2002): the 6-3 majority held that the death penalty for a severely mentally disabled murder defendant--an IQ of 59--was unconstitutionally "cruel and unusual."

In his dissent, Scalia protested that "mental retardation does not render the offender morally blameless." Moreover, according to Scalia, "[t]he fact that juries continue to sentence mentally retarded offenders to death for extreme crimes shows that society’s moral outrage sometimes demands execution of retarded offenders."

Roper v. Simmons (2005): the 5-4 majority held that it was unconstitutional to impose the death penalty for a murder committed by a juvenile.

In his dissenting opinion joined by Chief Justice Rehnquist and Justice Thomas [Justice O'Connor wrote her own dissent.], Scalia berated the majority for "reach[ing] this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to 'the evolving standards of decency.'"

Baze v. Rees (2008): the 7-2 majority upheld the constitutionality of a common method of lethal injection.

In his opinion for the Court, Chief Justice Roberts explained that a "method of execution is unconstitutional if it entails an 'intolerable risk' of 'severe pain.'" He concluded that lethal injection was acceptable under that standard.

In dissent, Justice Ginsburg refused to approve lethal injection until those seeking to impose it proved that any risk of pain was actually unavoidable.

Scalia agreed with the Court's decision to uphold lethal injection, but disagreed with the intolerable-risk-of-severe-pain standard. He authored a separate concurring to criticize Justice Stevens for generally questioning the justification for the death penalty. Beyond that, Scalia explicitly stated at the outset that he was joining Justice Thomas's own concurring opinion.

In that opinion, Thomas repeated the view shared by him and Scalia about the very limited contours of the "cruel and unusual" prohibition. To them, the 8th Amendment was only "intended to prohibit torturous modes of punishment." And in accord with early case law and commentary, this meant that the constitutional prohibition was confined to "burning at the stake, crucifixion, breaking on the wheel, or the like.”

Kennedy v. Louisiana (2008): the 5-4 majority held that the death penalty for raping a child is unconstitutional; that capital punishment is almost exclusively reserved for homicidal crimes.

Justice Alito, in his opinion for the 4 dissenters including Scalia, posed the following question: Consider "a previously convicted child rapist [who] kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that [any murder] defendant is more morally depraved than the [child rapist]?"

Subsequently, Scalia himself authored a "Statement" when the Court refused to rehear the case. He mocked the majority's initial decision in the case, and specifically its view that "the Constitution contemplates that in the end [the Court's] own judgment will be brought to bear on questions about the death penalty." Scalia's retort: "Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read 'no criminal penalty shall be imposed which the Supreme Court deems unacceptable.' But that is what the majority opinion said."

[Disclosure: I disagree with the positions argued by Scalia in every one of these cases. I actually do agree with his votes in 2 of these cases: in Baze v. Rees (to uphold the constitutionality of lethal injection) and Kennedy v. Louisiana (to uphold the constitutionality of the death penalty for child rape--at least in the worst cases). But in those cases, I agree with the positions taken by others in their opinions, not Scalia in his.

So, in Baze v. Rees, I agree with Roberts' view that the "cruel and unusual" prohibition does outlaw "intolerable risk[s]'' of "severe pain;" and in Kennedy v. Louisiana, with Alito's view that some crimes of child rape are even more morally depraved than some homicides and, thus, justify the death penalty even more than some homicides (if, of course, the death penalty is ever justified).

I find Scalia's and Thomas's position in Baze v. Rees (which Scalia had previously expressed), that the 8th Amendment only prohibits punishments such a crucifixion, burning alive, disemboweling, etc., absolutely repugnant to any civilized and enlightened view of criminal justice.

And I find Scalia's view in Kennedy v. Louisiana, criticizing the Court for actually believing that the Constitution calls for the exercise of judgement, to be an astonishingly puerile--or disingenuous--denial of the judicial role.

I disagree with his position, expressed in Harmelin v. Michigan, that the "cruel and unusual" prohibition can never be violated by an excessive sentence, regardless of how extremely disproportionate to the crime. The death penalty for blasphemy? For gay sex? Both were imposed in the past. For that reason, or for the rejection of any disproportionality consideration in "cruel and unusual," must such punishments really be upheld?

I also strenuously disagree with Scalia's positions in Atkins v. Virginia and Roper v. Simmons that a defendant's mental disability or youth have no bearing on the constitutionality of the death penalty.

Scalia's positions on punishment--much like his consistent rejection of racial minority protection and gay rights--were, in my view, among the most unattractive (i.e., deplorable and antediluvian--ok, maybe immediately post-diluvian) aspects of his jurisprudence.]

In the next and final post on Scalia's record, we'll take a look at his positions in search and seizure cases involving technology.

Supreme Court Wrap Ups (On Air Commentary)

The last several days have been a whirlwind of on air interviews about the Supreme Court's end-of-term decisions: Obamacare subsidies, same-sex marriage, lethal injection, etc.
Plus, at the state level, New York Court of Appeals Judge Susan Read announced her early retirement for the state's high court.

For anyone interested, here are links to a few of the interviews:

Fred Dicker: Live from the State Capitol! (6/30/15)
New York State STOPS...to hear Fred Dicker!
TUESDAY: ALBANY LAW SCHOOL PROF. VIN BONVENTRE: MY TAKE ON THE IMPORTANT ROUND OF NEW U.S. SUPREME COURT DECISIONS.
Link: www.talk1300.com/CMT/podcast/LiveFromtheStateCapitolJune302015.mp3 (@ 29:00 -49:00 mins) 

Fred Dicker: Live from the State Capitol! (7/31/15)
New York State STOPS...to hear Fred Dicker!
WEDNESDAY: ALBANY LAW SCHOOL PROF. VIN BONVENTRE PART II: A CONTINUING DISCUSSION ON THE U.S. SUPREME COURT'S FINAL DECISIONS, PLUS THE SIGNIFICANCE OF COA'S ASSOCIATE JUDGE SUSAN READ'S DECISION TO RETIRE.
Link: www.talk1300.com/CMT/podcast/LiveFromtheStateCapitolJuly12015.mp3 
(@ 29:30 - 49 mins) 

The John Gomez Show, LI News Radio (6/29/15)Gomez with Professor BonventreLink: https://soundcloud.com/jvcbroadcasting/gomez-with-professor-bonventre?in=jvcbroadcasting/sets/the-john-gomez-show-on-li-news

Capital Tonight (6/29/15)

Monday was the last day of the Supreme Court's term for this year, and while their two blockbuster decisions came last week the judges did weigh in on some big issues, including the death penalty and redistricting. Albany Law professer and New York Court Watcher blogger Vin Bonventre joined us to talk more about these issues.
Link: http://www.twcnews.com/nys/capital-region/capital-tonight-interviews/2015/06/29/vin-bonventre-062915.html#

Capital Tonight (6/29/15)

The US Supreme Court delivered a huge victory to President Obama today, upholding a key part of the Affordable Care Act.  That decision means millions of Americans across the country who enrolled through state health exchanges will not lose their insurance. Vin Bonventre from Albany Law School joined us to discuss.
Link: http://www.twcnews.com/nys/capital-region/capital-tonight-interviews/2015/06/25/vin-bonventre.html

Supreme Blockbusters Coming (Part 3--Lethal Injection)

Seven years ago, the Justices upheld lethal injection as a constitutional means of execution. A few weeks ago, they heard arguments in another lethal injection case. This one was precipitated by a number of botched procedures that resulted in extremely painful deaths.

Lethal-Injection Procedures (Glossip v. Gross)
In its 2008 decision in Baze v. Rees, the Supreme Court rejected a challenge to death sentences carried out by injection with lethal drugs. The challenge was based upon the possibility that the procedures could cause serious pain if they were not properly followed.

By a vote of 7-2, the Justices held that such a possibility did not render execution by lethal injection unconstitutional. A mere possibility did not mean that such executions were "cruel and unusual" within the meaning of the 8th Amendment (or the 14th Amendment, as applied to the states). That decision is the "governing" precedent for this latest case.

But it's not so clear what that "governing" precedent actually established that's precedential. The lopsided vote in Baze is misleading. Despite being 7-2, it did not produce a majority rule or rationale. There were 7 separate opinions written, and collectively they asserted at least 3 different ways to analyze these death penalty cases.

The leading opinion, authored by Chief Justice Roberts, was joined only by Justices Kennedy and Alito. In that plurality opinion, Roberts surveyed past "cruel and unusual" decisions and concluded that a method of execution is unconstitutional if it entails an "intolerable risk" of "severe pain." Applying that test, he determined that the lethal injection procedure in that case was acceptable.

In an opinion by Justice Thomas, he and Justice Scalia made clear their view that only the most torturous, barbaric, and gratuitously excruciating punishments were "cruel and unusual." So only executions by burning alive, disemboweling, crucifixion, drawing and quartering, and the like would violate the constitution. Lethal injection was clearly acceptable to these two Justices.

In dissent, Justice Ginsburg, joined by Justice Souter, argued that the test for "cruel and unusual" was whether the procedure created an "avoidable risk"of "unnecessary pain." They refused to approve lethal injection unless or until it was shown that the risk could not be avoided.
(Justices Stevens and Breyer each wrote a separate opinion. Stevens kind of agreed with Roberts. Breyer agreed with Ginsburg's test, but believed that lethal injection passed.)

So that's where the law, such as it is, stands.

Now in the current case, the question is about the use by Oklahoma (and some other states) of a particular 1st drug in a 3 drug protocol. The 2nd and 3rd drugs in the sequence stop the person's breathing and stop his heart. But it's the 1st drug administered that is supposed to anesthetize the person so that he is unconscious and feels no pain.

Because of a shortage of the commonly used 1st drug (in large measure because of the efforts of death penalty opponents), states like Oklahoma began to use an alternative. That drug is actually a sedative, not an anesthetic. In large enough doses, however, the so-called midazolam is supposed to be effective in inducing an unconscious state.

Nevertheless, in several executions, in a few different states, in which midazolam was used, the person was not rendered unconscious and, instead, suffered a gruesome and extremely painful death. Is that enough for the Court to rule that lethal injection with midazolam is unconstitutional?

Putting that question another way: is the apparent unreliability of the sedative midazolam--to induce unconsciousness and, thereby, to prevent an intensely painful execution--enough to persuade at least 5 Justices that lethal injection with that drug violates the constitutional prohibition against "cruel and unusual" punishment?

Let's consider the Justices and their possible votes.

First, there are the easiest ones. Scalia and Thomas, as we've already noted, believe that only punishments similar to disembowelment, burning alive, crucifixion, and drawing and quartering are prohibited by the Constitution. There's very little chance they will consider the unreliable or botched lethal injections sufficiently gruesome.

On the other hand, there are the liberals--Ginsburg, Breyer, Sotomayor, and Kagan. Some of them are openly hostile to the death penalty. All of them seemed extremely skeptical at oral argument, if not utterly contemptuous of Oklahoma's defense of its lethal injection protocol. It's very likely that all 4 of these Justices will vote that what Oklahoma is doing is unconstitutional.

That leaves Roberts, Kennedy, and Alito. They joined together to form the plurality in the 2008 Baze case. It was they who stated that the test for "cruel and unusual" is whether there is an "intolerable risk" of "severe pain."

So is the risk with midazolam "intolerable?" Less subjective and amorphous than that, how great is the actual risk ? And how great must that risk be for Roberts or Kennedy or Alito to conclude that lethal injection with midazolam flunks their constitutional test?

At oral argument, Alito seemed quite unsympathetic to the claims against Oklahoma's use of that alternate drug. He seemed to blame the death penalty opponents for making the more reliable drugs so scarce. But would he really think that's a legitimate reason to uphold the use of the risky drug? Of a drug that risks seriously painful executions? It would be no surprise if he voted to approve Oklahoma's protocol.

As for Roberts and Kennedy, they expressed similar concerns to Alito's. But--at least from several reports of the oral arguments--neither seemed to be as openly hostile to death penalty opponents generally, or to be directing that hostility toward the opponents of the midazolam protocol as much as Alito.

Moreover, Kennedy has not been a staunch supporter of the death penalty. Indeed, he has occasionally joined the liberals to invalidate it in certain circumstances. The unreliability of using midazolam as an anesthetic might just nudge Kennedy over to the liberals in this case.

Roberts has also shown some ambivalence about the death penalty in the past. Not as much as Kennedy. But he is certainly nowhere near the camp of Scalia and Thomas.

So the bottom line on this one?
As with the same-sex marriage and Obamacare subsidies cases, the 4 liberals are virtually certain to vote on the same side and, in this case, to vote against Oklahoma's lethal injection protocol. And as in those other cases, they need just one more vote for a majority.
One thing's for sure: they will not get Scalia or Thomas.
And they will very likely not get Alito.
That's 4-3.

The most likely 5th vote for the liberals, if they're going to get one, is--no surprise here--Kennedy. He seemed to acknowledge at oral argument that the use of midazolam created much more risk than other drugs. Whether he will hold the shortage of more reliable anesthetics against the opponents of midazolam is, of course, anyone's guess. But Kennedy has never seemed as petty and belligerent as some others on the Court.

Roberts wouldn't be a shock if he applied his Baze standard and found midazolam to be too risky. Again, he is certainly no Scalia or Thomas. But, if I were the liberal Justices, I wouldn't count on him.

So the vote on this one, as on the cases we previously discussed, will likely be deeply split.
If I had to bet, I'd say 5-4--but I have no confidence whatsoever which way that will be.
(Ok, if I'm ordered from on high to say? Kennedy goes with the Libs.)


In the next post: the confederate flag on a license plate?

[final of] Roberts in the Middle: The Chief Justice as Moderate (Part 3--Concurring Opinions)

Source: reason.com

"Chief Justice John Roberts Splits

the Baby, " by Ed Krayewski

6/29/12

Rejecting a hard-line view, whether conservative or liberal, the Chief Justice has sometimes authored or joined a separate concurring opinion.
[The photo on the left is from "Chief Justice John Roberts Splits the Baby, " by Ed Krayewski, on reason.com, 6/29/12.]

In the last post, we looked at a few cases where Roberts was in the majority, endorsing a position more moderate than that taken by other conservative Justices, or by liberals on the Court. Let's take a look now at some cases where he similarly took a more moderate position, but did so by clarifying, emphasizing, or distinguishing his own view in a concurring opinion. That is, where his position--what some might call "split[ting] the baby"--was distinct from that of both the majority and the dissent.

As in those cases discussed in the last post, these cases, with the CJ in a separate concurrence, find him rejecting the dissenting opinion. But they also show him expressing a view that is less rigid, less ideological, and more subtle than that taken by the majority.

As in the last post, let's look at 5 such cases.

Strip Searches

Three of the Court's conservative Justices--the 2 most (Scalia and Thomas) and 1 more moderately so (Kennedy)--took the position that someone arrested and taken to jail for processing and awaiting an initial appearance before a judge can be strip searched for jail-security reasons. This is so regardless of the crime. And regardless of the lack of any suspicion that the person might be dangerous or might possess contraband.

[Here, the person was arrested pursuant to a warrant, for an unpaid fine, for a minor traffic offense. Oh, and he actually had already paid the fine. So he was ultimately released. But not until he was strip searched twice!]

The Court's 4 liberals argued that the strip search was entirely unreasonable and, hence, unconstitutional. The supposed offense was minor, and the arrestee was not suspected of being dangerous or of possessing anything dangerous or illegal.

The Chief Justice (as well as Alito, who wrote his own separate concurrence) voted with the conservatives, thereby giving them the majority. But Roberts wrote a short concurring opinion. He emphasized that the Court's ruling was qualified. It depended on particular facts.

As he noted, there was apparently no alternative in this case to placing the arrestee in the general jail population. Moreover, the narrow issue before the Court, as argued by the arrestee's lawyer, was whether suspicionless strip searches were illegal "no matter what the circumstances."

Roberts concluded his brief concurrence by underscoring the "possibility of exceptions" to the Court's "general" rule--as he put it--"to ensure that we 'not embarrass the future.'”

Violent Video Games/1st Amendment

A collection of conservative and liberal Justices formed the majority to invalidate a California law banning the sale or rental of violent video games to persons under the age of 17. That majority ruled that video games were protected speech under the 1st Amendment, and that there was no real proof that violent video games harmed children or made them more aggressive.

In dissent, a mixed duo (conservative Thomas and liberal Breyer) argued that the law was perfectly permissible. Thomas argued that free speech was not intended to protect the choices of children, but of their parents and other adults. Breyer argued that the violent materials defined by the law are outside 1st Amendment protection--i.e., material "utterly without redeeming social" value--and that studies did show the harm of such games to minors.

The Chief Justice joined Justice Alito's concurring opinion. For them, there was merit to both the majority and dissenting views. But also flaws.

Ultimately, Roberts joined Alito to say that it is constitutional to restrict some choices by children and to allow their parents to make the choices for them. That there is in fact good reason to be concerned about the effects of violent video games on children. But that California was insufficiently clear about which video games actually fell within the prohibition. If the law were clearer, it would pass constitutional muster.

Shameless Partisans on Obamacare, Arizona Immigration Laws, Juvenile Life Sentences, and Campaign Finance

[I am drained from the last few days of live commentary and interviews. Oh sure I enjoyed it all, but I'm mentally exhausted. So....]

In lieu of a full blown post about the Obamacare decision--and a few other biggies rendered this past week--I'm going to rely on some interviews I've done.

Readers may find that a welcome break. Especially after wading through 193 pages of the Supreme Court's Obamacare opinions! Oh, you didn't?

But a few short comments before the interview links. [Go straight to the links below if you just can't bear to read any more commentary.]

There were several very important decisions handed down this past Monday and Thursday, the last 2 days of the 2011-12 term. I will let the interviews do most of the talking. But first a recap in terms of what we've been examining in the series on the Supreme Court's partisanship.

On Monday, the Court invalidated life sentences, imposed automatically without parole, for crimes committed by juveniles.

The voting line-up?

The 4 liberal Democratic Justices (Ginsburg, Breyer, Sotomayor, and Kagan) were, of course, against such "cruel and unusual" sentences.

The 4 conservative Republican Justices (Roberts, Scalia, Thomas, and Alito) were, of course, in favor of them.

Kennedy sided with the libs on that one.

The Court also invalidated Montana's 100 year old law limiting corporate campaign spending.

You know how it went: the 4 lib-Dems favored Montana's spending restrictions, and the 4 con-Repubs didn't and reaffirmed Citizens United.
Kennedy joined the conservatives on this one.

The Court also invalidated most of Arizona's immigration law. [It did unanimously uphold 1 provision on narrow grounds, warning that it better not be enforced in a racially/ethnically discriminatory manner.]
All 3 lib-Dems who voted [Kagan took no part.] agreed that most of the law should be thrown out.
Of the con-Repubs, 3 wanted all or most of the law saved.
Kennedy went with the libs.
Roberts, perhaps in a preview of the Obamacare decision, also joined the libs to give them a 5 Justice majority.

As for the decision upholding Obamacare decision:
All 4 lib-Dems voted (surprise, surprise) for Obamacare.
3 of the con-Repubs voted (again, surprise, surprise) against it.
Kennedy voted with the conservatives.
Roberts--as the entire world now knows--voted with the libs to make the 5 Justice majority.

Supreme Court: Highlights...(Part 7--More Criminal Law Decisions)

Among the highlights of the Supreme Court's last term was a case involving a life-without-parole sentence for a crime committed by a minor. As with every other case discussed in this series, the Court was sharply divided.

In the last post, we began a closer look at the criminal law decisions among those "Top Ten" highlights. We discussed the Court's ruling, in Padilla v. Kentucky, about an accused's constitutional right to counsel. The Court held that the right was violated because the lawyer failed to tell his client that he would be deported if he pleaded guilty. In fact, the lawyer had assured the client that he wouldn't be. (See Supreme Court: Highlights...(Part 7), Dec. 14, 2010.)

 The Court was split in that case along the expected liberal versus conservative lines, with Justice Kennedy siding with the liberals. On the conservative side, Chief Justice Roberts and Justice Alito took a position midway between the 2 ideological camps. They joined in a separate opinion, authored by Alito, to argue that the right to counsel is NOT violated when a lawyer simply fails to say anything about the deportation consequences. The right to counsel, in their view, is violated only when the lawyer does say something, but what he says is wrong. [Regardless of how I would have voted in that case, I'm not really sure how a client is better off with an attorney who is too incompetent to give any warning at all, as opposed to an attorney who tells him not too worry. In any event...]

Now for the case, Graham v. Florida, involving a life sentence for a juvenile crime. More specifically, it was a sentence of imprisonment for life, without any chance of release, for a crime, not involving homicide, that was committed when the defendant was 16 years old.