Alito and Roberts Blow a Case
By Quin Posted in Analysis and Predictions — Comments (7) / Email this page » / Leave a comment »
It behooves us who have fought for confirmations of judicial conservatives to monitor the performance of those judges after they reach the bench. As this site's earliest and fiercest advocate for Samuel Alito, and as somebody who continues to admire Alito greatly and who is still happy Alito is on the bench, I must now regretfully report that Alito has written a real stinker of an opinion, joined by all the other justices except the superb Clarence Thomas (who wrote the dissent) and Antonin Scalia. The opinion is discusssed here: http://howappealing.law.com/031908.html#032884. (Links to the opinion and dissent are within that link.) It involves a death penalty case in which, more than a decade after the trial, the Supreme Court now overturns the conviction and death penalty because a black juror was stricken in a peremptory challenge and the high court now determines that the challenge was racially motivated. Never mind that case law provides for a high degree of deference to the findings of the trial court (which in this case found no racially discriminatory intent) on matters of fact, and never mind that the LA Supreme Court (which, by the way, is hardly controlled by conservatives) twice found that the trial court's determination passed muster.(MORE)
Despite all this, Alito and company re-examined the FACTS -- not the law, but the facts -- of the challenge, and even examined parts of the record that the convict's lawyers themselves never even raised. And then they decided that, all these years later, based on just the paper record, they were in a better position to judge the challenged juror's demeanor than was the trial judge on scene at the time. (The black juror himself had asked to be escused, by the way.)
I cannot imagine many more vivid examples of the Supreme Court going beyond it bounds, and beyond the bounds of precedent, to actively insert itself into a case in which the facts of the murder itself were clear, the unanimous jury verdict quick and firm, and the actual evidence of discriminatory intent by the prosecution so weak (in this case, merely INFERRED by what Alito decided was an absence of good explanations in the alternative). This is judicial activism, pure and simple. It is an example of the high court going out of its way to discover racist intent without a single bit of evidence in the affirmative (again, evidence only in the negative by the purported absence of other reasons -- even though the trial judge found the other reasons perfectly fine). The decision is an abomination, and Thomas and Scalia were right to dissent from it.
It is not the Supreme Court's role to re-examine utterly ambiguous facts that several lower courts already have found to rule on.
Alito and Company really screwed up. It's a travesty.
http://balkin.blogspot.com/2008/03/is-right-to-keep-and-bear-arms.html
Commentary on Heller. There is a link in the lead-in to Slate's new legal blog, where the hand-wringing is just hilarious. Every argument they have for the gun ban seems like it could be turned against any argument for Roe.
Real rabbithole over there. "If the Constitution specifically mentions it, it's not a fundamental right, but if it doesn't, it is!" One guy there now wants to get rid of judicial review entirely. Dahlia also reaches new heights of hysteria.
Can't wait to read AMK's opinion.
STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.
Did Alito and Roberts Blow the Case?
by AndrewHyman
I wrote a blog post about it, after Quin's.
Alito and Roberts ---The Set Up
by 7th Heaven
The two newbies on the Court are human after all. They read the press clippings and are mindful of their public images too. They do not want to be type cast or pigeonholed. Since the decision was going to be reversed anyway, with or without their votes, they decided to be benevolently obtuse [different with no real damage].
Whacker 77 is right. The media will paint them a different shade of conservative. They will appear reasonable and racially unbiased. This is important to Alito and Roberts. They must stake out this important position early and expand it if they can in the coming weeks.
They day will come in the upcoming months when they both will be tarred and feathered by the media. When the DC gun case and the Indiana voter registration cases are handed down, the hue and cry by the media of their racism will be heard across the land. With Obama 's preacher in the news, the issue of race is now in the forefront.These two anticipated decisions may impact the November election as well as any future SCOTUS hearings which are always highly contentious. Alito and Roberts do not want to influence the election or add difficulty to the next SCOTUS hearing which may take place within the next 10 to 18 months. This week's decision provides them some temporary cover for two block buster decisons that will follow.
7th
by BillM
"Since the decision was going to be reversed anyway, with or without their votes, they decided to be benevolently obtuse [different with no real damage]."
Exactly right, and even better for them is the overwhelming probability that Snyder will be re-convicted and at a minimum get life w/o parole. Brennan-style.
"Alito and Roberts do not want to influence the election or add difficulty to the next SCOTUS hearing which may take place within the next 10 to 18 months."
Yup, BoBo mentioned this is why they didn't join Thomas' concurrence in the Fed PBA case calling for Roe/Casey's overthrow. It's not pretty, but it's the real world we live in; cf. Agee, Lemons, etc.
Gotta play poker, and money you don't lose spends as well as money you win.
STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.
Alito's unique perspective
by Lonestar
For what it's worth, if I'm not mistaken, Alito is the only member of the Court who has actually been a prosecutor. He's actually had to comply with the Batson standard when selecting a jury. I don't think we should write him off as lost.
In fact, Roberts may have been playing Burger's old game of joining the liberal majority in order to retain the power to select who would write the Court's opinion--and thereby moderating the language of the opinion. In this case, he chose Alito--the former prosecutor. We might speculate what kind of expansive, radical precedent Ginsburg or Breyer (neither of whom ever prosecuted a criminal in their careers) might have set down in their majority opinion if Roberts and Alito had dissented.
Lonestar
by Whacker77
Very good point on Roberts. Better to have him choose the author of the opinion than Stevens assigning it to himself. I have plenty of faith in Alito, but I doubt Luttig, my preference for his spot, would have written this opinion. I think he would have sided with his former boss, Scalia. JMO.
It's a parting gift for Linda Greenhouse. Now, in her piece, she can write about how, in just two years, Roberts and Alito have grown into the job. Of course, she won't feel that way after the DC gun case is decided. I don't think we would have seen Michael Luttig write this majority opinion.