Snyder v. Louisiana
By AndrewHyman Posted in Analysis and Predictions — Comments (4) / Email this page » / Leave a comment »
In the post immediately below, Quin criticizes Justice Alito's opinion in Snyder v. Louisiana. I read the case, and am not quite as upset about it.
It always aggravates me when a court overturns some governmental action, without bothering to say what constitutional provision is empowering the court do so (as if the Court does not even really need constitutional authority). So, I would fault Justice Alito for never bothering to mention the "Equal Protection Clause." If he had done so, I think his opinion in this case might have been more persuasive to people like Quin. Justice Alito asserted that the overturned governmental action was inconsistent with a previous SCOTUS case: Batson v. Kentucky. But it's pretty clear that the Court in this Snyder case was actually modifying what it had said in Batson, in order to apply the Equal Protection Clause a bit more stringently.
In this Snyder case, the Court shifted the burden when a peremptory challenge is alleged to have racial overtones, so that the trial judge can only allow the peremptory challenge if the judge specifically and plausibly addresses why the allegation of racial bias is not persuasive. Such a requirement was not laid down in Batson, but it is arguably consistent with the Equal Protection Clause. Justice Thomas seemed to be more faithful to precedent in this case, whereas Justice Alito seemed to rely more on the underlying equal protection principles.
Incidentally, there was another elephant in this room, besides the Equal Protection Clause. Try searching the oral argument transcript for "Simpson."
JGR will obvo assign the
by BillM
JGR will obvo assign the Heller opinion to AMK, right? Boy, wouldn't it be nice to see RBG concurring in part or at least in the judgment.
Also, as mentioned below, JGR & Alito could easily have ulterior motives for voting the way they did in Snyder. Duh, it just hit me, JGR can then assign the opinion to Alito. Sam's opinion was hardly a broad rant against the death penalty or jury exclusions.
The libs probably wanted some fire & brimstone but none had the energy to write a concurrence (which wouldn't be joined by AMK anyway). Cleee-verrrr (pun intended!).
STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.
Opinion assignment
by maccc
Kennedy doesn't appear to be on the fence at all, so I don't see why the CJ would assign it to him. I hope Roberts takes it for himself and writes a very, very persuasive opinion. Either that or give it to Scalia (though Roberts may be better suited to right the majority opinion). Kennedy would right a fine opinion, but Scalia would be better, and Roberts would probably be best.
There is no reason Kennedy should be given every important 5-4 decision, especially when he's not on the fence.
It does seem like Breyer and Ginsburg may concur/dissent. Souter was a disappointment as he seems like the one of the 4 liberals who had a chance of joining the majority in full, but sometimes he plays devil's advocate.
After listening to her questions at oral argument, I can't see Ginsburg voting with the conservatives. Same for Stevens and Souter. I think Breyer, however, might join with the conservatives in order to waterdown their opinion so that the 'reasonableness' standard of review sought by Paul Clement is used instead of the strict scrutiny standard suggested by Silberman in his D.C. opinion.
This might have been noted in a previous thread, but I heard that even RBG made some indications that she might oppose the DC gun law. Could there be a 6-3 ruling--or better?--in the offing?