News Intelligence Analysis
The Late Great Supreme Court
An Examination of the “Dead Constitution” Heresy and Why It Is Causing the Court to Die a Slow and Painful Unconstitutional Death
By Katherine Yurica
July 26, 2009
The last words that Chief Justice Earl Warren spoke from the bench on June 23, 1969 appear to have been prescient, as he provided a short workable definition for the traditional role of the Supreme Court in order to counter the conservative legal and ideological challenges of his day. As quoted by Bob Woodward and Scott Armstrong in their book The Brethren, Warren seamlessly wove the fabric of the Court’s judicial role not only with the primary threads of the Constitution but also injected the cross threads that pull and firmly implant the inexorable dimension of Time into the legal definition’s fabric. The retiring Chief Justice said simply:
“[T]he Court develops the eternal principles of our Constitution in accordance with the problems of the day.”[1]
Warren’s solution is not new. Christians and Jews have universally accepted and applied a similar rule of “Time” to biblical literature in order to ascertain how the eternal principles of the Scriptures ought to be applied in our time and circumstances. For instance, would most Christians and Jews today still seek to stone an adulteress to death? Or would they even believe that she should die? Must we execute a teenager for saying, “God damn it!”? And must women keep silent in the churches or may their voices ring out?
Yet over time, and even during the Warren Court’s tenure, conservative jurists had developed other competing definitions for the Supreme Court’s role in an attempt to minimize and pare down the Court’s reach. For example, two criminal convictions were appealed in a case concerning a Connecticut law in Griswold v. Connecticut, 381 U.S. 479 (1965). The law read:
“Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.”
Justice Douglas asked, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The [381 U.S. 479, 486] very idea is repulsive to the notions of privacy surrounding the marriage relationship.”
The majority overturned the law, and in Mr. Justice Stewart’s dissenting opinion, he called the statute “an uncommonly silly law.” Nevertheless, Stewart would have let the law stand on the ground that it was not for the courts to “substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.”[2]
However, Mr. Justice Goldberg, answered the dissenters in Griswold by pointing out that leaving issues to the legislative bodies “who are elected to pass laws,” is all good and fine as long as it does not grant “the power to experiment with the fundamental liberties of citizens…The vice of the dissenters’ views,” Goldberg wrote, “is that it would permit such experimentation by the States in the area of the fundamental personal rights of its citizens. I cannot agree that the Constitution grants such power either to the States or to the Federal Government.”[3]
But Justice Stewart’s concept did not die a well-deserved natural death. Instead, it was resurrected through various jurists and finally incorporated into Justice Antonin Scalia’s definition of the Supreme Court’s role, and no one has adopted such a competing legal doctrine and expressed it so eloquently and used it so effectively as Scalia, who has emerged not only as a conservative leader on the bench, but also as the first American theological jurist.
In 2002, in a stunning speech titled, God’s Justice and Ours, given at a conference sponsored by the Pew Forum on Religion and Public Life, Scalia revealed, not only a heretical view of the Court’s role, but revealed perhaps more of his working premises than he intended, (which would explain why his commentary was later removed from the First Things web site).
Scalia examined the death penalty in his speech and explained that since it existed in 1791, the year in which the 8th Amendment was ratified, (which prohibits “cruel and unusual punishments”), the Constitution necessarily permits the death penalty, not only for murder but in his words, “for all felonies—including, for example, horse-thieving.” He concluded the “enduring” nature of the Constitution means that whatever was accepted in 1791, “is clearly permitted today.” So if horse-thieving, blasphemy, adultery, and homosexual acts were all punished by death in 1791—at the time the 8th Amendment was passed, according to Scalia’s doctrine, any new legislation that reinstated the death penalty for these acts would be upheld by Scalia and the other subscribers to the Dead Constitution Doctrine. So, although he denied it, he in fact revealed how he will vote on certain cases in advance. Scalia has no choice, he has placed himself and the Constitution into a box: for he finds there are no grounds in the Constitution to consider the death penalty a “cruel and unusual punishment” since what was acceptable in 1791 must be acceptable today!
On the other hand, whatever is not mentioned in the Constitution, things that are new to our time—Scalia asserted, are also outside the limits of the Supreme Court to adjudicate. In other words whatever was accepted in the 1790’s was right and permissible, but whatever wasn’t known then, is legally outside the reach of today’s Supreme Court!
Thus Scalia’s doctrine imposes new restrictions on the Court: cases dealing with issues not expressly mentioned in the Constitution must be dealt with by new legislation in Congress and the states—not by cases brought before the Supreme Court. Stating with apparent pride that the Constitution, “I interpret and apply is not living but dead,” Scalia asserted that the Constitution was necessarily frozen in the time frame of its conception and birth. As a consequence, unlike every living thing, Scalia suggests that the document has no power of natural growth, evolution or development over time—it must then, always remain a product of the eighteenth century and what was good enough for that century must be good enough for the twenty-first or the twenty-fifth!
Without directly expressing what must necessarily follow, Scalia’s doctrine nevertheless outlines how conservative members of the Supreme Court can sabotage and slowly undermine, weaken and finally extinguish the power of America’s highest court. For his tactic, as I demonstrated above, moves the Court in one direction and it forces the Court to divest itself of its own jurisdiction over every new issue that did not exist in 1791 when the first ten amendments to the Constitution were ratified, or in 1868 when the 14th Amendment was ratified.
The question then becomes, “Where do today’s aggrieved persons go to seek relief when they have suffered a wrong that involves something that Justice Scalia or his like-minded brethren on the Supreme Court cannot find in reading their dead Constitution?
Referencing only the death penalty, (which Scalia believes is authorized by God in Romans 13:1-5), and which I suggest may reasonably serve as a substitutionary illustration for similarly derived legal matters, Scalia in fact answers my question of where today’s aggrieved persons may go to seek relief from newly emerging legal issues—they must mount a political campaign to change the laws! As Scalia phrased it:
“There is plenty of room within this system for ‘evolving standards of decency’ but the instrument of evolution (or, if you are more tolerant of the Court’s approach, the herald that evolution has occurred is not the nine lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the fifty states, who may, within their own jurisdictions, restrict or abolish the death penalty as they wish.”
It’s clear that other modern day questions such as the right to an abortion or the right of same sex couples to marry or the right of post convicted prisoners to access the State’s evidence for DNA testing, and the right of television, radio, film and web news sites to the same freedom of the press enjoyed by newspapers must, according to Scalia’s Dead Constitution Doctrine, also be resolved by Congress and the legislatures of the fifty states. However, there is a serious flaw in this reasoning: Scalia’s otherwise superficially excellent detour hardly redresses the suffering or injury to an aggrieved person or organization. Instead, it quietly erodes and undermines the authority of the Supreme Court to redress grievances or halt arbitrary government practices especially under the Bill of Rights and the Fourteenth amendment.
But Scalia went even further: he demonstrated exactly how he (and presumably the other conservatives sitting on the Supreme Court bench) would vote in a case that involves an issue that did not exist at the time the Bill of Rights was ratified.
Why “Whatever Is Legislated or Achieved by Vote Is Right”—is Wrong!
Scalia has developed a rule or doctrine similar to Parkinson’s Law: “Work expands so as to fill the time available for its completion,” or the Peter Principle: “In a hierarchy, every employee tends to rise to his level of incompetence.” But for Scalia and the Supreme Court as well as for America, the legal rule has far reaching consequences. I would paraphrase it like this:
“The Court is obligated to oppose the invalidation of any new law or action involving issues not mentioned in the Constitution—for whatever is done or enacted under these conditions, is legally right!”
In short, Scalia advanced the game plan that if executed over a period of time, will eviscerate the appellate duties of the Supreme Court, leaving it a dead or half-witted shell of its former self. To show how his system will work, he wrote:
“Thus, my difficulty with Roe v. Wade is a legal rather than a moral one: I do not believe (and, for two hundred years, no one believed) that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I would—and could in good conscience—vote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence me) no power over the matter.”
This paragraph reveals two dynamic legal rules. The first, rightly or wrongly, is that Scalia believes abortion rights are a new phenomenon much akin to the modern development of birth control pills, condoms, vaccinations, penicillin, or DNA testing and as such they are not rights contained in the Constitution. The second rule derived from Scalia’s statement tells us more than how he would vote on the issue of abortion: unless he is arbitrary and inconsistent, it necessarily discloses a particular kind of predetermined voting pattern for all cases based on issues he believes are not included in the Constitution as rights. I will deal with this latter rule in part two below.
First, however, if we take a little side trip here to examine Scalia’s “belief” on abortion, the flaws become apparent. In fact, there is a major fallacy in Scalia’s reasoning when he says that he does “not believe” and no one believed for two hundred years “that the Constitution contains a right to abortion.” He simply forgot that fertilized eggs have been aborted and miscarried for as long as mankind has existed on the face of this planet. In fact they were even referenced as an “unclean” phenomena in the Bible.[4]
However, using Scalia’s own argument, the right to abort necessarily existed at the time the Constitution was written for there was no way to make a distinction between an abortion on demand and an involuntary abortion—nor could there have been!
Moreover to find that the Constitution does not contain “a right to abortion” would be like arguing that the Constitution does not contain a right for women to menstruate or for both sexes to breathe, urinate or defecate, to eat or drink, or to wear corrective lenses—when in fact people did those very things in the 18th Century just as people do those things in the 21st Century! But what is even more alarming, Scalia’s reasoning implies that if a state were to pass a law requiring women to isolate themselves during their menstruation period because according to ancient biblical sanitation laws, it is a necessary precaution to prevent the spreading of disease, he “would in good conscience vote against an attempt to invalidate that law” because “the Constitution gives the federal government (and hence me) no power over the matter!” Scalia’s legal principle has just landed itself in a puddle of absurdity (unless of course, he is willing to recognize the traditional and universal meaning of the first amendment’s separation of church and state clause, which he, unfortunately along with Clarence Thomas, deny!)[5]
Another problem with Scalia’s reasoning is the fact that in the 18th century, English and American common law allowed abortion if performed before ‘quickening.’[6] And it was not until 1821 that a state passed America’s first statutory abortion regulation. That law, also a Connecticut statute, however, was not expressly anti-abortion but rather created a regulation in order to protect women from abortion inducement through poison administered after the fourth month of pregnancy.[7]
To follow the history of the development, bear in mind that the 9th and 10th Amendments were passed in 1791. And the 9th Amendment expressly states that the people retain unlisted rights:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Although Scalia’s reasoning on whether or not today’s death penalty is constitutional is dependent upon the finding that the 8th Amendment was passed during a time when the death penalty was commonly in effect and therefore, according to his reasoning, the 8th Amendment necessarily excludes the death penalty as a “cruel and unusual punishment,” if we apply Scalia’s same rule to abortions we run into the identical problem: abortions were allowed when the 9th Amendment authorized unspecified private rights; but even if the 9th Amendment is insufficient to create the personal right of a woman to not only involuntarily abort or miscarry but to intentionally choose to abort a fertilized egg based upon her doctor’s advice, the Griswold decision states that the Bill of Rights contains a penumbra of rights that appear to collectively constitute a right of privacy.
As I wrote above, the Griswold court overturned the Connecticut law and relied in part on the Fourteenth Amendment, the pertinent part of which, is emphasized:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Emphasis added.)
Although the 14th Amendment was ratified in 1868, which admittedly was after a few states had begun to pass the first legislation limiting abortions—those laws did not stop abortions from occurring. The question then is, if Scalia insists that voluntary or involuntary abortions are not a private right sanctioned by the Constitution, then how can his rationale that the death penalty is sanctioned by the Constitution have any merit? If the death penalty was in effect in 1791—then according to his logic, it couldn’t be considered a “cruel and unusual punishment”—so if abortions were commonly happening during the writing of the Bill of Rights and in 1868—they too must necessarily constitute a legitimate practice protected by the Constitution. He cannot have it both ways.
In the end, it appears Scalia’s argument is based solely upon faulty reasoning—and not on the facts of human bodily functions and not on the fact that abortions were not prohibited at the time the Bill of Rights was ratified.
And it doesn’t matter that he would also vote to validate a state law that permits abortion —for he nevertheless refuses to execute his responsibility to adjudicate cases as a Justice of the Supreme Court.
In 2009, Chief Justice John Roberts pulled his court together to form an historic change in American jurisprudence. It swept across history like a freezing cold winter storm blows across the prairies. It cut into the flesh and bones of America’s legal system, leaving a bleeding symbol of Justice in its path. Five Catholic brethren formed themselves into a singular phenomenon. Clearly, Antonin Scalia had prevailed. For along with Scalia, four black robed dour justices executed his legal doctrine with gusto, fervor and emotion but not with careful judicial reasoning.
The case centers on modern day science and the value of DNA testing to exonerate the innocent and to pinpoint with deadly accuracy, the guilty. According to the Innocence Project in its Supreme Court brief for Osborne, “Postconviction DNA testing has exonerated at least 227 individuals, 17 of whom had been sentenced to death.” Significantly that group of inmates included “numerous individuals who were convicted on the basis of what had appeared…to be powerful evidence of guilt, including multiple eyewitness identifications, other forensic evidence, and their own confessions; it even includes 12 individuals who pleaded guilty.”
Justice Stevens pointed out in his dissenting opinion (at Footnote 9) “that in fifty-percent of cases in which DNA evidence exonerated a convicted person, reviewing courts had commented on the exoneree’s likely guilt and in ten percent of the cases had described the evidence supporting conviction as ‘overwhelming.’”
The issue before the Supreme Court in Alaska’s District Attorney’s Office for the Third Judicial District, et. al, Petitioners v. William G. Osborne, argued March 2, 2009, and decided June 18, 2009 according to Justice Stevens in his dissenting opinion was this:
“The State of Alaska possesses physical evidence that, if tested, will conclusively establish whether William Osborne committed rape and attempted murder. If he did, justice has been served by his conviction and sentence. If not, Osborne has needlessly spent decades behind bars while the true culprit has not been brought to justice. The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise. Yet for reasons the State [of Alaska] has been unable or unwilling to articulate, it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all.”[8]
In fact, Alaska “concedes there is no reason to doubt that if STR and mtDNA testing yielded exculpatory results in this case, Osborne’s innocence would be established.”[9] Yet the state has granted only one post-conviction request for DNA testing in an earlier unpublished case (cited by the majority as Patterson v. State, No. A-8814 (March 8, 2006), but as Justice Stevens pointed out, “By the time access was granted, the relevant evidence had been destroyed.”[10]
Additionally, in his dissenting opinion, Stevens carefully outlined the Catch-22 that is present in Osborne’s quest: Under Alaska’s law, a person who has been “convicted of, or sentenced for, a crime may institute a proceeding for post-conviction relief if the person claims…that there exists evidence of material facts, not previously presented and heard by the court, that requires vacation of the conviction or sentence in the interest of justice.”
Osborne in fact asserted through his lawyers that exculpatory DNA analysis would qualify as newly discovered evidence entitling him to relief under the state statute. Justice Stevens, however, pointed out:
“The problem is that the newly discovered evidence he wishes to present cannot be generated unless he is first able to access the State’s evidence—something he cannot do without the State’s consent or a court order.”
And the United States Court of Appeals for the Ninth Circuit previously wrote:
“But even if Osborne still had some available state remedy that he could pursue, the Catch-22 would remain. In both state and federal court the State [of Alaska], has opposed Osborne’s access-to-evidence claim based on the argument that Osborne cannot prove his actual innocence; yet Osborne needs access to the evidence to make that very showing.”[11]
This brings us to the serious flaws in the majority opinion. Chief Justice John Roberts’ decision is written with the concurrence of Justices Scalia, Kennedy, Thomas, and Alito.
It’s worth noting that Scalia remained uncharacteristically silent in this case, except for his vote. His silence, however, may suggest his awareness of a latent legal ethics problem. For anyone who read God’s Justice and Ours in 2002 would have been effectively informed on how Scalia would vote in 2009 on any similarly situated case as Scalia’s “abortion model”—which requires only one premise: his belief that the Constitution does not contain a right to abortions, or “X” whatever “X” might be. One can substitute any modern day practice or discovery such as DNA testing for “X” and his legal doctrine necessarily follows.[12]
As Professor Vikram Amar, (UC Davis Law School) wrote in his extensive review of a pertinent Supreme Court case, (Republican Party of Minnesota v. White), there is a meaningful difference between being able to predict how a candidate for judicial office will vote and a promise or pledge by a candidate, (or I would add, a sitting Justice), that he or she will vote a certain way. I think it is clear that while the former is speculative, the latter is not.
Amar wrote, “As Justice Scalia’s majority opinion pointed out, Minnesota explicitly prohibited candidates for judicial office from making pledges or promises to rule a certain way in the future.”[13] The underlying reason for the prohibition is this: “a Justice must always read the briefs and other materials in a case and be open-minded to changing his prior inclination if arguments and evidence persuade him.”[14] Thus the issue here in my analysis is whether Justice Scalia pledged allegiance to a legal doctrine that predetermines his vote when certain conditions are met when a state comes before the high court.
The 2009 Osborne case is a perfect example of how Scalia’s doctrine works: Whatever a state authorizes involving a new issue not present at the time the Constitution was ratified—requires those adhering to the Dead Constitution Doctrine to support the state, because according to Scalia, the Constitution gives the federal government and hence the justices “no power over the matter.” This of course raises the question of whether Justice Scalia had an ethical obligation to recuse himself from voting on the Osborne case, for he necessarily knew that his reasoning on abortions was also applicable to DNA testing. (See footnote 12).
In addition to Scalia’s predetermined conclusion in the case, there are other major logical fault lines to consider beginning with Alaska’s Catch 22 problem. Catch 22 is a novel by Joseph Heller about flying dangerous missions in WWII that outlines some of man’s most brilliant bureaucratic and double think reasoning ever written. Here is a quote from the book to show how it works:
“There was only one catch and that was Catch-22, which specified that a concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.”
With Catch-22 in mind, consider what the Roberts’ Court ruled: There is no such right to “untethered” DNA evidence from the liberty interests with which Osborne hopes to vindicate himself.[15]
In other words, the majority agreed with Alaska and held that Osborne must present new evidence that proves his innocence before he is entitled to available DNA testing—even though the new evidence is the DNA! The majority opinion asserts:
“Alaska provides a substantive right to be released on a sufficiently compelling showing of new evidence that establishes innocence…. If he [Osborne] simply seeks the DNA through the State’s discovery procedures, he might well get it. If he does not, it may be for a perfectly adequate reason…. But it is Osborne’s burden to demonstrate the inadequacy of the state-law procedures available to him in state postconviction relief. These procedures are adequate on their face, and without trying them, Osborne can hardly complain that they do not work in practice.” (Emphasis added.)
On the other hand, Justice Stevens answered, “Osborne made full use of available state procedures…He was rebuffed at every turn.” Stevens then made an unusual observation, saying: “the majority’s flippant assertion that if Osborne were ‘simply [to] seek the DNA through the State’s discovery procedures, he might well get it,” raises the question why should Osborne be required to present his claim in state court for a second time, “there should be no need for him to do so.” (Emphasis added.)
“We See Nothing!”
“We see nothing…” said Chief Justice Roberts.
“I only wish I had such eyes,” Justice Stevens remarked in a fretful tone.
“To be able to see Nothing! And at this distance too! Why, it’s as much as I can do to see real people by this light!”With apologies to Lewis Carroll, From “The Lion and the Unicorn” in Through the Looking Glass
This is how the Chief Justice phrased it:
“We see nothing inadequate about the procedures Alaska has provided to vindicate its state right to postconviction relief in general, and nothing inadequate about how those procedures apply to those who seek access to DNA evidence.” (Emphasis added.)
Nevertheless, Chief Justice Roberts worried about other bothersome details that might arise should Osborne prevail. “To suddenly constitutionalize this area,” he wrote, “would short-circuit what has been a prompt and considered legislative response by Congress and the States.” And “Establishing a freestanding right to access DNA evidence for testing would force us [the Supreme Court] to act as policymakers.” Then he added an unusual concern in light of a similar revelatory fact surfacing in this case, “We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested.” At the same time Roberts acknowledged the “unparalleled ability” to prove guilt or innocence using DNA evidence, as the New York Times phrased it, “[H]e treated that breakthrough more as an irritant than an opportunity.”[16]
However in a press release statement following the Supreme Court’s decision, the Innocence Project made this salient point that seems to sum it all up: “The decision erroneously asserts that Alaska has an adequate process for granting DNA testing to people who have been convicted. Alaska is the only state in the nation with no known case of a prisoner receiving DNA testing, either through a court order or a prosecutor’s consent.”
Something important has died in America when a brilliant Justice of our Supreme Court (joined perchance by four other conservative justices), chooses to disregard the evidence, the arguments and the facts of a case in order to position a mere legal doctrine above the responsibility of the court to seek for and to administer justice.
Somewhere in a small village situated in a glen isolated from America’s great cities, a bell is tolling. It rings a mournful sound, tied to the movement of a giant clock. Heeding John Donne’s advice from Devotions upon Emergent Occasions (1624), we do not send to know for whom the bell tolls. We know it tolls for the powerful as well as for the weak, for kings and rulers, for governors and senators, for the many and for the few, for the rich and for the poor, for the healthy and for the ill, for the free and for the imprisoned; and we know that it tolls for kingdoms and states, legislative bodies and governments and now we know that it tolls even for our high court.
Notes:
[1] Quoted by Bob Woodward and Scott Armstrong, The Brethren, Simon & Schuster, New York, 1979, First paperback edition 2005, at pages 24-25.
[2] Griswold v. Connecticut, 381 U.S. 479 (1965) at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=381&invol=479
[3] Ibid.
[4] Leviticus chapter 15 and specifically, 15:19 and 25.
[5] See Scalia’s dissenting opinion in Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649, 120 L. Ed. 2d 467 (1992) and Cf. R. J. Rushdoony, The Nature of the American System, Ross House Books, 1965 at page 8. And see also Thomas’ dissenting opinion in Elk Grove Unified School District v. Newdow No. 02-1624, Decided June 14, 2004
[6] Wikipedia, at: http://en.wikipedia.org/wiki/History_of_abortion
[7] See footnote 74 at the Wikipedia, (link in footnote 4 above.) See also, Timeline of Abortion Laws and Events, Orlando Sentinel.com at: http://www.orlandosentinel.com/news/local/state/sns-abortion-timeline,0,1745816.story and see also: http://review.society.cz/index.php?option=com_content&task=view&id=78&Itemid=2
[8] From Justice Stevens’ dissenting opinion, with whom Justice Ginsburg and Justice Breyer join, and with whom Justice Souter joins as to Part I. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=08-6
[9] Footnote 7 of Justice Stevens’ dissenting opinion. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=08-6
[10] Footnote 4 of Justice Stevens’ dissenting opinion. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=08-6
[11] William G. Osborne v. District Attorney’s Office for the Third Judicial District, No. 06-35875 D.C. No. CV-03-00118-RRB Opinion at pp. 3377-3378. http://www.ca9.uscourts.gov/datastore/opinions/2008/04/01/0635875.pdf
[12] In Scalia’s defense, he has promised to take the recusal route, in his words: “when, on the basis of established principles and practices, I have said or done something which requires that course. I have recused for such a reason…in Elk Grove Unified School District v. Newdow, 540 U.S. _(cert. granted, Oct. 14, 2003). See Memorandum of Justice Scalia in Richard B. Cheney, Vice President of the United States, et al. V. United States District Court for the District of Columbia, at page 4.
http://news.findlaw.com/hdocs/docs/scotus/chny31804jsmem.pdf
And see, Tony Mauro, “Scalia Recusal Revives Debate Over Judicial Speech, Ethics,” Law.com, 10-20-2003 at: http://www.law.com/jsp/article.jsp?id=1066080440869
[13] See Vikram David Amar’s analysis in “More on the Propriety of Asking Judge Roberts to Comment on Specific Past Supreme Court Rulings: Part Two in a Series” published at FindLaw at: http://writ.news.findlaw.com/amar/20050819.html where Amar makes a distinction between “predictions” and “explicit pledges or promises” on the way a nominee (or in this case, a Justice) will vote.
[14] Ibid. And see: Akhil Reed Amar and Vikram David Amar, “Judicial Elections and the First Amendment: The Sensible Middle Path that the Supreme Court Missed,” August 9, 2002, at:
http://writ.corporate.findlaw.com/scripts/printer_friendly.pl?page=/amar20020809.html
And see: Vikram David Amar, August 4, 2005, “It’s the Specifics, Stupid….A Commentary on the Kind of Substantive Questions the Senate Can and Should Pose to Supreme Court Nominees,” at
http://writ.news.findlaw.com/scripts/printer_friendly.pl?page=/amar/20050804.html
And see: Vikram David Amar, August 19, 2005, “More on the Propriety of Asking Judge Roberts to Comment on Specific Past Supreme Court Rulings: Part Two”
At: http://writ.news.findlaw.com/scripts/printer_friendly.pl?page=/amar/20050819.html
[15] Chief Justice Roberts wrote: Osborne “asks that we recognize a freestanding right to DNA evidence untethered from the liberty interests he hopes to vindicate with it. We reject the invitation and conclude, in the circumstances of this case, that there is no such substantive due process right…Osborne seeks access to state evidence so that he can apply new DNA-testing technology that might prove him innocent.” Opinion Section B. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=08-6
[16] “Unparalleled and Denied,” New York Times, Editorial, June 19, 2009, at http://www.nytimes.com/2009/06/19/opinion/19fri1.html?th=&emc=th&pagewanted=print
Justice Antonin Scalia, Scalia and Recusal, A Predetermined Decision, A Legal Doctrine, Death Penalty, Abortion, DNA Testing, Same Sex Marriage, Alaska v. Osborne Case.
Send a letter to the editor about this Article and be sure to include the title or the url.
A Misguided Decision and the Path Forward
By Nina Morrison, Staff Attorney, The Innocence Project
In an already much-criticized
decision, the U.S. Supreme Court
ruled 5-4 last week that Innocence Project client William Osborne
could not use the federal civil rights law to obtain DNA testing
for the purpose of proving his innocence of the rape for which
he was convicted and
sent to prison in 1994.
God’s Justice and
Ours
May 2002
by Antonin
Scalia
Has Judge Alito Violated
His Oath of Office?
And Is There a Legal Tie-in
Between
Abortion and Corporate Power in the U.S.?
By Katherine Yurica.
November 11, 2005
In 1995 Jonathan Harr published his legal thriller,
A Civil Action, which quickly shot up to bestseller
status as readers agreed with John Grisham’s
statement on the book: He found it to be the most
compelling chronicle of litigation he had ever read.
However, this was not a Grisham thriller, the events
in the book were real. In 1999, John Travolta played
the part of Jan Schlichtmann, the courageous lawyer
who took on the Beatrice Foods and W. R. Grace
companies for allegedly dumping poisonous chemicals
into the drinking water of a small Massachusetts town.
If you read the book or saw the movie, the Woburn
case
is almost impossible to forget.
NEW: The Rights of Corporations
September 22, 2009
A New York Times Editorial
The question at the heart of
one of the biggest
Supreme Court cases this year is simple:
What constitutional rights should corporations have?
To us, as well as many legal scholars, former justices
and, indeed, drafters of the Constitution, the answer is
that their rights should be quite limited — far
less than
those of people.
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