Eminent Domain

I'm really making some progress in yesterday's Court opinions. I'm halfway through US v Gonzales-Lopez and I finished Kansas v Marsh. While the majority opinion is interesting, I found Justice Scalia's concurrence in Marsh incredibly interesting. He uses the opinion to respond to some of the claims made by Justice Stevens and Justice Souter in their dissents.

He takes issue with Stevens' criticism of the Court even granting cert to hear the case. Scalia in the text...

Our solemn responsibility is not merely to determine whether a State Supreme Court ‚“ha[s] adequately protected [a defendant’s] rights under the Federal Constitution,‚” post, at 2 (Stevens, J., dissenting). It is to ensure that when courts speak in the name of the Federal Constitution, they disregard none of its guarantees‚—neither those that assure the rights of criminal defendants, nor those that assure what Justice Black, in his famous dissent in In re Winship, 397 U. S. 358, 385 (1970) , called ‚“the most fundamental individual liberty of our people—the right of each man to participate in the self-government of his society.” Turning a blind eye to federal constitutional error that benefits criminal defendants, allowing it to permeate in varying fashion each state Supreme Court’s jurisprudence, would change the uniform “law of the land” into a crazy quilt.

Then the icy gaze of Scalia turns to the Granite State's favorite bachelor, Justice David Souter. Scalia states that Souter's dissent...

...essentially argues that capital punishment is such an undesirable institution‚—it results in the condemnation of such a large number of innocents—that any legal rule which eliminates its pronouncement, including the one favored by the dissenters in the present case, should be embraced.

Scalia then goes on to state that judges should not praise or criticize legislatures according to the judge's personal policy preferences. Not satisfied with taking on members of the Court, Tail Gunner Scalia takes aim at (I'm assuming) Europe...

There exists in some parts of the world sanctimonious criticism of America’s death penalty, as somehow unworthy of a civilized society. (I say sanctimonious, because most of the countries to which these finger-waggers belong had the death penalty themselves until recently‚—and indeed, many of them would still have it if the democratic will prevailed.)

Some judges are reluctant to criticize other judges on their court. Scalia is taking on entire hemispheres. You gotta love a guy like that.

Scalia uses a substantial portion of his concurrence to attack the idea that innocent people are being executed left and right...

It should be noted at the outset that the dissent does not discuss a single case‚—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby. The dissent makes much of the new-found capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt.

Scalia then makes a point that I've been trying to make for a long time...

...the dissent focuses on the large numbers of non-executed “exonerees” paraded by various professors. It speaks as though exoneration came about through the operation of some outside force to correct the mistakes of our legal system, rather than as a consequence of the functioning of our legal system. Reversal of an erroneous conviction on appeal or on habeas, or the pardoning of an innocent condemnee through executive clemency, demonstrates not the failure of the system but its success. Those devices are part and parcel of the multiple assurances that are applied before a death sentence is carried out.

That is the system working. That's the whole idea of having multiple layers of protections for the accused. I'll leave the remainder of the opinion to Scalia himself. He goes on at great length, attacking the validity of a handful of studies cited by the dissenters.

This is where Court decisions get entertaining. There are already a lot of Scalia haters out there attacking him for this concurrence. Prof. Althouse points out the column in Slate by Dahlia Lithwick that goes after Scalia. She calls the concurrence "real wackiness" and a "scorched earth diatribe". In my post, I had a little fun with Scalia (the tail gunner remark and the attacking Europe thing). As the cliche goes, I kid because I love. I also kid because people like Lithwick don't. Scalia is trying to make his point in the most effective way possible. It is strongly worded and passionate. There is nothing wrong with that. Lithwick portrays it as being an unhinged rant. I think that's a bit unfair to the Justice. Unfortunately, most of the people who read her article won't read the actual opinion.

The funniest part to me is that Clinton's former acting Solicitor General Walter Dellinger has this response to Lithwick...

Whoa! Your critique of Justice Scalia's concurrence in the Kansas death-penalty case is pretty scorching. But to be fair to Scalia: Justice Souter's dissenting opinion starts this fight by raising potential death-penalty problems that are just not at issue before the court. Scalia then responds to these unnecessary jabs with massive verbal retaliation.

Souter drew first blood, legally speaking.

This post was entirely too long.