"There was simply no basis for the Ninth Circuit to reach the opposite conclusion, particularly in such a dismissive manner."

The Supreme Court, per curiam, grants a petition for certiorari and a motion for leave to proceed in forma pauperis, and delivers an immediate reversal, after the 9th Circuit blatantly disregards the standard imposed by the federal habeas statute.

Habeas corpus denied.

It is not the way to get your daughter not to live with her boyfriend.

"I am a major and no one can tell me where to go or not. I am committed to being with my friend and he will take care of me. Please escort me to the main gate of the court and I will manage my life from there".

After all that...

... Danforth loses.

Click the "Danforth" tag to see how excited I was about Danforth.

"The alarmist view that our fragile geopolitical position requires abandoning our commitment to preventing Star Chamber proceedings."

Lawprof Richard Epstein has a NYT op-ed on Boumediene:

This 5-4 decision was correct. The conservative justices in the minority were wrong to suggest that the decision constitutes reckless judicial intervention in military matters that the Constitution reserves exclusively for Congress and the president....

The defendants’ entire case would collapse if the Bush administration were prepared to offer substantial evidence of their enemy combatant status, sparing everyone unneeded uncertainty and expense. Boumediene v. Bush is not a license to allow hardened terrorists to go free. It is a rejection of the alarmist view that our fragile geopolitical position requires abandoning our commitment to preventing Star Chamber proceedings that result in arbitrary incarceration.

ADDED: WaPo reports:

Senior lawyers inside and outside the Bush administration repeatedly warned the White House that it was risking judicial scrutiny of its detention policies in Guantanamo Bay if it did not pursue a more pragmatic legal strategy that considered the likely reaction of the Supreme Court. But such advice, issued periodically over the past six years, was ignored or discounted, according to current and former administration officials familiar with the debates.

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

The AP reports:

The Supreme Court ruled Thursday that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.

Justice Kennedy writes for the 5-4 majority. Chief Justice John Roberts, for dissenting, accepted the government's "generous set of procedural protections."

UPDATE: Orin Kerr says it's exactly what he expected and what "you could see coming from miles (or in this case, years) away."

You can't demonstrate here. This is the Supreme Court.

81 people were arrested for demonstrating in front of the Supreme Court today.

Dreaming of a heroically liberal Supreme Court.

Linda Greenhouse has a piece today about liberals scheming to "take back" the Supreme Court.

[S]ome liberal legal scholars suggest that beyond political tactics, what the left urgently needs is a long-term strategy built around an affirmative message of what the Constitution means and what the enterprise of constitutional interpretation should be about....

Exactly what that vision should encompass is now the question. It is easy enough to find consensus on a checklist that would include a robust reading of the guarantees of the Bill of Rights, including the notion that some rights are fundamental; a constitutional interpretation not tethered to a search for the framers’ original intent; invigorating the right to privacy to include personal privacy in the electronic age; restoring the shield of habeas corpus; and recapturing the government’s ability to intervene for the benefit of African-Americans and other minority groups without being constrained by the formal and ahistorical neutrality that liberals saw as the conceptual flaw in the chief justice’s opinion a little over a week ago invalidating two voluntary school integration plans.

Recapturing the government’s ability to intervene for the benefit of African-Americans and other minority groups without being constrained by the formal and ahistorical neutrality that liberals saw as the conceptual flaw in the chief justice’s opinion a little over a week ago invalidating two voluntary school integration plans. That's one hell of a snappy phrase.

Actually, the reason that item looked so awkward on the checklist is that it's different from all the other items. Greenhouse had to strain to try to make it not look different. Everything else is about expanding constitutional rights, and that one's about narrowing rights. The way you "recapture" "ability" (AKA power) for the government is by cutting out the rights.

Greenhouse interviewed a few liberal lawprofs who bemoaned the loss of the "heroic" liberal Supreme Court justice and spoke of a long time line for getting back to a Court that would resemble what we had in the days of Earl Warren. But there's no substance to this plan. It's just the expression of a wish about the future (or a longing for the past).

This grand vision for a Court that would expansively and actively enforce rights will be seen by present day voters as a political proposal. If people today really want that vision, they can get it from the political branches. They don't need a reactivated liberal Court.

The liberal lawprofs' dream seems to be that you could get people to believe that the expansive vision of rights is the proper way to do constitutional interpretation and they'd be willing to go along with that even if they didn't want these rights enough to support enacting them into law through statutes. But what are the chances that people today would allow liberal academics to convince them of such a thing?

Panetti spared.

A 5-4 decision written by Justice Kennedy will mean more consideration of the question whether Panetti is too mentally ill to understand why he is being punished. Here's the case. I will have to read and write about it later, but there are some complexities about when a person may bring more than one habeas petition and the extent to which the right asserted was "clearly established." Justice Thomas's dissenting opinion -- joined by Roberts, Scalia, and Alito -- deals with the requirements of the habeas statute: "Because the Court’s ruling misinterprets AEDPA, refuses to defer to the state court as AEDPA requires, and rejects the Court of Appeals’ approach without any constitutional analysis, I respectfully dissent." Without any constitutional analysis? That's harsh.

"An alien captured and detained within the United States... has a right to habeas corpus protected by the Constitution's Suspension Clause."

A divided panel of the Fourth Circuit interprets the Military Commissions Act not to apply to civilians who are seized within the United States. SCOTUSblog reports:

Under MCA, Judge Motz wrote, ... enemy combatant status must either be determined by a Combatant Status Review Tribunal -- the military administrative panels set up by the Pentagon -- or by some other "Executive tribunal." Neither has made such a ruling as to [Ali Saleh Kahlah] al-Marri, the decision said. (The CSRT panels are operating only for foreign nationals being held at the U.S. military prison camp at Guantanamo Bay, Cuba.)...

The Circuit Court found the government's claim of "inherent" presidential authority to order military detention of civilians to be "breathtaking," and was broad enough even to allow detention of U.S. citizens.

Orin Kerr has more:

The court takes a very narrow view of the category "enemy combatant"; if I read the court correctly, it sees the category as basically limited to the catgeory of military opponent in battle rather than Al-Qaeda terrorist....

According to the Fourth Circuit, this left Al-Marri as a "civilian," and thus entitled to the Due Process protections of anyone lawfully in the United States. In other words, the AUMF just doesn't reach so far as to permit the military to detain a civilian terrorist suspect in the U.S. like Al-Marri.

Kerr predicts the court will be reversed, either by the Fourth Circuit en banc or by the Supreme Court.

Come on, everybody. Let's study outdoors.

Lovely!



Uh-oh...



It's beautiful out there, but really, can you study outdoors? Yesterday, a student said let's do the class outdoors. Oh, no, no, no. That is not going to work. I've never taken the class outdoors in 20+ years of teaching. I don't think you can take the subject seriously outdoors. The subject is habeas corpus, the death penalty... how can you talk about that outdoors?

Keep moving.

The jury must be able to "give meaningful effect or a 'reasoned moral response' to a defendant's mitigating evidence."

Wrote Justice Stevens, as the Supreme Court overturned three death sentences. Chief Justice Roberts writes in dissent: "'Whatever the law may be today, the Court's ruling that 'twas always so -- and that state courts were 'objectively unreasonable' not to know it -- is utterly revisionist,'' Roberts said.

I'd like to explain that to you, but I've got to get my notes together for my federal jurisdiction class, where we happen to be studying the very aspect of habeas corpus law that you need to know to understand what Roberts is talking about.

From the Roberts opinion:

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), however, a state-court decision can be set aside on federal habeas review only if it is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U. S. C. § 2254(d)(1). When this Court considers similar challenges to the same jury instructions five separate times, it usually is not because the applicable legal rules are "clearly established." The Court today nonetheless picks from the five precedents the one that ruled in favor of the defendant -- Penry I -- and anoints that case as the one embodying "clearly established Federal law." In doing so the Court fails to give any meaningful weight to the two pertinent precedents subsequent to Penry -- Graham and Johnson -- even though those cases adopted a more limited view of Penry I than the Court embraces today.

Another Monday.

Just another manic Monday....

... as the Spring semester crashes in toward a close. Time for cutting pages out of the syllabus and thinking up efficient strategies for presenting the doctrines left for the end. Habeas corpus! Separation of powers! It's harrowing.

But this week is a short teaching week, as I'm off to a conference at Dartmouth -- as noted here. The conference is on Thursday, so that leaves me on my own in Hanover, New Hampshire for the weekend. What to do?

(That linked video is sublime, by the way. Makes you want to do your Susannah Hoffs imitation, doesn't it? It's the easiest imitation in the world, you know.)

Are you, like me, always clicking on news stories about speeches given by Supreme Court justices...

... and finding that nothing interesting was said? It's so predictable. Sometimes I wonder why I have the Google Alerts I have. Actually, I have one for "Rehnquist" that has malfunctioned and become undeletable -- kind of like life tenure, but for an undying reputation.

My Google Alerts are meant to feed me bloggable nuggets. I have some that reliably turn up good material. But the ones for Supreme Court justices regularly turn up stories like this. I'm not picking on Ruth Bader Ginsburg here. But when justices go out and give speeches at law schools they say anodyne things like: "The benefits of a diverse student population are not theoretical but real."

Oh, yes, maybe Justice Scalia will say something cutting, but it will be the same cut we've heard before.

All the same, I'm not asking them to be more interesting. It's not their job to amuse me. In fact, I think they are required to be that special, judicial kind of boring.

Oh, let me be that special, blogger kind of predictable and reprint this anecdote I tell at the beginning of an article called "Late Night Confessions in the Hart and Wechsler Hotel" (47 Vand. L. Rev. 993 (1994)):

Chief Justice Rehnquist visited my law school last year to deliver a lecture entitled "The Future of Federal Courts." The University Theater filled: overdressed alumni in the front rows, respectful students in the balcony, camouflaged professors here and there. I sat in the middle and hunched over a folded-up sheet of legal paper. I scribbled notes and hoped for some insight into the tangled mass of problems I had made my life's work. Would the Chief Justice perhaps explain the Court's new habeas corpus jurisprudence? I wanted a little accounting for Butler v. McKellar, in which he had denied federal court relief to a man who faced the death penalty after a conviction based on a confession that the Court's own case law would, without question, exclude.

The Chief told some jokes, elaborated on his ties to Wisconsin, and discoursed at length about the workload of the courts. The issues were neutral, administrative, managerial, structural.

"Did he say anything provocative?" asked a colleague who had missed the speech.

"He never got any more provocative than to say he's against diversity."

My friend was shocked. "He's against diversity!?"

"Diversity jurisdiction," I said, realizing she was not a proceduralist.

Maybe in the style of an evolving Constitution, the judicial norms change -- even though they retain that sober feeling. It would have been surprising in 1993 if Rehnquist had opined on racial diversity, and now it seems utterly conventional for Ginsburg to say "The benefits of a diverse student population are not theoretical but real."

"Given the lack of holdings from this Court regarding the potentially prejudicial effect of spectators’ courtroom conduct..."

The Supreme Court issued its opinion today in Carey v. Musladin, the case about spectators at a murder trial who wore buttons showing the photograph of the victim. Here's our discussion of the case from back at the time of the cert grant. Many of the commenters thought the defendant's rights were violated, but I said that under the standard applicable on habeas -- whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" -- the Supreme Court would have to leave the state court's decision intact.

Justice Thomas writes the unsurprising opinion:

In contrast to state-sponsored courtroom practices, the effect on a defendant’s fair-trial rights of the spectator conduct to which Musladin objects is an open question in our jurisprudence. This Court has never addressed a claim that such private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial. And although the Court articulated the test for inherent prejudice that applies to state conduct in Williams and Flynn, we have never applied that test to spectators’ conduct. Indeed, part of the legal test of Williams and Flynn—asking whether the practices furthered an essential state interest—suggests that those cases apply only to state-sponsored practices....

Given the lack of holdings from this Court regarding the potentially prejudicial effect of spectators’ courtroom conduct of the kind involved here, it cannot be said that the state court “unreasonabl[y] appli[ed] clearly established Federal law.” §2254(d)(1). No holding of this Court required the California Court of Appeal to apply the test of Williams and Flynn to the spectators’ conduct here. Therefore, the state court’s decision was not contrary to or an unreasonable application of clearly established federal law.

There are no dissenting opinions, but there are three concurrences, from Stevens, Kennedy, and Souter. From Souter's opinion:

[O]ne could not seriously deny that allowing spectators at a criminal trial to wear visible buttons with the victim’s photo can raise a risk of improper considerations. The display is no part of the evidence going to guilt or innocence, and the buttons are at once an appeal for sympathy for the victim (and perhaps for those who wear the buttons) and a call for some response from those who see them. On the jurors’ part, that expected response could well seem to be a verdict of guilty, and a sympathetic urge to assuage the grief or rage of survivors with a conviction would be the paradigm of improper consideration.

The only debatable question is whether the risk in a given case reaches the “unacceptable” level. While there is a fair argument that any level of risk from wearing buttons in a courtroom is unacceptable, two considerations keep me from concluding that the state court acted unreasonably in failing to see the issue this way and reverse the conviction. First, of the several courts that have considered the influence of spectators’ buttons, the majority have left convictions standing. See, e.g., State v. Speed, 265 Kan. 26, 47–48, 961 P. 2d 13, 29–30 (1998); State v. Braxton, 344 N. C. 702, 709–710, 477 S. E. 2d 172, 176–177 (1996); State v. Lord, 128 Wash. App. 216, 219–223, 114 P. 3d 1241, 1243–1245 (2005); Nguyen v. State, 977 S. W. 2d 450, 457 (Tex. App. 1998). I am wary of assuming that every trial and reviewing judge in those cases was unreasonable as well as mistaken in failing to embrace a no-risk standard, and so I would find it hard to say the state judges were unreasonable in this case, given the lack of detail about the buttons’ display. Second, an interest in protected expression on the part of the spectators wearing mourners’ buttons has been raised, but not given focus or careful attention in this or any other case that has come to our notice. Although I do not find such a First Amendment interest intuitively strong here, in the absence of developed argument it would be preferable not to decide whether protection of speech could require acceptance of some risk raised by spectators’ buttons.

Does this mean the case might have been better litigated? The First Amendment argument could have been developed. (Justice Stevens makes a point of saying that argument is obviously meritless.) And there could have been more concrete information about what these buttons were like. Justice Thomas had something to say about that too:

The record contains little concrete information about the buttons. The buttons were apparently two to four inches in diameter and displayed only a photograph of [the victim] Studer. It is not clear how many family members wore the buttons or how many days of the trial they wore them.

But perhaps the buttons were small and rarely worn, in which case, it wasn't a bad decision to leave out the details.

"It is not the presidency that 'won.' Instead, it is the judiciary that lost."

John Yoo has a new piece about the new military commission law, which Bush signed on Tuesday:

The new law is, above all, a stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world. It was passed in response to the effort by a five-justice majority in Hamdan v. Rumsfeld to take control over terrorism policy. That majority extended judicial review to Guantanamo Bay, threw the Bush military commissions into doubt, and tried to extend the protections of Common Article 3 of the Geneva Conventions to al Qaeda and Taliban detainees, overturning the traditional understanding that Geneva does not cover terrorists, who are not signatories nor "combatants" in an internal civil war under Article 3.

Hamdan was an unprecedented attempt by the court to rewrite the law of war and intrude into war policy. The court must have thought its stunning power grab would go unchallenged. After all, it has gotten away with many broad assertions of judicial authority before. This has been because Congress is unwilling to take a clear position on controversial issues (like abortion, religion or race) and instead passes ambiguous laws which breed litigation and leave the power to decide to the federal courts....

This time, Congress and the president did not take the court's power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions...

The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.

Read the whole thing. I think Yoo overdoes it describing what a rebuke this is to the Supreme Court. The analysis in Hamdan relies heavily on the lack of congressional support for things the Executive was doing, so it makes sense to see the new legislation as providing the legislation the Court thought was needed -- responding to Hamdan, not slapping back at it. The question is: How will the Court respond now that the moderate ground for opposing the President is gone? To preserve the courts' role in the face of the new statute will take something more like what Yoo calls "cater[ing] to the legal academy, whose tastes run to swashbuckling assertions of judicial supremacy and radical innovations."

"A typical jury will understand that the victim is going to have a family, and they're going to be sorry he's dead..."

"... and they might be there at the trial. The buttons don't seem to add much to what the jury will derive from seeing the family seated behind the prosecution bench."

So said Chief Justice John Roberts at oral argument yesterday. The question was whether a federal court on habeas should overturn a murder conviction because during the trial, members of the victim's family sat in the courtroom wearing buttons showing a picture of the victim. The standard on habeas -- after the revisions in the Antiterrorism and Effective Death Penalty Act -- is whether the state trial judge's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” The 9th Circuit overturned the conviction of Matthew Musladin, and I think we know how the Supreme Court will decide this, given the difficulty of meeting the standard.

The linked article is David Savage's piece in the L.A. Times, but you can read the whole transcript here. I found it interesting that Justice Kennedy toyed with the idea of using the case to "clearly establish" the law for future cases:

Supposing we all thought that this practice in this particular case deprived the defendant of a fair trial, but we also agreed with you that AEDPA prevents us from announcing such a judgment. What if we wrote an opinion saying it is perfectly clear there was a constitutional violation here, but Congress has taken away our power to reverse it. Then a year from now, the same case arises. Could we follow -- could the district court follow our dicta or could it -- would it be constrained to say we don't know what the Supreme Court might do?

The lawyer for the state quickly reminded him that the Court in Williams v. Taylor (second link, above) said that only holdings count toward clearly establishing the law for habeas purposes and that Musladin will only win this case if the law was already clearly established. Perhaps Kennedy can find some way to extract the Court from this bind, which severely undercuts the role of the Court in saying what the law is at precisely the point where the statute -- AEDPA -- makes the Court's articulation of the law crucial.

ADDED: Linda Greenhouse's report on the argument is much better than what is at the first link. She explains the federalism problem extremely well:

The Supreme Court has had various things to say over the years about the unduly prejudicial impact of such practices as placing a defendant in shackles or in prison garb in the presence of the jury. But it has never said a word about a murder victim’s relatives wearing buttons.

So, did the federal appeals court in this case, the United States Court of Appeals for the Ninth Circuit, have the authority to extrapolate from the old Supreme Court precedents to the new situation? Did it have the authority to apply one of its own cases, a 1990 ruling that overturned a rape conviction because female spectators at the trial had worn buttons declaring “Women Against Rape”?...

Suppose, Justice Anthony M. Kennedy asked Mr. Ott, that there was no Supreme Court ruling on a particular issue, but that the courts of five federal appellate circuits had looked at the issue and had all reached the same conclusion. “And they all say, ‘We think the general rule of the Supreme Court is as follows,’ ” Justice Kennedy said, asking: “Isn’t that entitled to some weight? You’re not supposed to cite that when you go to the Sixth Circuit court or you go to the state court?”

Such a decision, even if widely shared among the appeals courts, could not be considered “clearly established” law, Mr. Ott replied. “To redefine or shape this court’s holdings beyond the face of those holdings, our position is that cannot be done with state or circuit law,” he said.

Read the whole thing, especially if you haven't thought about AEDPA before and need to get a grip on it.

The compromise on the detainee legislation.

It's not easy to evaluate the compromise on the detainee legislation. You've certainly got to look beyond the President's conspicuous concession to see what was really decided. Marty Lederman offers this:

The fine and careful folks over at Human Rights First are painting it as a significant victory for McCain, going so far as to argue that "the language in today’s agreement makes clear that ‘alternative interrogation procedures’ such as stress positions, induced hypothermia and waterboarding are not only prohibited by the treaty, they are war crimes." I would really like this to be true. But, as of now, at least, I don't quite see it. And, what's far more important, obviously the Administration doesn't see it that way, either....

[T]he more serious problem is not so much the delegation of some unreviewable interpretive authority to the President (troubling though that is), but instead that the legislation itself would define "cruel treatment" far too narrowly, so as apparently to exclude the CIA's "alternative" techniques, no matter how cruel they are in fact. I hear word that Senator McCain thinks the bill's definition of "grave breaches" of Common Article 3 covers the "alternative" CIA techniques. I hope he can make that interpretation stick somehow, but on my quick [first two] readings of the language, it still seems to me as if it's carefully crafted to exclude the CIA techniques. See, most importantly, the limiting language defining "serious physical pain or suffering," which is carefully drafted to exclude the CIA techniques such as Cold Cell and Long Time Standing....

[The legislation] would preclude courts altogether from ever interpreting the Geneva Conventions -- any part of them -- by providing that "no person may invoke the Geneva Conventions or any protocols thereto in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a party as a source of rights, in any court of the United States or its States or territories."...

If I'm right, and if this is enacted, the only hope would be the prospect of the Supreme Court holding that both the habeas cut-off, and the "no person may invoke Geneva" provision, are unconstitutional.

Much more at the link, with lots of updates incorporating new arguments. Read it.

It's important to analyze the text of the legislation closely and to understand the relevant case law (about, for example, Congress's power to limit judicial review). Plenty of people have lots of different motivations to make claims about this compromise. Don't let yourself be spun.

Supreme Court invalidates Guantanamo military commissions.

SCOTUSblog reports:

The Supreme Court ruled on Thursday that Congress did not take away the Court's authority to rule on the military commissions' validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the "military commissions" illegal under both military justice law and the Geneva Convention. The vote was 5-3, with the Chief Justice not taking part.

I don't have the text of the opinions yet. I'll have more soon.

UPDATE: Here's the opinion. Here's a good summary in the Washington Post. I found this especially interesting:

For the first time in his 15-year tenure on the court, Thomas took the unusual step of reading part of his dissenting opinion from the bench. The court's willingness "to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous," he said.

And let me just say something about the interpretation of the jurisdiction statute. I know a lot of readers are finding Justice Scalia's interpretation persuasive:

In a dissenting opinion, Scalia pointed to congressional enactment on Dec. 30, 2005, of the Detainee Treatment Act, which provides that as of that date, "no court, justice or judge" shall have jurisdiction to consider an application by a Guantanamo detainee for habeas corpus, challenging his detention.

But the majority's straining to read the DTA to preserve jurisdiction does not at all surprise me (a federal jurisdiction scholar). It is standard practice for the Court to read statutes that purport to cut back jurisdiction in a way that is defensive of the role of the judiciary. Justice Stevens's opinion discusses some of those cases. He doesn't even reach the question of whether the Constitution permits the cut back. This is an issue that he avoids -- in the style of many other cases.

In a concurring opinion, Breyer strongly disputed the dissenters' assertion that today's ruling would, as Thomas wrote, "sorely hamper the president's ability to defeat a new and deadly enemy."

"The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a 'blank check,' Breyer wrote. "Indeed, Congress has denied the president the legislative authority to create military commissions of the kind at issue here. Nothing prevents the president from returning to Congress to seek the authority he believes necessary."

And he'd better get crashingly clear statutory language.

IN THE COMMENTS: Simon says Thomas had read dissents from the bench before. He cites Stenberg v. Carhart, the "partial birth" abortion case. I looked up news reports of the time and found this in the Washington Post, June 29, 2000, Pg. 9A ("Abortion debate will continue to rage," by Joan Biskupic):

The sensitivity of the abortion issue was evident in the court's outpouring of opinions in the Nebraska case, Stenberg vs. Carhart. Of the nine justices, only David Souter did not write an opinion. Antonin Scalia, Anthony Kennedy and Clarence Thomas were moved to read portions of their angry dissents in the Nebraska and Colorado cases from the mahogany bench.

It's strange for the WaPo to have made that mistake today. You'd think you'd definitely check before saying something happened "[f]or the first time."

AFTERTHOUGHT: It will be interesting to see how Hamdan plays out in the political arena. The case invites more legislation, and members of both parties have got to be furiously cooking up proposals. I suspect that those who are most disappointed by the outcome of the case have the most political advantage looking toward the next few months.

"Why is [Scalia] blogging his concurrence....?"

Read Dahlia Lithwick's write-up of yesterday's death penalty case, Kansas v. Marsh, in which the court upholds a state law that requires the death penalty when the jury weighs the aggravating and mitigating factors and finds them in equipoise. In Lithwick's words "the tie goes to the hangman."

Let's concentrate on what she has to say about Scalia:

[T]he real wackiness today comes with Justice Antonin Scalia's concurrence, which is nominally about the case but is actually a full-bore global assault on any claim ever made anywhere about the execution or exoneration of an innocent defendant. Nobody is immune to Scalia's nail-spitting this morning: He attacks the 1987 study cited by Souter whose "obsolescence began at the moment of publication"; the "exonerees" who are "paraded by various professors" (from whom else could the word professors be a slur?); and the dissent, which merely "parrots articles or reports that support its attack on the American criminal justice system."...

Why is he blogging his concurrence, rather than taking a step back and actually writing it with some reasoned regard for the arguments on the other side?...

[Scalia] ... paint[s] the law as this dispassionate machine, into which you enter the legal facts and then download the correct answers. This is not a "moral" process, they say. This is a coolly rational process that works best when meddlesome supreme court judges leave it alone. But then the force of his argument rests wholly on his increasingly hysterical cataloging of the crimes of the so-called "innocent" exonerees. He isn't dispassionate here; he's hardly even rational at points. How can he assert that death isn't different, when it clearly drives him to the brink of insanity?

I don't agree that the originalist approach to interpretation is inconsistent with forceful, vivid writing. Lithwick disapproves of the interpretive methodology and that motivates her to portray it as mechanical and inhuman -- the judge as a big computer. Then, she demands consistency within her image and criticizes Scalia for inconsistency. He's not allowed to seem human, because he claimed to be a machine!

But I must say that I do love the notion that to show one's human feeling is to sound like a blogger.

Anyway, what's this about "various professors" with their "parade" of "exonorees"? Let's go to the Scaliatext. He's responding to the dissent, which relies at one point on "a handful of studies that bemoan the alleged prevalence of wrongful death sentences."

One study (by Lanier and Acker) is quoted by the dissent as claiming that “ ‘more than 110’ death row prisoners have been released since 1973 upon findings that they were innocent of the crimes charged, and ‘hundreds of additional wrongful convictions in potentially capital cases have been documented over the past century.’ ” Post, at 8 (opinion of Souter, J.). For the first point, Lanier and Acker cite the work of the Death Penalty Information Center (more about that below) and an article in a law review jointly authored by Radelet, Lofquist, and Bedau (two professors of sociology and a professor of philosophy). For the second point, they cite only a 1987 article by Bedau and Radelet. See Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21. In the very same paragraph which the dissent quotes, Lanier and Acker also refer to that 1987 article as “hav[ing] identified 23 individuals who, in their judgment, were convicted and executed in this country during the 20th century notwithstanding their innocence.” Lanier & Acker, Capital Punishment, the Moratorium Movement, and Empirical Questions, 10 Psychology, Public Policy & Law 577, 593 (2004). This 1987 article has been highly influential in the abolitionist world. Hundreds of academic articles, including those relied on by today’s dissent, have cited it. It also makes its appearance in judicial decisions—cited recently in a six-judge dissent in House v. Bell, 386 F. 3d 668, 708 (CA6 2004) (en banc) (Merritt, J., dissenting), for the proposition that “the system is allowing some innocent defendants to be executed.” The article therefore warrants some further observations.

The 1987 article’s obsolescence began at the moment of publication. The most recent executions it considered were in 1984, 1964, and 1951; the rest predate the Allied victory in World War II. (Two of the supposed innocents are Sacco and Vanzetti.) Bedau & Radelet, supra, at 73. Even if the innocence claims made in this study were true, all except (perhaps) the 1984 example would cast no light upon the functioning of our current system of capital adjudication. The legal community’s general attitude toward criminal defendants, the legal protections States afford, the constitutional guarantees this Court enforces, and the scope of federal habeas review, are all vastly different from what they were in 1961. So are the scientific means of establishing guilt, and hence innocence—which are now so striking in their operation and effect that they are the subject of more than one popular TV series. (One of these new means, of course, is DNA testing—which the dissent seems to think is primarily a way to identify defendants erroneously convicted, rather than a highly effective way to avoid conviction of the innocent.)

But their current relevance aside, this study’s conclusions are unverified. And if the support for its most significant conclusion—the execution of 23 innocents in the 20th century—is any indication of its accuracy, neither it, nor any study so careless as to rely upon it, is worthy of credence. The only execution of an innocent man it alleges to have occurred after the restoration of the death penalty in 1976—the Florida execution of James Adams in 1984—is the easiest case to verify. As evidence of Adams’ innocence, it describes a hair that could not have been his as being “clutched in the victim’s hand,” Bedau & Radelet, supra, at 91. The hair was not in the victim’s hand; “[i]t was a remnant of a sweeping of the ambulance and so could have come from another source.” Markman & Cassell, Protecting the Innocent: A Response to the Bedau-Radelet Study, 41 Stan. L. Rev. 121, 131 (1988). The study also claims that a witness who “heard a voice inside the victim’s home at the time of the crime” testified that the “voice was a woman’s,” Bedau & Radelet, supra, at 91. The witness’s actual testimony was that the voice, which said “ ‘ “In the name of God, don’t do it” ’ ” (and was hence unlikely to have been the voice of anyone but the male victim), “ ‘sounded “kind of like a woman’s voice, kind of like strangling or something U .” ’ ” Markman & Cassell, Protecting the Innocent, at 130. Bedau and Radelet failed to mention that upon arrest on the afternoon of the murder Adams was found with some $200 in his pocket—one bill of which “was stained with type O blood. When Adams was asked about the blood on the money, he said that it came from a cut on his finger. His blood was type AB, however, while the victim’s was type O.” Id., at 132. Among the other unmentioned, incriminating details: that the victim’s eyeglasses were found in Adams’ car, along with jewelry belonging to the victim, and clothing of Adams’ stained with type O blood. Ibid. This is just a sample of the evidence arrayed against this “innocent.” See id., at 128–133, 148–150.

Critics have questioned the study’s findings with regard to all its other cases of execution of alleged innocents for which “appellate opinions U set forth the facts proved at trial in detail sufficient to permit a neutral observer to assess the validity of the authors’ conclusions.” Id., at 134. (For the rest, there was not “a reasonably complete account of the facts U [sic] readily available,” id., at 145.) As to those cases, the only readily verifiable ones, the authors of the 1987 study later acknowledged, “We agree with our critics that we have not ‘proved’ these executed defendants to be innocent; we never claimed that we had.” Bedau & Radelet, The Myth of Infallibility: A Reply to Markman and Cassell, 41 Stan. L. Rev. 161, 164 (1988). One would have hoped that this disclaimer of the study’s most striking conclusion, if not the study’s dubious methodology, would have prevented it from being cited as authority in the pages of the United States Reports. But alas, it is too late for that. Although today’s dissent relies on the study only indirectly, the two dissenters who were on the Court in January 1993 have already embraced it. “One impressive study,” they noted (referring to the 1987 study), “has concluded that 23 innocent people have been executed in the United States in this century, including one as recently as 1984.” Herrera v. Collins, 506 U. S. 390, 430, n. 1 (1993) (Blackmun, J., joined by Stevens and Souter, JJ., dissenting).

Remarkably avoiding any claim of erroneous executions, 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.

Sorry to print such a long passage, but this is what Lithwick decried as his "increasingly hysterical cataloging of the crimes of the so-called 'innocent' exonerees." Remember, she said "He isn't dispassionate here; he's hardly even rational at points" and that the death penalty "clearly drives him to the brink of insanity." Does Scalia deserve that?

I could ask why is Lithwick blogging her criticism, but the question answers itself: She's writing for Slate, and Slate readers are sure to love a "Scalia's ca-ray-zee" rant. Are they going to check the Scaliatext or go about their busy lives feeling one notch more certain that Scalia's a wacko?

The lethal injection case.

Linda Greenhouse writes about yesterday's lethal injection case, Hill v. McDonough:

The case was filed under the Civil Rights Act of 1871 [Section 1983, which] permits suits against government officials for violation of rights guaranteed by the Constitution or federal laws.

The lower federal courts dismissed the suit, however, on the ground that the only way for an inmate to challenge the method by which he is to be executed is through a petition for a writ of habeas corpus....

In his opinion for the Supreme Court on Monday, Justice Kennedy said ... that while a habeas corpus petition was the only way to challenge the constitutionality of a sentence, Mr. Hill was challenging not his "lethal injection sentence as a general matter," but only the way in which the sentence was to be carried out.

As the unanimous opinion indicates, this is the clear right answer (in a troublesome area of jurisdictional doctrine). Left for another day is the underlying question about the substance of the 8th Amendment right against cruel and unusual punishment. There the question is how well the different chemicals work. Do they really block the pain or do they only cause the subject to appear to be feeling nothing? As the article says, the Court recently turned down a case that presented the question directly and has avoided intervening in a number of executions where the issue could have been raised.

IN THE COMMENTS: This painting gets discussed: