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View Diary: Answering Your Questions at Frist Filibuster -- 3PM [Updated] (45 comments)

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  •  What I'd Like You To Read (4.00)
    One of my favorite pieces of judicial writing, Thurgood Marshall's final dissent (Payne v Tennessee (1991)):
    Power, not reason, is the new currency of this Court's decisionmaking. Four Terms ago, a five-Justice majority of this Court held that "victim impact" evidence of the type at issue in this case could not constitutionally be introduced during the penalty phase of a capital trial. By another 5-4 vote, a majority of this Court rebuffed an attack upon this ruling just two Terms ago.  Nevertheless, having expressly invited respondent to renew the attack, today's majority overrules Booth and Gathers and credits the dissenting views expressed in those cases. Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did.

    In dispatching Booth and Gathers to their graves, today's majority ominously suggests that an even more extensive upheaval of this Court's precedents may be in store. Renouncing this Court's historical commitment to a conception of "the judiciary as a source of impersonal and reasoned judgments,"  the majority declares itself free to discard any principle of constitutional liberty which was recognized or reaffirmed over the dissenting votes of four Justices and with which five or more Justices now disagree. The implications of this radical new exception to the doctrine of stare decisis are staggering. The majority today sends a clear signal that scores of established constitutional liberties are now ripe for reconsideration, thereby inviting the very type of open defiance of our precedents that the majority rewards in this case.

    It takes little real detective work to discern just what has changed since this Court decided Booth and Gathers: this Court's own personnel.  . . .

    Today's decision charts an unmistakable course. If the majority's radical reconstruction of the rules for overturning this Court's decisions is to be taken at face value - and the majority offers us no reason why it should not - then the overruling of Booth and Gathers is but a preview of an even broader and more far-reaching assault upon this Court's precedents. Cast aside today are those condemned to face society ultimate penalty. Tomorrow's victims may be minorities, women, or the indigent. Inevitably, this campaign to resurrect yesterday's "spirited dissents" will squander the authority and the legitimacy of this Court as a protector of the powerless.  

    I dissent.


    (Note: not "I respectfully dissent", as is the Court's standard.)

    --Adam, Phila Pa.

    •  and if you need to fill time (4.00)
      Marshall's list of precedents at risk:
      The majority sends a clear signal that essentially all decisions implementing the personal liberties protected by the Bill of Rights and the Fourteenth Amendment are open to reexamination. Taking into account the majority's additional criterion for overruling - that a case either was decided or reaffirmed by a 5-4 margin "over spirited dissen[t]," ante, at 829 - the continued vitality of literally scores of decisions must be understood to depend on nothing more than the proclivities of the individuals who now comprise a majority of this Court. See, e. g., Metro Broadcasting v. FCC, 497 U.S. 547 (1990) (authority of Federal government to set aside broadcast licenses for minority applicants); Grady v. Corbin, 495 U.S. 508 (1990) (right under Double Jeopardy Clause not to be subjected twice to prosecution for same criminal conduct); Mills v. Maryland, supra (Eighth Amendment right to jury instructions that do not preclude consideration of nonunanimous mitigating factors in capital sentencing); United States v. Paradise, 480 U.S. 149 (1987) (right to promotions as remedy for racial discrimination in government hiring); Ford v. Wainwright, 477 U.S. 399 (1986) (Eighth Amendment right not to be executed if insane); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) (reaffirming [501 U.S. 808, 852]   right to abortion recognized in Roe v. Wade, 410 U.S. 113 (1973)); Aguilar v. Felton, 473 U.S. 402 (1985) (Establishment Clause bar on governmental financial assistance to parochial schools).

      Based on the majority's new criteria for overruling, these decisions, too, must be included on the "endangered precedents" list: Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990) (First Amendment right not to be denied public employment on the basis of party affiliation); Peel v. Attorney Registration and Disciplinary Comm'n of Ill., 496 U.S. 91 (1990) (First Amendment right to advertise legal specialization); Zinermon v. Burch, 494 U.S. 113 (1990) (due process right to procedural safeguards aimed at assuring voluntariness of decision to commit oneself to mental hospital); James v. Illinois, 493 U.S. 307 (1990) (Fourth Amendment right to exclusion of illegally obtained evidence introduced for impeachment of defense witness); Rankin v. McPherson, 483 U.S. 378 (1987) (First Amendment right of public employee to express views on matter of public importance); Rock v. Arkansas, 483 U.S. 44 (1987) (Fifth Amendment and Sixth Amendment right of criminal defendant to provide hypnotically refreshed testimony on his own behalf); Gray v. Mississippi, 481 U.S. 648 (1987) (rejecting applicability of harmless error analysis to Eighth Amendment right not to be sentenced to death by "death qualified" jury); Maine v. Moulton, 474 U.S. 159 (1985) (Sixth Amendment right to counsel violated by introduction of statements made to government informant codefendant in course of preparing defense strategy); Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) (rejecting theory that Tenth Amendment provides immunity to States from federal regulation); Pulliam v. Allen, 466 U.S. 522 (1984) (right to obtain injunctive relief from constitutional violations committed by judicial officials).

    •  What I'd like you to read (4.00)
      You've got it, Adam.  And thanks for your balanced and thougtful coverage of the Senate race.  That's all anyone could ever ask...

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