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Thursday, June 08, 2006
Unanimity and Ideology on the Court, Part II
In last week's public-employee speech opinion Garcetti v. Ceballos, the Roberts Court ruled in favor of the employer 5-4 and broadly. As I suggested yesterday, it appears that Roberts' conservative ideology may have trumped his stated preference for narrow, unanimous rulings.
Holmes v. South Carolina -- issued a month before -- shows the other side of the coin: a narrow opinion that should have been less so. In Holmes's murder trial, the trial judge prevented the defendant from offering evidence that another guy did it. Why? Because the trial judge thought the case against the defendant was "overwhelming," and the South Carolina Supreme Court agreed with this analysis. Holmes was also a death penalty case, a minor detail not mentioned in the opinion, as Dan Filler pointed out at Concurring Opinions. Further details on the case can be found here and here.
Holmes was a ridiculously easy case. Judges can't prescreen the evidence of the defendant's guilt, and based on their assessment of the strength of the prosecution's evidence, decide whether the defendant gets to present a defense. It violates the Sixth Amendment right to a jury trial, due process, and 97 other things, including common sense. It's an embarrassment it even got this far.
I nodded vigorously when I saw the the LA Times editorial on Holmes: "In the first opinion from its newest justice, the U.S. Supreme Court has given criminal defendants something most Americans assumed they already possessed: the right to offer evidence that somebody else committed the crime." But the opinion didn't even go that far. It probably went as far as to guarantee "the right to offer evidence that somebody else committed the crime without being limited by the trial judge's opinion that the defendant is pretty clearly guilty."
Alito’s opinion for the Court said that you can't exclude defense evidence "under rules that serve no legitimate purpose or that are disproportionate to the ends that they are designed to promote." So what's the message to state prosecutors and judges? Don't do anything as ridiculous as South Carolina did here in preventing a defense case, but if you have some "legitimate purpose," you're probably OK.
At a time of near-daily exonerations, the Court needed to send a stronger – yes, broader -- message to state prosecutors and courts: "Criminal defendants need to be able to put on a real case so the adversarial process can work. Don't use these third-party guilt evidentiary rules to screw around with that, or you're going to be retrying a bunch of cases." In slightly more eloquent language. Instead the message was narrow and unanimous mush.
A pro-criminal defendant ruling, reversing the Supreme Court of South Carolina (Holmes): narrow. Even if we rule in their favor occasionally, we better make sure the ruling doesn't get out of control. A pro-employer ruling reversing Judge Reinhardt and the Ninth Circuit (Ceballos): broad. No such worries. And that's been the fear all along: that ideology, more than judicial modesty, would drive the Roberts Court.
Posted by Jason Solomon on June 8, 2006 at 11:02 AM | Permalink
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Comments
I believe I have given you a response already: Kennedy wrote the opinion, not Roberts. Kennedy and Roberts are two different people.Please, God, let that still be readily apparent in twenty years...;)
Posted by: Simon | Jun 8, 2006 1:29:15 PM
[Simon's comment] just doesn't explain Ceballos itself, unless you have a response to my suggestion in hypothesis #3 as to how that case could easily have been decided narrowly and unanimously.
But your Hypothesis #3 (sounds like a Jean Michel Jarre song, doesn't it?) is offered on the premise that Roberts' primary goal is, in fact, narrow and unanimous decisions for their own sake. If you're right, and Roberts really was saying at Georgetown that he was a Sunsteinian minimalist, then sure, it's hard to explain a result like Garcetti. But what I suggested yesterday is that to so interpret Roberts' mistakes may be mistaken in a way that renders Hypothesis #3 moot.
Posted by: Simon | Jun 8, 2006 1:28:26 PM
Jason,
I believe I have given you a response already: Kennedy wrote the opinion, not Roberts. Kennedy and Roberts are two different people.
Posted by: Orin Kerr | Jun 8, 2006 1:19:21 PM
Orin and Simon,
Absolutely my ideological perspective affects my analysis. How about you guys? But I'm not cultivating an image, which so far the media and others seem to be accepting uncritically, as a lawyer's lawyer who decides cases narrowly, deciding only what is necessary, and calls balls and strikes without respect to my personal preferences. The Chief Justice is.
Would still welcome a response to why Ceballos wasn't decided consistent with that philosophy, as I suggested in my hypothesis #3 in the Ceballos post -- a solution that was plainly available to the Court, with Roberts in the majority.
Posted by: Jason Solomon | Jun 8, 2006 12:57:12 PM
Jason,
I promise I'll stop harassing you soon, but I wonder if you think your own ideological perspective is impacting your analysis (and if so, how).
Posted by: Orin Kerr | Jun 8, 2006 12:37:06 PM
Simon,
My apologies for not responding yesterday -- busy defending myself from Orin K's attacks -- I mean, quite legitimate points.
I thought your comment yesterday -- indicating that perhaps it was irreconcilable differences that explained a 5-4 broad ruling like Ceballos, and that a broad, clear ruling was a second-best virtue in the absence of unanimity -- was interesting and quite worth taking seriously, and I agree with much of it as a general matter. But it just doesn't explain Ceballos itself, unless you have a response to my suggestion in hypothesis #3 as to how that case could easily have been decided narrowly and unanimously.
Posted by: Jason Solomon | Jun 8, 2006 11:47:34 AM
Do I take it that my suggestion of an alternative explanation other than "it appears that Roberts' conservative ideology may have trumped his stated preference for narrow, unanimous rulings" is not worth taking seriously? "Where Intellectual Honesty Has (Almost Always) Trumped Partisanship Since 2005."
Posted by: Simon | Jun 8, 2006 11:25:59 AM
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