Once you accept that SCOTUS behaves as a constitutional policymaking body, you won’t be surprised that originalism is used situationally and strategically. That means that any claim that one methodology is “more binding” or “constraining” than any other is simply impossible to demonstrate to be true.

With the presiding judge next to him, Steve Bright goes after the Texas Ct. of Criminal Appeals for upholding death sentences when court-appointed lawyers slept through trial: “If a sleeping lawyer is competent counsel, then there really is no such thing as incompetent counsel.” This event took place on Mar. 13, 1999, at @UofMaryland @UMDLaw on Gideon v. Wainwright. @ABAesq

On this fine day, I am doing research into the backgrounds of judges in Georgia who belonged to segregationist groups, helped keep numbers of black citizens in jury pools low, and looked the other ways as prosecutors rigged all-white juries in capital trials vs black defendants. A lot of people think this stuff only happened before the civil rights movement but we’re talking about jury rigging well into the 1980s and 90s, exacerbated by the war on crime. One segregationist judge was elected in 1964 and didn’t go senior until 1989.

Just a quick read, but it’s clear this Court will often cast facts in the light most favorable to the worshipper, backing away from the endorsement test and embracing the coercion test quietly (see how often Gorsuch insists no one is forced to pray with the coach).

https://twitter.com/scotusblog/status/1541421786759413760

Here’s more from @dorfonlaw that digs more deeply into the doctrinal significance of Gorsuch’s originalist moves.

https://twitter.com/dorfonlaw/status/1541437048653074433

Stinney, a 14-yr-old black boy, was wrongly convicted of killing two white girls by an all-white jury and sentenced to death. The main evidence was his coerced confession. His court-appointed lawyer called no witnesses and asked no questions of the state’s witnesses.

https://twitter.com/N0rbertElekes/status/1540547393233358849

His conviction was vacated posthumously in 2014 by a South Carolina judge during a coram nobis action. reuters.com/article/us-usa…

Reva: “Far from setting aside politics in favor of a neutral interpretation of law, Alito’s decision reveals how conservative judges encode movement goals and values under cover of highly selective historical claims.” washingtonpost.com/outlook/2022/0… “A judge’s turn to the historical record can just as easily disguise judicial discretion as constrain it.”

Quoted in this ⁦@johnkruzel⁩ piece for ⁦@thehill⁩, along with ⁦@ProfKFranke⁩, Joe Blocher, ⁦@dorfonlaw⁩, Erwin Chemerinsky. thehill.com/regulation/cou… Sudden illness or death, an angry populace, more independent colleagues, a dramatically altered political landscape—all could come down the road.

Did Alito leave in his cites to the witch burner? Of course he did. Dobbs must be turned into an infamous decision through politics, just like Plessy, Korematsu, or Lochner. Alito really really liked leaning on Hale, noted witch burner and proponent of the marital rape exception. Didn’t care whether it persuaded anyone.

Clinton, Obama, Biden—all Dems, all lawyers, all limited in key ways when a broad vision is necessary to meet the urgency of the times. Each was able to acquire power, even hold on to power, each was an outsider who became an insider. But the true populist with a vision is the one capable of reconstructive politics. The hunger is there for transformative leadership. The need is real. We just haven’t seen it.

It’s true that what one social movement and some judges give, a different social movement and different judges can take away.

https://twitter.com/mark_tushnet/status/1540394237807714306

Anyone else ready for a constitutional convention? Maybe women’s rights can finally be written into the Constitution beyond the vote. We can completely redesign the Senate and Judiciary while we’re at it.

Some of the most illegal and unconstitutional things are done out in the open, sometimes (as here) in an effort to invoke a higher law tradition. Such actors hope there is little resistance, which they will treat as tacit approval.

https://twitter.com/ZcohenCNN/status/1539780434392915971

There is a great deal of rhetoric about popular sovereignty that distinguishes between cabals and conspiracies on the one hand and citizens gathering openly and virtuously—albeit illegally.

Shorter title: “John Eastman was right”

https://twitter.com/HarvLRev/status/1495130316218023942

👀

Today is the anniversary of EO 9066, which led to the mass confinement of people of Japanese ancestry in America. But when it comes to precedent, what can be done can also be undone. wapo.st/3I7sC48 For further reading: bit.ly/34TA0Sj

The very nature of judicial review—backward-looking, tending toward caution and based on incomplete facts—shows it to be a cumbersome way to curb or even evaluate the assertion of emergency power—intended to be preventative and aimed at a broad-based threat. We could hold government to the facts known to policymakers and force them to be “internally consistent,” as challengers to the admin’s vaccine mandate demand, but that would also strip an agency of power and flexibility for threats that change quickly. Formalism over function.

Today’s writing inspiration: Charles Ogletree, known affectionately as “Tree” to friends. Ogletree, an alum of PDS, taught at @Harvard_Law. In 1990, Tree, Steve Bright & Bryan Stevenson worked on the appeal of James Ford, who had an IQ of 73 and was under a death sentence. During Ford’s trial, the prosecution used 9/10 peremptory strikes against black jurors. Ford was a black man accused of killing a white woman. His lawyers knew that local prosecutors had a reputation for aggressively removing black jurors so they filed a pretrial motion. /2

Welcome to new followers! I tweet about con law, legal history, and political theory. I’m writing a book about Steve Bright, former public defender who ended up as one of the greatest death penalty lawyers of his generation. You’ll see some tweets about that project too. My book offers a kind of intellectual history of the ideas that mattered in the decades after SCOTUS reinstated the death penalty in 1976. What worked, what didn’t? We go from triage to the development of key principles: fairness, equality, effective representation.

For those interested in criminal justice reform, here’s a thread on some of our constitutional tweaks in the @DemJournal draft Constitution. The first set of changes is to try to reduce coerced confessions by excluding them unless their substance can be confirmed in open court. This will surely be harder to do and so will probably reduce reliance on confessions alone. We also incorporate and expand Brady to help with the asymmetrical access to evidence and resources in the criminal justice system. /2

Reform of SCOTUS:
1. Always an even number of justices and no fewer than 8
2. 16-yr term limits
3. Congress allowed to establish other term limits for lower court judges
4. No nationwide injunctions by a single judge … @DemJournal bit.ly/3pGKnyT 5. No Act of Congress may be invalidated unless 3/4 of justices agree
6. If threshold met, Congress given 18 months in which to remedy through further legislation unless “manifestly” unconstitutional—in which immediate injunction may issue.

On this Veteran’s Day, many are worried about a coup by the president. Let’s be watchful but trust the patriotic and law-abiding citizens among us to do their jobs as professionals. There are certainly alarming things about Trump’s post-election rhetoric and that of his allies. /2 Repeatedly claiming the election was rigged is disgraceful and anti-democratic. It sows suspicion and division. It raises outsized hopes that the will of the people will somehow be overthrown. Such language undermines our institutions.

So this is Trump’s final Hail Mary: an assault on mail-in voting by invoking Bush v. Gore. But this would bring down the entire election in PA. I also see no limiting principle to prevent such a precedent from also invalidating mail-in voting systems in other states.

https://twitter.com/carriesheffield/status/1325926306371039233

Another problem with this radical reading of Bush v. Gore is that it uses the idea of equality to dismantle a system of voting created in advance by the state, rather than to stop a state official from changing recount standards after people have voted.

4th Cir denies QI where 5 officers shot a man 22 times as he lay motionless: “Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives.” bit.ly/3cWyDk4 /2 The man was apparently homeless and walking, but had committed no offense. The cops initiated the encounter, demanding that he provide ID and asking if he had a weapon. He did have a knife on him and so he asked a clarifying question. Things went sideways from there.