Today in Supreme Court History: October 4, 1965

10/4/1965: Justice Abe Fortas takes the oath.

Justice Abe Fortas

Comments

[Dan Schiavetta]

Buntion v. Lumpkin, 142 S.Ct. 3 (decided October 4, 2021): stay of execution denied; Breyer doesn’t dissent but notes the “serious legal and practical problem with the death penalty as it is currently administered”; in 1890 the Court said waiting on death row for even four weeks was “one of the more horrible feelings to which a person can be subjected”, and Buntion had been on death row for 30 years, which is in itself cruel and unusual punishment (Buntion, age 78 and infirm, wasn’t executed for another six months due to illness; his murder of cop was revenge for death of his twin brother during a police shootout)

[JoeFromtheBronx]

Breyer's dissent in Glossip v. Gross includes delays and long times on death row as one of the reasons he believes the death penalty as practiced in the United States is likely unconstitutional.

Breyer was joined by Ginsburg in that dissent. Justice Stevens also addressed that specific issue over the years.

[Malika]

It seems a bit chutzpah for those who support a rigorous set of appeals and procedures in capital punishment cases to then argue the time before sentence is carried out is cruel and unusual.

[JoeFromtheBronx]

The dissent discusses the issue.

A “rigorous set of appeals and procedures” need not mean three decades. Governments regularly are to blame for the delays.

Also, if the only way to validly retain a practice is to retain various other problematic ones, it helps in determining if it is worth it.

[verochkax]

The delays are due to leftists coming up with new bullshit arguments each time.

[Noscitur a sociis]

Fortunately, there’s one simple trick anyone can use to avoid these delays!

[Noscitur a sociis]

Also, this:

in 1890 the Court said waiting on death row for even four weeks was “one of the more horrible feelings to which a person can be subjected”

is not true. (It’s Breyer’s error, not yours). The feeling the court was describing was being under sentence of death without knowing when the execution is supposed to take place.

[Dan Schiavetta]

You’re correct, though the distinction is between different kinds of horrible.

The fuller quote from 1890 is, “when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it, which may exist for the period of four weeks, as to the precise time when his execution shall take place.” In re Medley, 134 U.S. at 172. There the Court struck down a statute that required the time of execution to be kept secret from the condemned. I don’t know which is worse — that, or being on death row for 30 years.

[Noscitur a sociis]

There the Court struck down a statute that required the time of execution to be kept secret from the condemned.

No, it didn’t. It held that the change in procedure was significant enough that it couldn’t be applied retrospectively to a crime committed before the statute went into effect.

[JoeFromtheBronx]

The full Breyer quote:

We have described even four weeks of waiting in prison under the threat of execution as “one of the most horrible feelings to which [a person] can be subjected.”

The cited case specifically concerned not knowing when you will die. But, the person "under the threat of execution" still does not know that. Breyer is concerned about more things about a long stay on death row. The quote holds all the same.

[apedad]

O/T

OK, who’s father is this?

1947 War Department film: https://www.youtube.com/watch?v=42X_eAOU4DU

[Dan Schiavetta]

If you mean spiritual father, it's the father of the modern Republican Party.

[JoeFromtheBronx]

It reminds me of the candidate Loretta Young ran against in "The Farmer's Daughter."

[Frank Drackman]

I know it’s a Cover of Merle Haggards original, but Fleetwood Mac’s version of Farmers Daughter will be my “Walkup Music” in a future life where I’m a left handed MLB Second Baseman (in the Bizarro MLB where Northpaws are the “crafty” Space Cadets and the best Ath-uh-letes play Second Base, turning that 4-6-5 double play)

Frank

[JoeFromtheBronx]

Abe Fortas was appointed counsel (assisted by John Hart Ely Jr.) in Gideon v. Wainwright, the famous right-to-counsel case.

Fortas's wife was upset that he took a major pay cut to be a justice. LBJ still kept Justice Fortas as a close advisor. He later unwisely chose him as Warren's replacement.

Arthur Goldberg, the justice Fortas replaced, was still around in the 1980s. He opposed the nomination of Robert Bork.

Fortas was pressured to resign, including by Chief Justice Warren, for conflicts of interest more minor than present for at least one current member of SCOTUS.

[Malika]

"Fortas later resigned from the Court after a controversy involving his acceptance of $20,000 from financier Louis Wolfson while Wolfson was being investigated for insider trading. The Justice Department investigated Fortas at the behest of President Richard Nixon. Attorney General John N. Mitchell pressured Fortas into resigning."

Resigned. Clearly the "impeachment is the one and only tool" wasn't the norm back then!

[Dr. Ed 2]

That ended when Clinton didn't resign.

I still can't believe that Clinton didn't.

[Frank Drackman]

Resign for what? being awesome?
Ok, like Barry Hussein said, he didn't do as much stupid shit as "GHWB" or "W" or Parkinsonian Joe
and never voted for him, voted Perot in 92' and sat out 96', getting back from Italy too late to request an absentee, OK, I voted for "W" in 00' and 04', in Florida (what was the alternative? I mean AlGore or Lurch, not the 57 other states) yes, I'm one of the 538 Floridians who gave you 20+ years of Wah in the Middle East, you're welcome.

Frank

[not guilty]

I have long believed that Bill Clinton survived impeachment for two important reasons.

(1) His most prominent enemies, such as Newt Gingrich, Tom DeLay and Kenneth Starr, were loathsome. That helped to shore up support from Democrats who were otherwise none too fond of Clinton. (It likely helped keep Hillary on board as well.)

(2) His critics emphasized character flaws which the voting public had already twice taken into consideration when they elected him. The electorate knew in 1992 and 1996 that Clinton had zipper problems and was sometimes casual about telling the truth, but they nevertheless preferred him to his opponents.

[Dan Schiavetta]

You might add that there was no “high crime or misdemeanor” by any stretch of the imagination.

[Alpheus W Drinkwater]

My imagination can stretch to include perjury as a high crime or misdemeanor. Did President Clinton commit perjury while in office?

[Dr. Ed 2]

Wasn't he writing LBJ's speeches???

[SRG2]

Re: Gideon

IT’s the kind of case where one might suspect that modern conservative jurisprudes would think it worthy of overturning. I did a quick search to find any support for my suspicions, and lo!
https://ballsandstrikes.org/law-politics/supreme-court-gideon-v-wainwright-conservative-legal-movement/

This is of course a partisan article, but the point remains.

[Bob from Ohio]

The 6th Amendment says zero about the government paying for counsel, just that you have a right to one. You have a right to free speech, does the government have to buy an indigent person a computer or bullhorn? Does the government have to buy an indigent person a firearm?

Its just a typical Warren Court feelings case, un-moored from anything in the actual constitution. Might be good policy but its not required by the Constitution.

[Krayt]

Do you want people jailed because government can out-trick a poor person with no lawyer? Feeling ripped off because that can't happen anymore is not a noble sentiment.

[Bob from Ohio]

You are making a policy argument. States and Congress are free to provide appointed counsel.

Its not required by the US constitution though.

[bernard11]

My non-lawyer opinion is that the right to due process implies a right to have the government provide counsel.

Who imagines that an indigent defendant is going to get due process without one?

[verochkax]

Most poor people in America are immoral and stupid, so yes, I’d love to lock them up or even have them killed by the state.

[JoeFromtheBronx]

Previous courts also protected a right to a government-provided counsel, if to a more limited degree. These opinions were regularly joined by and sometimes written by conservative-leaning judges.

The accused is also not denied a right to a jury if they are unable to pay for one. They can be charged if they have the means.

The 1A speaks of abridging freedom of speech. A right “to have” speech is not similarly cited. The right to counsel (or a jury) sounds more like a positive right; the 1A is a negative one.

The 2A is also framed negatively though I suppose if a militia is so essential to a free state, it would be problematic if those too poor to buy a firearm will be denied.

Maybe, there is a governmental duty to maintain a militia, including providing everyone qualified the ability to take part.

[apedad]

That's not a bad point BfO, but since the Bill of Rights is aimed at the govt's powers/authorities, one could read 6A as:

In all criminal prosecutions (IT WILL BE THE GOVT'S RESPONSIBILITY TO ENSURE), the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

You often point to 2A but nowhere does it address "Congress" or "Government," yet you regularly complain about purported rights abridgments.

[Bob from Ohio]

(IT WILL BE THE GOVT’S RESPONSIBILITY TO ENSURE)

But those words are not in 6A. That's the whole point, the Gideon court read words into it that are not there.

[David Nieporent]

The 6th Amendment says zero about the government paying for counsel, just that you have a right to one. You have a right to free speech, does the government have to buy an indigent person a computer or bullhorn? Does the government have to buy an indigent person a firearm?

The 1A and 2A are phrased in the negative: that the government shall not infringe/abridge on pre-existing rights to speech/weapons. Not paying for those things for someone doesn't infringe on the rights. The 6A is phrased in the affirmative: that a defendant has the right to the assistance of counsel. If the person is indigent and the government doesn't pay for it then the person doesn't have the assistance of counsel.

Its just a typical Warren Court feelings case, un-moored from anything in the actual constitution.

The right to counsel provided by the government was first established by SCOTUS in 1932, when Earl Warren was just a local DA. The Warren Court expanded it but did not conjure it.

[Noscitur a sociis]

The point being… what?

[Sarcastr0]

It's a legit criticism of originalism if it leads to unjust results. Maybe you don't think it's unjust, but that is itself a lift to argue, at least in a legal audience.

Baude's said Gideon is unconstitutional as he sees it, and that troubles him. Just not enough to stray from pushing his method of interpretation.

[SRG2]

It’s a legit criticism of originalism if it leads to unjust results.

Consider that Rehnquist and Scalia et al in Herrera v Collins thought that executing an innocent man wasn’t unconstitutional if the man had received due process and neither apparently stopped to think that if that were the case, their view on constitutional rights was deficient.

[Noscitur a sociis]

I guess it's theoretically possible that you're dumb enough to misunderstand the opinion in that way, but it's far more likely that you're just trying to trick other, dumber people.

[JoeFromtheBronx]

Rehnquist, to retain a majority, assumed "in a capital case, a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional."

He stated the high test required was not met. He also noted Texas provided an alternative means to deal with the situation, specifically clemency proceedings.

Scalia/Thomas more firmly denied "a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction."

I'm not sure what "executing an innocent man wasn’t unconstitutional if the man had received due process" entails anyhow. The very question is WHAT due process is required.

Also, the government might unconstitutionally execute an innocent person even if no right to a judicial hearing exists.

[The Margrave of Azilia]

The Gideon case incorporated, against the states, the 6th amendment requirement of criminal defense lawyers for the poor.

Before then, the rule was that this right applied in federal court, and sometimes in state court where the Supremes thought the case was significant enough. An unsustainable situation with no constitutional basis for the discrimination.

Actual enforcement means the lawyer needs to be competent and attentive to the poor client, which sadly is not guaranteed. I mean, it's guaranteed in theory but has been known to be violated in practice.

[Bob from Ohio]

Weirdly, Goldberg quit after 3 years to become UN Ambassador. Unimaginable now.

[not guilty]

Lyndon Johnson, who wanted to appoint his friend and sometime lawyer Fortas, could be quite a persuasive fellow.

[Frank Drackman]

One of the most popular figures of the professional wrestling boom during the late 1990s and early 2000s, Goldberg is credited with inventing the spear signature move in wrestling, which he popularized, and for which he gained a reputation for being the best at executing the move. He rose to fame in WCW with a lengthy undefeated streak in singles competition from 1997 to 1998, became the highest paid WCW wrestler, and led the company as its franchise player and public face until it was sold to WWE. During his time with WCW, he became a one-time WCW World Heavyweight Champion, two-time WCW United States Heavyweight Champion, and one-time WCW World Tag Team Champion (with Bret Hart). Along with Hart, he is the fifth WCW Triple Crown winner.

[The Margrave of Azilia]

John Jay left the court to be Governor of New York, but he stayed on the Court while negotiating a treaty with Britain, and if he’d known what the UN would be he wouldn’t have left either his court or gubernatorial job to get involved with that outfit.