Today in Supreme Court History: November 13, 1856

11/13/1856: Justice Louis Brandeis's birthday.

Justice Louis Brandeis

Comments

[Dan Schiavetta]

United States v. Bormes, 568 U.S. 6 (decided November 13, 2021): dismissing lawyers’ class action alleging Fair Credit Reporting Act violation of privacy (federal filing fee receipts display last four digits and expiration date of lawyer’s credit card) because sovereign immunity not waived

Ayers v. Belmontes, 549 U.S. 7 (decided November 13, 2006): no error in judge not specifically instructing jury to consider future mitigating circumstances in sentencing (here, that defendant would lead a constructive life if incarcerated as opposed to executed), where evidence and argument was presented by defense counsel; death sentence reinstated (the defendant, who during a burglary unexpectedly encountered the 19-year-old victim and struck her head 15 to 20 times with a dumbbell, went up to the Court again on an ineffective assistance of counsel argument in 2009; eventually died on death row of natural causes in 2017) (so did those extra years end up being “constructive”?)

In re Amendments to Rules 1 and 10, 108 U.S. 1 (decided November 13, 1882): Waite amends Court rules as to costs for a copy of the record; he gifts us with a history of the clerk’s practices under the old rule (this boring disquisition suited Waite’s literary talents; as Frankfurter pointed out, “the stuff of the artist was not in him”)

[Drewski]

"so did those extra years end up being 'constructive'"

Well, they resulted in an established precedent, I guess, adding to the body of death penalty jurisprudence. Prospectively I think it's fair to say that the odds are infinitely higher of a constructive life if one is alive, rather than dead (it is similarly true of a harmful life). Of course, this is an argument for a legislature rather than a court.

[Dan Schiavetta]

Reminded me of the Karla Faye Tucker situation, if you’re a certain age.

[JoeFromtheBronx]

I await, somewhat pessimistically, to see what President Biden will do regarding those on federal death row. Trump, with the help of the conservatives on the Supreme Court, had an execution spree as part of his closing swang song in his first term.

[Dan Schiavetta]

One of the things that embarrasses me about being an American is the fact that we still have a death penalty at all.

[Noscitur a sociis]

The Trump administration carried out the executions of:

-A Neonazi who tortured and killed a couple and their 8 year old daughter to steal money and guns he intended to use to start a white supremacist revolution

-A man who confessed to kidnapping, raping, and murdering a 16 year old girl after his arrest for murdering an 80 year old woman

-A drug dealer who murdered two witnesses to prevent them from testifying against him, along with the girlfriend of one of them and her 10 and 6 year old daughters

-A man who murdered a woman and her 9 year old granddaughter in a carjacking

-A man who kidnapped, raped, and murdered a 10 year old girl

-A man who broke into his neighbor’s house and raped, tortured, and murdered her

-Two men who carjacked a young couple, robbed them, shot them, and set them on fire in their car

-A man who (along with multiple accomplices) kidnapped, repeated raped, and murdered a teenage girl

-A man who spent weeks torturing and sexually abusing his 2 year old sighted before murdering her

-A woman who kidnapped a pregnant woman, murdered her, cut the baby out of her womb, and kidnapped the baby

-A drug dealer who murdered seven people to further the interests of his gang

-A man who murdered three women after one of them rejected his sexual advances

Which of these people are you embarrassed to no longer have with us?

[apedad]

The embarrassment comes from the method of punishment and these terrible people would still not be "with us" as they rotted in federal prison.

The death penalty is a CHOICE we society make and some of us abhor that choice since it is US (as a society), that makes that decision.

Just because these convicted criminals chose to kill doesn't mean we have to choose to kill.

[Noscitur a sociis]

The embarrassment comes from the method of punishment

What is embarrassing about punishing any of these people in the way we did?

and these terrible people would still not be “with us” as they rotted in federal prison.

Where would they be?

The death penalty is a CHOICE we society make and some of us abhor that choice since it is US (as a society), that makes that decision.

I certainly agree that societies can choose not to apply the death penalty, since many of them have made made exactly that choice. My question is why the fact that our government chose to respect life and dignity enough to impose the ultimate sanction on our most heinous criminals would make you embarrassed to be from this country.

[apedad]

Because we’re better than murderers.

[apedad]

And since these were federal cases (I'm assuming since we're talking about Pres. Biden's potential commutation), can we get Pubius or Jesushasgreeneyes or Bob from Ohio to lead us in a big THANK YOU to the FBI and/or Dept. of Justice for bringing these criminals to justice?

[Noscitur a sociis]

Trump’s (really Bill Barr’s) success at carrying out the just punishment lawfully imposed on some of our most heinous criminals was one of the great recent triumphs for the rule of law.

If I thought for a second that Biden’s “opposition” to the death penalty was anything but politically convenient, I’d at least admire the courage of his convictions if he commuted the sentences on his way out. It’s not, and he won’t.

[JoeFromtheBronx]

Multiple of the cases had concerns that were rushed without normal appellate review.

The proper way to restart executions after having three (including McVeigh) in sixty years was to have a careful appellate review. They had four years. It was possible to do it right.

How "just" the whole punishment thing is a wider issue but just that was egregious.

The use of scare quotes is ungrounded. You can disagree with his position, but for one thing, it is unclear how "politically inconvenient" a complete opposition is in a nation that supports the death penalty in certain narrow cases.

Why someone who is a Catholic, who for years was wary about abortion [his views bothering some pro-choice people] probably for that reason, is assumed not to have honest opposition to the death penalty is unclear to me.

President Obama, who supported the death penalty for certain crimes, on that front had the more "politically convenient" position.

[JoeFromtheBronx]

Regarding why he would not just commute everyone’s sentences, I will leave that to him, but a reasonable guess is that he would not feel it right as a matter of overall practice for the president just to commute everyone.

Obama and Biden, for instance, carefully processed commutations and pardons. People criticized how slow it was but it was deemed the appropriate way to do it procedurally. A blanket commutation would be a significant change of policy.

He thought the proper way to end the death penalty was legislatively. People repeatedly criticized him for trusting the normal political process when it would be impossible given often Republican opposition but that reflects his lifelong career, including his until recently opposition to ending the filibuster.

Given the stakes, I hope he does commute the sentences, but it appears unlikely considering everything.

[John F. Carr]

How many blanket pardons have we had in American history?

Carter pardoned draft dodgers. Biden pardoned marijuana possessors. Was there a mass pardon after the Civil War?

[Dan Schiavetta]

Those pardons were based on generalized offense, not the punishment. (And both were empathetic, healing gestures.)

[Noscitur a sociis]

The use of scare quotes is ungrounded. You can disagree with his position, but for one thing, it is unclear how “politically inconvenient” a complete opposition is in a nation that supports the death penalty in certain narrow cases.

That’s precisely why it’s politically-convenient: he said the right things to get leftist extremists on board, but refused to actually follow through when it would have upset people, as with the Boston marathon bomber of the West Side Highway terrorist attack.

Why someone who is a Catholic, who for years was wary about abortion [his views bothering some pro-choice people] probably for that reason, is assumed not to have honest opposition to the death penalty is unclear to me.

Well for one thing, he introduced a senate bill to reintroduce the federal death penalty all the way back in 1991.

[JoeFromtheBronx]

I recently re-read Free Speech in Its Forgotten Years, 1870-1920 by David Rabban.

One thing covered is Justice Brandeis’s concern about free speech as part of the development of an individual in a free nation. For instance, in Whitney v. California, his concurrence put this into the minds of “those who [fought] our independence”:

They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.

Brandeis also was of central importance in the development of a right to privacy, both a common law (his famous article) and constitutional based one. His famous dissent in Olmstead v. U.S. is most known but there were other opinions honoring privacy.

The overlap of the two concerns is suggested by his dissent in Gilbert v. Minnesota regarding advocacy against military enlistment:

the statute invades the privacy and freedom of the home. Father and mother may not follow the promptings of religious belief, of conscience, or of conviction, and teach son or daughter the doctrine of pacifism.

He joined the Meyer and Pierce cases that later served as precedents to a constitutional right to privacy.

[David Nieporent]

Brandeis was a progressive and had a progressive's view of free speech: that it was an instrumental good, rather than a moral one. It was important to democracy, so it needed to be protected.

[Dan Schiavetta]

Contra Brandeis, the idea that free speech allows truth to be discovered has been disproven in recent years, and especially with the recent election, which was based on pervasive disinformation spread by the free press about Trump, Biden, Harris, and the state of the world and the state of the economy. A good article on this appears in today’s New Yorker.

https://www.newyorker.com/news/the-lede/republican-victory-and-the-ambience-of-information

[Noscitur a sociis]

What would you propose we do about it?

[JoeFromtheBronx]

Isn't Holmes's "marketplace of ideas" rhetoric more of a concern here? Either way, free speech helps truth to be discovered.

The fact a tool is of limited value does not mean it lacks value.

Brandeis allowed for libel laws and the like. Discussion on how freedom of speech needs to be regulated and practiced to address disinformation is an important subject addressed by numerous people, including a book recently negatively reviewed on this blog as well as the writings of people like Rick Hasen.

[Dan Schiavetta]

Steve Bannon said, unapologetically, “let’s flood the zone with shit”, and that’s what they did. What’s the solution? For the opposition to do likewise? Unfortunately the ideas of inclusion, tolerance, understanding and curiosity don’t do well in the (literal) marketplace of ideas against hatred, belligerence, divisiveness, and catering to people’s worst instincts and preconceived notions. The article linked to provides the evidence for that. In the era of “I’m paying for this microphone” and unlimited dark money, I don’t see a solution.

[The Margrave of Azilia]

"Unfortunately the ideas of inclusion, tolerance, understanding and curiosity don’t do well in the (literal) marketplace of ideas against hatred, belligerence, divisiveness, and catering to people’s worst instincts and preconceived notions."

So dare I ask, who is the spokesperson for inclusion, etc.?

[Dan Schiavetta]

It’s not Democrats who talk about “vermin” who are “poisoning the blood of our country”. It’s not Democrats who dispute verifiable facts about climate change.

[The Margrave of Azilia]

I didn't vote for Trump, and I'm not claiming for him the positive attributes you mentioned. What has your half of the duopoly done to merit the compliments you showered on it (inclusion, tolerance, etc.)?

[JoeFromtheBronx]

RIP Ted Olson.

https://www.washingtonpost.com/obituaries/2024/11/13/ted-olson-lawyer-bush-gay-rights-dead/

He was the "Olson" in Morrison v. Olson. His third wife died on one of the planes on 9/11/01. On his birthday. Ouch.

[Dan Schiavetta]

Yes, irony bit him rather too hard for what he did in Bush v. Gore. And his wife did apologize (to some extent) for the hatchet job she did on Hillary Clinton.

[The Margrave of Azilia]

I don't understand...God struck Olson's wife dead because Olson won Bush v. Gore in the Supreme Court?

[Dan Schiavetta]

9/11 would not have happened under a President Gore. And in the Bush Administration you could get fired for being gay. Such as the guy who could have translated the “tomorrow is zero hour” message intercepted from a known Al-Qaeda agent on Sept. 10, 2001. I think that’s why Olson unexpectedly went to bat for gay rights in the Perry v. Schwarzenegger case in 2009.

[Noscitur a sociis]

A great lawyer and a great man. Ave atque vale.