My Secret Plan
An email conversation about the news of the day.
June 24 2002 5:51 PM


Dear Dahlia,


Today's decision in Ring v. Arizona— which will set aside hundreds of death sentences—is another aftershock from the court's decision two terms ago in Apprendi which wrecked havoc with the "modern" idea that sentencing judges could more efficiently than juries determine additional facts that enhance the sentence. The 5-4 Apprendi majority found that the right to jury trial precluded many aspects of the "efficient" system of sentencing by judges. The most frequent comment on Apprendi concerns what many saw as its "strange" lineup with Justices Scalia, Thomas, Ginsburg, Souter, and Stevens making up the majority. But it was not strange at all. This split is between the Legalists and the Pragmatists. Speaking very loosely, the two Legalists of the right (Scalia and Thomas) joined with the three Legalists of the left (Ginsburg, Souter, and Stevens) to uphold the strict application of the Sixth Amendment jury-trial right, while the four most Pragmatic justices (Breyer, O'Connor, Kennedy, and the Chief) opted for a more efficient, practical, workable system, as they saw it. I think we will see this split more often in criminal cases—the old right/left lines are breaking down. I will return to this subject tomorrow, after I've had a chance to digest today's post-Apprendi decisions. Meanwhile …

Can I get in one more e-mail that's not mostly about Supreme Court decisions? My secret plan was to use this Slate gig to launch myself on a fresh, non-law career. This dream ("Newly Discovered Social Commentator Rivals Moliere for Wit, Insight") has so far gone nowhere, buried by end of the term legal opinions. I yearn to speak of sports and culture and art, subjects on which no one wants to hear from me for the trivial reason that I don't actually know anything about them. But since Slate will be left with a lot of blank space unless it runs this last-minute submission, I'll seize the moment to play critic.

As I said last week, I rarely get beyond the sports pages at breakfast, but there is actually a lot of culture and politics to be found there these days. Was I the only person who felt bad about the U.S. soccer team's recent World Cup victory over Mexico? Do we have to be No. 1 in everything? The pictures of grown men in tears in the streets of Mexican towns took away my pleasure.Does this mean that I am a bad American, or even worse, a patronizing one? At any rate, by the time of the U.S.-Germany match, I was totally back with the program ("USA! USA! USA!").

The Holy Grail of all sports records is Joe DiMaggio's 56-game hitting streak, so a recent story caught my eye. It seems that a Florida Marlins baseball player, Luis Castillo, hit safely in 35 consecutive games, the 10th longest streak ever. Then comes this startling sentence: "The 26-year-old Castillo also surpassed the longest hitting streak by a Latin player, beating the 34-game hitting streak of Benito Santiago in 1987."

Longest hitting streak by a Latin player? What is that all about? According to Sunday's New York Times, "Castillo got a standing ovation after his hit, and the ball was taken out of play to commemorate the Hispanic record." The emergence of many Latin players to stardom in major league baseball has been remarkable (i.e., literally: a thing worthy of being remarked upon) and well worth celebrating. And I'm not always averse to taking account of race. So, then, what bothers me? Is it the quasi-official nature of this "record keeping"? (Will some future baseball commissioner have to rule on who qualifies as "Hispanic")? Will we soon see records set for "most rebounds by a white player"? Isn't this a bad idea?

OK. That's it. Back to law for tomorrow.


Walter Dellinger is a professor of law (on leave) at Duke University and a partner in the appellate practice at O’Melveny & Myers in Washington, D.C.



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