Why Judicial Independence Is a Good Thing
From: Walter Dellinger
To: Dahlia LithwickPosted Thursday, June 20, 2002, at 11:06 AM ET
Who are these people?
Dahlia,
I may be going out of turn here, but I have one more thing that I wanted to engage you on before the Supreme Court starts handing down opinions this morning. As I suggested at the end of my last e-mail, I am troubled by the California decision to set aside the second-degree murder conviction of Majorie Knoller—whose Presa Canario dogs mauled beautiful young soccer coach Diane Whipple to death. Are you troubled by it? Or, alternatively, are you troubled by the extraordinary outpouring of condemnation of the judge who made the decision? I'm troubled by both. Knoller and her lawyer husband are truly reprehensible, and my gut would like to see her serve more than the four-year maximum penalty she will now get for manslaughter. But I'm just not sure the judge was wrong to rule out murder. I'm no expert on California criminal law, but the standard for murder—even of the second degree—is usually very high and requires intentional killing or something close to intentional—like shooting for the hell of it into a crowd—that is likely to cause death. And if the judge is even close to being right as a matter of law, his extraordinarily unpopular decision is an act of courage.
It made me think of To Kill a Mockingbird. Harper Lee's novel makes defending unpopular criminal defendants a real easy choice, because Tom Robinson, the accused rapist, is not only innocent but "quiet, humble, and respectable" and even selfless in his efforts to help out the white woman who turns on him. He is despised in the (white) community, but, we readers know, unfairly so and for the worst of reasons. In the California case, by contrast, the community is surely right to despise the despicable Knoller and her equally repugnant husband. But if Mockingbird's much-beloved message about adherence to legal rules means anything, it has to apply to the truly ugly and not just to fictional, sympathetic defendants who have Gregory Peck as their lawyer. Closer study may make the Knoller case an instance of why judicial independence is a good thing.
Walter
Why Judicial Independence Is a Good Thing
From: Walter Dellinger
To: Dahlia LithwickPosted Thursday, June 20, 2002, at 11:06 AM ETWalter Dellinger is an attorney in Washington, D.C. and the Douglas B. Maggs professor of law at Duke. Dahlia Lithwick is a Slate senior editor.
Notes From the Fray Editor:
The Breakfast Table Fray has remained a shining example for all. The Table moved from discussions of the merits of Atkins to broader discussions of the nature of court representation. The Fray moved along with it. Several incisive debates about the nature of contemporary judicial federalism and Dellinger's "rule of three" have ensued. One of the best Frays ever began with Dira Necessitas's supposition that Lithwick would stop her Scalia-bashing—a harmless introduction to a fascinating juridico-psychoanalysis (or psycho-juridical analysis).
Notes From the Fray:
[Dellinger] has the good sense to understand that judicial overreaching is not a liberal or a conservative problem but an institutional one that should be resisted by everyone who has a shred of faith in democracy and, in particular, in the increasingly quaint idea that popular legislatures should make legislative decisions….
There is a longer-term insidious consequence of judicial overreaching, too, that takes the form of executives and legislatures dallying about nearly everything really controversial in the hope -- increasingly realized -- that they will be relieved of the hot potatoes by the courts, especially the SCOTUS.
-- Publius
(To reply, click here.)
I challenge [Lithwick's] shorthand characterization of that Federalism jurisprudence as "efforts at curbing congressional overreaching (often to give powers back to the states)".
That portrays some of the less controversial of the Court's Federalist opinions. But the most controversial and decidedly activist sequence of the Federalist opinions -- their so-called Eleventh Amendment jurisprudence, named for the Amendment that they now admit does not say what they earlier said it says -- has nothing to do with Congressional overreaching. The issue in the cases I was referring to in the quoted paragraphs above (including the case that the Court agreed this morning to hear) and which I believe Dellinger was referring to did not concern federal legislation whose purpose was to usurp for the federal government powers traditionally held by the states. The statutes at issue have broad applicability not just to state governments but to private entities also.
The Court's conservative narrow majority says the Constitution protects states from being subject to such legislation, this notwithstanding their recent acknowledgment that the text of the Constitution actually contains no such protection.
-- Beverly Mann
(To reply, click here.)
Let's apply Dellinger's analysis to Castillo's streak. The reason that the "Latin American record" was noted and celebrated was that it matters enormously to an important group of baseball fans - Latin Americans in their native countries. Prowess in baseball is an important signal to many in those countries that they belong (maybe more important than prowess in soccer, because the Dominican Republic et al. have great success in placing players in the best professional baseball league). That's why people in Latin American countries know which Latin American players have the most career hits, career wins, the best batting average, etc. Until they stop paying attention to the success of Latin American players compared to other Latin American players, then it's reasonable for baseball to do so, even under Dellinger's analysis.
Besides, it's good marketing.
-- randy khan
(To reply, click here.)
(7/25)
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Notes From the Fray Editor:
The Breakfast Table Fray has remained a shining example for all. The Table moved from discussions of the merits of Atkins to broader discussions of the nature of court representation. The Fray moved along with it. Several incisive debates about the nature of contemporary judicial federalism and Dellinger's "rule of three" have ensued. One of the best Frays ever began with Dira Necessitas's supposition that Lithwick would stop her Scalia-bashing—a harmless introduction to a fascinating juridico-psychoanalysis (or psycho-juridical analysis).
Notes From the Fray:
[Dellinger] has the good sense to understand that judicial overreaching is not a liberal or a conservative problem but an institutional one that should be resisted by everyone who has a shred of faith in democracy and, in particular, in the increasingly quaint idea that popular legislatures should make legislative decisions….
There is a longer-term insidious consequence of judicial overreaching, too, that takes the form of executives and legislatures dallying about nearly everything really controversial in the hope -- increasingly realized -- that they will be relieved of the hot potatoes by the courts, especially the SCOTUS.
-- Publius
(To reply, click here.)
I challenge [Lithwick's] shorthand characterization of that Federalism jurisprudence as "efforts at curbing congressional overreaching (often to give powers back to the states)".
That portrays some of the less controversial of the Court's Federalist opinions. But the most controversial and decidedly activist sequence of the Federalist opinions -- their so-called Eleventh Amendment jurisprudence, named for the Amendment that they now admit does not say what they earlier said it says -- has nothing to do with Congressional overreaching. The issue in the cases I was referring to in the quoted paragraphs above (including the case that the Court agreed this morning to hear) and which I believe Dellinger was referring to did not concern federal legislation whose purpose was to usurp for the federal government powers traditionally held by the states. The statutes at issue have broad applicability not just to state governments but to private entities also.
The Court's conservative narrow majority says the Constitution protects states from being subject to such legislation, this notwithstanding their recent acknowledgment that the text of the Constitution actually contains no such protection.
-- Beverly Mann
(To reply, click here.)
Let's apply Dellinger's analysis to Castillo's streak. The reason that the "Latin American record" was noted and celebrated was that it matters enormously to an important group of baseball fans - Latin Americans in their native countries. Prowess in baseball is an important signal to many in those countries that they belong (maybe more important than prowess in soccer, because the Dominican Republic et al. have great success in placing players in the best professional baseball league). That's why people in Latin American countries know which Latin American players have the most career hits, career wins, the best batting average, etc. Until they stop paying attention to the success of Latin American players compared to other Latin American players, then it's reasonable for baseball to do so, even under Dellinger's analysis.
Besides, it's good marketing.
-- randy khan
(To reply, click here.)
(7/25)