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StumbleUponToday'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.
Legally,
Walter
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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)