Slate's Bizbox
the breakfast table: An e-mail conversation about the news of the day.

A Supreme Court Conversation

the breakfast table
entries
1234567891011121314
from: Walter Dellinger
to: Dahlia Lithwick

Tie Goes to the Hangman

Posted Monday, June 26, 2006, at 2:06 PM ET

Who are these people?

Chat with this story's author on Washingtonpost.com Chat with this story's author on Washingtonpost.com.

Dear Dahlia:

Thank you for inviting me again to exchange thoughts with you during the final week of the Supreme Court's term. This instant Internet writing still makes me nervous. For most of my career as a law professor, I thought one needed about a year to agonize over an issue before publishing one's thoughts. So, this more conversational format, which involves typing what comes to mind and then hitting the send button, sometimes strikes me as nuts. I was a bit comforted this weekend, though, when I looked back at what we had written in the past four years. I winced over a couple of my entries, but overall—to my surprise—there wasn't much I would take back.

The court this morning announced its decisions in five cases, leaving five more to be decided. In today's rulings, the court held that a state can tell a capital sentencing jury that if factors favoring life and favoring death are in equipoise, the jury must decide for the death penalty; that a criminal defendant's right to counsel of his or her choice must be respected; that some sentencing errors are harmless; that parents litigating the educational rights of their disabled child have to pay for their expert witness; and probably most importantly, that Vermont's efforts to limit campaign expenditures are unconstitutional.

As interesting and important as those decisions are, the five yet to be announced are even more important. The court sits again on Wednesday. Given the complexity and import of the remaining issues, I think it will take the justices longer than that to finish the term.

Yet to come are decisions involving the constitutional right to mount an insanity defense, regulation of prisoners' access to magazines and newspapers, whether there will be any meaningful judicial limits on partisan redistricting, the potentially explosive issue of whether the Vienna Convention creates individual rights that can be asserted in state courts and whether those state courts must respect rulings of the International Court of Justice—and, of course, the deeply important case of Hamdan v. Rumsfeld on the use of military trials in "war on terror" cases.

Time enough for those cases later in the week. I'm eager to hear your reaction to today's decisions, particularly Kansas v. Marsh. The depth and passion of the court's division on capital punishment is extraordinary. Four dissenting justices call the Kansas "tie goes to Death" law "morally absurd." The five in the majority, by contrast, find no basis in the Constitution for imposing a tie-breaking rule on Kansas. They believe that the dissenters are simply voting their own raw policy preferences. That is a very wide gap. I'm eager to hear your reaction.

Regards,
Walter

the breakfast table
entries
1234567891011121314
from: Walter Dellinger
to: Dahlia Lithwick

Tie Goes to the Hangman

Posted Monday, June 26, 2006, at 2:06 PM ET
Print This ArticlePRINTDiscuss this in The FrayDISCUSSEmail to a FriendE-MAIL
Share on FacebookPost to MySpace!Share with MixxDigg ThisShare with RedditShare with del.icio.usShare with FurlShare with Ma.gnolia.comShare with SphereShare with Stumble Upon
Walter 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.
Photograph of Justice Souter by Paul J. Richards/Agence-France Presse/Getty Images. Photograph of the Supreme Court Building on the Slate home page by PictureArts.
Join the Fray: our reader discussion forum
What did you think of this article?
POST A MESSAGE | READ MESSAGES
Washington Post
The Washington Post
OPINIONS
Over the Line
Harold Ford Jr. | I know what it's like to be smeared by your opponent.
: The Positive in Negative Ads
PLUS » Milbank: The President's Lullaby