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supreme court dispatches: Oral argument from the court.

Texas Side-StepHave the Supreme Court's opinions become suggestions in Texas?

By Dahlia Lithwick
Posted Wednesday, Jan. 17, 2007, at 6:58 PM ET

(Continued from page 1)

Justice Antonin Scalia, who, along with Justice Clarence Thomas, dissented from Smith I, promptly disputes Steiker's use of the word "contradict," even though I don't believe that was Steiker's word in the first place. "They are saying the jury did take it into account, but the error was harmless." Scalia keeps using the word "fuzzy" to describe the nullification instruction, perhaps because "illogical" or "untruthful" are too loaded.

Justice Anthony Kennedy, who always worries about social niceties of this sort, inquires whether the court must defer to the state court's harmless-error analysis.

Then Steiker and Scalia begin to tussle over whether Smith properly raised his objections to the jury instruction back in the trial court, with Steiker insisting he did and Scalia dismissing the objection as too generalized. Steiker responds that trial counsel's hands were tied: "Everyone at trial understood that the special issues on the verdict form were unalterable."

Then Steiker is whisked by Roberts, Scalia, and Alito into upside-down world, wherein they insist that the defendant should have specifically objected to a sentencing system that even the judge deemed immutable unless changed by the legislature. Chief Justice John Roberts goes so far as to urge that just because an objection to the scheme at the time would have been "futile," it would not necessarily have been "burdensome." Smith's error was in picking the wrong as-yet-undetermined constitutional long shot. Thus shoring up the cardinal rule of American capital jurisprudence: Only the unlucky shall die.

Roberts defends the CCA's decision to pull out its new "egregious error" analysis only after the high court slapped it down in Smith I with a hat-tip to his old buddy minimalism: The Texas court didn't get to the harmless-error question the first time because it was practicing laudable "judicial restraint."

Texas Solicitor Ted Cruz goes even further than the chief justice in his presentation, characterizing the CCA as not only restrained but also breathtakingly generous toward Smith. He contends that even though the defendant should have been procedurally barred from raising his objection, the Texas court generously agreed to hear it anyhow, only to reject it. Or, as Justice John Paul Stevens puts it, "The failure to object does not constitute a procedural bar, but we're going to rely on the failure to object to justify a higher standard of review?" Cute.

Cruz goes one better. Smith's trial attorney didn't raise the futile argument a second time at trial because he was being "strategic."

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Dahlia Lithwick is a Slate senior editor.
Photograph of John Roberts by Roger L. Wollenberg-Pool/Getty Images.
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Remarks from the Fray:

The Texas CCA is such a joke that it has long lost any humor it may have had. It is generally regarded as the "worst" court in Texas and its judges are regarded as a mix of political hacks and just plain dingbats. This is what I hear from *conservative* Texas legal folks, I couldn't even begin to describe how the more liberal Texas practitioneers describe them.

The court is not "conservative", quite on the contrary it often seems to have no jurisprudential standards at all. It seems committed to deciding cases "the wrong way" -- by first determining what outcome it would like, and only then reaching about for any fig leaf of reasoning. Precedent, even from itself, is almost useless. To quote a law prof (staunch Federalist Society member) "Nobody can over rule them faster than they over rule themselves." Or, as another wag put it " 'stare decisis' has been banished from the courtroom since they all believe that the U.S. should be an English only nation."

They have a long history of simply ignoring law they don't like. The Bush administration is quietly fuming because the CCA not only refuses to acknowledge treaties as law, but it rejected all attempts "quietly settle" that matter without having to run it back up the Supreme Court flagpole. The courts entrenched resistance to setting any kind of minimal standard on "right to counsel" has long made it a pariah of not only libs but also higher courts (i.e. the US Supreme Court). The list goes on and on and on.....

So why is this court (not to mention the entire Texas criminal court system) so fouled up? Well, one reason is that these judges are *elected*. Nothing wrong with Democracy perhaps, but the 'political reality' keeps most of them from having to face any significant opposition. The court is entirely Republican, and has been accepted by the Republican party as a 'de facto' loony bin for politically connected legal folks who are too unsound for other 'leadership' positions. (i.e. "My God she'd be a terrible party leader. Better get her a judgeship and get her out of the way.") For a number of reasons the Democratic Party doesn't usually even try to contest the seats [ straight-line voting on judges makes it almost futile anyway ]. So what you usually get is the incumbent and some Libertarian/part-time used car salesman running for the office.

I don't have an easy answer, but I think the situation is sad indeed. The Texas CCA is just a great big billboard sitting atop a very broken system. A lot of people in Texas (once again, including many rock-ribbed conservatives) just wish it wouldn't attract so much attention.

--fozzy

(To reply, click here.)

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