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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 2)

Kennedy says the judge properly refused to give the nullification instruction because it wouldn't work. Cruz disagrees. The judge wasn't asked to give the nullification instruction because Smith's lawyer knew the mitigating evidence was insufficient. Ginsburg can't quite believe this. "We are dealing in this case with someone who has been abused as a child and has a mental disorder!" Cruz disagrees, stating that "over 90 percent" of the mitigating evidence was that Smith was "a big lovable teddy bear and went to church and was sweet and kind."

Justice David Souter, in turn, is affronted by Cruz's 90 percent characterization. "There were hundreds of pages of records from school that indicated there was something seriously wrong with this guy." But Cruz disagrees and then goes on to take issue with Ginsburg's claim that Smith was abused. "There is no abuse in this case … no allegation of abuse whatsoever."

Gene Schaerr represents California and a raft of other states that want to be free to invent their own procedural rules without the court big-footing around. But Stephen Breyer goes after him, as he did Cruz, on the proposition that states can lose on a federal constitutional error, then turn around and discover some kooky state procedural hat trick to defeat the federal claim. Breyer pokes fun at the new Texas standard of "absolutely egregious harm," redubbing it "not totally wonderful harm."

And with Roberts and Justice Samuel Alito making it plain where they stand on this issue (see Lyle Denniston's report on today's second argument in a similar case from the 5th Circuit for John Roberts' opinion of mitigating evidence), the case may come down—yet again—to Kennedy. Kennedy voted with the majority in Smith I, and he worries aloud at the close of the case whether there is "no federal interest in ensuring that there is a full and fair implementation of a federal right."

In its opinion in Smith I, the Supreme Court wrote, quite unequivocally, that a jury "might well have considered petitioner's IQ scores and history of participation in special education classes as a reason to impose a sentence more lenient than death." Texas' highest court invented a way to find that it would have made no difference and claims to have been both restrained and generous in doing so. The Supreme Court now stands poised to allow any similarly restrained and generous court to similarly ignore the supreme law of the land, by retreating to state-law smoke and mirrors.

It turns out the only thing better than the steady creep of the new Supreme Court minimalism is the sweeping promise of Supreme Court obsolescence.

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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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