I was so struck by the number of important decisions Justice Scalia wrote this term that I asked Justice Ginsburg about his record when I interviewed her this week. (Here’s the news story covering other topics.)
Add another critic to the Supreme Court’s recent decision in Connick v. Thompson: Retired Justice Stevens on Monday night denounced his old colleagues for ruling that a former Louisiana Death Row inmate could not sue prosecutors who had concealed blood evidence that might have shown his innocence.
In that 5-4 case in late March, Justice Clarence Thomas wrote for the conservative majority and Justice Ruth Bader Ginsburg wrote for liberal dissenters. (I referred in an earlier post to Ginsburg’s passionate dissent from the bench in the case focused on prosecutors’ duty to turn over exculpatory evidence.)
Sitting in the courtroom the last two days, I was reminded of how profoundly the Court is split 5-4, conservatives-liberals, on cases that really matter. The divide was evident during oral arguments in the Arizona campaign finance dispute Monday and in the gigantic Wal-Mart job-discrimination class action fight Tuesday. And one of most compelling moments along these lines came Tuesday morning when Justice Ruth Bader Ginsburg read aloud her dissenting opinion from a decision in which the five-justice conservative majority ruled that a former Louisiana Death Row could not sue prosecutors who had failed to turn over blood evidence that could have shown his innocence.
Justice Scalia lost it Monday in Michigan v. Bryant. As the majority ruled that a gunshot victim’s dying words to police could be used at trial against the alleged shooter, Scalia erupted. “[T]oday’s decision is not only a gross distortion of the facts. It is a gross distortion of the law—a revisionist narrative … at least where emergencies and faux emergencies are concerned.”
The majority opinion, written by Justice Sonia Sotomayor, said the victim’s statements identifying defendant Richard Perry Bryant – as the victim bled in a gas station parking lot — were made in an emergency situation and not “testimonial.” So allowing them at trial did not violate the Sixth Amendment’s Confrontation Clause, which guarantees that a defendant may confront his accuser.
Antonin Scalia, past and present, had a starring role at today’s Supreme Court arguments in Federal Communications Commission v. AT&T. And I couldn’t help but be reminded of Scalia’s past views on the Freedom of Information Act, views definitely off-stage.
As I explain in this article, the FCC was appealing a lower court decision that would allow corporations to claim a “personal privacy” exemption under the FOIA law intended to make government more transparent. That exemption traditionally has been given only to individuals for potentially embarrassing situations.
As criticism of capital punishment is up in some quarters and use of the death penalty continues to decline nationally, Justice Scalia remains a vigorous voice for carrying out state executions.
This week he dissented from a high-court order favoring an Alabama murderer whose death sentence had been set aside by lower federal courts. The justices by 6-to-3 rejected a petition from Alabama officials protesting a new sentencing hearing for James Charles Lawhorn, who with his brother had killed their aunt’s boyfriend in 1988, in exchange for $100 from the aunt.