Understanding The Supreme Court’s McDonnell Decision

A unanimous Supreme Court yesterday overturned the federal bribery conviction of former Virginia Governor Bob McDonnell.  The decision set off a firestorm of a debate about whether the Court had effectively gutted the federal government’s ability to prosecute elected officials for excepting gifts in exchange for doing favors.  For interested readers, SCOTUSblog has an online symposium featuring thoughtful commentary, pro and con, on the decision.

The Death Penalty Is Really Dead

Over the strongly worded dissents of  Justices Zarella and Espinosa, the Supreme Court today stood by its decision last August in State v. Santiago, which abolished the death penalty.  Today’s decision (actually six opinions) in State v. Peeler had the potential to reverse Santiago due to a change in the composition of the court.  But Chief Justice Chase Rogers, who had dissented from Santiago, switched sides and voted to reaffirm Santiago based on stare decisis.  Justice Richard Robinson also voted with the majority to reaffirm Santiago on that same ground.

It will take me some time to digest all of the opinions.  What is notable, however, is that the Court issued a per curiam opinion, rather than the customary majority opinion penned by particular judge.  The Chief Justice, Justice Palmer and Justice Robinson each wrote concurring opinions.  As noted, Justices Zarella and Espinosa dissented.  Justice Zarella did not hold back:

I cannot fathom how Chief Justice Rogers and Justice Robinson believe they respect the rule of law by supporting a decision that is completely devoid of any legal basis or believe it is more important to spare this court of the purported embarrassment than to correct demonstrable constitutional error. Of course, it is possible that Justice Robinson believes that Santiago is correct, although he has not told us so. As I shall explain subsequently in this opinion, this approach prevents Justice Robinson from conducting—or at the very least from demonstrating to the public and to this court that he has undertaken a full, fair, and objective analysis of the benefit and costs of applying stare decisis to Santiago.

Supreme Court (Likely) Reaffirms Death Penalty Unconstitutional

According to the Judicial Branch website, the Connecticut Supreme Court will release its decision in State v. Peeler today (at 11:30 am) concerning the status of the death penalty in Connecticut. Last August, in State v. Santiago, the court held that the death penalty violated the state constitution’s prohibition against cruel and unusual punishments. But, as I’ve explained on this blog, today’s much-anticipated decision in State v. Peeler had the potential to overrule Santiago due to a change in the composition of the court (the retirement of Justice Flemming Norcott, Jr. and the addition of Justice Richard Robinson.

However, based on the number of concurring and dissenting opinions listed on the branch’s website, I think it is safe to say that the court will reaffirm Santiago.  The website lists a majority opinion, three concurring opinions and two dissents.  The dissents were almost certainly written by Justices Peter Zarella and Carmen Espinosa, who also dissented in Santiago.  That there are only two dissents likely means two things: First, Chief Justice Chase Rogers, who dissented in Santiago–describing “every step of [the majority’s] analysis [as] fundamentally flawed”–has switched sides, so to speak, and is now voting to reaffirm Santiago based on the doctrine of  stare decisis–Latin for “stand by things decided.” Second, Justice Richard Robinson, who was not on the panel that decided Santiago, has also voted to reaffirm that decision, likely for the same reasons as the Chief Justice.

We’ll learn at 11:30 if my prediction is correct.  Stay tuned.

Marion Cotillard, Labor Unions And Conflicts Of Interest

Check out this post at CT Good Governance.

Discussing Politics And The Budget On “The Wheelhouse”

I had the pleasure of joining WNPR’s John Dankosky and Colin McEnroe this morning on The Wheelhouse, the station’s weekly news roundtable.  Along with Christine Stuart of CT News Junkie, we discussed politics and the state budget.  Check out this post at CT Good Governance for more about our lively discussion.

“You’re Fired, Mr. Chief Justice!”

For a much-needed laugh, check out this amusing post at Dorf on Law.

Can/Will The Judicial Branch Sue The Governor?

Short answer: Yes/maybe.

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On Monday, Chief Court Administrator Patrick L. Carroll III wrote a letter to Governor Malloy and the Democratic and Republican leadership in the General Assembly.  The letter described the proposed budget cuts to the Judicial Branch as “both unprecedented and catastrophic in its consequences,” adding that there are “only about 3,700 staff members in the entire Judicial Branch.” As CT News Junkie reports, “this would equate to about one in six Judicial Branch employees being laid off.”

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Contingency, Anarchy and Oliver Wendell Holmes

One of the most influential books in my life is the late Stephen Jay Gould’s “Wonderful Life: The Burgess Shale and the Nature of History,” about the evolution of life during what is known as the “Cambrian explosion,” about 505 million years ago.  Gould’s thesis is that contingency–chance–is perhaps the most important factor in evolution.  Rewind the tape of life and let history unfold again and the evolutionary outcomes, including Homo sapiens, are impossible to predict.  Gould argues that we humans are a great–but wonderful–accident.

With this introduction, readers may understand why a post about how Oliver Wendell Holmes ended up on the U.S. Supreme Court caught my attention.  The short answer (re: why Holmes ended upon on the court) is that an anarchist assassinated President McKinley.  That’s contingency in operation folks.

Why Ted Cruz Should Not Be President

Because he believes that the United States Constitution allow states to prohibit, even criminalize, sexual self-pleasure. Money quote from David Corn’s article in Mother Jones; according to Cruz:

There is no substantive-due-process right to stimulate one’s genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship.

UPDATE: To be fair, Cruz said this in the context of a legal brief he wrote while defending the State of Texas in a lawsuit challenging a state ban on sex toys.  Lawyers often make arguments that they do not personally accept. That is part of being a zealous advocate for a client. But until I hear Ted Cruz disavow this argument, I shall assume he agrees with it.

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