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.