I think your point is generally true, but Alito’s predecessor’s first opinion was Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982) (invalidating gender-based affirmative action in Mississippi’s nursing schools). It was a 5-4 decision that precipitated 3 separate dissents.

At the risk of shamelessly promoting a product still under devlopment – for such questions, turn always to Ninoville. ;) Scalia’s first opinion on the court was O’Connor v. United States, 479 U.S. 27 (1986) (construing the Panama Canal Treaty to include only Panamanian taxes for purposes of tax refunds) and his first dissent was Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) (arguing – aptly enough for today, given that around the country, defeated primary candidates are likely weighing legal challenges – that freedom of association is not violated by a law requiring voters in political party primary to be registered members of that party).

I also wouldn’t worry that the opinion doesn’t go back to first principles. Evidently the Justices agreed that this case was easily resolvable under current precedent, and there was no need to decide precisely which Constitutional right had been violated. The Court decides plenty of cases without going all the way back to Constitutional bedrock.

A married person’s separate property consists of (1)property acquired before marriage, (2)property obtained by gift under a will or through inheritance, and (3)property obtained with directly traceable separate property funds. Except for property that is the family “homestead”, separate property may be sold and conveyed without the permission of the other spouse.

Under Texas’s version of community property law (about 9 states are under a community property regime), if a married person dies and is survived by his or her spouse and children and dies intestate (without a will), the surviving spouse receives a life estate (meaning that the survivor may continue to use the property until his or her death) in one-third of the decedent’s separate property estate, and the remainder of the separate property passes to the decedent’s children. A person may change this default distribution scheme through a will.

A married person’s community property is property owned by either spouse other than separate property. There is a presumption in Texas that all property acquired during marriage is community property.

Should a married person die intestate and is survived by a spouse and children, the surviving spouse will inherit all community property if all the decedent’s children are also the children of the surviving spouse; otherwise, one-half of the decedent’s interest in the community estate of the marriage passes to his or her children, with the surviving spouse keeping only his or her one-half interest. A person may only change by will the distribution of the one-half interest in the community estate that would not automatically be distributed to the spouse (i.e. you can’t give away all of the community propery–only your one-half interest).

In this case, most likely most of Marshall’s estate consisted of separate property. To the extent that the couple acquired new property during their two year marriage or received earnings on old man Marshall’s separate property, then it would be property of the community. In short, except through gift or devise, Vicky was not likely entitled to much of the old man’s estate; hence, the importance of her claim against Pierce Marshall.

Second, what at one time appears to be convincing evidence may not be. We now know that fingerprint identifications have too often been made using partial prints and that eyewitness identification can be quite unreliable. Some courts have admitted putatively scientific evidence that should not have been admitted, such as “voiceprint” identifications. The defense may not at the time have been able to identify these problems and impeach the evidence, but evidence of another person’s guilt provides at least the possibility of overcoming such flawed evidence.

Third, one way in which wrongful convictions arise is when the police focus too early on a suspect and pursue evidence against him to the exclusion of considering other suspects. The introduction of evidence of another person’s guilt at trial may stimulate an investigator to look at the case again.

It may be reasonable to exclude a defense based on pure speculation about another party, but there are good reasons for allowing evidence of another person’s guilt to be introduced in the face of apparently convincing prosecution evidence.

The lack of a sweeping statement about “not foreclosing a defendant’s theory of the case procedurally” is exactly why this is a solid opinion. Such a statement would undoubtedly be applied in other cases where the argument for exclusion of evidence is much stronger than it was in this case.

Pronouncements going beyond what is needed for the case have caused enormous damage in the past. Chief Justice Burger’s reckless announcement of an overreaching rule in Lockett v. Ohio in 1978, for example, has been a source of confusion ever since. It is at the root of the problem in the Belmontes case, granted certiorari today, in which the Court must once again clean up a mess that is ultimately of its own making. I will gladly give up poetry in opinions in return for no more Locketts.

Clearly, forbidding a criminal defendant from introducing evidence of someone else’s alleged confession to the crime is a problem. Clearly, Alito is right in stating the the problem with the rule is that it doesn’t allow the credibility of the prosecution’s evidence, which itself triggers the rule forbidding evidence of a third party offender, to be tested. The substance reminds me of a recent 5th Circuit case in which judges decided that failing to seek to strike for cause (or via pre-emptorary challenge) two jurors who stated on the record in voire dire that they were incapable of being impartial jurors and were biased against the defendant was ineffective assistance of counsel. Sometimes a case is so clearly out of whack with what the adversary system is supposed to be about that it is clear that something is wrong, no matter what your political come from may be.

For a U.S. Supreme Court decision, however, it is remarkably heavy on analysis and remarkably light on authority. It is basically a decision based on policy and logic, which is not intimately tied with a prior line of precedent. Indeed, the opinion doesn’t even clearly state precisely which provision of the constitution makes the South Carolina ruling unconstitutional. Is this a 14th Amendment Due Process case, a 6th Amendment confrontation case, or a 6th Amendment compulory process case? It also leaves somewhat fuzzy where the line between Rule 403 evidentiary challenges and other rules that exclude relevant evidence, which are left in place, end, and where the constitutional limitation begins.

Likewise, how does one draw the line between this case and ordinary appellate harmless error analysis? The prosecution had a palm print, DNA evidence from semen, DNA evidence from blood, and fiber matches in addition to a witness placing the defendant in the neighborhood at the pertinent time, and there was no plausible theory offered by the defendant that would explain how this could have arrived on the scene. The opinion does not indicate that the defendant was not permitted to impeach the government’s forensic evidence, only that the alternate theory was excluded, and the jury’s verdict speaks to the fact that the jury did not buy the tainted evidence theory (although one can argue that they might have been more willing to entertain it if there were an alternative worldview with an alternate defendant presented). One could easily have looked at the facts and determined that this was a case to deny cert or DIG because while the rule applied by the SC Supreme Court was clearly incorrect, the error was harmless in this instance.

For example, could the state have excluded the third party confession evidence if this were a bench trial and the judge ultimately resolved in a written ruling the claim that the prosecution evidence was tainted against the defendant beyond a reasonable doubt?

This is hardly the umpire like, servant to the positive law approach Alito set as a model for himself in confirmation hearings.

It would have been possible to more clearly link the opinion to a specific constitutional provision (why not the right to a trial by jury, which is usurped by a ruling in which a judge in a trial effectively pre-empts its power to make a credibility determination?) and to draw a brighter line in a shorter, umpire like opinion, but, surprisingly, Alito didn’t opt to do so.

One is also a little disappointed, if not surprised (on this we did have a prior record), to discover that Alito’s first opinion is so lacking in poetry or wit. Admittedly, this is not a job qualification of a Supreme Court Justice and many honorable jurists lack that touch, but many of the best jurists have it. If Alito had been inclined to do so, the raw moral quandry this case presents could have provided an easy opportunity to insert a Cardozo-like quotable statement about not foreclosing a defendant’s theory of the case procedurally. I fear that Alito’s jurisprudence in the next couple of decades won’t be on anyone’s must read list.