Your premise that life-tenured judges and only life-tenured judges are unbiased is one that I do not share, and, with AEDPA, has been rejected by Congress. California, far from supporting the case for life tenure, supports the position that a middle ground between life tenure and partisan elections provides the closest to optimum that we are going to get with a problem that has no perfect solution.

California appellate judges stand for a yes/no vote once every 12 years. Only once in 70+ years have any been removed, and that was exactly when they should have been — a runaway, agenda-driven court that was a disgrace to the state. The California Supreme Court after the election was a vastly improved court, and to this day it remains superior to the life-tenured, often-reversed (but not often enough) Ninth Circuit.

Roger, I think you are splitting hairs claiming that “unexamined” means something different from “unreviewed,”, but I’ll leave it at that.

At least I got the i and e in the right order, unlike Gretchen.

I used “unexamined” not “unreviewed” in the sense that the Justices never even got to see the petition. Unless you have a better adjective, it will just have to remain the unexamined death.

I noticed on your blog that you made the same point, that there had been plenty of judicial reviews, but that you did not defend the decision on its own logic. And my “Even the Kent” sentence was written before I saw your blog.

Taylor –

I say “obvious joy” because (1) the example adds nothing to the logic or force of the opinion, as noted by the dissent; (2) as an example, he could have merely noted the rule, or the Clerk’s policy, without mentioning any specific case; and (3) having cited the case, he need not have added the “without our ever” line. Maybe “relish” would have been better than “joy”.

So here’s a modest proposal that will both take care of Tom’s concern about the shrinking docket and Kent’s concern about delays in executions — how about if the Court starting hearing a lot more petitions from direct appeals in death penalty cases. It would cut out the federal habeas on all those issues.

As one who listens to all the Ninth Circuit aguments, it’s clear that judges learn a lot from seeing lots of similar cases, their questioning gets sharper and their willingness to accept debatable assertions declines. What occurs to me is that the Supreme Court is too selective, they need to keep their hands in the judicial stream. They need to apply their rulings to the cases before them, not just remand for procedings consistent. I don’t think circuit judges often worry about becoming unelected policymakers, they’re too busy keeping up with their dockets.

roger friedman

Second, you spelled my name wrong.

On the point of the main post, Tom is a little too dismissive of the Texas cases in claiming a “clean sweep” for “conservatives.” The Texas cases constitute further implementation of a line of cases that was fundamentally wrong from the start. It is disappointing to see the author of Johnson v. Texas abandon his previous efforts to limit this misguided line.

We shouldn’t give in to despair. It is only bad to the extent that one thinks the Court has to be “the decider” on every issue. Progressive lawyers can also lobby democrat-controlled legislatures, or bring ballot initiatives, or get elected President.

(Of course it is a bit silly of me to disparage Court-watching on SCOTUSBlog. But I do think it is important not to devote more energy to a politically captured Court than it takes to hold the line.)

I certainly agree with Tom that the right wing got the better of the death penalty cases, although I decided not to reiterate my earlier remarks here, pooh-poohed by others, that Kennedy was bloodthirsty. But the obvious joy with which Thomas cites the case of a death case going unexamined because of a missed filing deadline is really beyond the pale. Even the Kent Scheidiggers of the world must admit that the decision neither comports with previous decisions nor displays intellectually honesty. This is the kind of case where the Court misses Rehnquist’s surface-skimming ipse dixits.

The authoritarian right clearly holds sway on the Court, even the libertarian right (Kozinski) is just another 9th circuit case to be reversed. The Court gave us Bush, and Bush gave us the Court. Woe unto the nation.

roger friedman

Indeed, some would argue that Carhart is enough by itself, no matter how the rest of the Term turns out. I certainly didn’t read Tom’s post as suggesting that every one of the Term’s 5-4 conservative majorities would have turned out the other way.

Sure, there are some: Carhart is the most likely candidate. But not so for others. In Ledbetter, for example, while the popular media simply assumed that O’Connor would have voted with the now-minority (on the analytically stellar basis of “she’s a woman”), it’s probably the case that she wouldn’t have, as she dissented in the prior case that the Ledbetter minority relied on to justify its reasoning. If the school-race cases come out 5-4 as people are predicting, maybe O’Connor would have voted with that side, maybe not. She wrote Grutter, but that wasn’t a sweeping opinion, and she also voted to strike down the more mechanical Michigan undergrad rule in Gratz. The question is where these school systems fall within that rubric. O’Connor wrote the majority in McConnell, but that doesn’t necessarily mean she wouldn’t also agree with the conservatives in Wisconsin Right to Life, if they are in fact set to uphold an as-applied challenge to BCRA. Reason: McConnell dealt with a facial challenge; Wisconsin Right to Life addresses an as-applied challenge. Two different questions, and for someone like O’Connor, who drew lines with the exactness of a laser, a different set of facts could make a big difference in outcomes.

O’Connor was also far from a trusty anti-death penalty vote, so it’s unlikely that all three 5-4 conservative death penalty outcomes would have been different. The point is that talk of “ideological shift” is unwarranted without performing a rigorous analysis of where SOC would have come out (meaning more than the popular media’s “she’s a moderate woman, Alito’s a conservative man” style of analysis).

There’s also looseness in some of the post’s characterizations. Ayers a significant opinion? No way. Like the Texas death penalty cases the author deems insignificant, it addressed a unique California death penalty statute that is no longer in effect. It was an extraordinarily factbound case. Brendlin a 5-4 decision? Even conservative commentators have been anticipating a 9-0 reversal of the very questionable lower decision. And there’s no mention at all of the Court’s business cases. But Philip Morris (the first one, not the more recent one), Bell Atlantic, and Rockwell were all significant pro-business, anti-plaintiff decisions that gained the support of both Justices Souter and Breyer (excepting Breyer in Rockwell, as he was recused). I know it doesn’t make for a good narrative since they weren’t decided on “traditional” ideological grounds, but you can’t just ignore cases that don’t involve the usual split.