It’s like throwing dice and coming up all fives and fours these days whenever the court announces a decision. Hart has more here on the day the law died and I’m still scrolling through it (the race-based admissions for schools opinion is 185 pages long, the bastards). But here’s what we know on this final day of the ’06-’07 SCOTUS term:

In a 5-4 decision, the conservative “gang of five” struck down school district integration plans in Washington and Kentucky. Writing for the majority in Parents v. Seattle School District, et al (2007) CJ Roberts said “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The districts had “failed to provide the necessary support for the proposition that there is no other way than individual racial classifications to avoid racial isolation in their school districts.”

He read from the bench, as SCOTUSblog notes, reiterating that the spirit of Brown v. Board of Education (1954) is intact. Chimed in Thomas in his concurrence: “What was wrong in 1954 cannot be right today. Because our Constitution is colorblind, and neither knows nor tolerates classes among citizens, such race-based decisionmaking is unconstitutional.”

I wonder if Thomas is aware that our original “colorblind Constitution” counted dark people as 3/5 of human being?

This prompted Justice Stevens, to note the “cruel irony” of bringing up Brown to defend a decision which rewrites the history “of one of this Court’s most important decisions.” Stevens also noted that he joined the Court in 1975, and asserted that “no member of the Court” at that time “would have agreed with today’s decision.

Interestingly, while Kennedy joined the five in tossing these district’s plans, he wrote in a separate concurrence that he was not willing to go as far as the other four conservatives and completely toss out the use of race in attempting to ensure a “diverse” school system.

So much for the “Roberts Court”. It really is the “Kennedy Court” at the moment. Of the 24 5-4 decisions announced this term (which SCOTUSblog also notes is a new record), Kennedy was in the majority every single time. Unbelievable.

Two other 5-4 decisions today (one being a bit of sanity, one not). The latter, another anti-trust victory for big business Leegin Creative Leather v. PSKS, Inc. (2007). Says the Times: “The Supreme Court on Thursday abandoned a 96-year-old ban on manufacturers and retailers setting price floors for products…It is the fourth antitrust ruling by the court in the last four months. In each instance, the court sided with defendants that were sued for anticompetitive conduct, including Wall Street investment banks and an international forest products company.”

Awesome. A 96 year old rule? Pshaw! Out it goes!

And in a death penalty case Panetti v. Quarterman (2007), the court again split 5-4 (with Kennedy joining the liberals this time; insert conservative gnashing of teeth) to “block the execution of a Texas killer, saying lower courts should have considered psychiatric evidence about his mental illness.”

What’s scary about this decision is that it was this close. A mere five years ago the court ruled in Atkins v. Virginia (2002) that executing the mentally retarded was unconstitutional. The decision was 6-3 with Kennedy and O’Connor in the majority. What’s changed is Alito, siding with Roberts, Scalia and Thomas.

Wrote Thomas in dissent: “The court bends over backwards to allow Panetti to bring his current claim.”

LOL. This is, after all, the same Justice who once wrote in Herrera v. Collins (1993) that a “demonstration of actual innocence, in and of itself, after trial and conviction, is not reason enough to stay an execution.” I guess it’s “bending over backwards” to make sure we don’t go back to whacking the mentally retarded.

Frankly, I’m glad this session is over. Here’s hoping (and praying) we get one more solid term out of Justice Stevens.

Cross posted from AoF

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18 Responses to Craps!

  1. “Here’s hoping (and praying) we get one more solid term out of Justice Stevens.”

    Indeed. Prayer seems entirely appropriate at this point.

  2. Darrell Prows says:

    Stevens was actually on the conservative end of the Court when Ford first appointed him. There’s that famous tale of one of the giants of the Court being asked if being a S.C. Justice changes people and he responded “If you’re any good it does”. I don’t think that I’ve seen an iota of change yet out of Thomas or Scalia.

  3. Ginny Cotts says:

    Someday I’d appreciate it if some law student would look at the number and types of SC cases from each state.

    I swear Texas takes up a disproportionate amount of time with their death penalty cases.

    I really am unable to grasp the Herrara v Collins decision. It sounds like he was saying that even if someone was able to prove, before they were executed, that they were innocent of the crime, it didn’t qualify them for a stay of execution.

    Surely I am confused?

  4. Darrell Prows says:

    Ginny: Thomas did exactly what you’re afraid he did. He voted for an innocent person being killed because of a procedural irregularity.

    I once read a sentencing transcript out of Texas (non-dateh penalty) where the Judge said “I believe that you are innocent this time, but I’m giving you the maximum because of other things you’ve probably done. Texas believes in prison time (the highest incarceration rate in the nation, as I recall), and believes in the death sentence (more executions than the rest of the country put together, as I recall), and has no abiding commitment to justice. Hence, the Supreme Court action you see.

  5. sharon says:

    I wonder if Thomas is aware that our original “colorblind Constitution” counted dark people as 3/5 of human being?

    You do know that 3/5 human standard was the compromise accepted because anti-slavery forces didn’t want slaves counted at all and slaveholders wanted slaves counted as full humans? It’s really stupid to bring this up as somehow showing that racism when, in actuality, it was better than the anti-slavery crowd was offering slaves.

  6. Darrell Prows says:

    Sharon: When you were listening to that talk show you should have had them tell you the whole story. The “three fifths” number comes from the formula for counting population for the purpose of determining number of members in the House. The non-slave owning states took the position that persons given no rights should not be further exploited by being used to jack up the political power of their owners. As for the slave owners, it should go without saying that the only “human value” they found in this particular piece of property was in using it to slick their Northern cousins into counting “people” that the slave owners had no intention of treating that way.

    And you feel good about this situation why?

  7. Ginny Cotts says:

    So in Texas, if you get a court appointed attorney that sleeps through your murder trial, it’s too bad. And having been convicted because no one offered any defense, you actually get proof that you did not do the crime, it is too bad again. If you then decide to hang yourself rather than let them fry you and you don’t succeed before someone comes in and cuts you down, they will spend whatever is necessary to get you well enough to be properly executed by the state.

    And we wonder why W is so consumed with rescinding habeus corpus, torture, killing and abominable treatment of prisoners?

    I am pretty sure it was Bush’s AG who argued to the Texas SC that not following the treaty with Mexico to allow captured illegals a phone call was ok because the state of Texas had not signed the treaty.

    Which was a declaration of secession as far as I am concerned. If we had a convention and came up with a new constitution, Texas might not ratify it. Could they get kicked out of the UNITED States of America??

    And the president’s office does not have to follow executive orders to the executive branch.

    Maybe someday the environmental scientists can figure what is in the air, water or soil that causes this level of cognitive dysfunction down there.

  8. Let’s tie this together in an admittedly odd way:

    The REASON that Texas declared its independence from (horrible) Mexico and that (evil, despot, dictator) Santa Ana, was because Mexico had outlawed slavery.


    The great Alamo was fought to retain “Texicans” slaves. Well, obviously that’s not P.R. we can put up with, like we put up with the myth for nearly a century, that George Armstrong Custer was “massacred” and was, therefore a great American hero.

    Davy Crockett and Jim Bowie, and the rest died protecting and defending slavery from those EVIL Mexicans.

    (You know, the ones who keep sneaking across our borders, forcing our employers to give them jobs and then living off the free welfare, medicare and social security cash that the U.S. Government shovels into their sombreros? Those Mexicans. “Sorry, Hank, but this Mexican had a knife on me, and I had to give him a job. You’re going to have to find another job.”)

    The point? You can rationalize ANYTHING as lawful, given the right needs, and that seems to characterize the weird new almost-majority.

    But, for this SC season, it has turned into an unmitigated disaster for American jurisprudence.

    Just as the Right HOWLS about “Liberal bias,” and, therefore JUSTIFIES its own astonishingly unfair, biased and hateful reportage, so, too, the howling of the Federalists and the Yahoos about “legislating from the bench” and “judicial activism” have unleashed an unprecedented wave of Borkian Judicial Activism (Bork’s a Catholic, by the by, the same fellow converted him, that converted Sen, Sam Brownback).

    The Rehnquist Court became notorious for its judicial activism (overturning statutes, while mouthing this bullshit about “deferring to the legislature” on whacko rightie goals). The Roberts Court looks to be moreso.

    That whole “Stare Decis” line of questioning?

    Turns out that Alito and Roberts were lying through their teeth. They’ve been given the keys to the trailer park, and they’re gonna steal all the unattended beer they can grab.

    Who knows? Slavery might make a comeback under this bunch. Clarence Thomas can use the 14th Amendment to justify it (you know, the one that made him color-blind?).

    And then Texas can finally quit lying about what OUGHT to be remembered about the Alamo.

    BTW: is there some way we can prosecute all the Bushies in Texas courts in 2009?

    Sometimes the death penalty isn’t such a bad thing. Not often. But sometimes.

  9. Ginny Cotts says:


    Great connection of dots.

    Prosecuting Bushies in Texas courts in 2009… Brilliant.

    Perhaps enough funds could be collected to adequately enhance the lives of mercenaries capable of legal defense proof framing. Does Shooter still hunt down there?

    If nothing else, Texas might be forced to repeal some of their laws. 😎

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  11. Great post, Todd. And thanks for the kind words, Ginny.

    Well, at least we’re safe until the first tuesday in October.

  12. Batocchio says:

    Invoking Brown really is a cruel irony. Frank Luntz couldn’t have done it better himself.

    As to “demonstration of actual innocence, in and of itself, after trial and conviction, is not reason enough to stay an execution.” Yikes.

  13. Darrell Prows says:

    Texas was an independent nation after defeating Santa Ana and before accepting Statehood. No other State has that in it’s background. That’s not an excuse, but it is an explanation. Some of them obviously don’t agree with the decision to get married.

  14. anti-futurist says:

    With all this talk about lynching, murder, jim crow, 3/5ths etcetera, I’m just not sure black parents want their kids to be shipped into a white run district and I’m damn sure white parents don’t want there kids shipped into a black run district. But that kind of talk is not Kosher.

  15. Sharon writes: “You do know that 3/5 human standard was the compromise accepted because anti-slavery forces didn’t want slaves counted at all and slaveholders wanted slaves counted as full humans? It’s really stupid to bring this up…”

    As Darrell already explained, the 3/5 “compromise” had more to do with Congressional reapportionment. And my point in bringing it up was to illustrate the absurdity of Thomas’ statement regarding a “colorblind Constitution” and his entire judicial philosophy of “originalism”.

    If we are going to rewind the clock back to 1789 (which conservatives like Thomas seem hellbent on doing), then the vote yesterday in the desegregation case would have been 4.6 to 4.

  16. Ginny Cotts says:


    It’s an obvious speculation. You might see if there hasn’t been some studies done on it. Most of the references today have indicated the programs are more successful than maintaining the segregation. We certainly have plenty of evidence that it greatly reduces learned discrimination.

    Ed Shultz talked about this today. He had been bused to a high school that was 60% black and had a very good experience.

    About 15 months ago I think, one of the news stations did a program on a family that specifically moved into a black neighborhood to get their kids into an environment where they would have that kind of contact. It took awhile for them and the neighborhood to get comfortable They they became very close and supportive. It was a very good experience for all.

  17. anti-futurist says:

    Since “diversity” is our national prerogative shouldn’t we at war with Iceland?

    No wait. I’m sure Iceland has some history of black slavery to account for the happiness and wealth of it’s people.

    I find is absolutely racist that we are not at war with Iceland or the Irish Republic.

    They must accept diversity. Accept the raceless, godless, universal man-model of a free-market, or PERISH.

  18. Ginny Cotts says:


    Sarcasm and satire only go so far in an argument. You are living down to your handle.