Hey, Moses! Head Out to the Lawn!
Am Law 100

Quick Thoughts

I'm getting caught up with my legal news, but I have some quick thoughts.

Wow - Kelo was 5-4.  What's funny about Kelo is that although the Fifth Amendment is in the Bill of Rights, the Court treated it as if it was not an individual right.  Show me another right listed in the Bill of Rights that gets rational basis review.

What's up with the Court's granting cert. on so many death cases?  The death penalty is rarely meted out.  If the members of the Court really cared about sentencing, they'd grant cert. on the various Blakely/Booker issues.  If the "liberals" cared so much about justice in sentencing, they'd not have crafted their lame and unprincipled Booker remedial scheme.  Sure, "death is different," but death is also rare.  The horrors of prison are real and frequent.  Why not ensure that only those found guilty by a jury of their peers spend time in prison?

This Court's Term should be summed up as: The Term of Government Power.  It's a really depressing Court.  The "liberals" on the Court sing the government's tune in constitutional criminal procedure cases, cf., Caballes, Devenpeck, Brosseau, Muehler v. Mena while simultaneously giving the government the power do to anything it wants.  Cf., Raich, Kelo.

I'm admiring Justice Thomas more and more.  Of course I don't agree with him on everything (and since when should our agreeing with someone have anything to do with whether someone is a good judge?), but his opinions seem the least wilful of the justices.  Plus, he's a damn good writer.

Scalia behaves like a spoiled child when he's not in the majority: he needs to grow up.  Or, if he wants to write mean-spirited prose, he should turn to the op-ed pages, or start a blog.

If this were People, I'd say Thomas is up, Scalia is down (after Raich, waaaaaaaaay down).  The rest of the justices are so boring that they're not worth paying attention to.