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Two Items on the Supreme Court


There is good news and bad news from the Supreme Court.  (I know, the sun rises in the east).

The bad news, in my view, is that the Court's main doors will now be closed to the public.  The Washington Post reports that, "as part of its $122 million modernization plan, the public will now enter the building on the plaza level, where a security checkpoint will make it easier to contain any risks." 

Security is an undeniable priority in this day and time, so it's difficult to second guess the decision.  Still, as Justices Ginsburg and Breyer noted, the open front doors had a symbolic value that I, for one, will miss. 

In more cheerful news, over the weekend I attended the clerks reunion dinner for Justice Scalia.  I am pleased to report that the Justice looks to be in good health and good spirits.  It was interesting that he went out of his way to compliment Justice Sotomayor for her intelligence and work ethic.  Perhaps it's that they're both New Yorkers from way back, but for whatever the reason, it fortified my tentative view that Sotomayor is not as scary, for Crime & Consequences purposes, as we might have feared.


Let us hope that her joining of Part III of Justice Stevens' opinion in Lett was an aberration. I would not have expected it from my reading of her AEDPA opinions on the SDNY and CA2. Breyer specifically did not join that part, and for good reason.

I'm not saying she's going to be anything but bad. I'm just saying there's a difference between bad and hair-raising, as Stephen Reinhardt has been proving for 30 years.

Stevens' disdain for AEDPA is palpable. This passage in Part III is troubling:

"So on two levels, it is absolutely “necessary for us to decide whether the Michigan Supreme Court’s decision … was right or wrong.” Ante , at 11, n. 3. If a federal judge were firmly convinced that such a decision were wrong, then in my view not only would he have no statutory duty to uphold it, but he might also have a constitutional obligation to reverse it. And regardless of how one conceptualizes the distinction between an incorrect and an “unreasonable” state-court ruling under §2254(d)(1), one must always determine whether the ruling was wrong to be able to test the magnitude of any error. Substantive and methodological considerations compel federal courts to give habeas claims a full, independent review—and then to decide for themselves. Even under AEDPA, there is no escaping the burden of judgment."

One hopes that his reference to "magnitude" was simply sloppy. The error can be a big one, i.e., harmful to the prisoner, but a reasonable one nonetheless.

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