Tuesday, March 30, 2010

Berghuis v. Smith

I am pasting below Justice Thomas' concurrence in today's United States Supreme Court opinion in Berghuis v. Smith, in which the Court weighed in on a petitioner's claim that her jury pool had been selected in a manner that vastly underrepresented women.

Thomas suggests that there is no right to a fair cross section of society on criminal juries because women, minorities, and the poor were frequently excluded from service for much of our troubling history as a nation. (The full text of the concurrence is below. Read it yourself. Tell me I'm wrong.)

This is exactly the kind of absurd result that comes from the fetishism for original meanings. I, for one, am pleased to live in 2010, rather than the late eighteenth century, and hope and believe that many of the values of the Founders would be roundly rejected by most Americans today.

Cite as: 559 U. S. ____ (2010)
THOMAS, J., concurring
No. 08–1402
[March 30, 2010]

JUSTICE THOMAS, concurring. The text of the Sixth Amendment guarantees the right to a trial by “an impartial jury.” Historically, juries did not include a sampling of persons from all levels of society or even from both sexes. See, e.g., Alschuler & Deiss, A Brief History of the Criminal Jury in the United States, 61U. Chi. L. Rev. 867, 877 (1994) (In 1791, “[e]very state limited jury service to men; every state except Vermont restricted jury service to property owners or taxpayers;three states permitted only whites to serve; and one state,Maryland, disqualified atheists”); Taylor v. Louisiana, 419 U. S. 522, 533, n. 13 (1975) (“In this country women weredisqualified by state law to sit as jurors until the end of the 19th century”).

The Court has nonetheless concluded that the Sixth Amendment guarantees a defendant the right to a jury that represents “a fair cross section” of the community. Ante, at 1 (citing Taylor, supra).

In my view, that conclusion rests less on the Sixth Amendment than on an “amalgamation of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment,” Duren v. Missouri, 439 U. S. 357, 372 (1979) (Rehnquist, J., dissenting), and seems difficult to square with the Sixth Amendment’s text and history.

Accordingly, in an appropriate case I would be willing to reconsider our precedents articulating the “fair cross section” requirement. But neither party asks us to do so here, and the only question before us is whether the state court’s disposition was contrary to, or an unreasonable application of, our precedents. See ante, at 2−3, 8−10; 28 U. S. C. §2254(d). I concur in the Court’s answer to that question.

Monday, March 29, 2010

Super Sunday

Today was Super Sunday, an annual Mardi Gras Indian gathering in the Central City neighborhood. Given that the new HBO show Treme is coming out in a few months, and will highlight and celebrate this culture, I wonder whether next year's Super Sunday will remain the same terrific event or whether the attention it is bound to get will somehow change it if hipsters fly in from New York and LA to see this amazing art and culture.

I wrote a little about Mardi Gras Indians a few years ago in The Nation

Tuesday, March 23, 2010

St. Ailred

When I am tired, so tired, of my job, of writing appeals late at night, of the fact that my writing appeals late at night is absolutely nothing compared to what my clients are facing, of my complete and total inadequacy in the face of what they face, or of the horrors of the facts of the crimes of the cases that I work on late at night, crimes which I hope stay far away from me and the people I love, I take comfort in the fact that my friend Jill wrote a poem about this very situation, the one that I find myself in, the one that I have found myself in over and over again for years. I remember the poem because I want to reach out into the night, through my computer, the very tool that I work with on these cases, and find some evidence of human decency. And I remember, I did that once and Jill wrote a poem about it so there must be some kind of decency out there.

St. Ailred by Jill McDonough

Billy writes me an email in the middle of the night, tired

and sick of it, up writing appeals for a good kid who found

a gun, decided to use it in Louisiana. Eighteen, he shot

the neighbor lady dead in a death penalty state.

Billy's eyes are tired, he's sick of this work.

There's no time for it's-not-fair, the almost-plea,

the best case scenario: an ex-good-kid in prison

the rest of his life, woman still dead, still shot to death

in her driveway, in front of her kid. Billy,

I am reading about saints and relics, reliquaries, looking for

medallions online to keep you safe. St. Ailred's the patron saint

of integrity. Who knew? He was known for his compassion,

his clear and lucid writing. He's perfect for you, Billy. He's been dead

a thousand years. Pinkerton's Lives of the Scottish Saints tells us that

at his most sacred tomb the sick were cured, the lepers cleansed,

the wicked terrified, the blind received their sight.

Sunday, March 21, 2010

Health Care

Pretty sure this means that my daughter is going to grow up in a world where health care, like equal rights, education, the right to vote, and free speech before it, is a universal right, however imperfectly implemented. Would have liked to have been able to cancel my Blue Cross/Blue Shield policy and enroll in the National Health Service tomorrow morning but maybe that won't be too far off.