I will say nothing just now about Alito's draft opinion in the Mississippi abortion case, DOBBS v. JACKSON. I will speak to the question of the leak itself. These things very rarely happen. I remember there was something of a hubbub after a book by Bob Woodward came out in the late 1970s called THE BRETHREN, offering a behind-the-scenes look at the Supreme Court. But Woodward didn't drop a lot of serious "tea" in that book, and he had nothing on forthcoming matters, much less first drafts of lengthy controversial opinions. By the way, a fellow named Scott Armstrong secured himself a footnote in publishing history by serving as Woodward's co-author there. Woodward was done with Bernstein yet not yet willing to fly solo. But it WAS his book. The closest analogy I can think of, though, involves the Dred Scott case. A new President, James Buchanan, was inaugurated on March 4, 1857. His address made reference to the case then before the court and it certainly seeme...
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This is the third part in our series of blog posts about the latest term of the Supreme Court. We'll get to some basic structural stuff in this post, with the question of non-state territories, over which the national government is often said to have a direct control. Does it? With regard to Puerto Rico, and possibly the District of Columbia: what does that entail? Obviously there are local authorities for both of those places -- heck there are also park rangers for national parks who have various sorts of discretion. But this isn't the federal layering of sovereigns we've heard about, is it? The Appointments Clause I'm looking at a clause of the constitution that seldom makes the headlines, but that is nonetheless of great importance within the overall system. Article II, sect. 2, clause 2, the "appointments clause." It says that that president shall nominate, and with the advice and consent of the Senate he shall appoint, all "officers of the Un...
Welcome back. We'll look at four cases, arranging in increasing order of the height of their media profile. Death with the Assistance of Counsel Diving right in there: in McCOY v. LOUISIANA (May 14) the Court found that the "effective assistance of counsel" guaranteed by the 6th amendment to the Constitution requires that the defendant be able to choose the objective of his defense -- that is, whether the defense should be to concede the crime but plead mitigating circumstances, or whether it should deny guilt. In the case before the court, McCoy's attorney, Robert English, admitted to the jury repeatedly, and against his client's repeated instructions, that his client "committed three murders." Indeed, he told them there was "no way reasonably possible" that they could hear the case and come to any other conclusion than that McCoy was "the cause of these individuals' deaths." He tried to make the case for mercy, for seei...