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Random thoughts

lawyer getting paid.jpgTaking care of business.  One time before I die, just one lousy time, I'd like to quote a client a fee and see his eyes widen as he shakes his head and murmurs, "Mr. Bensing, I don't see any way I can get that kind of money."  Instead of seeing his eyes widen and his face break into a broad smile as he says, "Wow!  That's a lot less than I thought it would be!"

I didn't get into this for the money, and it's a damned good thing.  A close version of that scenario played out last week, and not for the first time.  I once had a client say, "Yeah, they told me you charged less than other lawyers."  That doesn't happen so much anymore -- I've chased away several clients with fee quotes -- but still a bit too much for my tastes.

I mentioned this to another lawyer, who said, "You know what's the worst?  You quote 'em a fee, and they pull out a wad of cash and peel off a bunch of hundreds, and there's still some left on the roll."

I feel your pain, brother man.

Bad feelings.  Speaking of pain, it's just as well that the Supreme Court term ended yesterday.  With the vitriol on display in the exchange of opinions in the same-sex marriage, Obamacare, and death penalty case (more on that in a minute), the next conference of the justices might have culminated in an exchange of gunfire.  Scalia in particular achieved heights of invective previously thought unattainable, even by him; as one wag on the OACDL listserv put it, you half-expected one of his dissents to begin, "Ruth, you ignorant slut."  The apogee was his dissent on same-sex marriage, in which he calls Kennedy's opinion for the majority "a judicial Putsch," "pretentious," "egotistic," and "silly."  Of course, you can pretty much figure where a dissent is going when it opens with

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the court that began: 'The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,' I would hide my head in a bag."

There's a price to be paid for that, though.  I hang out on a political forum, and one poster commented that Scalia, not Roberts, should have been appointed Chief Justice when Rehnquist died.  One of the roles of the chief justice is to build consensus.  In fact, Roberts initially set out to get a broader majority in the Court's rulings, a goal which may have gone a-glimmering:  the number of 5-4 decisions this term was the most in the past five years.

Whatever Roberts' failings in this regard, it's impossible to see how Scalia and his acid tongue would have fared better.  It's well known that he drove Sandra Day O'Connor from the right to the center with his acerbic barbs about her opinions in several abortion cases, and his screed against Kennedy can't be expected to help in garnering his vote on future cases.

That's not to write Scalia off.  He's had a profound impact on the Court.  His opinions in Crawford, Blakely, and Heller revolutionized jurisprudence on the Confrontation Clause, jury trial, and gun rights.  Perhaps the best indication of his effect is that his method of constitutional interpretation -- textualism -- has come to dominate the Court's rulings.  In Heller, even the four dissenters presented their arguments in the context of what the Framers intended in 1790, not what the Framers might have done today. 

Still, as the past week showed, the idea of a profoundly conservative Court, which liberals feared just a few years ago, hasn't come to pass.  Which raises the stakes for the 2016 presidential election all the higher.  By the time a new president is sworn in, three justices (Scalia, Kennedy, and Ginsburg) will be in their eighties, and Breyer will be 78.  Depending on the outcome, you could wind up with a profoundly conservative or a profoundly liberal court for the next couple decades.

Not with a bang.  The Court's final criminal decision of the term was Glossip v. Gross, in which the Court, by a 5-4 vote, upheld Oklahoma's use of midazalom as the first of the three-drug cocktail it uses to execute prisoners.  At oral argument in the case, Alito took the defendant's lawyer to task, noting that opponents of capital punishment have been conducting a war of attrition on the death penalty:  the reason that midazalom was being used was because phenobarbital, which was much more effective, was no longer available because of pressure against the manufacturers.  In short, the only reason opponents were able to mount a challenge to midazalom was because they had taken a more effective drug off the market.

There's some truth to that, but Breyer raises a larger issue, suggesting, in a dissent joined in by Ginsburg,that the time has come to reconsider the constitutionality of the capital punishment itself, citing numerous cases in which people sentenced to death were subsequently exonerated.  This earns a scornful rebuke from Scalia and Thomas, but Breyer has the last laugh there:  one of the cases he sites is that of Henry McCollum, who spent 30 years on Alabama's death row for a rape and murder that DNA evidence subsequently showed was committed by someone else.  In an earlier opinion, Scalia had cited McCollum's case as a classic example of why the death penalty was appropriate.

Breyer and Ginsburg are not the only justices expressing misgivings about the death penalty.  On Monday, I talked about the Ohio Supreme Court's decision in State v. Keenan, in which the court reversed the trial judge's dismissal of the indictment against Keenan because of the prosecution's failure to disclose exculpatory evidence.  Keenan was originally convicted and sentenced to death for the crime back in 1994 (the death penalty is no longer an option), and Pfeifer, who wrote the opinion last week, was on the court then and voted to affirm Keenan's conviction and sentence.  Last week, he wrote a concurrence to his own opinion, using Keenan as an example of why he believes the death penalty should be abolished.


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