[Deathpenalty]death penalty news --- USA; TEXAS; FLORIDA; GEORGIA

[Joerg Sommer]

death penalty news

September 22, 2005


USA:

Judge Roberts on Trial

1.
Almost every recorded political statement John 
Roberts has made throughout his life, from 
adolescence to his nomination as chief justice, 
suggests that he has strong conservative 
political convictions and instincts, and many 
people naturally fear that he will use his great 
power on the Supreme Court in the service of his 
politics. He promised that he would not, but the 
Senate Judiciary Committee should have been more 
effective than it was in testing that promise. In 
fact it failed dramatically in its responsibility to do so.

In his public career Roberts has opposed 
improving protection for the voting rights of 
minorities; held that it would be constitutional 
for Congress to strip the federal courts of their 
powers to supervise racial integration; 
denigrated efforts by a group of women 
legislators to reduce gender inequality in the 
workplace; referred to the right of privacy as 
"so-called"; signed a brief advising the Supreme 
Court to overrule Roe v. Wade; and described a 
Supreme Court decision outlawing a moment of 
silence that might be used for prayer in schools 
as "indefensible." (See William L. Taylor's 
recent article on Roberts's career in these pages.[1] )

In the Senate hearings now concluded, Roberts 
repeatedly said that the more outrageous of these 
opinions were only those of a lawyer doing his 
job, in the Justice Department and the White 
House, for a very conservative client: the Reagan 
administration. But of course he did not have to 
join that administration and the tone of many of 
his comments suggests not just an obedient staff 
member but an enthusiastic proponent. The Bush 
administration has refused to allow senators to 
see Roberts's more recent memoranda, written 
when, as deputy solicitor general in the first 
Bush administration, he had more responsibility 
for making policy. We can only speculate about 
what political opinions these would reveal.

Nor is there much in Roberts's record as 
disclosed to the Senate that suggests any 
personal impulse to moderate the right-wing 
policies he has defended or any concern for those 
at the bottom of our society whom such policies 
would injure. He did advise his superiors that 
stripping the courts of their jurisdiction over 
the use of busing as a remedy for racial 
inequality, though in his opinion constitutional, 
would be "bad policy." But he said it would be 
bad for technical reasons: because, as he told 
Senator Herbert Kohl, it might "lead to a 
situation where there's arguable inconsistency 
and disuniformity in federal law." He did advise 
the administration to sign a treaty condemning 
genocide, but only because a failure to sign it 
would be bad for the nation's image. As a lawyer 
in private practice he acted pro bono in advising 
a gay rights group preparing for a Supreme Court 
challenge to Colorado's discriminatory 
constitutional amendment. But he did so, he told 
Senator Richard Durbin, because the partners of 
his firm asked him to, and he seemed happy to 
add, in response to Durbin's further question, 
that he would "of course" have been willing to 
advise Colorado how to resist the challenge if 
its officials had walked through his door first.

We find no greater reassurance that Roberts will 
not use his power on the Court to advance a 
right-wing political agenda when we study his 
decisions during his brief term as a judge on the 
District of Columbia Circuit Court. In one of the 
two most politically sensitive of his cases he 
declared that the federal government has no power 
under the Constitution's interstate commerce 
clause to force a California developer to protect 
an endangered species of toad that has so far 
been found only in that state. In the other case 
he joined an opinion declaring that the courts 
must show great deference to the President's 
opinion that international treaties, including 
the Geneva Conventions, do not protect the 
Guantánamo prisoners. Whether or not these 
positions are correct in law, they offer no 
reason to think that Roberts would often hold, in 
difficult cases, that the law is contrary to what 
a conservative would wish it to be.

Roberts plainly saw the Senate confirmation 
hearings as his best opportunity to dispel any 
suspicion that he would be a political judge, so 
we must look with some care at the record of 
those hearings. It is important to be clear what 
we are looking for. Roberts declared often enough 
throughout the hearings—indeed, he took every 
possible opportunity to declare—that he would be 
guided in all his decisions by "the law" and not 
by his personal politics or his faith or by 
anything but the law. In his introductory remarks 
he said that he would decide every case 
"according to the rule of law" and that his job 
was that of an umpire calling balls and strikes 
but not pitching or batting. He repeated his vow 
to decide "according to the rule of law" 
throughout the hearings. We must ask whether, for 
Roberts, these repeated declarations can have any 
substance. We can only answer that question by 
discovering how he decides what the law is when 
the pertinent constitutional or statutory 
provisions are vague or abstract. Does his method 
of legal reasoning in such cases provide a 
filter, or protective screen, between his 
politics and his judgment about what the law requires?

As Senator Joseph Biden reminded Roberts, an 
umpire cannot set the strike zone: that is 
determined by the explicit rules of baseball. But 
a Supreme Court justice faces no such constraint. 
The great constitutional clauses and much crucial 
legislation are drafted in highly abstract terms 
that demand interpretation. Much of this is 
abstract moral language: the Constitution demands 
"due" process, forbids punishments that are 
"cruel" as well as "unusual," commands "equal" 
protection of the laws, and outlaws 
"unreasonable" searches and seizures. Important 
Supreme Court precedents rule out "undue" burdens 
on women seeking abortions, for example, and make 
the constitutionality of laws depend on their 
"rationality." Statutes often make the liability 
of a person or corporation turn on whether they 
have behaved in ways that are "unreasonable" or 
even "unconscionable." The bare statement that a 
judge should enforce "the law" when dealing with 
clauses that are so abstract tells us nothing: 
the crucial question is how the judge should decide what the law is.

Roberts himself demonstrated the difficulty and 
importance of that question in a crucially 
important statement he had carefully prepared. He 
pointedly disagreed with the constitutional 
philosophy often called "originalism," which is 
the thesis that judges ought to interpret the 
abstract moral clauses of the Constitution by 
asking how the framers of each clause would have 
expected that clause to be applied—that judges 
should decide what punishments are "cruel," for 
example, by referring to what punishments those 
who wrote the Eighth Amendment in the eighteenth 
century thought cruel. On that test, capital 
punishment, which was of course practiced very 
widely then, would not be cruel. Some very 
conservative jurists, including Justices Antonin 
Scalia and Clarence Thomas and former judge 
Robert Bork, have explicitly adopted that view of 
constitutional interpretation.

When Scalia tried to defend this view in a 
discussion of his judicial methods at Princeton 
some years ago, the objection was made that 
originalism, so understood, ignores a crucial 
distinction between what the framers intended to 
say and what they expected would be the effect of 
their saying what they intended to say.[2] The 
framers might have set out their own particular 
views about what counts as cruelty in punishment, 
what counts as a denial of equal protection in 
legislation, and so forth in the constitutional 
clauses they wrote. But they did not. Instead 
they chose to lay down general moral principles. 
So true fidelity to their intentions requires 
judges to ignore the framers' concrete opinions 
and do their best to apply these principles as 
moral principles: to decide, for themselves, that 
is, what punishments are in fact cruel and what treatment is in fact equal.

Roberts explicitly accepted this objection to 
Scalia's version of originalism. In reply to a 
question from Senator Charles Grassley, he said, 
about the equal protection clause that was adopted after the Civil War,
There are some who may think they're being 
originalists who will tell you, Well, the problem 
they [the framers] were getting at were the 
rights of the newly freed slaves. And so that's 
all that the equal protection clause applies to. 
But, in fact, they didn't write the equal 
protection clause in such narrow terms. They 
wrote more generally.... We should take them at 
their word, so that is perfectly appropriate to 
apply the equal protection clause to issues of 
gender and other types of discrimination beyond 
the racial discrimination that was obviously the driving force behind it.

Liberal commentators were pleased to learn that 
Roberts rejects a method of interpretation that 
they associate with Scalia and other right-wing 
justices. But he said nothing about how he would 
decide the great moral questions about due 
process and equal treatment that, on his 
understanding, the Constitution requires justices 
to decide. Rejecting Scalia's "originalism" 
increases the responsibility of contemporary 
judges, but it does not tell them how to exercise 
that responsibility. Suppose judges must decide, 
for instance, whether it is consistent with the 
Constitution's command of "equal protection" of 
the laws that a state university grant some 
limited preference to minority applicants, or 
whether a state government respects "due process" 
when it outlaws early abortion. If they may not 
rely on historical evidence about whether those 
who wrote those phrases would have expected them 
to condemn affirmative action or permit making 
abortion a crime—if judges must ask themselves 
directly what answer follows from the abstract 
moral language the framers laid down—then how can 
they help putting into effect their own 
convictions, conservative or liberal, about 
whether affirmative action is fair or whether abortion is immoral?

The cynical view of many lawyers is that judges 
simply follow their own political preferences and 
disguise their doing so by announcing that they 
are following "the law." These lawyers think that 
constitutional adjudication is only politics by a 
grander name, that if a president appoints 
someone with the policy preferences of John 
Roberts to the Supreme Court, the nation will 
then be governed by a very conservative 
interpretation of abstract clauses of the 
Constitution. The Supreme Court's outrageous 
decision in Bush v. Gore reinforced that cynical 
view because in order to ensure that Bush became 
president, the justices who preferred him ignored 
the doctrines of constitutional interpretations 
they had previously embraced.[3] But most judges 
insist that there is a difference between what 
the law requires them to decide, even when they 
are applying the very abstract moral language of 
the Constitution, and how they would vote if they 
were legislators free to vote in accordance with 
their own policy preferences. How is that possible?

A judge can draw that distinction in such cases 
only if he has, in addition to his partisan 
commitments and policy preferences, political 
convictions of a different and independent kind: 
convictions about the proper role of a judicially 
enforceable constitution in a democracy. A 
constitution shapes democracy by assigning powers 
to different institutions—by specifying the 
composition and responsibilities of the 
legislative, executive, and judicial branches—and 
it regulates democracy by creating individual 
rights that act as constraints on what those 
different branches of government may do. Our 
constitution, for example, limits the powers of 
Congress to matters of national concern, leaving 
purely local issues to state government, and it 
also limits the power of all branches of 
government by specifying that no branch may use 
censorship as a tool of government. But as I have 
said, it imposes these structures and constraints 
in very abstract language: it declares that 
Congress has power only over "interstate 
commerce," and that government must not invade 
"the freedom of speech." Judges can interpret 
that abstract language only by appealing to a 
vision of a desirable, workable form of democracy 
that they believe both fits and justifies the 
overall structure of the Constitution. They can 
then justify choosing one reading of the abstract 
clauses rather than another by explaining how 
that reading makes a better contribution to democracy so conceived.

They can interpret their own proper role in a 
democracy in the same way: by asking what view of 
the powers of unelected judges to check what 
other branches of government have done follows 
from the view of democracy they have identified 
as best fitting and justifying our Constitution 
and our practices. That judgment must include a 
view of how far it serves the appropriate 
understanding of democracy to require judges to 
be governed by their own past decisions as 
precedents and when and why they may depart from 
precedent in search of what they take to be a 
more effective democracy. Judges must ask, for 
example, whether it better serves what they take 
to be the right understanding of democracy for 
Supreme Court justices who think Roe v. Wade was 
wrongly decided to correct what they believe to 
have been a serious mistake or to respect the 
nation's reliance on that decision for three decades.

We must try to discover from his statements at 
the Judiciary Committee hearings whether Roberts 
has such a constitutional philosophy—a vision of 
democracy that can filter out his partisan 
commitments and policy preferences when he 
decides what the Constitution requires. It might 
be helpful first to briefly notice examples of 
constitutional philosophies that other judges 
have embraced and how these philosophies can act 
as filters in this way. Scalia's announced form 
of originalism, if in fact he held to it with any 
important degree of consistency,[4] would 
constitute such a philosophy. He might suppose 
that a constitution serves democracy best when it 
limits the power of democratic majorities only in 
the ways that were widely accepted when the 
nation began. A judge who held this conception of 
good democracy would sometimes be required to 
refuse constitutional challenges that his own 
policy preferences would encourage him to 
sustain: it would require him to uphold capital 
punishment against constitutional challenge, for 
example, even if he himself detested 
state-mandated killings. Roberts was right to 
reject this unattractive vision of democracy, 
particularly since it has no basis in our 
history. As he said, the framers themselves 
rejected it by using the abstract moral language they chose.

Justice Stephen Breyer, in his recent book 
setting out his own constitutional philosophy, 
offers a more attractive example. He argues that 
the liberty protected by an appropriate 
conception of democracy embraces not only a 
citizen's freedom from undue government 
interference but a more active freedom to 
participate in self-government as an equal; and 
he undertakes to show that an understanding of 
the Constitution as aiming to promote that form 
of liberty can guide constitutional adjudication 
in several matters, including free speech, 
federalism, and the constitutionality of affirmative action.[5]

I have myself defended a similar view of the 
Constitution: that it aims to create what I 
called a "partnership" rather than a majoritarian 
form of democracy by insisting that all citizens 
are entitled to an equal role and voice in their 
self-government, that government at all levels 
must treat citizens with equal concern, and that 
government must leave individual citizens free to 
make the personal decisions for themselves that 
they cannot yield to others without compromising their self-respect.[6]

That partnership conception is, of course, only 
one possible vision of democracy. Still, it 
illustrates the crucial distinction between the 
kind of political convictions a constitutional 
philosophy requires a justice to employ in 
reaching a constitutional decision and the kind 
of political positions it excludes. No judge 
could be guided by such a partnership conception 
without convictions about, for example, whether 
minority preferences deny equal concern to white 
applicants or whether questions about the use of 
one's own body in reproduction are among those 
that dignity requires be left to oneself as an 
individual. But these general convictions about 
the Constitution are independent of a judge's 
personal opinions about whether affirmative 
action is wise policy or whether abortion is 
immoral, and they may therefore act as a screen 
insulating a judge's constitutional opinions from 
his personal or partisan preferences.

It would be nonsense to say that a judge who has 
a constitutional philosophy of the kind these 
examples illustrate has set aside all his own 
moral and political convictions to decide just in 
accordance with what the Constitution requires. 
He relies on his own convictions about the best 
conception of democracy and the role of the 
Constitution in creating that form of democracy 
in order to decide what the Constitution, 
properly understood, does require. But the 
crucial point is that these convictions about the 
character of democracy are independent of the 
more immediate and partisan policy preferences 
that lead a judge to vote for one party or the 
other or to favor one legislative scheme about 
some particular regulatory issue over another. It 
is the possibility of a constitutional philosophy 
of this sort—and only that possibility—that can 
give meaning to a Supreme Court justice's claim 
that he sets his own political preferences aside 
in deciding constitutional cases.

2.
So we must look at the record of the Senate 
hearings carefully to discover whether Roberts 
revealed a constitutional philosophy, even 
indirectly, and if so what his constitutional 
philosophy is. Senator Orrin Hatch put that 
question to Roberts early in the hearings. He 
asked him whether he is "an originalist, a strict 
constructionist, a fundamentalist, perfectionist, 
a majoritarian or minimalist...." Roberts replied 
that he resists labels and wants to be known only 
as a modest judge, that is, a judge who does not 
legislate or execute the laws but simply enforces 
the law correctly. Hatch was not satisfied and 
continued: "You are probably eclectic [in] that 
you would take whatever is the correct way of 
judging out of each one of those provisions? 
There may be truths in each one of those 
positions, and none of them absolutely creates an 
absolute way of judging." Roberts replied: "Well, 
I have said that I do not have an overarching 
judicial philosophy that I bring to every case."

Senator Grassley returned to the issue of 
Roberts's constitutional philosophy later. He 
summarized an exchange Roberts had had during the 
hearings considering his successful nomination to 
the circuit court. Grassley recalled Roberts as 
saying then, "I do not have an all-encompassing 
approach to constitutional interpretation.... I 
would not hew to a particular school of 
interpretation, but would rather follow the 
approach or approaches that seem most suited in 
the particular case to correctly discerning the 
meaning of the provision at issue." Roberts 
accepted Grassley's recollection of his earlier 
statement and then added, falling back once again 
on his hollow reference to law, "And I don't have 
an overarching view.... [I] take a more practical 
and pragmatic approach to trying to reach the 
best decision consistent with the rule of law."

This more "pragmatic" approach, which lets a 
judge's sense of how the case should be decided 
govern the method of interpretation he uses to 
decide it, rather than the other way around, is 
the most open invitation possible to 
result-driven adjudication, that is, to a judge 
putting his own policy preferences into his 
decision rather than trying to filter them out. 
Of course Roberts is right that a constitutional 
philosophy should not be an academic straitjacket 
that makes the facts of particular cases and the 
practical consequences of a decision one way or 
the other irrelevant. But that means only that a 
decent philosophy must show how facts and 
consequences are relevant, not that no such philosophy is needed.

The effect of these discussions was that Roberts 
declined to describe and embrace any general 
theory of constitutional adjudication.[7] But he 
did discuss what must be an important part of any 
such theory—the doctrine of 
precedent—extensively. Most of the Judiciary 
Committee was interested in his opinions about 
precedent for a single reason: they wanted him to 
say either that he would or would not vote to 
overrule the central holding in the famous 1973 
Supreme Court decision in Roe v. Wade that states 
may not prohibit early abortion. The Court had 
itself reaffirmed that central holding in 1992, 
in its decision in Planned Parenthood v. Casey. 
The hearings therefore offered the unusual 
spectacle of liberal senators insisting that 
established precedents should not be disturbed 
and conservative senators insisting with equal 
fervor that they sometimes should be.

Roberts declared that since the question whether 
Roe should be overturned would very likely come 
before the Court, he should avoid expressing any 
opinion about whether that case was correctly 
decided or whether, if not, it should now be 
overturned. But he did say, several times, that 
he had great respect for the doctrine of 
precedent, that any earlier decision of the Court 
is entitled to "deference," that a justice should 
therefore not vote to overrule an earlier Supreme 
Court decision just because he thinks it was 
wrongly decided, and that several other factors 
bear on that issue, including whether people had 
changed their positions in reliance on the past 
decision, whether that decision had proved 
"unworkable," and whether its basis in law had 
been eroded by other Supreme Court decisions 
taken since it was decided. He noted that the 
three-judge plurality in the case of Planned 
Parenthood v. Casey had themselves proposed those 
tests and had concluded that they should not 
overrule Roe; but he refused to say whether he 
thinks they were right in that conclusion. He 
also noted that the Court sometimes has overruled 
its own past decisions of long standing, and 
cited, as the obvious example, the Court's 1954 
decision in the Brown case overruling its much 
earlier decision, in Plessy v. Ferguson, that 
public school segregation by race is constitutional.

Roberts succeeded in leaving it entirely unclear 
whether he would vote to overrule Roe when the 
Court is next presented with the opportunity to 
do so, though it is worth noting that 
conservative commentators think he may do so.[8] 
But his careful equivocation also left it unclear 
whether he has any view of precedent that would 
prevent his own opinions about the morality of 
abortion from dictating that decision, because he 
left open what he means when he says that a past 
decision has proved "unworkable."

Is a decision unworkable when after three decades 
it continues to provoke passionate and even 
violent opposition and has therefore failed to 
resolve a divisive social conflict? That is a 
crucial question in considering Roberts's likely 
votes not only about abortion but about many of 
the Court's other precedents. Would his theory of 
precedent permit him to repeal long-established 
precedents barring prayer in public schools on 
the ground that these too had proved "unworkable" 
in resolving deeply divisive issues?

In an important though little-noticed exchange, 
Senator Arlen Specter asked Roberts whether 
overruling Roe would mean bowing to public 
pressure, which the Court ought not to do. 
Roberts replied only that public condemnation of 
a precedent is "a factor that is played different 
ways in different precedents of the Court." He 
said that in one case, in which the Court had 
reversed its earlier opinion that victims may not 
testify in the sentencing phase of a criminal 
trial, the fact of wide public dissatisfaction 
with the precedent was taken as a ground for 
overruling it. He did not, however, indicate 
whether he thinks that ground is appropriate.

So Roberts's discussion of precedent, though 
extensive, offers no reassurance that he will not 
follow his own political preferences in deciding 
which precedents to sustain and which to 
overrule. We must reach the same conclusion about 
his discussion of another jurisprudential issue: 
"judicial activism." Conservative politicians 
once gave that name to the practice of liberal 
justices who overruled state and national 
statutes—including statutes making abortion or 
homosexual sodomy a crime—to create what the 
liberals considered a more just society. In 
recent years conservative judges have been much 
more willing than liberals to strike down 
congressional statutes in order, according to 
liberal critics, to create the more limited 
federal government that conservatives favor. In 
the two most notorious such decisions the Court 
ruled that Congress has no power to make carrying 
a gun and bullets into school a crime or to give 
women who are the victims of "gender-motivated" 
violence a civil remedy. In both cases, the 
conservative justices declared, the Constitution 
limits congressional power to matters of 
"interstate commerce," and gun possession and 
violence against women are matters of local, not 
interstate, transaction. So liberals now accuse 
conservative justices of "activism."

Several senators, both liberal and conservative, 
asked Roberts to comment on whether and when the 
Supreme Court should be active in that way. 
Roberts properly replied that judges have a 
constitutional duty to test legislation against 
the Constitution and that it is not any sin of 
activism but simply a mistake when judges strike 
down a statute they ought to sustain, just as it 
is not activism but simply a mistake when they 
sustain a statute they ought to invalidate. He 
therefore rejected—in my view correctly—another 
possible constitutional philosophy that might 
insulate a judge's decisions from his own policy 
preferences: that judges should respect any 
elected legislature's decision about the scope of 
its own powers except when its violation of the 
Constitution is undeniable. But once again he put 
nothing in the place of that theory except yet 
another anodyne appeal to the illusory constraint 
that judges should follow "the law."

3.
I do not expect Roberts to vote to overturn Roe 
v. Wade, or even to overturn the Court's repeated 
decisions sustaining limited affirmative action 
programs in state universities and professional 
schools. It seems likely, moreover, that neither 
decision will be seen as in the best interests of 
political conservatives. Overruling Roe would 
suddenly make abortion again an urgent national 
political issue for many millions of women who 
have come to take for granted the right that 
women have enjoyed for two generations and who 
now vote to express their views on other issues, 
often for Republicans. Overruling Roe would not 
be helpful to the national Republican Party. Nor 
does the Bush administration actually oppose 
using the law to achieve greater diversity in 
universities and professional schools, a goal 
endorsed by the military and major corporations 
in briefs submitted to the Supreme Court in the 
Michigan cases of 2003 testing the 
constitutionality of affirmative action programs. 
The administration itself submitted a brief 
urging the Court to declare the Michigan programs 
unconstitutional, but as I said in my discussion 
of those cases in these pages, it did not in fact 
call for the elimination of all programs whose 
explicit goal is to improve racial diversity.[9] 
It is argued only that different means should be found for pursuing that goal.

The danger is greater, in my view, that Roberts 
will join with the other conservative justices in 
extending the President's power to conduct his 
war against terrorism without regard for either 
international law or the traditional rights of 
prisoners. During the hearings he insisted that 
the Bill of Rights remains in full force during a 
war, and he seemed to reject Chief Justice 
Rehnquist's famous comment that though the laws 
are not silent in times of war they speak in a 
quieter voice. Yet he emphasized the president's 
powers as commander in chief and suggested, when 
Senator Patrick Leahy asked him whether the 
president had the power to order the torture of 
prisoners, that that depended on whether Congress 
was "supportive" of the president's action.

That view hardly seems consistent with the 
assumption that the most fundamental rights hold 
with full force even in wartime. When Senator 
Russell Feingold asked him whether he had any 
"concerns about the practice of extraordinary 
rendition, of our government secretly sending 
people to countries that we know use torture," he 
replied that he could not comment because the 
issue might come before the Court "in one form or 
another." But it hardly seems likely that the 
Supreme Court will be called upon to judge the 
odious practice of sending prisoners abroad to be 
tortured because it is unlikely that any 
government would admit to the practice.

In one of Roberts's decisions as a circuit court 
judge that I mentioned earlier, Hamdan v. 
Rumsfeld, he joined an opinion that took an 
extraordinarily broad view of the president's war 
powers, a view that was unnecessary to the 
decision.[10] The Geneva Conventions, to which 
the United States is a party, provide that 
military prisoners who do not qualify for the 
full protection of prisoner-of-war status are 
nevertheless entitled to "humane" treatment and 
to "the judicial guarantees which are recognized 
as indispensable by civilized peoples." President 
Bush has determined, by executive fiat, that the 
prisoners at Guantánamo whom he accuses of aiding 
al-Qaeda are not entitled even to that very modest protection.

A prisoner who is accused of being Osama bin 
Laden's driver and bodyguard brought a habeas 
corpus challenge to his forthcoming trial by a 
military commission citing that provision of the 
Geneva Conventions among other reasons why he 
should not be tried before such a commission. 
Though Circuit Court Judge A. Raymond Randolph 
held that in any event treaties cannot be 
enforced in federal courts, he also declared that 
Bush's opinion that the treaty should be 
interpreted as not applying to particular 
prisoners is entitled to judicial deference, and 
Roberts, without writing a separate opinion, 
joined in that declaration. A third judge, Senior 
Circuit Court Judge Stephen Fain Williams, joined 
in the decision on the first ground but protested 
that though a president's "construction" is 
entitled to "great weight," Bush's interpretation 
of the Geneva Conventions' language was so 
clearly wrong that it should not be accepted. 
Roberts could have joined with Williams rather 
than Randolph without affecting the overall 
decision in the case, but he took the opportunity 
to declare an amazingly broad view of the president's powers.

4.
As this is written, there seems no doubt that the 
committee and then the Senate will confirm Judge 
Roberts's nomination, probably, in the latter 
case, by a large margin. He is a stunningly 
intelligent lawyer who may well prove to be an 
excellent chief justice. The country will have to 
wait and see. But Senator Biden was right when he 
said that in approving his nomination the Senate 
is "rolling dice." The Judiciary Committee 
allowed him to keep his jurisprudential 
convictions, if he has any, almost entirely 
hidden. The senators asked him to comment on very 
specific cases and issues, an invitation he 
steadily—though with at least one notable 
exception—refused.[11] I believe he was wrong to 
refuse to answer these specific questions. His 
argument that it is unfair to litigants to reveal 
his present opinion of issues he might later 
confront is very weak. His honest statement of 
his present views would in no sense be a promise 
or commitment. He will have to consider arguments 
in specific cases before making a decision, and 
he will join a Court most of whose other members 
have publicly stated their opinions on many of 
the issues that will come before them without 
raising any question of fairness to future 
litigants, who must often argue knowing that 
certain justices are disposed to vote against 
them. His argument, moreover, wholly neglects a 
very powerful contrary consideration: that 
according to any plausible view of democracy the 
public has a right to know his views on matters 
affecting their fundamental rights in some detail 
before their representatives award him lifetime power over those rights.

Whether or not Roberts answered the committee's 
detailed questions about particular issues, 
however, it should have pressed him on the 
character of the more general constitutional 
philosophy he would employ finally to decide 
those issues when they arise. It should not have 
accepted his reiterated banalities about being 
guided by the law, or deferring to the rule of 
law, or taking due account of precedent, or 
deciding legal issues in a practical, pragmatic 
way, or allowing the facts their "proper role." 
It should have asked him what all those words and 
phrases actually mean. The Senate has no right to 
gamble with the nation's constitution and its future.

The committee will shortly have another, equally 
important, opportunity to protect both when Bush 
nominates a successor to Sandra Day O'Connor. We 
must hope that it has learned from its failures 
in the Roberts nomination. It should demand to 
know the new nominee's constitutional philosophy. 
If he or she refuses to disclose it, or claims 
that it is only to respect the rule of law and 
adds nothing more helpful about what that means, 
then its constitutional duty is to advise the 
Senate to reject that nominee as either disingenuous or incompetent.

Notes

[1] "The Nominee," The New York Review, October 6, 2005.

[2] See the exchange between Scalia and me in 
Antonin Scalia, A Matter of Interpretation 
(Princeton University Press, 1997), at pp. 115ff 
and 144ff. See also my articles, "Fidelity as 
Integrity: The Arduous Virtue of Fidelity: 
Originalism, Scalia, Tribe, and Nerve," 65 
Fordham Law Review 1249 (1997), and "Bork's 
Jurisprudence," University of Chicago Law Review, Vol. 57 (1990).

[3] See my article "A Badly Flawed Election," The 
New York Review, January 11, 2001.

[4] See the exchange between Scalia and me, footnote 2 above.

[5] Stephen Breyer, Active Liberty: Interpreting 
Our Democratic Constitution (Knopf, 2005). The 
First Amendment's guarantee of freedom of speech, 
Breyer says, should be understood "as seeking to 
facilitate a conversation among ordinary citizens 
that will encourage their informed participation 
in the electoral process" (p. 46), and he 
concludes that First Amendment values argue not 
just against but also for legal limits on 
politicians' campaign expenditures because too 
much money in politics cheats ordinary people of 
their voice. Moreover, the Constitution should be 
seen as distributing power between Congress and 
state governments so as to encourage as much 
political participation by individual citizens as possible.

Seen in that way, affirmative action programs are 
constitutional, in spite of their use of racial 
criteria, because such programs make many more 
citizens capable of informed and effective 
political activity. Each of these arguments, 
drawn from Breyer's conception of the role of the 
Constitution in promoting the right understanding 
of democracy, offers him grounds for deciding to 
reject constitutional challenges to programs and 
policies whether or not he himself thinks them wise.

[6] I describe that conception of democracy and 
illustrate its application to a large variety of 
constitutional issues in my book Freedom's Law 
(Harvard University Press, 1996), and also in 
Sovereign Virtue (Harvard University Press, 2000).

[7] Roberts did, however, appeal to a "theory of 
democracy" at one point in the hearings. In 
answer to Senator Jon Kyl's invitation to comment 
on the practice of some justices to refer to 
foreign legal materials in their own opinions, he 
said that he thought the practice was offensive 
to democracy because only American judges are 
appointed by officials elected by the American 
people. I believe he misunderstood the practice, 
as I say in footnote 11 below, but it is 
revealing that he thought it appropriate to refer 
to a particular conception of democracy in this way.

[8] For example, Leonard Leo, currently on leave 
as executive vice-president of the Federalist 
Society to help coordinate support for Judge 
Roberts, said on the PBS Journal Editorial Report 
on September 16: "I think that he left the door 
wide open to reviewing Roe and possibly even 
overturning it." Transcript available from 
www.pbs.org/wnet /journaleditorialreport/091605/transcript _leadstory.html.

[9] "The Court and the University," The New York Review, May 15, 2003.

[10] 415 F.3d 33 (2005).

[11] Roberts contradicted this view when he 
vigorously opposed the practice of some justices, 
including Breyer and Anthony Kennedy, of 
referring to foreign law and decisions in their 
opinions, a practice conservatives have 
denounced. Roberts may have misunderstood the 
practice—these justices refer to foreign 
materials only for the benefit of the views of 
other legal cultures that have faced similar 
issues, not as precedents that are to any degree 
controlling—but in any case the question whether 
it is proper to refer to such materials for 
guidance will certainly come up, again and again, 
in a large variety of cases that the Court will face.

(source: Ronald Dworkin in: The New York Review of Books, Sept. 21, 2005)





TEXAS:

Death penalty more like 'state-sanctioned murder'

Texas made history recently by executing its 
first African American woman since the Civil War. 
However, it wasn’t the historical significance 
that should have made the papers; the important 
part was the still lingering questions about the guilt of this woman.

Perhaps a bit of history about the case would be 
helpful in explaining the regrettable 
circumstances. Frances Newton was convicted in 
1988 for the murder of her husband and two small 
children. The prosecution claimed that the motive 
for the murder was to collect on an insurance 
policy taken out weeks earlier. They also had a 
gun that supposedly connected her to the crime. 
Seems pretty simple, but as with most things in life, it wasn’t that simple.

There were inconsistencies about the case in 
several different areas. One is the motive. 
Prosecutors said that she did it to collect on an 
insurance policy she recently took out. What they 
didn’t say was when she got the policy. She went 
to buy car insurance and it was only after the 
saleswoman convinced her that she agreed to get 
the life insurance. And she didn’t get it because 
she had planned on killing her family, more 
likely it was because recently her aunt’s house 
had burned down, killing her children and the 
family didn’t have enough money to bury them. 
That seems like a pretty logical reason to agree to life insurance.

There is still the physical evidence. The police 
connected her to a gun that she led them to. 
Apparently the reason she had the gun was pretty 
benign as well. Her husband, Adrian Newton, had 
been having a drug problem and it created strains 
on their marriage, but earlier that day he 
promised her that he had stopped. Curious as to 
whether he was telling the truth, Newton looked 
in the cabinet where he normally stored his drugs 
and instead saw a gun. She was worried because 
earlier her husband and his brother were talking 
about having problems with his drug dealer so she took the gun.

Later that day, while at her cousin’s house, she 
hid it in an abandoned house near her cousin’s 
home. After that, she and her cousin went back to 
Newton’s house, where they discovered the bodies. 
Her husband and two children had been shot 
execution-style and lay in a bloody mess. 
According to the prosecution’s timeline, Newton 
would have had to kill her family, dispose of the 
evidence, including her bloodied clothes, and get 
to her cousin’s house within a half-hour’s time.

It didn’t matter that Newton was clean of any 
traces of blood, after participating in a very 
bloody act that left a trail throughout the 
house. It didn’t matter that her husband’s 
brother told police that Adrian Newton owed a 
drug dealer $1500 and gave the cops his address. 
That point was left uninvestigated; the drug 
dealer was never visited. Additionally, it was 
later revealed that detectives came across two 
separate guns instead of just the one. It will 
never be known which gun actually matched the ballistics.

And yes these are all very important points, and 
most respectable defense attorneys would have 
brought these up at trial. But Newton was 
unfortunate enough to get stuck with the infamous 
Ron Mock. So infamous in fact for his failure at 
death penalty cases that he was called Death Row 
Mock. Not only did he fail to investigate these 
plausible alternatives on behalf of his client, 
he failed to even question any of the witnesses, 
or bring any witnesses for the defense on the 
stand. Adrian Newton’s parents even wanted to 
testify on Newton’s behalf but they were never 
called to the stand. This defense attorney has 
been so negligent in his cases that he has been 
brought before the State Bar five times for 
misconduct and is currently suspended until 2007.

And yet despite all of this, Frances Newton was 
executed on Sept. 14 by lethal injection. 
Inconsistencies like these are all too common in 
capital punishment cases. The injustices of our 
court system are spectacular. Race is 
consistently a factor. Although African Americans 
make up only 13 percent of our population, the 
death row population is 41.7 percent black.

Additionally, a huge issue in death penalty cases 
is the quality of representation. In just about 
all of the capital cases the defendant couldn’t 
afford his or her own lawyer. In these life or 
death situations court appointed lawyers have 
been known to fall asleep during the trial or 
come in intoxicated. I doubt that is what the 
framers of our Constitution had in mind when they 
spoke of proper representation. And then comes 
the important question of guilt. Over 114 people 
have been exonerated from death row since 1973. 
If this many people have been cleared then it 
seems pretty inevitable that innocent people have 
been executed in the past and some are awaiting their deaths today.

Aside from all these discrepancies we really 
should be asking ourselves if this is the kind of 
society we want to live in. Are we really as 
civilized as we claim to be with state-sanctioned 
murder? My dictionary’s definition of murder is 
the killing of a person inhumanely. And humane is 
defined as kind, tender, sympathetic. I don’t see 
how killing can be done kindly. Are those that 
support the death penalty doing so out of the 
kindness of their hearts? I doubt it.

Aside from all these judicial and societal 
questions, the best one that remains is what my 
young cousin asked, his innocence and simplicity 
explaining it best: “We kill people who kill 
people to show that killing people is wrong?” It just doesn’t make any sense.

(source: Column, Collegiate Times)





FLORIDA:

Prosecutors Ask For Death Penalty In Murder Case 
Without Body - Defense Says No Body Means No Crime Committed

A South Florida jury was asked Wednesday to give 
the death penalty to a murder suspect, despite 
the fact that authorities have never found the 
body of the alleged victim or a murder weapon.

Juries sometimes convict even in cases in which 
physical evidence is sparse, such as the Scott 
Peterson or Shannon Melendi cases.

Prosecutors hope their circumstantial case is 
strong enough to win them a conviction and a 
death sentence against Jesus Rodriguez, whose 
estranged wife, Isabel Rodriguez, has been missing for nearly four years.

"There is no body. The defendant made sure we'd 
never find a body," prosecutor Abbie Rifkin said.

Jesus Rodriguez has denied killing his wife, and 
his lawyers called the charges flimsy.

"Sometimes a lack of evidence is not proof of the 
perfect crime. Sometimes it means no crime was 
committed," Rodriguez's lawyer, Andrew Rier, said.

Jesus Rodriguez is accused of killing Isabel 
Rodriguez at her home, stuffing her body in the 
trunk of his Lincoln and disposing of her body on 
his east Everglades ranch so well that three 
intensive high-tech searches turned up nothing.

However futile the search for clues on 
Rodriguez's ranch, prosecutors said a volatile, 
talkative defendant has bolstered their circumstantial case.

Missing persons detective Giancarlo Melito 
testified that the defendant was teary-eyed, then 
hateful when questioned about his missing wife.

"His eyes would just turn pure white and he'd 
state she was the devil," Melito said.

Jesus Rodriguez called his wife "the devil" in a 
letter he wrote to the judge and is accused of 
threatening her when she enforced a stay-away 
order against him, prosecutors said.

Defense lawyers objected to this, saying witnesses never heard a death threat.

The defense told jurors that any suggestion that 
Jesus Rodriguez built a fire on his ranch and 
burned the body are ludicrous. Their research for 
the case included a visit to a Miami crematory. 
They said ovens that can destroy remains require 
higher temperatures than any open-air fire can achieve.

The defense also said that inmate witnesses who 
will claim Jesus Rodriguez incriminated himself 
to them should not be believed, since Rodriguez 
stuck to denials through hours of police questioning.

"Then, the same man gets into jail and -- 'I did 
it, I did it! It was me!' Yeah, right," Rier said.

The trial might last more than a month, and Jesus 
Rodriguez take the stand before the trial ends.

(source: NBC6)





GEORGIA:

Prosecutors seek death penalty in shooting of elderly man

Gwinnett County prosecutors intend to seek the 
death penalty against a Lawrenceville man accused 
of gunning down an 85-year-old partially blind 
man during an attempted burglary.

Gwinnett County District Attorney Danny Porter 
said 35-year-old Joseph David Botto is eligible 
to be prosecuted in Georgia for a capital offense 
since the slaying occurred during the commission 
of a burglary, what is known as a “statutory aggravating circumstance.”

Porter said he also took into account Botto’s 
extensive criminal history when making the 
decision. Botto has criminal cases pending in 
Barrow and Walton county for several incidents 
involving first-degree forgery, theft, aggravated 
stalking and harassing phone calls in 2004.

Botto is also under other indictments in Gwinnett 
for a Feb. 11 incident involving terroristic 
threats, criminal trespass and simple battery and 
a 2004 incident involving forgery, burglary, an 
automobile break-in and carrying a concealed weapon.

No pretrial hearings have been scheduled in the 
murder case yet, said lead counsel and Chief 
Assistant District Attorney Tom Davis.

Botto allegedly wanted to burglarize the home of 
85-year-old Hubert “Papa” Massey and his 
84-year-old wife, Geneva, on Windsor Farms Drive 
in Lawrenceville. Authorities said Botto targeted 
the Masseys because he was an acquaintance of one 
of their relatives and he knew them to be a frail elderly couple.

Police believe Massey woke when an intruder 
shattered a glass window pane in the back door of 
his home on Feb. 19. Family members said he was a 
light sleeper. While his wife remained asleep in 
bed, the World War II veteran armed himself with 
a pistol he reportedly kept at his bedside and 
confronted the burglar at the door.
A shootout ensued, and Massey was wounded in the abdomen, arm and chest.

Massey left behind an extensive family, including 
his wife of 66 years, three daughters, four 
grandchildren, five great-grandchildren and two 
great-great grandchildren. Porter said there was 
a mixed reaction from Massey’s relatives about 
Porter’s decision to seek the death penalty. 
Several were in favor and some had no input on 
the decision, but “no one opposed it,” Porter said.

Massey’s daughter, Brenda Harris, said the family 
will participate throughout the arduous process 
of pretrial motions, trial and appeals.

“It’s hard to think about somebody being killed, 
but yet he killed my daddy so I don’t know,” 
Harris said. “I think we realized from the 
beginning that it was going to be a real long 
process, but we’ll do what we have to do.”

This week has been a difficult one for the 
tight-knit Massey family. Tuesday was the 
seven-month anniversary of his death, and the 
family was preparing to celebrate Geneva’s 85th birthday on Wednesday.

“We still try to do all the things that we did 
before and celebrate the holidays and events. We 
always try to include my dad,” Harris said. “We 
put a picture of him on the table when we do 
birthdays and things so we feel like he’s still with us.”


Other cases pending

Several other death penalty cases also are pending in Gwinnett County.

Jury selection began this month in the trial for 
Wesley Harris, accused of fatally shooting a 
young mother and her 2-year-old in November 1999, 
placing their bodies in the trunk of a car and then lighting it on fire.

Donald Sanders and his sister-in-law, Kayla 
Sanders, are also facing a potential death 
sentence if convicted of stabbing to death a 
family acquaintance, 67-year-old Doris Joyner of Snellville.

(source: Gwinnett Daily Post)