Scott Lemieux

Scott Lemieux is an assistant professor of political science at the College of Saint Rose. He contributes to the blogs Lawyers, Guns, and Money and Vox Pop.

Recent Articles

AGAINST THE PEREMPTORY CHALLENGE.

AGAINST THE PEREMPTORY CHALLENGE. Adam Liptak has an excellent article ( via ) about peremptory challenges and their ongoing use to produce racially unrepresentative juries. Liptak mentions the 2005 Miller-El case, which I discussed here . (Remarkably, despite extensive evidence that created an exceptionally strong inference of unconstitutional race-based peremptories, Scalia, Thomas and Rehnquist dissented.) This case illustrates, however, the difficulty of proving racial discrimination no matter how overwhelming the patterns of exclusion are, and despite the Supreme Court's invitation state courts are unlikely to supervise procedures very aggressively. Like Liptak, Thurgood Marshall , and Stephen Breyer , I think it's time to do away with peremptory challenges entirely. They aren't constitutionally mandated, and it's increasingly hard to see how permitting the arbitrary exclusion of jurors would lead to fairer trials. Breyer quotes Arthur Goldberg , who noted that "[w]ere it...

BUSH's IDEA OF A FAIR JUDGE.

BUSH's IDEA OF A FAIR JUDGE. Via Matt , an excellent summary of the record of Leslie Southwick , the latest Bush Circuit Court nominee whose primary qualification is a slavish devotion to business interests. Particularly remarkable is the case of Richmond v. Mississippi Dep't of Human Services, in which the Court of Appeals of Mississippi (in an opinion joined by Southwick) upheld the state's decision to overrule a Department of Human Services decision to fire an employee who used a racial slur against another employee. The state's decision is subject to review, and cannot be "arbitrary or capricious." So what were the findings that justified overriding the decision of DHS? As the dissent notes, here was the argument: (1) DHS overreacted; (2) the remark was made in an open meeting with an atmosphere of give and take; (3) the term "good ole nigger" was not a racial slur; (4) calling Varrie Richmond a "good ole nigger" was equivalent to calling her "teacher's pet." Arguing that these...

GUTTING WITHERSPOON. Earlier...

GUTTING WITHERSPOON . Earlier this term the Supreme Court overturned a death sentence because of clear errors of federal law committed by the ultra-reactionary and notoriously hackish Texas Court of Criminal Appeals. What was remarkable was not the outcome, but there were four votes upholding the TCOCA's transparent attempts to evade federal law (with the dissent written by new addition Sam Alito ). Lest this make you optimistic, however, today the Court -- overturning an opinion handed down by the very conservative Alex Kozinski ! -- voted to reinstate a death sentence with an extremely weak opinion. Justice Kennedy, fresh from an embarrassingly feeble opinion upholding a federal abortion statute based on farcically erroneous "fact-finding," today meekly defers to a state court's bizarre interpretation of a voir dire proceeding to uphold a death sentence. Under the Witherspoon precedent a juror cannot be excluded solely because they personally oppose the death penalty (although of...

IT'S ALRIGHT MR. KENNEDY, MY UTERUS IS ONLY BLEEDING.

IT'S ALRIGHT MR. KENNEDY, MY UTERUS IS ONLY BLEEDING. Marty Lederman points us to an interesting WaPo article , in which a few members of America's tiny minority of serious, principled "pro-lifers" have come to see that "Partial Birth" bans are silly, irrational laws whose primary purpose is to separate money from their wallets and funnel it to the Republican Party. Focus on the Family, however, maintains that the bans do have an upside: the law does increase the "danger of internal bleeding from a perforated uterus." If you don't believe me that most of the American forced pregnancy lobby cares a great deal more about punishing women for sexual choices they don't approve of than protecting fetal life, well, I say we take their word for it. And, again, this explains the sexism in Kennedy 's opinion ; you take it away, and the legislation has no connection with a legitimate state interest at all . As you can see, most anti-choicers (despite the bad-faith congressional findings that 2+2...

FEDERALISM, MADISON AND THE 21st CENTURY.

FEDERALISM, MADISON AND THE 21st CENTURY. Matt has one obvious rejoinder to David Brooks 's pean to the mediocre character actor and undistinguished one-term+ Senator who seems to be the GOP's New Fresh Hope for '08. So instead I'll take issue with Brooks praising Thompson because "[h]e’s going back to Madison and Jefferson and the decentralized federalism of the founders, at least as channeled through Goldwater ." My first response is, how on earth could it be an ipso good thing to go back to a conception of federalism designed for a predominantly agrarian 18th century society? You really need a make a further argument here. So let's try that. Advocates of a strong "federalism" are fond of discussing Madison's argument that federalism is a "double security" for liberty. Unless you place a higher value on such freedoms as the right to ship goods made with child labor than I do, however, it's not clear how well this has worked in American history. Much more prescient was Madison's...

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