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 course they can be excluded if they will refuse to apply the death penalty in any circumstance.) Using the time-honored conservative strategy of making constitutional protections basically meaningless, Kennedy's strategy here is to defer to an exceptionally implausible state court interpretation of the excluded juror's statements at voir dire. This kind of "federalism" -- permitting state courts to effectively ignore federal law as they're willing to engage in bad faith evasions -- is bad enough in the abstract, but is particularly intolerable in the wake of Bush v. Gore (in which a state court's interpretation of state law was overruled based on an ad hoc federal question no member of the majority would have considered substantial a month before or a month after the case). There are a couple of lessons here. The first is that Alito's addition to the Court means that, irrespective of the merits, there is only one vote even plausibly in play in the vast majority of civil liberties cases (although since Justice "this is a case about federalism" O'Connor also had an awful record on these kinds of cases, the effect is more limited.) The second lesson, as with Carhart II, is not to be fooled by the fact that the Roberts Court claims to be upholding landmark precedents. Nominally upholding precedents while stripping them of content was a favorite tactic for Rehnquist, and we'll be seeing more of it under this Court. --Scott Lemieux
