Irony

[Philip Frickey]

Random thoughts:

1.  Eugene deserves combat pay from UCLA for running this venture.

2.  The Florida Supreme Court can be trusted in run of the mine cases (e.g.,
death penalty cases), but not in a case of importance.

3.  Along these lines, the reason that the administration of the death penalty,
as revealed in the Baldus study involved in McCleskey v. Kemp, does not run
afoul of yesterday's per curiam is that the similarly situated criminal
defendants who are treated differently are treated differently by different
juries and judges, in different county courts.  But am I not under the
impression that the majority of the Supreme Court was very troubled that even
before the recount was consolidated before Judge Terry Lewis, one of the
recounting counties had adopted a liberal (dimpled chads count) approach and
one of the others had not?  And did not Stevens, in dissent, make the
distinction drawn above in asserting that no equal protection problem arises on
these facts?  Is it that death is no doubt different, but less important, than
voting?  I am confused (I really am).

Further affiant sayeth not.

Phil Frickey

Sanford Levinson wrote:

> I trust that the death-dealing majority will take heed of the sentence:
>
> "A desire for speed is not a general excuse for ignoring equal protection
> guarantees."
>
> What is so completely disgusting about the per curiam is not that none of
> the arguments make sense--the equal protection argument certainly does--but
> that it is so impossible to take seriously the commitment of the particular
> justices in the majority to the concern for equality and human dignity that
> is the rhetorical centerpiece of the opinion.  This is the group, after
> all, that basically believes that prisoners have no rights to decent
> treatment and that state procedural niceities certainly take priority over
> the possibilty of executing an innocent person.  I cannot believe that
> anyone on this list believes that the current majority will ever again make
> use of this opinion in a context that runs counter to
> their ideological preferences manifested in the federalism cases and the
> death cases.
>
> sandy

--
Philip P. Frickey
Richard W. Jennings Professor of Law
University of California at Berkeley
School of Law (Boalt Hall)
phone:  (510) 643-4180
fax:  (510) 642-3728