dissents and concurrences from denial of cert.

[Bryan Wildenthal]

Thanks, and Rich is correct, as far as he goes.  But having now reviewed the
opinions to refresh myself, it seems clear to me that Thomas/Scalia were
also indicating rather plainly their views on the merits of the case (that
is, that religion-based peremptories must be prohibited if the race/gender
cases were to be adhered to -- both had dissented vigorously from the gender
case, JEB).  Justice Ginsburg was a bit more cagey.  Her concurring comments
addressed solely why a potential juror's religion would/should usually not
become known, not what to do about it if it does become known and he/she is
peremptorily struck on that basis.

I have long been puzzled why the Supreme Court has dodged this issue for so
long.  I think several states, including Hawaii, prohibit religion-based
peremptories (as does a federal district court decision called Somerstein,
as I recall).  On the other hand, the Texas Court of Criminal Appeals, in a
major and interesting 5-4 decision in 1995 (Casarez, don't have cite
offhand) held that religion-based peremptories are OK because religion is
basically the same as any other kind of opinion which might form a proper
basis for a peremptory, how do you distinguish it from political opinions
also protected by F.A., etc., without totally undermining the value of
peremptories.  (Personally, I think peremptories are more trouble than
they're worth.)

Bryan Wildenthal,
Thomas Jefferson School of Law


-----Original Message-----
From: Richard D. Friedman [mailto:rdfrdman at UMICH.EDU]
Sent: Thursday, November 29, 2001 6:35 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: dissents and concurrences from denial of cert.


Bryan's got a good memory for dates -- the case was Davis v. Minnesota, 511
U.S. 1115 (1994).  And yes, the dissent was by Thomas (with Scalia joining).
But Thomas did not contend that the Supreme Court should resolve the case on
the merits -- only that the decision below should be vacated and remanded
for reconsideration in light of the Court's intervening decision in J.E.B.
v. Alabama, 511 U.S. 127 (1994).

Rich Friedman
University of Michigan Law School

At 04:49 PM 11/28/2001 -0800, you wrote:


One famous example (perhaps justifying this reply to the full list) is
Justice Ginsburg's concurrence in the denial of cert. in the Minnesota case
involving religion-based peremptory jury challenges.  There was a somewhat
extensive dissent from the denial by Thomas, as I recall, arguing that the
Court's race/gender-based peremptory cases required extension to religion.
I can't recall the case name offhand, but I believe it was in 1994.  It was
somewhat unusual to have the merits discussed, both pro and con, in opinions
concurring and dissenting from cert denial (a rather clear signal, I would
think, that the case was cert-worthy and should have been resolved on the
merits).

Bryan Wildenthal,
Thomas Jefferson School of Law



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