May 30, 2005
Two of My Posts, Combined ::
legal — tagged capital punishment, conlaw, crime, judges, legal and SCOTUS
10:21 pm
No, I didn’t go into hiding again. I was just out of town for a few days, celebrating my sister’s graduation from Cornell. I returned home earlier today, and have spent a good part of the afternoon/evening catching up on news and weblogs.
One post that I found particuarly interesting was this one over at Legal Fiction. First, it goes a little more in depth into the Deck opinion, which I mentioned earlier in passing (I was outside the Supreme Court building when the Court announced the opinion). But more interestingly, Publius addresses Thomas’ dissent in that case. Publius asserts that
[t]o Thomas, the act in question (shackling) only violates the 14th Amendment if there is a “deeply rooted legal principle that bars the practice.” [The subtext of this test is Roe, which is also a due process case and was clearly not based on a “deeply rooted legal principle.”] In Deck, Thomas found that there was no such deeply rooted legal principle and thus no constitutional violation. The problem with his analysis, though, is that it seems a lot more like result-driven advocacy than detached interpretation.
I think this idea also relates to my (glib, in retrospect) comment on Janice Rodgers Brown last week. So there does seem to be some smoke and mirrors when it comes to associating conservative judicial philosophy to strict interpretation of Constitutional law. So what I’m curious about, then, is how we might go about disassociating the two dynamics.
