Once again, we get more of the "why doesn't Clarence ask questions" stories that pop up a couple of times a year in the media. This one notes it has been about two years sine the last time he asked a question during oral arguments.

Two years and 144 cases have passed since Supreme Court Justice Clarence Thomas last spoke up at oral arguments. It is a period of unbroken silence that contrasts with the rest of the court's unceasing inquiries.

Hardly a case goes by, including two appeals that were argued Monday, without eight justices peppering lawyers with questions. Oral arguments offer justices the chance to resolve nagging doubts about a case, probe its weaknesses or make a point to their colleagues.

Left, right and center, the justices ask and they ask and they ask. Sometimes they debate each other, leaving the lawyer at the podium helpless to jump in. "I think you're handling these questions very well," Chief Justice John Roberts quipped to a lawyer recently in the midst of one such exchange.

Leaning back in his leather chair, often looking up at the ceiling, Thomas takes it all in, but he never joins in.

Monday was no different. Thomas said nothing.

Of course, Thomas is in great company with his style. For most of the Court's history, oral arguments did not involve questioning the advocates during oral arguments. John Marshall, generally considered to be the greatest member of the US Supreme Court, generally didn't ask questions from the bench, nor did Joseph Story and the other giants of the nineteenth and early twentieth century. That changed with the coming of the Roosevelt justices in the 1930s, as FDR made a practice of picking law professors who took their classroom methodology into the courtroom.

Is there anything wrong with asking no questions during oral arguments? Certainly not -- indeed, I'd argue that there is something better about trying to give the lawyers for the parties a respectful hearing. We might be better served by having more of the members of the High Court follow his example

Posted by: Greg at 01:12 AM | Comments (2) | Add Comment
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For a century, the use of the electric chair for executions has been accepted in this country. Yesterday a court in Nebraska ruled differently, saying its use constituted torture and violated the Constitution's ban on cruel and unusual punishment.

Is it a proper decision rooted in the Constitution, or judicial activism?

The Nebraska Supreme Court ruled Friday that electrocution is cruel and unusual punishment, outlawing the electric chair in the only state that still used it as its sole means of execution.

The state's death penalty remains on the books, but the court said the Legislature must approve another method to use it. The evidence shows that electrocution inflicts "intense pain and agonizing suffering," the court said.

"Condemned prisoners must not be tortured to death, regardless of their crimes," Judge William Connolly wrote in the 6-1 opinion.

"Contrary to the State's argument, there is abundant evidence that prisoners sometimes will retain enough brain functioning to consciously suffer the torture high voltage electric current inflicts on a human body," Connolly wrote.

Ordinaily, I'd argue that this is a bit of judicial activism. However, is it possible that increases in our knowledge about the human body and the effects of electrocution have led us to the point where we now know that what once seemed to be a humane form of execution is in fact excessively cruel and amounts to torture? I'm willing to reserve judgment there, given that the opinion goes to great lengths to examine the scientific evidence on the matter. i do, however, struggle with whether it is the proper role of the courts to make that decision.

There is, of course, a simple, effective, and quick method of execution out there that I believe would meet any and all objections under the Eighth Amendment.

Properly modified, equipped with an ultra-sharp surgical steel blade and a hydraulic system designed to instantaneously separate head from body (and body from soul), it should meet any Constitutional objection to the method of execution.

There is a question as to whether or not this decision will make it into the Federal courts, because of the grounds on which the decision was made. The Nebraska Supreme Court didn't actually SAY the decision was based upon the US Constitution, but rather upon virtually identical language in the state constitution -- but then cited nothing except precedents interpreting th US Constitution. That might make taking this case into the federal courts a bit more tricky due to federalism issues.

Posted by: Greg at 01:55 AM | Comments (41) | Add Comment
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I've never liked the notion of allowing prison sentences to run concurrently rather than consecutively, but I understand it as a practical matter designed to avoid prison crowding due to multiple convictions. However, I don't have the same view on fines. Criminals should pay every penny of them.

The Texas Court of Criminal Appeals disagreed in a new ruling.

Criminals in Texas will get a break on their fines under a Texas Court of Criminal Appeals ruling that courts must assess fines concurrently, rather than adding them together.

Wednesday's 5-4 ruling changes the 35-year-old practice under which Texas courts issued separate fines for separate criminal counts, with each to be paid consecutively.

Defendants will now pay the largest fine assessed by the court, and then every other fine is considered paid in full. The new practice brings fines in line with the way many prison terms are served — at the same time rather than consecutively.

The basic holding of the ruling is that the statute, drafted and adopted by Democrats back during their thirteen decade strangle-hold on political power here in Texas, requires that all aspects of sentences following multiple count trials be concurrent, not just prison terms. And as the law is written, I'd have to argue that they are correct.

The solution? New legislation, because it is not the place of the courts to repair or renovate shoddy statutory language. After all, there is no good public policy purpose in giving folks a break on their fines.

Here's hoping that Texas legislators make fixing the ill-considered statute early in the 2009 session.

Posted by: Greg at 10:54 PM | No Comments | Add Comment
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