Constitutional Law,
Criminal,
U.S. Supreme Court
Jul. 22, 2015
Opinion piece takes cheap shot at new justices
An op-ed piece last week expresses his displeasure with U.S. Supreme Court Justice Stephen Breyer's recent dissent that questioned the death penalty's constitutionality.
David S. Ettinger
Of Counsel
Horvitz & Levy LLP
David S. Ettinger is of counsel at the appellate law firm Horvitz & Levy and is the primary writer for AtTheLectern.com, the firm's blog about the California Supreme Court. He serves on the board of directors of the California Supreme Court Historical Society.
In an op-ed piece last week, "Breyer's subjective, personal opposition to the death penalty" (July 16), retired superior court judge Lawrence Waddington expresses his displeasure with U.S. Supreme Court Justice Stephen Breyer's recent dissent in Glossip v. Gross, a separate opinion, joined by Justice Ruth Bader Ginsburg, that questioned the death penalty's constitutionality.
While he was at it, the retired jurist threw in some digs at California Supreme Court Justices Goodwin Liu, Mariano-Florentino Cuellar and Leondra Kruger. They were cheap shots. The op-ed piece says, "The state Supreme Court and its three new, inexperienced justices who have never tried or presided over any trial, and unaware or familiar with California legal history, have already reversed five death penalty cases. ... Perhaps the new members of the court have been reading cases from the 9th Circuit undermining the death penalty for the last decade, or subscribe to the Justice Stephen Breyer model: dispense with precedent and impose personal opinion." It goes on to ridicule "court opinions written by judges who have never tried a case and sit on an appellate level justifying reversals in academic language jurors would have ignored."
Singling out the three newest justices for criticism is misleading at best. It takes more than three to make a majority on the seven-member court. Indeed, unmentioned in the op-ed is that all five of the death penalty reversals to which the piece apparently refers were unanimous decisions. Also not mentioned is that none of the five opinions were written by any of the court's three newest justices, or that none of the opinions were "written by judges who have never tried a case." Four of the opinions were authored by Justice Carol Corrigan, who was a senior deputy district attorney and deputy district attorney for a dozen years and a trial judge for seven years; the other was written by Justice Ming Chin, who was a trial judge for over two years.
Finally, two of the five opinions were issued before Justices Cuellar and Kruger were even on the court. Instead of leveling factually inaccurate ad hominem attacks, critics of California Supreme Court decisions should address the merits of the decisions themselves. The closest the op-ed piece comes to doing that is to grudgingly concede that two of the five death penalty reversals "are arguably correct."
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