Two things: first, a critique of law school; and a commentary on the death penalty.

I know your point is not an attack on law school... but let me make that attack. In my three years of law school, maybe five classes I actually used in practicing law. Some of the ones I didn't use were excellent: my secured transactions (UCC Article Nine) was first rate. If I'm ever on Jeopardy, and if that's a category, I'll make serious bank. And I KILLED the Bar exam essay. But it never came up in practice. On the flip side, I had an A in my Wills & Trust class... and I can write wills for people in the 1800s... but writing a will today? Not even if you put a gun to my head.

More to the point, in Gerry Spence's book, And Justice for All, Spence slams his law school education for NOT training him to be a trial lawyer... and he had to learn how--pretty much--like every other new law school grade: getting out and malpracticing the hell out of his first dozen or so clients.

The point is, being a trial lawyer is hard.... And that's not something law school even pretends to teach you. As Bill Murray says in Ghostbusters: "I've always been kind of weak on the whole good-bad thing..." but crossing the beams is "bad." Law schools--esp. for what they charge now--must do a better job, because what they offer is "bad."

Second, as far as the death penalty goes, the litigation IS unnecessarily complicated, but that's entirely because of the militant bad faith by prosecutors--and frankly? The bench. DAs all insist they CAN'T do DNA testing, because that disrupts the "finality" of verdicts and upsets victims--which is horseshit. Victims are MUCH more upset when the wrong person is convicted, and their perpetrator may still be running free..... Only DAs kvetch about "finality"....

Death penalty cases have become more complicated, because as Illinois Governor George Ryan found, more people on death row were exonerated, than were put to death. But instead of sharpening state prosecutions, DAs and the courts have just made it harder for death row litigants to challenge their convictions... with the point being--I suppose--to execute innocent people.

For anyone who thinks I'm exaggerating... In Callins v. Collins, Justice Scalia mocked Justice Blackmun's dissent, where Blackmun contended that death by lethal injection was cruel and unusual punishment. Scalia then argued that lethal injection is no where near as horrible a death as some: “For example, the case of the 11-year old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that!” .... which, on the one hand, is wholly beside the point. But more importantly, the case Scalia alluded to is McCollum v. North Carolina... where after spending thirty years on death row, McCollum was later exonerated: he was innocent.

Next, during the oral argument in Glossip v. Gross, Justice Scalia accused death penalty opponents of “guerilla war against the death penalty”--because European companies who manufactured the drugs for lethal injection didn't want their products used to kill people.... So states were operating through shell companies and cut outs to buy the drug. Alito's accusation that it's immoral or unseemingly--if not illegal--to oppose the death penalty is just wrong and offensive.....

So really: my point is that death penalty litigation is unnecessarily complicated, because courts want it that way....with the goal being more executions. And the fact those executed may be innocent--or otherwise not eligible for execution--is of no moment.

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May 8, 2023·edited May 8, 2023

Great and informative post.

Thomas' dissent suggested a seemingly more logical way that Reed could have made his claims that perhaps did not gain a majority on the court because of another precedent.

But Reed's lawyers had to, way back when, make a decision about how to pursue their appeal(s). And whether they suceed or fail depends, perhaps to a determinative degree, on then-future doctrinal interpretations made by the court. If, last term, SCOTUS had taken a different case presenting similar issues, and resolved it in the manner of Thomas' Reed dissent, then Reed would have been SOL.

That seems appalling and Kafkaesque.

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May 8, 2023·edited May 8, 2023

Thank you for this; really instructive post for a non-lawyer with an interest in law.

Two points, though.

1. Whether or not Thomas' reasoning is persuasive (and he does seem to make a good case), he once again comes across as a "hanging judge." Lingering on the details of the crime is not persuasive and verges on the voyeuristic. And he completely ignores the very real issues coloring the fairness of Reed's conviction, which are at least as relevant as the details of the crime.

The fact that a bipartisan group of Texas legislators and two Texas judicial bodies urged the execution be delayed makes Thomas's statement that "If there is a mitigating factor to today’s decision, it is that the §1983 action that the Court misguidedly allows to pro- ceed is no barrier to the prompt execution of Reed’s lawful sentence" doubly unseemly.

2. I agree about at least some of Scalia's earlier opinions. As a labor activist, I was quite surprised to find the most cogent defense of the agency fee concept ever written was in Scalia's concurrence/dissent in Lehnert v. Ferris Facutly Association (which Kagan quoted in her dissent). Do you have any thoughts about why he seemed prepared to abandon that position to side with the majority in Janus before his untimely death?

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Elle Woods on legal doctrine: "What, like it's hard?"

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Somewhat related thoughts:

Frank Easterbrook, Ways of Criticizing the Court, 95 Harvard Law Review 802 (1982).


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Another good example of why the notions of just wanting SCOTUS justices to interpret the Constitution and to call balls and strikes is meaningless pablum.

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Wow! Thanks. I had no idea law school was so willy nilly. I have doctors, a scientist, professors, AND a lawyer in my family. Your essay has been enlightening to me on several levels.

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