It’s from an old Italian proverb, but it was popularized by Voltaire.
Interesting that a requirement that henceforth all jury decisions must be unanimous was decided by a split Supreme Court.
If he wasn’t dead, I’d shoot him.
I may be mistaken here, but does not the only part that matters consist of the concurrence with 5 votes?
Those with 4 or fewer are pretty much irrelevant are they not?
Six Justices concurred with the decision. The disagreements are mainly about how they got there.
yes, but as a matter of nuts and bolts of how the decision will be followed, how is a lower court (or any other party) supposed to implement the decision except by following only those concurrences which actually got 5 votes?
I understand there were 6 votes on THIS case, in crafting laws and guiding lower court decisions what good is a concurrence with only 4 votes?
maybe I’m splitting hairs too much. I just have to say that on any majority opinion the justice assigned to write it should be required to get it written in a way to gather all of the votes of agreeing jurists without reservation. in a very good way, i believe this would narrow the scope of decisions and create more minimalist opinions.
Parts of an opinion that less than 5 Justices sign on to are not binding on lower courts.
If it’s a plurality, it holds persuasive authority, but not binding authority.
Well, that’s basically what happens - the only binding authority comes from parts of the opinion that at least five Justices agree on.
But let’s take this case as an example - Thomas agreed with the decision of the court, but disagreed completely about how the court arrived at that decision. His writing separately allows him to get his view on the record.
no problem there.
also, it is how i thought. my basic thoughts on this is that they should have to work harder to get all 6 votes without reservation. or minimally, 5 without reservation.
iow, if the majority opinion is shared by 6, but 2 say I agree with all but part IIa, then IIa should be struck from the majority opinion and those supporting it can write a separate minority concurrence.
Here is an analysis of today’s Opinion at Scotusblog.
Excellent article at National Review on today’s case, extremely good analysis of what went on with this case. I concur fully with the author’s sentiments.
Not usually a McCarthy fan, but I certainly agree with him here.
I’m even on Thomas’s side as well - privileges and immunities is more relevant than due process.
I know this was bandied about earlier by a number of posters earlier today.
In interpreting the Constitution, we must fully consider the common law under which it was drawn up and ratified and under which the early amendments were drawn up and ratified.
It is true that certain specific language was rejected by the First Congress. Which is completely unsurprising.
Under the common law of the era and per common practice in that era, juries were required to be unanimous in their verdicts. The drafters of the Sixth Amendment understood this. They rejected specific language in the Sixth Amendment as unnecessary and verbose, feeling that future courts would adhere to the common law understanding of juries.
Unfortunately they did not and the Supreme Court really ****** up with a bad judgement in the early 1970’s, a precedent the Supreme Court just proceeded to overturn.
I concur in the judgement, but preferring Thomas’ opinion in regards to using privileges and immunities rather than due process to come to the conclusion.
Agreed.
I concur as well and primarily for the same reason. Besides, without it, there wouldn’t have been a plot for Twelve Angry Men.
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They are not separate things. The former is part of the latter.
