Thomas Sowell

Recent shocking Supreme Court decisions may at least wake up those people who have been saying glibly that the Senate has been spending too much time fighting over judicial nominees, instead of getting back to the "real" issues.

 What is more real than the Supreme Court's decision throwing homeowners on the mercy of local politicians, who may want to confiscate their homes and turn the property over to some hotel or shopping mall that will pay more taxes?

 However outrageous it may be to make Constitutional protections for property rights vanish by verbal sleight-of-hand, that is unfortunately very much in the "mainstream" of legal thinking, as the majority opinion in Kelo v. New London demonstrated by citing precedents leading in that direction.

 Justice Clarence Thomas' dissenting opinion, saying that those precedents that go against the plain words of the Constitution need to be reconsidered, was not in the magic "mainstream." But that shows why the mainstream is itself the problem.

 Another outrageous Supreme Court decision this month demonstrates again what is wrong with the mainstream that has been made a litmus test for judicial nominees. Justice David Souter delivered a 5 to 4 majority opinion that set aside the execution of a murderer who committed his murder back in 1988.

 Why? Because his attorney apparently did not push hard enough to try to get him off by claiming an unhappy childhood or mental incapacity. Justice Souter did not say that the murderer actually had an unhappy childhood or was in fact mentally incompetent. It was just that a sufficiently clever defense lawyer might have tried those ploys.

 Since this defense lawyer was not sufficiently clever for Justice Souter's taste, this meant the murderer had been denied a fair trial -- at least as far as mainstream legal thinking goes.

 It is one thing to want to make sure that no innocent person gets executed. It is something very different to block executions of people who cannot even claim to be innocent, by second-guessing the strategy of their defense attorneys.

 Justices of the Supreme Court cannot possibly know all the things weighed by a particular lawyer in deciding which strategy to use in defending his client. Raising an obviously phony claim to an unhappy childhood or mental deficiency might undermine the defense attorney's credibility in the eyes of the jury, making them even less sympathetic to his client.

Thomas Sowell

Thomas Sowell is a senior fellow at the Hoover Institute and author of The Housing Boom and Bust.

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