May 1, 2006


Alito May Tilt Vote in Reargued Cases (Charles Lane, May 1, 2006, Washington Post)

[I]t won't be long before Alito makes his mark. There are three cases on the court's docket in which the 56-year-old junior justice will probably have the deciding vote.

These are the three cases the court has set down for reargument since Sandra Day O'Connor left the court and Alito took her place on Jan. 31. [...]

Garcetti v. Ceballos involves a lawsuit by a former Los Angeles County prosecutor who says that his bosses retaliated against him because he wrote an internal memo charging a police officer with lying to get a search warrant in a murder case.

Richard Ceballos says the retaliation violated his constitutional right to free speech because his memo was about a matter of public concern. But the defendants, including former Los Angeles district attorney Gil Garcetti, argue that disputes over policy between public employees and their supervisors should not become potential First Amendment lawsuits.

Kansas v. Marsh is about Kansas's death penalty law, enacted in 1994, which requires a death sentence in cases in which the jury finds that there is an exact balance between the factors favoring capital punishment and those weighing against death. Convicted murderer Michael Lee Marsh II says that saddles him with the burden of proving he should not be executed, which, he says, is unconstitutional.

Hudson v. Michigan revolves around the "knock and announce" rule for police raids. The Supreme Court has prohibited officers from simply barging in to execute a search warrant; instead, they must identify themselves and give the occupants a reasonable time to respond, except in emergencies. Otherwise, they cannot use the evidence at trial.

Booker Hudson says his rights were violated because officers did not knock and waited only three to five seconds before entering his house. Michigan conceded that was wrong, but says that the evidence -- drugs and a gun -- should still be admissible because it would have been found even if the officers had waited longer.

Only two other cases from the court's pre-Alito days, House v. Bell , No. 04-8990, and Whitman v. Department of Transportation , No. 04-1131, remain undecided. The former involves a Tennessee death-row inmate's claim of innocence; the latter is about grievance procedures for federal employees.

Justice Alito will certainly side with the conservatives on such trivia. The more interesting question is whether Chief Roberts can continue the shift he's been effecting and get a couple of these to 6-3 or even 7-2. Expect him to assign the cases to either himself or Justice Kennedy in an effort to do so.

Posted by Orrin Judd at May 1, 2006 7:28 AM

OJ, on the Death Penalty case, I don't think either Roberts or Alito matter, for the anti-death penalty people have five firm justices capable of overturning the death penalty altogether. Especially in Kansas v Marsh, which if the defendant is correct, is a travesty of justice if the Death Penalty is upheld.

Posted by: Brad S at May 1, 2006 8:58 AM

Sure on trivia such as these cases, about death penalty and such, but who expected todays really big unanimous decision on Anna Nicole Smith's case.

Posted by: h-man at May 1, 2006 3:46 PM