Tuesday, June 30, 2015

1 +1 +1 +1 +1 = 5

I have spent a lot of time in the last week speaking with people who had the good sense not to go to law school.  Bright people.  Educated people, many of them.  Folks who know more, far more, than the general public about our legal system.

They've been paying attention to the Supreme Court's opinions lately because, well, who hasn't been? (Don't argue; it's a rhetorical question.) And because I'm a lawyer, they're inclined to ask questions. Which I try to answer.  And I've found myself explaining the mathematics of the law.

Now, I'm not talking about any high falutin, fancy ass, full dress stuff.  It aint rocket science.  It's not calculus, not non-Euclidian geometry.  I'm talking basic numbers.  1 through 9.  And, well, not even arithmetic.  Just basic counting.
1, 2, 3, 4, 5
That's it.  OK, you made it to five.

Justice Brennan used to hold up a hand, fingers splayed, before his new law clerks.  "You know what this is," he'd ask.  "It's five.  With five votes, you can do anything around here."

Which is true.  Except insofar as it's not.

In the beginning, (1972) there were two:
  • William Brennan
  • Thurgood Marshall

And then, 22 years later (1994), a third.
Harry Blackmun
The fourth came after another 14 years (2008).
John Paul Stevens
Now, a mere 7 years later (2015), two more.
Stephen Breyer
Ruth Bader Ginsburg
Which is 6.  And yet not 5.

Because we're talking votes, not heads.  And accomplishing something takes not 5 heads but 5 votes. At one time.

In 1972, in separate opinions in Furman v. Georgia, Justices Brennan and Marshall explained why they believed the death penalty unconstitutional - not merely as applied by the states under then-current law, but across the board.  And while there were five votes to strike every death penalty law on the books, five votes to empty death row, there were only two who were ready to end it for good.

Brennan retired in 1990.  Marshall in 1991.  When Harry Blackmun announced his opposition in Callins v. Collins,  he was alone on the Court.  Not a third vote, but a first.  When he retired some six weeks later, it was back to none.

And so it stood.  Until Baze v. Rees in 2008 when John Paul Stevens said that they hadn't shown Kentucky's lethal injection protocol was constitutional, but the death penalty itself, which was not then before the Court, was not.  Again there was one vote.  Even though he was number four.

Monday it was Breyer, joined by the Notorious RBG in Glossip v. Gross.  Which would be three, except that Stevens retired in 2007.  So, now it was two.

And while it may well be that Kagan and Sotomayor would, if the question were called, add two more votes, it's not enough.

So 6 votes.  Call it a supermajority, if you like.  But it's a case where 6 is less than 5.  And it's less than 5 even if 6 is really 4.

And so, we turn to Anthony Kennedy.  Who is the only one of the remaining Justices who just might jump ship.  And who's key to the major question:
Can you count to 5?
Breyer asks that someone raise the question.  Which is great if there are five votes but sucks if there are only 2 (or 4).  Since that would simply entrench. 

So? Josh Lee think we can get him.  Some days I agree.  Other days, not so much.

What to do?  Do the math.

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