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Most people believe that at the end of the judicial line stands the Supreme Court of the United States, ready, willing and able to rectify mistakes made by state and lower federal courts.

Not true—at least as to "ready" and "willing."

Although the Supreme Court’s review jurisdiction includes federal constitutional issues adjudicated in the state courts and federal constitutional and statutory issues adjudicated in federal courts, the justices jealously guard the exercise of their jurisdiction. The High Court agrees to hear an infinitesimal number of the many cases competing for its attention.

It takes the votes of four of the nine justices for "certiorari" to be granted—for the Supreme Court to "lift up" for review a case from a state or lower federal court. Failing those four votes to hear the case, the "petition for writ of certiorari is denied."

In virtually all cases where certiorari is denied—where the "decision" is simply not to make a decision—none of the justices explain why they voted for or against certiorari. Sometimes, however, when "cert" is denied, a justice or two will give reasons why it should have been granted. In my nearly half-century career practicing Constitutional Law and having written not a few Petitions for Certiorari, I believe only once or twice has a justice on the short end of a certiorari denial explained in writing why his nay-saying colleagues were mistaken. When, they do, however, their explanations often offer a window into their thinking about the particular case, but into their judicial philosophy.

An important example, with a Supreme Court vacancy apparently just around the corner and the political parties already girding for battle, is the recent case of Forster v. Florida—where Clinton appointee Stephen Breyer couldn’t muster another three votes to grant Certiorari. Here is his description of the case’s facts:

Foster has endured an extraordinarily long confinement under sentence of death, a confinement that extends from late youth to later middle age. The length of this confinement has resulted partly from the State's repeated procedural errors. Death row's inevitable anxieties and uncertainties have been sharpened by the issuance of two death warrants and three judicial reprieves. If executed, Foster, now 55, will have been punished both by death and also by more than a generation spent in death row's twilight. It is fairly asked whether such punishment is both unusual and cruel.

Charles Foster has spent more than 27 years in prison since his initial sentence of death. * * * Foster's latest resentencing took place in 1993, 18 years after his initial sentence and 10 years after the Court of Appeals first found error. Foster now asks this Court to consider his claim that his execution, following these lengthy proceedings, would violate the Constitution's prohibition of "cruel and unusual punishments." * * * For one thing, 27 years awaiting execution is unusual by any standard, even that of current practice in the United States, where the average executed prisoner spends between 11 and 12 years under sentence of death . . . . * * * For another thing . . . the combination of uncertainty of execution and long delay is arguably "cruel." * * * Courts of other nations have found that delays of 15 years or less can render capital punishment degrading, shocking, or cruel. * * * Consistent with these determinations, the Supreme Court of Canada recently held that the potential for lengthy incarceration before execution is "a relevant consideration" when determining whether extradition to the United States violates principles of "fundamental justice." * * * Just as "attention to the judgment of other nations" can help Congress determine "the justice and propriety of [America's] measures" . . . so it can help guide this Court when it decides whether a particular punishment violates the Eighth Amendment. * * *


In other words, Justice Breyer (appointed by Bill Clinton, with input from Breyer’s former employer, Ted Kennedy), waiting to die is worse than dying, Foster is to be rewarded by stringing out his appeals, his wait was unusual, his uncertainty about being executed cruel, and the views of Canada and other countries count for something (not pre-war Iraq, apparently, when execution was summary.

                        Justice Clarence Thomas viewed the matter differently:

In the three years since we last debated this meritless claim * * * nothing has changed in our constitutional jurisprudence. I therefore have little to add to my previous assessment of Justice Breyer’s musings.

Justice Breyer notes that the Supreme Court of Canada has expressed concern over delays in the administration of the death penalty in the United States. * * * I daresay that court would be even more alarmed were there, as Blackstone commended, only a 48-hour delay between sentence and execution. * * * In any event, Justice Breyer has only added another foreign court to his list while still failing to ground support for this theory in any decision by an American court. * * * While Congress, as a legislature, may wish to consider the actions of other nations on any issue it likes, this Court's Eighth Amendment jurisprudence should not impose foreign moods, fads, or fashions on Americans. * * * (Emphasis in original).

This Court's [reversal] of a death sentence because of constitutional error does not bar new sentencing proceedings resulting in a re-imposition of the death penalty. [Foster] seeks what we would not grant to a death-row inmate who had suffered the most egregious of a constitutional errors in his sentencing proceedings—a permanent bar to execution. Murderers such as [Foster] who are not apprehended and tried suffer from the fear and anxiety that they will one day be caught and punished for their cries— perhaps even sentenced to death. Will Justice Breyer next have us consider the constitutionality of capital murder trials that occur long after the commission of the crime simply because the criminal defendants, who have evaded capture, have been so long suffering? " . . . by submitting to what the people of Florida have deemed him to deserve: execution. Moreover, this judgment would not have been made had petitioner not slit Julian Lanier's throat, dragged him into bushes, and then, when [Foster] realized that he could hear [his victim] breathing, cut his spine. * * *

[Foster] could long ago have ended his "anxieties and uncertainties"

These very different approaches to criminal justice and the role of the Supreme Court of the United States, from a Clinton appointee and a Bush I appointee, dramatize what the impending confirmation battle is really all about: a jurisprudence that cares more for criminals than their victims, and that looks not to the American people and its written Constitution for guidance but rather to other countries and their legal systems, versus a jurisprudence that understands the purpose of government is to protect its citizens from murderers, and that looks to our democratic institutions in interpreting our laws, not to other places that regard their citizens as having only those rights government sees fit to grant.

In the forthcoming Supreme Court nomination battle, even if Justice Thomas is not at bat a Chief Justice nominee, it will be his judicial philosophy against which the game will be played. Those of us who understand the stakes must play to win.