I usually don't discuss U.S. Supreme Court cases. On the theory that the opinions of the Supremes garner massive amounts of attention and press even without my particularlized take. So I generally devote my scarce literary resources elsewhere.
Still, I read 'em all. And, today, I decided to depart from my usual practice. But only because there's a neat little Ninth Circuit connection in this case.
The obvious connection is that it's a Supreme Court opinion that reverses the Ninth Circuit in a death penalty case. No surprise there. Albeit on a 5-4.
But the more interesting connection, at least to me, was the last substantive paragraph of Justice Steven's dissent. In which he expressly discusses the author of the Ninth Circuit's opinion below -- Judge Kozinski.
Now, it makes sense to do that, as weird as it might initially seem. The fact that it was Alex who authored the opinion that reversed the death sentence -- rather than, say, Judge Reinhardt, who was also on the panel -- is something that Justice Stevens understandably wants to highlight. In part because it helps establish that this is not a stereotypical "liberal" opinion from the Ninth Circuit that the Supremes regularly reverses, and instead is authored by a bright -- and conservative (though libertarian-leaning) -- jurist.
But what's a little surprising is that Justice Stevens not only mentions that the opinion is from Judge Kozinski, but also expressly mentions that Alex clerked for Justice Burger (back in 1976-77). And not easily, I might add -- Justice Stevens has to try mightily to make that fact somehow relevant, much less worthy of inclusion in the final substantive paragraph of his dissent. (The ostensible "connection" is that Judge Kozinski clerked back in the old days of the Burger Court and that, before the present opinion, precedent would have granted the defendant relief. But this alleged "connection" is a huge stretch.)
Anyway, I don't recall the Supreme Court ever previously highlighting -- much less to this degree -- the fact that the judge below previously clerked for the Court. So it was interesting, and since they were talking about a Ninth Circuit judge, I thought I'd mention it.
One last point. Justice Stevens only mentioned the fact that Judge Kozinski clerked for Justice Burger. But the express reference to Judge Kozinski's clerking days probably makes even more sense when you recall the other individual for whom Judge Kozinski clerked -- the one that Justice Stevens doesn't expressly mention. Justice (then-Judge) Kennedy. The (utterly expected) swing vote on this 5-4 opinion.
Clearly, in my mind, Justice Stevens is saying: "Tony: Your own guy, Alex, wrote this thing. Come on, baby. Gimme your vote."
Didn't work. But probably worth the effort, eh?
