May 25, 2012

The Supreme Court's new double jeopardy case divided 6-3 on gender lines: was this "some sort of gender-related 'empathy'"?

Lawprof Mark Tushnet wonders, noting the dissent limited to the 3 female Justices — Ginsburg, Kagan, and Sotomayor — and expressing the belief that "this is the first case in which the Court has divided along gender lines." I don't think he's taking account of instances when Justice O'Connor (or Justice Ginsburg) was the only woman on the Court and dissented alone. It is striking to see the 3 women segmented off, but really, what is the big deal? They are the liberal wing of the Court, so it's just a matter of whether or not Justice Breyer joins them. I suppose one might wonder whether there's something male about Breyer's defection from the usual group of liberals.

The case in question, Blueford v. Arkansas, found the 3 women championing the rights of a man accused of murder after a 1-year-old boy died of a severe head injury while in his care. Nothing particularly appealing to females there, as Tushnet notes.
Perhaps what's at work is some sort of gender-related "empathy" triggered by the prosecutor's decision to "overcharge," as the three justices might have thought, and then to continue to try to obtain a conviction on an unjustified charge. (I can also imagine -- I stress the word, because I have absolutely no inside information -- Justice Kagan thinking the case close on the merits and deciding that it would be neat to have the Court line up along gender lines. For what it's worth, I note my personal judgment that Justice Sotomayor's dissent is tighter than the Chief Justice's opinion for the Court.)
Tighter?! I hope that's not a gender-related notion, professor. I've read both opinions, and I think the Chief Justice's majority opinion is plenty tight.

Anyway... neat to have the Court line up along gender lines. Tushnet can imagine Kagan thinking that. I can't.  (And why is Kagan running the show? It's Sotomayor's opinon.)


Dante said...

I wouldn't be surprised by political differences in men and women. Women want someone else to provide the security they need to raise kids. I think it's natural, and normal. Guys want to keep their own stuff to raise their kids, especially the guys who work. That also seems natural and normal.

Cincinnatus said...

It actually seemed like a pretty narrow set of circumstances to me, I'm still a bit baffled why the Court saw the case as cert worthy in the first place.

edutcher said...

Wonder if the Wise Latina and the Short Shortstop want to form a girls' club.

Ginsburg was probably just nodding in her sleep when they asked her.

traditionalguy said...

Am I the only one who sees the explanation that women lawyers affirm the underdog Criminal Defendants who need some empathy too.

The State Prosecution Team and the State credentialed super forensic professional testifyers already have so many advantages that it is like Goliath who was seeking to crush the red headed runt shepherd boy carrying a puny slingshot, and when David skillfully throws one smooth stone that stuns Goliath, then the Appeals Courts wants to jump in and cogitate a twisted reason to give poor Goliath another chance.

It is Double Jeapordy and every one knows that it is! Damn good dissent Sonia.

Ron said...

Maybe all those conferences they held in the bathroom together....

David said...

And him, a law professor.

dbp said...

One might describe the different opinions thus:

The Chief Justice's majority opinion was tightly argued and the thrust of his penetrating insights impossible to gainsay. Sotomayor's, on the other hand, was loose to the point where one could hardly feel as if any progress could be made toward a satisfying conclusion.

Bender said...

Is it a case of objective vs. subjective? Of strict application of law vs. considerations of "fairness"?

Most of the comment here seemed to say that the defendant got screwed here, and unfairly so, but the Court's ruling was correct.

Simon said...

It's a coincidence. Had I been on the court, I would probably have joined Sotomayor; I can think of several female judges who, had they been justices, would have joined the majority. A fun coincidence, to be sure, but nothing more.

Ralph L said...

Earl Butz, call your office.

Lawyer Mom said...

Oh, please. Wasn't this the case where the jury didn't complete the verdict form (or even start it) and the defense wanted to invoke DJ based on a jury note that they were NG on count 1 and on the next count, hung? A jury note is not a jury verdict.

I've had many a jury unanimously change its mind after a "we're 4-2 hung" note. Dem's da breaks, as we say. So break this dissent down on party lines if you wish, but not gender.

My women's poker group will let you change your mind and lower the ante before the next card is dealt, because we're just nice and not all cut-throat. We care about intent. And looking at pictures of each other's kids. But above all, we recognize that people change their minds!

But once a card is dealt, that's it, baby. We show no mercy.

In this case, the jury never put their answer on the verdict form -- the ultimate finality. Until then, the jurors could change their minds. And my women's poker group would be right behind them.

So I see no gender bias at play here -- is it sexist to say a woman's prerogative to change her mind is one women defend and hold dear? -- only predictable political leanings.

Zach said...

I would have given the Sotomayor opinion a very low grade. Her magic threshold for acquittal is an "announcement in open court." But the cases she cites are the announcement of a verdict, whereas this case is the announcement of a deadlock.

Here's the chain of events:
1) The jury announces that it is deadlocked.

2) The jury is told it's very important to reach a verdict.

3) The jury again insists that it cannot reach a verdict.

4) The court informally polls the jury foreman about the state of deliberations. The foreman orally gives some vote totals, and discloses that they have not yet voted on all charges. For the curious, this is the point where Sotomayor insists that a verdict has been reached.

5) The court again emphasizes how important it is for the jury to reach a verdict, and sends them back to continue deliberations.

6) The jury again insists that it cannot reach a verdict.

7) The judge declares a mistrial.

For those of you scoring at home, the jury insists three times that it cannot reach a verdict, despite two lectures on the importance of doing so. Sotomayor insists that they magically did by virtue of an informal poll taken before they had even voted on some of the charges.

Now, you may ask yourself how Sotomayor jumps the gap from an informal poll to a verdict. The answer: she doesn't! It's hard to get much tighter than that

In this context, the forewoman’s announcement in open court that the jury was “unanimous against” conviction on capital and first-degree murder, id., at 64–65, was an acquittal for double jeopardy purposes. 2 Per Arkansas law, the jury’s determination of reasonable doubt as to those offenses was an acquittal “in essence.”

Notice the logical jump from answering a question to "announcing," and from "announcing" to "determining." (Determining "in essence," of course, because the jury is insisting that it hasn't determined anything.)

David said...

I love how feminism has devolved to the idea that there is a "female" way of thinking and a "male" way of thinking.

Gee, maybe that means that some jobs just aren't right for women.

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