... Justice Kennedy’s brief quotation from “Actual Innocence” [was not] especially punctilious. Here is how the justice rendered it, including his brackets and ellipses: “[P]rompt [DNA] testing ... would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of ... innocent people.”And it's easy to understand the pique of the Innocence Project folks who apparently do not like seeing their names connected to an opinion they loathe, but did Kennedy do anything wrong here?
Those first three dots covered a lot of ground. They took the place of more than six sentences and suggested a different point than the one the authors were making. The original passage concerned evidence collected at crime scenes, not from people who might be connected to it....
The omission of two words with the second set of dots is easier to understand. The authors had written that testing could prevent “the grotesque detention of thousands of innocent people.” Justice Kennedy apparently did not want to endorse the possibility that the criminal justice system had such widespread shortcomings....
"Punctilious" — to quote the (unlinkable) OED — means "Strictly observant of or insistent on fine points of procedure, etiquette, or conduct; extremely or excessively particular or correct. Also: characterized by such scrupulous attention to detail or formality." I'll bet Liptak thought a lot about that word. Note how he toned it down with "not especially." So Kennedy was strictly correct, but not all that strictly correct.
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I've always liked punctilious. Nugatory is another nice sounding one. Picked up those and many others reading Jack Vance, whose long life ended last week.
Justice Kennedy apparently did not want to endorse the possibility that the criminal justice system had such widespread shortcomings....
It is not unproven that he was merely editing out unsubstantiated empirical assertions.
Liptak is on point regarding the rich irony on display in Kennedy's use of an argument for deference to the state that he has not allowed to cut both ways. It has ever been thus with the court.
I am not happy with the way the Innocence Projects founders cited DNA evidence to confuse and empower the nullification jury back in 1995!
Amazing—"Justice Kennedy sloppy writer, film at 11 right behind our lead "dog bites man" story." Pfft.
Justice Kennedy apparently did not want to endorse the possibility that the criminal justice system had such widespread shortcomings
Or more likely that was irrelevant to his point and thus elided.
(And/or what Chip said, which is also a good explanation.)
The Constitution only means whatever you can get 5 SC justices to agree on. The actual words written on paper are at best a broad guideline but are in no way a constraint.
Liptak may have had in mind Benjamin Cardozo's famous quotation from Meinhard v. Salmon, stating that the standard of conduct for fiduciaries is "[n]ot honesty alone, but the punctilio of an honor the most sensitive."
Justice Kennedy just needed a good reason to let the state collect DNA from the serfs and keep it in a huge database.
It isn't like there is a pattern here. I wonder if people will get upset when this DNA database is shared with the Obamacare death panels? Or used to find DNA markers for mental illness to take various rights away.
Oh the possibilities in the police state! "But in order to find the needle in the haystack, you need the haystack!"
Larry J said...
"The Constitution only means whatever you can get 5 SC justices to agree on. The actual words written on paper are at best a broad guideline but are in no way a constraint."
In a real sense, that's functionally true. When people ask me and Justice Scalia whether the second amendment forbids registration requirements, we answer: "We'll find out, won't we?"
Nevertheless, there is always the temptation—to which we must never succumb—to fall into the legal realist trap of taking this idea too far and suggesting that there really is no "right" answer, that the law does not exist independently of whatever one can get five justices to agree on.
Thus, it is functionally true, but it isn't actually true. The Constitution does have a meaning, and the power of the court to get it wrong doesn't actually change the fact that there is an answer that is correct.
I realize that the declaratory theory is outre, but that's the difference between the conservative and the Liberal: I will defend an idea that I think is right even if I am the last person on Earth to believe it; he will defend an idea that he thinks is right even if he is the first person on Earth to believe it.
I have no dog in that fight, but this seems like a good time to point out that the (unlinkable) OED is *not*, as you seem to suppose, an especially authoritative dictionary. It is a grab-bag. Almost any unabridged dictionary is preferable.
Simon said
Thus, it is functionally true, but it isn't actually true. The Constitution does have a meaning, and the power of the court to get it wrong doesn't actually change the fact that there is an answer that is correct.
The Supreme Court has gotten it wrong many times in the past and will continue to do so in the future. We get stuck with their mistakes while they have a lifetime appointment. There's no recourse for them trashing the Constitution for whatever political reason they want. If there were consequences, then perhaps we wouldn't be wondering what the liberal/conservative split will be on any given issue. We wouldn't get abomination decisions like Kelo.
But there are no consequences for them screwing up.
The original passage concerned evidence collected at crime scenes, not from people who might be connected to it....
The former is worthless without the latter.
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