June 19, 2015

Is Justice Thomas the one with the heart, the empathy? Let's look at the questionable material he included in that death penalty case.

Yesterday, the Supreme Court decided a case called Brumfield v. Cain:
Justice Sotomayor [joined by Justices Breyer, Ginsburg, Kagan, and Kennedy] wrote... an opinion that was focused almost exclusively upon the specific evidence about whether the convicted man, Kevan Brumfield, was intellectually disabled....

Justice Thomas wrote one dissenting opinion.... Although most of the Thomas dissenting opinion was joined by the Chief Justice and Justices Alito and Scalia, those three three did not join in a section of the Thomas opinion that described the heroic efforts of one of the murdered officer’s sons to keep the rest of the family together, and his heroic efforts on the football field as a star in college and in the pro football ranks.  Alito issued a brief separate opinion for himself and the Chief Justice, saying that the section of the Thomas opinion at issue was “inspiring,” but added that those two members of the Court did not regard that part as “essential to the legal analysis in this case.”
Here's the text of the case. Here's the material in the Thomas opinion that Alito and the Chief thought didn't belong:
Brumfield’s argument that his actions were the product of his disadvantaged background is striking in light of the conduct of Corporal Smothers’ children following her murder. Most widely known is that of Warrick [Dunn]. Though he had turned 18 just two days before Brumfield murdered his mother, he quickly stepped into the role of father figure to his younger siblings. 
A footnote here says: "Like Brumfield, Warrick’s father was not a part of his life. But, unlike Brumfield, Warrick did not use the absence of a father figure as a justification for murder. Instead, he recognized that his mother had been 'the family patriarch' when she was alive,  and that he had a responsibility to take on that role after her death."
In his view, it “was up to [him] to make sure that everybody grew up to be somebody.” W. Dunn & D. Yaegar, Running for my Life: My Journey in the Game of Football and Beyond 37 (2008).

To that end, Warrick led by example, becoming a star running back at Florida State University and then in the National Football League (NFL). During his time at Florida State, he set records on the field while coping with the loss of his mother. Though separated from his family in Louisiana, he called his brothers and sisters regularly, 4 sought parenting advice from his coach, and returned home when he could. He kept his mother’s pearl earrings, stained with her blood from the night she was murdered, in a box on his dresser. After four years at Florida State, Dunn was drafted by the Tampa Bay Buccaneers. Concerned that some of his siblings were struggling in Baton Rouge, he moved the three youngest into his home in Tampa Bay. Although the strain of playing for the Buccaneers and raising his family weighed on him, he “accepted it as [his] responsibility . . . to make sure they stayed on the right path.”

While balancing football and family, Dunn still found time for others. He started Homes for the Holidays, a charitable organization that decorates and fully fur-nishes—down to the toothbrush—homes obtained by single mothers through first-time homeowner assistance programs. Dunn was inspired by his own mother, who spent years working toward the purchase of a home for her family, but, thanks to Brumfield, did not live to reach her goal.

Dunn’s contributions did not end there. After joining the Atlanta Falcons in 2002, he expanded the reach of Homes for the Holidays; traveled overseas to visit our Armed Forces; led an effort to raise money from the NFL to help respond to the tragic effects of Hurricane Katrina; and became a founding member of Athletes for Hope, an organization dedicated to helping athletes find and pursue charitable opportunities. Following his retirement from professional football in 2008, Dunn launched two more charitable organizations in honor of his mother: Betty’s Hope, a mobile bereavement program that offers no-cost grief counseling services to children in the Baton Rouge area, and Homes for Service, a program dedicated to helping service members, police officers, and firefighters achieve home ownership. As Dunn once remarked, “I knew that was what my mother would have been most proud of: not my records, not my awards, but the way I used my worldly success to give something back.”
Why did Justice Thomas think this material was relevant? Because Brumfeld was convicted of murder and sentenced to death long ago:
Over 20 years ago, Brumfield deprived the people of Baton Rouge of one of their police officers and six children of their mother. A jury of his peers found Brumfield guilty of the crime and sentenced him to death. The Louisiana courts afforded him full appellate and collateral-review proceedings.

Today, the majority tosses those proceedings aside, concluding that the state court based its decision to deny Brumfield’s Atkins claim on an “unreasonable determination of the facts,” even as it concedes that the record includes evidence supporting that court’s factual findings....
[The majority] spares not a thought for the 20 years of judicial proceedings that its decision so casually extends. It spares no more than a sentence to describe the crime for which a Louisiana jury sentenced Brumfield to death. It barely spares the two words necessary to identify Brumfield’s victim, Betty Smothers, by name. She and her family—not to mention our legal system—deserve better.
The author of that majority opinion is Sonia Sotomayor, who, you may remember, was appointed by a President who said he was looking for "somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old."

Of course, there is empathy in the belief that it is cruel and unusual punishment to execute the intellectually disabled and in wanting to be careful about determining whether a person is sufficiently intellectually disabled to exclude the death penalty. Sotomayor ends her opinion with an acknowledgement of Thomas:
Finally, we offer a few additional words in response to Justice Thomas’ dissent. We do not deny that Brumfield’s crimes were terrible, causing untold pain for the victims and their families. But we are called upon today to resolve a different issue. There has already been one death that society rightly condemns. The question here is whether Brumfield cleared AEDPA’s procedural hurdles, and was thus entitled to a hearing to show that he so lacked the capacity for self-determination that it would violate the Eighth Amendment to permit the State to impose the “law’s most severe sentence,” Hall, 572 U. S., at ___ (slip op., at 7), and take his life as well. That question, and that question alone, we answer in the affirmative.
What Alito, joined by Chief Justice Roberts, wrote was: "I join all but Part I–C of Justice Thomas’ dissent. The story recounted in that Part is inspiring and will serve a very beneficial purpose if widely read, but I do not want to suggest that it is essential to the legal analysis in this case." There's empathy in that too. If the fate of the victim's family matters, which way does it matter? What the family had fallen into horrible decline after the death of the mother?

ADDED: Here's a video from 5 years ago showing how Warrick Dunn has been thinking about these things:

Dunn visited the prison, met with Brumfeld, and forgave him because he, Dunn, wanted to be free. He viewed the death chamber and tells us he will not attend the execution, because he is already free. Dunn is deeply engaged in charity and has an "everything happens for a reason" mindset.

CORRECTION: The sentence that reads "Why did Justice Thomas think this material was relevant?" originally said "Why did Justice Thomas (along with Justice Scalia) think this material was relevant?" Justice Scalia also dropped out of that part of Thomas's opinion (even though he didn't, like Roberts, join the Alito opinion that gives a reason for dropping out).


Quaestor said...

Are smart people nicer than dumb people? Do any of us refrain from doing wrong because we know what the term non sequitur means?

Aristotle claimed that smart people are nicer than dumb people because a smart person knows what's in his best interest, and since being good is is one's own best interest it follows that being smart leads to good behavior.... Yeah, sounds like some stupid shit to me, too.

Anonymous said...

I'll start by saying I don't support the death penalty. This is not because I don't think individuals deserve it - there are many criminals who deserve death for their crimes. My reason is I don't trust the judicial system to get it right and I don't trust police and prosecutors to resist the temptations to cut corners. And because death is a permanent solution, I cannot accept this margin of error. So, on this matter, I disagree with Justice Thomas.

But it's a quibble, really, because I routinely find Thomas to be the finest thinker on the court. And one day, far in the future, his body of dissents will serve as the basis for a return to liberty. It says something about us as a people that we don't notice his tremendous service today.

Rick said...

So including explanatory statements not "essential to the legal analysis in this case” is questionable. This seems to say including irrelevant material implies the decision is at least in part based on that material. Otherwise what makes it questionable or inappropriate?

But the other day you didn't "see the problem" with a judge citing legal and commonplace behavior when sentencing someone for his illegal act of statutory rape.

What's the difference?

Big Mike said...

Those eight honkies need to get over their racism and pay more attention to what Thomas has to say.

mccullough said...

Justice Thomas' childhood was a lot harder than Justice Sotomayor's. She resents it, as does Obama, who grew up a prince compared to Thomas.

The reason the Left hates Thomas is because he he is a black conservative who grew up poor raised by his grandfather in the south during Jim Crow but he doesn't agree withtheir philosophy.

Quaestor said...
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Quaestor said...
This comment has been removed by the author.
Quaestor said...

I voted No, a judge does best when he strictly limits his opinion to what is relevant to the legal analysis and this is not.

Just because Obama promoted his nominee to the Court for the wrong reasons doesn't give anybody, including Clarence Thomas, a man I greatly respect, a license to go all touchy-feely in matters of the law.

traditionalguy said...

Uncle Thomas does not have a political agenda that wants to see American laws become Europeanized with short sentences for monsters like Brevik in Norway is enjoying. That comes from a Imperial an view of citizens as interesting animals who have no human status but need PETA treatment.

In the USA we have always made a
man be responsible for his deeds just like a man.

David said...

The empathy Obama prises is the one designed to designate the state as the healer.

Rusty said...

I didn't vote. I thought Thomas was merely trying to counterpose the left leaning bench.

Known Unknown said...

I agreed with Queastor. No. It's not as germane as he wants it to be.

Although, Dunn's story should be shared far and wide because it's a damn good one.

Mark said...

I voted that Thomas can put what he damn well wants in his opinions.

Personally, I'm more in agreement with Alito and Scalia. Or more to the point, I'm glad that they formalized where and why they differed with Thomas. But Thomas' larger point that circumstances do not make the man (or woman, or whatever) holds, as does his his implied observation that the murderer's very much ex post facto defense of mental retardation was a late addition to his many (relatively sophisticated) attempts to avoid the punishment justly decided by the State of Louisiana.

I sense that Thomas is enraged by the none-too-subtle assumption that this poor Black man simply couldn't be held responsible for his actions, not because of his supposed lack of mental facilities, but simple because he was born black and into very hard circumstances. I believe this is Thomas' way of making the point that in the end all men should be judged by the content of their character.

Having written all that, I stopped supporting the death penalty simply because the evidence seems strong that it isn't evenly applied across racial (and class) lines. In this case however it's clear that the penalty was assigned not because the murderer was black, but because the crime was wanton and heinous. I do not believe this was a race-neutral finding on the part of the Court, and therefore I think the majority was in the wrong.

traditionalguy said...

Warwick Dunn was a gutsy man. He was 5'10' and fast but he was the goalie up the middle runner too. He never flinched.

hombre said...

I would not have included the material, but I'm glad Thomas chose to do so.

Absent a finding of insanity, it is typical of the absurdity of our legal system that it is considered "cruel and unusual" to execute a mental midget but not to execute a mental giant. Oh,sorry. That wasn't very PC, was it?

Mattman26 said...

Not having read the majority opinion, I don't know to what extent their decision turned on the killer's disadvantaged youth. But if in fact it did, then I think this was very much fair game.

We all face difficulties, and some --- like this slain officer's children --- face difficulties that the rest of us can scarcely bear to imagine. So why not point out that people can respond to deprivations with honor and dignity?

traditionalguy said...

Goal line, not goalie.

Scott said...

Was there ever an opinion written in which Justice Thurgood Marshall was instructed to shut up?

Scott said...

I voted "It's up to Thomas. He should express himself in a way that seems fit to him." The law isn't just for lawyers.

CEL said...


Like most conlaw teachers including my execrable professor back in law school teacher, Scot Poe, there is a cynicism in your approach to the subject matter that is destructive to the Rule of Law.


Sebastian said...

"his body of dissents will serve as the basis for a return to liberty"

Now there's an optimist.

Bay Area Guy said...

In a murder case, some people identify with the culprit (bad upbringing, bad family life, mental issues, racism, unfair administration of justice, etc.) and some identify with the victim and how his/her survivors have been impacted.

Justice Thomas belongs to the latter group.

MaxedOutMama said...

I couldn't answer your poll because I didn't fully agree with any of the options.

I believe Thomas IS making an argument about legal reasoning by including that information. His contention is that:
A) The decision here really does not follow law and precedent,
B) Therefore it is motivated by something else,
C) If it is motivated by empathy for the killer,
D) He demonstrates that his legal opponents indict their own reasoning by forcing them to claim that empathy for the victim and the victim's family is misplaced in HIS decision.

Thomas is trying to clarify what he believes to be true ABOUT THE MAJORITIES' THINKING PROCESS.

You may argue that what he believes to be true is not true, but not fairly that he is just totally off-base here. IMO.

The decision here is probably motivated not by empathy for the killer but by distaste for the death penalty, but if this is true, then the justices in the majority are torturing the law in Thomas' view, quite dishonestly.

He has the right to make that clear, and it is not non-legal reasoning to attempt to do so. Furthermore, by forcing the others to write what they did, he has established a legal reasoning precedent that empathy for an individual is not a valid reason to make a decision.

Thomas is an exceedingly intelligent man.

Bad Lieutenant said...

Cel 10:24, if you're a woman, I'll marry you.

Beach Brutus said...

I think what Justice Thomas is doing is challenging the premise that a troubled childhood per se legally undermines responsibility for ones volitional acts. We choose how to react to our experiences . . . as Brumfield made an entirely economically rational, but morally reprehensible, decision to quit a legal job after three months to pursue a more financially rewarding career in the field of violent crime.

Richard Dolan said...

In the same vein, you could also look at Thomas's short concurring opinion in Davis v. Ayala, responding to Kennedy's concurrence making an otherwise irrelevant plea to reconsider the widespread use of solitary confinement. Thomas pointedly contrasts the size of Ayala's solitary confinement cell to the size of the graves occupied by his three murdered victims.

The line of cases in play here, Atkins and many others dealing with who may be executed after having been convicted of a capital offense, is almost entirely a judge-made body of law, with little in the text of the Constitution to guide or cabin the doctrine. Where and how to draw the lines (how young is too young, how mentally impaired is too impaired, how heinous a crime is heinous enough, whether to have a death penalty at all) involves a heavily value-laden exercise, with the Court sometimes invoking what it imagines are the settled moral judgments and traditions of the American people to reach its decisions. Yet there is nothing about a lawyer's appointment to federal judicial office that makes that lawyer particularly qualified at divining the answers to such questions. At the same time, there is a body of precedent that has built up over the years, with each such case extending a line here, or narrowing an exception there. Precedents obviously matter. Since no one really disputes that there have to be some limits, courts as the institutions that must apply whatever rules govern in sentencing people to death, can't avoid dealing with those issues. But the necessity of having to decide these issues isn't a reason to disregard the essentially moral nature of the exercise.

Thomas (and Scalia) understand the process all too well. And both of them view these kinds of judgments as poor candidates for hard-and-fast constitutional line drawing by a court remote from the realities of daily life in a nation as diverse as ours. Because there is no textual basis in the constitution itself for the lines that end up getting drawn, they are even less inclined to go along with the exercise. Within fairly broad limits, they regard most of these judgments as best made by the people, in the first instance through elected representatives and then more specifically by the members of the jury who must decide them in individual cases.

That's the context for the discussion of the crime's impact on the victims' families in Thomas' opinion -- it relates to the essentially moral task of drawing the right lines in deciding whether the penalty fits the crime and the criminal, and even more to the question of which institution should be deciding when a relevant line is crossed. You can't answer those questions without taking the full context into consideration, a process which also must recognize that the option of accepting responsibility and acting responsibly is available to each of us as moral actors in all but the most exceptional cases. Thomas' extended discussion of Dunn's response to his mother's murder, and his contrasting that to Brumfield's actions, is a reminder of that fundamental truth. I think that Thomas has greater trust in the local institutions of government, especially the juries, to take truths of that nature into account, and by doing so to reach a decision that does justice fairly.

HoodlumDoodlum said...

ADDED...Dunn visited the prison, met with Brumfeld, and forgave him because he, Dunn, wanted to be free. He viewed the death chamber and tells us he will not attend the execution, because he is already free. Dunn is deeply engaged in charity and has an "everything happens for a reason" mindset.

I'm afraid your "Added" section might incorrectly give people the idea that Dunn is ok with the death sentence being overturned, Prof. I read an article yesterday (that I can't quite find now) where he said that although he forgave the killer personally he believed the killer should face the judicial punishment his conviction carried. I haven't seen anything recently where Dunn agreed that his mother's killer shouldn't be executed.

rhhardin said...

Did he say anything that wasn't boring, is the question.

Without looking at details, empathy and rehabilitation is the job of the governor's pardon, not the courts.

GrapeApe said...

Warwick Dunn has taken care of and provided for all of his younger siblings. He had no choice. He's forgiven the guy, just so he could get past his anger and grief. Dunn also thinks the guy should be executed. Good enough for me.

GrapeApe said...

Sorry- Warrick Dunn

Scott said...

Thank you to Richard Dolan for the high-value comment.

tim maguire said...

I think the victim experience is relevant when determining punishment, but it's not relevant when determining mental fitness.

JackOfClubs said...

I thought the information was relevant as a rebuttal to the argument of the defense, but it should have been shorter. Basically the first two paragraphs and the footnote were all that was necessary to establish Thomas' point.

JCC said...

The details in Thomas' dissent struck me as something akin to frustration with the opinion's somewhat selective recounting of the defendant's lot in life - while ignoring those details in the record which tended to describe him as a sociopath with poor impulse control and a lack of respect for the property of others. Thomas is reminding us that being dealt a poor hand is no excuse for cold blooded murder and mayhem, and that these kind of stupid, touchy-feely decisions affect real people left behind and potentially, real victims to be down the road.

Hopefully, a court will resentence this piece to death again after his evidentiary hearing, and start another 15 year cycle of appeals. Maybe he'll even get a date before he dies of old age. Or kills someone in prison. Or escapes. Or another judge sets him free by ordering a new trial which would be impossible to conduct, creating yet another "exoneration."

Michael K said...

" Because Brumfeld was convicted of murder and sentenced to death long ago:"

Thomas wrote his dissent because the courts forget the victim in their concerns about the murderer. He has been there and knows that a poor childhood does make one commit murder or rob or become a burden on society.

readering said...

I wonder why Scalia declined to join in that one section of the Thomas dissent while also declining to join in the Alito dissent explaining why he and the Chief declined to join in that same section of the Thomas dissent.

Anonymous said...

If the majority is going to consider Brumfeld's background to get to its conclusion, it only seems fair that Thomas can use the victim's background to excoriate their reasoning.

This case rests mainly on whether there's enough mitigating factors to bar the death penalty and Thomas seems to be reminding the majority both that a poor background neither determines nor excuses criminal behavior, and that there are aggravating factors to be considered too.

Beldar said...

I hope this isn't abusing Prof. Althouse's bandwidth, but rather than comment here directly, I'm going to re-publish here (with some omissions) a string of comments in a civil and, I think, useful discussion between me and a commenter (obviously another lawyer) who posted as "smwinak" on Elizabeth Price Foley's post about Justice Thomas' dissenting opinion at Instapundit. (I'd simply link the relevant comments, but PJ Media's "link to comment" feature doesn't seem to actually work.)


From Beldar:

I believe in the death penalty. I think it probably has a deterrent effect -- at least in states like Texas where it's not merely an empty threat (compare, e.g., California) -- but I don't think that can ever be empirically proved or disproved. So my support is based on retribution -- the fierce and grim moral and legal conclusion that some crimes are so very horrible that no other penalty can be adequate to express, mark, and commemorate society's revulsion and its determination that just punishment be rendered.

By ignoring the details of these crimes and their victims, by sweeping them up into an antiseptic sentence or two of dry prose in spectacularly long legal precedents, we treat them like other crimes. They aren't; and it's only by focusing clearly on, and publicizing appropriately, the horrible details of those crimes and their impacts upon their victims and society that we can distinguish between those comparatively few criminal homicides that warrant the death penalty and the bulk of others that don't.


From smwinak:

I can sympathize with your argument in the abstract, but that is not the issue in this case. Such details are certainly important in a trial or on a direct appeal when challenging the application of the death penalty to a particular case.

The issue here, though, was not whether this crime was eligible for the death penalty but whether the defendant should have had an evidentiary hearing to determine whether Atkins applied to his case. I fail to see how the nature of the crime or the victim are relevant to that question. I also do not believe it is appropriate for the court to have 'sympathy' for either party. The court's job is to decide the law, not to have sympathy.

The court remanded so the defendant could get an Atkins hearing. It appears that there is conflicting evidence about the defendant's mental state so it is not clear whether Atkins would apply even after a hearing.


From Beldar:

I see. So it's your position that the hideous nature of the crime ought be discussed by the reviewing courts once.

And that then, for the next two or three decades, it should be wholly ignored while we focus instead on litigating and re-litigating, up and down the state and federal court system, issues that could and should have been raised in the original trial and direct appeal, and that in no event ought to have taken more than a very few years (if that) to finally resolve.

Justice Thomas is asking us to step back from a myopic focus on procedure to at least keep in mind, while considering that procedure, the unique and uniquely hideous nature of the underlying crime, which in turn ought to make the final resolution of appeals from conviction therefrom an extremely high priority. It's not about "sympathy," it's about appreciation of the nature of the crime -- which is exactly what the proceduralists and the re-litigators and the writ-writers and -abusers want to obscure so that they can mute the justifiable public outrage at the delay in the administration of justice.

It's not just the defendant who has a legitimate interest in seeing justice done. There is a competing interest, that of society and the victim; and it ought always be recognized, kept in clear focus, and discussed, in my opinion, in court opinions. It shouldn't just be assumed, presumed, overlooked.

[Continued below]

Beldar said...

From smwinak:

I would not say that it should only be discussed once but that it should be discussed when it is relevant to the issue or issues presented.

Imagine a petition for post-conviction or 2255 relief. A discussion of a case's gruesome facts can be used to show that any error on behalf of trial counsel was harmless. Or an evidentiary issue regarding prejudicial/probative analysis. In either of those issues the nature of the crime is certainly relevant. I am sure there are others but those are two examples that immediately came to mind.

This, though, is a procedural argument about whether the defendant should have had an evidentiary hearing. To argue that he shouldn't get a hearing just because of the nature of the crime is problematic, in my opinion. To be sure, there are times when a person is not entitled to a hearing. To get a Franks hearing, for example, a defendant has to demonstrate some evidence suggesting false statements or relevant omissions in a warrant. Failure to do so means the defendant does not get a hearing. To me, though, there is a large difference between saying that a defendant has not provided sufficient evidence to justify a hearing and saying that a defendant should not get a hearing because his crime was particularly brutal.


From Beldar:

I think the nature of the crime, in death penalty cases in particular, is ALWAYS relevant.

The nature of the crime, when juxtaposed against the decades of delay in the enforcement of the jury's punishment, despite review by dozens of judges in a large handful of both state and federal courts, is certainly relevant.

That doesn't mean it was the only thing which was relevant, nor that it ought to control the outcome.

And this opinion wasn't JUST about whether Brumfield ought to get a hearing. It was about, more broadly, whether he's stringing out his legal arguments and appeals in a way that the AEDPA was intended to prevent, by blocking federal courts from second-guessing prior reviewing courts in EXACTLY the fashion that the majority just did. That's the meat, indeed, and most of the bulk, of Justice Thomas' dissenting opinion (parts II & III), which -- contrary to your suggestion -- is NOT premised on the notion that the nature of his crime was the reason he ought not get (yet another) hearing that will postpone execution of his sentence for more months and years.

[Continued below]

Beldar said...

From smwinak:

The crime occurred in 1993. The opinion does not say so but I would guess (based on extensive experience with homicide trials, albeit not in Louisiana) that the trial occurred in 1994 at the earliest, likely 1995. Atkins was decided in 2002. In 2002, in response to Atkins, the Louisiana Supreme Court issued guidelines for raising and adjudicating Atkins issues. The opinion notes that "shortly after the Williams decision" (the decision addressing how to raise an Atkins motion), the defendant sought to modify a then existing petition for post-conviction relief in state court. That is the court that would not grant him a hearing on his Atkins motion. Since the PCR petition was in state court, his federal claims had not yet been adjudicated. Further, since the petition was pending, it makes little sense to not give him a hearing.

If Atkins comes down in 2002, and the Louisiana Court addresses the issue in 2002, and Brumfield sought to modify his PCR shortly after the Louisiana Supreme Court raised the issue, I don't think that it is Brumfield that is stringing out his legal arguments. If he was stringing out his legal arguments, AEDPA is relatively simple: you didn't raise it in the court below so you can't raise it now. The case would likely not have survived the cert stage.

I agree that death penalty litigation takes too long even after AEDPA. This, though, is a product of crowded courts and limited resources. Even in my state, which does not have the death penalty, it can take a decade to address appeals and post-conviction petitions. One case I tried in 2005 has gone through the appellate process but the court has not even scheduled a hearing for the PCR petition. Part of that is the court, part of that is the resources of defense counsel, part of it is that the trial was 2 months long and the record is enormous.


From Beldar:

I've had many long trials with enormous records. None of them took decades to resolve. It's 2015.

I do appreciate your civil tone and you obviously have some deep and relevant background knowledge.

We just disagree on whether what Justice Thomas did in this dissent was inappropriate or not.