CrimLaw

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The federal supreme court will be hearing a case as to whether the Texas gay sodomy law is unconstitutional. The NY Times seems pretty confident what the result will be. As usual, the decision will probably depend on the whim and caprice of Justice O'Connor.

I've been out of law school now for a few years so I don't read many of the S.Ct. decisions anymore (most of the issues I argue in a criminal court will be based on the precedents as set and applied by the Commonwealth's Supreme Court). I have two main memories from reading all those cases in law school. The first is that the federal supreme court can't say "the sky is blue" without a 75 page exposition on refraction of light and the ability of human vision to only see within a certain spectrum range (and a twenty page biting dissent from Scalia stating that the color of the sky was never within the intent of the founders and thus cannot be reached by this court). The second is that O'Connor never seemed to have any discernable theme to her opinions. As such, she was always seen as the one you always concentrate a good deal of effort on because even if she signed onto an opinion stating that "the sky is blue" ten years ago she has little loyalty to that opinion (stare decicis ? only if abortion is involved) and quite possibly might - especially if allowed to write her own opinion - now write something to the effect that the sky is blue only in the particular instance raised in the first opinion but actually it's gray.

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