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January 17, 2005 - The Los Angeles Times (CA)

Prima Donnas In Robes

By Alan Dershowitz, professor of law at Harvard and author of "Rights From Wrongs" (Basic Books, 2004)

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The recent sentencing guideline decision -- really, decisions -- by the justices reveals a Supreme Court in disarray. It is not disarray caused by left/right ideological division. Nor is it necessarily the result of the illness of the chief justice. The high court just can't seem to get its judicial act together, at least in some important cases.

In the sentencing guidelines case, a 5-4 court majority ruled that a sentencing judge may not increase a defendant's sentence based on the judge's resolution of disputed facts. All such disputes must be submitted to a jury. Four dissenting justices disagreed vehemently with this interpretation of the constitutional right to trial by jury. Nothing surprising there.

But then, in the second part of this unusual two-part decision, the dissenting justices won the vote of one of the majority justices and got to decide how to implement the decision. In doing so, they essentially gutted the other ruling, causing four members of the first majority to dissent from the second majority's ruling.

The second majority ruled that it would be perfectly all right for a sentencing judge to resolve disputed facts against a defendant and to add years to his sentence based on them, so long as the judge said he was doing so at his discretion, not because he was forced to do it by the guidelines.

The constitutional right of a defendant to have facts that could add years to a sentence decided by a jury was thus substantially, if not completely, undercut.

The swing justice in both instances was Ruth Bader Ginsburg, who failed to explain how she could come to what the other eight justices believed were two irreconcilable positions.

She was like the rabbi in the old story who, after listening to a husband's complaint against his wife, declared, "You're right, my son," and then after hearing the wife's complaint about the husband declared, "You're right, my daughter." When the rabbi's student complained, "They can't both be right," the rabbi shot back, "You're right." The only difference is that the rabbi acknowledged his inconsistency. Ginsburg said nothing.

Being a Supreme Court justice does not give one the right simply to cast a vote. As an unelected judge with lifetime tenure, Ginsburg's only source of authority is principle. A justice casting a deciding vote in an important case has an obligation to explain and to justify her vote.

This is not like an election for president or a vote in Congress. It is arrogant in the extreme for a justice to exercise such untrammeled power without even deigning to explain what appears to the profession to be an unprincipled pair of votes.

Ginsburg should have written an opinion explaining why the two decisions were reconcilable, if they were, or why she voted inconsistently. Had she written an opinion, it would have been the definitive one. Instead, we have two equally authoritative opinions that seem irreconcilable.

This will have to be resolved by lower-court judges or by Congress. Massive litigation probably will follow, with inconsistent results. By the time this issue again reaches the Supreme Court, a change of personnel among the justices is likely. The issue will be resolved, therefore, not by principle but by personnel shifts.

It is part of the job of a strong chief justice to avoid this type of conflict. Compromises are inevitable on a multi-justice court, but they should be clearly articulated and easily understood by the public, or at least by the legal profession.

This decision, and many others over the past decade, can be explained only by means of patchwork pragmatism, vote-swapping and other considerations inappropriate for high court decision-making.

Ours is the most powerful Supreme Court on Earth. Its job is to interpret the Constitution by reference to principle and precedent. If it cannot explain and justify its decisions, it will deservedly lose much of its authority.

The first job of the chief justice who will replace the ailing William H. Rehnquist will be to persuade the justices to get their act together and to do business more as a court than a collection of prima donnas in robes.

Even when Rehnquist was at the height of his powers, he was not able to get individual justices to act as an institution, in the way that former Chief Justice Earl Warren did during the era of desegregation.

Doing so will be a tall order, in light of the court's performance in this and other cases in recent years.

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