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Jewish World Review May 17, 2001 / 24 Iyar, 5761

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Guilty by reason of revision -- FIVE days after President Bush made his first judicial nominations, the Supreme Court did something serendipitous. In an ideologically interesting alignment, it produced yet another 5 to 4 decision in which Justice Sandra Day O'Connor wrote the majority opinion, Justice Antonin Scalia wrote a vinegary dissent -- and the simmering controversy about the composition and function of courts was illuminated.

At issue in the case from Tennessee was whether a defendant can constitutionally be prosecuted under a provision of law different from what existed when he committed his crime. Both the U.S. and Tennessee constitutions prohibit ex post facto laws that punish individuals for actions that were legal when performed, or that impose harsher punishment for illegal conduct than was permitted under the law when the illegality occurred.

The case began on May 6, 1994, when Wilbert Rogers stabbed James Bowdery. During surgery Bowdery went into cardiac arrest. He was resuscitated, but loss of oxygen to his brain plunged him into a coma, in which he remained until he died almost 15 months later. Then Rogers, who had been charged with attempted murder, was charged with first-degree murder and was convicted of second-degree murder.

He appealed, arguing that his conviction violated the common law "year-and-a-day" rule that no person can be convicted of murder if the victim dies more than a year and a day after the defendant's act. The appellate court ruled against Rogers, arguing that in 1989 Tennessee's legislature abolished the rule by abolishing all common law defenses in criminal actions. However, the year-and-a-day rule was not a mere defense against a charge, it precluded the charge. So when Rogers appealed to the state Supreme Court, it decided against him on other grounds.

It noted that most jurisdictions that have recently considered the rule have abolished it, legislatively or judicially, because the original reasons for the rule, which dates to the 13th century, are no longer pertinent. The rule then served as a statute of limitations, reflecting the inability of premodern medicine to establish cause of death over a long term.

Writing for the U.S. Supreme Court, and joined by William Rehnquist, Anthony Kennedy, David Souter and Ruth Bader Ginsburg, O'Connor affirmed the Tennessee Supreme Court's "incremental and reasoned development" of common law. Such development is often necessary, she said, whether it is characterized as "making" or "finding" the law. It is permissible when it is not "unexpected and indefensible" and therefore does not violate the purpose of the ban on ex post facto laws. The purpose is to prevent "unfair and arbitrary" actions, and to guarantee that the law gives due notice -- fair warning -- of what is forbidden.

Scalia, joined in dissent by John Paul Stevens and Clarence Thomas, and in part by Stephen Breyer, refutes the majority's contention that Rogers had some sort of fair warning, because by 1994 the year-and-a-day rule was "widely viewed as an outdated relic." Are, Scalia wonders, people supposed to be aware of what is "widely viewed" judicially in 50 states?

Tennessee's Supreme Court, Scalia said, forthrightly changed, to the defendant's disadvantage, the criminal law governing a past act. Nothing the majority says about "incremental and reasoned development" of the common law can, in Scalia's view, trump due respect for the intentions, as far as they can be discerned, of the authors of the Constitution and its amendments:

"Even in civil cases, and even in modern times, such retroactive revision of a concededly valid legal rule is extremely rare. With regard to criminal cases, I have no hesitation in affirming that it was unheard-of at the time the original Due Process Clause was adopted."

Tartly noting that Tennessee's legislature could not have changed the law and retroactively applied it to Rogers, Scalia said the court's decision "produces" a "curious constitution that only a judge could love": "One in which (by virtue of the Ex Post Facto Clause) the elected representatives of all the people cannot retroactively make murder what was not murder when the act was committed; but in which unelected judges can do precisely that."

Scalia's jurisprudence of strict construction -- he calls it "originalism" -- was, in this instance, a bit more severe even than Chief Justice Rehnquist's. It is slightly more rigorous than that of most of the judges Bush has nominated or will nominate. Yet his reasoning regarding the Tennessee case is neither recondite nor radical, and the most liberal justice (Stevens) and another liberal (Breyer) endorsed it, as has The Washington Post. Consider all this when critics suggest that because Bush considers Scalia an exemplary justice, Bush's nominees are presumptively unacceptable.

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