From: eck@panix.com (Mark Eckenwiler)
Subject: Re: Justice Thomas (was Socialism Security Rides Again)
Date: Mon, 13 Apr 1992 14:04:34 GMT
Organization: The Witherspoon Excludables
Followup-To: misc.legal

In <rdippold.703147320@cancun>, rdippold@cancun.qualcomm.com stated:
>In article <1992Apr12.223835.10614@dartvax.dartmouth.edu>, Joe.Francis@dartmouth.edu (Joe Francis) writes:
>|> > in support of beating prisoners.  Read the opinions rather than the
>|> > propaganda regarding the opinions.  (I don't believe seven others
>|> > voted with Thomas either -- I thought he was on a losing 7-2 side.)
>|> 
>|> It was an 8-1 split, with Thomas in lone dissent. 
> 
>Apparently Thomas should just vote any damned way he pleases on the
>issue, because people are going to go with whatever makes them the
>most pissed off anyhow.  It was 7-2, with Scalia, hence the political
>cartoons showing him as Scalia's lackey, etc.  And he did vote against
>the child pornography conviction of the farmer in the government
>entrapment operation.    But not in the lovely fairly land of
UseNet...


The "lovely fairy land of UseNet" notwithstanding, the facts of the
recent case in which Thomas *did* vote the sole dissent illustrate
just why he is widely considered legally insane.

The 8-1 vote came in an appeal from a death sentence in a murder case.
During the sentencing phase, the prosecutor brought evidence to
demonstrate that the defendant was (and had been) a member of the
Aryan Brotherhood, a white-supremacist prison gang.  [AB has been the
subject of a number of Supreme Court decisions; see, e.g., _United
States v. Abel_, 469 U.S. 45 (1984).]  Based on this and other
aggravating factors, the jury voted to impose the death sentence.

Petitioner argued that his first amendment right to freedom of
association had been violated.  Significantly, he noted that the
prosecutor offered no proof connecting the crime at issue and
defendant's membership in AB; indeed, no such factual connection
existed.  Thus, petitioner charged that the imposition of the death
sentence in this case constituted punishment purely for abstract
beliefs held, rather than for specific acts in conjunction with those
beliefs.  

By an 8-1 vote, the Court vacated and remanded for reconsideration of
the sentence.  Writing for the majority, Chief Justice Rehnquist (!)
observed that the state's elicitation of this factor was both
inflammatory and irrelevant, and went on to say that "on the present
record one is left with the feeling that the Aryan Brotherhood
evidence was employed simply because the jury would find these beliefs
morally reprehensible."  [Court watchers will also appreciate the
irony of the fact that the CJ cites _Texas v. Johnson_ for the
proposition that the state may not punish citizens for distasteful
beliefs.] 

The case is Dawson v. Delaware, 60 USLW 4197 (3/9/92).

-- 
When the Persians have an important decision to make, the leaders discuss it
when drunk. They revisit their decision when sober, and adopt it only if they
reach that same conclusion again.  Conversely, any decisions made in sobriety
are reconsidered in drink. {Herodotus, bk. 1}   eck@panix.com  Mark Eckenwiler
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