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By Bill Altreuter

One of the things that I like about judging moot court is that it gives you an advance look into the issues that the real courts are dealing with. Unless you follow the Supreme Court a lot more closely than most people the tendency is not to notice what cases the justices accept, so when the decisions are made we don't really have the background on them which might put the law in better context. Slate's Dahlia Lithwick does a great job of covering the arguments, the Times is okay too, and Nina Totenberg is also good on the big cases, but for realling getting into the nitty-gritty moot court is great. Last March I was importuned into judging the Herbert Wechsler National Criminal Law Moot Court, and had a chance to consider the arguments for and against capital punishment for child rape. Now, three months later, I feel like I'm in a position to say that the Court got this one right. Not surprisingly it was a 5-4 close call, but I'm fine with that.

Something that seems notable to me about this decision is that it gives the lie to all the talk we've been hearing about how the Roberts Court is different. This is a 5-4 split that looks exactly like the 5-4 splits we've been seeing for years. There is nothing subtle or nuanced about this decision-- it is not like the Indiana voter ID decision, with a "liberal" Justice joining the majority in order to craft a "moderate" decision. This is clear-cut stuff: Scalia, Thomas, Roberts and Alito have no problem with capitol punishment; Breyer, Ginsburg, Souter, and Stevens say nay. It is hardly surprising that Kennedy wrote for the majority-- a guy who looks to comparative law for guidance is hardly going to take the position that the Saudi Arabian penal code is an apt model for American jurisprudence.

Full post as published by Outside Counsel on June 25, 2008 (boomark / email).