Osler's Razor

The arguments in front of the Supreme Court yesterday in the Dillon case (transcript here) were disappointing in many ways. Most painfully for me, some of my friends did not get in to see much of it, having waited outside for too long. While I had a good seat (next to Cory Andrews of the Washington Legal Foundation, for whom we wrote the brief), that did not help much. The Court seemed largely hostile to our side, and this was especially true of Justice Sotomayor.

There were three bright spots:

1) DC was gorgeous. I took the photo above while moping about after the argument.

2) Cory called my attention to the fact that Justice Thomas appeared to be reading through our brief during the argument, and pointing something out to Justice Breyer.

3) If nothing else, there was a nice bump for the Commutation Project. During the arguments, Justice Kennedy engaged in this exchange, making exactly our point:


JUSTICE KENNEDY: The Petitioner's brief
opens with a statement about his rehabilitation. We
don't know if that has been contested. You don't
respond to it. But let's assume that's all true. He
established schools and he helped young people and so
forth. Does the Justice Department ever make
recommendations that prisoners like this have their
sentence commuted?

MS. KRUGER: I am not aware of the answer to
that, Justice Kennedy. It's certainly true that
evidence of that type of rehabilitation factored into
the government's recommendation in this case that
Petitioner -­

JUSTICE KENNEDY: And isn't the population
of prisoners in the Federal prisons about 185,000 now?

MS. KRUGER: I think -­

JUSTICE KENNEDY: I think it is. And how
many commutations last year? None. How many
commutations the year before? Five.
Does this show that something is not working
in the system? 185,000 prisoners? I think that is the
number.

MS. KRUGER: I -- I'm not prepared to speak
to that question today, Justice Kennedy...


After the argument, I had lunch with IPLawGuy and Margaret Colgate Love, the former Pardon Attorney of the United States (and author of this excellent article about pardons). We may be hatching a plot. Watch this space...

Meanwhile, I will be speaking to the Pre-Law society tonight on the Baylor Main Campus at 6 pm-- Draper 337. I think everyone is welcome.