Is There a Female Bloc on the U.S. Supreme Court?

For several decades commentators have referred to the United States Supreme Court as being divided into liberal and conservative blocs. Now, suddenly, it looks like there may be male and female blocs as well.

(Since a “bloc” normally has to have at least three members, the possibility of a female bloc came into existence only with the 2010 appointment of Justice Elena Kagan.)

In the Court’s recent decision in Blueford v. Arkansas, the court decided by a vote of 6-3 that the Constitution’s Double Jeopardy Clause did not prevent the State of Arkansas from retrying the petitioner Bluefield on capital murder charges.

Blueford was accused of killing his girlfriend’s young child and was indicted for capital murder. During his trial, the Arkansas jury was instructed to consider also the lesser included offenses of first-degree murder, manslaughter, and negligent homicide. Ultimately, the jury was unable to reach a verdict and it reported to the trial judge that it was deadlocked on the manslaughter charge. The jurors also stated that they had voted unanimously against Blueford’s guilt for the capital murder and first-degree murder charges and did not vote on negligent homicide.

In response, the trial judge declared a mistrial. When the state chose to retry Blueford, his lawyers moved to dismiss the capital and first-degree murder charges, based on double jeopardy considerations. The trial judge denied the motion, and the Arkansas Supreme Court agreed that double jeopardy had not attached.

Having granted cert., the United States Supreme Court affirmed the decision of the Arkansas Supreme Court. By a vote of 6-3, the court held that double jeopardy does not bar retrying Petitioner for capital and first-degree murder since the jury had not made a final resolution of the charges in the initial trial. Chief Justice John Roberts delivered the opinion, joined by male Justices Scalia, Kennedy, Thomas, Breyer, and Alito. Female Justice Sotomayor filed a dissent, joined by Justices Ginsburg and Kagan.

Whether or not gender played a role in the 6-3 split is an interesting question, but has not yet been addressed by commentators. Of course, one case does not establish a pattern, but it will be interesting to see if the pattern in Blueford v. Arkansas repeats itself.

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Who Will Lead the Fight for Access to Justice?

Jess Dickinson was on a roll, his Southern delivery infused with force and emotion. The Constitution is meaningless unless it is effective, said the presiding justice of the Mississippi Supreme Court. It is time, he said with rising voice, for judges to “stand up” and help insure that poor people have equal access to the courts.

The audience noted its approval with a standing ovation, but that result was never in doubt. After all, the occasion was the Annual Meeting of State Access to Justice Chairs last Saturday in Jacksonville, a gathering of 168 lawyers, judges and state supreme court justices from over 40 states, Puerto Rico and the District of Columbia, all of whom have signed on to the cause of equal access. There was an understandable enthusiasm for the justice’s remarks.

And the audience included the Honorable Shirley Abrahamson, Chief Justice of the Wisconsin Supreme Court, making a rare but significant appearance at the meeting; significant because in Wisconsin, access to justice has not enjoyed the out-front leadership of the highest court as it has in many other states, including Justice Dickinson’s Mississippi.

The Wisconsin court, principally the Chief Justice, has been active in the cause of self-representation, striving to make the courts more user friendly to those who cannot afford a lawyer. The Court also approved changes to the rules of professional responsibility that paved the way for the expansion of brief advice clinics, and adopted a State Bar petition to create an Access to Justice Commission. The Chief Justice has led the way in promoting the study of limited representation, considered an essential step in addressing the problem of access to the courts.

Most significantly, the court approved the $50 annual assessment that goes to the Wisconsin Trust Account Foundation’s Public Interest Legal Services Fund, providing much needed funds as IOLTA income fell. (One of the more bizarre events I’ve ever witnessed is the State Bar Board of Governors actually debating a proposal to sue the Court because of the assessment.)

But it would be a stretch to say that our Court has been out in front, leading the way on access to justice issues in Wisconsin.

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Victim/Offender Mediation in Turkey

After a delegation of members of the Turkish Parliament visited Marquette Law School last month, I had the privilege of traveling to Istanbul to moderate a victim/offender mediation conference for two hundred fifty Turkish prosecutors and judges. There were fourteen of us restorative justice “experts” from ten different countries who were there for three days to talk to the ballroom full of lawyers, who wanted to learn how to best implement Turkey’s already enacted victim/offender mediation process during criminal prosecutions.  It was a fabulous experience.

The United Nations’ Development Programs for Judicial Reform organized and oversaw the planning of the conference. Because the panel members came from many countries (Albania, Austria, Belgium, Brazil, Canada, Italy, Scotland, Spain, Turkey, and the United States), we had simultaneous translations of the conference into several languages. The Turkish audience was lively and eager to participate in the dialogue. Over the first two days we spent much of our time taking questions from the floor and answering them from the perspectives of different cultures, judicial systems and philosophies. The Turkish prosecutors and judges, like prosecutors and judges around the world, are working to improve the delivery of justice despite their significant caseloads. They hope that by using restorative processes that they can provide a more just system while reducing the number of cases that must go to trial.

I have a number of observations about the conference.

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