Texas and the Supreme Court

There is an important article in today's New York Times about the handling of death penalty cases by two of the courts that hear Texas appeals. The courts in question are the Court of Criminal Appeals, the highest criminal court in Texas; and the United States Court of Appeals for the Fifth Circuit, which is in New Orleans but handles Texas death penalty cases. Apparently, these courts have been routinely rejecting death penalty appeals and basing their rulings on legal principles or tests that have no basis in appellate law as defined by the Supreme Court, or that actually contradict Supreme Court rulings.

In the past year, the Supreme Court has heard three death penalty appeals cases from Texas in which the Justices found blatant violations of legal procedure or due process. Tomorrow the Court will hear arguments in a fourth case -- which the Court is hearing for the second time, because Texas basically ignored the Court's ruling the first time.

Obviously, this is a clear case of legislating from the bench. Instead of basing their rulings on the law, as the highest court in the land tells them the law is, Texas courts are making up their own law and telling the Supreme Court to go to hell. If these cases were about affirmative action, or abortion, and a state or federal appeals court ignored a strict constructionist ruling on appeal, conservatives would be howling from New York to California about activist judges legislating from the bench instead of upholding the law as it is. So I fully expect Pres. Bush and his new Attorney General, Alberto Gonzales, to tell Texas to straighten up and fly right. I'm sure they will.