Strange Decision
A case was strangely decided by the US Supreme Court today. The case is Smith v. Massachusetts. But before I get to the strange thing about it, here's what the case is about.
Smith was charged for shooting someone, and for illegal possession of a "firearm", which in this case apparently meant something with a barrell shorter than 16 inches. The DA blew his prosecution of the firearm charge, because he never introduced any evidence that tended to prove the length of the barrel of the weapon Smith was accused of using. When the DA was done with his case, Smith's lawyer asked the judge to dismiss the firearm count because there wasn't sufficient evidence of barrel length. The judge did just that, and the defense put on it's case.
But before closing arguments, the DA said the victim described the weapon as a "pistol" or "revolver", and that this was good enough to infer that the barrel was shorter than 16 inches. And this time, the judge agreed, reversed herself, and allowed the firearms case to go to the jury. This, after telling the defense before it began it's presentation, that the charge was dismissed. The case went to the Supreme Court on whether or not reviving the charge against the defense violated the Double Jeopardy Clause, which says you can't be tried twice for the same offense.
It was a close, 5-4 decision. Now, I haven't read the opinion, but that doesn't matter much for the original point of this post. The strange thing was that in the majority were Scalia (conservative), Stevens (liberal), O'Connor (con/swing), Souter (lib), and Thomas (con). In the minority were Ginsburg (lib), Rhenquist (con), Kennedy (con/swing), and Breyer (lib). Oh -- and Smith won -- the charge is dropped because reinstating it violated the Double Jeopardy Clause.
You can't get a more evenly divided court and still get a majority decision than with this one. But then I came across Eugene Volokh's post and I think he hit what I couldn't quite put my finger on:
I can't recall any other Supreme Court case with precisely this lineup. There have been similar lineups; consider part of the Booker/Fanfan Sentencing Guidelines decision, in which Ginsburg, the Chief, O'Connor, Kennedy, and Breyer were in the majority, and Scalia, Stevens, Souter, and Thomas were in the dissent. But I don't remember precisely this lineup. If you can think of a case in which the Justices split exactly this way, please e-mail me at volokh at law.ucla.edu.I'll have to read the opinion, because for what it's worth, I don't get how this is a Double Jeopardy case at all. The judge dismissed a charge in the middle of a trial and then reinstated the charge at the end of the trial, after the trial had proceeded on the basis that the charge was gone to meet it's Maker and joined the Choir Invisible. Isn't it much more of a straight Due Process case than anything else?