Bench Memos

Re: Greenhouse’s Distorted Account of “Selective Empathy”

One additional observation on New York Times blogger Linda Greenhouse’s misguided critique of two recent Supreme Court cases.  Greenhouse writes (italics added):

Justice Samuel A. Alito added a concurring paragraph [in Bobby v. Van Hook] to observe that the A.B.A. “is, after all, a private group with limited membership,” and its views should not be given “special relevance” in determining whether a lawyer’s performance meets constitutional standards.

The paragraph was not only gratuitous. It also was a chilling reminder of how the court has changed since the retirement of the justice whom Justice Alito replaced, Sandra Day O’Connor. In a 2003 majority opinion, Wiggins v. Smith, Justice O’Connor cited the bar association’s standards in concluding that a lawyer’s representation of a Maryland death-row inmate had been constitutionally deficient. William H. Rehnquist, then the chief justice, joined that opinion; only Justices Antonin Scalia and Clarence Thomas dissented.

Greenhouse is, of course, correct that Alito’s concurrence was in one sense “gratuitous.”  Every simple concurring opinion—i.e., an opinion in which the writing justice fully joins the opinion of the Court and writes separately merely, say, to set forth his understanding of a point—can be said to be gratuitous.  But it’s difficult to discern why Greenhouse believes that’s a meaningful criticism.

As for the supposedly “chilling reminder of how the court has changed since” Justice O’Connor’s retirement:  All nine justices in Bobby v. Van Hook agreed that under the Court’s precedents “‘American Bar Association standards and the like’ are ‘only guides’ to what reasonableness means, not its definition.”  O’Connor’s majority opinion in Wiggins v. Smith didn’t purport to claim more than that—which explains why the Van Hook opinion (which of course includes the dissenters in Wiggins) is able to cite Wiggins with approval.  Alito’s concurrence merely adds his own “understanding” what the opinion means and why the ABA guidelines should not be given a “privileged” position.  So what are Greenhouse’s readers supposed to be scared of?