Pennsylvania Litigation Lawyer & Attorney : Barley Snyder Law Firm : Serving Lancaster, Reading, York, Chambersburg

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I'm something of a physics buff.  Terms like m-theory, p-brane, and loop quantum gravity all mean something to me.  So, naturally I was interested to learn that the United States Supreme Court has adopted a more fluid view of causality than that supported by known physics. 

In Abdul-Kabir v. Quarterman, No. 05-11284, the Court decided that, in a capital case, the jury must be instructed it may consider any mitigating evidence offered by the defendant in deciding whether to impose the death penalty.  Writing for the Court, Justice Stevens's lengthy opinion marshaled numerous precedents in support of the view that such an instruction was compelled by "clearly established law" at the time of the defendants' trial. 

Although the majority opinion is interesting, the Chief Justice's dissent is more so.  The dissent is exceptional in its tone, which all but openly mocks the majority.  The Chief colorfully disclaims any ability to distill "clearly established law" from the "dog's breakfast of divided, conflicting and ever-changing analysis" relied on by the majority, and snickers that "it should not take the Court more than a dozen pages of close analysis of plurality, concurring, and even dissenting opinions to explain what th[e] 'clearly established' law was."  As an exchange of views, this is frank, bordering on direct.

Here's where the strange physics comes in.  Among the cases on which the majority relies is Franklin v. Lynaugh, 487 U.S. 164 (1988), a plurality decision in which Justice Stevens was in dissent.  Oddly enough, Stevens cites his own dissent as evidence of "clearly established law" that the lower courts should have followed.  The Chief was in no mood:

[T]oday the author of a dissent issued in 1988 writes two majority opinions concluding that the views expressed in that dissent actually represented ?clearly established? federal law at that time. So there is hope yet for the views expressed in this dissent, not simply down the road, but [as of today]. Encouraged by the majority?'s determination that the future can change the past, I respectfully dissent.

See, according to the majority, the Franklin dissent isn't a dissent at all.  It is, instead, clearly established law -- and, presumably, has always been.  How did that happen?  Because yesterday's opinion says it is so.  Taa-daa. Reverse causality.  A tachyon-based jurisprudence.  The last line is one of the most well-placed shots I've ever seen taken in a judicial opinion.  If I were on the Court, I'd like to think I'd have written it, too.  Golf clap for the Chief.  (via Volokh)