Where I Stand -- Mike O'Callaghan: Heated legal dissents

Mike O'Callaghan is the Las Vegas Sun executive editor.

I try to read the entire published U.S. Supreme Court decisions that are of interest to me. Even the majority decisions with which I agree, I find the content of the dissenting opinions the most interesting. This is especially true when the dissenting opinions are written by Justice Antonin Scalia or Justice Clarence Thomas. Both men argue their views with heated passion. Good examples of this are apparent in several recently released decisions.

Don't for a minute believe that egos and club mentality aren't obvious in the decisions. Many of the majority decisions are affirmed with a 5-4 vote. Not so Dickerson vs. United States, where the justices voted 7-2 upholding the use of "Miranda warnings" before a suspect is interrogated by law enforcement officers. This ruling in effect told Congress that its attempt to weaken Miranda won't be tolerated because it is supported by a constitutional decision. Very simply, the court sharply reminded Congress of the separation of powers and slapped the legislative branch.

The seven justices, in their opinion written by Chief Justice William Rehnquist, concluded "that Miranda announced a constitutional rule that Congress may not supersede legislatively." They went on to state, "we decline to overrule Miranda ourselves."

Justices Scalia and Thomas dissented, saying that they believe it's up to the people (Congress and states) to determine what protections (beyond those required by the Constitution) they want in "the criminal investigatory process." They don't see Miranda not being given prior to a criminal interrogation as a violation of the Constitution.

The real fire in dissent came in the 5-4 decision rendered in Stenberg vs. Carhart, which denied Nebraska power to stop partial-birth abortions even though the state would allow the procedure to protect the life of the mother. Justice Stephen Breyer, in writing the decision upholding the use of partial-birth abortions, also went into depth discussing all kinds of abortions with gruesome detail. Included was the Nebraska law defining partial-birth abortion as being "an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery."

The Nebraska statute went on to say that it is a procedure of "deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child."

In a dissenting opinion Justice Thomas described the primary form of abortion after 16 weeks gestation even before discussing the horror of a partial-birth procedure. Among his comments were: "Because of the fetus' size at this stage, the physician generally removes the fetus by dismembering the fetus one piece at a time. The doctor grabs a fetal extremity, such as an arm or a leg, with forceps and 'pulls it through the cervical os ... tearing ... fetal parts from the fetal body ... by means of traction.' ... In other words, the physician will grasp the fetal parts and 'basically tear off pieces of the fetus and pull them out.' ... ('You grasp the fetal parts, and you often don't know what they are, and you try to pull it down, and it's ... simply all there is to it.') The fetus will die from blood loss, either because the physician has separated the umbil ical cord prior to beginning the procedure or because the fetus loses blood as its limbs are removed."

Justice Scalia opened his dissent writing: "The method of killing a human child -- one cannot even accurately say an entirely unborn human child -- proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a 'health exception' -- which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?) -- is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, 'to establish Justice, insure domestic Tranquility ... and secure the Blessings of Liberty to ourselves and our Posterity,' prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd."

On the other hand a 9-0 vote upheld the federal government's power to manage foreign affairs. In Crosby vs. National Foreign Trade Council the court ruled that the state of Massachusetts doesn't have the authority to restrict trade and business dealings with Burma, also known as Myanmar.

So as in past years, the results of the recent U.S. Supreme Court rulings are a mixed bag. Yes, and the dissenting opinions are much more dynamic and better reading than the decisions.

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