We all know that Justices Scalia and Thomas have always written the best dissents and Justice Alito’s dissent in Smith is no exception. Even though Justice Alito avoided most of the classic traps of writing a dissenting opinion like excessively broad analysis and only barely touching on the issues that the majority addresses, he is simply too nice to write an opinion that really interests me. The only interesting part of the opinion is when Justice Alito inadvertently highlights the ludacris nature of federal constitutional error tests. He suggests that Smith was forced to meet the “plain error rule” instead of the “egregious harm standard”. If you’re ever bored, I suggest you establish your own legal test. All it takes is a non-specific adjective and a noun that sounds serious. Good Luck, may the best test win.
More on the Death Penalty Cases coming soon.