Block on Trump's Asylum Ban Upheld by Supreme Court
Here's a fun guessing game: which current presidential contender's Supreme Court clerkship was characterized by an obsession with the death penalty and the "lurid details of murders?"
Not sure? Here's a hint: he was born in Canada.
That's right, Senator Ted Cruz's stint as clerk for then-Supreme Court Chief Justice William Rehnquist in 1996 was marked by Cruz's morbid, charnel house fixation on capital punishment and grisly murders. That is, at least according to The New York Times. The Times' Jason Horowitz tracked down Cruz's old clerk colleagues to see how he performed under the Chief Justice.
Their descriptions are telling: more than anything else, Cruz is remembered for his dogged focus on capital punishment and dwelling on "the lurid details of murders that other clerks tended to summarize before quickly moving to the legal merits of the case."
Of course, fans of Senator Cruz won't be surprised by his death penalty advocacy. Cruz defended capital punishment in his book A Time for Truth and acted as Texas solicitor general from 2003 to 2008, a five year period that saw 134 people executed by Texas. As solicitor general, Cruz successfully defended those death sentences multiple times before the Supreme Court.
But Cruz's death penalty advocacy seems to be more of a personal than a legal or political conviction. As a Court clerk, Cruz would often talk of how his mentor's father was murdered by a carjacker.
That mentor was John Luttig, then a judge on the Fourth Circuit and major incubator of future Supreme Court clerks. The emotional scars of the murder, which occurred the year before Cruz began clerking for him, helped form an emotional bond between the judge and future Senator, the Times explains. (The murderer was eventually executed, but years after Cruz left the Court.)
Clerks play an important role in the Supreme Court, helping filter cases and draft opinions. Many of them go on to become politicians, very expensive litigators, and Supreme Court justices themselves.
It's not unusual for those clerks to leave their mark on Supreme Court jurisprudence, either. For example, Justice Blackmun famously renounced the death penalty in 1994, writing "from this day forward, I no longer shall tinker with the machinery of death." It was a declaration that had been planned, if not prepared, by his clerks for months.
When it came to defending the "machinery of death," if Cruz dwelled on gory details of crimes more than other clerks thought appropriate, it probably didn't bother Chief Justice Rehnquist, who was known for his support of capital punishment. Cruz was particularly enthused for last minute decisions. The Times explains:
But Mr. Cruz usually reserved his enthusiasm for his unsparing death penalty memos or the late nights when a prisoner from the appeals circuit under Chief Justice Rehnquist's oversight was slated for execution. On those nights, when he was responsible for addressing the flurry of 11th-hour defense motions, he would rouse the chief justice at home, give his recommendation, get the chief justice's vote and then write up a memo that explained why the chief justice had voted to deny an emergency postponement of the execution.
Of course, it wasn't all capital punishment when Cruz was on the Supreme Court. Horowitz drops this disturbing tidbit in the middle of his Cruz report: "for a case about the constitutionality of a law regulating Internet pornography, Mr. Cruz watched X-rated sex scenes on a computer with Chief Justice Rehnquist and Justice O'Connor." Frankly, we'd take death over that.
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