192
Scalia, J., dissenting
fendant to wear an electronic bracelet could be attacked as an immediate infringement of the constitutional right to "bodily integrity"; an order refusing to allow the defendant to wear a T-shirt that says "Black Power" in front of the jury could be attacked as an immediate violation of First Amendment rights; and an order compelling testimony could be attacked as an immediate denial of Fifth Amendment rights. All these orders would be immediately appealable. Flanagan and Carroll, which held that appellate review of orders that might infringe a defendant's constitutionally protected rights still had to wait until final judgment, are seemingly overruled. The narrow gate of entry to the collateral-order doctrine—hitherto traversable by only (1) orders unreviewable on appeal from judgment and (2) orders denying an asserted right not to be tried—has been generously widened.
The Court dismisses these concerns in a single sentence immediately following its assertion that the order here meets the three Cohen-exception requirements of (1) conclusively determining the disputed question (correct); (2) resolving an important issue separate from the merits of the action (correct); and (3) being unreviewable on appeal (quite plainly incorrect). That sentence reads as follows: "These considerations, particularly those involving the severity of the intrusion and corresponding importance of the constitutional issue, readily distinguish Sell's case from the examples raised by the dissent." Ante, at 177. That is a brand new consideration put forward in rebuttal, not at all discussed in the body of the Court's analysis, which relies on the ground that (contrary to my contention) this order is not reviewable on appeal. The Court's last-minute addition must mean that it is revising the Cohen test, to dispense with the third requirement (unreviewable on appeal) only when the important separate issue in question involves a "severe intrusion" and hence an "important constitutional issue." Of course I welcome this narrowing of a misguided revision—but I still
Page: Index Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NextLast modified: October 4, 2007