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September 22, 2005

Does Roberts question modern 8th Amendment jurisprudence?

Though the media is now focused on how Democrats are going to vote on the Roberts' nomination, the Wall Street Journal this morning has this article (subscription required) noting Judge Roberts' written responses to follow-up questions from last week's Senate Judiciary Committee hearing. Interestingly, the article's lead asserts that, through these written responses, Roberts "cast doubt on a 1958 Supreme Court precedent that underpins recent rulings finding the execution of juvenile offenders and the mentally retarded to be unconstitutional. "

Here is the full passage from the WSJ article covering this interesting and potentially consequential issue of Eighth Amendment jurisprudence:

It was in response to written questions from Mr. Kennedy and Sen. Sam Brownback (R., Kan.) that Judge Roberts commented on the standard the high court has used for nearly half a century to interpret the Eighth Amendment ban on "cruel and unusual punishments."

In the 1958 Trop v. Dulles case, Chief Justice Earl Warren wrote that the amendment should be interpreted according to "the evolving standards of decency that mark the progress of a maturing society," and later rulings have looked to both domestic and international mores to assess whether certain punishments are constitutional. In March, a 5-4 Supreme Court used that test to strike down state laws allowing the execution of juvenile offenders.

In his reply, Judge Roberts didn't attack the "evolving standards" test, as Justice Antonin Scalia and other critics have. But he observed that applying "this principle has been a source of deep disagreement on the court that can in part be traced to the language of the Eighth Amendment."

September 22, 2005 at 09:22 AM | Permalink


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Tracked on Sep 22, 2005 11:42:41 AM


Let's assume that Roberts does disagree with the Trop v. Dulles analysis, and therefore let's assume that he also disagrees with Roper and Atkins. My question is how likely is it for a case to reach the Court that asks the Justices to reconsider the holdings?

In the case of Atkins, a case may come to the Court that challenges a state statute defining "mentally retarded" or the process for determining who is mentally retarded. But a case that would give the Court the opportunity to reconsider Roper seems much more unlikely. In order for there to be "a case or controversy," a state would have to attempt to execute a juvenile, despite the Court's prior precedent. Also, if a Justice wanted to question the continuing validity of Roper and Atkins, he/she might try to do so in dicta of a decision surrounding the Eighth Amendment.

But I guess my point is that while there are potential avenues for the Court to re-evaluate Roper and Atkins, such avenues are not as readily available and less likely to emerge than in other areas of the Court's jurisprudence.

Posted by: DEJ | Sep 22, 2005 11:27:13 AM

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