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March 3, 2008

Justices take another long break without resolving Baze

C7ab7a2b21b44b4da704916fe248ec5dbig Lawyers and judges in state and lower federal courts in regions with active capital punishment systems are accustomed to speedy appellate litigation in which complicated death penalty issues must be resolved sometimes in a matter of days or hours because of a looming execution date.  I suspect some of these lawyers and judges will join me in being disappointed and concerned with how long the Supreme Court is taking with the Baze lethal injection case.

We are now approaching six months since the Justices took up the Baze case in September, and it has been nearly two full months since the Court heard oral arguments in Baze.  In my view, neither the legal or factual issues in Baze are that complicated.  Moreover, the Justices have had the benefit of two recent ruling in this area (Hill and Nelson), and also the benefit of lots of lower court and amici input.

If Chief Justice Roberts was genuinely committed to having the Justices act more like a court and less like law professors, he would have made sure Baze was resolved quickly.  Expedited action in this setting seems especially important if, as some suggest (here and here), that the SCOTUS moratorium on executions may be costing hundred or even thousands of innocent American lives because of diminished deterrence.

Thomas Joyfully, I do not think recent homicide data supports a claim that the SCOTUS moratorium on executions is costing lives.  Nevertheless, I do think it is troublesome that the Justices have kept the modern death penalty in suspended animation as the Justices take their sweet time deciding an issue critically important to the future status of the American system of capital punishment.  Perhaps Congress could and should pass a law preventing the Justices from going on any kind of book tour when important death penalty cases are pending.

This kvetchy post is primarily the result of the fact that, according to this post at SCOTUSblog, the Justices this morning resolved two complicated cases that were both argued after Baze.  In addition, it appears that the Court now goes on hiatus for a few weeks, so that March 18 may be the next chance for an opinion in Baze (and I am not holding my breath we will see a ruling then).  Maybe it is time to tweak Justice Jackson's famous quip about the Supreme Court to read: "We are not slow because we are infallible, but we are slow only because we are final."

March 3, 2008 at 10:44 AM | Permalink

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Comments

It's not the law that's difficult in Baze, it's the politics. Fortunately, it's a fallacy that the delay costs lives or really has any negative impact at all, so it doesn't really matter - for that reason, perhaps your impatience is misplaced.

On the bright side, this improves the prospects for my New Years prediction that in 2008, Texas would witness more DNA exonerations than executions.

Posted by: Gritsforbreakfast | Mar 3, 2008 11:07:02 AM

Politics? I recall that the Chief Justice of the United States told the Senate and the country that judges were supposed to be umpires!

I am shocked, shocked to hear that politics might be impacting the efficient work of the Justices calling death penalty balls and strikes. Next thing you will tell me is that politics is also somehow impacting baseball, too!

Why, why, why Grits can't you just allow me to enjoy hopeful legal fictions without spoiling everything with a dose of reality. Party pooper!

Posted by: Doug B. | Mar 3, 2008 11:18:05 AM

I would not have expected Baze to be decided this early. The only case from the January calendar decided so far is Boulware, a unanimous decision the Court didn't seem to find difficult.

Warner-Lambert was "affirmed by an equally divided Court," meaning they just issue a one-liner without writing an opinion. That's not really comparable.

There are three cases still undecided from the October calendar, including Medellin v. Texas.

Posted by: Kent Scheidegger | Mar 3, 2008 11:31:15 AM

If Chief Justice Roberts was genuinely committed to having the Justices act more like a court and less like law professors, he would have made sure Baze was resolved quickly

I agree in principle, but in practice there's only so much the CJ can do as the "first among equals." If Justice X isn't done with the separate opinion, s/he's simply not done and the rest of the court will have to wait.

Also, death penalty litigation is all about delay tactics. It's not surprising that this decision is taking a while.

Posted by: | Mar 3, 2008 11:38:23 AM

A problematic presumption with your post, Professor, is that you have a rather simplistic view of how this works.

First, the case may have been received in September, but the case was first argued less than two months ago, in early January. That would have been the first time the justices voted on the matter and when the opinion would have been assigned. Considering that some of the more significant cases argued in October are still pending (e.g., Washington v. GOP, Medellin, Williams), it's not surprising to find that the case has not been released.

Second, you write, "In my view, neither the legal or factual issues in Baze are that complicated." Given that the procedural issues facing the court alone were problematic, much less the divisiveness of the issue and the troublesome interpretations of the Eighth Amendment, it's probably far more "complicated" than a blogger like you may posit. Furthermore, while a single justice may not find it complicated, herding the cats of five justices may be, particularly when the majority or dissent may rely heavily on social statistics or research data. Indeed, the dissent(s) may not begin drafting the opinion until the direction of the majority has been circulated.

Third, what you call "complicated" cases argued after Baze is further hyperbole. One was unanimous, the other was a per curiam opinion released without a published opinion.

I really love your site, but I'm frustrated reading posts like this--generally angry at the Court's slowness but grasping at reasons to criticize it. Calling from an ivory tower that the Supreme Court is taking its "sweet time" without any substantive basis for doing so except the personal conclusion that it's "not complicated" is, in my view, unfair and unwarranted.

Posted by: merevaudevillian | Mar 3, 2008 12:31:20 PM

Doug, while I know you're just ribbing, I'm sure from the academy or the courthouse I sometimes do seem like a "party pooper" for bursting "hopeful legal fictions." But I've gotta tell you, I think quite a few common "legal fictions" (e.g., interpreting coerced plea bargain processes via contract law) are as much responsible for our 1-in-100 overincarceration crisis as are crack disparities or any other statute.

We are at a point on many fronts where defenders of the US legal system would rather pretend untruth is truth than to admit we may be doing more harm than good.

I remember how shocked I was to learn in the case about drug dog sniffs at traffic stops a few years back that SCOTUS thinks a search is not a search if police are only looking for illegal things. When police use a tool to seek out hidden contraband in my personal property, to me and Webster's that's a search. That's the kind of "fiction" I don't tolerate well. Similarly, I don't know how to react except with disdain (toward the CJ, not you) when you tell us:

"the Chief Justice of the United States told the Senate and the country that judges were supposed to be umpires!"

News Flash, Mr. Chief Justice! It doesn't matter what you tell the Senate. When you have to get five votes out of nine to issue an opinion, there's politics.

As for politics entering into baseball, let's definitely hope our political system never becomes so degraded, unfocused and self-absorbed that it comes to that! I don't think I could bear it.

Posted by: Gritsforbreakfast | Mar 3, 2008 12:55:06 PM

merevaudevillian, though I understand your eagerness to defend the slow pace of the Court's work in this setting, the start and end of my post was designed to highlight the contrast between what lower courts are expected to do in capital cases and what the Supreme Court chooses to do.

I am sure it takes a long time to debate Baze, but consider that it took the Justices only FIVE MONTHS from the time of cert grant to a decision in Booker, and two of those months were during the Court's traditional summer recess AND the issues in Booker were clearly more complicated an unfamiliar than the issues in Baze. (Also, Rehnquist was already sick, so the Court had to figure everything out without its usual forceful leader.)

Of course, many would say the cats were hearded poorly in Booker. But at least we heard the meow as quickly as possible.

Posted by: Doug B. | Mar 3, 2008 1:15:03 PM

Doug: "Of course, many would say the cats were herded poorly in Booker. But at least we heard the meow as quickly as possible."

Indeed, I think Booker is a pretty good example for the opposite point. Writing a coherent opinion that doesn't leave too much hanging is more important than getting it out quickly.

Grits: "I remember how shocked I was to learn in the case about drug dog sniffs at traffic stops a few years back that SCOTUS thinks a search is not a search if police are only looking for illegal things."

I would be shocked, too, if that were a fair characterization of the opinion. Fortunately, it is not.

Posted by: Kent Scheidegger | Mar 3, 2008 2:03:34 PM

Kent, after defending a decision by the AG to go soft on a killer in a prior thread, now you are defending a federal appellate court taking a long time adjudicating a lethal injection claim. Wow. Has somebody stolen your blog commentor identity?

Do you plan to defend the Ninth Circuit if (when?) it takes a year or more from the time Baze is decided to resolve the lethal injection cases coming from California? No wonder California can't get on with executions: even the tough on crime folks out there tell courts to take their time with capital appeals. Hmmmm.... what ever happened to "Justice delayed is...."?

Posted by: Doug B. | Mar 3, 2008 2:54:42 PM

Very funny, but it is precisely my concern with what happens post-Baze in the lower federal courts, especially the Ninth, that makes me much more concerned with the high court getting it right than I am with whether the opinion comes out in March or April, or even June for that matter.

Posted by: Kent Scheidegger | Mar 3, 2008 4:39:19 PM

Book tour? Promotion for self-written books?

Joachim

Posted by: Joachim | Mar 4, 2008 5:46:37 PM

Baze was argued Jan 7 of this year so it hasn't even been 2 months. As mentioned earlier, Medellin was argued I believe the 2nd week of the term and still no decision. Medellin and Baze will probably be fractured opinions meaning they will possibly take 4 -5 months. If you want to criticize any courts it should be the 9th and the 3rd circuits. It took the 3rd Circuit (5) FIVE years just to schedule oral argument on Mumia Abu-Jamal. The decision is taking a long time also.

Posted by: David Pancione | Mar 4, 2008 6:30:53 PM

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