June 25, 2008
Big SCOTUS day open thread
The Supreme Court will issue some of its final opinions this morning. Of course, SCOTUSblog is the best place to follow all the action. Also, How Appealing and The Volokh Conspiracy will surely have coverage and early commentary, too.
The two biggest cases I am looking forward to seeing are the Kennedy child rape case (archive here) and the Heller Second Amendment case (archive here). And the big Exxon case dealing with punitive damages might have some interesting punishment and due process dicta.
Because I will be on a plane during all the announcements, readers will need to supply the commentary until I get a chance to catch up this evening.
June 25, 2008 at 09:43 AM | Permalink
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Re: death penalty for child rapists being declared unconstitutional--the Court just makes it up as it goes along. The decision is illegitimate.
Posted by: federalist | Jun 25, 2008 10:23:42 AM
5-4 against dp for child rape in Kennedy.
Posted by: Bill Arthur | Jun 25, 2008 10:24:10 AM
Ah, federalist, always spouting off intemperate, ill-reasoned bold proclamations.
The Kennedy "decision is illegitimate." Because the outcome doesn't fit your preferences? Because our governments (state and federal) will kill fewer of our fellow citizens? Because the decision brings us in line with an overwhelming global consensus against state-sanctioned killing?
Posted by: Sentencing Observer | Jun 25, 2008 10:45:11 AM
I'm in favor of the result reached in Kennedy, but I have to say, Sentencing Observer, that if anyone here is "spouting off intemperate, ill-reasoned, bold proclamations," it's you.
Posted by: | Jun 25, 2008 10:56:41 AM
Because the decision brings us in line with an overwhelming global consensus against state-sanctioned killing?
When has the United States ever cared about Global consensus when it was not in their best interest?
Posted by: noway | Jun 25, 2008 10:57:03 AM
Ah - global consensus -- nice argument - too bad it's irrelevant to an Eighth Amendment analysis. (Of course, that rationale wasn't used, or else I would agree that a portion of the opinion was illegitimate).
I can't say that I'm surprised by the outcome, but I think it raises some separation of powers issues. I tend to agree with Alito that a bulk of the rationales used to strike down this law (incentive to kill, not beneficial to the victim) are legislative decisions. They should serve no role under a true Eighth Amendment analysis.
In determining whether the punishment is cruel and unusual, I don't see how you can consider whether the punishment encourages other crime or may somehow harm the victim further.
I'm also somewhat baffled that the majority specifically omits "crimes against the State" from its analysis and includes "drug kingpins" as an example of someone who could conceivably be put to death.
Posted by: NewFedClerk | Jun 25, 2008 11:08:18 AM
"Because the decision brings us in line with an overwhelming global consensus"
Sentencing Observer, I have a proposal and I hope you will join with me.
1) Shred the Constitution.
2) Hire a polling company, perhaps Pew.
3) Request Pew to poll the globe on hot-button issues to gather a "global consensus." (Oh, and of course, when we say global consensus, we only mean Western Europe, the rest of the globe does not count).
4) Scrap SCOTUS, and require Congress to pass all laws in accordance with said "global consensus."
5) Sit back and bask in the glory of our enlightenment.
Will you join me?
Posted by: Anonymous Law Student | Jun 25, 2008 11:09:06 AM
Bush v. Gore is illegitimate. Kennedy is a straightforward application of longstanding precedent. You extremists say the darnedest things.
Posted by: DK | Jun 25, 2008 11:10:59 AM
It looks like Exxon decided very little for the future from a quick glance since the court is reported to have split 4-4 on whether punitive damages are allowed under Maritime Law (which has always had a large international law component) due to an owner's employee's action (even though in this case it was gross negligence). I guess one can say that Exxon "won" but having to pay $507 million dollars seems like quite a dubious win. I think that Stevens is probably right that such a decision about damage caps in Maritime cases should have come from Congress, but it looks like the damages were set at the 1:1 ratio there more due to the fact that the compensatories were so large.
Kennedy is a suprise - I was thinking that there would be a more narrow ruling based on the lack of aggravating factors, rather than a categorial ruling - still, since Mr. Kennedy is likely to still spend the rest of his life in prison and probably get moved to the general population to bit, it seems like a rather dubious victory for him to. I notice that from a quick glance the Court appears to be leaving open the door for death penalty cases for crimes such as treason and possibly terrorism related crimes as well. Will be interesting to see how that develops.
Posted by: Zack | Jun 25, 2008 11:14:49 AM
I find it curious that Professor Berman failed to mention Giles v. California. The case itself is interesting but the opinion reached is equally so. Justice Scalia's decision is not a surprise, as anyone who followed his Confrontation Clause jurisprudence would know. What I find interesting are the Thomas and Alito concurrences which suggest a way to make sure that Mr. Giles does not get away with murder.
As for the silliness of a "global test" when it comes to American constitutional law, others have sufficiently ridiculed the notion. Let me just add that the US may be the only country in the world that uses the Exclusionary Rule. Should I expect proponents of the "global test" to heed the "global consensus" and get rid of it?
I'm not holding my breath. People like noway and Sentencing Observer should be careful about what they wish for.
Posted by: realist | Jun 25, 2008 11:17:43 AM
Straightforward application of what precedent, DK? The majority goes out of its way to make it clear that Coker is not applicable and that no state legislature would have thought it was. Or perhaps you mean, Roper -- as it is all of 3 years old and overruled precedent that stood for 15 years immediately before that. Or perhaps, Atkins, all of six years old.
I could buy that this was a "straightforward application" if that were the case. Of course, Roper and Atkins focused on qualities of the perpetrator to find 8th Amendment violations -- so I don't think there is any legitimate argument that a straightforward application of either leads to a categorical ban on applying the death penalty to a type of crime, rather than a type of criminal.
Posted by: NewFedClerk | Jun 25, 2008 11:21:50 AM
NewFedClerk wrote: "In determining whether the punishment is cruel and unusual, I don't see how you can consider whether the punishment encourages other crime or may somehow harm the victim further."
Because the Supreme Court has said it would do so since Gregg. If a punishment is "so totally without penological justification that it results in the gratuitous infliction of suffering," then it is cruel and unusual. That necessarily requires an inquiry into the law's penological justifications or lack thereof. That making child rape a capital offense would likely result in more child murder (and additional underreporting of child rape) detracts from the alleged penological justification of deterrence.
Posted by: DK | Jun 25, 2008 11:24:42 AM
The original punitive assessment was $5 billion. Over the past 2 decades, that was slashed to only 10% of the original figure. I consider that to be a reasonably good score. (It's been said that $2.5 billion is Exxon's revenue for 3 weeks. If so, then half a billion is their revenue for about 4 days. I don't think Exxon will be going bankrupt anytime soon.) If Justice Alito was not forced to recuse himself, the Court might have come out with a decision that respects precedents.
I've always thought that what Exxon should've done was to offer to buy Alito's Exxon stock at 10x the market price. It would be a bargain. There's still time. The case is being sent back to the 9th Circuit. If Justice Alito chooses to dump his Exxon stock, Exxon may simply appeal the judgment again.
Posted by: realist | Jun 25, 2008 11:27:42 AM
DK - except that's not at all the analysis that was performed in Kennedy. There's no inkling that the majority that the punishment is without penological justification. In fact, the majority makes it clear that the crime at issue is especially heinous, requiring a hefty penalty.
Again, if they had relied on Gregg, I could buy that this is just an application of precedent and stare decisis compels the result reached. The majority, however, didn't rely on Gregg - they made a straightforward policy decision, giving no deference to the legislature, rather than the substantial deference Gregg would require.
Posted by: NewFedClerk | Jun 25, 2008 11:30:08 AM
NewFedClerk wrote: "Straightforward application of what precedent, DK? The majority goes out of its way to make it clear that Coker is not applicable and that no state legislature would have thought it was. Or perhaps you mean, Roper -- as it is all of 3 years old and overruled precedent that stood for 15 years immediately before that. Or perhaps, Atkins, all of six years old."
We're clearly not reading the same opinion. Kennedy does not "go out of its way to make it clear that Coker is not applicable." What it makes clear is that Coker's narrow holding (rape of an adult woman) does not directly control the outcome here (rape of a child). Otherwise, Kennedy relies on Coker extensively.
The straigtforward application of precedent in Kennedy is the two-pronged test of (1) assessing whether a national consensus exists; and (2) bringing the court's independent judgment to bear. This is not new stuff.
Posted by: DK | Jun 25, 2008 11:34:15 AM
As for Kennedy v. Louisiana, I'm inclined to agree with DK on the policy question, but that's not the point here. The Court stated in Ewing v. California: "The Constitution 'does not mandate adoption of any one penological theory.'" Policy questions should be left to the political branches. Even Justice Stevens conceded: "'The Constitution does not prohibit legislatures from enacting stupid laws.'" (New York State Board of Elections)
The wisdom of the policy question should have been reserved for the political branches. The Court's decision in Kennedy v. Louisiana does violence to the Constitution.
Posted by: realist | Jun 25, 2008 11:38:08 AM
The fact that you're willing to refer to the Court's Eighth Amendment precedent in general as "straightforward" means this debate is going nowhere.
Posted by: NewFedClerk | Jun 25, 2008 11:38:35 AM
[not]-anonymous law student & others:
my series of questions was meant to probe the way in which federalist claimed the decision was "illegitimate."
The way I see it, either the decision comports with the constitution and precedent, or it doesn't. It may be that the Constitution or precedent is "illegitimate" to some, based on their views of morality. Huckabee seemed to think the constitution was illegitimate in ways & needed amending to bring it line with the Bible, no? I was just asking whether a decision is illegitimate if it brings us in line with an overwhelming global consensus. And no need to ask Pew to do any surveying -- name me the countries that execute people for child rape. Maybe a couple despotic countries in the Middle East, but then again, our only compatriots in the foul business of killing our citizens are authoritarian regimes. Such a proud tradition we are a part of. China, Saudi Arabia, and the good ol' US of A -- killing our citizens.
Posted by: Sentencing Observer | Jun 25, 2008 11:50:15 AM
Perhaps instead of blaming the Supreme Court, we should blame the lawyers for the government that were unable to convince the court of their position. Maybe they didn’t bluebook well enough or use IRAC correctly.
The minute I read federalist’s silly “the decision is illegitimate” I actually laughed at loud.
There is something ironic, if the decision were really “illegitimate” it would mean any questioning of the decision below would be illegitimate, too. Therefore, cert. should never have been granted. However, I didn’t see anyone making the argument that cert. should NEVER have been granted, as any killing of child rapists is inherently constitutional and beyond constitutional scrutiny.
NewFedClerk, Let me humor you for a minute. While you are or I may disagree with it, whether a punishment is “usual” in other countries is relevant to whether it is “unusual” as a whole. Whether this is the “correct” construction of the Eighth Amendment or not is anyone’s guess, but it is a construction that has been adopted before by the Supreme Court.
Secondly, NewFedClerk, considering that this was a review of a state Supreme Court decision, I think you really mean “federalism” issues rather than “separation of powers” issues. Even then, considering that the lower courts passed on the issue when it was properly put before them, I fail to see how you could argue that there are federalism or separation of powers issues in the Supreme Court reviewing a question of constitutional law.
Posted by: S.cotus | Jun 25, 2008 11:54:08 AM
NewFedClerk, realist, Zach (as to Kennedy v. Louisiana):
I agree. One thing I thought particularly amazing was the majority's citation to, of all things, Furman, the fractured opinion from 36 years ago that was overturned four years later.
I didn't think you could get away with citing a case like Furman, but I guess when you're on the Supreme Court, you can get away with anything.
Posted by: Bill Otis | Jun 25, 2008 11:55:45 AM
Name me the countries that apply the Exclusionary Rule.
Such a proud tradition that we are a part of. Not even China and Saudi Arabia would apply that barbaric rule.
Oh wait. The "global test" only applies when it involves setting murderous thugs free. When the rest of the world rejects a silly rule that sets murderers free, the "global consensus" becomes irrelevant. Apparently, what Justice Scalia said about the Lemon test applies to the "global test" as well: "It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him."
Posted by: realist | Jun 25, 2008 11:56:48 AM
realist wrote: "The wisdom of the policy question should have been reserved for the political branches. The Court's decision in Kennedy v. Louisiana does violence to the Constitution."
That's not very realist of you. Policy questions are routinely addressed by the Supreme Court, and they can't be avoided. The Constitution, after all, enshrines policy. See, e.g., every First Amendment case ever decided, every Fourth Amendment case ever decided, every Fifth Amendment case ever decided, every Sixth Amendment case ever decided, and every Eighth Amendment case ever decided. Also see every Commerce Clause case ever decided.
(I will grant you that the Eighth Amendment's vague "cruel and unusual" clause tends to make the policy considerations undergirding the Court's decisions more apparent. But when you are a judge and asked to decide if something is "cruel," what exactly would you resort to?)
Posted by: DK | Jun 25, 2008 11:58:24 AM
realist -- the exclusionary rule is "barbaric"? comparable to the government killing its own citizens?
Are you serious?
The exclusionary rule simply manifests a commitment to real deterrence to bad police conduct and a commitment to a very procedural view of justice. Yeah, we could live in a system where the police can ransack our homes, find evidence of wrong-doing, and have the state prosecute us & imprison us. Such people are guilty -- why are they whining? Sure, maybe the innocent among us could win some suits for money damages, but that sounds like a terrible, barbaric authoritarian society.
And yes, I understand that very few, if any, other countries use an exclusionary rule, but the ER and its commitment to deterrence and procedural justice is hardly some barbaric practice like killing one's own citizens. Your attempt to compare them (or the First Amendment) is hilarious.
Posted by: Sentencing Observer | Jun 25, 2008 12:14:28 PM
You (deliberately, one can only assume) miss the point, Sentencing Observer. His obvious point was that global consensus can be used to justify both "barbaric" and "non-barbaric" practices, and therefore tells us nothing in itself about the practices about which there is a global consensus. Your need to justify the exclusionary rule on some ground other than global consensus only proves that some worthwhile practices will run counter to global consensus.
Posted by: | Jun 25, 2008 12:20:01 PM
Scotus - I can buy that this invokes federalism moreso than separation of powers (although it is still an intrusion by the judicial branch into the legislative branch's authority - regardless of state/federal system). And I've never said that the high court couldn't review the Constitutional issue. My point was that the Court can't invade the province of the leglislature to reach its decision. They can't say that "X punishment is cruel and unusual because the legislature made bad policy decisions when they enacted the law." Yet, to some extent, the Kennedy majority relies on that view.
Posted by: NewFedClerk | Jun 25, 2008 12:25:37 PM
We've had this conversation before so I'm not going to have it again. But to briefly recap: Is it too much to ask that the 8th Amendment be read the way its authors intended? During the time of the Framers, people were being executed for all kinds of offenses, virtually all of which are far less aggravating than child rape.
So I hope you'll forgive those of us who disagree with the Court's decision in Kennedy today for failure to buy into the notion that somehow back in the late 18th century, the Framers were against the death penalty for child rapists.
Court cases always have policy implications. I never disputed that. The question is whether the Court should take them into account. In the Apprendi-Blakely line of cases, O'Connor and company ceaselessly reminded the Court about the implications of what it's doing. Are you telling me that Justices Scalia and Thomas should have heeded their warnings?
For those of us who believe in the Court's defense of the right to trial by jury but who also disagree with the Court in Kennedy, we can't help but think we're the victims of a liberal plot to set any and all criminals free (or at least keep them alive as long as possible). Do you really want us to take into account policy implications in all sentencing decisions? You might want to think about what the outcome would've been if Justices Scalia and Thomas heeded your advice to take into account policy implications when it comes to Apprendi, Ring v. Arizona, Blakely, Kyllo v. US,... and plenty of other criminal cases where the defense got a fair deal precisely because some conservatives refused your advice and decided that they have a higher duty to the Constitution.
That's what the implications of your view are. Do you really want conservatives to vote blindly for keeping criminals in prison each and every single time without reference to the Constitution?
Posted by: realist | Jun 25, 2008 12:25:39 PM
12:20 -- certainly, "some worthwhile practices will run counter to global consensus." Those practices might include a country's commitment to how their police forces operate & the balance between liberty & security, or whether they wish to make religion a real or nominal aspect of their sovereignty. I don't think a global consensus is relevant on such matters. But on matters of basic human rights -- should a government kill its own citizens -- I think a global consensus is relevant. That's a fundamental human right.
Let's also back up here & recall my comments were all in response to federalist's unelaborated assertion that this decision was "illegitimate." I didn't understand that to be a legal argument, and I wasn't making strictly legal arguments in response. That is, a decision could be correct & constitutional, but illegitimate & immoral. I think a global consensus has a great deal of relevance on a matter of a basic human right, like life/liberty & the state's ability to kill you, but I don't see the relevance to lesser issues like the involvement of religion in the state or the balance between liberty/security or, say, whether a country's postal system should be operated by the state or a private corporation. We have the First & Fourth Amendments, and I think the Supreme Court precedents do a relatively good job of giving effect to the policies & values embodied in those amendments -- and, further, that those policies are legitimate & moral.
Posted by: Sentencing Observer | Jun 25, 2008 12:34:55 PM
I in turn consider the idea that setting criminals free in spite of strong evidence of their guilt because of some technicality is barbaric. Prove me wrong. (Just remember, the "global test" is on my side.)
In order to rescue yourself from that "global consensus" gibberish, you now come up with a new "fundamental human right" which is left unexplained. Where did this "fundamental human right" come from? Who said so and why should I care?
If your global test is an absolute rule, then as I proved, it can be used to justify ideas that you disapprove of. If there is another principle that overrides your global test (whether you call it "fundamental human right" or Mary Jane is not particularly important), then you should have saved us the trouble of demonstrating the problems with your global test and move on to that absolute principle and asserted that principle from the very beginning.
Posted by: realist | Jun 25, 2008 12:44:14 PM
realist wrote: "But to briefly recap: Is it too much to ask that the 8th Amendment be read the way its authors intended? During the time of the Framers, people were being executed for all kinds of offenses, virtually all of which are far less aggravating than child rape."
Of course that is too much to ask. Since the Framers intended that their intent not matter, one would think a committed originalist would never posit such an absurd suggestion. Even without regard to that, I did not by being born in this country bind myself to a constitution holding 18th-century conceptions of cruelty. The Supreme Court rejected that view long before Justices Stevens, Breyer, Ginsburg, Souter, and Kennedy came along.
realist wrote: "Court cases always have policy implications. I never disputed that. The question is whether the Court should take them into account."
I didn't say they had policy implications. I said policy considerations were part of them. Every constitutional case.
realist wrote: "For those of us who believe in the Court's defense of the right to trial by jury but who also disagree with the Court in Kennedy, we can't help but think we're the victims of a liberal plot to set any and all criminals free (or at least keep them alive as long as possible). Do you really want us to take into account policy implications in all sentencing decisions? You might want to think about what the outcome would've been if Justices Scalia and Thomas heeded your advice to take into account policy implications when it comes to Apprendi, Ring v. Arizona, Blakely, Kyllo v. US,... and plenty of other criminal cases where the defense got a fair deal precisely because some conservatives refused your advice and decided that they have a higher duty to the Constitution."
You seem to be under the naive misconception that Justices Scalia and Thomas do not consider policy when they decide cases. They do. In every case. Empirical analysis does not reflect Justices like Scalia and Thomas are any freer of policy considerations than any other Justice (see, e.g., this), so your trotting out decisions like Apprendi and Ring to support your position rings hollow. After all, Stevens voted with the majority in Baze, did he not?
Posted by: DK | Jun 25, 2008 12:53:25 PM
I'm not going to get involved in a debate on originalism again. It's impossible to reason people out of what they never reasoned themselves into. Nor will I point out the flaws with the study you keep on trotting out as I did it once before.
I do want to know exactly what policy interest Justices Scalia and Thomas were serving in Cunningham v. California. Justice Alito saw nothing wrong in dissenting in both Cunningham and in Kennedy today. I'd like to hear your explanation for why Scalia and Thomas didn't follow his example.
Posted by: realist | Jun 25, 2008 12:59:30 PM
While policy considerations may drive the view of the Justices, they are not routinely used as the rationale for reaching a decision. Take for example the recent post regarding Indiana's sex offender restrictions. They were struck down based upon a finding that the restrictions at issue violated the Fourth Amendment because once off of parole, the offenders had some reasonable expectation of privacy.
However, I don't think it would be proper for the judge in such a case to say "This law will only serve to force offenders off the grid and make it more difficult to monitor them - so its bad policy. Since it's bad policy, it violates the Fourth Amendment."
Posted by: NewFedClerk | Jun 25, 2008 1:06:50 PM
As I think you might be about to find out, judges in the lower judiciary have at least some sense of modesty in concluding that their personal policy preferences are enshrined in the Constitution.
As today's opinion attests, the majority of Justices on the Supreme Court don't.
Posted by: Bill Otis | Jun 25, 2008 1:14:18 PM
First, the "global consensus" analysis is not "irrelevant" to an Eighth Amendment analysis; however, it would be irrelevant to the use of the exclusionary rule. This is because the 8A prohibits "cruel and unusual" punishment. How do you know what is "cruel and unusual"? You look to what others are doing. Certainly, the first place to look is within our borders, and certainly that should be given superior weight. But in deciding if something is cruel and unusual in our global world certainly would require looking to how other sovereigns deal with it. In the 21st Century, the "maturing society" analysis should include the global society. (And, for what it's worth, the suggestion that this should cause us to enlist Pew to pass laws is simply nonsensical. The issue is determining what is cruel and unusual; not passing laws. Plus the "global consensus" analysis in 8A context is not determinative of the outcome, but rather only helpful to look at).
Second, Furman was not "overturned" four years latter. If you are referring to Gregg, Gregg held that the new death penalty procedures adopted in response to Furman were sufficient.
Third, there is a lot of discussion here regarding the Court’s use of “policy” reasons to justify its outcome. The Court is saying that the death penalty is not “a proportionate penalty for the crime” where no death resulted. (24, 30). This is entirely consistent for deciding whether a form of punishment is “cruel and unusual.” Specifically, the Court, consistent with its precedent, is insisting on “confining the instances in which capital punishment may be imposed,” (26), and highlights, again consistent with its precedent, that the Court must be hesitant to extend the death penalty. Ultimately, the Court comes to the constitutional conclusion that the social purposes of the death penalty should not be extended where death did not result from the offense. This is not ‘policy justification;’ it is merely deciding that, as a constitutional matter, the most extreme form of punishment is not warranted, so as to satisfy the requirements of the 8A.
It's so easy to jump to the conclusion that the Court wrongly "used policy" to justify its outcome. A careful read of the opinion shows that it is not entirely clear that that is what occurred here. The problem is that the Court is necessarily determining if something is “cruel and unusual.” In doing so, policy-type issues must be looked at, even though the Court is not basing its decision on that policy.
Finally, we should all know by now that any decision federalist disagrees with (esp. on death penalty) will always be viewed by him/her as "illegitimate," but, disappointingly, he will provide no explanation or analysis as to why.
Posted by: DEJ | Jun 25, 2008 1:14:41 PM
Very good points realist - measured from that perspective, Exxon definitely scored a big victory before the court (after all, even the $5 Billion wasn't much relative to Exxon's size). Still Exxon didn't want to pay any punitive damages and they lost on the issues on whether punitive damages allowed and they lost on the Clean Water Act action. My thought is that the fact that the case was under the federal common law of maritime law (maritime law being exclusively federal jurisdiction is one of the few places where federal common law makes a big difference) - I think under Due Process analysis, the $2.5 Billion might have been upheld (or at least punitives at $1 Billion or so). Still, the fact that the decision was so limited in scope leads me to suspect that the majority had a result in mind and tried to find a reason for it.
I think you make a good point about Kennedy as well - while I feel that the policy behind the desire is quite sound, I thought that a more limited role striking down that statute would have been much more supportable by the current state of the 8th Amendment.
Posted by: Zack | Jun 25, 2008 1:28:08 PM
"...making child rape a capital offense would likely result in more child murder...."
Not that child murder, or multiple child murders, or multiple child murders by torture would make any difference to you, since no death penalty would be permitted no matter WHAT the facts are.
Facts, schmacts. Why pay attention to facts when we can repeat for the fiftieth time that crime is caused, not by any moral failing in the criminal -- NOOOOOOOO, not that! -- but by "government policies by people like (fill in anyone who disagrees with you) that strangle health care, day care etc., et al."
And please don't forget your daily reminder to us that Abraham Lincoln was a racist pig.
Honestly, DK, if you didn't exist I'd have to invent you.
Posted by: Bill Otis | Jun 25, 2008 1:29:29 PM
Mr. Otis, I am sorry that you do not like today’s decision. As I said earlier, since your position is obviously correct (according to you and others), I can only conclude that the reason that the state failed is that their lawyers were bad lawyers or didn’t use correct Bluebooking. After all, I am sure that you would have done better, and convinced the court to simply reject the arguments of the petitioner without addressing them or taking them seriously.
NewFedClerk, There are no separation of powers issues with the Supreme Court of the United States reviewing a decision of a state Supreme Court. And, unless you are going to argue that states have absolute authority to determine what the Eighth Amendment means on their own, there are no federalism issues.
Secondly, there is absolutely no requirement that states even have ANY separation of powers. So, I think your exporting a federal doctrine to state law is problematic. Moreover, this argument was not made below, for good reason.
Third, although you probably enjoy thinking otherwise, courts can and do hold various laws unconstitutional in the United States. It happens fairly regularly. While someone in your position probably sees it as easier to not think this (because you might have to defend unpopular views to others, which can be very difficult for a law student that wants to become powerful), in the United States there is absolutely nothing wrong with a court holding that a state or federal law is unconstitutional, and since judges of state and federal courts are REQUIRED to uphold the United States constitution, they must exercise their judgment as to what the constitution means (bound not by the legislature, but instead by precedent.) Again, whether it SHOULD have held such a law unconstitutional is a different story. We probably could change the constitution to allow legislatures (as you propose) to have the final word on what the constitution means, but people were more concerned about gay marriage and flag burning, so your idea wasn’t too popular.
I think you are grasping at straws here. There are valid arguments to be made about how it is totally cool to kill people that didn’t kill people, and such killings do not violate the Eighth Amendment, but trying to drag in federalism and separation of powers just sounds like a law student trying to impress. (Moreover, can you point to the section of the brief where Louisiana argued that it would violate separation of powers for the SCOTUS to rule on this issue in the first place.)
Posted by: S.cotus | Jun 25, 2008 1:38:26 PM
"Furman was not 'overturned' four years latter. If you are referring to Gregg, Gregg held that the new death penalty procedures adopted in response to Furman were sufficient."
Furman effectively outlawed the death penalty, as you know. Gregg re-instated it.
In strictly legalistic terms, Gregg may not have "overturned" Furman, but in terms of the on-the-ground realities that people actually care about, it overturned Furman big time.
Posted by: Bill Otis | Jun 25, 2008 1:40:04 PM
Mr. Otis, Considering that at least two amici made the argument that “more” murder would “result” from the death penalty being imposed on child rapists, it isn’t as if he is making this up. Whether that argument is correct (or even subject to proof) or relevant is a different story.
Whatever the case, it seems like lawyers for the amici were BETTER lawyers than lawyers for the state, and obviously knew how to bluebook better.
Posted by: S.cotus | Jun 25, 2008 1:41:04 PM
Quite frankly, considering that so many people have been commenting about this decision without reading it, I think the US has far greater problems to deal with than anything the Louisiana legislature sees as a problem.
Posted by: S.cotus | Jun 25, 2008 1:42:32 PM
Obviously we have very different preferences for the results. Setting that aside for awhile, I think we can both agree that Exxon's approach was quite clever. They knew Scalia and Thomas's record on punitive damages. (Here's another puzzle for DK to solve. What policy interest are Scalia and Thomas attempting to serve with their opinion on punitive damages? Is DK about to advance the theory that Scalia and Thomas are communists who hate corporations?) Therefore, they came out with a maritime law argument complete with a precedent nearly 2 centuries old. (Here's something for Sentencing Observer to ponder: "Punitive damages" is virtually unknown outside the US. I now eagerly await Sentencing Observer to denounce the Court's decision and demand that it be slashed to zero.) It's clear that the approach was tailored for those 2.
Just like Warner-Lambert, a single justice's absence changed the outcome of the case. The Court was evenly divided on the maritime law and corporate liability question. That leads one to wonder: Suppose if Alito was on the case, does that mean Exxon could've gotten away with it completely?
Posted by: realist | Jun 25, 2008 1:43:50 PM
Once again I am able to understand you. This is progress.
What is not progress is that your message to me doesn't contain anything that might be mistaken for analysis. You're just sticking your tongue out.
Fine. Far be it from me to contradict the view that child rape is, you know, just one of those things. And it's not only that we wouldn't want to execute the guy, it's that we wouldn't want to imprison him either. I mean, we've been told so many times here that the jails are already too full. Not so? Do you really want to add to the over-crowding crisis?
Look, just let the guy go. He made a, uh, mistake. People do, ya know. Like you, I just don't understand this Puritanical, vengeance-driven, lock-'em-up society we live in.
So cut the guy a break! He won't do it again.
At least he might not.
Posted by: Bill Otis | Jun 25, 2008 1:55:28 PM
realist wrote: "While policy considerations may drive the view of the Justices, they are not routinely used as the rationale for reaching a decision. Take for example the recent post regarding Indiana's sex offender restrictions. They were struck down based upon a finding that the restrictions at issue violated the Fourth Amendment because once off of parole, the offenders had some reasonable expectation of privacy."
What do you think a reasonable expectation of privacy is if not a policy decision as to where the Fourth Amendment stops and starts? All the Fourth Amendment says is that searches must be reasonable. And how do you think Courts determine whether a reasonable expectation of privacy exists? Well, they tell you: it's one which society is prepared to recognize!
Bill Otis wrote: "As I think you might be about to find out, judges in the lower judiciary have at least some sense of modesty in concluding that their personal policy preferences are enshrined in the Constitution."
Sounds like you've never practiced before the lower judiciary. And you are as naive as our friend realist here if you think the four extremist ideologues in the dissent are beacons of judicial modesty.
Bill Otis wrote: "Not that child murder, or multiple child murders, or multiple child murders by torture would make any difference to you, since no death penalty would be permitted no matter WHAT the facts are."
Of course I wouldn't support it (I'm not a monster after all), but what has this to do with the constitutional analysis in the Kennedy decision?
Bill Otis wrote: "Facts, schmacts. Why pay attention to facts when we can repeat for the fiftieth time that crime is caused, not by any moral failing in the criminal -- NOOOOOOOO, not that! -- but by 'government policies by people like (fill in anyone who disagrees with you) that strangle health care, day care etc., et al.'"
You and federalist seem to be the only ones actively disagreeing with me on those points. Of course, not many people will so boldly advance racist propositions, either, so I'm not sure how far that gets me.
Bill Otis wrote: "And please don't forget your daily reminder to us that Abraham Lincoln was a racist pig."
Wow, in denial and delusional. You may take note that it is has been you who has daily reminded of us of this uncontroversial historical fact. (You do realize there is an actual public record of this, right? You would think it would behoove you not to make so easily falsifiable claims, but, then again, you've probably never been a big fan of science or empiricism either, am I right?)
Posted by: DK | Jun 25, 2008 2:03:01 PM
"I mean, we've been told so many times here that the jails are already too full. Not so? Do you really want to add to the over-crowding crisis?"
Incredibly dishonest tactics you use, Mr. Otis. Is it not obvioous to you how dishonest you are? Previously, you suggested that I supported freeing John Couey (child rapist and murderer) because I argued that the system overincarcerates. Now, you suggest that those who argue that the system overincarcerates don;t want child rapists jailed. In large letters, so you can read: THE DRUM BEAT OF OVERINCARCERATION IS DIRECTED AT INCARCERATION FOR NONVIOLENT DRUG OFFENSES.
Posted by: John | Jun 25, 2008 2:03:15 PM
Bill, it must be easy for you to spout off conservative viewpoints when you seem to think the world either operates how you want it to or else it would work in a radically different manner, whereby no one can be convicted of anything nor sentenced to prison. And pointing to DK aas someone who holds these radical views, even if you are accurately portraying DK's views -- and I neither know nor care if you are -- doesn't make your false dichotomy any less false.
Posted by: | Jun 25, 2008 2:04:39 PM
Realist - given that the accident occurred on the navigable waters of the U.S., the parties had to argue in maritime jurisdiction - without a doubt, the plaintiffs probably would have preferred to be able to file in Alaska state court and have the decision based on Alaska law instead to avoid maritime law. Being able to pass Scalia's well known opposition to judge imposed limits on damages under the Due Process clause probably was an unintended bonus for Exxon to get their "win."
Not sure if you have ever really looked into/studied admiralty/maritime law, but it is one of the few cases where jurisdictional issues are actually some of the most interesting issues. The short version is that plaintiffs absolutely want to avoid admiralty jurisdiction because damages are so severely limited (often being limited to provable economic damages only). Not a surprise when you consider that some rules in those cases date back to ancient times (general average being the most notable such rule). The notion of respondent superior is much different on water than it is on sea.
I wouldn't expect any other type of decision in a maritime case - while the Supreme Court has recently relaxed some of the rules (such as allowing wrongful death actions and enabling people to collect for pain and suffering), and Congress has made some notable changes (The Jones Act, Harbor Workers and Longshoreman Compensation Act, COGSA, etc.) it still is not too different from cases that British guys wearing powdered wigs were practining in the days of sail.
We must be the only people interested in this ruling with all of the comment about Kennedy.
Posted by: Zack | Jun 25, 2008 2:06:19 PM
Mr. Otis, Nobody, repeat, NOBODY is seriously arguing that this petitioner should not be punished for his crimes. You really are out on a limb here. If the best argument you can make that the Supreme Court decided Kennedy incorrectly is “You people want to let a rapist go” then you are truly on a different planet.
Seriously, you keep telling us how great a lawyer you are, but you are not even addressing the argument. Instead, you are attributing a false position to the people with the better lawyers. I am not really sure that this decision is good, but you seem to be able to remove serious discussion of that issue in favor of some an attack on a position not taken.
Posted by: S.cotus | Jun 25, 2008 2:11:13 PM
S.cotus, for the record, I beat you to your point by seven minutes.
Posted by: | Jun 25, 2008 2:13:15 PM
It was my understanding that the Eighth Amendment was unique with regard to the morality question on account of Weems and Trop along with the textual and historical analyses contained therein. Interpretative analogies could and likely will be drawn to other Amendments, but Kennedy appears to spring exclusively from the Court's recent attempts to provide some modicum of predictability to the Court's further developing proportionality analysis.
Frankly, and many will disagree, but when compared to the rest of the Eighth Amendment jurispurdence/confusion, it is encouraging to see an opinion (or string of opinions) that provide some guidance in lieu of splintered pluralities.
Posted by: Christopher | Jun 25, 2008 2:22:53 PM
"Name me the countries that apply the Exclusionary Rule."
The United States and Zambia.
I'm not kidding.
Posted by: azazel | Jun 25, 2008 2:30:00 PM
Any thoughts on why the majority opinion in Kennedy specifically disavowed that Coker v. Georgia controlled the result in this case? Wouldn't it have been much easier to simply argue that Coker foreclosed the death penalty for non-homicide offenses? As Alito points in his dissent (!) most commentators had reached this conclusion from Coker.
Posted by: rn | Jun 25, 2008 2:31:41 PM
realist, I can't take you seriously at this point. Feigning obtuseness at the definition of a fundamental human right? Seriously? Being unable to see the difference between *life* (i.e., not having one's government kill you) versus, oh, just about every other issue (like the ones you mentioned: involvement of religion in government, punitive damages and police practices/liberty-security tradeoffs).
Posted by: Sentencing Observer | Jun 25, 2008 2:35:25 PM
Any thoughts on why the majority opinion in Kennedy specifically disavowed that Coker v. Georgia controlled the result in this case? Wouldn't it have been much easier to simply argue that Coker foreclosed the death penalty for non-homicide offenses? As Alito points in his dissent (!) most commentators had reached this conclusion from Coker.
Justice Kennedy was rejecting the point from the State that the national consensus was not as great as Petitioners argued on account that Coker 'chilled' state legislatures from passing laws permitting death for child rape. Were that the case, the national consensus, a factor required for the Court's holding, would be less compelling.
Posted by: Christopher | Jun 25, 2008 2:38:30 PM
Recall that Exxon did try to raise the Due Process Clause argument in their filing with the Court. It's just that the Court refused to hear it. Exxon couldn't even get 4 justices to be interested in that question. It seems to me that the maritime law argument was the backup plan. Or perhaps Exxon was simply trying to craft the largest majority possible. Somewhat ironically, it was Jeffrey Fisher who tried to use the Court's precedents in State Farm, BMW v. Gore,...etc. to support his clients. I do agree with you that under the Court's precedents, the $2.5 billion was a 1:5 ratio and if that was the question, then the award should have passed muster. Now we have a 1:1 ratio for maritime law cases.
Posted by: realist | Jun 25, 2008 2:39:10 PM
Scotus - again, I've never contended that the Court lacked the authority to rule on the Constitutional issue. Perhaps if you put down your LSAT study book and read the post, you would recognize I've never made that argument (I know, those logic games can be tricky - just keep working). Instead, I challenged the method in which the Court's determined constitutionality.
I would like one person to explain how the fact that the DP may provide an incentive to kill the victim is relevant to the cruel and unusual analysis. Are we saying that it's cruel to the victim? Because that would be entirely new take on the Eighth.
Posted by: NewFedClerk | Jun 25, 2008 2:39:17 PM
I would like one person to explain how the fact that the DP may provide an incentive to kill the victim is relevant to the cruel and unusual analysis.
One argument would be that it would be contrary to the "evolving standards of decency that mark the progress of a maturing society" Trop, to grace a punishment with the label of 'Constitutional' when it actually encourages one to commit another crime - and not just another crime, but an escalation from the second worst crime to the worst.
Oh, and NewFedClerk, let's be careful with the hubris. LSAT reference? Really?
Posted by: Christopher | Jun 25, 2008 2:54:06 PM
So now a punishment is cruel and unusual if the Court thinks that the punishment may have an undesired secondary effect? This again seems like it's cruel if we as a Court decide its bad for victims. There is no basis for such an argument under the Eighth Amendment.
Posted by: NewFedClerk | Jun 25, 2008 3:05:32 PM
You'll want to watch how you characterize what happens to victims. To minimize the escalation of a rape to murder as "an undesired secondary effect" exposes you to the rhetoric from some individuals who frequent this site.
What I woud infer from your post and the ones preceding it in this thread would be your rejection of the reasoning adopted by the Court in Weems and Trop. That is certainly your perogative. Recognize at the same time, that you are also rejecting the controlling opinion's reasoning in Gregg. See id. at 170-171 (Stewart, J.)
Posted by: Christopher | Jun 25, 2008 3:17:09 PM
I said: "I mean, we've been told so many times here that the jails are already too full. Not so? Do you really want to add to the over-crowding crisis?"
You respond: "Incredibly dishonest tactics you use, Mr. Otis. Is it not obvioous to you how dishonest you are?"
OK, if you can put down the ad hominems for a moment, kindly tell me with a straight face that we have NOT been told time and again here that the jails are already too full.
Why is it dishonest to repeat what you and others have repeatedly said?
I then asked, "Do you really want to add to the over-crowding crisis?"
Well, do you or don't you?
It's a shrewd, although not particularly forthcoming, strategy to disassociate yourself from some of these appalling crimes and stick them behind the curtain so that people will be less likely to see the agenda right behind the "free-the-druggies" campaign. If I held your position, I too would want to make the uglier face of crime disappear. But I don't hold your position, and I'm not buying the disappearing act.
You add: "Previously, you suggested that I supported freeing John Couey (child rapist and murderer) because I argued that the system overincarcerates. Now, you suggest that those who argue that the system overincarcerates don;t want child rapists jailed. In large letters, so you can read: THE DRUM BEAT OF OVERINCARCERATION IS DIRECTED AT INCARCERATION FOR NONVIOLENT DRUG OFFENSES."
Sure, that's how it starts. But it attempts to seduce us to ignore the rationale of the argument, which as you full well know applies well beyond the drug world. The rationale (and the emotional engine) of the argument is that the country is in the thrall of a Puritanical hysteria, driven by vengeance, and irrationally punitive DOWN THE LINE. Anyone who reads the comments posted on this blog for as little as one week can see this.
The bait-and-switch tactic is as old as the hills. You dislike it when the underlying attitude of the anything-but-prison theory is unmasked, and I don't blame you. But it's the masking, not the unmasking, that is dishonest.
Posted by: Bill Otis | Jun 25, 2008 3:24:36 PM
Christopher - while I don't agree with Gregg and its progeny, i.e., an evolving standard of decency, I accept it as the governing law. My point is that evolving standard has never been measured the way it is in Kennedy.
The standard has now morphed apparently from taking into account society's view on an acceptable punishment for a particular crime to taking in account society's view on whether the punishment has other effects so severe that the punishment itself is now somehow cruel and unusual. I don't think that view is consistent with Gregg/Weems/Trop/Roper/Atkins.
Posted by: NewFedClerk | Jun 25, 2008 3:29:20 PM
Bill, come on. You're advocating one of the clumsiest, least persuasive slippery slope arguments I've ever encountered.
Yes, our prisons are very crowded and expensive to maintain. No, that does not mean that we should free violent offenders. Yes, there may be some difficult lines to draw -- maybe you will contend that a guy with pounds & pounds of weed is bad enough to deserve incarceration, while I or another would demand that he have possessed a firearm in connection with the offense before shoving him into our crowded jails for a lengthy. But clearly that line is far, far, far removed from saying child rapists shouldn't be in prison.
Posted by: Sentencing Observer | Jun 25, 2008 3:34:54 PM
NewFedClerk: this guy disagrees with you
"While I have argued that the policy considerations have only a tangential role, Alito is making a point inconsistent with a lot of prior case law. Typically, the policy considerations are relevant insofar as they show that the statute serves (or doesn't serve) the goals of punishment."
Posted by: Sentencing Observer | Jun 25, 2008 3:37:35 PM
I said, "[P]lease don't forget your daily reminder to us that Abraham Lincoln was a racist pig."
You respond: "Wow, in denial and delusional. You may take note that it is has been you who has daily reminded of us of this uncontroversial historical fact."
N.B. fellow commenters: DK now states point blank that it is an "uncontroversial historical fact" that Abraham Lincoln was a "racist pig."
I'll say one thing for you, DK. You don't try to hide the ball. No false fronts. You get right to the core beliefs on your side of the table.
Posted by: Bill Otis | Jun 25, 2008 3:38:01 PM
And apparently from today's opinion - if the guy has enough weed and sells it to enough people - perhaps the death penalty is okay for him.
Posted by: NewFedClerk | Jun 25, 2008 3:38:25 PM
I would like one person to explain how the fact that the DP may provide an incentive to kill the victim is relevant to the cruel and unusual analysis
Capital punishment is excessive and therefore cruel and unusual if it doesn't serve one of the two traditional purposes of punishment, retribution and deterrence. The murder incentive is relevant to the majority's analysis that it may not accomplish deterrence. This is not my own analysis, but the analysis of the court as stated clearly on slip opinion page 30, 35. You can argue the merits of this claim, but I don't think you can say it's out-of-bounds for Kennedy to bring it up. I don't think the use of the evolving-standards-of-decency argument has as much of a role to play in this part of the court's argument, as opposed to prior section with the state-by-state analysis.
Posted by: | Jun 25, 2008 3:41:59 PM
When week after week of thunderous hyperventilating about the evils of "mass incarceration" invites parody, don't be surprised when parody arrives.
Posted by: Bill Otis | Jun 25, 2008 3:44:12 PM
New Fed Clerk, I have been a lawyer for quite some time, and I have been maintaining my blog for longer than most people would spending getting JD and LL.M. And I was a lawyer before that, but that doesn’t really count.
If you are backing away from your separation of powers complains (which I think are really federalism complaints), you can stop reading.
However, if you ARE raising a separation of powers issue, you would need to flesh it out. Separation of powers is not a means to interpret what a given “right” means. Instead, it is a doctrine that, as its name implies, keeps one branch out of the business of another. Granted, it is self-enforcing, so from time to time any given branch has, according to some subjective standard, encroached on another branch’s domain. But, assuming that there are actual bright lines that separate one branch from the other, any action on the wrong side of the line 1) should not even be considered; and 2) could be said to be invalid. For example, if Congress was to pass a bill specifically condemning someone to death, I think that we would all agree that this violates the doctrine in general, and specifically because of the prohibition against bills of attainder. So, Congress should not even try, and the Courts don’t even need to concern themselves with whether someone really deserves to die or not – it violated separation of powers and it was therefore unconstitutional. Now, how is Kennedy (in whole or in part) an action by the Supreme Court of the United States that was completely improper for a court to engage in? If you think that courts are powerless to pass on the “meaning” of the constitution, please say so.
Posted by: S.cotus | Jun 25, 2008 3:54:55 PM
"As in Coker, here it cannot be said with any certainty that the death penalty for child rape serves no deterrent or retributive function." Slip. op. at 30. From that point, he left with the excessiveness prong of Gregg. I've got no problem with the majority if they simply conclude that it's excessive -- based on the Eighth Amendment precedent, this no doubt ends up a judgment call.
But bootstrapping the argument about deterrence and retribution is effectively in direct conflict with Coker which found that the death penalty for adult rape satisfied that prong of Gregg, but was excessive. The majority seems to say now that it can combine those two and make the sum greater than its parts. Standing alone, this punishment may not be excessive. And standing alone, it may serve a deterrent and retributive function. But, because it is somewhat excessive and the deterrent and retributive functions are arguable marginal, then the Eighth Amendment is violated. I just don't think that's true to precedent.
Posted by: NewFedClerk | Jun 25, 2008 3:57:52 PM
Not to forget this gem:
"Bill Otis wrote: 'Not that child murder, or multiple child murders, or multiple child murders by torture would make any difference to you, since no death penalty would be permitted no matter WHAT the facts are.'"
And your response is: "Of course I wouldn't support it (I'm not a monster after all)..."
Oh, OK, a person who supports the death penalty for multiple child murder BY TORTURE is a monster!!! Not incorrect, not mistaken -- nope, not that. A monster.
I think John was just upbraiding me for taking an extreme position. I note he's been conspicuously quiet about this position of yours. Maybe he doesn't think it's extreme. Or maybe he does. We are left to wonder whether he'll say.
Tell me, DK, since Lincoln supported (and used) the death penalty, was he, in addition to being, as you have said, a "racist pig," also a "monster?"
Inquring minds want to know.
Posted by: Bill Otis | Jun 25, 2008 4:01:46 PM
Can you provide a helpful definition of what "global consensus" is and when it is proper to use it in the context of defining a Constitutional right?
If we are now talking about funadmental human rights, is your contention that SCOTUS recognizes fundamental rights as follows?: No protection from government execution if the accused has committed a murder. Protection from government execution if the accused has raped a young child.
Posted by: anonymous | Jun 25, 2008 4:08:59 PM
S.Cotus - my federalism concern is essentially outlined in my previous post. The majority effectively concedes that a state legislature could properly conclude that the death penalty serves both a deterrent and retributive function. Despite that conclusion, they then conduct their own analysis and use that analysis to support an Eighth Amendment violation. I think that's improper.
If the majority wants to conclude that evidence demonstrates that the penalty does not serve either a deterrent or retribution function, then fine. At the point, they have demonstrated that the legislature was incorrect. Here, there simply holding their judgment out to be more important than that of a state legislature. I think that position clearly infringes on state rights and is outside the realms of SCOTUS' constitutionally delegated authority.
Posted by: NewFedClerk | Jun 25, 2008 4:13:10 PM
wow, NewFedClerk -- sounds like you need to repeat law school, or at least Constitutional Law and Federal Courts.
Get ready to read about lots of reversals for your judge in the coming year or two.
Posted by: Reader | Jun 25, 2008 4:26:12 PM
Bill Otis wrote: "Tell me, DK, since Lincoln supported (and used) the death penalty, was he, in addition to being, as you have said, a 'racist pig,' also a 'monster?'"
I like how you quote yourself as if I had said it. The historical record uncontroversially establishes that Lincoln was a racist and a white supremacist (as were most whites of his day). I don't know what historical evidence supports the proposition that he had pig in him. I would have reasonably assumed that you would have reasonably assumed that my prior response did not necessarily adopt your precise phrasing, but I have now learned never to assume anything reasonable from the likes of you. I am curious, though: do you really think repeating that I know a historical fact about Lincoln somehow discredits me? Do you not give fellow commenters and readers any credit at all?
And, to answer your question, I think anybody in a position of social, economic, or political power and responsibility who would kill a human being when he need not do so is a monster. And I think even less of the person who affirmatively contributes to creating and sustaining a problem and then claims a need to kill humans to solve it, all the more so when the problem can't even be solved in that manner and that person should know better. Do you know where you might fit in that outlook?
Posted by: DK | Jun 25, 2008 4:28:23 PM
Wow, Reader - thanks for that insightful post.
Posted by: NewFedClerk | Jun 25, 2008 4:28:24 PM
Ok, here's more.
Here is an altered version of what NewFedClerk said, with the altered text in brackets:
"The majority effectively concedes that a state legislature could properly conclude that [segregation] serves [valuable societal functions]. Despite that conclusion, they then conduct their own analysis and use that analysis to support a [14th] Amendment violation. I think that's improper."
That, obviously, is not how our system works. A state legislature or Congress can make a determination that a law has a rational basis or is connected to commerce -- that's great! The Supreme Court, however, is the final arbiter on the constitutionality of those laws.
Posted by: Reader | Jun 25, 2008 4:42:22 PM
Too bad that doesn't work under these facts. The Court concluded that the state legislature legitimately found that the penalty complied with one of the tests the Court set forth in Gregg to evaluate an Eighth Amendment claim. Despite that conclusion, the Court then did its own independent evaluation of that factor in an effort to avoid the straightforward result of applying Gregg.
Posted by: NewFedClerk | Jun 25, 2008 4:46:14 PM
New Fed Clerk,
“The majority effectively concedes that a state legislature could properly conclude that the death penalty serves both a deterrent and retributive function. Despite that conclusion, they then conduct their own analysis and use that analysis to support an Eighth Amendment violation.”
A state legislature can conclude lots of things. Heck, they could conclude that banning Catholicism and fining all Catholics $20 “serves both a deterrent and retributive function.” Under your logic, the courts would not only have to agree that it is constitutional, but also participate hold trials to determine who is Catholic and then enforce judgments against them.
Or are you saying that once a state legislature makes those two findings (if you can call it that) that any scrutiny under the Eighth Amendment is forever barred unless the majority specifically second-guesses the legislature’s findings, and no defendant can ever raise an argument that his potential (or impending) punishment is under the eighth for another reason?
But, on a more fundamental level, why should state legislatures be accorded ANY deference on their factual findings. They seem to be completely incompetent when it comes to fact-finding. They lack independent subpoena power. There is no right to cross-examine. They have no jurisdiction outside the state. Indeed, legislatures can generally be overruled by executives for no reason at all. Some people have told me that legislatures sometimes do things for political reasons. Are you really saying that courts need to defer to this?
Posted by: S.cotus | Jun 25, 2008 4:47:21 PM
Nope - I'm saying that once the Court says that the findings were correct, that second guessing them becomes improper. As I said before - under any level of scrutiny - rational basis on up - if the Court determines that the legislature was wrong, then reverse them. If you tell them that they were right, your job is done (with respect to that portion of the Gregg test).
Posted by: NewFedClerk | Jun 25, 2008 4:49:55 PM
OK, let's go through the exact quotation (something you understandably avoid).
I said, "[P]lease don't forget your daily reminder to us that Abraham Lincoln was a racist pig."
You responded: "Wow, in denial and delusional. You may take note that it is has been you who has daily reminded of us of this uncontroversial historical fact."
Now what "uncontroversial historical fact" would that be? Well the only onein sight was the assertion that Lincoln was a "racist pig."
If you wanted to change that formulation in any way whatever, you could have. You could have said, no, that's not how I'd put it. You could have said, no, that would be unfair to Lincoln given the historical context.
But you didn't. So don't come around now claiming you intended to say something different.
"I am curious, though: do you really think repeating that I know a historical fact about Lincoln somehow discredits me? Do you not give fellow commenters and readers any credit at all?"
That I give them credit is precisely the reason I quote you.
"And, to answer your question, I think anybody in a position of social, economic, or political power and responsibility who would kill a human being when he need not do so is a monster."
Is that yes, Lincoln was a monster? Since you like to pretend that you don't adopt characterizations when in fact you do, I guess we need to know more directly whether you think Lincoln was a monster, even though your answer as stated would, to a reasonable person, make it perfectly clear.
As to your question of where I fit in on the question of the death penalty, I'm with Lincoln, FDR, John Stuart Mill, Sandra Day O'Connor and Lewis F. Powell in support of the death penalty (not to mention 69% of the "monsters" who comprise the American people).
And you're with whom? John Couey's lawyer? I hear he opposes it big time.
Posted by: Bill Otis | Jun 25, 2008 5:28:06 PM
Realist - I guess I am just in a "glass half full" type of mood regarding Exxon - while I think it is a bad result, it is not unsupportable legally (although I think that the justification for barring punitve damages against vessel owners is probably obsolete) it could have been worse. When you consider that 100 years ago shipowners were often cleared of any sort of damages even in cases of gross negligence resulting in deaths of passengers then this is some progress.
Posted by: Zack | Jun 26, 2008 4:25:02 PM