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April 23, 2006

A capital week for SCOTUS arguments

I noted here last week that the last set of Supreme Court oral arguments this Term included a number of criminal justice issues.  And though last week's argument in Washington v. Recuenco  were perhaps unexciting and received no press coverage, this coming week should keep sentencing fans satiated. 

Specifically, on tap for this week is the re-argument in the capital case of Kansas v. Marsh (some background here and here and here) and oral argument in the lethal injection case of Hill v. McDonough (some background here and here).  Both should be quite interesting for different reasons.

Though I am not a SCOTUS guru, I assume most re-arguments have advocacy styled for the new voter, which is of course Justice Alito.  Since his Third Circuit track record suggests Justice Alito is generally a pro-death-penalty vote, I am eager to see how the state and the defense in Marsh approach re-argument in the case.

The story in Hill concerns whether at argument the case will be framed as a narrow one concerning litigation procedures or a broad one concerning lethal injection's basic constitutionality.  As I explained here right after the cert grant, the narrow procedural issue in Hill seems relatively trivial if a majority of the Court views most lethal injection protocols as constitutional.  But, perhaps we will learn at oral argument that some members of the Court view the stakes in Hill to be much higher. 

More background on Hill and the stakes involved can be found in this AP story and this local news account.  And, to add an extra bit of intrigue, this article details that Virginia is scheduled to execute an inmate by lethal injection the day after Hill is argued.

UPDATE: The Christian Science Monitor has this nice review of the Marsh case, which spotlights that the "rescheduling of the case suggests that the justices were sharply divided over the issue and that Justice Alito may be in a position to cast the deciding vote."  And local press coverage of Marsh can be found here and here.

April 23, 2006 at 02:30 PM | Permalink


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Tracked on Apr 24, 2006 8:48:05 AM


"Since his Third Circuit track record suggests Justice Alito is generally a pro-death-penalty vote...."

Four votes for the defendant out of ten does not constitute "generally pro-death-penalty" in my opinion. See http://www.cjlf.org/deathpenalty/AlitoCapitalSummary.pdf

This is particularly true in the Third Circuit, where the cases that make it to federal review are only those that have survived review by the Pennsylvania or Delaware Supreme Courts. (New Jersey has no surviving cases.)

You didn't actually believe that Liu and Skiba screed, did you?

What his record suggests is simply a willingness to carry out the law, not contort it beyond recognition for the purpose of obstructing the death penalty. That is good for Kansas in this case, though, as contortion is the only way they could lose on the merits.

Posted by: Kent Scheidegger | Apr 23, 2006 3:13:55 PM

“What his record suggests is simply a willingness to carry out the law, not contort it beyond recognition for the purpose of obstructing the death penalty.”

This is really nice rhetoric. Ironically, people never seem to say that their position is a contortion of "the law." It is always the other guy’s position.

Posted by: S.cotus | Apr 23, 2006 3:27:59 PM

Nice follow-up S.cotus, especially given that it seems at least 4 members of the Kansas Supreme Court and 4 members of the US Supreme Court obviously think the defendant has a viable claim here. I tend to think Kent plays most of these issues straight, but this comment now has me wondering. Though perhaps I, too, am guilty of contorting.

Posted by: Doug B. | Apr 23, 2006 4:25:58 PM

Well, for what it is worth, I think that the path of the law is a series of contortions. But rest assured if the courts interpret the constitution in such a way that is overly-contorted, the “public” can set them straight by amending the constitution, to, say, make it clear that Mrs. Atkins and Simmons can be executed; women have no right to abortions (or contraceptives), any police officer (or government employee) can go into someone’s home and read their papers, the First Amendment only applies to monotheistic religions and hard-copy newspapers that contain no bad language or “classified material;” the Fifth Amendment doesn’t apply to foreigners, the sixth amendment places all burdens on the defendant, the seventh amendment can be abrogated by the states; and the ninth and tenth were put in there by a constitutional prankster.

However, the public recently only seemed concerned about the following issues: 1) congressional pay; 2) the rights of voters; and 3) whether Massachusetts was properly interpreting its own constitution by letting a couple of gay people get married. The third failed, and I don't think the other two were abrogations of judicial “contortions.”

Posted by: S.cotus | Apr 23, 2006 5:08:03 PM

"The other guy's position," on issues such as this, is that the simple words of the Eighth Amendment, "cruel and unusual punishment," include a detailed code of sentencing for capital cases. Yes, that is a contortion of the law. Nothing in the text or history of this clause indicates any procedural component at all. I have never heard anyone on my side claim that our policy preferences are constitutionally required. Our position, as in this case, is to simply enforce the statute as it is plainly written on an issue where the Constitution says nothing either way. I do not think it could be credibly contended that is a contortion of the law.

Getting back to the original point, nothing in Justice Alito's record on the Third Circuit indicates a propensity to bend the law to achieve a result for or against the death penalty. Hence, I do not think it is accurate to characterize him as a "pro-death-penalty vote."

Posted by: Kent Scheidegger | Apr 24, 2006 12:55:17 AM

Correction: I should have said "Justice Alito's record as a whole...." For any judge with a record of any length, one can always pick out individual opinions and claim them as an indication of leaning one direction. However, in Judge Alito's case, the overall record shows no result-orientation on the death penalty.

Posted by: Kent Scheidegger | Apr 24, 2006 1:15:53 AM

"Though perhaps I, too, am guilty of contorting."

A little self-reflection is always good. Perhaps you can explain how Alito can be thought of as a generally pro-death penalty vote.

Posted by: Mr. T | Apr 24, 2006 1:42:35 PM

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