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April 25, 2007

Blogosphere comments on SCOTUS death cases

I still haven't yet had a chance to read all the SCOTUS death decisions today, but I notice that many thoughtful bloggers are all over these cases:

Even before reading the opinions, I cannot help but note the 5-4 outcomes and the obvious inability of the new Chief to engineer consensus in this arena (as I predicted here).

April 25, 2007 at 07:54 PM | Permalink


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Far from engineering consensus, Roberts engenders acrimony and illegitimacy:

“[P]erhaps there is no reason to be unduly glum. After all, today the author of a dissent issued in 1988 writes two majority opinions concluding that the views expressed in that dissent actually represented ‘clearly established’ federal law at that time. So there is hope yet for the views expressed in this dissent, not simply down the road but tunc pro nunc. Encouraged by the majority’s determination that the future can change the past, I respectfully dissent.”

Yeeeah...so all that talk about stare decisis was just b.s., it seems.

Posted by: rothmatisseko | Apr 25, 2007 8:37:57 PM

Rothmat, do you dispute that Roberts is factually incorrect when he says that "today the author of a dissent issued in 1988 writes two majority opinions concluding that the views expressed in that dissent actually represented ‘clearly established’ federal law at that time."

Is Roberts wrong? Yes or no? Simple question.

Posted by: federalist | Apr 25, 2007 9:02:04 PM


This is a case about Lockett, why does the Chief mention it but once in dissent? Why is one of the two cases the Chief relies upon, Johnson, have its author (Kennedy) joining the majority opinion if Johnson & Abdul-Kabir/Brewster are in opposition to one another?

Posted by: karl | Apr 25, 2007 9:24:11 PM

Karl, that's disingenuous at best. First, Kennedy is not the ultimate authority on whether Brewer/Cole are consistent with Johnson--and that's not even the question anyway, the issue is what was clearly established law? Second, Lockett is not the only case in this area, and remember Jurek was not overruled, right, and only the Supremes are allowed to overrule their own cases, right? And, don't specific cases control over more general ones, usually?

What this case is about, other than the raw naked power of five votes on a Supreme Court of nine is that the five Justices apparently think that (a) Texas old rules really don't fly anymore and (b) that the Fifth Circuit should have read the handwriting on the wall.

Five Supreme Court Justices sacrificed the law for the sake of killers. They are not stupid, so they knew what they were doing. How is it possible to say, especially for the Gang of Four (and yes, I know the reference), that they are not pro-killer?

Contemptible. Utterly contemptible. And by the way, Stevens, given his weak sniveling over Bush v. Gore has no business whining over Roberts' tone.

Once again, the federal judiciary shows its utter irresponsibility with respect to its habeas power. The power of federal courts to review state convictions should be withdrawn.

Posted by: federalist | Apr 25, 2007 10:04:55 PM

For those of us unfamiliar with the litany of death penalty SCOTUS cases during the past 20 years, could someone provide a reference to a good summary?

Posted by: Steve | Apr 25, 2007 10:18:56 PM


umm, Lockett is THE key case post Gregg. The author of Johnson agreed with the majority & if Justice O'Connor was still on the Court she would have too. Lockett isn't a general case, it is the Eight Amendment bright line rule. It is the most consistently applied rule in Eighth Amendment jurisprudence.

Like the dissent you have attempted to weave an argument out of exceptions not rules. Additionally, Penry II & Tennard would have to be overruled for relief not to be granted here.

Face it, there isn't a capital case where you would grant relief on habeas AEDPA or not. Your view of what the jurisprudence should be in this area, to borrow a quote from a t-shirt a friend had when we were in the Marines, is "kill them all, let God sort them out." That isn't jurisprudence that is naked authoritarianism.

- k

Posted by: karl | Apr 25, 2007 10:37:17 PM


The Supreme Court in the mid - 70s permitted the Texas sentencing scheme to go ahead. Texas's scheme -- as relevant here -- asks two questions about whether the person deserves to die based on future dangerousness but provided no way to honestly answer the questions and give meaningful "effect" to mitigation evidence. No other state uses Texas's scheme (Oregon uses an extensively modified version that is in theory similar to it).

In a series of non-Texas cases (the Lockett line of cases) the Court has held that a jury must be permitted to show mercy and must be able to "give effect" to mitigation presented by a Defendant. Texas's special questions don't.

The question before the Court today is when did the Court affirmatively decide when Lockett was applicable to the Texas special scheme, the 1980s in a case called Penry I or merely the last few years, Penry II & Tennard.

Two of the four dissenters want Lockett overturned.

The lead dissent, by the Chief Justice, focuses on two cases -- Graham & Johnson. Unfortunately for the Chief Johnson was written by Justice Kennedy who joins Justice Stevens majority in Abdul-Kabir & Brewer.

I know the above is truncated and, for lovers of the precise, a little vague, but it should give you and understanding of the law. Capital Defense Weekly also has some background as does Crime & Consequences and the SCOTUS blog.

Posted by: karl | Apr 25, 2007 10:47:51 PM

"Texas's special questions don't." That was the splitting issue here -- what does the "give effect" language mean. Give "full" effect or just "some" effect. If you believe that Penry I was clear on that issue and that the 5th should have know it was clear, you're kidding yourself.

Posted by: LonesomeClerk | Apr 26, 2007 9:37:05 AM

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