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September 25, 2007

How many amicus briefs will be filed in Baze?

My phone has been ringing of the hook with media eager to talk about the cert grant in Baze.   I am not at all surprised that a lot of folks (myself included) are trying to figure out exactly what to make of the cert grant and what the grant might mean for pending executions throughout the nation.

Amidst all the head-scratching, Orin Kerr here makes this nice point at The Volokh Conspiracy:

This case really calls out for amicus participation to give the Justices context: In particular, it really needs briefs by leading historians on the history and evolution of how executions were carried out over time in the United States and at common law.  What techniques were used in different historical periods, and why did they change? A really top-notch brief on the history of methods of execution would provide some very helpful context for the Justices.  Obviously it wouldn't decide the case for the seven nonoriginalist Justices, but it would be quite helpful background for all of them. I hope someone is inspired to write a careful and balanced brief on this issue; that person would truly be a "friend of the Court."

I concur with the value of scholars being friendly to the Court in this case, especially because I suspect that a lot of partisan advocates will be chiming in.  Specificially, I am pretty sure the SG and many states will be filing in support of Kentucky and many anti-death penalty groups will be filing in support of Baze.  Any non-partisan brief that is, in Orin's words, "careful and balanced" should get special attention from the Justices.

September 25, 2007 at 04:17 PM | Permalink


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If experience is any guide, the amicus briefs from ad hoc groups with self-important names (Legal Historians, International Law Experts, etc., etc.) will be no more balanced than those from established groups that are frankly advocates for one side.

Posted by: Kent Scheidegger | Sep 25, 2007 4:42:09 PM

Doug, one of the many interesting twists to the Baze cert grant is that it will put to the test whether Justices Scalia and Thomas really meant what they said in Ewing v California (the three strikes case) that the Eighth Amendment is concerned only with the mode or method of punishment, not the length of a sentence. If Scalia and Thomas are consistent, they should not shirk from addressing the lethal injection claim on the merits. Certainly, they can't say lethal injection was in existence at the time of the Founding, so it must necessarily pass constitutional muster.

bruce cunningham

Posted by: | Sep 25, 2007 5:34:33 PM

Certainly, they can't say lethal injection was in existence at the time of the Founding, so it must necessarily pass constitutional muster.

Scalia dispatched that canard 10 years ago in his book. See Antonin Scalia, A Matter of Interpretation, 145-47 (1997).

Posted by: | Sep 25, 2007 6:14:08 PM

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