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September 27, 2007

Top-notch Baze-ian analysis

Over at FindLaw Edward Lazarus has this terrific essay discussing Baze, the SCOTUS lethal injection case taken up this week.  The piece cover a lot of ground in a short space, and here is one of many effective passages:

It is hard to imagine a case more perfectly suited to capture the jurisprudential dilemma that has consumed and divided our legal culture for the last thirty years — namely, the tension between interpreting our Constitution in a way that is responsive to the nation's history and experience, and making the interpretive process a free-for-all in which unelected and generally unaccountable judges impose on the Constitution their own personal political and moral beliefs.

This dilemma arises in significant part because some of the Constitution's key phrases (like "due process") are inherently amorphous.  The lethal injection case raises a classic example, for it will turn on an interpretation of one of the Constitution's less pellucid phrases - the prohibition on "cruel and unusual" punishments. There is no self-evident benchmark for what is too cruel or too unusual. Rather, deciding what punishments are "cruel" or "unusual" seems to cry out for some sort of subjective judgment — a search for standards and benchmarks that will never be completely value-neutral.

But if defining "cruel and unusual" necessarily calls for some inherently subjective assessment, what limits are there on judicial discretion in creating a constitutional definition?  Surely, the constitutional definition of "cruel and unusual punishment" should have a more objective meaning than simply whatever at any given moment a majority of Supreme Court justices think the term should mean, based on their own various senses of individual morality.

Some recent related Baze posts:

September 27, 2007 at 10:48 AM | Permalink


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This "unelected and generally unaccountable judges" meme has got to go. It is like saying the AG and the rest of the president's cabinet are "unelected and generally unaccountable" and therefore should not decide anything. The AG is elected by proxy when we give the president the authority to appoint him/her, and there is a confirmation process, just as there is with federal judges.

And the SCOTUS did not decide that under evolving standards of decency the mentally challenged should not be put to death "based on their own various senses of individual morality." The opinion cited public opinion polls and state laws.

Without checking, it's a good bet, based on the memes, Edward Lazarus is a member of the Federalist Society, who's members are unelected and generally unaccountable, unaccountable until recently, that is.

Posted by: George | Sep 27, 2007 11:17:49 AM

Very interesting article. I will say, however, that I wish some of the tea-leave readers would analyze SCOTUS's denial of stays pending the outcome of Baze. Doesn't that mean the anti-lethal injection crowd only has four votes, and not five? If so, then don't Cohen and Lazarus (and Berman?) have it wrong? Am I missing something?

Posted by: anonymouse | Sep 27, 2007 12:04:24 PM

"Without checking, it's a good bet, based on the memes, Edward Lazarus is a member of the Federalist Society...."

How much would you like to bet, George?

Posted by: Kent Scheidegger | Sep 27, 2007 12:11:35 PM

Well, it appears I was wrong.

In Closed Chambers, former clerk [Edward] Lazarus outlines how Federalist Society clerks formed a self-described ‘cabal against the libs' to push justices in a rightward direction. Conservative donors like Scaife were encouraged to endow professorships and to fund conferences and training institutes to tutor judges in corporate deregulation and other articles of conservative legal faith” (Salon.com, July, 3, 1998).

If this is the same Edward Lazarus.

My apologies to Mr. Lazarus. But quit using that meme! Our courts, including our SCOTUS justices, are duly appointed through our process and confirmed through the peoples representatives. Talk like that encourages nuts to send them poisonous cakes.

Posted by: George | Sep 27, 2007 1:55:52 PM

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