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January 6, 2008

Do Baze and Kennedy and big SCOTUS cases depend on just one Justice?

In the Legal Times, Tony Mauro has this new piece on the state of SCOTUS headlined, "For the Supreme Court, a Docket Full of Drama: High-profile election-year cases will keep justices in the limelight."  The piece begins with a discussion of the Baze lethal injection to be argued tomorrow morning.  And, though new, the article is already a bit dated because it was obviously written before the cert grant in Kennedy, the case from Louisiana that will test the constitutionality of child rape as a capital offense (details here and here).

An effective post here by Eugene Volokh has me wondering whether Baze and Kennedy and the other big capital cases this Term all will turn on the thoughts and votes of a single Justice, Anthony Kennedy.  Since Justice O'Connor's departure two years ago, nearly all the significant capital rulings by the Court have been 5-4 rulings with Justice Kennedy being the swing vote.  If past is prologue, there is every reason to expect and predict that the outcomes in both Baze and Kennedy will turn on Justice Kennedy's views on lethal injection and capital punishment for non-homicide crimes.

And yet, Eugene's post suggests the possibility that gender and other concern could perhaps impact the traditional perspectives of some Justices in Kennedy.  And, as I have suggested in this prior post, I think the peculiar nature of the issues and dilemmas raised in Baze could skew somewhat the recent 5-4 voting dynamics.  However, this may be my own wishful thinking because I am eager, when contemplating the possible outcomes in Baze and Kennedy, to do more than just try to psychoanalyze Justice Kennedy.   

Reflecting on these realities highlights for me, yet again, why I find the Supreme Court's non-capital jurisprudence sooooooo much more interesting than its capital jurisprudence.  Notably, Justice Kennedy has not been a swing vote in any single one of the Court's Apprendi line of cases over the last decade.  Indeed, in many of these cases, a fascinating array of different Justices have been key swingers, ranging from Justice Thomas (in Almedarez-Torres), to Justices Scalia and Breyer (in Harris), to Justice Ginsburg (in Booker).  Moreover, in other cases the final vote counts and the nature of the opinions are often pleasantly surprising: Cunningham was a 6-3 decision with the new Chief joining the Blakely five; Rita was technically an 8-1 decision though Justice Scalia wrote a dissent-like opinion and Justice Souter dissenting directly; Gall and Kimbrough were technically 7-2 decisions, but only Justice Alito dissented on the main merits. 

January 6, 2008 at 09:22 AM | Permalink


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