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June 29, 2015

Providing great reading (and little else of consequences), concurring and dissenting Justices use Glossip to debate death penalty's constitutionality

As noted in this prior post, states eager to move forward with challenged execution protocols got a big win on the merits from the Supreme Court this morning in Glossip v. Gross.  And while the substantive ruling from the Court will be of considerable consequence for states eager to move forward with scheduled executions, commentators (and law professors and death-penalty advocates) will likely take more note of the back-and-forth between Justice Breyer and Justices Scalia and Thomas in their separate Glossip opinion.  

Justice Breyer uses Glossip as an occassion to write a 40-page dissenting opinion (with Justice Ginsburg along for the ride) explaining why he now believes "it highly likely that the death penalty violates the Eighth Amendment" and that "the Court should call for full briefing on the basic question." Unsurprisingly, this disquisition prompts both Justice Scalia and Justice Thomas to author separate (and much shorter) concurring opinions seeking to explain why they think Justice Breyer's constitutional views are all washed up.

The work of these Justices debating the constitutionality of capital punishment as a categorical matter makes for great fun for those who enjoy constitutional debate as blood-sport (and for those eager to read the latest, strongests (policy) arguments against the modern death penalty). But the fact that seven current Justices apparently do not question the death penalty's essential constitutionality, including the five youngest Justices, suggests to me that abolitionists still have a lot more work to do before they can reasonable hope to see a majority of Justices find compelling a categorical constitutional ruling against capital punishment in all cases.

June 29, 2015 at 10:37 AM | Permalink

Comments

Sotomayor (with Kagan going along for the ride) cites the Breyer dissent in a section where she assumes for purposes argument (perhaps given Breyer/Ginsburg joined the dissent; but it in no way firmly accepted the dp as constitutional) the death penalty is unconstitutional adding a "but see" cite. She also ends with a clear implication she thinks lethal injection is problematic & suggesting the firing squad might be better though adding that it isn't great either for various reasons. The "seven" here is a bit overblown.

Abolitionists should not expect a majority of the justices to accept capital punishment is unconstitutional obviously -- Kennedy is not willing to go that far. He has stated that it should be limited to a small number of cases and is part of a five justice majority open to an ongoing process of making them smaller.

Posted by: Joe | Jun 29, 2015 11:01:53 AM

Sotomayor (with Kagan going along for the ride) cites the Breyer dissent in a section where she assumes for purposes argument (perhaps given Breyer/Ginsburg joined the dissent; but it in no way firmly accepted the dp as constitutional) the death penalty is constitutional [correction] adding a "but see" cite. She also ends with a clear implication she thinks lethal injection is problematic & suggesting the firing squad might be better though adding that it isn't great either for various reasons. The "seven" here is a bit overblown.

Abolitionists should not expect a majority of the justices to accept capital punishment is unconstitutional obviously -- Kennedy is not willing to go that far. He has stated that it should be limited to a small number of cases and is part of a five justice majority open to an ongoing process of making them smaller.

Posted by: Joe | Jun 29, 2015 11:02:52 AM

An easy fix ‼
Summarily execute a convicted death penalty defendant upon the jury or judge verdict that death is to be the punishment ♠

Beheading is swift and nearly painless WHEN a proper blade is skillfully used ♥

Kindly ♥ submitted „ DJB a.k.a. Kind Soul
Nemo Me Impune Lacessit

Posted by: Docile Jim Brady in Oregon | Jun 29, 2015 12:38:47 PM

It is worth noting, though, that after the great fun that is indeed to be found in Justice Scalia's dissent, Justice Thomas quickly delves into a rather detailed litany of particularly heinous crimes. The contrast is stark, and the two justices are writing separately in order to make different points, of course. The descriptions Justice Thomas uses to serve the point he wishes to drive home are not an especially fun sort of entertainment.

(I am a first time commentator. As requested in the comment form: criminal defense and civil litigation attorney, solo practice.)

Posted by: Virgil T. Morant | Jun 29, 2015 8:58:18 PM

Forgive my self-consciousness, but of course I mean Justice Scalia's concurrence, not dissent.

Posted by: Virgil T. Morant | Jun 29, 2015 9:05:32 PM

That you consider such matters as sources of fun is a bit 'funny" itself prof. - an insight into the primary role your ego plays in why you comment on these matters in the first place. Enjoy yourself. The fun is not partaken in by the parties actually involved in the cases - on both sides.

Posted by: anon | Jun 29, 2015 10:08:05 PM

Yes, exactly. Little boys playing in the sandbox with the death penalty.

Posted by: Brit | Jun 29, 2015 10:15:37 PM

Prof. Berman has shown he is aware of the serious issues at hand and "fun" is not being used him in a way meant to demean the importance of these issues. People do "enjoy" discussing serious issues without ignoring what is at stake.

Posted by: Joe | Jun 30, 2015 1:52:38 PM

Twenty-five years ago, mocking Justice Blackmun’s dissenting opinion in Callins v Collins, Justice Scalia wrote:
“The death by injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional--for example, the case of the 11-year old girl raped by four men and then killed by stuffing her panties down her throat. See McCollum v. North Carolina, No. 93-7200, cert. now pending before the Court. How enviable a quiet death by lethal injection compared with that! If the people conclude that such more brutal deaths may be deterred by capital punishment; indeed, if they merely conclude that justice requires such brutal deaths to be avenged by capital punishment; the creation of false, untextual and unhistorical contradictions within "the Court's Eighth Amendment jurisprudence" should not prevent them.”
https://www.law.cornell.edu/supct/html/93-7054.ZA.html
Now Henry Lee McCollum is free.
http://www.slate.com/articles/news_and_politics/jurisprudence/2014/09/henry_lee_mccollum_cleared_by_dna_evidence_in_north_carolina_after_spending.html

Posted by: claudio giusti | Jun 30, 2015 3:59:55 PM

“Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable consistency, or not at all, see Furman v. Georgia, 408 U.S. 238 (1972), and, despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake. (…) From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavoured -- indeed, I have struggled--along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavour. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question--does the system accurately and consistently determine which defendants "deserve" to die?--cannot be answered in the affirmative.”
Supreme Court Justice Blackmun , dissenting. Callins v Collins 1994
https://www.law.cornell.edu/supct/html/93-7054.ZA1.html

Posted by: claudio giusti | Jul 1, 2015 1:41:07 PM

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