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September 28, 2015

Are we about to start the #Best Ever SCOTUS Term for Eighth Amendment?

The silly question in the title of this post is my effort to coin a silly hashtag (#BESTEA = Best Ever SCOTUS Term for Eighth Amendment) for the start of a new Supreme Court Term in which a number of notable Eighth Amendment cases/issues are set to occupy the Justices.  Over at SCOTUSblog, Rory Little provides this effective preview of what #BESTEA is all about in this lengthy post titled "As the 2015 Term opens: The Court’s unusual Eighth Amendment focus."  I recommend reading Rory's post in full, and here is just a taste (with links from original):

Last June, the Supreme Court’s Term ended not with the same-sex marriage opinions (announced three days earlier), but rather with Justice Stephen Breyer’s surprising and comprehensive opinion (joined by Justice Ruth Bader Ginsburg) in Glossip v. Gross, which announced that both Justices now “believe it highly likely that the death penalty violates the Eighth Amendment.”  Justice Antonin Scalia responded that if the Court were to grant merits review on that question, then he correspondingly “would ask that counsel also brief whether” longstanding Eighth Amendment precedents, “beginning with Trop [v. Dulles (1958)], should be overruled.”  Meanwhile, in the Glossip argument, Justice Samuel Alito had candidly described the many aspects of capital litigation as “guerilla war against the death penalty,” while Justices Sonia Sotomayor and Elena Kagan had remarked that the Court was being asked to approve an execution method akin to “being burned alive.”   Needless to say, the Justices are deeply divided about the meaning and application of the Eighth Amendment’s “cruel and unusual punishment” clause.

 Which makes it all the more interesting that in the Term that will open on October 5, five of the thirty-four cases in which the Court has granted review involve Eighth Amendment issues, four of them the death penalty.   All five cases will be argued in the first three argument weeks of the Term (four in October, and the fifth on November 2).  One can expect that the smoldering embers of the Glossip debate will be quickly reignited.  This Term may be the biggest Eighth Amendment term in forty years (since Gregg v. Georgia in 1976).

Here is a quick rundown of what is coming up:

1. Gleason and Carr — October 7...

2. Kansas v. Carr and Carr (Question 2) — October 7...

3. Montgomery v. Louisiana  — October 13...

4. Hurst v. Florida  — October 13...

5. Foster v. Chatman (Warden)  — November 2... 

After the Justices’ “long Conference” on September 28, at which they will address hundreds of cert petitions that have piled up since the summer recess began, the Court will announce review in a number of new cases of great import.  Some may well divert attention from what appears to be an unusual focus on Eighth Amendment cases and questions.  But the granting and argument of five Eighth Amendment cases to open the Supreme Court’s 2015 Term signals, I think, the deep cultural (as well as economic and federalism) concerns that Americans in general seem to have regarding capital punishment.  In at least some of these cases — with that of the Carr brothers being the best example — there seems to be no doubt about guilt.  The horrific character of multiple rapes and murders is undeniable.  Yet in Carr, while affirming the defendants’ guilt, the Kansas Supreme Court nonetheless found reason to vacate their death sentences.  Such cases thus starkly showcase the divergent views on the Eighth Amendment — and a nine-Justice Court is not different in this regard from much of America.  So stay tuned for what may be the most dramatic Supreme Court discussion of Eighth Amendment values since its re-affirmation of capital punishment statutes long before the Justices’ law clerks were born.

In part because I want a short-hand way to describe all these cases, and in part because I am a sill fool, I am likely to turn #BESTEA into an on-going meme in this bloggy space as the Supreme Court Term kicks off. If readers like the idea, I hope folks will tell me so in the comments and perhaps join me in using this short-hand. And if you hate the idea, perhaps I will grow to as well.

September 28, 2015 at 05:15 PM | Permalink

Comments

Thanks for the update Doug. In addition to the capital context, the Eighth Amendment is becoming prominent across the spectrum of Life Without Parole (the Pope is against it), excessive punishment for nonviolent offenses, particularly offenses related to drug addiction. (almost every presidential candidate is against it)

As you know, not only am I looking forward to Hurst's argument concerning the Eighth Amendment, but the portion of Hurst related to Ring, the Sixth Amendment and the unanimity issue.

It is going to be an exciting thirty days of arguments. Keep the information coming!

Bruce

Posted by: bruce cunningham | Sep 28, 2015 5:54:43 PM

Kind to the lawyer client, the criminal. Rough on the client's victim. Their turn will come, this lawyer hierarchy.

Posted by: Supremacy Claus | Sep 28, 2015 5:54:52 PM

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