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October 23, 2024

"The 'Alito Hypothesis' in an Era of Emboldened One-Party State Rule"

The title of this post is the title of this new essay now available via SSRN authored by Wayne Logan. Here is its abstract:

The Supreme Court has long relied upon state legislative preferences when establishing federal constitutional norms. With capital punishment, for instance, state laws figure centrally when deciding whether a particular practice satisfies Eighth Amendment “evolving standards of decency.”  In Kennedy v. Louisiana (2008), which barred execution of child rapists, Justice Alito in dissent hypothesized that the majority under counted the number of states supporting the practice, reasoning that Coker v. Georgia (1977), which barred execution for the rape of an adult woman, likely discouraged states from enacting capital child rape laws, resulting in a misleadingly low tally of state preferences.

This essay questions the viability of what I term the “Alito Hypothesis” in a time when multiple states are dominated by conservative one-party political rule, emboldened by a like-minded Supreme Court seemingly less wedded to stare decisis.  Recent experience in Florida provides a case in point.  In Spring 2023, the Republican super majority Florida legislature passed, and Republican Governor Ron DeSantis signed into law, a provision adding child rape to the list of death-eligible offenses.  In doing so, the state made clear that it was not deterred from enacting a facially unconstitutional law, expressly proclaiming that Kennedy “was wrongly decided and an egregious infringement of the states’ power to punish the most heinous of crimes.”

If Florida’s bold approach catches on, there will likely come challenges to other constitutional precedents.  These include those limiting other punishment practices (capital and non-capital), protections afforded criminal defendants, and civil liberty protections, such as the right to access contraceptives and the prohibition of poll taxes.  In short, rather than being dissuaded from enacting contrarian laws, as the Alito Hypothesis would dictate, emboldened states enacting facially unconstitutional laws could well provide the basis for the Court’s reassessment of state-level preferences in multiple areas, in time possibly spearheading a major overhaul of the nation’s federal constitutional rights infrastructure. 

October 23, 2024 at 12:39 PM | Permalink

Comments

So basically what this guy is saying is that democracy should be powerless to address clearly wrongly-decided cases. In the 8th Amendment context, this is ridiculous, as the Court has arrogated to itself the idea that it can talk about "evolving standards of decency" to toss a sentence it doesn't like.

Plyler v Doe should go.

Posted by: federalist | Oct 23, 2024 12:46:15 PM

Did you read the paper, federalist, before deciding what you think "this guy is saying"?

Posted by: Doug B | Oct 23, 2024 12:55:16 PM

The case of abortion laws is a pretty good refutation of the Alito hypothesis. Despite the ruling in Roe, states had no problems passing additional restrictions on abortion. That led to Casey which relaxed the rule in Roe substantially but still set a line that legislatures should not cross. But legislatures continued to push the envelope with laws that clearly substantially burdened the right to have an abortion until the Supreme Court reversed Roe and Casey.

In my own state, I see no indication that the legislature cares whether a statute is struck down or even how it would play it on a day-to-day basis. Instead, laws are about making statements.

Posted by: tmm | Oct 23, 2024 1:30:12 PM

Pool taxes seem an odd one to add to the list as that is not a prohibition the courts came up with on their own.

Posted by: Soronel Haetir | Oct 23, 2024 1:35:17 PM

Looks pretty clear to me where this guy is coming from.

Plyler v Doe should go.

Posted by: federalist | Oct 23, 2024 1:46:46 PM

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