In a closely-watched decision, the US Supreme Court today upheld Kentucky’s method of imposing the death penalty by lethal injection. Predictably, there was no majority opinion. Chief Justice Roberts wrote for himself and Justices Kennedy and Alito. Justices Scalia (joined by Thomas), Thomas (joined by Scalia), Breyer, and Stevens filed separate opinions agreeing with the result but not with Roberts’ reasoning. Justice Ginsburg (joined by Souter) dissented. You can read all the opinions here. The always-excellent SCOTUSblog has lots more.
Of particular note is the opinion of Justice Stevens. Toward the end of his otherwise unremarkable opinion, he drops this bombshell:
I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” Furman, 408 U. S., at 312 (White, J., concurring).
Sure sounds like Stevens has decided that the death penalty is always unconstitutional. Talk about burying your lede — the beginning of Stevens’ opinion does not let on anything like that. You have to read to the end to realize that Stevens has now joined ex-Justices Blackmun, Brennan, and Marshall — and has become the only Justice currently sitting on the Court — to take the view that the death penalty is always unconstitutional.
Yet, Stevens votes to uphold Kentucky’s procedures, reasoning:
The conclusion that I have reached with regard to the constitutionality of the death penalty itself makes my decision in this case particularly difficult. It does not, however, justify a refusal to respect precedents that remain a part of our law. This Court has held that the death penalty is constitutional, and has established a framework for evaluating the constitutionality of particular methods of execution. Under those precedents, whether as interpreted by THE CHIEF JUSTICE or JUSTICE GINSBURG, I am persuaded that the evidence adduced by petitioners fails to prove that Kentucky’s lethal injection protocol violates the Eighth Amendment. Accordingly, I join the Court’s judgment.
Sounds like Stevens is prepared to hold that the death penalty is unconstitutional in an appropriate case; but since that issue was not before the Court this time, he goes along with the result in Kentucky.
the death penalty is unconstitutional but lethal injection is constitutional.
Good job, I guess.
That kind of reasoning happens in law (and IANAL) all the time, as in “My client’s not guilty, but if he is guilty, we plead extenuating circumstances.” Stevens is just saying that sure, the death penalty is unconstitutional, but if you’re going to allow it at all, there’s no reason lethal injection isn’t allowed.
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p>Unfortunately, I think he’s mistaken that capital punishment is unconstitutional. The constitution mentions capital punishment several times in passing as something that’s just assumed to be around, and there’s no language that suggests it wouldn’t be allowed.
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p>The correct way to handle capital punishment, therefore, would be to make it unconstitutional by amending the constitution. And I think we should.
but my sadness is probably more than balanced by joyousness in the dank cavity that holds george bush’s blood pumping organ. what you want to bet the guantanamo boys’ll be partying downs in crawford tonight?
of executing the whole Crew for treason (by the most humane means available, of course) I admit that it would probably take a lawyer of almost superhuman ability to accomplish this, but jeez, there are a lot of very smart people in this country. Where are the heroes? And incidentally, what the hell is that spineless tool John Yoo doing teaching at Berkeley , of all places?
I think more nuance needs to be shed in examining this decision, probably more nuance than can be offered in a blogpost, but essentially Stevens is not being hypocritical.
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p>What he is suggesting, and David had the right idea, is that this particular case was examining the legality of a specific kind of lethal injection. This is not a proper test case to determine the legality of the death penalty itself but rather was merely trying to determine whether or not this particular type of lethal injection fit under the existing umbrella of the courts previous decision reinstating the death penalty (I believe it was 1978 but I cant remember the case name, David can probably fill us in on that). Essentially that decision allowed the death penalty back in so long as the method was neither cruel nor unusual. Since then the courts thrown out old sparky, firing squad, hanging, and leaving us with the injection.
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p>In a decision last year the court put a moratorium on the entire three step lethal injection procedure in California but apparently the new Kentuckey method passes muster being not cruel and unusual under the existing precedence for the death penalty.
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p>But Stephens does open up the door to a future test case, although as a textualist I would argue that the cruel and unusual part of the 8th amendment is quite vague and broad and a narrower new amendment banning the death penalty specifically would be needed, and it’d be an amendment Id proudly support.
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p>Oh and lastly props to U Chicago for a great justice! (Stevens)
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p>2. “David had the right idea” Really? Gosh, thanks!
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p>3. It was 1976. Gregg v. Georgia.
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p>4. The federal courts have not, in fact, thrown out any of the execution methods you mention (though many state legislatures have done so). Hanging, electrocution, and even firing squad remain constitutionally acceptable in this country, though they are rarely used.
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p>5. The US Supreme Court did not order any kind of formal nationwide (or California-wide) moratorium on executions. I’m not sure where you got that information, but AFAIK it’s wrong. Many states decided to hold off on executions while today’s case was being considered, but not because they were ordered to.
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p>6. “as a textualist” This is a completely meaningless distinction, and a particular pet peeve of mine. A “textualist” as opposed to what? The reality is that everyone is a “textualist” — everyone recognizes that the Constitution means what its words say it means. The problem is that its words are often vague and difficult to apply in specific situations. That’s where the arguments arise — what does the text mean as applied to specific situations. Just calling yourself a “textualist” says nothing.
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p>7. Finally, note that Stevens did go to UChicago for college, but he went to law school at Northwestern.
I think we’re in agreement and yeah I had a feeling you’d know better than me on the case law
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p>Yeah law school doesn’t matter its the undergrad that shapes minds đŸ˜‰ (also our law school boosts of Scalia and Ashcroft, guys Im not proud of as opposed to Stevens so didn’t want to bring that up)
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p>Well I would argue that a lot of people believe in the so called living constitution. Ive had this debate many times and I am not sure if we should rehash it but to me its better if when the text is unclear, which in my view it is on a host of issues such as abortion, the death penalty, gun rights, etc. then the Supreme Court should differ, as its instructed to do in Article II, to the Congress to make new amendments. The framers clearly knew that a)they were fallible and b)times would change so they expected many many more amendments than we’ve actually passed. Constructionists are wrong because the framers intent doesn’t matter and the framers themselves admitted that.
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p>So I tend to say textualist since I dont want unelected judges inventing implied rights and imposing their personal views upon the populace which to me tends to be a liberal or living interpretation, and I do not want to say constructionists since that implies a fealty to a non existent myth of some Judeo-Christian foundation to our nation. So textualist makes sense, I say the court has broad leeway in making decisions where its very clear, and where it is unclear should differ to new amendments or the states.
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p>The death penalty is illegitimate, but making it illegal would be more legitimate if it came out of Congress which is the virtual representative of the people than from judges who are far more removed.
Furman v. Georgia led to a four year nationwide ban on the practice. While it was arguably not a ban explicitly in the language the implicit language of the court led to a four year moratorium.
where you’ve been saying “differ.”
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p>One more quibble: this sentence
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p>doesn’t make sense. First, I assume you’re talking either about Article I (Congress), or Article III (judiciary), not Article II (executive branch). But second, the Court is nowhere “instructed” to defer to anyone anywhere in the Constitution. Judicial review itself is not expressly mentioned in the Constitution, nor is the concept of any branch “deferring” to any other.
The other key part of this decision was the new semi-standard Chief Justice Roberts gives for executions under the 8th Amendment (I say “semi” because he didn’t get five votes for this): that to violate the 8th Amendment, an execution must present a “substantial” or “objectively intolerable” risk of serious harm. Two points:
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p>(1) What the heck does that even mean?
(2) That Roberts and Alito took a different tack than Scalia and Thomas here (and some other cases this term as well) suggests that their jurisprudence does seem to be (to the extent it makes sense to label them this way) moderate-conservative rather than all-out conservative like Scalia/Thomas. Of course, we’ll ultimately have to wait and see if that’s even true and whether it makes any practical difference.
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p>Also, there was another death penalty case at the Court argued today, and this one is potentially far more important than this case. The one argued yesterday has to do with the constitutionality of capital punishment for rape of a child. This could be key, because unlike this lethal injection case, which pretty much kept the status quo, this new case could expand the legality of the death penalty — really the first move in that direction in decades. Currently, the death penalty for rape (or at least a rape of an adult) is unconstitutional under a 1977 case, Coker v. Georgia. So it’s this second case that could really shake things up.
Well first off I am in completely agreement about the moderation of Roberts. If you look at his decisions he is much more nuanced, thoughtful, and far less ideological than Rhenquest so Bush in replacing Rhenquest with Roberts actually made the court more moderate. Unfortunately Alito’s nuanced decision is a rare exception in this case since he consistently votes with the Scalia-Thomas block. And he replaced O’ Connor, a far more moderate justice so arguably the court balance has shifted slightly rightward. Luckily Kennedy has taken O’Connor’s place as the swing vote and has in fact gone leftward (to the middle) since she has left. So in the end the court hasn’t really changed all that much.
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p>Secondly isn’t killing someone causing serious harm? I am unsure what Roberts means by that definition and if you could elaborate upon that I would appreciate it.
Of course, your are correct that an execution causes serious harm, and though Roberts does use that phrase, he also uses the phase “severe pain”, which is a bit more to the point, and puts the “harm” in an execution into context.
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p>Here’s what I thought was the key part of the decision, on page 15. The “alternatives” he’s talking about is the various choices of drugs that can be used to carry out a lethal injection:
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p>You are likely correct about Alito, but it’s still unclear. He does seem a bit different than the Scalia/Thomas bloc, but it’s still very early.
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p>I agree with you on Roberts. I certainly don’t agree with his jurisprudential position often, but he is very thoughtful, intelligent, and is no reflexive ideologue. My theory is that his starting off in the Chief Justice position has led to him being a bit more moderate, but it’s just a theory.