Given what bean correctly identifies as the complexity of today’s ruling in Baze v. Rees, I’ll have to leave discussion of the fractured holding until tomorrow. For now, let me discuss one interesting and unexpected development. For the first time since the nearly-retired Harry Blackmun, the Supreme Court now has a justice who believes the death penalty to be categorically unconstitutional under the Eighth Amendment. Justice Stevens:
Finally, given the real risk of error in this class of cases, the irrevocable nature of the consequences is of decisive importance to me. Whether or not any innocent defendants have actually been executed, abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses. The risk of executing innocent defendants can be entirely eliminated by treating any penalty more severe than life imprisonment without the possibility of parole as constitutionally excessive.
In sum, just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, 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.”
Stevens’s concurrence provoked a rejoinder from Scalia. I hate to admit it, but while I certainly think Stevens has the better of the policy argument, as a matter of constitutional law I think Scalia’s (while I would certainly not endorse every detail) is more persuasive. In particular, I agree that the explicit mention of “life” in the due process clauses of the 5th and 14th Amendments — while not dispositive — certainly puts the burden of proof on those claiming that the 8th Amendment forbids the death penalty in all cases. And questions such as whether the death penalty has a deterrent effect and what role retribution can play in criminal punishments, there’s enough reasonable disagreement to justify leaving the policy judgment to legislators, especially since nobody could argue with a straight face that there’s anything remotely resembling a national consensus against it. I’m open to arguments about the death penalty as applied, but I continue to think that the Marshall/Brennan position on the death penalty isn’t terribly convincing.
The other interesting twist, as many of you have already inferred, is that Stevens voted to uphold Kentucky’s execution regime, deferring to precedent. (In this, he differs from Blackmun — he may think that the death penalty experiment has failed, but remains willing to tinker with the machinery of death.)
Shorter Armed Liberal: A story poking mild fun at some conservative bloggers not notable for either their working-class cred or commitment to civil discourse will cost Democrats the 2008 election.
Evidently, this is doubly funny coming from Danzinger. What the Democrats really need, apparently, is to enthusiastically support a decision to waste hundreds of thousands of lives and trillions of dollars replacing a dictatorship that poses no significant security threat to the United States with an Islamist quasi-state allied with Iran. Now there’s electoral and policy gold! As long as all of the many people in midwestern dive bars who pick up the Voice every Wednesday don’t see a story making fun of some reactionary bloggers, of course…
Yesterday Chuck Baldwin, the Constitution Party’s 2004 vice presidential candidate, was gazing up into the dark sky, wondering if someone special was looking — just then — at the same little star flickering above him. He sighed:
I am convinced that only a miracle can save America now. And I am expecting God to grant such a miracle. Beyond that, I am willing to do my part to place myself in a position to let God use my voice and my vote to accomplish this miracle. And if that means voting for someone who “has no chance of winning” in order to let God take the glory for whatever victory results, it is the least I can do. So, who will join me?
HAZLETON, Pa. (AP) — Former Republican presidential candidate Alan Keyes announced Tuesday night that he has left the GOP and is considering joining the Constitution Party . . . .
“They’re considering me, I’m considering them,” Keyes said in a conference call late Tuesday night. “We have so much in common that I find it hard to believe we won’t be able to work out a common basis for working together.”
Truly, truly, I say to you: This is good news. And yet I see that Alaska is sorely unprepared for the campaign ahead.
Who will heed the call of history?
The Supreme Court just rejected 7-2 a constitutional challenge to the 3-injection lethal injection protocol. Details to come. The case is Baze v. Rees.
Good to know that Supreme Court believes that dogs deserve better treatment than the human condemned.
Update: SCOTUSBlog has more. The Court was totally splintered, with no one opinion garnering five votes. The dissenters were Ginsburg & Souter.
Joe Lieberman continues to earn the hatred of, well, most everyone. But particularly Democrats. He’s like Zell Miller minus the vein-popping range and plus a serious dose of sanctimony.
The recently retired Justice O’Connor recently spoke at Hunter College with Justice Breyer, and was asked by a student if there was a vote she regretted casting. After rejecting the student’s suggestion that she choose Bush v. Gore, O’Connor named a case in involving judicial campaigns. She didn’t mention it by name, but I assume she meant Republican Party of Minnesota v. White, which struck down a prohibition on judges announcing views about “disputed legal or political issues.” (“Good,” quipped Breyer, “I dissented in that case.”) Dorothy Samuels notes that she has also spoken out recently about campaign donations to judges and their potentially corrupting influence.
I don’t think that the First Amendment should be construed to prevent the reasonable regulation of donations in judicial elections. Despite attempts by a lot of conservatives to portray campaign finance as an easy First Amendment issue, it’s actually complex. Donating or spending money isn’t pure speech but a means to make speech more widespread. This remains a core First Amendment value, of course, but in the context of elections it also conflicts with the crucial democratic assumption that individuals with unequal resources should still be civic equals at election time. And the problem of donations is even more acute with judicial elections: legislators aren’t supposed to be impartial in crafting legislation, but one would think that judges are supposed to be impartial in enforcing it. Other liberal democracies with a commitment to free speech have managed to regulate campaign donations and spending without heading down the slippery slope to crushing political dissent.
White, which was a pure speech case, is a lot trickier; I would probably reluctantly join the court’s opinion. And the case does bring up a broader question; if judges aren’t allowed to state their views, why have elections at all? O’Connor actually identified the problem in her concurrence:
Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system along the lines of the Missouri Plan. In doing so the State has voluntarily taken on the risks to judicial bias described above. As a result, the State’s claim that it needs to significantly restrict judges’ speech in order to protect judicial impartiality is particularly troubling. If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.
I sometimes find it hard to fault the Supreme Court for requiring states to push the idea of electing judges further down its logical path.
I guess that “purge” of the Iraqi Army wasn’t as efficient as Mickey Kaus suggested…
A company of Iraqi soldiers abandoned their positions on Tuesday night in Sadr City, defying American soldiers who implored them to hold the line against Shiite militias.
The retreat left a crucial stretch of road on the front lines undefended for hours and led to a tense series of exchanges between American soldiers and about 50 Iraqi troops who were fleeing.
Capt. Logan Veath, a company commander in the 25th Infantry Division, pleaded with the Iraqi major who was leading his troops away from the Sadr City fight, urging him to return to the front.
“If you turn around and go back up the street those soldiers will follow you,” Captain Veath said. “If you tuck tail and cowardly run away they will follow up that way, too.”
Captain Veath’s pleas failed, and senior American and Iraqi commanders mounted an urgent effort to regain the lost ground. An elite Iraqi unit was rushed in and with the support of the Americans began to fight its way north.
Admittedly, turning the desertion of thousands of troops into good news was kind of difficult, but Mickey managed, and it earned him an Insty link. I guess that this latest desertion is also really good news…
I’ve always thought the French had a talent for cinema. Contacts with professional experience tell me that shooting out a car engine from a moving helicopter is bloody difficult.
Via Information Dissemination, my new favorite blog…
Excellent point about the tendency to assume that because lots of people in their respective parties (or ex-parties as the case may be) hate McCain and Lieberman their positions must be centrist:
Joe Lieberman says Barack Obama’s “got some positions that are far to the left of me and I think mainstream America.” Andrew asks what Lieberman can mean by this. I assume Lieberman is referring to Obama’s overwhelmingly majoritarian position on Iraq. After all, it’s been the key conceit of “centrists” like McCain and Lieberman ever since 2002 that to be for war in Iraq but somewhat aloof from the Bush administration is the centrist position. After all, it’s the view adhered to be John McCain and Joe Lieberman and McCain and Lieberman are well known moderates so their views must be moderate ones and mainstream and anyone to their left is “far left.”
That’s the central conceit of McCainism and Liebermanism alike, and it’s important to both of them to just keep repeating over and over again. After all, if they stop saying it someone might notice that whether or not either or both of them hold centrist views on some issues, they’re the two most extreme hawks in the Senate at a time when 60+ percent of the population agrees with the orthodox liberal view that we need to lay down a marker for leaving Iraq.
A similar dynamic is often at work in the very successful “liberals believe in judicial activism, while conservatives believe in judicial restraint” scam. If the Supreme Court reached a different conclusion about the Constitution’s requirements than Robert Bork, it was therefore “countermajoritarian.” And this is true even if a Supreme Court decision is so overwhelmingly popular that post-Bork conservative nominees feel compelled to evade or give dishonest answers to questions about their positions opposing it.