The Supreme Court has handed down the much anticipated ruling over Kentucky’s use of lethal injection. In a fractured decision, the Court upheld the ruling for the state. Chief Justice Roberts wrote the decision, though his actual decision only garnered three votes. In the fractured opinions below, the majority agreed only in the result. two justices dissented: Ruth Bader Ginsburg and David Souter.
Roberts wrote that “[w]e … agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment.”
This was an expected ruling, as discussed in this column.
For a copy of the opinion, click here.
Bob,Esq.
“Those who agree with the author of Exodus, or with Immanuel Kant,…”
**********************
I had no idea that Kant and the unknown* First Century BC scribe who set down the Book of Exodus were of precedential value to the U.S. Supreme Court. Laying aside the selective reading of each work for a moment, do I sense that Scalia is more philosopher than jurist. If so, I think he would serve the Country better as a Professor of Jurisprudence (which of course he was here at UVa), than ruling on the intricacies of the Constitution. Philosophers make for wonderfully provocative thought; they are however totally out of sync interpreting a practical document.
*Since about the 17th Century, few, if any, secular historians accept Moses as the author anymore. Scalia, I suppose has more of a 16th Century approach apparently.
“….the Court strikes a [504 U.S. 719, 752] further blow against the People in its campaign against the death penalty.
The campaign against the death penalty is a “…further blow AGAINST the people? Now, that requires some pretty twisted and tortured logic to justify. If abolishing the death penalty would somehow damage me or my family or the moral character of the USA, then I ask that I be damaged all to heck by that measure.
Okay, I will say that Stevens concurrence is throwing me for a loop. It’s as if he’s arguing that his opinion is that the whole death penalty violates the 8th, but assuming it didn’t then lethal injection would be kosher.
Call me crazy (or, you know, don’t), but I was under the impression that Justices were capable of using broader ideals concerning the question before them to inform their opinions. It seems like what Stevens could have written (but didn’t) is that “this whole question is moot to me since I now feel capital punishment is unconstitutional.”
Prof, do you know of any other rulings where a Justice offered an opinion in favor of a practice he or she believed inherently unconstitutional? Or am I completely misreading Stevens’s concurrence?
Beavis and Butt-Head. Classic!
Supreme Court. Not a terribly enlightened bunch when it comes to humanity.
Jill,
No, they don’t, do they?
Bob,
I meant to say “brilliant” as well. And rafflaw and others make very good points. They certainly don’t care for medical knowledge in this opinion.
These people do not read newpapers. They form legal opinions based on misinterpretations of Bevis and Butt-head. There’s a great incident showing those two screaming; “give him the chair!”. And so, they do!
Mespo,
You are so right about the “newspaper reading” character of this Court. Popular Constitutionalism, anyone? Its the great hidden secret of our jurisprudence. The Justices hate to buck the public temper…
I’ll take three and give them to my worst enemies.
Brilliant, Bob, Esq.!
K-Tel presents “His Lordship’s Greatest Hits!”
If you’re a Lord Scalia fan, you’ll just love
His Lordship’s Ode to the Eighth Amendment:
“Sixteen years ago, this Court decreed – by a sheer act of will, with no pretense of foundation in constitutional text or American tradition – that the People (as in We, the People) cannot decree the death penalty, absolutely and categorically, for any criminal act, even (presumably) genocide; the jury must always be given the option of extending mercy. Woodson, 428 U.S., at 303 -305. Today, obscured within the fog of confusion that is our annually improvised Eighth Amendment “death is different” jurisprudence, the Court strikes a [504 U.S. 719, 752] further blow against the People in its campaign against the death penalty. Not only must mercy be allowed, but now only the merciful may be permitted to sit in judgment. Those who agree with the author of Exodus, or with Immanuel Kant, 6 must be banished from American juries – not because the People have so decreed, but because such jurors do not share the strong penological preferences of this Court. In my view, that not only is not required by the Constitution of the United States; it grossly offends it.”
MORGAN v. ILLINOIS, 504 U.S. 719 (1992)
And for all you Kantians out there, don’t miss footnote six; wherein his Lordship equates Kant’s metaphysics of morals (based on a certain New Testament figure as an archetypal example) with Old Testament wrath of God tripe.
And what Lord Scalia fan can ever forget HARMELIN v. MICHIGAN, 501 U.S. 957 (1991), wherein His Lordship, self proclaimed EPISTEMIC WHIZ, decreed – “by a sheer act of will, with no pretense of foundation in [epistemology or logic],” that Judges are not bound by the limits of reason; since they can arrive at the predicates “cruel and unusual” without any judgment of proportionality whatsoever!
“Petitioner claims that his sentence violates the Eighth Amendment for a reason in addition to its alleged disproportionality. He argues that it is “cruel and unusual” to impose a mandatory sentence of such severity, without any consideration of so-called mitigating factors such as, in his case, the fact that he had no prior felony convictions. He apparently contends that the Eighth Amendment requires Michigan to create a sentencing scheme whereby life in prison without possibility of parole is simply the most severe of a range of available penalties that the sentencer may impose after hearing evidence in mitigation and aggravation.
As our earlier discussion should make clear, this claim has no support in the text and history of the Eighth Amendment. Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in [501 U.S. 957, 995] various forms throughout our Nation’s history. As noted earlier, mandatory death sentences abounded in our first Penal Code. They were also common in the several States – both at the time of the founding and throughout the 19th century. See Woodson v. North Carolina, 428 U.S., at 289 -290. There can be no serious contention, then, that a sentence which is not otherwise cruel and unusual becomes so simply because it is “mandatory.” See Chapman v. United States, 500 U.S. 453, 467 (1991).
Petitioner’s “required mitigation” claim, like his proportionality claim, does find support in our death penalty jurisprudence. We have held that a capital sentence is cruel and unusual under the Eighth Amendment if it is imposed without an individualized determination that that punishment is “appropriate” – whether or not the sentence is “grossly disproportionate.” See Woodson v. North Carolina, supra; Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, supra; Hitchcock v. Dugger, 481 U.S. 393 (1987). Petitioner asks us to extend this so-called “individualized capital-sentencing doctrine,” Sumner v. Shuman, 483 U.S. 66, 73 (1987), to an “individualized mandatory life in prison without parole sentencing doctrine.” We refuse to do so.” HARMELIN v. MICHIGAN, 501 U.S. 957 (1991)
Cf.
http://hermes.arts.cuhk.edu.hk/Philosophy/Kant/cpr/
Offers void where prohibited.
Order now!
Betta,
Being on the wrong side of the issue is nothing to be ashamed or guilty about. For example, many of us(Congress, statutes and court precedent) believe that torture is illegal and immoral, yet the Bush Administration is for it. So who should feel “anxiety and guilt” in that example?
DW:
No surprise to me as well. The death penalty still has wide spread public support in polls, but I notice when juries have a choice they usually opt for life imprisonment without possibility of parole. This Court seems to be more of a newspaper reading crowd than most in my memory. I also do not recall so many Justices out doing public appearances as this bunch either. All in all, they seem to fit the stereotypical politician turned jurist who always seems to forget that, while most people are conservative in the abstract, they are quite liberal when it comes to concrete situations.
deeply worried: Most people finding that they are continually on the wrong side of the fence on issues invariably react the same way you do: disapppointment, anxiety, guilt, grief, and finally a light bulb goes off that says “I was wrong anyways!”…..
Predictably, I suppose, I oppose the death penalty in all cases, and this decision, while predicted, is still yet another unpleasant shock.
It seems there have been so many of these disappointments and even outrages…. Part of my spirit seems like something that has been hit with a meat tenderizer too many times. 🙁
That may be one of the biggest legacies of this era, great numbers of people with learned helplessness and bruised hearts…