pageok
pageok
pageok
Thoughts on Baze v. Rees:
I finally have Internet access again, and I wanted to blog some thoughts on yesterday's fascinating opinions in Baze v. Rees.

  First, I thought the Roberts plurality opinion, which is the binding decision under the Marks rule, is a pretty sensible solution to the problem. As I read it, it basically says that as long as states are reasonably careful there is no chance of an Eighth Amendment issue. If you're a state official, you pretty much just need to copy Kentucky's version of the protocol and you'll be fine. I thought this was a fairly sensible patch of minimalist middle ground, as it pushes states to do better but shouldn't lead to endless litigation.

  On the whole, I'm not surprised with this outcome. It's pretty much where I expected the Court to be on this issue back in 2006 when I tried to predict what the Supreme Court would do when they reached it. Whether Judge Fogel in California will get the message remains to be seen.

  The Stevens concurring opinion is certainly a throwback to an earlier age. I think Scalia's response was devastating, as the Stevens opinion does seem remarkably uninterested in distinguishing good policy from what the Constitution demands. Perhaps the most puzzling line in Stevens' concurrence was his statement that the Supreme Court's decisions "retain[ing] the death penalty as a part of our law" have been "the product of habit and inattention." The Supreme Court is inattentive to the death penalty like college guys are inattentive to women and beer.

  The natural comparison to Stevens' concurrence is Justice Blackmun's "no longer tinkering with the machinery of death" opinion in Callins v. Collins in 1994. In case you're wondering, Justice Blackmun published that opinion at the age of 84 after 24 years on the Court. He resigned from the Court about four months later. Justice Stevens published his opinion at the age of 87 (a few days shy of 88), after 32 years on the Court.

  Finally, I thought Justice Thomas's concurring opinion offered a pretty powerful originalist argument. As originally understood, the Eighth Amendment really did speak to these issues, and I thought Thomas did an important service by exploring that understanding in detail. Of course, what you make of Thomas's perspective depends largely on what you think of originalism, as well as what you make of modern Eighth Amendment jurisprudence. It was interesting to compare Thomas's analysis to how Justice Ginsburg dealt with the Court's method-of-execution precedents in her dissent: "Whatever little light our prior method-of-execution cases might shed is thus dimmed by the passage of time."

  A final thought. Both this case and Medellin v. Texas are the kinds of cases that are tricky for a Chief Justice to write in a way that keeps Justice Kennedy on board. In both cases, Chief Justice Roberts succeeded; AMK joined JGR in full and did not write separately.
DrGrishka (mail):
This is pure speculation (and wishful thinking on my part), but I wonder if JPS's concurrence is a sign of his overall frustration with how this term is going. I know judges try to take it 1 case at a time, but I wonder if JPS ended up on a losing side in other big cases, specifically Al-Odah, an dis now writing more out of frustration. There is almost a wistful quality to his opinion.

Orin, you were a former SCOTUS clerk. Am I completely off base here?
4.17.2008 1:41pm
The Unbeliever:
"The Supreme Court is inattentive to the death penalty like college guys are inattentive to women and beer."

Orin, you win this week's award for Best Analogy on the Internet.
4.17.2008 1:47pm
Anderson (mail):
Uh, wouldn't a relevant difference between the Stevens and Blackmun opinions be that Blackmun *dissented* from the application of the death penalty, and Stevens *concurred*?

Stevens does indeed study the policy issues, and then rules on the basis of ... the law, not the policy.
4.17.2008 1:48pm
Anderson (mail):
The Supreme Court is inattentive to the death penalty like college guys are inattentive to women and beer

Last I checked, college guys were *enthusiastic* about women and beer, without any deep understanding of either. Hence, for instance, the popularity of Coors and Bud Lite at their parties.
4.17.2008 1:50pm
Ryan Waxx (mail):

Perhaps the most puzzling line in Stevens' concurrence was his statement that the Supreme Court's decisions "retain[ing] the death penalty as a part of our law" have been "the product of habit and inattention." The Supreme Court is inattentive to the death penalty like college guys are inattentive to women and beer.


While reading the opinion, I understood the "habit and inattention" to refer not to the SC's treatment of the DP, but rather to the political process that keeps the DP on the books at all.

Is this an unreasonable interpretation of what he wrote? It makes a lot more sense objectively.
4.17.2008 1:56pm
Sasha Volokh (mail) (www):
Anderson: The way I read it, I think Stevens concurred just because the overall constitutionality of the death penalty wasn't on the table... in this case. (See also, e.g., Thomas's concurrence in the abortion case where he noted that the Commerce Clause argument hadn't been made in that case. Lots of other opinions of that sort, where people state their view but then don't use it as a basis for decision in that case, saving it for a future case where the issue is "properly presented.") Let it be on the table in a future case, I think Stevens has told us what he thinks the Constitution demands.
4.17.2008 2:03pm
The Unbeliever:
Anderson: Don't stop now. I eagerly await your post applying similar distinctions to women that you did to beer.
4.17.2008 2:07pm
OrinKerr:
Last I checked, college guys were *enthusiastic* about women and beer, without any deep understanding of either. Hence, for instance, the popularity of Coors and Bud Lite at their parties.

When I was a college freshman, perhaps the most popular topic at the dinner table was the merits or lack thereof of various types of beer. The fact that none of us had actually developed a taste for what I now think of as good beer does not mean we were inattentive to the question.
4.17.2008 2:17pm
zippypinhead:

Anderson: Don't stop now. I eagerly await your post applying similar distinctions to women that you did to beer.
He can't. Too fact-specific. We can all take judicial notice of the universally bad beer at frat parties, but Tri-Delt sorority members aren't the most slutty on every campus...

And Orin's analogy should go into the Volokh hall of fame.
4.17.2008 2:24pm
MR (mail) (www):
The fact that none of us had actually developed a taste for what I now think of as good beer does not mean we were inattentive to the question.

Based on this, perhaps Stevens should have instead said it was based on ignorance and inexperience rather than inattention.
4.17.2008 2:33pm
Meh (mail):
Coors and Bud Lite at college parties? You were going to fancier parties than I. We were drinking a lot of "Beast" (i.e., Milwaukee's Best). A friend of mine and I once went to a frat party, took a sip of the horrible beer, and decided that it was almost so bad that we weren't going to drink it. Most college guys don't have money burning holes in their pockets. If you're a frat or a group of guys buying a large quantity of beer for a party, to be consumed by a lot of people you don't even know, you don't usually buy the good stuff. And when we were buying just for ourselves, it wasn't that we didn't know the difference, but money considerations played a large role in our selection.
4.17.2008 2:54pm
Dave N (mail):
Let it be on the table in a future case, I think Stevens has told us what he thinks the Constitution demands.
I think Sasha is right. I have a feeling I know which way Justice Stevens will vote in Kennedy v. Louisiana.

Oh, and I think Anderson is right in two respects on this thread. First, I agree that the fact that Justice Stevens' concurred is significant, in the "this is the way the law is, not the way I wish the law should be" sense, so his argument, flawed though it may be, does respect precedent.

Second, I agree that college students don't much about quality beer if their beers of choice are Coors and Bud Light. But even agreeing there, I still think OK penned one of the best similes I have seen in a long time.
4.17.2008 2:54pm
Dave N (mail):
Whether Judge Fogel in California will get the message remains to be seen.
Only if Stephen Reinhardt sends him the memo.
4.17.2008 2:56pm
PatHMV (mail) (www):
Justice Steven's precise words about habit and indifference were:

The thoughtful opinions written by THE CHIEF JUSTICE and by JUSTICE GINSBURG have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and
inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty.


It appears that he was indeed lumping the Court in with the entire democratic process of the country. Might as well insult everybody while you're at it, I guess.
4.17.2008 3:06pm
Anderson (mail):
When I was a college freshman, perhaps the most popular topic at the dinner table was the merits or lack thereof of various types of beer.

You didn't go to college in Mississippi, I take it.

The way I read it, I think Stevens concurred just because the overall constitutionality of the death penalty wasn't on the table... in this case.

Someone said that in the other thread, but I don't see where that would necessarily stop him. If the DP is unconstitutional on the merits, then a given method of execution is unconstitutional.

I regard Stevens's concurrence as saying, "looking at the big picture, at our previous reasoning, and at my own experience of studying these cases, I can't say that the DP as applied accords with the Eighth Amendment as we've interpreted it."

Stevens btw reads the previous cases much more closely than does Scalia, whose temper-tantrum is getting much more respect than it deserves. Scalia does not appear to even consider it legitimate to engage in the Eighth Amendment inquiry in the first place, and therefore he shows much less respect for precedent than Stevens does.
4.17.2008 3:14pm
Not Applicable:
I think you might be a little unfair to Judge Fogel. It's my experience that Judge Fogel is a thoughtful and careful jurist, and not likely to ignore Supreme Court precedent.

I don't see anything in his memorandum opinion that suggests he is a loose cannon or likely to ignore the Supreme Court's ruling. In fact, he actually affirmed the method of execution suggested by the state, and only stayed it after the state attempted to change the manner of execution at - literally - the eleventh hour.
4.17.2008 3:15pm
Mike& (mail):
Even though I'm no college freshman, I'd rather discuss beer than the Supreme Court's death penalty jurisprudence. I've had more than enough of the latter; but not nearly enough of the former.
4.17.2008 3:18pm
c.f.w. (mail):
Fogel has a different factual record, as I recall. None of the horror stories connected with botched executions were laid out in the KY case, I gather, but have been laid out in the Morales case, that Fogel has. Hence the "hedging" in the Roberts opinion.

The problem with the Scalia opinion, or at least an important caveat over-looked by OK, is the indifference to death vs. LWOPP professed in the last few sentences by Scalia. Scalia tries to say LWOPP is as bad as death, which is internally inconsistent with the idea that we might need death for deterrence. Scalia came off looking a bit like Pilate - unconcerned with the ethics of putting folks to death (while professing indifference), so long as it is in his job description. On the whole, I would give him credit for discussing LWOPP vs. death, but no credit for recognizing the "cave man" (ethically numb) appearance created by his last sentences. A useful work in progress by Scalia, but not a creditable ethical justification for death vs. LWOPP.
4.17.2008 3:25pm
GV:
Isn't it interesting that originalism has shifted from private intent of the framers origianlism to public meaning originalism, yet the same documents are used under either theory to determine original intent?

I don't understand how anyone can accept the argument, even assuming counter-factually that originalism makes sense, that because a certain practice happened during the founding, it was per se constitutional during the founding. It's fallacious, yet originalist, from time to time, will use it as if it makes sense.

Finally, I don't understanding the argument that Justice Stevens is somehow abdicating his role because he is not following what everyone else thinks the Eighth Amendment means. I mean, everyone also thinks the commerce clause means nothing. Does that mean Justice Thomas is wrong? I thought justices were supposed to independently determine whether a practice was constitutional by independently determining what the constitution means.
4.17.2008 3:31pm
KeithK (mail):
I agree that Stevens ought to be independantly determining what the constitution means. I won't criticize that. But when you invoke "evolving standards of society" you are explicitly stating that what everyone else (i.e. society) thinks is critical to this determination. So relying only on his own opinion for these standards is wrong on his own terms.
4.17.2008 3:45pm
tvk:
Orin, your analogy is truly perfect, but as Anderson pointed out, perhaps not entirely the way you thought. The Supreme Court devotes a lot of time to death penalty cases, has a fascination with such cases, but rarely thinks about the death penalty at the broader level. When was the last time that the truely problematic aspects of the system at the higher level--the rigged juries where all death penalty opponents are DQed for cause, the not-so-subtle racial disparities, the cost versus benefit balancing--have been addressed?

Scalia does a pretty good job of pointing out the contradictions in the liberals' case. Here are the contradictions in the conservatives' case:

1. You can't beat up liberals for demanding strict procedures (that create delay and costs), and then beat them up again for the no-demonstrated-execution-of-innocents. Either we have a system that is cheap and quick and error prone, or we have a system that is expensive and slow and less error prone. Pick your best beat-up line.

2. You can't argue that the Supreme Court spends a lot of attention on the death penalty, but then argue that the Constitution easily dictates the answer to the big questions here. If the Court is spending all that time but its hands are completely tied, then the "attention" is simply a lot of wasted effort. Nobody would be doing any of the productive thinking that "attention" implies.
4.17.2008 3:45pm
Q the Enchanter (mail) (www):
Coors and Bud weren't "beers" according to the original understanding. They are therefore inapposite to the question before us.
4.17.2008 3:53pm
Anderson (mail):
Coors and Bud weren't "beers" according to the original understanding. They are therefore inapposite to the question before us.

Now THERE is an originalism I'll drink to.
4.17.2008 3:58pm
OrinKerr:
When was the last time that the truely problematic aspects of the system at the higher level--the rigged juries where all death penalty opponents are DQed for cause, the not-so-subtle racial disparities, the cost versus benefit balancing--have been addressed?

Does "addressed" mean addressed in a written opinion released to the public? Or does "addressed" include discussed extensively within the Court?
4.17.2008 4:04pm
Malvolio:
The thoughtful opinions written by THE CHIEF JUSTICE and by JUSTICE GINSBURG have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty.
It appears that he was indeed lumping the Court in with the entire democratic process of the country. Might as well insult everybody while you're at it, I guess.
The remark is not just insulting, it's factually wrong. The DP has been vociferously debated -- in public, in Congress, and in the Courts -- and its current political state is directly reflection of that state of the debate.

And, the remark is not just factually wrong, it's wrong-headed. For an SC Justice to condemn the Court, the legislature, and the polity for arriving at a result with which he disagrees recalls Brecht's question: "Would it not be easier to dissolve the people and elect another?"
4.17.2008 4:05pm
OrinKerr:
TVK writes:
You can't argue that the Supreme Court spends a lot of attention on the death penalty, but then argue that the Constitution easily dictates the answer to the big questions here. If the Court is spending all that time but its hands are completely tied, then the "attention" is simply a lot of wasted effort. Nobody would be doing any of the productive thinking that "attention" implies
I don't follow this reasoning at all. Can you explain what this means?
4.17.2008 4:08pm
GV:
Keith, but you're missing Stevens's point: we should not always just look to "evolving standards" to determine what is cruel and unusual. In other words, Stevens is not invoking his own independent judgment and then claiming it is the judgment of others. Instead, he explicitly recognizes that his judgment (based on his vast experience) is different from most Americans. I think if you carefully re-read his opinion, you'll see this distinction. It's clearer if you read the Justice White opinion he cites. So, I'll ask again: Why are people attacking Stevens for using his own independent judgment to determine what the constitution means? What other parts of the constitution should be defined by opinion polling?

. . .

I also think it borders on criminal stupidity to blast Stevens for not being able to point to any case where it has been proven that an innocent person has been killed. States often fight tooth and nail to prevent individuals from doing DNA tests to prove that an innocent person has been killed. Moreover, we can infer that innocents have been killed based on the studies that have been done on false convictions in other areas of the law.
4.17.2008 4:14pm
PatHMV (mail) (www):
GV, I'm not sure I understand what your argument is. It is certainly the case that acts of Congress adopted by the first few Congresses can be Constitutional. The fact that an act was adopted by a Congress filled with the people who wrote and ratified the Constitution is not a 100% guarantee that the act is Constitutional. I'm not aware of anyone who says it is. It should, however, be some pretty strong evidence of what the words of the Constitution were commonly understood to mean. It is unlikely that the same people who enacted and carried out death penalty statutes both before and after the Constitution was adopted had any inkling that somebody might centuries later interpret words of theirs to prohibit the death penalty.

More to the point with the arguments being made here, however, is that if the Constitution specifically allows, condones, authorizes, anticipates a particular law, then that law must inherently be Constitutional. Do you dispute that? When the Third Amendment states that no soldier shall be quartered in a private home during time of war except "in a manner provided by law," do you believe that nevertheless it might be unconstitutional for Congress to pass a law allowing for soldiers to be quartered in a private home during a time of war?

Have you considered what might happen if our language usage patterns changed in ways that you don't like? Suppose that "compelled" in our common understanding and use of the term came to mean "forced under sever torture," rather than simply "forced under threat of fine or imprisonment." Would you then say, well, the meanning of "compelled" has changed, so the meaning of the Fifth Amendment has changed, and now a person can be ordered to testify against himself, so long as he is not tortured?

And the difference between Justice Stevens and Justice Thomas is that Justice Stevens bases his views on the meanings of these words explicitly on his personal opinions on the merits of the policy at issue. He believes that what is and is not constitutional ultimately hinges on his own personal view of the policy. He provides no mechanism by which we can objectively determine what is and is not constitutional. In contrast, Justice Thomas bases his opinions on what he understands the meaning of the commerce clause to have been when it was adopted. He doesn't say: "I think as a policy matter, marijuana should be legal, so I'm declaring that the commerce clause doesn't allow Congress to outlaw the personal possession of marijuana within a state." Under Thomas' approach, there is a rule of law, and the Constitution has a meaning independent of the current feelings of a majority of the Court. Under Justice Stevens' view, the Constitution has no meaning at all other than what 5 members of the Court think at any given time.
4.17.2008 4:15pm
CrazyTrain (mail):
Although superficially appealing, I think the comparison between Blackmun &Stevens here is off. Blackmun's dissent was a pithy statement that seemed to me to be designed to get headlines and did not really explain what he was thinking and why he had reached his conclusion. Steven here gave a long, thoughtful analysis -- the reasoning of which may very well be flawed for several reasons -- and then concludes modestly by voting to affirm a judgment of death. Hardly the short opinion with a soundbite made for newspapers that was Blackmun's dissent from a denial of cert.
4.17.2008 4:15pm
CrazyTrain (mail):
The other thing I think people missed here was Breyer's opinion, which indicated to me that he was also willing to revisit the constitutionality of the death penalty in general.
4.17.2008 4:16pm
Bill Dyer (mail) (www):
Prof. Kerr, I don't think Roberts was tailoring to keep Kennedy's vote. It was 7/2 -- he didn't need Kennedy's vote for the result, and even with it, he didn't have a majority opinion.

I think this was Roberts (and Alito as his loyal lieutenant) trying to stay true to his confirmation promises to find the narrowest possible grounds for ruling.

In that effort, he ended up writing like a circuit judge who was intensely conscious of his inability to overturn prior SCOTUS precedents, and therefore was obliged to try to "harmonize" them — even when they conflicted with each other and didn't make any particular sense.

In other words, Roberts is still writing as if he's under the obligation to pretend that the emperor is wearing clothes.

Thomas just comes out and says (my paraphrase): "Look, guys, the emperor is buck naked, and has been for a long time. Put aside your six-step tests with your 'substantials' and your 'heavy burdens,' and just recognize the fundamental truth that this protocol, even if imperfect, wasn't adopted in order to torture, but with an intention instead to be more humane. End of story."

Eighth Amendment jurisprudence is one of those areas in which the Supreme Court has made a mockery out of itself in the last three decades. The maze through which Roberts was trying to run, and through which he's pointing the lower federal and state courts, is build on a rotten foundation. I wish Roberts and Alito had had the courage to join Thomas and Scalia in just knocking it down and returning to, well, the Constitution.

Another nit: Other states aren't going to copy Kentucky. Kentucky has executed only one other murderer with its protocol. I read Roberts' opinion, and especially Alito's concurrence (which is written specifically for the benefit of lower courts who might otherwise be tempted to see this as an invitation for more method-of-execution cases) as saying: "Get into the same ballpark that Kentucky is in, and you're fine." But Kentucky isn't a model, even for the three-drug cocktail. You wouldn't know that from reading Roberts' opinion, which I think is guilty of cherry-picking from the record to make them look more polished than they really are. And I suspect the folks at the Kentucky prisons would tell you they aspire to be as smooth as their counterparts from the most experienced state in carrying out capital sentences, Texas.

My more extended take, with links to other commentary about this case from left and right, is here.
4.17.2008 4:19pm
Anderson (mail):
Interesting btw that Kennedy and Souter were the only two justices *not* to write opinions. I mean, hell, why not go for 9?

Perhaps they are working on big ops themselves.
4.17.2008 4:23pm
Bill Dyer (mail) (www):
Anderson: They wouldn't have released the others if Kennedy and Souter were still planning to write separately.

What amuses me is the notion that Souter was the senior Justice voting to reverse, and hence (as a formal matter) presumably assigned the task of writing the dissent to Ginsberg. (I suspect she volunteered, will all the gusto that only a former ACLU lawyer could have for arguing that the constitutionality of an execution method depends on whether the State does or doesn't tickle the condemned man's eyelashes, and tenderly call his name, after he's supposedly unconscious.)
4.17.2008 4:29pm
Anderson (mail):
Sorry, Bill, I meant other ops in other cases.
4.17.2008 4:32pm
tvk:
Orin, the point is that the conservatives on the Supreme Court give the death penalty a lot of "attention" only in the strict sense that they spend a lot of time on it. But they are spending all that time without really doing any flexible thinking. It is like saying that some guy gives a lot of "attention" to his kids because he is always around the house, but has no idea what the kids are actually doing.
4.17.2008 4:33pm
OrinKerr:
Bill Dyer,

I disagree. This is all about AMK because it's all about the Marks rule and what happens next time.

TVK,

I assume "flexible thinking" is a code word for "thinking that you agree with"? In that case, you will need to tell us your views on the death penalty before we know if the Justices have been truly inattentive or have been thinking sufficiently flexibly.
4.17.2008 4:45pm
GV:
Pat, how is the founding era's understanding of cruel and unusual relevant to determine what the 14th Amendment (passed waay after the founding) means? And if we're going to take this "the founding generation did it therefore it's constitutional (or really good evidence of constitutionality)" principle seriously, shouldn't we drastically limit the current libertarian understanding of the First Amendment? After all, the founding generation had no problem with the Alien and Sedition Act. And as a matter of basic pyshcology, should we be surprised that politicians passed laws that they "knew" were unconstitutional? And why couldn't the politicians simply change their minds? And who is to say that there really was any common understanding of the words "cruel"? (I'm quite certain the current Congress could ban the all "cruel" state punishments, but could never agree on what constitutes cruel. If you wanted to know the current common understanding of "cruel," how could you ever do that?)

And why should it be surprising that the founding generation would allow practices that violated constitutional principles? It's easy to lay down an abstract principle and not be sure how it applies in reality. Let me give an example. Lets assume everyone at the founding thought that the cruel and unusual clause meant punishments that were rare and served no legitimate penological purpose. Now everyone at the founding believed, as a factual matter, that the death penalty for horse stealing greatly deterred horse stealing. They therefore believed it was not cruel and unusual. Fast forward to today. Texas passes the same law today. What should a judge do? Must she hold that the practice is constitutional based on the founding generations understanding of the facts (i.e., how common this punishment was at the founding and the practices deterrent effect) even if those facts have changed or even if the founding generation simply had the facts as they knew them wrong?
4.17.2008 4:45pm
Chris 24601 (mail) (www):
Scalia's opinion at 1 starts out by pointing out that, in the Fifth Amendment, "the very text of the document recognizes that the death penalty is a permissible legislative choice." But that's slightly different from his conclusion at 8 that the death penalty "is explicitly permitted by the Constitution." The Fifth Amendment presupposes that the death penalty may be imposed, but that's different from explicitly stating that, notwithstanding any other provision of law, it is permitted. Obviously the framers of the Eighth Amendment (and the Fourteenth) thought the death penalty was constitutional, but if their views rested on a misapprehension of the reference-yielding facts, or on facts that have changed, I don't think their views are binding. The sense expressed by "cruel" at the time the Eighth Amendment was adopted, and the sense expressed by "privileges or immunities of citizens of the United States" when the Fourteenth Amendment was adopted, yes, but not the reference of that language.
4.17.2008 4:54pm
GV:
If the court will let me, I would like to adopt Chris's post and his linked article as part of my 3:45 p.m.
4.17.2008 4:57pm
Guest101:
Orin,
I'm not sure if you read my comments to Professor Cassell's post, but I'd appreciate your view: is there not a defensible argument to be made on textualist and/or originalist grounds that, by incorporating an abstract and subjective standard of "cruel and unusual" into the Eighth Amendment, the framers both invited and compelled future jurists such as Justice Stevens to conduct essentially the analysis that he did under that amendment-- i.e., relying on his own intuitions of cruelty to determine where the constitutional line should be drawn? As I argued at length in the other thread, it seems to me (concededly without having done any research on the matter) that a plausible case could be made that the Eighth Amendment simply delegates the matter to the considered judgment of future jurists and that Justice Stevens was doing precisely what the Constitution requires of him.
4.17.2008 4:57pm
OrinKerr:
Chris,

Isn't that just living constitutionalism dressed up? That is, you just go up the level of generality you need to go to get the result you want, and then go back down to say it is what the constitution commands.
4.17.2008 4:59pm
OrinKerr:
Guest101,

I tend to think Justice Thomas is correct as an originalist matter. But the words are not clear, and Chief Justice Warren put the same spin on them that you suggest.
4.17.2008 5:01pm
Al Maviva (mail):
While reading the opinion, I understood the "habit and inattention" to refer not to the SC's treatment of the DP, but rather to the political process that keeps the DP on the books at all

Yeah, it's a real inconvenience when polls consistently show that ~70% of the public favors the death penalty, and then the legislature go and vote as if 70% of the public favored the death penalty.

Maybe if they paid closer attention to what the public thinks about the issue, there'd be a different result...
4.17.2008 5:05pm
Bill Dyer (mail) (www):
Prof. Kerr: Thanks for the reply, and for indulging me (maybe I'm being particularly dense here). I'll stipulate that the kind of opinion Roberts wrote is the kind of opinion that's more likely to pick up a vote fro Kennedy than is the kind of opinion that Thomas wrote.

But if Roberts and Alito had joined with Thomas' approach, they would (with Scalia) have had a four-Justice plurality opinion at a minimum. Thomas' approach, if followed, would have much more effectively slammed the door shut to these sorts of method-of-execution cases (including Judge Fogel's California case).

Are you saying Chief Justice Roberts, for purposes of the Marks rule in future cases, nevertheless preferred to have only his three-Justice plurality opinion instead, on the theory that because it was "narrower" it would have more weight than a four-Justice plurality opinion? If so, could you give us an example of how this might play out if, for example, notwithstanding Baze, the Ninth Circuit were to affirm Judge Fogel and the SCOTUS were then to consider the California case on application for cert?
4.17.2008 5:12pm
tvk:
Orin, the point of flexible thinking is not views that I agree with, but issues that Justice Stevens believes should be considered; since we are debating the merits of his comment that the Court permits the death penalty due to inattention. I read his comment at meaning that the Court has not been paying much attention to the bigger issues (e.g. the rigged juries, the racial disparities, and the cost vs. benefits) for a long time; even if it obsesses over minor details such as the specific protocols with regularity.
4.17.2008 5:36pm
tvk:
So to modify my analogy slightly, it is the guy who pays "attention" to his kids by memorizing all of their friends' names; but ignores that his kids are failing out of school, doing drugs, and occasionally lands in jail.
4.17.2008 5:43pm
autolykos:
tvk - what does any of that have to do with the question of whether the punishment is cruel or unusual? I don't think anyone would dispute that the DP is cruel when applied to an innocent person, but then so are a lot of punishments...
4.17.2008 5:47pm
Chris 24601 (mail) (www):
Orin: "Isn't that just living constitutionalism dressed up? That is, you just go up the level of generality you need to go to get the result you want, and then go back down to say it is what the constitution commands."

No! The proper level of generality at which the framers' views are binding is the textually-expressed level of generality. Their purposes aren't binding--that's too high--and neither are their specific expected applications--that's too low. On my approach, we are only allowed to disagree with the framers' conclusions on the reference of their language if we have a disagreement with them on the reference-yielding facts (and the textually-expressed sense tells us which facts are the reference-yielding ones). (And we can only disagree with their purposes if we have a disagreement with them on the facts in virtue of which the constitutional language is a good way to promote their purposes.)

I'm not sure what you mean by "living constitutionalism," though. If it just means that constitutional outcomes can properly change, then I'm a living constitutionalist. I'd prefer to call myself a textualist semi-originalist, or a zombie constitutionalist--the Constitution is half dead and fixed (the textually-expressed sense, intension, or Millian connotation) and half alive and changing (the reference, extension, and Millian denotation).

GV--thanks.
4.17.2008 5:50pm
David M. Nieporent (www):
Scalia does a pretty good job of pointing out the contradictions in the liberals' case. Here are the contradictions in the conservatives' case:

1. You can't beat up liberals for demanding strict procedures (that create delay and costs), and then beat them up again for the no-demonstrated-execution-of-innocents. Either we have a system that is cheap and quick and error prone, or we have a system that is expensive and slow and less error prone. Pick your best beat-up line.
Your argument is superficially valid, but misses a key point: virtually none of the "expensive and slow" aspects of capital punishment have anything at all to do with innocence.
4.17.2008 5:58pm
PatHMV (mail) (www):
tvk... what is your (or Justice Stevens') evidence that those other points of view have not been considered, other than the fact that they have not been adopted? I, for one, have contemplated the "rigged juries" (and I take it by that that you mean "death-qualified" jurors, jurors who are capable of fulfilling their oath to follow the law rather than their own personal religious beliefs) and the "racial disparities" and the cost vs. benefits, and they have not in one whit changed my policy support for the death penalty.

In terms of my view of the death penalty's constitutionality, I don't think that all those factors are in any way relevant to a determination of whether the Constitution prohibits the imposition of the death penalty.

And to Chris24601, their "views" are not binding, but the specific language of the Constitution is. Their "views" are not themselves magical. The fundamental concept is that the meaning of the Constitution is what the language used in it was commonly understood to mean in 1789. That IS the law. There are only two processes provided for amending the Constitution, and neither of them involve the fact that language evolves.
4.17.2008 6:03pm
OrinKerr:
TVK,

I see your position, but I think it's incorrect.

Bill,

Under Marks, you need 5 votes to create the binding rule. So 3+2=5, and the Roberts view becomes the governing standard. 2+2 is only 4 votes, and it doesn't govern anything. Thus Roberts needed Kennedy's vote for his opinion to be binding on the lower courts.

Chris,

You say, "No!", but your explanation seems to say "yes." That is, you are raising the level of generality to get around the expected applications, and then using "reference yielding facts" to get a level higher if needed. I suppose one test is whether your views of good policy and the Constitution tend to match or not; if they are very different, maybe I misunderstood.
4.17.2008 6:03pm
tvk:
David: Among the most expensive and slowest parts of the captial punishment process are (a) the mandatory defense attorneys, (b) the long direct appeal and then habeas process, and (c) the significant additional prosecution effort required to put together a capital case. I think it is fairly self-evident that these help exonerate innocent people in the process. To be sure, some aspects such as litigation over execution protocols have nothing to do with innocence. But to say that "virtually none" of it concerns innocence is quite inaccurate.

PatHMV: These aspects have not been considered for a long time because they've been taken off the table by Supreme Court precedent. Death-qualified juries (i.e. DQing anti-death-penalty people but not pro-death-penalty people) were blessed in Witherspoon v. Illinois (1968); racial disparities in McCleskey v. Kemp (1987); and cost-benefit has never been a particularly big part of the Supreme Court's equation. Under Justice Stevens' continuing evolving standards of decency approach, we should be open to rethinking these issues after 20 or 40 years. You might disagree about the basic evolving standards approach; but you can't argue that the Supreme Court has recently considered these issues seriously.
4.17.2008 6:22pm
PatHMV (mail) (www):
My argument is that those issues are irrelevant to the fundamental question of whether the death penalty is constitutional or not.

My argument is also that the people and their elected representatives who have supported the death penalty have considered those issues and simply are not as troubled by them as Justice Stevens thinks we ought to be. Do you have any evidence, does the Justice, other than that we don't agree with him, that we haven't done anything to "remedy" those supposed problems?
4.17.2008 6:27pm
tvk:
PatHMV, your argument that these factors are irrelevant simply disagrees with Justice Stevens' fundamental approach. In such a case, there is nothing to debate. As for evidence, you can't have evidence of a negative proposition (that something has not been considered). All that I can say is that I am not aware of the last time Congress or a state legislature seriously considered, for example, the distorting effect produced by the requirement of a death-qualified jury--it only takes out anti-death jurors and ensures a pro-death jury. The last time the Supreme Court considered this issue was over 20 years ago.
4.17.2008 6:35pm
Tim Dowling (mail):
If, as Justice Scalia argues, the express references to the death penalty in the Constitution mean that the death penalty can never violate the 8th Amendment, does the express reference to loss of "life or limb" in the Double Jeopardy Clause mean that dismemberment can never violate the 8th?

It's interesting that this is the one express reference to capital punishment that Justice Scalia omits from his list of references.
4.17.2008 6:36pm
Chris 24601 (mail) (www):
Orin: "[Y]ou are raising the level of generality to get around the expected applications, and then using 'reference yielding facts' to get a level higher if needed."

These are the same move. We are allowed to disagree with the framers about their expected applications, I think, if we disagree with them about the reference-yielding (i.e., application-yielding) facts. The basic idea is just that the meaning or sense of the text doesn't produce outcomes on its own, but only in tandem with factual assumptions.

FWIW, my views of good policy and what I think the Constitution requires frequently don't match, at least in my degree of confidence. I think the 2A pretty plainly guarantees individual gun rights, but I'm not at all sure that's a good idea. I think the Privileges or Immunities Clause authorizes courts to decide which privileges are sufficiently rooted in American traditions to be protected, and to decide when a law imposes second-class citizenship, but I'm not sure it's a good idea to give courts that power. I think that, properly interpreted, the Equal Protection Clause would guarantee a right to a remedy, which might prevent tort reforms that I might like as a policy matter, and would allow crime victims to sue police departments for gross misconduct in the provision of protective services, which I'm also not sure is a good idea.

I should probably add that I do think the 8A allows the death penalty, roughly because I think "cruel" meant what Thomas says it meant, and I don't think as a factual matter that the death penalty is torturous. But the 5A-and-14A-presuppose-it argument is too quick. I'd just prefer a slightly more complicated argument--the 5A &14A presuppose it, and there were no relevant framer errors or changing facts about what is "cruel" or about which privileges or immunities are generally possessed by American citizens.

PatHMV: "The fundamental concept is that the meaning of the Constitution is what the language used in it was commonly understood to mean in 1789. That IS the law."

Amen! "This Constitution" in article VI is the historically-situated text, and that's what's supreme. But the 5A doesn't say "the death penalty shall be permitted, any other provision of law notwithstanding." Presupposing that it is permitted and mandating that it is permitted are two different things.

Put another way, there's an ambiguity in "what the language used in [the Constitution] was commonly understood to mean." That might mean "what reference or application the language used in the Constitution was commonly understood to pick out and designate," or it might mean "what sense or meaning the language used in the Constitution was commonly understood to express." I think the latter is binding, but not the former (though it's obviously a defeasible helpful indication of the right answer).
4.17.2008 6:41pm
Tim Dowling (mail):
My 5:36 comment was poorly worded, due to the "never"s.

Let me try again:

If, as Justice Scalia argues, the express references to the death penalty in the Constitution mean that the death penalty generally does not violate the 8th Amendment, does the express reference to loss of "life or limb" in the Double Jeopardy Clause mean that dismemberment generally does not violate the 8th?

It's interesting that this is the one express reference to capital punishment that Justice Scalia omits from his list of references.
4.17.2008 6:45pm
Nunzio:
I don't understand what Justice Stevens' experience is other than reading briefs and records for the last 40 years.

The criminal justice system is pretty flawed, but isn't Scalia right, then, that Stevens arguments call for impaneling the first 12 people in the box as jurors and overturning everyone's convictions.

I'm surprised Stevens has so little faith in legislatures when he has no problems letting them take people's homes for private development. Personally, I'd rather have the Kentucky cocktail than the government kick me out of my double-wide to make room for another wal-mart.

Maybe only those who burn the flag should get the death penalty. Actually, I like Justice Stevens a lot, but he's pretty idiosyncratic.
4.17.2008 6:50pm
PatHMV (mail) (www):
tvk... so there is not, and can be no, evidence to support Justice Stevens' claim, vis-a-vis the state legislatures?

Tim, touche', but I would point you to this post from Eugene Volokh last year. It was at the time a fairly well understood term of legal art, with an accepted meaning in legal documents somewhat broader than that of its words themselves.
4.17.2008 6:51pm
Tim Dowling (mail):
Pat -- Yes, it definitely includes punishments beyond loss of life and dismemberment. No question there. But I think the point still holds, no? Under Scalia's reading, the Constitution expressly "permits", "sanctions", and "authorizes" dismemberment in precisely the same way it expressly "permits", "sanctions", and "authorizes" the death penalty. I'm not trying to play gotcha; I think it's an interesting interpretive point.
4.17.2008 7:00pm
PatHMV (mail) (www):
I agree it's an interesting interpretive point, but I don't think it ultimately does what you say, because the term of art, as used at that time, simply meant "any serious punishment," and no longer had the literal meaning of dismemberment. As this book notes, there's a difference between "plain-meaning textualism" and "tin ear textualism." If the commonly understood meaning of the phrase at the time was that it did not have that literal meaning, and instead was simply a metaphor for any serious punishment, then it does not undermine Justice Scalia's point.

No similar case can be made, I don't think, for a metaphorical meaning of "life" in the 14th amendment, or for the meaning of "capital crime" in the 5th. One might try going back to Blackstone and reading about the concept of "civil death," but I don't think there's much textual support in the constitution for that interpretation of "life."
4.17.2008 7:12pm
Justiciability Guy (mail):
"And who is to say that there really was any common understanding of the words "cruel"? (I'm quite certain the current Congress could ban the all "cruel" state punishments, but could never agree on what constitutes cruel. If you wanted to know the current common understanding of "cruel," how could you ever do that?)"

GV, this is a good point, and I'm afraid you've proven too much. You've shown that "cruel" is not a *judicially-manageable standard* that judges can employ. Since a citizen's "cruel" is just as valid as a judge's "cruel" we should decide the limits of punishment though *democracy* and not what an 87 year-old lawyer thinks.
4.17.2008 7:50pm
omarbradley:
Tim,

In Scalia's book he actually addresses that and says he's a "faint-hearted originalist" and that even though as a historical matter dismemberment or other things may be allowed, he's too much of a wuss to go along.

Here's a quote from his book:
I hasten to confess that in a crunch I may prove a faint-hearted originalist. I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging

So, even Scalia injects his own views in to cases and isn't quite the purist some hold him out to be. By contrast, I can quite easily imagine Thomas upholding a statute imposing Flogging.

Also, for Bill Dyer and his question about Roberts needing Kennedy on board vs Scalia/Thomas:

Bill look at cases like Hudson, Rapanos, even the School case from last year. In those cases, all 4 conservatives were on board but because Kennedy wrote spearately his opinion is the controlling one and his opinion watered down the plurality.

So, Roberts possibly had a choice between getting Scalia and Thomas on board and having a 4 man plurality only to have Kennedy control the opinion by writing on his own and watering it down...Or, Roberts could write his own opinion that holds Kennedy and is likely to be more conservative than Kennedy's own opinion would have been.

If there was a 5th conservative on the bench, say a Justice Easterbrook had replaced Stevens, who knows, but keeping Kennedy is important. Although, I will say it's also likely that, as many had said at the time, Roberts and Alito, while conservative, and pretty much in agreement with Scalia and Thomas on the big issues, just aren't quite as hard-core and eager to really change things, at least right away. They're not originalists and are probably more conservative along the lines of Rehnquist.

Also, we don't know the internal politics involved. The Boumedienne case, the Crawford case, the gun case are all still out. Is it possible that Roberts and Alito were showing Kennedy that they were receptive to his conerns or writing to get his join with their eyes toward other cases?
4.17.2008 8:11pm
gw:
How goes the faculty retreat?
4.17.2008 8:44pm
Dave N (mail):
Omarbradley,

I agree with your analysis and add this thought. If Roberts and Alito had joined Thomas and Scalia, there would be more confusion. What would be the narrowest holding all could agree upon? Kennedy's (assuming his view remained the same) or Breyer's?

Just imagine the litigation over deciding which approach was "narrower" because there was no majority opinion. The Roberts plurality avoids this.
4.17.2008 8:46pm
omarbradley:
I hadn't even considered Breyer's. Good point.

I will say that I gained some measure of respect for Breyer yesterday. You could tell from the opinion that he clearly was conflicted and if it was up to him, the result would have been different.

He could have ruled based on his heart and his policy views and joined Ginsburg and Souter, but he didn't.

Roberts has done a pretty good job of holding Kennedy. The conservatives have won pretty much all the big cases recently(Carhart, Parents, FEC, Medellin, Baze, Hein, Ledbetter). I expect them to win Heller, Crawford and Boumedienne as well.
4.17.2008 9:00pm
Tim Dowling (mail):
Pat -- Thanks for the thoughtful response. I haven't read Amar's Crim. Pro. book, but actually his law review article on Dbl Jeop. prompted my question. We agree that life or limb is a term of art whose meaning embraces all serious punishment. One might view it as a synecdoche. But I think it's significant that the one punishment the ratifying generation chose to represent the whole is dismemberment. Amar shows that, while the phrase includes many things, it certainly includes dismemberment. And so I think the point still holds. I realize this is only part of the originalist case in favor of the constitutionality of the DP, but Justice Scalia uses it virtually as a "proof text" and by doing so overargues the point, I think. It's more complicating than his repeated insinuation that only a moron would conclude the 8th could ban something that is expressly referenced elsewhere in the Constitution.
4.17.2008 11:06pm
Guest #9:
OK, lets do some quick test here.

You are a defendant in capital case (falsely charged), and Scalia pesides over bench trial. Any suggestions to an outcome?
4.18.2008 8:42pm