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Wednesday, April 16, 2008

Beldar on Baze

Today, in Baze v. Rees, the SCOTUS rejected two capital defendants' challenge to Kentucky's use of the "three-drug cocktail" for administering its death penalty. The vote was seven to two — only Justices Ginsberg and Souter voted to reverse — but no more than three justices agreed on any single rationale for affirming the Kentucky Supreme Court's decision to permit the continued use of this procedure. Instead, the Court produced seven separate opinions spanning 97 pages; only Justices Souter and Kennedy did not write a separate opinion.

Prof. Orin Kerr, blogging at The Volokh Conspiracy, promises a detailed post later, but there are interesting comments already to his quicky preliminary post here. Beldar's own summary (admittedly guilty of over-generalization, for your convenience and my amusement):


Chief Justice Roberts and Justice Alito stayed true to their promises during their confirmation hearings to be respectful of precedent — too much so, on this occasion and in my opinion (given my disdain for the jumbled mess of the Court's recent Eighth Amendment rulings on "cruel and unusual punishment). Chief Justice Roberts' opinion, joined only by Justices Kennedy and Alito, insists that Courts are ill-equipped to evaluate medical issues — then proceeds to do exactly that, mostly by cherry-picking supporting findings and evidence from the record developed in the Kentucky state trial court. Any time you have the U.S. Supreme Court citing and discussing the substance of articles from medical journals like Lancet, it's gone astray — no proper interpretation of the United States Constitution can be found in medical journals.

Chief Justice Roberts and Justice Alito are still writing as if they were circuit judges who are painfully conscious of their lack of authority to modify or overturn Supreme Court precedents — even when it's abundantly clear that those precedents fatally conflict with one another and/or ought never have been decided that way to begin with. Thus we have Chief Justice Roberts winding and twisting through various previous (and incompatible) formulations of the legal tests to be applied to a case like this one, pretending to harmonize them into something coherent. It's a very workmanlike — or it would be, for a circuit judge wearing judicial handcuffs — and it leaves us with a sort of matrix, a check-list for lower courts to work through. Indeed, Justice Alito wrote separately just to emphasize how tough it will be for any future petitioner to successfully navigate the checklist all the way through to a successful ruling finding any particular method of execution unconstitutional.

Basically, behind all their "heavy burden" and "substantial (not theoretical) risk" qualifiers — beyond the boxes in the check-list for lower court opinion-drafting — Chief Justice Roberts and Justices Alito and Kennedy are saying: When and if a bunch of other states have actually adopted some obviously better method of execution, then and only then can those of you in the other states come back to us with these arguments about which is relatively more humane. But for now, and until then, Kentucky's system and anything that looks pretty much like it can proceed.

That's pragmatic. It avoids a sweeping cleanup of Eighth Amendment law that's badly needed, but that would be criticized from the left as conservative-policied judicial activism. But in this area of con-law, as with the Court's last few decades of precedent on affirmative action and abortion rights, the maze of precedents that Chief Justice Roberts and Justices Alito and Kennedy are trying to navigate is built on a rotten foundation. Maybe in their judgments this case wasn't "the" case to give the whole Eighth Amendment structure a good push and bring it crashing down; but I think it was.


Justice Thomas, characteristically for him, would rather frankly recognize that the emperor has had no clothes for a long time. He boils this down to: Is Kentucky using this system out of a deliberate intent to torture people in addition to killing them? The answer to that is no; and that, says he, should be the end of the issue, as far as the Eighth Amendment and the federal Constitution are concerned. He's absolutely right.

Justice Scalia joins Justice Thomas' opinion, but also writes separately just to snag and throw back a few foul balls that Justice Stevens had popped deep into the outfield. Justice Stevens — no surprise — thinks we ought to re-think the death penalty in its entirety, but he can't quite come up with a good reason to pretend that this particular three-drug cocktail is unconstitutional, so he votes to affirm anyway.

Justice Breyer is troubled, very troubled ... and about many things, indeed about just about everything. But he ultimately agrees with six of his fellows that the petitioners just haven't shown "enough" to establish that some additional safeguards or some different protocol would make a big difference. (Basically, he's not quite willing to endure the justifiable mockery that Justice Ginsberg will get from her view, described next.)

And finally, like the diligent ACLU lawyer she once was, doggedly committed and well-accustomed to trying to make a liberal silk purse out of any sow's ear she's presented with, Justice Ginsburg (joined by Justice Souter) says the Eighth Amendment absolutely requires executioners to tickle the condemned murderer's eyelashes to make sure he's really deeply unconscious. And they also have to call his name. (Probably tenderly, but that's just my interpretation.) Because he might just be dozing. I somehow missed the eyelash-tickling/dozing discussions in the Federalist Papers, but Justice Ginsberg's analysis is all part and parcel of the liberal theory of jurisprudence which believes in a "living, breathing, and even occasionally flinching-when-tickled Constitution."


I didn't make up that stuff about the eyelash tickling. But that's exactly the kind of constitutional analysis, and the kind of SCOTUS Justices, that the current Democratic presidential candidates want. Clinton-42 appointed Justice Ginsberg, and either a Pres. Clinton-44 or a Pres. Obama would appoint clones of her. So I ask you again, my gentle readers of the conservative persuasion: Do you still think that, consistent with your love of country and Constitution, you can afford to sit out the 2008 general election because you're disappointed with the GOP's nomination of John McCain?


There will certainly be new death warrants signed in Texas within the next few days, and executions will resume by the end of May or June. No matter how many different opinions the SCOTUS produced, the state trial and appellate courts, and the federal district and circuit courts, can all readily tell that the current freeze on executions has been lifted by a 7-to-2 vote. Lawyers for capital defendants will try to squeeze through the tiny notch that the Roberts and Alito opinions left open, but it's not going to happen — not until some substantial number of state legislatures, or Congress, come up with a better execution protocol.

And to be clear: I hope those legislatures will try to do exactly that. Despite my snark, this is a serious topic that raises hard and important questions of public policy. But not hard questions of constitutional law. Let the legislative committees commission and then examine their experts' reports; let the executive agencies refine their procedures. All that should go forward. But a mostly well-functioning method of execution — as an instrument of public justice in those states that have chosen the death penalty — ought not be halted because it's short of perfect, or because there are arguably better methods and protocols "out there" yet to be discovered, defined, and implemented.


Final question: Is this choice of quotation (and its unacknowledged black comedic pun) an example of Chief Justice Robert's dry wit? Or am I just being hypersensitive, as a sometimes defense lawyer whose clients once included the local electric utility?

By 1915, 11 other States had followed suit, motivated by the "well-grounded belief that electrocution is less painful and more humane than hanging." Malloy v. South Carolina, 237 U.S. 180, 185 (1915).

"Well-grounded"? Well, yes.


UPDATE (Wed Apr 16 @ 7:10pm): More punditry, including thoughtful comments, at Patterico's from his guest-bloggers Justin Levine and DRJ, and from TChris at TalkLeft.

UPDATE (Wed Apr 16 @ 9:20pm): Lots of well-chosen blockquotes at Althouse will give you more flavor in the various Justices' own words, but alas, Prof. A mostly withholds her own reactions (at least until she responds to some comments). And Dodd at OTB has an admirably concise scorecard if you got lost in my comparatively long-winded analysis.

UPDATE (Thu Apr 17 @ 2:22pm): Prof. Kerr has now posted his promised thoughts on the case, which include an apt comeback to Justice Stevens' claim 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.

Posted by Beldar at 05:24 PM in 2008 Election, Law (2008), SCOTUS & federal courts | Permalink


Other weblog posts, if any, whose authors have linked to Beldar on Baze and sent a trackback ping are listed here:


(1) kishnevi made the following comment | Apr 16, 2008 7:24:18 PM | Permalink

Well grounded is part of the quote from Malloy, isn't it? So the dry wit belongs to whomever wrote the Malloy opinion. I don't have a copy handy, so I'll give the credit to Holmes, if you don't mind.

To me, this is all over the place. One concurrence is really a dissent from everything (Stevens); one concurrence is really a dissent (Thomas-Scalia); one concurrence agrees more with the dissent than the so-called plurality (Breyer); the dissent doesn't really dissent that much from the plurality (Ginsburg); and to complete our reading pleasure, an op-ed (Scalia). Six judges agreed that lethal injection is okay if done correctly, merely disagreeing about the precise definition of "correct"; two judges said lethal injection is always okay; and one judge wailed on that lethal injection shouldn't be okay because the death penalty shouldn't be okay.

(2) Beldar made the following comment | Apr 16, 2008 7:53:17 PM | Permalink

Malloy was written by Mr. Justice James C. McReynolds, a former Attorney General of the United States and later a thorn in FDR's side in striking down New Deal legislation. But choosing to include that particular quote in today's Baze decision — certainly without acknowledging the dark pun — just struck me as something consistent with the sly, sometimes naughty wit that I credit to Chief Justice Roberts, rightly or not.

(3) EW1(SG) made the following comment | Apr 16, 2008 8:11:52 PM | Permalink

Final question: Is this choice of quotation (and its unacknowledged black comedic pun) an example of Chief Justice Robert's dry wit?

Oh, I hope so! But "dry wit" isn't always well grounded...

(4) DRJ made the following comment | Apr 16, 2008 8:58:17 PM | Permalink

I hope you are right about Roberts and Alito being tentative. I'm afraid they may be leaving the back door open to limit the death penalty in the future.

(5) seePea made the following comment | Apr 16, 2008 11:24:08 PM | Permalink

I did not read all of Justice Scalia's opinion, but wow - does he put a whooping on Justice Stewart. How does this work? Does Justice Scalia get an advance copy of Justice Steven's opinion?

(6) nk made the following comment | Apr 16, 2008 11:43:20 PM | Permalink

Yes. As I recall from my reading of "The Brethren", draft opinions are circulated and Justices sign on to or dissent from them. The Chief Justice then gets to assign the writing of the opinion for the side he's on, whether majority or dissent, and the senior Associate Justice (Stevens) for the side he's on, also whether majority or dissent. That did not work out very well here because most of the prima donnas refused to sing in unison.

BTW: Am I the only one who thinks that Stevens behaved very principledly? That despite his obvious opposition to the death penalty he nonetheless deferred to precedent and to the legislatures of the several States?

(7) Beldar made the following comment | Apr 17, 2008 1:03:47 AM | Permalink

nk, your recollection is close but doesn't quite get the cigar. Actually, they have a conference immediately after oral argument, during which the Chief takes tentative votes from everyone. Based on them, he (if he's in the majority, which he would have been here because the vote is a thumbs up or down) assigns the drafting of a proposed majority opinion. The senior Justice in the minority (here, Souter, unless Stevens changed his vote after the conference) assigns someone to write the proposed dissent.

After the conference, the drafter of the proposed majority opinion always starts off by circulating his draft. Others may immediately join in that opinion, or they may immediately write separate concurring opinions; but typically, as a courtesy, they may wait to see the proposed dissent before doing anything.

So in the private internal circulation among chambers within the SCOTUS, seePea, this one probably went: Roberts; Ginsberg; Breyer and Stevens (both wanting to express negative views, but neither being willing to sign on, even just via their votes, with Ginsberg's eyelash tickling). Then Thomas; then Scalia (not being satisfied that Thomas had ignored, rather than smashing back, some of Stevens' points). And last (after both Stevens and Thomas had predicted more litigation would be spawned) came good lieutenant Alito (trying to leave the door slightly open while re-stressing that until someone comes up with a better protocol and it's widely adopted, 36 states and the federal government are still leaning against it to keep any further such attacks from squeezing through). Alito, the most recently elevated, was the one most troubled by the question "What are the lower federal courts and the state courts going to make out of this train-wreck?"

Thus, it's Alito's opinion that will clue in lower court judges to the fact that no stays are likely to be granted based on this issue in the near future, much less cert petitions granted, and that it's back to business as usual with the three-drug cocktail.

Occasionally Justices will add a footnote to respond to a later-written separate opinion. Roberts added one, for example, to specifically respond to Thomas' objections to his methodology. The printers don't typeset the opinion, and the ruling doesn't get announced and released, until everyone has had as much say and opportunity to revise and extend as he or she wants.

So yeah, Stevens could have fired back at Scalia. But having spent a couple of decades on the bench with Scalia already, Stevens was obviously content to let Scalia have the last word this time — showing an appropriate dignity and sense of self-confidence and proportion. These folks understand that at some point, they have to shut down their arguing with one another on one case and pick up with the next one.

I would agree, nk, that Stevens' concurrence was honorable and praise-worthy, but I don't think I'd pick the word "principled" to describe it. To the contrary, his vote, and Breyer's, are the further weight behind Alito's door-wedge: Lower courts will draw appropriate realpolitik conclusions from those votes, regardless of the rhetoric, and will recognize that the fat lady has definitely sung for now on this issue. ("If the anti-DP forces can't even get votes from Stevens and Breyer on this issue," those judges will reason, correctly, "we can consider the question resolved until further notice; i.e., SCOTUS won't be looking for a case in the near future to take all this up again.")

(8) DRJ made the following comment | Apr 17, 2008 1:41:15 AM | Permalink


I'm conflicted about praising Justice Stevens because he followed precedent and declined to legislate from the bench. That should be his default position, not something so infrequent that it's noticeable and makes us want to give him a hearty pat on the back.

(9) DRJ made the following comment | Apr 17, 2008 1:57:30 AM | Permalink

The Houston Chronicle published the responses from several Texas death penalty opponents. Like the Supreme Court Justices, they have very different opinions about this case.

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