Posted by
Ed Lilly on Wednesday, April 16, 2008 8:59:41 PM
This story from Breitbart.com on the Supreme Court’s decision upholding the viability of a three-drug system of lethal injection in administering the death penalty is a bit confusing. It starts out as follows:
U.S. executions are all but sure to resume soon after a nationwide halt, cleared Wednesday by a splintered Supreme Court that approved the most widely used method of lethal injection.
....
Voting 7-2, the conservative [sic] court led by Chief Justice John Roberts rebuffed the latest assault on capital punishment, this time by foes focusing on methods rather than on the legality of the death penalty itself. Justice John Paul Stevens voted with the majority on the question of lethal injections but said for the first time that he now believes the death penalty is unconstitutional.
First, 7-2 doesn’t exactly sound very splintered to me. Reading further into the second paragraph above, however, I start getting confused. I expected Justice Stevens to be one of the 2 who are in the minority of a 7-2 vote. Clearly he was not.
But somehow, Justice Stevens managed to perform the kind of legal jujitsu that only a hyper-liberal Supreme Court Justice could hope to achieve or understand, voting that the method of execution at issue is constitutional, but the death penalty itself is somehow unconstitutional. I’m sure that makes sense to someone, and maybe even to Stevens, but it leaves me completely bewildered. Especially in light of the reference in the story to the fact that the legality of the death penalty itself was not at issue in the case.
So Stevens answered a question that wasn’t asked, in a way that would seem to preclude the approval of lethal injections, and then goes on record in the only vote that really counts in the matter with the majority of votes saying lethal injections are just fine.
As the story explicitly notes further on:
The case decided Wednesday was not about the constitutionality of the death penalty generally or even lethal injection. Instead, two Kentucky death row inmates contended that their executions could be carried out more humanely, with less risk of pain.
I hope those two Kentucky death row inmates sleep well at night knowing that Justice Stevens thinks their sentence is unconstitutional, but if the state wants to inject them with a three drug cocktail that results in their death, that is perfectly constitutional.
The story goes on to bring in some essentially irrelevant information on the current visit by the Pope:
Wednesday's decision was announced with Pope Benedict XVI, a prominent death penalty critic, in Washington and the court's five Catholic justices—Roberts, Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas—headed to the White House for a dinner in his honor. All five supported the lethal injection procedures.
I wasn’t aware that Supreme Court decisions and state visits were in any way related, but apparently I was wrong. In any event, I suppose we should be grateful for the example set by President Kennedy when he promised in 1960 that he would not be a papal puppet in his role as President. Clearly, the Catholic Justices named were able to do exactly as they promised in their Senate confirmation hearings and decide the case before them on the applicable rule of law, and not on the preferences of whoever may occupy the Vatican at the time the case comes before them.
If I were a news editor, I think I would shake things up bit and put the last two paragraphs of this story on the Supreme Court’s decision right up front, and have the reporter expand it to provide a little more information on the actual victims in these cases. From the end of the story:
Wednesday's case involved two inmates, Ralph Baze and Thomas Clyde Bowling Jr., who were convicted of murder and sentenced to death by juries in Kentucky. Baze killed a sheriff and a deputy who were attempting to arrest him. Bowling shot and killed a couple and wounded their 2-year-old son outside their dry-cleaning business.
Fayette County Commonwealth Attorney Ray Larson, who prosecuted Bowling in 1992, said after the ruling: "Fact of the matter is, this lethal injection process is about as far from cruel and unusual as anything you can imagine. This is just another one of those things the anti-death penalty gang is throwing against the wall to see what sticks."
Mr. Larson’s no-nonsense, common sense approach most likely means he will never be appointed to sit on the Supreme Court. More’s the pity.
Finally, I saw the excerpt below from Justice Scalia’s opinion in a post by Jonah Goldberg at The Corner at National Review Online, and can not pass up the opportunity to include it here. Scalia’s opinions were often the highlights of our law school readings, as he mercilessly skewered the (in our view) shaky logic and ridiculous conclusions of the other Justices, typically Justices Stevens and Blackmun. Enjoy:
But actually none of this really matters. As JUSTICE
STEVENS explains, " 'objective evidence, though of great
importance, [does] not wholly determine the controversy,
for the Constitution contemplates that in the end our own
judgment will be brought to bear on the question of the
acceptability of the death penalty under the Eighth
Amendment.' " Ante, at 14 (quoting Atkins v. Virginia, 536
U. S. 304, 312 (2002); emphasis added; some internal
quotation marks omitted). "I have relied on my own experience
in reaching the conclusion that the imposition of
the death penalty" is unconstitutional. Ante, at 17 (emphasis
added).
Purer expression cannot be found of the principle of rule
by judicial fiat. In the face of JUSTICE STEVENS' experience,
the experience of all others is, it appears, of little
consequence. The experience of the state legislatures and
the Congress—who retain the death penalty as a form of
punishment—is dismissed as "the product of habit and
inattention rather than an acceptable deliberative process."
Ante, at 8. The experience of social scientists whose
studies indicate that the death penalty deters crime is
relegated to a footnote. Ante, at 10, n. 13. The experience
of fellow citizens who support the death penalty is described,
with only the most thinly veiled condemnation, as
stemming from a "thirst for vengeance." Ante, at 11. It is
JUSTICE STEVENS' experience that reigns over all.