June 27, 2006

Minimalism for me, but not for thee

by Milbarge

I agree with PG that the dissenters in Marsh could have picked a better vehicle for their digression about error in capital cases. A concurrence in House, perhaps? But I don't agree with her that "they would have been better off to dissent straightforwardly on this and every other case upholding execution by quoting Blackmun -- 'I no longer shall tinker with the machinery of death' -- and stopping with that."

First, maybe they aren't absolutists like Blackmun became. It's amazing how far things have shifted in just the last fifteen years or so. Despite conservatives' howling about how far left Souter and Ginsburg and Breyer are, they sure aren't automatically voting against every death sentence like Marshall and Brennan did. While the Marsh dissenters are certainly quite critical of the death penalty, I haven't seen any indication they want to throw away their tinker's tools, no matter how "straightforward" that might seem.

It seems like Scalia's always darkly suggesting that those four really want to chip away at the death penalty bit by bit. And, in practice, that may be what happens with cases like Atkins and Roper. But if you're Justice who believes that, in theory, the death penalty can constitutionally be applied in some circumstances, but want to be strict in oversight to ensure that it's only applied to the worst of the worst, wouldn't your work look a lot like Souter's or Stevens's or Ginsburg's or Breyer's? What is so nefarious about that? Souter's Marsh dissent talks a lot about the moral authority for the death penalty -- the idea that it's only morally justified if it's reliable and has lots of safeguards, etc. How could anyone with a conscience write or sign on to that if he or she really believed that the death penalty lacks any moral authority at all?

Souter's dissent is all about who should have the burden when death is on the line. Whether it's at a macro level (our standing with the rest of the civilized world) or the micro level (arguing to a particular jury), it's up to those who seek death to justify it. There's nothing in that dissent that's incompatible with the idea that it can be justified, and indeed, those four have voted to uphold scores of death sentences. I just don't think they're ready to put up their toolboxes yet.

Even assuming they really do, in their heart of hearts, believe the capital system is unfixable, who says they have to say so, like Brennan and Marshall, in every death case they see? Wasn't Chief Justice Roberts heralding the virtue of minimalism not too long ago? Isn't Scalia famous for saying the Court should decide as little as possible and call it a day? True, the reliability of Marsh's conviction was beyond the scope of the discrete Kansas law at issue on appeal. But viewed in light of my justification burden analysis above, it's not too far out there.

Scalia, however, so desperately wants that "Aha, I knew it!" moment, but why should the dissenters give it to him? After all, how many federal sentences did Scalia vote to uphold without mentioning his belief from Mistretta dissent that the Guidelines were unconstitutional? Didn't cases like Jones, Apprendi, and Blakely chip away bit by bit at the Guidelines? Nowhere in those cases does Scalia huff, "I no longer shall tinker with the machinery of the Guidelines."

Maybe someday the Court will take up the second go-round of Furman, the way Grutter was a follow-up to Bakke, and the Court will have to plainly and squarely face the primary Eighth Amendment question. But until then, why can't the Marsh dissenters be death penalty minimalists?

June 27, 2006 11:48 PM | TrackBack
Comments

How could anyone with a conscience write or sign on to that if he or she really believed that the death penalty lacks any moral authority at all?

Simple. You make shaded reference to the fact that you don't believe that a sufficient set of safeguards is possible, much less present in current law. Which is what Souter did:
While it is far too soon for any generalization about the soundness of capital sentencing across the country. . . .
Or in layspeak: "While I don't have five votes to talk about this yet. . . ." Perfectly intellectually consistent--or at least passes the laugh test--to say that one thinks that capital punishment is theoretically workable and yet impossible to make "just" in the real world.

As for your question:
Even assuming they really do, in their heart of hearts, believe the capital system is unfixable, who says they have to say so, like Brennan and Marshall, in every death case they see?

It would at least have the virtue of clarity and forthrightness, which would do a great deal to help the processes outside the Court. Greater obfuscation of views and agendas makes cynicism all the easier, and this in turn makes the kind of circus that nominations to the Court have become more likely.

Posted by: A. Rickey at June 28, 2006 03:13 AM

As for your second point, clarity, fair enough. Wouldn't it also be nice to see the other side write that they will automatically vote to uphold every death sentence? (that is, for the ones who do) The desire for clarity should apply to them as well, just as the virtue of minimalism is fine except when they want the dissenters to show their supposed true colors.

As for your first point, I don't think any of the four more liberal Justices can be characterized as those who "think[] that capital punishment is theoretically workable and yet impossible to make 'just' in the real world." They have found many, many death sentences to be "just" enough to affirm. They'd have to be soulless -- or as bad as that judge in "Judgment at Nuremburg" -- to approve so many death sentences if they really believed capital punishment is always wrong. I'm not willing to buy that on the evidence so far. Maybe they'll have a Blackmun conversion. But Blackmun didn't wait for five votes, either.

Posted by: Milbarge at June 28, 2006 03:39 AM

Wouldn't it also be nice to see the other side write that they will automatically vote to uphold every death sentence?

I strongly doubt that those folks exist. If, for instance, a judge in Texas were to announce that a prisoner were to receive a death by a thousand cuts, it's fairly certain that Scalia and his ilk would object: after all, even an originalist reading would consider that an "unusual" what cases?punishment (in that it wasn't provided for by statute). Given the current state of our politics, though, there's every reason to suspect that cases that Scalia isn't a person who will "automatically vote to uphold every death sentence," but rather those cases he would not uphold don't come before the Court. (One advantage of clear standards, of course, is that those cases should be rare, simply because cases of ambiguity in the lower courts should be less common.)

That's a far cry from theoretically accepting a death penalty but then finding that no system operated by mortal man could meet requirements of perfection.

They'd have to be soulless

No, merely strategic. If they came right out and started quoting Blackmun and openly voted to strike every sentence, it's quite likely they'd never get their fifth vote. At that point, it would be quite legitimate to ask prospective justices which majority they would join. The answer by a nominee would be filibuster fodder for Republicans.

I suppose one could view justices as platonic wise men and women disconnected from the low consideration of the effect their decisions will have on future elections and their future colleagues, but there's no good reason to do so.

Incidentally, when it comes to Ginsburg and Souter, what cases are you talking about?

Posted by: A. Rickey at June 28, 2006 09:00 AM

I have a different view of Scalia on two points.
1) At least publicly, he favors giving the lower courts guidance, not necessarily deciding as little as possible.
2) He didn't seem to want to overturn the Guidelines, or even tinker with them at the level of second guessing whether a particular aspect of the crime should increase one's sentence by a year or by two years. Rather, he asserted that anything that contributed to a sentence needed to be decided by a jury, not a judge. But once the jury decided beyond a reasonable doubt that the kidnapping was peculiarly cruel, the guidelines could kick in to bump up the sentence. Which is why I see Marsh as a correct decision based on the 6th Amendment precedents as well as the 8th and 14th -- the jury decides about the mitigating and aggravating factors.

Remember that Blackmun himself originally believed that the death penalty could be a just punishment; he did not think that it was impossible for a criminal to deserve death. He became unable to approve death sentences after the evidence of the problems in the system -- inadequate representation, racial bias regarding defendants and victims, bad behavior by police and prosecutors, etc. -- convinced him that as operated by fallible human beings, the machinery of death was no longer one that his tinkering could fix. "I believe that the death penalty, as currently administered, is unconstitutional." Callins v. Collins.

This dissent -- and that in Drew v. Scott, Nethery v. Texas, Campbell v. Wood, Johnson v. Texas, Russell v. Collins, and many more -- was joined by neither Souter nor Ginsburg. For a better conception of the spread of opinion, see Tuilaepa v. Cal., in which a death sentence was upheld with concurrences by Scalia, Souter, Stevens + Ginsburg and a dissent by Blackmun. And Scalia will join opinions that have a consequence of slowing the march to the gas chamber, if they implicate non-8th Amendment rights; see Stansbury v. California.

Posted by: PG at June 28, 2006 11:44 AM
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