When a liberal scholar who is generally skeptical about the death penalty says that the Supreme Court screwed the pooch in a decision limiting the death penalty and needs to reconsider the case, you know that the decision is completely screwed up.

And here is the money section of the column.

If a legislature were to exempt the killers of gay men or lesbians from capital punishment, even dedicated death penalty opponents should cry foul in the Constitution's name. So too, should they cry foul when the judiciary holds the torturers or violent rapists of young children to be constitutionally exempt from the death penalty imposed by a legislature judicially permitted to apply that penalty to cop killers and murderers for hire. In doing so, the court is imposing a dubious limit on the ability of a representative government to enforce its own, entirely plausible, sense of which crimes deserve the most severe punishment.

To be sure, holding the line at murder and treason gives the judiciary a bright line that blurs once one says a legislature may include other offenses in its catalogue of what it deems the most heinous of all crimes. But the same may be said of virtually any bright line. Placing ease of judicial administration above respect for democracy and for principles of equal justice under law is inexcusable.

of course, that is precisely the problem with much of the death penalty jurisprudence laid down by the Supreme Court in recent years. Everything that Tribe says in this case could equally well be applied to the decision a few terms back to exempt vicious murderers who were under the age of 18 from the death penalty. Ditto all the tinkering with the mechanism of death banning mandatory death sentences and imposing a convoluted scheme of aggravating/mitigating factors for juries to consider. After all, the nine robed justices are members of the Supreme COURT, not the Supreme LEGISLATURE -- and the naked activism found in Eighth Amendment jurisprudence related to capital punishment demonstrates what happens when the justices forget their proper role.

Posted by: Greg at 12:48 PM | Comments (3) | Add Comment
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Given the obvious flaws in the decision, pointed out by the press and bloggers around the web, this case is ripe for reconsideration.

Louisiana prosecutors asked the Supreme Court yesterday to revisit its recent decision outlawing the death penalty for people convicted of raping children.

The unusual request is based on the failure of anyone involved in the case -- lawyers on both sides as well as the justices -- to take account of a change in federal law in 2006 that authorizes the death penalty for members of the military convicted of child rape.

The court almost never grants such requests, but lawyers for Louisiana said their situation is different. The 5 to 4 decision, written by Justice Anthony Kennedy, said the absence of any recent executions for rape and the small number of states that allow such executions demonstrate "there is a national consensus against capital punishment for the crime of child rape."

When Congress in 1994 expanded the number of federal crimes that could get the death penalty, it did not include raping a child, Kennedy said.

Only after the decision was issued on June 25 did anyone point out that Congress changed that law and that President Bush signed an executive order in September 2007 that implemented the change. It was first discussed on a military law blog.

Now here's the problem -- it takes five justices to reconsider a ruling. Will any of the five justices in the majority vote to reconsider the case, given the glaring error upon which the decision was based? Does the majority decision even hold water any longer? And if it doesn't, isn't that an even more serious reason for the justices in the majority to refuse reconsideration, given the strong anti-death penalty bias of several of those in the majority?

Posted by: Greg at 06:05 AM | Comments (8) | Add Comment
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Personally, I like this sentence.

A man was sentenced to more than 4,000 years in prison Wednesday for sexually assaulting three teenage girls over two years.

A day after finding James Kevin Pope guilty, jurors sentenced him to 40 life prison terms — one for each sex assault conviction — and 20 years for each of the three sexual performance of a child convictions.

At the request of prosecutors, state District Judge Graham Quisenberry ordered Pope to serve the sentences consecutively, adding up to 4,060 years. He will be eligible for parole in the year 3209, according to the Parker County District Attorney's Office.

Given his new-found affection for those who abuse kids, I suspect that Justice Kennedy would consider this cruel and unusual punishment. Unfortunately, our black-robed overlords tell us that we can't execute disgusting creatures like Pope, so requiring him to serve time into the next millennium may be the best possible option.

Posted by: Greg at 02:06 AM | Comments (8) | Add Comment
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Looks like the editors of the New York Times have quit taking their medication.

After all, that is the only way that they could have reached this conclusion in their editorial.

In placing these rulings in the larger context of the court after two appointments by President Bush — Chief Justice John Roberts and Justice Samuel Alito, both dedicated members of the conservative movement — it is important to note that the Guantánamo decision was 5 to 4. Anthony Kennedy, the court’s swing justice, cast the deciding vote. In other cases, like the gun-control decision, the rulings might have been more sweeping and more damaging if the conservative bloc had not needed the moderate-conservative Justice Kennedy’s vote to form a majority. One more conservative appointment would shift the balance to the far-right bloc.

If that happens, the court can be expected to push even further in a dangerous direction. It would most likely begin stripping away civil liberties, like the habeas rights vindicated in the Guantánamo case. The constitutional protection of women’s reproductive rights could be eliminated. The court might well strike down laws that protect the environment, workers’ rights and the rights of racial and religious minorities.

The court was teetering on the brink in this term. Voters should keep that firmly in mind when they go to the polls in November.

What are the horrific decisions that the editorial cites? Oh, the ones you would expect -- the Heller decision (upholding the right to keep and bear arms), the recent death penalty case (which does not require that executions be pain free), lat term's Ledbetter decision (described as "baseless" -- which is true if one does not consider the actual language of the statute when interpreting it) and the upholding of the Indiana voter ID statute.

On the other hand, it cites the tenuous victories for endangered liberty found in granting unprecedented access to civilian courts to armed combatants captured in the field and the striking down of the death penalty for child rape as positive signs.

That the American public overwhelmingly supports the "conservative" decisions and was outraged by the "moderate" ones doesn't make a difference to the Times -- it is clear that they see the Four Horsemen of the Judicial Apocalypse (Scalia, Thomas, Roberts, and Alito) as dangerously out of step with the views of rightleft-thinking Americans and therefore fundamentally threatening to the liberties of Americans -- no matter how consistent with the text of the Constitution and the history of the entire Western legal tradition those conservative decisions really are.

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