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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