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Evolving Standards of Denial

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Kent noted SCOTUSblog's end-of-Term symposium on the death penalty.  I was briefly invited to write a piece for it, then dis-invited within a matter of hours.  This may have been because the hosts wanted to avoid a surplusage of death penalty backers (I would have been the third; there are five abolitionists writing).

The symposium features what has become the usual abolitionist mix of (1) grasping at straws of hope and (2) down-in-the-mouth despair, but I admire the authors' ability to get so much written down so quickly.

The concluding paragraph of one of the entries drew my attention.  It is this:

It was around this time two years ago that Breyer made huge headlines when he wrote a dissent, joined by Justice Ruth Bader Ginsburg, calling for a wholesale re-examination of the constitutionality of the death penalty: "[R]ather than try to patch up the death penalty's legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution." That basic question may not be answered any time soon, but the lesson of this term is that there may be room for some additional patching of its wounds, at least for the time being.

I think there's a problem here.
The problem is that the the Court has already answered the question whether the death penalty is constitutional.  That the answer is not the one abolitionism prefers does not make it any less the answer.

Two years ago tomorrow, the Court held in Glossip v. Gross, 576 U.S. ___ (2015):

Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, "[i]t necessarily follows that there must be a [constitutional] means of carrying it out." 

See Gregg v. Georgia, 428 U. S. 153 (1976); Baze v. Rees, 553 U. S. 35, 61 (2008) (plurality opinion). 

The prospect that the Court is going to change this answer in the foreseeable future is slim to none.  Abolitionism cannot credibly assert  --  in a SCOTUSblog forum, no less  --  that the question is open.

Law is made in this country by either political or judicial processes.  Having of late been clobbered in both (as Kent's contribution points out), abolitionism could use to be honest about its failures.  

7 Comments

There is a pretty simple way to fix most of the problems in one shot. Something like this:

Justice Harlan's opinion for the Court in McGautha v. California, 402 U.S. 183 (1971) got it right the first time. All of the cases from Furman v. Georgia, 408 U.S. 238 (1972) forward holding that the Eighth Amendment imposes procedural requirements on the imposition of capital punishment were wrongly decided and are hereby overruled.

No disagreement in these parts.

SCOTUSblog's unconditionally inviting you and then yanking the invitation when previously issued invitations were accepted was indeed rude. However, I'm told the final tally of supporters and opponents will be 4-4, so it's not an imbalance issue.

Someone from SCOTUSblog asked me for names on the "pro" side, Bill, and I gave them yours and a few others. I was informed a "pro" person pulled out and wanted a last-minute replacement. I wonder if that person delivered ultimately --- though even so they should have allowed you to contribute after having asked. Gosh forbid the possibility that someone might run a symposium with more persons supporting the DP than opposing it!

Thanks Doug, and thanks for the referral.

Being SCOTUSblog's spare tire might not be the most flattering thing, but I don't mind it that much. I've found out over the years that media producers (and SCOTUSblog is a form of media) have a tough job. Guests agree to appear then don't show, or they'll tell you they're giving you X and wind up giving you Y. This is all on a tight deadline. Interest in your subject has a half-life of about ten minutes, so it's kind of a grab-what-you-can business.

It might be the case that pro-DP people get shuffled around more, but that's not my working assumption. On the whole, the networks and the papers have been courteous and businesslike with me. Recently, the WaPo pretty badly brutalized a piece I wrote supporting Jeff Sessions' charging policies, but at least they still printed it.

I'm grateful for whatever voice I'm given, and especially grateful to Kent and CJLF for giving me a platform as recognized for its excellence as this one.

Again, I appreciate your referral. One advantage of being an adjunct professor is that your availability tends to be pretty good!

Speaking of X and Y, McAllister's post, the last in the series, was not what I would have expected from him. Perhaps it wasn't what the SCOTUSblog folks expected either.

Like many clever abolitionists, the people who run the quite liberal (just read it) SCOTUSblog know what they're doing.

They can technically claim to have been "balanced," but that's not really what happened. The actual lineup was four unabashed abolitionists, two tepid-if-at-all retentionists, and two unabashed retentionists.

This is how the other side operates. Like other components of criminal defense, the basic inventory runs from skewing to diversion to confusion to misleading to outright lying. When none of that works, there's the old fallback: We are People with Refined Standards of Enlightenment; you are People with Big Hair.

We went to Columbia and Berkeley; you went to Podunk, so recognize your inferiority and get lost.

I have been hearing this my entire life.

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