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Still No Hidalgo v. Arizona

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The press was all aflutter when Neal Katyal filed a certiorari petition in Hidalgo v. Arizona asking, among other things, that the Supreme Court reconsider once again whether the death penalty is unconstitutional entirely.  The high court has, of course, already thoroughly considered and decided that question in the historic case of Gregg v. Georgia (1976). 

As of last Friday, Hidalgo had been on the Court's conference list eight times, and today we still have no decision on whether to take it.  It doesn't take nine conferences to issue a one-liner "writ of certiorari is granted."  Most likely, the Court has already decided to turn the case down, and Justice Breyer is penning yet another magnum opus of a dissent built on a factual foundation that assumes the truth of all the discredited or disputed assertions of the anti-death-penalty movement.  See, e.g., this guest post by Harry Weller.

But then again, nothing is certain when predicting what SCOTUS will do.

2 Comments


Dear Mr.Scheidegger;

For those of us who are less familiar with Justice Breyer's assertions in regard to the death penalty:

You state that Justice Breyer is "penning yet another magnum opus of a dissent built on a factual foundation that assumes the truth of all the discredited or disputed assertions of the anti-death-penalty movement."

Would you please describe the disputed assertions relied upon by Justice Breyer. I don't know why the Justice would pen an argument that relies upon discredited foundational evidence. Your judgment may well be accurate, but without a little more information, it is hard to know.

Pal Rossman, M.D

Dr. Rossman,

Thanks for the reminder. I do need to remember that not all of our readers are "regulars." I have edited the post to link back to a post commenting on the Glossip dissent, noting one of the instances in which Justice Breyer simply assumed that a hotly disputed study was an established fact.

A full refutation remains on the "to do" list.

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