Of all the Supreme Court decisions in the closing week, the one that upset me most was the 5-4 decision that declares that death by slow torture is not cruel and unusual punishment. The dissents by Ginsburg and Breyer were the refreshing part of the decision. Using this decision as a backdrop, consider the two different Courts that may exist ten years from now.
Justice Harry Blackmun got there in 1994, after twenty-four years on the bench. For Justice John Paul Stevens, it took twenty-three years. Today, after twenty-two and twenty-one years, respectively, Justices Stephen Breyer and Ruth Bader Ginsburg, too, now recognize there is no constitutionally sufficient way to implement the death penalty.
The pair were among the dissenters from a 5-4 decision of the court this morning which held that Oklahoma death row defendants failed to prove that there was a less painful method of death available to them, and they had no right to a painless death. "Because it is settled that capital punishment is constitutional," wrote Justice Alito for the Court, “it necessarily follows that there must be a constitutional means of carrying it out. And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain."
To Justices Breyer and Ginsburg, however, enough’s enough:
In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems. Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.
I shall describe each of these considerations, emphasizing changes that have occurred during the past four decades. For it is those changes, taken together with my own 20 years of experience on this Court, that lead me to believe that the death penalty, in and of itself, now likely constitutes a legally prohibited “cruel and unusual punishmen[t].” U. S. Const., Amdt. 8.
If you thought the next presidential election was crucial already, it just got a whole lot bigger. Four Justices (Kennedy, Scalia, Ginsburg, and Breyer) are between 77 and 82 years old. Elections matter… [emphasis original]
Inserted from <Daily Kos>
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Now, consider a Court in which Sturmbannführer Scalia, and Kennedy, along with Ginsburg and Breyer were replaced with Justices just like Ginsburg and Breyer. Such a Court would make Constitutional decisions. The Fascist Five Injustices of SCROTUS, Republican Constitutional VD, would have become the Toddler Tantrum Three. America would be on the mend.
On the other hand, consider a Court in which Ginsburg and Breyer, along with Scalia and Kennedy were replaced with Injustices just like Sturmbannführer Scalia, Teabag Thomas, and Scalito. Such a Court would establish permanent, totalitarian Republican Reich. The Fascist Five Injustices of SCROTUS would become the Sedition Seven. America would not survive.
In this Tale of Two Courts, which Court do you want? What are you willing to do to get it?
19 Responses to “A Tale of Two Courts”
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Watching all the reactions to all the decisions, I had predicted the Court would support marriage equality as a sop to progressives after (and along with) some of their terribly un-progressive decisions. Now I am wondering whether it was less a sop to Progressives and more of a bone of contention the GOP could use to build support among their horrendously bigoted base, most of whom cannot accept POC as human, and LGBT as other than abominations. Yes, they are crazy and dangerous. They also VOTE in huge numbers. Thank you for asking these questions. We can hardly take them seriously enough.
I don't want to envision your second "what if". We would no longer have a Constitution.
I agree. Not only that, it would not be a democracy but rather a facist state . . . dictatorial.
The majority opinion was written by Sam Alito. Reading an article in "The New York Times" I had NO idea it was the inmates' obligation, but I think I can help Sam out:
http://www.nytimes.com/2015/06/30/us/supreme-court-execution-drug.html?smid=pl-share&_r=0
Well, Sam, since you say it's our obligation "to identify an available and preferable method of execution" – all of us inmates got together to vote, and we're going with …
"Death by Old Age!"
You're welcome.
Preferable method: "Death by Old Age!". Excellent commentary idea.
"Death by old age" Priceless, thanks, Nameless.
You've done it again my man! Perfectly stated! "Death by old age." . . . and it should be noted thatgetting older is not for sissies!
How heartless can you get, blaming the inmates for this ruling by not coming up with the way they'd liked to be murdered by the state? "Death by old age" is the only possible answer, splendid, Nameless!
Among my guys, I have more than one friend, who used to be on death row. They have expressed thne same sentiment.
I'll repeat a quote I posted on a different thread since it is apt here:
Justice Sotomayor said it well:
“The Court today … convert[ed] this [the 8th Amendment prohibition against cruel and unusual punishment] categorical prohibition into “a conditional one”. A method of execution that is intolerably painful… will be unconstitutional if, and only if, there is a known and available alternative method of execution.”
Although I oppose all forms of execution, I would think that a firing squad, or the Chinese method, a bullet in the back of the head, would be a far less cruel method than the death by slow torture SCROTUS approved.
On C2's face page, I wrote what scares me the most was the USA Supreme Court in 2007
when I first became a member. What scares me is that it would be taken over by the GOP right
wing. Our country cannot afford it to happen at all!
SoINeedAName in PP above says ""Death by Old Age!". I agree that this would be the most preferable method.
I would prefer your first choice, a court with justices like Ginsburg and Breyer. What I would do to get it is what I am doing now, voicing my protests at every opportunity, sharing posts like this on Facebook and email to try and educate others to something beyond Fox news. I am totally opposed to the death penalty.
Good for you! Kudos!!
I'm going to be tongue in cheek . . . why don't we let the dissenters experience the death penalty and then write their opinion with that experience forming the body of evidence for their opinion?
Works for me.
A Rep[ublican might say just that.
How strange the American mind works, even the legal one, or especially the legal one, if you will. Somewhere in the past capital punishment was deemed constitutional by the Supreme Court. From a legal point of view, that is probably correct and that is the only thing any Supreme Court can, or rather should, rule on, The reasoning of this particular SCOTUS on the implementation of the death sentence is dubious, however. If capital punishment is constitutional, the means by which it is implemented isn't automatically also constitutional. Rather, if an execution can't be guaranteed to be pain free – which it never can – it will always be illegal because it is cruel and unusual punishment and therefore unconstitutional, which should render capital punishment unconstitutional. By rejecting this alternative, five of the nine judges have let their personal morality interfere with judicial reasoning and opened the door to even more cruel executions.
This wouldn't have happened if the death penalty would have been taken out of its purely judicial context into the social and moral context of a changing nation, just as conservative Nebraska has recently joined 18 states which have abolished the death penalty. A SCOTUS that doesn't heed signals like that – perhaps because it doesn't want to be responsible for the start of a debate on abolishing capital punishment in election times – isn't doing it's job by allowing the boundaries of cruel and unusual punishment to erode while taking the moral – not legal – highroad itself.
And that brings us to your question, TomCat. A SCOTUS that doesn't limit itself to purely legal matters, to safeguarding the correct implementation of the law, and suggesting adaption or even replacement of failing laws, but is led by personal beliefs, ego and corporate influence to rule on the basis of personal (a)morality and emotion, is disastrous for a country. Any country. This SCOTUS is already doing that to a large extend, if more more Republican justices are appointed, SCOTUS will become either a joke or one of the reasons for revolt. As there is no short term answer to the problem – I think judges and justices should have no political or corporate ties whatsoever – the only way to prevent America from becoming a true oligarchy is to vote, vote and vote anything but Republican. I know, you'll say a vote for a third party is a vote for the GOP, TomCat, but that's a whole new discussion.
Lona, thios is not the AZmerican legal mind. It's the Republicans intentonally twisting the law ti serve their own ends.
Reading that last paragraph was chilling, indeed! If that don’t get ya out and registering everybody you know, nothing will!