The newspapers this morning are full of Marsh, as are the blogs, many of whom suggest that Scalia’s sources of data are as sketchy as Souter’s. (Live by the blogs, die by the blogs!)
I really did want to talk about judicial supremacy, Kennedy, Hamdan, and campaign finance today. But I guess watching the justices setting one another’s hair on fire is pretty big news. Especially on this new allegedly collegial, minimalist court.
So, one last little word on executions and equipoise: You are right, Walter, that David Souter’s dissent raises a red herring that is also, I suppose, a red flag. (I guess that makes for a smelly red flag.)
You and Thomas and Scalia are right to say, “Hey wait a minute, that DNA stuff is totally irrelevant.” And you are right (Thomas and Scalia don’t say this) to point out that if we are going to kill people, we should try to kill only the very worst and not just the very unlucky. But if I may rise to Souter’s defense here, I don’t think his dissent was all that outrageous, or his comments about DNA exonerations a non sequitur. No, this case has nothing to do with factual innocence, but it has a lot to do with a big cultural swing away from capital punishment—a swing we saw in last week’s two death-penalty cases, which tacitly acknowledged that death is different. Souter is saying that as the American public and members of the court discover how deeply flawed the capital punishment machine really is, the inclination to just go on killing people, mistakes and all, is slightly nauseating. He’s saying that it’s immoral to blow off the mounting evidence that mistakes are made with platitudes like, “No system is perfect.” If the system is broken, smugly funneling yet more people into it is sick.
The fact that we execute people who are not fit candidates for the death penalty (even if they are still really, really bad) has everything to do with this decision: a decision that allows jurors in the state of Kansas to send a man to his death with a shrug, as opposed to a nod. Souter says that for a capital sentencing scheme to be constitutional, it should be reserved for “the worst of the worst,” and you’d agree. So, then why are his arguments about Kansas’ system—in which the state places “a thumb on death’s side of the scale” so wildly out of place?
Certainly it would have been a tighter dissent without the DNA analysis. But then Anthony Kennedy’s dissent in Stenberg v. Carhart would have been a lot tighter without the railing against a procedure in which the fetus “bleeds to death as it is torn from limb from limb.” Souter is as offended by the moral “hollowness”—his words—of condoning state systems that maximize death sentences as Kennedy was offended by dilation and extractions. One man’s legal irrelevance is another’s raw nerve, I guess. Perhaps the enduring point is that it’s absurd to pretend that justices can decouple their moral views from their legal ones.
You gave a speech last week at the American Constitution Society’s annual conference in Washington, D.C., that reminded me what it is about the law, and lawyering, that can still transcend partisan shrieking. It would have been easy for you to just tee off against Ann Coulter or some such; the crowd was certainly primed for it. But you talked about Abraham Lincoln and the lawyerliness at the heart of his presidency. You ended with the words: “At 50 he was a failure, at 56 he was dead. But in between he changed the world.”
What was the impulse that animated that speech, Walter? Because there is something so un-lawyerly about all of the shrieking in Marsh. In these opinions the justices act like fussy messy humans first, and lawyers second. Is there a place for that?
All right. So, what else do we have here? Huge decision to hear an appeal next term on carbon dioxide emissions and a lingering question about Anthony Kennedy’s environmental views in the wake of last week’s Clean Water Act case, Rapanos v. United States.
And I know you have something to say about campaign-finance reform: Yesterday’s opinions seem to presage the redistricting opinions we may be reading this time tomorrow, when the court could hand down the Texas gerrymandering case. Everybody agrees the drawing of lines is a problem; no one agrees on how to fix it. Every opinion seems fundamentally correct; it’s not clear the courts can do anything, anyhow, and everyone seems to go home sad. Points for Anthony Kennedy’s concurrence in the Vermont cases, however: He points out that the court must, going forward, justify “why $200 is too restrictive a limit, while $1,500 is not.” As he observes, “Our own experience gives us little basis to make these judgments.” Is Kennedy putting his finger on the scale for judicial restraint?
There is an emerging tension between the cases in which the Roberts court decides only what it needs to decide, as it did in yesterday’s Randall v. Sorrell, or the New Hampshire parental-notification case, and those in which it seems to decide a whole lot more.
And finally, any predictions on the upcoming Hamdan decision—the big case testing the Bush administration’s military tribunals? The probability for messiness is fairly high, given that only eight justices will vote. And what do you make of all the weird signals Bush is suddenly sending that he thinks he’s going to lose? Was Hamdan—and Guantanamo—a great big five-year waste of time?
More later,
Dahlia
