You mean the test accompanying notes 31 and 66? I think there is a fair argument that this is the correct test under the Eighth Amendment. That argument is made in my Baze brief. We won’t get the definitive word until Baze is decided, of course.

http://www.cjlf.org/briefs/Baze.pdf

You seem to suggest that the Chief Justice erred in assuming that by adopting the Eighth Amendment verbatim the original intent in Nebraska was to adopt federal standards for cruel and unusual punishment. Your argument is very clearly predicated on a post-incorporation view of constitutional rights. In other words, that state citizens have both Eighth Amendment rights via the Due Process Clause of the Fourteenth Amendment, and state constitutional rights under parallel provisions.

But the Nebraska Constitution was adopted BEFORE the Due Process Clause of the Fourteenth Amendment was used to apply the Eighth Amendment to the states. With this in mind, there is quite a bit of merit to the assumption–inherent in the Chief Justice’s opinion–that by mirroring the Eighth Amendment, Nebraska wanted to extend the same protection to its own citizens. In today’s post-incorporation world it is tempting to think of state constitutions as expansive rather than duplicative. But that view ignores what was clearly an way of dealing with a pre-incorporation world.

As for your comment that the Chief Justice did not explain how his standard would be more clear, I note that he conceded that the standard was not perfect, just better than the one the majority offered.

It isn’t entirely clear that the decision is cert-proof. The chief justice makes a good argument in part I-C of his dissent that the decision didn’t really rest on an independent an adequate state ground under Long . I need not rehash his case here, since the argument found there is very clear.
Nonetheless, assuming that Baze ends up leaving a lot of room for states to continue lethal injections, I doubt the court will grant cert here, given Nebraska’s already isolated status in reatining only the electric chair as a method of execution, the fact that the court majority officialy rested its decision only in the state constitution, and the fact that Nebraska’s legislature already was seriously considering a proposal to eliminate the death penalty which may be more likely to come about now that the legislature is forced to take action in any event with the state left with no lawful method of execution.

Much of both the majority and dissent’s opinion is open to critique. I think that the dissent did a good job pointing out the inherent contradiction of maintaining that the cruel and unusual punishment clause of the Nebraska constitution guarantees no more than the federal constitution, maintaining (erroneously) that the court has no power to rule that electrocution violates the federal constitution, and to complete the syllogism, concluding that the electrocution violates the state constitution!

But the dissent is no more immune to incoherencies than the majority.

First of all, the dissent steadfastly maintains that “It should be indisputable that either the Nebraska Constitution is a mirror of the Eighth Amendment, in which case U.S. Supreme Court precedent is conclusive, or that the Nebraska Constitution requires more than the Eighth Amendment, in which case this court would not be bound by U.S. Supreme Court case law.” (emphasis added).

Indeed. Presumably this way of thinking is what underlies the previous Nebraska cases insisting that the state’s cruel and unusual punishment clause guarantees no more than the federal constitution’s. But the argument that the dissent says should be “indisputable” is fundamentally flawed. Assuming arguendo that the people ratifying the state constitutional provision understood it to guarantee the same as the federal provision, it is more than plausible to conceive that the people expected their own supreme court to decide the matter of what was historically meant by the term as understood by the federal framers rather than to cede jurisdiction to decide that question to some other body, much less a federal court sitting in Washington. There is no evidence that members of SCOTUS are any more qualified than members of Nebraska’s supreme court to determine the meaning of the federal provision. While Nebraska must bow to a contrary SCOTUS understanding of the federal constitution under the supremacy clause, it certainly may disagree with it and say “Look. We know you folks at SCOTUS botched your interpetation of the eighth amendment. While we must follow it when deciding a federal question, we’re going to substitute our superior legal/historical judgement for purposes of interpreting our state’s cruel and unusual punishment provision, which tracks the real meaning of the eighth amnedment, not the false one conjured up in Washington.”

Furthermore, the dissent suffers from its own contradiction. The Chief Justice chides the majority for not being consistent with precedent that requires that it intepret the state’s cruel and unusual punishment provision in light of federal precedent, but then spends Part III of his opinion attacking the majority for using the “evolving standards of decency” test, more or less prferring Justice Scalia’s approach in his Roper dissent, and concludes by suggesting the abandonment of the test for purposes of intpreting the state constitution while maintaining it for the federal as long as it is forced to do so by SCOTUS doctrine. But he doesn’t explain how his test would do any less to unsettle Nebraska law more than that of the majority’s, as the test he advocates in dissent similarly appears to abandon longstanding Nebraska precedent requiring intepretation of the state cruel and unusual punishment provision to track the federal.

Well, the state court was wrong. The rule that an inferior court cannot decide that a Supreme Court precedent is no longer because it was undermined by subsequent precedents does not disallow a court from deciding that contemporary standards of decency have changed for eighth amendment purposes. SCOTUS judges are not prophets, and no precedent on what contemporary standards of decency are at one time can be fairly read to encompass all future times. Although Justice Scalia’s dissent in Roper seems to equate the two (see part IV of the dissent), that dissent was joied only by two other justices, and at the very least, the majority of five seems to have silently acquiesed to the Missouri Supreme Court’s view that an 8th amendment precedent may be deemed by a state court at a later date to be no longer applicable.