Academic Round-Up
This week, I am back to posting primarily legal scholarship about the Supreme Court and the cases decided this past Term. As I think I have noted before, I sometimes post papers with which I disagree because I think they will be of interest to our readership. I rarely note disagreement in the academic round-up (often because of space limitations and the format), but do note such disagreement in longer posts that I write about individual pieces or cases.
Michael Dorf (Columbia Law School) has a new essay posted on the Harvard Law and Policy website, see here, which asks the following question: “Does Federal Executive Branch Experience Explain Why Some Republican Justices ‘Evolve’ and Others Don’t?” The piece is quite short, but enlightening. As Dorf points out, all of the Justices appointed by Republicans without executive branch experience in recent years have turned out to be more liberal than those with such experience. In the former category are Justices Blackmun, Powell, Stevens, O’Connor, Kennedy and Souter. In the latter category are Chief Justices Burger, Rehnquist, and Roberts, as well as Justices Scalia, Thomas and Alito. I wonder whether the hypothesis holds true for the circuit and district courts as well? My hypothesis is that it would not, but it is an area that warrants further empirical examination.
Virginia Law Review’s In Brief has posted a new case comment by Justin Weinstein-Tull (Yale Law School student) that examines the Court’s recent decision in Gonzales v. Carhart, see here. Although Weinstein-Tull laments the Court’s result in Gonzales, he notes that in potentially expanding the scope of Congressional power, the Court’s result “is promising for future civil rights legislation.”
Scott Baker (University of North Carolina Law School) has posted a new article on SSRN entitled “Should We Pay Federal Circuit Judges More?,” see here. As Baker notes, Chief Justice Roberts has stated that the most difficult issue facing the federal judiciary is low judicial salaries. The author finds that low judicial salaries do not impact votes in controversial cases, the speed of case disposition, or citation practices to outside circuit authority. The article does find, however, that lower judicial salaries do lead to slightly fewer dissents and slightly stronger opinions, as measured by out of circuit citations. The author essentially concludes that judicial pay is largely irrelevant to the functioning of the circuit courts. I query whether the same would be true for Supreme Court Justices?
Dorf concedes “we are dealing with small numbers,” yet he asserts, “federal executive branch experience correlate[s] strongly with steadfast conservatism.”
How strongly? What is the coefficient of correlation? Is it statistically significant? He doesn’t say.
We need to be wary of assertions made on limited sample sizes. Two variables with no logical connection are sometimes correlated (e.g., the Super Bowl and the stock market). Sometimes it is just random, and statistics can tell us the probability that it is. The article would be stronger if it included such an analysis.
Comment by Kent Scheidegger — July 31, 2007 @ 6:13 pm
I agree Ken. In addition I am always bothered by the notion that there is a animal called a political conservative that is normatively valid. In fact, assuming that Roberts is still alive, I can’t help be think that he may be issuing rulings 30 years from now that will be driving the “conservatives” of that generation up the wall. Holmes always considered himself a conservative yet today he is lionized by some as a liberal. He didn’t change but the times did.
Comment by Daniel Thomas — July 31, 2007 @ 7:06 pm
It’s rather silly for Dorf to discuss alito and roberts as supporting his hypothesis, since the hypothesis is about conservative justices ‘evolving over time, and as Daniel notes, they haven’t had any time to ‘evolve’!
Beyond that, the article seems to be a pro-liberal polemic. It even ends with an admonishment to liberal senators and watch-dog groups to use his findings to vet nominees.
And Dorf asserts that Republican presidents have found a “winning formula” for packing the court with conservatives, despite the fact that Bush I’s batting average was 1 (conservative) out of 2 (confirmed justices), Reagan was arguably 1 for 3, and Nixon was arguably 1 for 3 as well. That’s not Tony Gwynn level hitting.
In contrast, Clinton was 2 for 2 in putting liberals on the court. Why no analysis of why Democratic Presidents have been so successful in putting liberals up there who never evolve conservatively?
Surely the “small numbers” problem wouldn’t bother Dorf … ?
Comment by steve jaros — July 31, 2007 @ 8:30 pm
All of the comments are right on, but Dorf seems to recognize the limitations of the small sample size expressly in his paper. And I agree that it would be more enlightening if he could have run some sort of preliminary multivariate regression using a greater number of Justices dating back to the 1950s or earlier. I personally do not do the type of “limited” empirical analysis found in Dorf’s paper, but instead use such tools as correlations, statistical significance testing, etc in my empirical work. That said, it is an interesting read and he has some interesting insights about the process.
I might add Epstein recently published a paper analyzing analytical drift on the Court, so one would think that such analysis would be cumbersome, but not impossible. That said, I don’t think Dorf meant this to be a comprehensive treatment of the subject, but rather an essay explaining his observations on the factors influencing ideological drift.
Comment by David Stras — July 31, 2007 @ 10:58 pm
David, yes Dorf does recognize that the numbers are small and urges caution in interpreting the findings. Fair enough. But then he undermines that caveat by talking about the “striking pattern” in the data. So what are we supposed to believe?
I’m no statistician, but i’m not sure he could conduct meaningful correlational or statistical-significance testing on such small numbers. A 95% confidence interval would be so wide as to encompass all the data points.
Also, while i admit i enjoyed reading the paper and agreed with his conclusion, i’m not sure he’s really saying all that much. It pretty much goes without saying that those who work in an administration are likely to be ideologically quite similar to the President they serve, and thus will be less likely to ’stray’ if the are put in a life-tenure position. There will be a self-selection bias at work: e.g., i’m conservative, so not only is a President Hillary Clinton unlikely to give me an admin job, i’m unlikely to take one if offered. Except in a time of national emergency where we are all unified, I’d have no desire to help her run her administration. Committed Democrats would feel the opposite way.
Sure, sometimes a particular fact may seem ‘obvious’ in retrospect but only because someone originally pointed it out. But I don’t think this is one of those cases. This is just plain obvious, period.
Comment by steve jaros — August 1, 2007 @ 12:06 am
I’m intrigued by Steve Jaros’s comment that Bush’s success rate (at appointing conservatives) is only 1 out of 2. Most people seem to think he got 2 out of 2. On the other hand, neither Roberts nor Alito has proved to be as conservative as Scalia and Thomas. If that’s the standard, you could argue that Bush got 0 out of 2. So I’m a little perplexed at Jaros’s yardstick, especially for two justices who have been on the Court for so short a time.
By the way, Nixon put 4 justices on the Court, not 3 (Burger, Powell, Blackmun, Rehnquist). I’ll leave it to others to calculate the batting average.
I’m not sure what Bill Clinton was aiming for, but it’s worth noting that Ginsburg and Breyer, while clearly liberal in the absolute sense, are not as far to the left as several of the liberal lions of yore (Douglas, Brennan, Marshall, and even arguably Blackmun).
Comment by Marc Shepherd — August 1, 2007 @ 12:34 pm
Marc, i said that the success rate for “Bush I” was 1/2. By Bush I i meant GHW Bush, not the current President. I think most would agree that Souter is not conservative.
Thanks for the correction about Nixon. I’d make him 1/4. IMO, Burger and Powell were moderates, Blackmun a liberal, Rhenquist conservative.
As for the current President, i’d say that as of now, he’s 2/2, but of course alito and roberts may yet “evolve” in a dastardly liberal direction so the jury is still out on them (and which is why i didn’t comment on them in my first post).
Comment by steve jaros — August 2, 2007 @ 7:39 pm
Sorry for the error, Steve. I should have realized you meant Bush 41, not Bush 43.
Probably a fairer score for Nixon is 2/4. A moderate, by definition, votes liberal and conservative in about equal measure, so Burger and Powell get about 0.5 apiece. Rehnquist gets 1, and Blackmun gets zero. A scoring system that fails to recognize shades of gray is a rather blunt instrument.
That the all-or-nothing scoring system also fails to recognize that many appointees, although disappointments in the absolute sense, have nevertheless moved the Court in the desired direction—even if the shift is not as pronounced as it theoretically could have been. Would anyone claim that Justice Souter is as liberal as William Brennan, whom he replaced?
Comment by Marc Shepherd — August 3, 2007 @ 10:35 am
“I’m no statistician, but I’m not sure he could conduct meaningful correlational or statistical-significance testing on such small numbers. A 95% confidence interval would be so wide as to encompass all the data points.”
Steve, in such a case, the statistical significance testing would be meaningful in its demonstration that the correlation is not meaningful. It’s important to know what we do not know.
Comment by Kent Scheidegger — August 3, 2007 @ 12:13 pm
I think most would agree that Souter is not conservative. Thanks for the correction about Nixon. I’d make him 1/4. IMO, Burger and Powell were moderates, Blackmun a liberal, Rhenquist conservative.
I think these are highly contentious and controversial assertions that are made far too easily. Souter is a conservative in terms of his politics and philosophical orientation. He is even a conservative in terms of his methodology. While it has already been mentioned that Souter is far more conservative (politically and philosophically) than Brennan, even in terms of how he drafts opinions, he hews to conservative methodology, looking to text as a primary source and diverting to purpose less frequently than, say, Breyer or Ginsburg or Stevens. He also respects precedent very much, which includes both liberal and conservative precedent (an Oakeshott or Burkean kind of conservatism). That matters. He may not “vote the right way” but to back up your claim, you’d need to evaluate what lower courts do with 5-4 opinions that Souter drafts — are they interpreted as broadly as 5-4s drafted by Marshall or Brennan? Or are they interpreted rather narrowly because of the methodology he employs? A liberal voter who is a conservative craftsman may actually have a less liberal effect on the courts than he has a reputation for.
To say Burger and Powell were moderates is rather odd, given that Nixon, the coiner of the term “strict constructionist,” by the way, was himself a proponent of affirmative action. Nixon was a conservative and so were Burger and Powell. The alternative, if I recollect correctly, was the Nelson Rockefeller wing of the party, of which none were a part. (The closest successor of Rockefeller is Ford, who appointed Stevens to the Court, and we can all agree that Burger, Powell, and Souter are farther right than Stevens.) While Powell earned a reputation for being a moderate (because he was the swing vote), there is no doubt that Kennedy, his replacement, is conservative on most issues but not so on, say, gay rights. Yet Powell was the swing vote that made the majority in Bowers. Meaning Powell is more conservative than Kennedy on his most liberal issue. Not to mention Powell’s memo to the Chamber of Commerce (a conservative organization if ever there was one) that set the foundation for the deregulation movement. This is someone who represented the tobacco lobby and was on the board for Phillip Morris; he was not a moderate. He was perceived as one.
According to Wikipedia, Burger “became a prominent critic of Chief Justice Earl Warren and argued in favor of a very literal, strict-constructionist reading of the U.S. Constitution.” On criminal law and gay rights, Burger was as conservative as it gets. I would note that Kenneth Starr was a Burger clerk. Kenneth Starr is no moderate. Justices usually select clerks that fit their ideological disposition.
There is no doubt that Blackmun became reliably liberal. But while Rehnquist was the Lone Ranger in dissent for awhile, case after case shows he was neither as conservative as Scalia nor Thomas; when Bush 43 ran, he said he would appoint Justices in the mold of “Scalia and Thomas,” not in the mold of Rehnquist. And that’s because the base wanted more Scalias and Thomases.
Comment by Jacques McKenzie — August 4, 2007 @ 9:43 pm
“On criminal law and gay rights, Burger was as conservative as it gets.”
The author of Lockett v. Ohio is “as conservative as it gets” on criminal law? Hardly. In this landmark (or disastrous, depending on your point of view) case, Justice White had the more “conservative” position. All of this goes to show that these labels are very oversimplified.
Comment by Kent Scheidegger — August 4, 2007 @ 10:30 pm
Kent,
Thanks for the opportunity to clarify. By “conservative as it gets” I meant over the run of cases, not in each and every case. (I don’t think anyone would make that argument about Burger!)
In any event, Burger and White voted the same way in Lockett and, as far as I understand it, it was an issue fact-bound to a particular Ohio law. If you include federalism in the picture and the fact that Burger was a bit of a judicial minimalist who cared much about the Court as a legitimate institution and so tried to avoid controversial outcomes, I think you end up with another analysis (White was not more conservative, he simply wasn’t a cautious Chief Justice). Perhaps you disagree, but the vote tally in Lockett was 7-1.
Comment by Jacques McKenzie — August 4, 2007 @ 11:24 pm
I would dare say that Nixon’s success rate was at least 2/4 and even 3/4. Except for Justice Blackmun, who became far more liberal than what President Nixon could have reasonably expected, Justices Powell and Burger were probably more or less what President Nixon wanted.
In support of this theory I will recall Mr. Nixon’s very warm comments in a letter to Justice Powell after his retirement in 1987:
“Dear Lewis, When you were reluctant to accept appointment to the Supreme Court because of your age I observed that ten years of Lewis Powell on the Court was worth 20 years for anyone else. Your superb service has eloquently demonstrated that I was right. All Americans are in your debt. Sincerely, Dick Nixon.”
Chief Justice Burger was more conservative than Justice Powell, and therefore President Nixon was probably also ideologically satisfied with him (please remember that we are talking globally here, not only from a Roe perspective). I haven’t found Nixon’s comments on Chief Justice’s Burger retirement, though.
Comment by Pedro Soriano Mendiara — August 5, 2007 @ 8:07 am
“In any event, Burger and White voted the same way in Lockett and, as far as I understand it, it was an issue fact-bound to a particular Ohio law.”
I gather you are not familiar with capital punishment law. Back to basics. Burger and White did indeed agree that Lockett’s death sentence should not stand. (I do as well, FWIW.) They disagreed dramatically on the reason. White would have created an exemption for minor players without intent to kill who were swept up in the felony-murder rule. The full court later adopted that rule in Enmund v. Florida.
Burger’s plurality opinion, later adopted by a majority in Eddings v. Oklahoma, was based on a far more sweeping rule. It decreed that the defendant must be allowed to proffer and the sentencer must consider any circumstance the defendant wants to put forward as mitigating. The people of a state can no longer decide for the state as a whole what circumstances will be considered mitigating and which will not. This high-handed, sweeping mandate with no basis in the text or history of the Constitution is the antithesis of judicial restraint and strict constructionism. Further, the opinion’s de facto overruling of both Jurek v. Texas and Proffitt v. Florida with expressly saying so left a wake of turmoil and confusing lasting to the present day, as illustrated by the Texas cases in the last term.
Is it unfair to put too much emphasis on one opinion? Maybe. But when it is a whopper of a misstep both unwarranted in law and with disastrous consequences, such as Lockett or Dred Scott, it has to play a prominent role in any evaluation of its author.
Comment by Kent Scheidegger — August 5, 2007 @ 12:59 pm
That should read “without expressly saying so….”
Comment by Kent Scheidegger — August 5, 2007 @ 2:52 pm
Is it unfair to put too much emphasis on one opinion? Maybe. But when it is a whopper of a misstep both unwarranted in law and with disastrous consequences
Hmm. I certainly did not mean to imply Burger was a perfect Justice, or even a perfect Chief Justice. Just that he was a strong conservative, rather than a moderate. If you’d like to talk about Burger’s greatest erroneous hits, let’s take a tour through securities law. In any event, I do think there is a conservative case to be made for being able to say whatever you please as a plea for mercy before you are put to death. It may not be in the text of the Constitution, but it certainly is a part of the history of Western civilization.
Comment by Jacques McKenzie — August 5, 2007 @ 6:07 pm
I certainly agree with Kent that a fouled-up decision like Lockett looms much larger in Chief Justice Burger’s legacy than 100 other minor opinions that he wrote.
Chief Justice Burger was a pragmatist. He was willing to sacrifice fundamental principles in the interest of compromise. Burger was faced with a Court in which 6 out of 7 colleagues (Brennan recused) were prepared to toss out the death sentence for various reasons. He assigned himself the lead opinion and tried to find the best middle ground he could. Lockett was obviously nothing to be proud of, but one can see what Burger was trying to do, even if it failed in that instance. If Clarence Thomas were in Burger’s place, he would just say what he wanted, and leave it to others to resolve the problem. This explains why Thomas earns a near 100% score from conservatives, but you seldom find him at the center of the decision in close cases.
I do think that that some conservatives need to re-evaluate their all-or-nothing grading system for justices. If you say that Reagan “was arguably 1 for 3,” then effectively you’re assigning Anthony Kennedy the same “liberalism score” as Thurgood Marshall.
Comment by Marc Shepherd — August 6, 2007 @ 8:25 am
Marc sheppard wrote:
“Would anyone claim that Justice Souter is as liberal as William Brennan, whom he replaced?”
Marc, can you name a contentious social-issues case (abortion, affirmative action, prayer/religious symbols in public places, gay rights) where souter cast a vote that brennan would have differed with?
Comment by steve jaros — August 10, 2007 @ 10:58 am
Kent Shreidegger wrote:
“Steve, in such a case, the statistical significance testing would be meaningful in its demonstration that the correlation is not meaningful. It’s important to know what we do not know.”
Kent, are you sure? To my understanding, a 95% CI that is that wide is meaningless either way as far as the validity of the correlation is concerned. All it tells us is that there are too few data points to know what the true relationship is.
Comment by steve jaros — August 10, 2007 @ 11:01 am
Marc, can you name a contentious social-issues case (abortion, affirmative action, prayer/religious symbols in public places, gay rights) where souter cast a vote that brennan would have differed with?
One obvious example—though it is not a social issue—is the death penalty. Souter has voted to uphold the death penalty on numerous occasions, whereas Justice Brennan believed it was unconstitutional in all circumstances.
Comment by Marc Shepherd — August 10, 2007 @ 3:54 pm
Marc, i guess it’s a matter of degree. IIRC, souter seems to vote against the DP quite frequently. Not every single time like brennan but enough to know there isn’t much difference between them even there.
Comment by steve jaros — August 10, 2007 @ 6:15 pm
IIRC, souter seems to vote against the DP quite frequently. Not every single time like brennan but enough to know there isn’t much difference between them even there.
Is there any substantiation for this, whatsoever?
It isn’t even clear what you mean by “against the DP”.
Comment by Jacques McKenzie — August 12, 2007 @ 11:26 pm
I think there’s a huge difference. In the first place, there are many capital cases the Court declines to hear, without recorded dissent.
In the second place, when the Court does take a capital case, Justice Souter does not invariably side with the defendant.
And lastly, even when Justice Souter does side with the defendant, the reason is usually procedural. He is not saying that the D.P. is unconstitutional in all circumstances, but that the correct process was not (in his view) followed in that particular case. Many of those defendants are still eligible to be re-sentenced to death on remand.
For the record, my own views on D.P. jurisprudence are much more conservative than Justice Souter’s. But still, I can see the difference between someone who categorically opposes it in all circumstances, and someone who is merely trying to ensure that the correct process is followed.
Comment by Marc Shepherd — August 13, 2007 @ 8:29 am
Jacques McKenzie wrote, in reply to my claim that souter votes against the DP quite frequently:
“Is there any substantiation for this, whatsoever?
It isn’t even clear what you mean by “against the DP”.”
By “against the DP”, i mean that he casts votes that either disallow the DP, or else in particular cases where the basic legitimacy of the DP isn’t at stake, votes on the side that makes it harder for the government to implement it.
Examples:
Kansas v. Marsh
Williams v. Warden Taylor
Roper v. Simmons
Rompilla v. Beard
Schriro v. Summerlin
Ring v. Arizona
In all these cases Souter voted to either eliminate the DP, or else make it harder for the state to sentence criminals to death or execute a death sentence.
Got any examples where Souter voted the other way?
Comment by steve jaros — August 14, 2007 @ 7:59 pm
Marc, i agree that there is a theoretical difference between a categorical rejection of the DP and a case-by-case assessment of its procedural validity, as you say souter engages in.
However, for practical purposes, if the result of one’s case-by-case analysis invariably, or almost invariably, results in, voila!… a vote against the DP, then, there … isn’t much practical difference, and of course practice is where the rubber hits the road.
As for the cases the court doesn’t take, since we don’t know what souter did in those cases, they aren’t evidence either for or against his similarity to brennan.
Above, i listed 6 DP cases since 2000 in which Souter sided with the defendant. Can you name any during that time in which he sided with the state?
Comment by steve jaros — August 14, 2007 @ 8:07 pm
I’m bending the rules slightly, but Souter joined the majority in Felker v. Turpin, 518 U.S. 1051 (1996), which found the AEDPA constitutional. It’s a 1996 case, but as AEDPA bars a lot of the successive habeas challenges that used to prolong death cases, I think it’s pretty significant.
There probably are post-2000 cases too, but I didn’t feel like reading every syllabus to find them. I agree that denial of cert. is a different situation, since the justices don’t normally disclose their votes. But in D.P. cases the liberal justices often publicly dissent from the denial of cert, so in those cases the absence of a known dissent is somewhat relevant. Given that Souter voted to uphold the AEDPA, it would be awfully pessimistic to suppose that he would have sided with the defendant in every such case.
Comment by Marc Shepherd — August 15, 2007 @ 12:50 pm
Marc, i do think this is a real stretch on your part. Felker v. Turpin was a 9-0 slam-dunk opinion that was far more about habeas corpus and congress’s power to restrict the SCOTUS’s appellate jurisdiction than it was about the DP. Hard to imagine that Brennan would have dissented from this one either.
Anyway, it took me about 10 minutes to find 6 post-2000 cases in which souter sided with a defendant in a DP case. If it would take hours combing thru syllabi to find one where he didn’t, i think my point has been made. ;)
Comment by steve jaros — August 15, 2007 @ 2:40 pm
Hard to imagine that Brennan would have dissented from this one either.
I don’t find this hard to imagine, assuming a Court with Marshall, Douglas, and Blackmun.
As for Roper v. Simmons, I hate the opinion for a number of reasons, but one can vigorously support the death penalty in various circumstances, find it constitutional in most cases, and yet draw the line at kids.
I’ll leave the rest of the cases you cited to Marc.
Comment by Jacques McKenzie — August 15, 2007 @ 4:35 pm
Jacques McKenzie wrote:
“As for Roper .. one can find the DP constitutional in most cases, and yet draw the line at *kids*.”
er, does this look like a “kid” to you?
http://www.ccadp.org/christophersimmons.htm
Roper was a terrible opinion for a number of reasons (the “evolving standards of decency” notion is absurd on its face: how can a court rely on evolving standards to issue a verdict that then… freezes by judicial fiat a standard in place and thus ends the process of evolution?).
But even on its own terms Roper is wrong-headed because it categorically rejected the DP for age 17 and under even though many 17 year olds are emotionally mature and thus full-fledged “moral agents”.
Which is why the suitability of the DP for 17 year olds should be handled on a case-by-case basis via the use of court-appointed mental health experts, etc.
Comment by steve jaros — August 15, 2007 @ 10:05 pm
Steve,
As should be clear, I agree that Roper was worngly decided.
That does not mean that killing 17 year-olds is neither cruel nor unusual. One could believe that without being in favor of the death penalty in general or even in most cases.
Comment by Jacques McKenzie — August 15, 2007 @ 11:16 pm
Also,
The picture you link to is misleading. Simmons is now an adult and he was an adult at sentencing. He was not an adult when he committed the (heinous) crime.
Comment by Jacques McKenzie — August 16, 2007 @ 12:27 am
Jacques,
Yes, one could think that executing 17 year olds is cruel/unusual without being against (i think you meant against, not in favor?) the DP in most cases – which is why i posted 5 other Souter cases as well.
And yes, the picture was a mistake because i don’t know when it was taken. It could have been taken years after he was 17.
But it could have been taken when he was 17, because just as many 17 year olds are mentally mature, many are physically mature as well.
Comment by steve jaros — August 16, 2007 @ 9:03 am
There’s nothing in the Eighth Amendment that suggests it sets out a case-by-case state-by-state approach, and there is no reason an immature 17-year old should be put to death simply because he committed his idiotic crime on one side of the border between his and the neighboring state.
Comment by Jacques McKenzie — August 16, 2007 @ 12:20 pm
“There’s nothing in the Eighth Amendment that suggests it sets out a case-by-case state-by-state approach….”
Step back and look at the Constitution a little more broadly. The federal structure of the document as a whole surely does set out a state-by-state approach.
Personally, I’m in favor of drawing the line at 18 as a matter of policy. But to say that the United States Constitution imposes this policy choice on the states and removes it from the democratic process is stretching, to put it mildly.
Line drawing inevitably involves, at some point, separating cases with little to distinguish them. Punishing a rape-murder differently depending on which side of a state boundary it was committed on is no more arbitrary than punishing it differently depending on whether the murderer committed it on his 18th birthday or the day before. Indeed, it is less arbitrary.
Comment by Kent Scheidegger — August 16, 2007 @ 1:29 pm
The federal structure of the document as a whole surely does set out a state-by-state approach.
Of course. That does not necessarily mean, however, that the Eighth Amendment fails to set out a bright line rule.
to say that the United States Constitution imposes this policy choice on the states and removes it from the democratic process is stretching, to put it mildly.
I don’t personally disagree with this. Again, I thought Roper was wrongly decided for a panoply of reasons.
Line drawing inevitably involves, at some point, separating cases with little to distinguish them.
Sure. But drawing the line at point A rather than point A! doesn’t necessarily mean you therefore 100% support or reject the death penalty; it may mean you have more tolerance for Arbitrariness X than Arbitrariness B or prefer Contextually-Relevant Policy F to Contextually-Relevant Policy G.
Comment by Jacques McKenzie — August 16, 2007 @ 2:25 pm
Jacques wrote:
“There’s nothing in the Eighth Amendment that suggests it sets out a case-by-case state-by-state approach, and there is no reason an immature 17-year old should be put to death simply because he committed his idiotic crime on one side of the border between his and the neighboring state.”
A “case by case” approach to amendment 8 is inevitable, once we decide that the “cruelty” of the DP hinges on the mental status of the defendant. Thus, a 25 year old may properly be judged unworthy of the DP if it is shown via analysis of his mental condition that in his case, unlike in the case of most 25 year olds, he suffers a mental disability or condition that rendered him not fully culpable for his actions.
But if that makes constitutional sense (and i bet you agree it does), then it should also make constitutional sense that a 17 year old can be properly judged *worthy* of the DP, if it is shown via analysis of his mental condition that, unlike some 17 year olds, he was indeed “mature” and thus fully culpable for his actions.
Comment by steve jaros — August 16, 2007 @ 3:06 pm
A “case by case” approach to amendment 8 is inevitable, once we decide that the “cruelty” of the DP hinges on the mental status of the defendant.
My understanding of the case is that “mental status” is not what’s at-issue, but rather capacity for rehabilitation. Thus it would be highly unusual to reject the rehabilitation justification for punishment in cases in which the capacity for rehabilitation is greatest. Most states are trending not to do that, if you crunch the numbers a certain way.
I don’t know how many times I have to say I think Roper was wrongly decided for a whole host of reasons. But voting with the majority in Roper just doesn’t prove that Souter is categorically opposed to the death penalty.
As for your impromptu one-sided bet, you owe me however much you put in the pot.
Comment by Jacques McKenzie — August 16, 2007 @ 4:10 pm
Jacques wrote:
“I don’t know how many times I have to say I think Roper was wrongly decided for a whole host of reasons. But voting with the majority in Roper just doesn’t prove that Souter is categorically opposed to the death penalty.”
Who ever said that Souter’s vote in Roper alone proved that he is categorically opposed to the DP? I sure didn’t.
Comment by steve jaros — August 16, 2007 @ 5:14 pm
Who ever said that Souter’s vote in Roper alone proved that he is categorically opposed to the DP? I sure didn’t.
Indeed, none of the cases you cited do.
Comment by Jacques McKenzie — August 16, 2007 @ 5:23 pm
Jacques, i never claimed souter was categorically opposed to the DP. In fact, i said he wasn’t:
“IIRC, souter seems to vote against the DP quite frequently. Not every single time like brennan but enough to know there isn’t much difference between them even there.”
See? I said he didn’t vote against it every single time like Brennan.
But then i did question how much practical difference there is between him and brennan, given how frequently he does vote against the DP.
I cited 6 post-2000 cases supporting that position, and so far neither you nor anyone else has cited an actual DP case that undermines it.
Comment by steve jaros — August 16, 2007 @ 11:10 pm
I cited 6 post-2000 cases supporting that position
Except your cases don’t support that position. For example, Roper.
Comment by Jacques McKenzie — August 17, 2007 @ 1:34 pm
If souter had voted for the state in those 6 cases, you’d be correct. But since he voted in favor of the defendant in those cases, all of them do support my position that there isn’t much practical difference between souter and brennan because souter tends to vote against the DP quite frequently, much as we’d expect brennan to do.
Roper being a good example of that.
And so far no one has offered even a single case where souter cast a vote for the DP.
Not sure why this continues to confuse you …
Comment by steve jaros — August 17, 2007 @ 10:01 pm
Steve,
I think you should revisit what “practical difference” means. If on the one hand you have a judge who is a kind of conservative who may be persuaded by certain arguments about federalism, arbitrariness or contextually-relevant policies related to implementation of the death penalty and on the other you have a judge who is categorically opposed to the death penalty, then there certainly is a practical difference to litigators before the Supreme Court. Souter is not a guaranteed vote “against the death penalty” — it depends on the case and the specific arguments made. That affects the briefing sumitted to the Court and the research done by the lawyers. It also may impact the dynamics of granting cert, in that other Justices may strategically choose to review (or not review) cases that are of a particular valence to Souter.
Roper is a terrible case for your theory, as should be obvious. There are so many other bases upon which a legitimate conservative could vote with the majority on that case (I wouldn’t, but that’s another issue) that it fails to show at all that “Souter votes against the death penalty.” It isn’t clear why he voted with the majority in Roper. Though he failed to convince me, a fairly conservative former White clerk argued me tooth-and-nail about the validity of Roper, and he’s a strong proponent of the death penalty. Opposition to the death penalty never even arose in our conversation.
Your tally is meaningless. You SAY Souter is voting against the death penalty, but it isn’t clear what he’s voting against. It’s only clear that you dislike the outcomes of those cases, and thus Souter is indistinct from Brennan in your mind. Souter does not share your politics. Brennan did not share your politics. Therefore, to you they are essentially the same.
I think enough people have offered sound disagreement with that logic for you to consider reasonably changing your view.
Comment by Jacques McKenzie — August 18, 2007 @ 11:21 am
Jacques,
You say that Souter is not a guaranteed vote against the DP, but where is the evidence for that? What do you base that on? You’ve offered no cases to support your view, nor have you cited any articles or books or speeches souter has written/given to that effect.
Heck, i started this discussion by conceding that souter was different from brennan, but after looking at the cases i’m not so sure.
As for the practical effects, the ones you posit relating to how briefs are drawn up and research done would be relevant, if those lawyers were as convinced as you are that souter isn’t a gimme against the DP. but we don’t know that.
On my side i have 6 prominent cases in which the DP was clearly in play, and souter voted against it every time. you can construct speculations about what souter was “really” voting for or against, but on what basis can we give those speculations much weight against the empirial reality that his votes either prevented the DP from being implemented or made it harder for the state to implement/execute the DP?
IMO, not much weight.
Nit-pick my evidence all you want, but until you offer some of your own, my position will be the stronger one. As for “enough people” having offered “sound disagreement”, i count you and marc as the only ones who have disagreed, and marc supported his position with a cite to a 1996 case that surely had less to do with the DP than the cases i cited did.
Not exactly “enough”, is it?
Comment by steve jaros — August 18, 2007 @ 7:22 pm
As for the practical effects, the ones you posit relating to how briefs are drawn up and research done would be relevant, if those lawyers were as convinced as you are that souter isn’t a gimme against the DP
There’s a real strong assumption in here about who “those lawyers” are.
Comment by Jacques McKenzie — August 19, 2007 @ 2:19 pm
the empirial[sic]reality that his votes either prevented the DP from being implemented or made it harder for the state to implement/execute the DP?
I think Marc already answered this in two-forms:
1. “Many of those defendants are still eligible to be re-sentenced to death on remand.” That is, it isn’t necessarily the case that those particular defendants are ‘prevented’ from being put to death, or are ‘harder’ to put to death.
2. “It’s a 1996 case, but as AEDPA bars a lot of the successive habeas challenges that used to prolong death cases, I think it’s pretty significant.” That is, Souter voted to make it much easier to put people to death across this country in a wide swath of cases.
In other words, the empirical reality you say is there just isn’t there. You have some ambiguous votes and you’re assumpting their meaning.
Nit-pick my evidence all you want, but until you offer some of your own, my position will be the stronger one.
I’m not nitpicking. I’m saying you have no evidence — at all — that supports your actual claims. You have zero.
You say that Souter is not a guaranteed vote against the DP, but where is the evidence for that?
Assuming you are 100% correct that Souter is a guaranteed vote against the DP (which appears to be the categorical claim you deny asserting), he still has the capacity to change his mind in future cases. Or do you deny that Justice Souter has a mind?
On my side i have 6 prominent cases in which the DP was clearly in play, and souter voted against it every time.
No. You have 6 cases where the death penalty played a role and Souter sided with the majority, perhaps for some undisclosed reason. You have no cases showing Souter was motivated by a predestined animus toward the death penalty.
Comment by Jacques McKenzie — August 19, 2007 @ 2:44 pm
*sigh*
1) It’s hard to figure how a SCOTUS ruling in favor of a defendant in a DP case doesn’t make it harder for the state to put that defendant (and other defendants in his/her circumstances) to death.
Heck, that’s the obvious motive for the defendant to litigate the issue, right?
2) Souter, like 8 other justices, voted to uphold the AEDPA. Not exactly an ideologically-charged case. The issue was decided without reference to the constitutionality of the DP in general or in that case. It purely hinged on whether congress had exceeded its power to limit the SCOTUS’s jurisdiction re habeas corpus.
3) The empirical reality of those 6 cases can hardly be called ‘ambiguous’. Each was clearly a DP case, where some aspect of the DP’s legitimacy, either for a whole category of defendants (such as the young or mentally infirm) or some aspect of the procedure for sentencing someone to death or implementing a death sentence was at the core of the case.
and souter voted with the defendant all 6 times. If that doesn’t show a tendency to vote against the DP, what would? Sure, that could just be 6 out of 6 coincidences, but what are the odds of that?
Your claim that i have zero evidence, in light of these 6 cases, is baffling.
4) I don’t claim souter is a 100% vote against the DP. He may vote against it 40 straight times, but of course that doesn’t gaurantee he won’t vote for it in the 41st case.
then again the same was true of brennan.
5) All along, i’ve agreed that souter doesn’t appear to exhibit the same kind of philosophical opposition to the DP that brennan did. What i’ve questioned is the practical significance of that difference, if he nonetheless tends to vote the same way we would have expected brennan to vote.
The 6 cases i have cited indicate that the practical significance isn’t very great.
Comment by steve jaros — August 19, 2007 @ 4:34 pm
then again the same was true of brennan.
No, Brennan is dead. We have his whole record and he was on the record as being categorically opposed to the death penalty.
and souter voted with the defendant all 6 times. If that doesn’t show a tendency to vote against the DP, what would?
I don’t think cherry-picking 6 cases of any kind shows anything other than that someone cherry-picked them.
Statement 1: “Each was clearly a DP case, where some aspect of the DP’s legitimacy, either for a whole category of defendants (such as the young or mentally infirm) or some aspect of the procedure for sentencing someone to death or implementing a death sentence was at the core of the case.”
Statement 2: “Souter, like 8 other justices, voted to uphold the AEDPA. Not exactly an ideologically-charged case. The issue was decided without reference to the constitutionality of the DP in general or in that case. It purely hinged on whether congress had exceeded its power to limit the SCOTUS’s jurisdiction re habeas corpus.”
I think the problem here is that I see your 6 cases the way you see the AEDPA case. For example, Roper.
Heck, that’s the obvious motive for the defendant to litigate the issue, right?
Justice Souter is not the defendant in these cases. Indeed, David Souter was once a state attorney general.
Your claim that i have zero evidence, in light of these 6 cases, is baffling.
You have zero evidence to support your claims. You have 6 cases that say plenty of stuff other than what you claim.
What i’ve questioned is the practical significance of that difference, if he nonetheless tends to vote the same way we would have expected brennan to vote.
And Marc and I pointed out plenty of practical differences. All you need do is scroll up. I think that this has gotten to the point where there is nothing further to be said. Have a nice Sunday evening.
Comment by Jacques McKenzie — August 19, 2007 @ 4:59 pm
1) i said the same *was* true of brennan. brennan could have changed his mind. he didn’t, but he could have.
2) “cherry-picking”? that implies that there is a population of other DP cases where souter voted against the defendant that i’ve declined to share. but so far neither i nor anyone else has found such a case.
3) Thing is, i have a good reason for viewing the AEDPA case the way i do: it really did hinge on SCOTUS appellate review and HC. Whereas you have nothing but speculation to back up your claim that we just don’t know what souter thought he was voting for in the 6 DP cases, matched against the fact that in all 6 he was on the side of the defendant.
might be pure coincidence, but … like flipping a “tail” 6 times in a row, unlikely.
btw, souter was not in the majority in all those cases. he was a dissenter in the “kansas” and “shrirer” cases. But whether in the majority or in dissent, he was with the defendant.
4) we know souter wasn’t a defendant, but the defendant surely filed the case with the idea that his side winning would mean it would be harder for the state to execute/implement a death sentence.
So it’s hard to figure how a SCOTUS ruling in favor of a defendant in a DP case doesn’t make it harder for the state to put that defendant (and other defendants in his/her circumstances) to death.
5) i have 6 cases in which some aspect of the DP was the focal issue and souter voted for the defendant all 6 times. once might be a coincidence but 6 is looking like a pattern, particularly in the absence of countervailing evidence …
6) you’ve noted no practical differences of any merit. the few you’ve mentioned, such as the briefing strategy of lawyers, has been found wanting.
Comment by steve jaros — August 19, 2007 @ 7:21 pm
So it’s hard to figure how a SCOTUS ruling in favor of a defendant in a DP case doesn’t make it harder for the state to put that defendant (and other defendants in his/her circumstances) to death.
Well, no. Now you’re moving the goalposts. First, you said preventing or making harder. I responded to that disjunctive. Now you’re just saying harder. In any event, I don’t think that, say, a do-over where the defendant gets to present mitigating evidence and is sentenced to death, anyway, is all that much harder. Fairer, more costly, but not harder, because the underlying conviction is safe.
the few you’ve mentioned, such as the briefing strategy of lawyers, has been found wanting.
Not really. Brennan signalled his opposition. No reason to even try for the vote.
might be pure coincidence, but … like flipping a “tail” 6 times in a row, unlikely.
Actually, that’s the opposite of what you’re trying to say. You being correct is like flipping tails 6 times in a row, given all the other possible reasons for Souters’ vote in these cases.
in which some aspect of the DP
Again, this is you changing your argument. First, you said “against the DP”; now it’s “some aspect of the DP” is in play. I responded to your original argument already. Unfortunately, I was not so smart to prophecy its various and distinct permutations.
Comment by Jacques McKenzie — August 20, 2007 @ 12:01 am
1) Moving the goalposts? No, go ahead and insert the “or preventing” back in there. It was an oversight on my part, not intentional. I don’t see how it matters either way, since:
it’s hard to figure how a SCOTUS ruling in favor of a defendant in a DP case doesn’t PREVENT or make it harder for the state to put that defendant (and other defendants in his/her circumstances) to death.
And surely, a “do over” makes it harder for the state to put that defendant to death, since the defense now gets to present new evidence, or have evidence that was presented thrown out, or gets a new trial, or new sentencing hearing, etc etc. I don’t see how that type of thing doesn’t add up to “harder”, by any commensensical definition of the term.
The “underlying conviction” was safe in the “roper” case, e.g., but thanks to the SCOTUS the state was prevented from executing the 17 yr old.
2) i’d bet most attorneys would think souter has ’signalled’ his opposition, via his voting record in DP cases.
3) no, given that in all 6 cases souter voted for the defendant, my coin-flip analogy works pretty well. the *common* denominator, despite all the other differences amongst the cases, was whether he sided with the defendant or the state.
4) no, once again i’m not changing my argument. i just said “some aspect” of the DP was in play in those cases, to indicate that each case raised different issues, but all DP issues, which is true. That doesn’t mean i changed my definition of “against the DP”, and i haven’t. It means what i said it meant way back when you first asked me to clarify that term.
Comment by steve jaros — August 20, 2007 @ 8:06 pm
You guys are kind of arguing past each other.
Shorter Steve Jaros:
“Souter, for whatever methodological differences he has to Brennan, is no better than Brennan from the point of view of a conservative supporter of the Death Penalty, because for whatever reasons he cites he always manages to side with the defendant. He may believe there is an ideal DP case that the state can win, but he has never met it.”
Shorter Jacques McKenzie:
“You can’t prove that. Furthermore he still might vote against the defendant in a future case. After all there are some cases which impacted the DP in a general way which he did not rule in a way that someone who thought the DP was unconstitutional in all forms would have. Therefore you cannot say he is no better than Brennan, even from the point of view of a conservative supporter of the Death Penalty.”
Suggested decider:
A wager between Steve and Jacques on the result of all of the capital cases for OT07 (or a longer period to be agreed between them).
a) If Souter votes with the defendant in all those cases, Steve wins.
b) If Souter votes with the state in any one of those cases, Jacques wins.
Optional rule: If all the cases he sides with the state on are 9-0 per curiams, then its a tie.
And then we get to go back to repeat this argument for all the non-DP social issues Souter is supposedly better on (from a conservative viewpoint) than Brennan, which is where this all started!
Comment by J_Griffith — August 20, 2007 @ 10:40 pm
FWIW, Justice Souter wrote a very good dissent to a very bad DP reversal in Stringer v. Black, 508 U.S. 222 (1992). Haven’t seen anything comparable from him in some time, though.
Comment by Kent Scheidegger — August 21, 2007 @ 11:40 am
All right. I concede defeat…to Kent. Steve, donate that money you owe me to Kent’s organization.
Comment by Jacques McKenzie — August 21, 2007 @ 4:10 pm
J_Griffith:
I’d agree with your summary of my position, with the exception that i’d change “from the POV of a conservative supporter of the DP” to “from the POV of anyone who is looking for a practical difference in their jurisprudence”.
Additionally, Jacques and i have no argument re what Souter might do in the future. We both know he, like anyone else, could change their mind in the future. Brennan could have changed his mind about his categorical opposition to the DP. He didn’t, but he could have.
As for your wager proposal: with the optional 9-0 rule, it sounds good to me. I hope Jacques signs on to it. :)
Comment by steve jaros — August 22, 2007 @ 10:12 am
Steve,
You seem not to have understood my last comment. I take the case that Kent found to be an utter refutation of your position.
Comment by Jacques McKenzie — August 22, 2007 @ 12:51 pm
er, ok … yeah i guess i’m not surprised that you are impressed by Kent’s case, since you were also impressed with the equally unimpressive AEDPA case.
1992 being ancient history. heck, i’m not even sure brennan expressed a categorical opposition to the DP until 1972, when he’d been on the bench as long as souter has been right now.
so will you accept the bet?
Comment by steve jaros — August 22, 2007 @ 8:54 pm
THURSDAY, NOVEMBER 16, 2000
ORDER IN PENDING CASE
00A443 SNYDER, WARDEN V. WEEKS, DWAYNE
The application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Third Circuit on November 15, 2000, presented to Justice Souter and by him referred to the Court, is granted.
Justice Stevens and Justice Breyer would deny the application to vacate the stay of execution.
Comment by Jacques McKenzie — August 23, 2007 @ 11:53 am
THURSDAY, NOVEMBER 16, 2000
CERTIORARI DENIED
00-7028 WEEKS, DWAYNE JAMES W. V. DELAWARE
(00A444)
The application for stay of execution of sentence of death presented to Justice Souter and by him referred to the Court is denied. The petition for a writ of certiorari is denied.
Comment by Jacques McKenzie — August 23, 2007 @ 11:55 am
http://www.clarkprosecutor.org/html/death/US/weeks677.htm
Dwayne L. Weeks
Executed November 17, 2000 by Lethal Injection in Delaware
Comment by Jacques McKenzie — August 23, 2007 @ 11:56 am
jacques, what am i missing here? souter refers (a) an appellate court application to vacate a stay of execution to the rest of the court and (b) a application for a stay of execution to the court as well?
Let’s stipulate that you can dig up lots more of these.
So?
Why not take today’s bet?
Comment by steve jaros — August 23, 2007 @ 1:51 pm
The importance of this one is that it post-dates January 1, 2000, the arbitrary date that you have set. Only two Justices voted to deny the application to vacate: neither one was Justice Souter. Four votes were not available to grant certiorari. As voting against an app to vacate a stay and voting for cert are inconsistent, the only sound inference is that Souter voted to vacate the stay and against granting cert knowing a man would be put to death the next day. If you cannot see that a dead man is a practical difference, then there is simply no point in placing any bets. You would refuse to pay up once you lost.
Comment by Jacques McKenzie — August 23, 2007 @ 2:50 pm
Correction: “voting for an app to vacate”
Comment by Jacques McKenzie — August 23, 2007 @ 2:51 pm
jacques, the problem with your position is that voting to vacate a stay (or not) is a vote on a procedurial issue. It often doesn’t matter what the “stay” is about, so there’s no reason to assume this tells us anything about souter’s position on the DP.
In contrast, DP cases are highly instructive. I advise you to take the bet.
Comment by steve jaros — August 23, 2007 @ 11:42 pm
WAINWRIGHT v. BOOKER , 473 U.S. 935 (1985)
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting from the grant of application to vacate stay of execution.
Today the Court vacates a stay pending certiorari granted by the Court of Appeals for the Eleventh Circuit, although we have not even received the petition for certiorari. In so doing, the Court ignores repeated reminders by Justices of the Court that our power to vacate a stay entered by a lower court should be reserved only for exceptional circumstances, see, e.g., Kemp v. Smith, 463 U.S. 1321 , 77 L. Ed.2d 1424 (1983) (POWELL, J., Circuit Justice); O’Connor v. Board of Education, 449 U.S. 1301 (1980) (STEVENS, J., Circuit Justice), and that the lower court’s decision is “deserving of great weight,” Commodity Futures Trading Commission v. British American Commodity Options Corp., 434 U.S. 1316, 1319 , 12 (1977) (MARSHALL, J., Circuit Justice).
Although the state’s brief motion fails even to suggest that it has met this heavy burden, the Court has moved “with an impetuousness and arrogance that is truly astonishing,” Wainwright v. Adams, 466 U.S. 964, 966 , 2185 (1984) (MARSHALL, J., dissenting from the grant of application to vacate stay of execution). The apparent basis for the state’s motion is a concern that the Court of Appeals understood our recent decisions in Pinkerton v. McCotter, 473 U.S. 925 (1985), and Darden v. Wainwright, 473 U.S. 928 (1985), to mandate the grant of a stay in this case. However, this Court has provided detailed guidance to the courts of appeals as to stays in capital cases, see Barefoot v. Estelle, 463 U.S. 880 , 887-896, 3391-3396 (1983). There is no reason for us to assume, on the meager record before us, that the Court of Appeals was unaware of, or misapplied, those standards-let alone that it committed the gross abuse of discretion necessary to support a grant of this motion, see Wainwright v. Adams, supra, 473 U.S. at 965, 104 S.Ct. at 2184. I am therefore at a loss to understand the Court’s unwillingness to let matters run their ordinary course.
I dissent.
Comment by Jacques McKenzie — August 26, 2007 @ 2:15 pm
DELO v. STOKES, 495 U.S. 320 (1990)
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins and JUSTICE BLACKMUN joins as to Parts I, II, and III, dissenting.
IV
Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227 (1976) (BRENNAN, J., dissenting), I would deny the application to vacate the stay entered by the District Court.
When a person’s life is at stake we cannot tolerate such facile judgments. I would rather rely on the considered wisdom of the courts below, aided by their familiarity with Missouri law, that Mr. Stokes’ claim cannot be decided until Williams is resolved. Given the dire consequences of error, the Court’s rush to judgment is unseemly and indefensible. See Woodard v. Hutchins, 464 U.S. 377, 382-383 (1984) (BRENNAN, J., dissenting); id., at 384 (MARSHALL, J., dissenting). There is no call to deny a district court the time it needs to consider properly a petitioner’s claim. “It is . . . important that before we allow human lives to be snuffed out we be sure – emphatically sure – that we act within the law.” Rosenberg v. United States, 346 U.S. 273, 321 (1953) (Douglas, J., dissenting).
Comment by Jacques McKenzie — August 26, 2007 @ 2:52 pm
sigh … Jacques, the problem with your position is that voting to vacate a stay (or not) is a vote on a procedural issue. It ****often**** doesn’t matter what the “stay” is about, so there’s no reason to assume this tells us anything about Souter’s position on the DP (though in the 1990 case above you do show that in that case brennan’s categorical opposition to the DP did play a role in his ’stay’ vote).
In contrast, DP cases are highly instructive. I advise you to take the bet.
Comment by steve jaros — August 26, 2007 @ 5:48 pm
I would advise you to give up.
Comment by Jacques McKenzie — August 26, 2007 @ 6:16 pm
It ****often**** doesn’t matter what the “stay” is about
Except we aren’t talking about any and all stays in any context. We’re talking about stays of execution only. Each and every stay of execution is related to an actual person imminently facing the death penalty. Which should be obvious, but I decided to add this post just in case you needed clarification.
Comment by Jacques McKenzie — August 26, 2007 @ 6:35 pm
A stay in a death penalty case can be procedural and have nothing to do with the justice’s stance on the death penalty.
DP cases, where a constitutional issue related to the DP is at stake, such as the 6 cases i cited, are much more instructive.
I suggest taking the bet. What do you have to lose?
Comment by steve jaros — August 26, 2007 @ 8:26 pm
A stay in a death penalty case can be procedural and have nothing to do with the justice’s stance on the death penalty.
This makes no sense. We are talking about Justice Brennan and Justice Souter. Brennan was categorically opposed to the death penalty. It was dispositive on his vote against the application to vacate the stay of execution in the case I provided above. I also provided you with a similar dissent by Marshall, who was also categorically opposed to the death penalty. Brennan joined Marshall in that case and their rationale was “it is conceptually possible that the inmate could have submitted a pro se cert petition that changed two Justices’ minds, so we should have waited for the pro se filing before voting to vacate the stay of execution”. It should be clear that the judicial behavior of one who categorically opposes the death penalty leads to such “procedural” outcomes.
By contrast, you have no evidence of such behavior from Justice Souter. Post-2000, you have Souter receiving a cert petition, referring it to the whole Court, and then voting against cert. The man is put to death the next day. Souter does not dissent. You cannot extrapolate from that behavior a similarity to Brennan or Marshall, which is your burden. In addition, you have an “ancient” case from 1992 in which Souter dissents in a way no Brennan or Marshall would. Notably he is joined by Scalia and Thomas, strong proponents of the death penalty. That cannot favor your position, either.
DP cases, where a constitutional issue related to the DP is at stake, such as the 6 cases i cited, are much more instructive.
Except it has already been explained why this is not cogent. At this juncture you should understand why Roper does not support your claims. Yet you strive to redefine the issue. The issue is whether there is a practical difference between Justice Souter or Justice Brennan. Your words: “practical difference”. There is. One was loath to see prisoners executed because he categorically opposed the death penalty (which suggests Brennan and Marshall would have not joined the majority in the AEDPA case). The other has little problem voting for applications to vacate a stay of execution knowing that prisoners will be put to death and no problem with the AEDPA regime, which makes putting prisoners to death easier. Contrary to a formulation you agreed with (”He may believe there is an ideal DP case that the state can win, but he has never met it.”), Souter has in fact sided with the state both before and after the arbitrary date you set for cherry-picking your 6 cases. Since we already know that nothing you have said holds up, there is nothing to wager on.
I cannot make any more clear that your position has absolutely nothing to it. Zero. Zilch. Nada.
Comment by Jacques McKenzie — August 26, 2007 @ 9:31 pm
Jacques wrote:
“There is. One was loath to see prisoners executed because he categorically opposed the death penalty (which suggests Brennan and Marshall would have not joined the majority in the AEDPA case). The other has little problem voting for applications to vacate a stay of execution..”
We’ve discussed AEDPA – a 9-0 vote that didn’t bear on the DP.
Do we know that Souter voted with those applications to vacate stays of execution? Does an absence of a written dissent mean we know souter voted to vacate? I guess we know he voted to vacate in that “weeks” case because the case note said stevens and breyer voted to maintain the stay but no one else. But beyond that?
“Except it has already been explained why this is not cogent. At this juncture you should understand why Roper does not support your claims. Yet you strive to redefine the issue.”
Obviously, those 6 cases are cogent, because they are 6 cases in which DP issues were the focus of the case, and in each 6 souter voted against the DP. There’s no getting around that.
Roper fits right in with that, since it was a vote about whether the constitution permits 17 yr olds to be executed. What could be more directly related to the issue at hand – the constitutionality of the DP – than that?
“Contrary to a formulation you agreed with (”He may believe there is an ideal DP case that the state can win, but he has never met it.”),”
Those were someone else’s words. I wouldn’t actually go that far. He may have met it and i just haven’t found the case.
All along, i’ve agreed that Souter isn’t as extreme on the DP as Brennan. It’s not the absence of any difference at all that i’ve claimed, it’s been that Souter isn’t much different from Brennan.
“Souter has in fact sided with the state both before and after the arbitrary date you set for cherry-picking your 6 cases. Since we already know that nothing you have said holds up, there is nothing to wager on.”
He’s only sided with the state if (a) we accord validity to these procedural stay situations compared with actual cases that involved arguments over the constitutionality of the DP, and (b) if we can safely presume that an absence of a written dissent or note indicating who dissented means that Souter voted to vacate the stay.
re (a) I’m not sure that “stay” votes should count nearly as much as the DP cases i’ve cited, since stay votes don’t typically address broad constitutional DP issues. They are largely idiosyncratic to the facts of a particular case, and heavily procedural. even in the two brennan/marshall dissents above, their discussion is chalk full of procedural talk about what constitutes sufficient grounds to overturn stays granted by lower federal courts, arguments that would apply to stays in all kinds of cases.
In contrast, with (e.g.) Roper we are talking about a case that determine whether someone, anyone, all 100 million or so americans 17 or under, can be sentenced to death to begin with. A much broader kind of case that directly addresses the meaning of the constitution re the death penalty.
concerning (b), i hope you can enlighten me on it.
If it is true that an absence of a written dissent or note about who dissented against an order to vacate means that we know everyone else voted to vacate, then i will concede that concerning stay decisions, there is a practical difference between souter and brennan.
But beyond these stay cases, DP cases will surely come before the court this year. There can’t be any harm in taking the wager, right?
Comment by steve jaros — August 26, 2007 @ 11:23 pm
I note that in the “2006 criminal cases roundup” thread that was posted today that there were 6 death penalty cases last term. How did Souter vote?
4 times he was in the majority
2 times he was in the minority
SIX TIMES he was with the DEFENDANT
This space reserved for Jacques to talk more about “stay” votes and explain why these 6 cases, like the other 6 i posted, are “totally unsupportive” or somesuch of my position:
*********
Comment by steve jaros — August 28, 2007 @ 7:37 pm
if we can safely presume that an absence of a written dissent or note indicating who dissented means that Souter voted to vacate the stay.
An inference is not an assumption. I’m still uncertain what 2006 says about the whole of Souter’s career in comparison to the whole of Brennan’s career, especially since Brennan wasn’t alive in 2006.
Comment by Jacques McKenzie — September 4, 2007 @ 11:03 am
Those were someone else’s words. I wouldn’t actually go that far.
Except you agreed with it, without qualification, and it’s been what we’ve been arguing about. Now you are backtracking. Again.
Comment by Jacques McKenzie — September 4, 2007 @ 11:05 am
ME:
Those were someone else’s words. I wouldn’t actually go that far.
Jacques:
Except you agreed with it, without qualification, and it’s been what we’ve been arguing about. Now you are backtracking. Again.
Me again: Jacques, i agreed with it in passing, because of course it’s not the totality of what we’ve been arguing about, are argument obviously predates it. My own words, from 8/16, contradict my ‘agreement’ with his summary of my position.
I never imagined you would latch onto it and try and make it a big deal. If i did, i’d have thought about “agreeing with it” more carefully.
As for 2006 … that’s just icing on a cake that goes back at least to 2000. Or if it doesn’t go back that far, neither you nor anyone else has come up with cases to the contrary.
Comment by steve jaros — September 5, 2007 @ 10:09 am
Me:
if we can safely presume that an absence of a written dissent or note indicating who dissented means that Souter voted to vacate the stay.
Jacques:
An inference is not an assumption …
Me again:
Later in the post, i said “if it is true that the absence of a written dissent ….”
Comment by steve jaros — September 5, 2007 @ 10:10 am
My own words, from 8/16, contradict my ‘agreement’ with his summary of my position.
My own words contradict the summary of my position that I agreed with.
My own words contradict my position.
My position is self-contradicting.
I have no argument.
Comment by Jacques McKenzie — September 5, 2007 @ 11:26 am
Sheesh. I said my agreement with that summary was an oversight on my part.
Is this what you are reduced to?
Since all the cases are on my side, apparently so.
Comment by steve jaros — September 5, 2007 @ 4:27 pm
all the cases are on my side
FWIW, Justice Souter wrote a very good dissent to a very bad DP reversal in Stringer v. Black, 508 U.S. 222 (1992). Haven’t seen anything comparable from him in some time, though.
Comment by Jacques McKenzie — September 6, 2007 @ 12:47 am
my gosh .. that case was raised and discussed long ago.
and anyway, do you really have nothing left but to nit-pick words like “all”? i guess so.
please take the bet ….
Comment by steve jaros — September 6, 2007 @ 11:09 am
do you really have nothing left but to nit-pick
Do you really have nothing left but to deny that your position has no merit?
Comment by Jacques McKenzie — September 6, 2007 @ 12:51 pm
? someone who read your statement and nothing else would think you had just about all the cases on your side. Boy would they be fooled. :)
Comment by steve jaros — September 6, 2007 @ 11:39 pm
My “side” is that your position is false. It doesn’t take much to show that.
Comment by Jacques McKenzie — September 7, 2007 @ 11:15 am
then how come you haven’t been able to do it?
the bet is on the table.
Comment by steve jaros — September 7, 2007 @ 4:06 pm
LOL. I have. You’re just in denial.
Comment by Jacques McKenzie — September 7, 2007 @ 7:09 pm
LOL. No you haven’t. You’re living in a Fantasyland.
Comment by steve jaros — September 7, 2007 @ 8:48 pm
If so, at least it isn’t the one where all the cases are on your side and Justice Souter is Justice Brennan’s doppleganger.
Comment by Jacques McKenzie — September 8, 2007 @ 12:19 am
“If so, at least it isn’t the one where all the cases are on your side…”
That’s reality (well, just about all of the cases are on my side) – but remember, you’re in Fantasyland.
Comment by steve jaros — September 8, 2007 @ 1:21 pm