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Tuesday Round-up

In the wake of Ohio’s botched execution of Romell Broom last week, the debate continues over the constitutionality of capital punishment.  At Newsweek, Krista Gesaman examines the possibility that the circumstances surrounding the execution attempt constitute cruel and unusual punishment under the eighth amendment.  Gesaman points out that only one Supreme Court case, in 1947, addressed the issue of botched executions; in that case, Louisiana ex rel. Francis v. Resweber, the Court ultimately held that a second execution attempt was constitutional.  Romell Broom’s attorney has nonetheless begun litigating constitutional claims on his client’s behalf, arguing in the Ohio supreme court that the incident “was a form of torture that exposed Broom to the prospect of a slow, lingering death, not the quick and painless one he was promised and to which he is constitutionally entitled if he is going to be executed by the State.”

The Volokh Conspiracy’s discussion on the Court’s possible response to a health care bill continues today as well. David Bernstein addresses the possibility of growing legislative influence on constitutional issues, arguing that the Supreme Court would be more likely to invalidate provisions of Obama’s health care reform bill if the GOP sweeps the midterm elections, pointing out that the Court has often issued opinion in line with the political majority. The Court, he points out, “does not like to be exposed on controversial issues without any support from the political branches.” Ilya Somin agrees with this assertion, but counters that the notion that the Court “follows the election returns” may be an overstatement, citing cases like Kelo v. City of New London in which the Court upheld unpopular laws, and cases on issues like school prayer and flag burning, in which the court overturned popular ones.

In the Citizens United debate, the Boston Globe has an editorial today arguing that a ruling in favor of corporations “would be a mistake,” and suggesting that the Citizens decision will have implications for the ongoing health care debate, as it may determine the extent to which health care industry groups can fund congressional campaigns.  A New York Times editorial today adopts the same stance, pointing out that while corporations do have some rights which mirror those of individuals (the right to own property, for example), their rights have traditionally been limited in the political sphere.  The editorial concludes that “[t]he founders of this nation knew just what they were doing when they drew a line between legally created economic entities and living, breathing human beings.”

The BLT’s Tony Mauro reports that Justice Sotomayor has opted to participate in the Court’s controversial pooling arrangement, whereby the justices divide up the thousands of cert petitions that are filed each year.  Each petition is reviewed by a pool clerk, who then prepares a memo which often constitutes the only information about the petition that the justices see.  The pooling strategy has been criticized, most recently at a Yale conference last week, for placing too much power in the hands of individual clerks.  Justice Sotomayor has indicated that she hopes to “experience the process [of the pooling arrangement] for awhile” before deciding whether to adopt the strategy permanently.

ACSblog summarizes a new Issue Brief by the University of Denver’s Scott Phillips.  In the brief, “Racial Disparities in Capital Punishment: Blind Justice Requires a Blindfold,” Phillips sets out his findings on unequal imposition of capital sentencing, and argues that because the Supreme Court is unlikely to reverse its 1987 ruling in McCleskey v. Kemp, other mechanisms for reducing racial disparities in death penalty implementation must be developed.  McCleskey held that the death penalty was not unconstitutional when no purposeful discrimination against the defendant could be proven.

Balkinization’s guest bloggers continue today to address the theme of future constitutional interpretation, centered on Yale’s upcoming conference honoring the publication of The Constitution in 2020, a compilation of essays by legal and civil rights scholars.  Ethan J. Leib writes that the book advocates a shift away from judicial change and towards legislative reform, arguing that “the romance of the Warren Court has faded for most” and that the today’s legal academy is not content to rely only on legal solutions.   Sophia Lee also asks whether courts are still the institution best suited to implement the constitution, but she posits that administrative agencies may present one alternative.

Former Justice Sandra Day O’Connor has been continuing her fight against judicial elections.  In an appearance at West Virginia University Law School, West Virginia Public Broadcasting reports, O’Connor responded to the state’s practice of electing judges by countering that her home state of Arizona, which does not elect judges, has “as good a bench in the state today, as anywhere in the nation.”  Critics have reported that judicial elections lead to decreases in racial diversity and potential conflicts of interest.

On a lighter note, U.S. News offers an upbeat profile in Antonin Scalia: Supreme Court Class Clown, noting the Justice’s scorn of legal writing (“lawyers are lousy writers”), his penchant for the movie My Cousin Vinny, and his dislike of “lawyers who take off their eyeglasses and wave them dramatically in the air at the justices to make a point.” The best news is that a good joke isn’t always out of place in the courtroom; according to Scalia, “if it is indeed done well in front of a judge with a sense of humor, such as I, it’s effective.”