Fault Lines
19 February 2019

The Anthony Kennedy Conundrum, A Matter of Life and Death

Jan. 20, 2016 (Mimesis Law) — It’s not quite the time and the Supreme Court is not quite the place.

So says Murray Newman, and I’m not about to say he’s wrong.  On the other hand, well, as Justice Brennan used to point out, it’s all about counting to five.

Let’s backtrack a bit – to, say, 1963. That’s when Supreme Court Justice Arthur Goldberg (joined by Justices Douglas and Brennan) issued a brief dissent from the Court’s refusal to hear Rudolph v. Alabama.  He wrote (I’m omitting the footnotes):

I would grant certiorari in the case and in Snider v. Cunningham, 84 S.Ct. 154, to consider whether the Eighth and Fourteen Amendments to the United States Constitution permit the imposition of the death penalty on a convicted rapist who has neither taken nor endangered human life.

(1) In light of the trend both in this country and throughout the world against punishing rape by death, does the imposition of the death penalty by those States which retain it for rape violate ‘evolving standards of decency that mark the progress of [our] maturing society,’ or ‘standards of decency more or less universally accepted?’

(2) Is the taking of human life to protect a value other than human life consistent with the constitutional proscription against ‘punishments which by their excessive * * * severity are greatly disproportioned to the offenses charged?’

(3) Can the permissible aims of punishment (e. g., deterrence, isolation, rehabilitation) be achieved as effectively by punishing rape less severely than by death (e. g., by life imprisonment); if so, does the imposition of the death penalty for rape constitute ‘unnecessary cruelty?’

It was, effectively a clarion call. Three members of the Court had questioned, at least in the context of rape, the constitutionality of the death penalty.  Would there be two more?

1970: Goldberg, no longer on the Court, and his former-law-clerk now-Harvard lawprof, Alan Dershowitz, publish “Declaring the Death Penalty Unconstitutional” in the Harvard Law Review.  This was looking serious.

Evan Mandery tells the story in A Wild Justice: The Death and Resurrection of Capital Punishment in America, of how a strong coalition, under the leadership of the NAACP Legal Defense and Educational Fund, developed a strategy and litigated their way to Furman v. Georgia, the 1972 case that declared every death penalty statute in the country unconstitutional but the death penalty itself not.  And then, how that victory for abolition turned nightmare four years later when the Court upheld new death penalty laws in Georgia, Florida, and Texas.

Since then? The court has continually, in Justice Blackmun’s words, “tinker[ed] with the machinery of death.”

They’ve put in constraints and removed them. They said it was okay to kill the mentally retarded and folks who committed their crimes while juveniles.  They then said those things were unconstitutional.  Last week the court reconsidered and declared Florida’s death penalty system unconstitutional.

At various times over the years, at least five members of the court have said that the death penalty is inherently unconstitutional. Never all at once though.  Never five sitting members.  And at the moment there are none.  Not one of the nine berobed ones in D.C. has publicly stated that the death penalty is, in all circumstances, unconstitutional.

Ah, but there are tea leaves.

Because when the Court decided Glossip v. Gross last year, declaring Oklahoma’s seriously fucked up execution methods constitutional, it’s not just that the vote was 5-4, but that Stephen Breyer, joined by Ruth Bader Ginsburg, said it’s time to revisit the question.

But rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.

And then laid the arguments out. At length.  And with detailed explanation.  Which made clear that the two of them were ready and willing to shut it down.  For good.

And though they spoke only for themselves, pretty much everyone (except maybe Murray) believes that if the question is properly before them, the Generalissima and the empath will join them in voting for abolition.

That’s 4 votes. Which is just enough votes to lose.

Murray’s is a response to an editorial in Sunday’s Times, suggesting that the time is ripe.  Which maybe it is.  Or maybe not.  Because the question isn’t whether abolition is right (define that however you like, for the moment).  The question is whether there’s a fifth vote.

The question, that is, is what to make of Anthony Kennedy.

Because let’s be honest. The homicidal four (Nino, Thomas, Balls ‘n’ Strikes Roberts, and Sam the Man Alito) are just fine with executing folks.  But Kennedy . . . ? The man seems to have qualms.

He likes to talk about human dignity. He likes to see how the Europeans do things.  He wrote the opinion in Kennedy v. Louisiana holding Louisiana’s law allowing for execution of those who rape children unconstitutional and announcing that the death penalty can only be imposed on people who kill.  He wrote the opinion in Roper v. Simmons holding that the death penalty can’t be applied to those who committed their crimes as juveniles.  Besides, he’s cool with same sex marriage.  Surely.

Or maybe not.

Frankly, the abolitionist community is divided. Is this the time?  Do we have Kennedy’s vote?  A loss will be devastating.  Why take a chance?  But Breyer wouldn’t have called for a case if he wasn’t sure of Kennedy.  Or Breyer was saying what he wants.  He’s calling for a vote, not promising a win.  Or —

In conference on Friday, the justices discussed whether to hear the case of Shonda Walters, a woman on death row in Pennsylvania. Ordinarily, they would have announced their decision on Tuesday.  They didn’t.  The case was, in the jargon of the Court, relisted for conference on Friday.  With a decision expected to be announced Monday next week.  Unless they hold it over again.  As they might.

While all eyes are on Anthony Kennedy.

And really, nobody knows. Which is kind of frightening whether you’re an abolitionist or a retentionist.

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