Today, the Supreme Court declined to hear the case of Tucker v. Louisiana. Tucker is a death penalty case that progressives had hoped would start to unravel our system of state-sponsored killing. As lethal injection drugs become harder and harder to acquire, Justice Stephen Breyer has been openly pining for someone to bring him a case where the Court could review its stance on the death penalty.
Now if he could just get his liberal colleagues to agree with him.
Justices Breyer and Ruth Bader Ginsburg dissented from today’s refusal to hear the case. You only need four justices to agree to hear the case, so Justices Breyer and Ginsburg were half of what was needed. Let’s assume, for the sake of the argument, that the four conservatives on the court are just fine with our current system of states being “laboratories” of death.
Where does that leave Justices Elena Kagan and Sonia Sotomayor? If the two Obama-appointed justices wanted to hear Tucker’s appeal, they could have. But they did not. What gives?
We know Obama is pro-death penalty. He says all the right things: it should only be used for “heinous crimes,” the data that it is applied in a racially biased way is “deeply troubling,” yada yada. This is a man who sends his drones into foreign countries to kill terrorists (and anybody else who is unfortunate enough to be standing near them). If the man has a moral objection to killing “bad guys,” he hasn’t shown it as President.
Did he appoint two Supreme Court justices who feel the same way? Justices Sotomayor and Kagan have both supported the concept of a death penalty that is constitutional, in keeping with current Supreme Court precedent. The most recent SCOTUS death penalty case is Glossip v. Gross, which looked at Oklahoma’s lethal injection cocktail. The Court affirmed Oklahoma’s death plan, 5-4, and Justice Sotomayor wrote a dissent after just torturing the Oklahoma lawyers during oral argument. One might think she was as anti-death penalty as the next guy.
But the next guy is Justice Breyer, and cleary she’s not with him. Justice Sotomayor’s dissent was separate from Justice Breyer’s own dissent in that case. Like Obama, she seems to think there is a way to administer the death penalty fairly and constitutionally. She didn’t think that Oklahoma got there, but at core, she seems to think there’s a way to make this work.
It’s worth noting that this split has happened with a previous generation of justices. When the Supreme Court ruled that the death penalty was unconstitutional in 1972, the vote was 5-4, but three of the majority justices thought the death penalty could be constitutional. Sure enough, in 1976 the Court reinstated the death penalty, by a vote of 7-2. Only Justices William Brennan and Thurgood Marshall felt that the death penalty could never be constitutional.
Justice Kagan, of course, clerked for Justice Marshall, but she has not yet said she agrees with his absolutist position on this issue.
We also don’t know for sure where potential Supreme Court Justice Merrick Garland stands on the question (shut up, it could still happen!). What we do know is that Judge Garland was the lead prosecutor of Timothy McVeigh, the Oklahoma City bomber. McVeigh was put to death. I’m guessing Judge Garland didn’t cry himself to sleep when it happened.
With his three Supreme Court picks, President Obama might have secured the death penalty’s future for another generation. I wonder if there’s space to carve that into his Nobel Peace Prize.
No comments:
Post a Comment