Monday, September 02, 2002

Death penalty I am glad to see that Howard Bashman's back from vacation, not only because I can learn things from reading his site, but so that I can be his occasional cynical-realist foil. For instance: the reason that Justice Souter didn't join the other three what-passes-for-liberal Justices in the stay vote that raised the issue of the constitutionality of executing juvenile offenders? It's easy. Even if Justice Souter believes the practice unconstitutional -- and I don't know if he does, but let's say so for the sake of argument -- he knows that the executions would be upheld if cert were granted. If you've got four votes but are pretty sure you can't get five, then the last thing you want to do is to get cert granted. And how are we pretty sure that you couldn't get five votes for the proposition that executive juvenile offenders is unconstitutional? Because of footnote 18 in Atkins, which says in paraphrase "the issue about executing juvenile offenders is entirely different from the issue of executing mentally retarded defendants, and there's no national consensus against the former issue as there is the latter". If Justice Stevens could have gotten five in Atkins without that footnote, he would have left it out. So, the bottom line is that it's not so rare for a Justice to strategically avoid certiorari by refusing to cast a fourth vote, in order to avoid a loss. This is why Justice Souter won't be the fourth vote for cert on this issue, even in a case that has no procedural problems, so long as the lineup of the Court remains the same. Better to wait a few years to see if more states outlaw such executions (inspired by, among other things, the dissent of the three Justices in this case), and then try to get cert granted. Nice to have you back, Howard!

posted by sam 7:29 AM 0 comments

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