Monday, October 21, 2002

As you've probably read elsewhere, the Supreme Court declined today to rule that it is unconstitutional to execute a person who was under 18 at the time of his offense. The Court didn't hold that it's ok to do it; the Court just, without opinion, denied the petition that raised the issue. Four justices -- the ones who pass for liberal in the current climate, Justices Stevens, Souter, Ginsburg & Breyer -- dissented. Their dissent is available through Jurist here.

This issue offers an interesting (interesting to us nerds, at least) glimpse into number-counting at the Court. Everyone has heard (even if most have since forgotten, perhaps) that it only takes 4 votes out of the nine justices to grant certiorari in a case -- i.e., to put it on the docket, such that the whole court will decide the case on the merits. Some people were wondering, a few weeks ago, why only three Justices voted to stay an execution in which this same issue was raised -- more pointedly, they wondered, why didn't Justice Souter, who presumably thought the practice unconstitutional, join in the vote to stay and grant certiorari? I posited at the time that it was because he was smart enough to know that -- if the case was put on the docket and forced to a decision -- the court would uphold the practice 5-4, and Justices are often clever enough not to vote for certiorari in a case where they know they will wind up in the minority. (Better to have no Supreme Court decision, than a Supreme Court decision you disagree with).

So how come Justice Souter provided the fourth vote today? Because this was not a certiorari petition, but an original habeas corpus petition. Granting such a petition -- and, apparently, even putting it on the docket for argument, so it seems -- takes 5 votes. So, by providing a fourth vote for the dissent in this case, Justice Souter didn't force the Court to take the case on its merits and decide it; instead, the case provided the opportunity for, so to speak, a free dissent-by-four, a dissent without the bummer of a bad majority 5-4 opinion.

So what will happen next time this issue is presented by a certiorari petition? My guess is that the four Justices who dissented here will NOT vote for certiorari, because (again) they don't want the Court to take the case only in order to reject their views in a majority opinion. Their point has been made, and there it will sit until perhaps the Court's composition changes materially.

posted by sam 2:37 PM 0 comments

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