Of all the Supreme Court decisions in the closing week, the one that upset me most was the 5-4 decision that declares that death by slow torture is not cruel and unusual punishment. The dissents by Ginsburg and Breyer were the refreshing part of the decision. Using this decision as a backdrop, consider the two different Courts that may exist ten years from now.
Justice Harry Blackmun got there in 1994, after twenty-four years on the bench. For Justice John Paul Stevens, it took twenty-three years. Today, after twenty-two and twenty-one years, respectively, Justices Stephen Breyer and Ruth Bader Ginsburg, too, now recognize there is no constitutionally sufficient way to implement the death penalty.
The pair were among the dissenters from a 5-4 decision of the court this morning which held that Oklahoma death row defendants failed to prove that there was a less painful method of death available to them, and they had no right to a painless death. "Because it is settled that capital punishment is constitutional," wrote Justice Alito for the Court, “it necessarily follows that there must be a constitutional means of carrying it out. And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain."
To Justices Breyer and Ginsburg, however, enough’s enough:
In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems. Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.
I shall describe each of these considerations, emphasizing changes that have occurred during the past four decades. For it is those changes, taken together with my own 20 years of experience on this Court, that lead me to believe that the death penalty, in and of itself, now likely constitutes a legally prohibited “cruel and unusual punishmen[t].” U. S. Const., Amdt. 8.
If you thought the next presidential election was crucial already, it just got a whole lot bigger. Four Justices (Kennedy, Scalia, Ginsburg, and Breyer) are between 77 and 82 years old. Elections matter… [emphasis original]
Inserted from <Daily Kos>
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Now, consider a Court in which Sturmbannführer Scalia, and Kennedy, along with Ginsburg and Breyer were replaced with Justices just like Ginsburg and Breyer. Such a Court would make Constitutional decisions. The Fascist Five Injustices of SCROTUS, Republican Constitutional VD, would have become the Toddler Tantrum Three. America would be on the mend.
On the other hand, consider a Court in which Ginsburg and Breyer, along with Scalia and Kennedy were replaced with Injustices just like Sturmbannführer Scalia, Teabag Thomas, and Scalito. Such a Court would establish permanent, totalitarian Republican Reich. The Fascist Five Injustices of SCROTUS would become the Sedition Seven. America would not survive.
In this Tale of Two Courts, which Court do you want? What are you willing to do to get it?