Wednesday, May 14, 2008
Intellectual Honesty and the Supremes
"Thirty-two years ago, Justice John Paul Stevens sided with the majority in a famous 'never mind' ruling by the Supreme Court, Gregg v. Georgia, in 1976, overturned Furman v. Georgia, which had declared the death penalty unconstitutional only four years earlier. The week, Justice Stevens said 'never mind' again in Baze v. Rees, which ruled the Kentucky lethal-injection procedure did not constitute 'cruel and unusual' punishment. ... He's concluded, you see, that Furman was right all along. ... There's something almost admirable in Justice Stevens intellectual honesty on this point. Baze was one in a recent campaign to euthanize the death penalty piecemeal by getting the courts to declare the method of execution, rather than the penalty itself, to be unnecessarily cruel. But then again, his was not the deciding vote in this week's case, so his concurrence, accompanied as it was by a condemnation of the death penalty itself, was a 'free vote,' of a sort. ... The death penalty, he argues, is unconstitutional today, even if was constitutional 32 years ago, because it doesn't serve a social function that justifies the sentence, and so is 'excessive'," editorial at the WSJ, 19 April 2008.
The law is whatever the Supremes think it is, until they are told in no uncertain terms, that the other branches of government will ignore their opinions.