Big Monday, 2015

Traditionally, the Supreme Court reserves the very biggest cases of its Term for announcement of decision on the very last day of its Term. So getting the Obergefell same-sex marriage decision on Friday rather than having to wait until today was a bit of a surprise. Still, the remaining three decisions on the Court’s docket released today should in no way be considered an anticlimax.

Quite the contrary, the sharp divisions and contentiousness evident in Obergefell clearly transcend the subject matter and suggest that there are fundamentally different visions of justice and the Constitution at play — and one opinion sharply indicates that Chief Justice Roberts is falling into, rather than arresting, this polarization not only of differences of opinion but of airing his frustrations with his differently-voting colleagues on the record.

 

lethal injection photo

Image by Ken Piorkowski Big Monday, 2015

In Glossip v. Gross, the issue is framed not as to whether the three-drug protocol used by the state of Oklahoma for capital punishments is unconstitutional. The Court indicates that it determined that protocol does not violate the Eighth Amendment in Baze v. Rees, 553 U. S. 35. That decision evaluated the use of sodium thiopental and a similar drug, pentobarbital, as the first of those three drugs. Those drugs were rendered unavailable (the Court says under pressure by anti-death penalty activists on the manufacturers) so the state substituted a different barbituate as the initial anesthetic, midazolam.

Justice Samuel Alito. Official U.S. Supreme Court photograph, no copyright on U.S. Government photography.

Justice Samuel Alito.

Justice Samuel Alito relied on the procedural posture of the case — the petitioner is an Oklahoma death row inmate seeking a preliminary injunction against the use of midazolam in his execution — to erect a standard of review that the petitioner must demonstrate a probability of success on the merits. In other words, he must show, before the trial on the merits, that it is more likely than not that the use of midazolam would do something that constitutes cruel and unusual punishment. Under that standard of review, the trial court hearing his motion gets pretty broad deference as to its findings of fact, and by a hugely contentious 5-4 vote, the Court holds that this showing was not made.

Justice Stephen Breyer

Justice Stephen Breyer.

In one of the two dissenting opinions, Justice Stephen Breyer, joined by his Sister Justice Ruth Bader Ginsburg, indicated that he would have prudentially granted the preliminary injunction and called for a re-briefing on the issue of the death penalty generally. (!) Not enough votes for that to happen. Indeed, Justice Antonin Scalia and Clarence Thomas wrote separate concurrences to each respond to Breyer’s plea for review of capital punishment generally.

Justice Sonia Sotomayor

Justice Sonia Sotomayor.

Justice Sonia Sotomayor, joined by her Sister Justices Ginsburg and Elena Kagan, wrote a very long dissent indicating that the burden ought to be on the State, not the Petitioner, to come up with appropriate alternative protocols given that review of the sentence itself was not before the Court, and basically all but accusing the state of Oklahoma of lying in its presentation of facts about the medical effects of midazolam. Quite rare for so intense a factual dispute to make its way out into a SCOTUS opinion; usually the facts are basically not in dispute.

The high temperature of the dispute amongst the Nine on Glossip can be measured by the fact that the Justices took half an hour to read “excerpts” of their opinions during the Court’s session this morning. They didn’t take that long to air out their differences of opinion even in Obergefell.

 

lossy-page1-408px-Arizona_Congressional_Districts,_113th_Congress.tif[1]The second decision of the day was Arizona State Legislature v. Arizona Independent Redistricting Commission. This case addresses the validity of a voter initiative creating an extra-legislative commission to draw the boundaries of Congressional districts. The the state legislature pointed out that the Constitution specifically describes how congressional districts are to be drawn: “The Times, Places and Manner of holding Elections for Sena tors and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” Therefore, the Arizona State Legislature said, only it, and no other body or entity, may set the boundaries. Also relevant is 2 U.S.C. § 2a, which describes districts “…prescribed by the law of [the] State.

Justice Ruth Bader Ginsburg, who obviously exercised strong influence over the contents of Justice Kennedy's majority opinion in Obergefell v. Hodges. Official U.S. Supreme Court photograph, no copyright on U.S. Government photography.

Justice Ruth Bader Ginsburg.

The Legislature lost, in a 5-4 partisan-bloc vote with Justice Anthony Kennedy providing the swing vote in favor of the appropriateness of the extra-legislative commission. The majority opinion was written by Justice Ginsburg. Ginsburg cast her opinion as a pro-Federalism decision in that she claims to afford Arizona maximum deference in setting its own laws, rules, and procedures, and these may include citizen initiatives. The point of the Elections Clause (quoted above) is to give Congress the ability to step in and override a state’s election rules if those rules restrict the ability of its citizens to vote in a meaningful way; this dovetails with the Guaranty Clause. There is no reason to think that a citizen initiative, if otherwise lawful under the state laws, creates a result that procedurally divests citizens of a state from the franchise.

Ginsburg ventures into “original intent” territory by suggesting that while the Framers did not envision citizen initiatives, but they did envision “the People” as the ultimate repository of political power and the final sovereign, so to interpret the Elections Clause to prefer a legislature to “the People” would be perverse. Whether exploration of “original intent” is a good fit or an unusual environment for Justice Ginsburg is a matter best deferred to individual opinion and upon which I shall remain silent here.

Chief Justice John Roberts.

Chief Justice John Roberts.

The Arizona case has three dissenting opinions, with the principal dissent by Chief Justice John Roberts, joined by his Brother Justices Scalia, Thomas, and Alito. The Chief’s basic argument is that when the Constitution uses the word “Legislature,” it meant “Legislature,” not “People.” A pretty solid textual argument, if you ask me, and one that I could be persuaded to sign on to.

Not adding luster to that argument, though, is Roberts’ second indulgence into heretofore-uncharacteristically bitter sarcasm as a means of expressing his opinion. This time, he opens up by calling the voters of Arizona “chumps” for adopting the Seventeenth Amendment — because they could have transferred the mechanism selection of U.S. Senators out of the Legislature and directly to the voters through the manner Constitutional interpretation used by the majority in this case rather than through efforts to amend the Constitution itself. He goes on to offer this acid critique of the majority’s reasoning: “The majority begins by discussing policy. I begin with the Constitution.”

I’m forced to wonder if maybe a clerk on the Chief’s staff spent last Term clerking for Justice Scalia, because this sort of thing is much more characteristic of the Dean than the Chief. But all the Justices personally review and give the final edit to the various opinions, so it’s clear enough that Roberts has personally endorsed these passages. And it’s not that Roberts has ever lacked the ability to deploy vibrant color in his writing, but my goodness, he’s never sneered at his colleagues so before this last packet of opinions, even in disagreement with them. I really dislike this trend in his writing, and I hope that it reverses itself next Term.

The punchline for this case is that a state can adopt an extra-legislative, non-partisan commission as an anti-gerrymandering measure. As a general proposition, I find cause for hope in the long term that this can help defuse the partisan polarization that seems to me to hobble our government’s collective ability to make routine but important political decisions.

 

smokestack photo

Image by otodo Big Monday, 2015

Today’s final opinion has had several titles and styles, but is officially captioned Michigan v. Environmental Protection Agency. At issue in the case is a set of regulations promulgated by the EPA pursuant to the Clean Air Act concerning the amount of airbone pollutants, most prominently mercury, that can be permissibly included in emissions from heavy-industrial facilities, in particular as relevant to this case, electric generation plants. The case turned on a particular passage of the Clean Air Act in which Congress directed the EPA to determine if regulation of electric power utilities is “appropriate and necessary,” with focus on the interpretation of the word “appropriate.” The state of Michigan and a cadre of public utility and private industry groups contended that “appropriate” in context meant that Congress had directed the EPA to consider the cost of keeping pollutants such as mercury out of atmospheric emissions of electric power plants in determining the extent and intrusiveness of the regulations.

Seems like dry stuff, this business of statutory interpretation. Of course, the stakes in this statutory interpretation question are quite high: huge dollars, which might be passed on to consumers in rate increases or lost to stockholders in increased production costs. Oh, and particulate mercury in the air that you breathe. As framed by the petitioners “EPA’s decision that it is “appropriate” to achieve $4 to $6 million in health benefits at a cost of $9.6 billion is not reasonable, imposes great expenses on consumers, and threatens to put covered electric utilities out of business.” Note that those cost estimates came from the EPA, not from the regulated industries.

The EPA, in its brief, contended that in other sections of the Clean Air Act, it is explicitly directed to consider cost, and the lack of explicit mention of cost in considering airborne pollutants for this issue meant that Congress was, by omission, directing the EPA to deprecate or even ignore cost, as it thought best in its sound discretion, because, well, particulate mercury in the air is really, really bad.

Justice Antonin Scalia. Official U.S. Supreme Court photograph, no copyright on U.S. Government photography.

Justice Antonin Scalia.

The EPA lost, by a 5-4 vote. Justice Scalia had the majority opinion, joined by his Brethren Roberts, Kennedy, Thomas, and Alito. Scalia found that the phrase “appropriate and necessary” is “capacious,” and therefore the reasonable interpretation of that statutory imperative would be to consider lots of relevant issues as opposed to few of them. The cost of complying with regulations is at least relevant and therefore should be considered.

As a sop to environmental concerns, framed in the form of setting out the nuance of the appropriate degree of deference in the legislative-to-administrative delegation, Scalia took time to note that the holding does not mean that the EPA need consider cost as a dispositive factor. But because cost is something that is relevant, it is “appropriate and necessary” to consider it as one among many factors when deciding how to regulate.

Justice Elena Kagan

Justice Elena Kagan

In dissent, Elena Kagan was joined by Justices Ginsburg, Breyer, and Sotomayor — a voting pattern now very familiar and adhering to the traditional left-right blocs outlined by the popular media’s vision of the Court. (It’s worth noting that in the general imagination, Justice Anthony Kennedy is seen as a “swing vote,” and in this case Kennedy sided with the conservatives to form a majority.) Justice Kagan threw out two points: first, that the EPA did conduct a cost-benefit analysis of its proposed regulations, and second, that the regulatory record indicates that on several occasions, regulators and commissioners considered the results of that study and of information about cost submitted by the industries. While Kagan agrees with the majority that failing to consider cost at all would have been unreasonable, she sees no evidence that’s what happened. Rather, she sees that the EPA did what the majority claims it should have done: considered cost as one factor, not necessarily the critical factor, among many. That the majority finds the results of the EPA’s rule-making process unreasonable after the record demonstrates the EPA did precisely what the majority says it should have done demonstrates, in Kagan’s mind, that the majority is actually ruling that the EPA should have made determinations affecting the public health using the economic calculus urged by the petitioners in the quoted passage above.

A word about drafting language is appropriate here, particularly in light of quite a bit of heat on that issue shed in Justice Scalia’s dissenting opinion in Obergefell: the language in both the majority opinion, a brief concurrence by Justice Thomas, and in Justice Kagan’s dissent is all sedate, professional, and scholarly in tone. If Justice Scalia intends to demonstrate that when writing for the majority, the level of bombast in writing should be dialed back considerably, he succeeded in so doing. Justice Kagan, for her part, declines that dissent’s invitation to rant and seethe in dissent, and instead is respectful and sober even as she sharply disagrees with the majority’s holding.

This is as it should be, in my opinion, and I really cannot express enough how much I regret seeing Chief Justice Roberts’ opinions deviating from that model.

 

Official Photograph of Justice Anthony Kennedy

Justice Anthony Kennedy.

There were the usual rumors swirling this year about judicial retirements. One particularly interesting idea was that Justice Kennedy, after writing the Obergefell decision, would “drop the mic” and retire after this term, having achieved the pinnacle of his judicial legacy. Properly, not a lot of serious credit was given to that notion.

Anthony Kennedy is the center of power and decision on this Court, and has been so, in effect, since 2006 (and before that, he shared that position with his Sister Justice Sandra Day O’Connor). Until the ideological makeup of the Court changes, Kennedy is effectively in the judicial catbird seat: his vote decides most of the critical and difficult legal issues of our time. Today, his vote was the decisive one in each of the Court’s cases. Does he like it this way? Maybe yes, maybe no. But it’s a burden that he obviously finds himself able to bear and which he probably considers himself ethically obliged to take on until such time as he can no longer discharge his duties.

Justice Clarence Thomas. Official U.S. Supreme Court photograph, no copyright on U.S. Government photography.

Justice Clarence Thomas.

There is also the unhappy but inevitable question of involuntary attrition. Justice Ginsburg is 82 years old. She’s made it quite clear that she will leave the Court feet first. (It’s for durn sure that Justice Thomas will be leaving that way, too.) Justices Scalia, Kennedy, and Breyer are not that far behind Ginsburg, at ages 79, 78, and 76 respectively. All of their minds are still sharp; they all are in generally decent health for people their age. And they’re all quite perceptive of the closely-divided political structure out there in the world: they all know full well that it would be exceedingly difficult for the existing President to successfully nominate a replacement for any of them, at least when faced with the existing Senate.

My expectation is that, absent one of their unexpected deaths or self-recognition of significant mental decline of one of the Justices, we won’t see any changes on the Court until at least 2017.

 

We’ll see SCOTUS back in session on October 5, 2015. My plan is, as with last year, to offer a summary of the high points of the 2015-2016 docket on that day. For sure we’ll be looking at Evenwel v. Abbott, the “one person, one vote” case from Texas, and Kansas v. Carr, which has become a significant challenge to capital punishment trial court procedures and earned itself a two-hour oral argument all but certain to be as contentious as this year’s Glossip matter.

I invite people who have interest in the Court’s recent activity, both with cases I’ve digested and not, to dig in and offer up their own opinions and takes on things. Until then, SCOTUS is adjourned.

 

Feature photograph and portraits of Justices all U.S. Government photographs, no copyright. Map of Arizona Congressional districts from public domain. .

Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California and the managing editor of Ordinary Times. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

Please do be so kind as to share this post.
Share

66 thoughts on “Big Monday, 2015

  1. I detect the dynamics of the playground here with these intemperate dissents.

    There ar a group of like-mided Big Boys. Not all are bullies, but some are, or at last one is. Scalia is the lead bully – cruel and calculating. Roberts is the Golden Boy with a good conscience. Alito is The Loner who keeps to the side thinking his sulky thoughts (“They’re gonna call my dad a bigot!”). Thomas is The Wild Card, you can never tell when he’s gonna let fly and he clearly has a cauldron of rage simmering beneath, but mostly he doesn’t, and mostly he seems quite engaged in trying to contain it. (Read his bio: a cauldron of rage simmering beneath is not an unfair thing to ascribe to Clarence Thomas’ makeup.

    The question is: what way will the group go? Toward comity or aggression? Roberts wants to lead toward the former. Alito doesn’t care. Thomas is doing his best just to manage his own contribution. But Scalia is clearly relentless pulling in his direction. Can Roberts stand up to Scalia, not just once or a few times, but consistently, over a career? Or will Scalia finally wear him down and pull the group his direction?

    The decisions of last week were encouraging from Roberts’ perspective (or our perspective of Roberts). Maybe the Arizona dissent indicates a bit of faltering from his appointed role as Conscienc of The Right, but I wouldn’t get too concerned about it yet. Generally I have confidence in the Chief’s ability to maintain rhetorical sobriety over time (though I’ve always thought he relied a little to strongly on metaphors ever since “Balls and strikes myself).

    And, hey, this is only a metaphor, and to be sure everyone is tempted into rhetorical indulgences from time to time, whether combative or poetic. We have to allow for his human lapses just like everyone’s.

    Incidentally, what’s with “The majority begins with policy”? He began King with policy. I suppose that was only about policy (statute), but… still. It’s about both, so who cares where they start? The policy is the thing under consideration; everyone up there knows what the Constitution says;).

      Quote  Link

    Report

    • I continue to think that Roberts is both someone who holds political beliefs I dislike and a reasonable jurist. My read on him is a bit different in that he is trying to balance two things: (1) the way the “Roberts Court” is treated by history; and (2) a desire not to completely lose his conservative cred. That’s why I think he’s allowing himself to be extra fiery today.

        Quote  Link

      Report

        • I, too, was surprised by this. As I noted on one of Burt’s other postings, though, Kennedy is a California boy all the way through Stanford, and TTBOMK the only one of the nine who did any legal work in an initiative state. I would not be surprised if he was the source of this bit from the tail end of the majority’s syllabus:

          Banning lawmaking by initiative to direct a State’s method of apportioning congressional districts would not just stymie attempts to curb gerrymandering. It would also cast doubt on numerous other time, place, and manner regulations governing federal elections that States have adopted by the initiative method. As well, it could endanger election provisions in state constitutions adopted by conventions and ratified by voters at the ballot box, without involvement or approval by “the Legislature.”

          I’ve noted other times that the initiative as a major feature of state governance has been running loose for a hundred years, in states that currently account for at least a quarter of the entire US population. Making a decision that there are limits to what the initiative can do — beyond the same kind of limits that apply to what the selected representative body can do, or the people at a constitutional convention — raises the entire question of how much other stuff has to be tossed. Kennedy would certainly be aware of that problem.

            Quote  Link

          Report

  2. A few reactions to today’s rulings:

    1. I expect people to continue to have a partisan reaction to the outcomes (I certainly do, and each of these are significantly politicized issues).

    2. This is further illustration of the uselessness of “judicial activism” complaints. It was how many days ago that conservatives were bemoaning the fact that the constitution doesn’t explicitly allow for gay marriage? Today we have a court saying that “appropriate and necessary” means “must consider costs before regulating, even though that specific requirement exists elsewhere but not here and a cost-benefit analysis is insufficient.” Whether we think that’s right or wrong, I hope we can admit that’s judicial activism in the other direction.

    3. In the interest of fairness, I’ll point out that Sotomayor was plenty fiery in her Glossip dissent too.

    4. Post Glossip, I wonder how the folks fighting to make usable drugs unavailable respond. If any drugs are ok, it seems cruel and arbitrary to prevent states from getting the least-bad ones.

    5. I really hope citizens commissions are the wave of the future, but before we get too mad at Roberts we should freely concede that his is absolutely not a crazy position (unlike, say, the three clowns in King). I personally think 2 U.S.C. § 2a is a pretty good answer to the “legislature thereof” argument since the Constitution allows that “the Congress may at any time by law make or alter such regulations.” That said, it’s a close question and reasonable minds can easily differ.

      Quote  Link

    Report

    • I think the issue with Glossip is that most of the “least-bad” drugs are produced abroad and produced in countries where there is much unified (at least unified elite) responses against Capital Punishment. It would be a very strange case to tell foreign corporations that they have to give states the least bad drugs.

        Quote  Link

      Report

  3. This application of the Death Penalty remains Constitutional by a 5-4 decision.

    Is this one of those “THIS IS AN OUTRAGE!!!” 5-4 decisions or a “GET IN LINE, HATERS!!!” 5-4 decision?

      Quote  Link

    Report

    • What is it for you? It seems like the government being allowed to kill people is about the most expansive form of government power that can exist.

      I’m definitely no lawyer, but rationale of the decision seems odd to me.

      In other words, he must show, before the trial on the merits, that it is more likely than not that the use of midazolam would do something that constitutes cruel and unusual punishment.

      So….that means something isn’t “cruel and unusual punishment” if there’s less than a 50-50 chance that it would be cruel and unusual? So if the police hooked someone in jail up to a machine that had a 40% chance of giving them a nasty electric shock and a 60% chance of doing nothing, and pressed the button occasionally, that wouldn’t be “cruel and unusual”?

        Quote  Link

      Report

      • My opposition to the Death Penalty doesn’t rest on my support of (or opposition to) its Constitutionality.

        It strikes me as being rather obviously Constitutional.

        As for this particular method? It strikes me as a way to make the people in the viewing gallery feel better about the death penalty. Makes it nice and sterile. If we really cared about the people we were executing, we’d use opiates.

          Quote  Link

        Report

        • I think most honest liberals would need to concede to the Constitutionality of the Death Penalty because it is mentioned in the Constitution.

          The question is what forms of the death penalty violate the 8th Amendment and which do not. Even Scalia concedes that certain popular punishments during the late 18th century like flogging and hanging, violate the 8th Amendment.

            Quote  Link

          Report

        • Liberal me has this view: clearly the death penalty is constitutional in theory, but we have never been able to make it so in practice. There is the “cruel” 8th amendment issue rejected today by the court, but there is also the “unusual” 8th amendment issue in Furman that IMO, has never been resolved, despite Gregg.

          The best hope for eliminating capital punishment is probably for the true dis-believers to unite with pragmatists. Unfortunately, this means we’ll be too busy talking about deterrence and costs to have the discussion we really need.

          I would heartily endorse an amendment to eliminate capital punishment, but I think before that happens, our country would have to sit down like adults and ask ourselves what the purpose of our criminal justice system is, and specifically what “justice” can realistically look like. We’re not good at having these conversations; we tend to avoid them until we are in a crisis, when cooler heads tend not to prevail (for ex: Security vs. Civil Liberties, our national “discussion” on race, etc.)

            Quote  Link

          Report

          • The purpose of punishment is to inflict suffering on criminals for (and therefore in proportion to) the suffering they have culpably caused by their criminal acts. This is a good starting point. Any other justification stops being about punishment per se.

              Quote  Link

            Report

            • Respectfully, , this is tautological: to endure punishment is inherently to suffer, so the claim made here is that the purpose of punishment is to punish.

              What good result do we expect to happen as a consequence of the infliction of suffering upon a criminal? Alternatively but not exclusively so, is the suffering of a criminal an inherent good such that no further analysis of consequence is necessary?

              I identify four possibilities without necessarily endorsing them:

              1. Punishment of criminals is an inherent good.
              2. Punishment of criminals makes victims and the larger society of innocents feel better about having suffered a crime (aka retribution or vengeance).
              3. Punishment of criminals prevents additional crime in the future (aka deterrence, whether specific to the criminal or generally to other potential criminals).
              4. Punishment of criminals makes criminals better people (aka reformation or rehabilitation).

              Perhaps there are others. I have philosophical difficulty with the notion that suffering, even the suffering of the guilty, is an inherent good — particularly when placed in the same arena as the appealing notion that happiness, particularly the happiness of innocents, is an inherent good.

                Quote  Link

              Report

              • Respectfully, , this is tautological: to endure punishment is inherently to suffer, so the claim made here is that the purpose of punishment is to punish.

                I know its tautological, that’s what makes it true and the people who question its truth seem deranged.

                If your aim is to rehabilitate people, punishing them may (or probably not
                ) not be the best way to do it. If your aim is to deter would be criminals, perhaps inflicting suffering on some scapegoat would do as well. If your intention is to satisfy the mob’s bloodlust, then the scapegoat would do just as well. The only answer is that punishing the guilty (provided the law is just) and only the guilty can only be justified by the principle that the guilty deserve it. i.e. it is inherently right to punish those who harm innocent others. On this account, desert is the currency of reciprocity. When the basic social institutions (property, government etc) exemplify reciprocity, the make it such the case that in the course of events, people who do good things for others will be rewarded in proportion to the good they do others and those who do bad, will be similarly punished.

                is the suffering of a criminal an inherent good such that no further analysis of consequence is necessary?

                Analysis of consequence will only take place at one or two steps removed. We might say that ultimately, reciprocity is good because it is necessary for the functioning of any reasonably functional society. By failing to punish the guilty, people stop having confidence that their social institutions embody reciprocity. It is only when people are rightfully confident that society embraces reciprocity that they will be willing to engage in social cooperation

                  Quote  Link

                Report

                • Ah, but , look what you did: I asked what the purpose of the “criminal justice” system was, and you answered the question of what the purpose of “punishment” was. Then, as icing on the cake, you implied that and I were “deranged” because we didn’t see things the same way you did.

                  You started in the middle, answered a question no one asked, and then insulted people who might disagree. Exactly the sort of difficulty in having the conversation that I was talking about.

                  I reject the assertion that the primary purpose of the criminal justice system should be punishment. *I* want a justice system that rehabilitates as its primary purpose, with a secondary purpose of deterrence (I could be persuaded to a system with those two priorities reversed, I think). I value punishment only as far as it achieves those goals, and I want nothing to do with a system whose primary purpose is vengeance.

                  Here in the US, I may very well be in the minority, but I want to have that conversation, I want us to revisit it regularly, and I want a chance to persuade people to my point of view.

                    Quote  Link

                  Report

                  • Well, I do understand ‘s fleshed-out point that punishment, for its own sake, is a marker of a society’s (putative) fundamental value of reciprocity and desert. It sufficiently satisfies my (implied) demand for an explanation of why punishment of crimes might be considered an inherent good. To some extent that dovetails with the concept of deterrence, but I distinguish between desert and vengeance.

                    With that said, I don’t think it’s “deranged” to point out that a tautology is not an intellectually useful ploy. I’ve far too much respect for to think he’d rest on a tautology.

                      Quote  Link

                    Report

                    • But again, punishment serves other masters: in this case fairness. Punishment for punishment’s sake is cruelty, it’s sadism. We don’t punish those who are unable to comprehend either the crime or the punishment, even though the effect of their crimes are no less real; the person must understand the punishment to achieve our goal of justice, whether that goal is fairness, rehabilitation or deterrence.

                      If, as suggests, the goal of the criminal justice system is only “punishment”, to inflict suffering as retribution for suffering caused to others, then there is no need for an 8th amendment: why should punishment be proportionate? why shouldn’t it be humiliating? It’s because punishment is a tool to achieve other goals that we need to establish limits.

                      IOW, Murali’s tautology isn’t applicable, because I’m not asking what “punishment” is, I am asking what Justice is.

                        Quote  Link

                      Report

                      • You’re missing the point of the tautology. Punishment counts as punishment only to the extent that it is proportional to and does not exceed the harm, culpably done by the criminal. When it so exceeds that, it becomes a fresh aggression and ceases genuinely to be any sort of punishment at all. Thus excessive punishment is an oxymoron.

                          Quote  Link

                        Report

                    • @gingergene

                      Two points:

                      1. I’m an analytic philosopher or at least trying to be one. Reducing everything to a series of tautological claims is what we do. *grin*

                      2. Apologies on the “deranged” thing. I was aiming for gently poking fun. Sorry if it came out harsher than I intended.

                        Quote  Link

                      Report

        • They always swear that. TRILLIONS OF JOBS LOST, THE END OF AMERICA AS WE KNOW IT AND ARMAGEDDON IS UPON US.

          Gets kind of old. Yes, stuff changes and you have to adapt. Put on your big boy pants and handle it. You’re a business, for God’s sake. If you can’t handle ‘change’ how are you still in business? The whole ‘unfettered free market’ you yearn for is nothing BUT change.

            Quote  Link

          Report

        • nevermoor,
          And the air’s cleaner already!
          (seriously, we did lose tons of coal plants to this one. Hallelujah! they’ve been grandfathered through 40 years of regulation! The EPA can sit back and know they’ve saved hundreds of thousands of lives from this one regulation alone).

            Quote  Link

          Report

      • Due consideration.

        But they still have to consider stuff like this, right?

        That’s my concern; it’s the local result of mercury. Our economy is based on natural-resource tourism; people come here to fish our pristine wilderness. Since the emissions despoiling those waters with mercury are up air-stream, this is of great concern to me.

          Quote  Link

        Report

        • IIRC, that’s a second-order cost (which the EPA estimates at pushing 100 billion) and not a first-order cost (which the coal industry claims is a few million, tops).

          As I understand it, the EPA considers second and third order effects like that. But they get a lot of push back, because the less direct and simple the connection, the more people can argue the outcome.

            Quote  Link

          Report

  4. 1. I agree with nevermoor that most partisan decisions are going to be viewed through a partisan lens.

    2. You are probably right on the makeup of the Supreme Court remaining the same until the next administration.

    3. As I said before, The U.S. has a problem with never having a monarchist party in that all parties (even when being anti-democratic) need to use the language of liberty and what not. I know there is a Glenn Beck-Tea Party meme that decries the 17th Amendment as being one of the worst things ever. Presumably because it moved the Senate to the left and they did not get their traditional role of being a quasi-House of Lords that blocked progressive agendas. The most Gilded Age of Gilded Age Republicans were in the Senate. Senator Aldrich of Rhode Island was basically a Senator for the Trusts during the late-19th Century. I must say I admit that the swipe against the 17th Amendment is surprising coming from the Chief Justice.

      Quote  Link

    Report

  5. This time, he opens up by calling the voters of Arizona “chumps” for adopting the Seventeenth Amendment — because they could have transferred the mechanism selection of U.S. Senators out of the Legislature and directly to the voters through the manner Constitutional interpretation used by the majority in this case rather than through efforts to amend the Constitution itself.

    Didn’t a bunch of states do exactly that? All the 17th did was make every state have to do it.

      Quote  Link

    Report

  6. The Glossip v. Gross ruling is pretty… gross.

    The majority, along with Breyer, seem to pass over the facts of the case entirely so that they can give a thumbs up or thumbs down to the death penalty as a whole–and in doing so just keep on giving states a pass for conducting badly vetted execution procedures.

    Man, we have plenty of execution procedures we know won’t subject the victim to ongoing pain. The choice to use one that might be excruciatingly painful is apparently aesthetic–guillotines and firing squads have bad optics. Sotomayor is right to say that Oklahoma should have the burden of justification. Shame on Alito and the majority for skipping over the facts of the case in their rush to uphold capital punishment, and shame on Breyer for skipping over the facts of the case in his rush to overturn capital punishment.

      Quote  Link

    Report

    • I read (somewhere on the Internet, of course) that the original idea was to follow veterinarian protocol- single overdose of barbiturates, but that it was rejected in favor of the three-drug cocktail to avoid the comparison of people to animals. Ironically, our concern over dehumanizing the executed has resulted in excruciating deaths for people vs. peacefully slipping away for our pets. (I also note with sadness that this is feature, not a bug for some people.)

        Quote  Link

      Report

      • ,
        Yeah. And I happen to think he has the right of it.

        But that isn’t was this case was about. Until at least one justice dies or retires, the issue of whether or not the death penalty is constitutional is quite settled–and if the only reason SCOTUS is taking these cases is to re-hash that argument again and again, they may as well not take them at all.

        Whether the midolazam cocktail is an appropriate method of execution was the question before the court. And neither the majority opinion nor Breyer’s dissent actually focused much attention on that question. Only Sotomayor’s dissent did that, and Breyer elected not to join it.

          Quote  Link

        Report

  7. Proposed new constitutional amendment:

    Everyone who is in favor of the death penalty has to stand in a lineup for identifying suspects in a capital murder case whenever possible.

      Quote  Link

    Report

  8. did you see Dhalia Lithwick’s piece on Scalia’s odd behavior?

    But in addition to the twin dissents, Scalia announced—after the reading of the dissents—that he was concurring in the majority opinion but had some things to say about the dissents. Since no written summary of his statement was provided, you will need to take my word for it that what he read deviated from his written concurrence in some really odd ways. And while I don’t want to spend too much more time on Scalia acting oddly, this was very odd. He opened his statement—which seemed not to have been written down, and didn’t really track his written opinion—with: “Last Friday five justices of this court took the issue” of same-sex marriage away from the voters based on their “policy preferences” and then noted that today two justices sought to do that again, with the call to abolish the death penalty. In case you were wondering, he isn’t over Obergefell.

    Scalia went on to note that the death penalty is expressly contemplated by the words of the Constitution, and continued with the accusation that maybe it’s a good thing that “two justices are willing to kill the death penalty outright rather than just pecking it to death.”

    Weirder? He concluded with the oral statement that “not often in the law is it the case that so few have changed so much.” The latter may not be as pointed an indictment as the zinger at the end of his written concurrence, which accuses Breyer (but not his partner in crime, Ginsburg) of rejecting, well, “the Enlightenment.” But it’s a deliberate echo of Breyer’s lament in reading his dissent aloud in the 2007 Seattle schools case, that, “It is not often in the law that so few have so quickly changed so much.” This is really a doubly strange accusation since of course the two dissenters—unlike the majority in the schools case—have in fact changed nothing at all, since they are the only two willing to do away with the death penalty. It may simply be a frustrated reference to five justices changing so much doctrine in a few short days. But strange to go after Breyer and Ginsburg on a losing side of a lethal injection drug case for this. All that changed here, really, is their minds on the constitutionality of capital punishment

      Quote  Link

    Report

    • The sniping *back* at the oral dissent presentations is, to my mind, since it’s essentially never done, just ridiculously juvenile.

      For that forum, that is. I mean, sitting around the conference room or chopping it up in the combox – great. But this is the Supreme Court. Not in the building; not in chambers. *In the court.*

      Come on.

        Quote  Link

      Report

  9. Oklahoma needs to change their death penalty proctool to Hellfire Missile from Predator Drone; that way, they’re won’t be any strenuous objections anymore from liberals.

      Quote  Link

    Report

    • “So what should I think about this? If it had been my call, I wouldn’t have gone into Libya. But the reason I voted for Obama in 2008 is because I trust his judgment. And not in any merely abstract way, either: I mean that if he and I were in a room and disagreed about some issue on which I had any doubt at all, I’d literally trust his judgment over my own. I think he’s smarter than me, better informed, better able to understand the consequences of his actions, and more farsighted. I voted for him because I trust his judgment, and I still do.”
      –Kevin Drum

      “Honestly, I think we should just trust our president in every decision that he makes and we should just support that, you know, and, um, be faithful in what happens.”
      –Britney Spears

        Quote  Link

      Report

  10. Hi Burt: Re the EPA case, a couple questions for you (or anyone else):

    My understanding is that the EPA rule-making process (for purposes of this case) goes something like this:

    Step 1. The EPA determines whether regulation is “appropriate and necessary.” Step 2. If it is appropriate and necessary, the EPA then proposes some regulations that limit the emissions. These proposed rules would go through the normal process, with public comment etc. In reality Step 2 would be a bunch of steps.

    Majority says EPA must consider costs not just at Step 2, but also at Step 1–this is basically the holding?

    It appears the EPA did do a cost/benefit, but it’s not clear to me when they did it. Did they do the cost/benefit after they had already decided Step 1? This seems to be the case but I am not sure. Scalia says the “EPA concedes that the regulatory impact analysis ‘played no role’ in its appropriate and necessary finding.” [Slip opinion p. 4]. I guess it doesn’t matter when the analysis was done, if the EPA concedes it played no role in its Step 1 decision?

    Was this because the EPA made an oversight (it had already done the impact analysis when it made the Step 1 decision, but it didn’t bother to cite it)? Or because when it made the decision in Step 1, it hadn’t completed the impact analysis yet, and therefore couldn’t rely on it?

    OK, so it’s remanded and the Circuit Court asks the EPA to consider the costs in Step 1. Does the EPA just basically re-submit the exact same materials, with the phrase “in making our Step 1 determination, we relied on this cost/benefit analysis” added to the cover letter? I’m assuming there’s more to it than that?

    Thanks

      Quote  Link

    Report

    • The EPA argued that it didn’t need to consider costs until step 2, wherein it had considered costs. It was sued because it didn’t consider costs in step 1. Now it’s got to go through the process again — officially, including public comment — and consider the costs in Step 1, even though it’s not going to change it’s mind.

      (The industry claims it’s a 4 billion cost to say a few million. The EPA claims that secondary savings are in the 80 to 90 billion range. The only numbers quoted by SCOTUS were the industry ones, which should be taken with a grain of salt for obvious reasons.).

      So basically the EPA will redo their process from start to finish, but consider cost in the beginning and not later. And the end result? The EPA rules are unlikely to change. Mercury emission isn’t really an edge thing.

        Quote  Link

      Report

  11. This is a bit off-topic, but I read a piece over the weekend that framed CJ Roberts’ dissent in Obergefell as a warning to a conservative movement intended to revive Lochner as good law. The Chief’s dissent could be read as “over my dead body”. And it’s true, I’ve read a few hand-wringy pieces from conservative media saying, “Hey, what’s wrong with Lochner?”

    It’s an interesting angle, and it seems plausible to me. Sadly, I was unable to find the piece this morning.

      Quote  Link

    Report

    • Was it this Think Progress piece by Ian Milhiser, Chief Justice Roberts’ Marriage Equality Dissent Has A Hidden Message For Conservatives?

      It was interesting; and leaves me wishing would do a post on Lochner, my grasp on it is still vague; the jurisprudence implications and consequences could bear some light here.

      But with that lack of nuance admitted, I though this fascinating:

      The Chief Justice of the United States, in other words, sent a clear message to the increasingly vocal forces that wish to use the Supreme Court to enact a sweeping economic agenda — not on my watch. His Obergefell dissent explicitly disavows the new Lochnerian evangelism that captured much of the Federalist Society. And his King opinion shows them that further efforts to politicize the judiciary may lead to punishment — in the same way that King punished conservatives by rendering Obamacare immune to many future legal challenges.

        Quote  Link

      Report

      • Yes, that’s the piece. And sure enough, I’ve found several pieces in places like Forbes and WSJ saying, “Hey, Lochner is great!” Even in the WaPost, which is a bit sad.

        And yes, I too would like an essay on Lochner.

          Quote  Link

        Report

Leave a Reply

Your email address will not be published. Required fields are marked *