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October 03, 2018


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It is so sad that most legal scholars ignore the fact that the vast majority of cases before the SCOTUS are not decided along strict "party lines," (with the "liberals" always on one side and the "conservatives" on the other) and that the justices cannot be reliably expected to vote in every case according to a "liberal" or "conservative" label (these words, of course, have little or no discernible meaning in this context, but, rather, are just slogans used by leftists as a substitute for their conception of "right" and "wrong.")

What is "conservative" about the death penalty? Any social scientist will tell you that the majority of Americans support it, and support for it has been part of the Democratic Party platform for as long as anyone can remember. WHo can forget Bill Clinton flying back to Arkansas for an execution of Ricky Ray Rector, in 1992? "Bill Clinton was insisting that Democrats "should no longer feel guilty about protecting the innocent" and voiced strong support of capital punishment.[13] To make his point, he flew home to Arkansas mid-campaign to affirm that the execution would continue as scheduled." Ricky Ray Rector left the dessert accompanying his "last meal" on "the side of the tray, telling the corrections officers who came to take him to the execution chamber that he was "saving it for later.""

Which brings us to the legal issue. After the crime for which he was executed, "Rector put his gun to his own temple and fired. Rector was quickly discovered by other police officers and taken to the local hospital. The shot had destroyed Rector's frontal lobe." Some have argued that execution was not cruel and unusual punishment because "Rector's brain damage was caused by his suicide attempt after having committed the two murders for which he was convicted."

The question of executing those who understood the crime at the time it was committed, but are no longer able to do so, is one that is valid and salient. But, please, don't lather your partisan patina all over it.

Anthony Gaughan

anon, I agree with your point about the non-ideological nature of most cases that come before the Court. In fact, according to the invaluable SCOTUSblog statpack, only about 20% of the Court's rulings involved a 5-4 conservative/liberal ideological split during the October 2017 term.


In my view, admittedly not the view shared by the hyper partisan denizens of the legal academy and press, legal issues are typically not subject to a rationale analysis based on what a "liberal conservative ideological split" would compel. Instead, these labels are tossed out to divide the court by party, i.e., the "Democratic" justices and the "Republican" justices.

Accordingly, if you intend to analyze party affiliation rather than the merits of legal issues, then I would ask you to define "liberal." Bill Clinton, as noted above, strongly supported the death penalty. You might respond that Bill CLinton wasn't a "liberal." But, he was a Democrat (and that is the standard by which you seem to judge justices). Clinton may not have been a "liberal," (as you perceive the meaning of that term) but, he wanted to be elected and he needed Democratic votes. Pause to think about that when you toss around the notion that "liberals" (which, as I read your posts, means any Democrat or "progressive," no matter how wrong about an issue) oppose the death penalty and should therefore oppose it in any conceivable situation.

The fiction that justices are hide bound tools of the party that appointed them, or that "liberal" means anything to scholars who would never use that term so loosely, is obviously false. For example, in Sebelius, Roberts voted with Ginsburg, Kagan, Sotomayor and Breyer to adjudge the ACA penalty a "tax" (after holding it a penalty under the APA). Was that a "liberal" decision, because the Democrats in Congress voted for the ACA?

As noted recently in the Washington Post: "In the 2016-17 term, 57 percent of decisions were unanimous, and judgments with slim majorities (5 to 3 or 5 to 4) accounted for 14 percent. This term shows a similar trend. Surprisingly firm majorities issued some of the most anticipated decisions. In Masterpiece Cakeshop ... seven of the nine justices’ votes." So too, in Bush v. Gore: 7 -2 on an equal protection violation, though you'd never know that if you listen to some.

ANd, as further noted in the Post: "Even some closer cases were not split along the expected lines."

If everything in this country, including the SCOTUS, is discussed solely in terms of what "liberals" and "conservatives" should want, then the divide that is ruining this country only gets worse.

Have you ever considered discussing an issue (e.g., the execution of a person who can't remember the crime) in terms of the law (e.g, the Constitution, precedent, evolving standards of decency), or public policy, or ethics, or social science, etc. Do you believe that ALL thought about ALL issues is governed solely by one's ideology?

If so, I would respectfully request that you study your history to discover which groups have supported that sort of world view in the past. ANd then, grieve for this country.


to avoid the filter, words are substituted for symbols

https:[slash slash]www[dot]wsj[dot]com/articles/fake-news-comes-to-academia-1538520950

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