Mark Joseph Stern has an interesting piece on Slate about a death penalty case that hints at the new ecosystem of the post-Kennedy Supreme Court. The case is Madison v. Alabama and the justices heard oral argument yesterday. The issue before the Court is whether the Eighth Amendment permits the state of Alabama to execute Vernon Madison, a 68-year-old, legally-blind inmate whose vascular dementia prevents him from remembering his 1985 murder of a Mobile police officer.
In “John Roberts, Swing Vote,” Stern contends that during oral argument Chief Justice “Roberts appeared eager to broker a compromise that would spare Madison’s life by conceding that dementia may exempt him from the death penalty. The case provides an early glimpse of the post-Kennedy court—with the chief justice embracing his role as the new swing vote.”
The outcome in Madison v. Alabama will ultimately come down to the Court’s definition of “incompetence.” In the landmark 1986 case of Ford v. Wainwright the Supreme Court held that the Eighth Amendment barred the execution of the insane. Writing for the Court, Justice Thurgood Marshall observed that “[w]e know of virtually no authority condoning the execution of the insane at English common law” and Marshall emphasized that “it is no less abhorrent today” to execute “one whose mental illness prevents him from comprehending the reasons for the penalty or its implications.”
Two decades later, in the 2007 case of Panetti v. Quarterman, the Court further observed that “we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life.”
Nevertheless, in Madison the state of Alabama contends that “[t]he Eighth Amendment allows a State to punish a murderer whose mental disability leaves him without memory of his commission of the capital offense” so long as the inmate still possess a “rational understanding of crime and punishment.”
In response, Madison’s attorneys argue that the Eighth Amendment (as interpreted by the Ford and Panetti cases) requires states to “refrain from executing an individual whose verifiable cognitive impairments render him incompetent to rationally understand the circumstances surrounding a scheduled execution.” They further argue that “[n]o penological justification or retributive value can be found in executing a severely impaired and incompetent prisoner, especially where advances in neurological science now make clear the nature of this incompetency.”
According to Stern’s Slate piece, Chief Justice Roberts showed his hand at oral argument yesterday during this exchange with Thomas Govan, the Deputy Attorney General for the state of Alabama:
CHIEF JUSTICE ROBERTS: “[Y]ou are arguing that simply because somebody doesn't remember the crime, that that doesn't help satisfy Ford and Panetti, right?”
MR. GOVAN: “Correct, Your Honor.”
CHIEF JUSTICE ROBERTS: “But you've conceded that if the person meets the Ford and Panetti standard by virtue of vascular dementia, that he meets the Ford and Panetti standard, right?”
MR. GOVAN: “Yes, yes, if someone has vascular dementia or any other mental illness, if it precludes them from having a rational understanding of their punishment, and that they will die when they're executed, they would meet the Ford and Panetti standard.”
CHIEF JUSTICE ROBERTS: “So -- so I understand your friend who have conceded that simply not remembering the crime is not enough. And you're arguing that if it’s vascular dementia that affects you up to the point of Ford and Panetti, that that is enough. So are all we arguing about whether -is whether Mr. Madison himself meets the Ford and Panetti standard?”
MR. GOVAN: “That’s exactly right, Your Honor.”
According to Stern:
“With this exchange, Roberts successfully shrank Madison down to a simple application of precedent. Ford and Panetti say incompetent people can’t be executed. The Alabama court didn’t think Madison could be incompetent because he has dementia, not schizophrenia. That’s a straightforward mistake. And the Supreme Court can easily correct it by clarifying that dementia can qualify as ‘insanity’ for constitutional purposes.”
Stern concludes, therefore, that “the chief justice appears poised to build a coalition with the liberals that will keep Vernon Madison out of Alabama’s death chamber.”
Whether Roberts really will vote with the liberals in the Madison case remains to be seen. But yesterday’s oral argument was a good example of how Chief Justice Roberts has replaced Anthony Kennedy as the bellwether justice on the Court. From this point forward, no justice will be more closely scrutinized at oral argument than Roberts. He is the new Kennedy.
Stern’s Slate piece is available here and the oral argument transcript in Madison v. Alabama is available here.
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.
Posted by: anon | October 03, 2018 at 12:20 PM
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.
Posted by: Anthony Gaughan | October 03, 2018 at 12:31 PM
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.
Posted by: anon | October 03, 2018 at 02:15 PM
to avoid the filter, words are substituted for symbols
https:[slash slash]www[dot]wsj[dot]com/articles/fake-news-comes-to-academia-1538520950
Posted by: anon | October 03, 2018 at 02:19 PM