Today’s Decisions I: I Am Still Not A Contrarian!
By Some big Supreme Court cases today. I’m going to leave discussion of the Vermont campaign finance decision until tomorrow. In the meantime, I’m going to take a page from LizardBreath and defend a coalition of 5 justices I almost never would. Generally, the odds that I’ll join Scalia/Thomas/Alito/Roberts/Kennedy in a civil liberties case are about the same that I will accompany Ludivine Sagnier to watch the Royals and Pirates play Game 7 of the World Series, but if pressed I would probably join them in Kansas v. Marsh.
The case concerns the constitutionality of the Kansas death penalty statute, which holds that a convicted defendant can be sentenced to death if the jury finds a balanced number of aggravating and mitigating factors. As I’ve said before, despite all of the criticism the decisions received, I basically think the Supreme Court got it right in the 70s; the death penalty as practiced before 1972 was plainly unconstitutional, but I do not believe that the Eighth Amendment categorically prohibits the death penalty (which I would vote against as a legislator), so the states should have been given the opportunity to construct a more rational system. Within these parameters, however, I just can’t see a lot of basis for striking down Kansas’ particular balance of sentencing factors. Although the “tie goes to the defendant” standard makes sense to me as a question of policy, as far as I can tell the short opinions of Souter and Stevens don’t make a convincing case that this particular balance is required by the Eighth Amendment. I’m willing to be convinced otherwise, but I’m afraid I think the majority is probably right on this one.