Friday, February 16, 2007
The "hardening" Supreme Court?
A few days ago, Dahlia Lithwick had a piece in which she remarked on what she took to be a strange fact, namely, that "American support for the death penalty is diminishing—except on the Supreme Court." Now, as other bloggers have contended (convincing, I think) Lithwick's argument is not very strong: That some justices continue to enforce and apply duly enacted laws that permit the death penalty, and regulate post-conviction-review processes is an apple to the orange of changing public views on the wisdom of capital punishment.
Another thought, though: Lithwick observes that "in a curious application of Newtonian physics, public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to harden in the one institution that was, until recently, showing real doubt: the Supreme Court. . . . In a curious application of Newtonian physics, public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to harden in the one institution that was, until recently, showing real doubt: the Supreme Court."
It strikes me that this indictment has more force if directed against, say, the Court majority in the Stenberg case (invalidating a state's partial-birth-abortion ban). It is quite clear that the public does not support -- if it ever did -- the abortion regime constitutionalized in Roe v. Wade. (To the extent the public supports Roe, it is, I think, because they believe that regime is less absolutist than it is.) States and Congress are passing law after law, attempting to regulate reasonably abortion. And yet, in a "curious application of Newtonian physics," there were (until recently) five Justices on the Court who . . . etc. etc. etc.
https://mirrorofjustice.blogs.com/mirrorofjustice/2007/02/the_hardening_s.html