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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

US supreme court: the cases – what happens next and who does it benefit?

Several pending cases with potentially landscape-altering implications on issues such as abortion and voting rights will likely be heard by an eight-justice court. We look at how Antonin Scalia’s death may affect the outcomes.

The unexpected death of Antonin Scalia leaves the supreme court with only eight members – and the potential outcomes of several pending cases hanging in the balance.

If the Democratic party controlled the Senate, Barack Obama would now be able to name a replacement, and those upcoming cases likely to produce a closely divided court would simply be held over until the new justice was confirmed.

But with Republicans in control of the Senate and openly proclaiming their refusal to confirm anyone nominated by Obama, it looks likely that there will be an eight-person supreme court until the end of 2016 – and possibly for quite a while longer.

This has major implications for several key cases the court has heard or will hear this term.

Some of them might be held over to the next term – although the intransigent attitude of Senate Republicans makes this less likely, since the court will probably be reluctant to let these cases remain unresolved through the whole of 2016.

If the court hears a case and deadlocks at four between the liberal and conservative wings of the court - justice Anthony Kennedy is often seen as the swing vote between what was, before Scalia’s death, roughly speaking a court of four liberals and four conservatives – it can either hold the case over or reaffirm the decision of the lower court without creating a precedent, almost as if it had never heard the case.

Going through the big pending cases one by one, it is evident that liberals are generally going to benefit most from the closely divided court following Scalia’s death.

Death penalty

Foster v Chatman: This case deals with a death penalty case in which a black man was convicted by an all-white jury after black jurors were systematically excluded by the prosecution. The oral argument suggested that the case may be sent back to the state courts to address a procedural question. If the court does decide on the merits, a deadlock would allow the conviction to stand, since the Georgia courts upheld it. However, given the extreme set of facts, Kennedy and Roberts would likely join the court’s four liberals to rule that the defendant’s 14th amendment rights were violated. Likely outcome: either returned on a technicality or liberal win


Source: The Guardian, Scott Lemieux, Feb. 16, 2016

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