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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…

5 Issues Trump's New Supreme Court Pick Could Confront Including Gun Rights and the Death Penalty

Cartoon by Jeff Danziger
(WASHINGTON) — Justice Anthony Kennedy’s successor will have a chance over a likely decades-long career to tackle a host of big issues in the law and have a role in shaping the answers to them.

Most court-watchers and interest groups are focused on abortion and whether a more conservative justice may mean more restrictions on abortions get upheld or even whether the 1973 Roe v. Wade abortion decision affirming a woman’s right to abortion might someday be overturned.

But Kennedy’s replacement will quickly confront a host of issues, some prominent and others not. 

Whomever President Donald Trump chooses, the person is expected to move the court to the right. Conservative groups, seeing a court friendlier to their views, might look at the new court and think it’s time to bring challenges to liberal laws currently on the books. 

And conservative state lawmakers may also attempt to pass legislation testing boundaries they wouldn’t have while Kennedy was on the court.

A look at a few issues that a new justice could confront in short order:

Partisan redistricting


The Supreme Court in the term that ended Wednesday had two cases before it dealing with whether electoral maps can give an unfair advantage to a political party. The justices ducked that question, sending cases from Wisconsin and Maryland back to lower courts for further review. Kennedy had been the justice who left the door open to court challenges to extreme partisan redistricting, but he never found a way to measure it that satisfied him. A case involving North Carolina’s heavily Republican congressional districting map now in a lower court could provide an opportunity for the justices to revisit the issue as soon as next term.

Religious liberty


Another unresolved issue recently before the court is whether a business can cite religious objections in order to refuse service to gay and lesbian people. The court could have tackled that issue in a case argued this term about a Colorado baker who wouldn’t make a wedding cake for a same-sex couple. Instead, the justices found that a member of the Colorado commission that looked at the case displayed an anti-religious bias against the baker but left for another day the broader question.

The justices could have added another case on the issue to the list of cases they’ll begin hearing arguments in this fall, a case that involved a flower shop owner who cited her religious beliefs in declining to provide flowers for a same-sex wedding. For now they’ve sent that case back to a lower court. That same case or another one like it could quickly be in front of the court again.

Gun rights


The court has been reluctant to take gun rights cases in recent years, repeatedly turning away challenges to gun restrictions. In 2008 and 2010 the court voted 5-4, with Kennedy in the majority both times, in saying people have a right to have guns in their own homes, striking down handgun ownership bans in the District of Columbia and Chicago. But the court left open how broadly the Second Amendment may protect gun rights in other settings. The court hasn’t taken a major gun rights case since 2010, even though Justices Clarence Thomas, Samuel Alito and Neil Gorsuch have all signaled interest.

Death penalty


A regular but sometimes forgotten part of the Supreme Court’s work involves ruling on last-minute petitions from death row inmates.

About two dozen executions were carried out in the United States last year, and they tend to generate a flurry of legal activity. It takes five votes to grant a stay of execution and the court’s conservatives are typically more reluctant to do so than its liberals.

Since the court has four reliably conservative votes, if Kennedy’s replacement is more conservative, it may be that much harder for a death row inmate to get a reprieve. Two cases involving death row inmates are on the court’s calendar for the fall.

Deference to agencies


The Supreme Court’s conservatives over the last few years have increasingly questioned older decisions that tell judges they should defer in certain circumstances to the wisdom of government agencies. The basic premise is that Congress writes laws that often aren’t perfectly clear and leaves working out the details to agencies. The Supreme Court’s 1984 ruling in a case often called just “Chevron” says that in those situations, courts should rely on the experts at federal agencies to fill in the gaps. That particular case dealt with the Clean Air Act and EPA regulations. Kennedy himself raised concerns about that decision in an opinion a week ago, and Chief Justice Roberts and Justices Thomas, Alito and Gorsuch have also done so. A new, conservative justice might quickly be asked to weigh in.

Source: TIME, Jessica Gresko/AP, June 29, 2018


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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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