[Update: Slightly edited. As to the other news, you know other than another Mets win, Digby says it well: "As Marshall points out, Fitzgerald gave up on charging under the leak statute early on. This has always been about perjury and obstruction. Whether Rove cut a deal or Fitz just couldn't make a case for those two crimes is unknown. What is not unknown is whether Rove is a lying, scumbag piece of shit. He is." Damn soap opera ... going on three years already. The LSPOS has been at much longer.]
Two rulings Monday follow the "conservative" path of the Supreme Court in recent years -- as in [too?] narrow rulings with something of a conservative tilt, but not as much as some fear (hope). They both supply now "wins" to the abolition side. The more talked about case involves the drug cocktails used in lethal injection cases. The problem:
Under such circumstances, the prisoner will suffer an extremely painful sensation of crushing and suffocation, as the pancuronium bromide takes effect and stops his ability to breathe. The pancuronium bromide will paralyze the prisoner, rendering him unable to move or communicate in any way, while he is experiencing excruciating pain. As the third chemical, potassium chloride is administered, the prisoner will experience an excruciating burning sensation in his vein. This burning sensation - equivalent to the sensation of a hot poker being inserted into the arm - will then travel with the chemical up the prisoner's arm and spread across his chest until it reaches his heart, where it will cause the heart to stop.*
The ruling unanimously held that the claim could be carried forth -- the actual substantive concern that procedure wantonly put the inmate at risk of needless pain was left to another day. The Court just held that a certain means of litigation, used in the past in cases involving trying to find a vein (a major problem for drug addicts etc., resulting in cutting up of the arm and other problems) was applicable here. Thus, the path was left open, but the result is years more of litigation with unclear results. Overall, this makes winning possible, but not that easy. Given the possible alternative, defense attorneys will take it.
Same general theme in another case -- the Court left open (but repeated the fact that it was darn hard to use at best) the question if "actual innocence" supplies a constitutional bar to execution pursuant to a controversial previous case. Nonetheless, it did hold that habeas corpus relief is allowed given the special circumstances of the case, thus leaving open a path when perhaps DNA evidence or so forth is available that truly calls into question the guilt of a convicted person. (See here, but here's the thing -- there always seems to be something else to hang a hat on ... if a judge wants to look that way.) This time CJ Roberts (with Scalia/Thomas) dissented.
And, Justice Kennedy provided the key vote -- which will likely occur numerous times, even with Roberts' desire to obtain unanimity whenever possible. Justice Stevens and Breyer's liberal pragmatism (the latter more than the former, who is more of a formalist) matches up well with this as does Roberts desire for unanimity. Narrow decisions ... that at worse don't do too much harm to libertarian side ... often will work for him as well. In time, Roberts and Alito's (who didn't take part in many opinions this Spring) presence will lead to various troubling opinions, especially since in various cases members of the "liberal bloc" will join in for one reason or another. Still, there are hopeful signs.
Overall, this would be a bit ironic, since the El Decider has repeatedly said that Scalia and Thomas are his ideals for the bench. One reckons -- honestly this applies to the anti-gay stuff to up to a point -- this is partly hot air and posturing, but probably it is in some core fashion an honest expression of his sentiments. But, these two are no fans oconservatismism" of this sort in part because it results in continuation of doctrine they oppose and encourage balancing tests and open ended rules that must be tried case by case by judges. [Cf. Thomas' desire to take a case with Stevens' appeal to stare decisis, even though he agreed on the merits. Who is the true "activist?"]
You know ... they have to be active. Cannot have that. Too much "reasoned judgment" is dangerous ... at least, if we allow the courts to have their fair share of it.
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* One problem with lethal injections overall is that it violates medical ethics -- thus, even though one can compare it to putting animals to sleep, that involves trained animal health professionals doing their job ... the same applies in somewhat related fashion (if controversially) with doctors involved euthanasiasia. But here:
Even though lethal injection is 'medicalized' by society, there is no doctor-patient relationship and, consequently, no give and take between physician and patient. Yet even when there is no defined doctor-patient relationship, the doctor is using knowledge and skills attained during medical education and is thus recognized by society as possessing and using those specific skills that are normally used to sustain and enhance life.
This is from the same source as the first quote -- a brief against the constitutionality of electrocution and lethal injection in general. One, as compared to the two cases, has tons of footnotes.