Packed Court Speeds Along Another Execution

Instead, however, the Court was the scene of a cynical coup d’etat, in which Mitch McConnell jammed three hard-right judges—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—into place to fulfill a cynical campaign promise made by Donald Trump. The Court faces a crisis of legitimacy unlike any since the 1930s, when the conservative ideologues of that age shredded much of the early New Deal.

We repeatedly get bullshit about how those who talk about expanding the Supreme Court are merely concerned about conservative results, which is you know so troubling unlike let's say those neutral sorts that support term limits. You can ignore the elephant in the room all you want; it is still there. 

A basic concern is HOW the three nominations got there.  This comes up after one of the other six announced his retirement.  It partially was noted that Democratic administrations since 1968 so far were able to put four nominees (two -- Fortas and Garland* -- blocked, though the first with a hearing) on the bench.  

This is tempered a tad since a few of the Republican nominees were moderates, Souter and Stevens (a Bork supporter) now basically counted as liberals.  Only so much.  The nature of the last three nominations especially rankles.  But, it is perfectly fine when talking about court expansion to flag how in the last FIFTY years there was a mismatch of popular vote (ONE Republican since 1989 won the popular vote, that upon re-election).  

On that front, yes, term limits and/or plans to encourage a steady diet of nominations will address the problem to some extent. Eventually.  Nonetheless, there is quite a reasonable passion here to address inequities, including regarding to birthday girl Amy Coney-Barrett. Until then, each time the Supreme Court acts, people have a right to question it. 

It's tainted. We can ignore it.  We can just sigh, as some do, and not even admit the problem (if realizing the inability to change it for now).  The elephant is still there.  

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Matthew Reeves was executed yesterday amidst all the Breyer news. Who was Matthew Reeves?  He was a forty-something black man, intellectually disabled, who murdered someone at eighteen.  The details, like many murders, are horrible to read about.  So, we get the "he got his" comments. Do these people all want the thousands of other murderers to be killed too? The public does not seem to want that to happen.  

[ETA: The Vox article on this case reminds me SCOTUS handled this case before.   The unsigned majority leads with the facts, which is a sort of red flag, though the issue is the law.  The dissent notes among other things that the jury only 10-2 voted for the death penalty, non-unanimous juries allowable then on such questions.  The opinions help to clarify why as a matter of law his intellectual disability is in effect not an issue any more.]

Lower courts accepted that since he was disabled that it was appropriate to explain to him in simpler language the alternative Alabama provided -- lethal injection or nitrogen gas.  Supreme Court doctrine holds people in his position have to offer some alternative if they claim another means of execution is problematic.  States are starting to offer nitrogen gas though no state has yet actually used it yet.  Nonetheless, it is put out as the newest ideal method to execute people and you'd think the state would just wait and use him to serve as an opener. 

See, we are so generous!

Now, people also focus on him being disabled, but for whatever reason, that wasn't enough here even if years back the Supreme Court held that a state can not execute someone below a certain intellectual ability.  The Court gives the state some discretion there and I guess he felt into a hazy area or maybe could not make the claim for some other reason. 

But, again, people flag this as an independent problem.  Plus, he was eighteen. There is starting to be some concern that eighteen is too young, and twenty-one is a more clear line for maturity.  People like Justice Breyer also might flag that he has been on death row over twenty years.  Or, oppose the death penalty generally.  The claim here is narrower.

Justice Kagan wrote a dissent for the liberals.  She would have let the lower court ruling stand, not finding a strong enough reason to second guess its findings.  They are particularly detailed and well sourced as these things go. Now, maybe you disagree with her.  I am not inclined to do so, but maybe you do.  What did the majority say?  Well, nothing.  They merely overruled the lower courts without an opinion.  Bad pool.

This sort of basically gratuitous action was apparently too much for birthday girl Amy Coney-Barrett.  She did not join Kagan's dissent.  She simply noted that she would not accept the state's request to overrule the lower court's judgment.  A limited bit of sanity though WHY she did so would have been nice to know. This is a matter of life and death.  A federal judge is disagreeing with a state's judgment.  Why?  

(Again, this is not about blocking his execution.  Barrett was fine with executions after she came on the Court, after all.  Ultimately, the path is left open to execute him using nitrogen gas, which the state has authorized. It is not some theoretical alternative. It is one they have established, in part because of lethal injections being so controversial in recent years.)

As with the majority's ruling (since five people need to have joined, we don't have to pretend not to know who they are), we can guess. Perhaps, as one person suggested, she was following a previous statement where she would not in the so-called shadow docket vote for relief basically out of time unless there was a compelling reason to do so.  

Meanwhile, the majority (using past standard weighing factors) went the other way.  Thinking the lower courts were abusing their discretion.  Then, SAY SO.  It's a matter of a person's life.  If you feel the lower courts here are not doing their job correctly, explaining why will help them in the future.  We can disagree with their reasoning, find their whole majority suspect, but at the very least we would have it on record.

They went another way.  Matthew Reeves is now dead.   

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* I'll end there for now.  

ETA: Clearly, the biggest news is the release of the calendar of the March argument with generally low key issues (if one or two that might be interesting to more than five or so people, including a war powers one) such as "When a locomotive is “in use” on a railroad’s line and therefore subject to the Locomotive Inspection Act and its regulations."  Surely, to quote Justice Breyer, one of those rabbit-duck issues.