Rogue SCOTUS

giantfan1224

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In reading this story on the ruling handed down today on Lethal Injection, I was struck by the dissenting opinion of Breyer and Ginsburg.

Justice Stephen Breyer went further in a separate dissent. He said the high court should consider the overall constitutionality of the death penalty, something it has not done since 1976. Justice Ruth Bader Ginsburg agreed.

"Rather than try to patch up the death penalty's legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution," Breyer said.
I believe they overstepped their mandate by injecting an issue that wasn't presented in the case. That’s the very sign of an activist judge. Why bring up the legality of capital punishment when it’s already “settled law” (as is continually pointed out by liberals in regards to roe v. wade)? I can't help but picture Lady Justice with an eye peeking out from the blindfold.
 

Tomorrow

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I can see both sides of this, to an extent, but I think you're right - their job should be to hear cases presented to them, not to ask for cases to be brought to them.
 

Meister

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While I am an opponent of capital punishment, I agree with giantfan. It appears as if the SCOTUS is on a role.
 

Renzatic

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I agree with you to a point, though I'd word it more like Tomorrow did. Considering all the coal raking and scrutiny the SCOTUS is about to be put through over the gay marriage debate, everyone needs to be watching what they say in an official capacity.

The legality of the death penalty wasn't on trial here, merely an implementation of it. The SCOTUS can't make a call on anything that hasn't been presented to them from a lower court.
 

vrDrew

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I believe they overstepped their mandate by injecting an issue that wasn't presented in the case..
I hardly think that the idea that Capital Punishment itself as a contentious issue is anything new. The dissenting Justices are certainly not inventing a new issue or cause for litigation. And in considering any case the Justices are required to weigh the totality of the facts, the law, and society itself when coming to their decisions. Obviously many times different Justices will impart greater weight to some elements than others - which is why we get split decisions. In this case, I am quite certain that all the Justices had in mind the Constitution's prohibition on "cruel and unusual punishment" when making their individual decisions. The difference is that the Affirming majority felt that lethal injection - in the circumstances of the case at issue - did not rise to the level of cruelty or unusualness that the Dissenting Justices did.

Both Affirming and Dissenting sides are permitted, by law and practice, to issue their written opinions on cases decided by the Court. Thats all that happened here.

The definition of "cruel and unusual" obviously has changed over time. At the time of the founding of the Republic, public hangings were considered mainstream. Obviously public sentiments have changed over the intervening two hundred plus years, to the point that we now only permit executions for the most heinous crimes; and these are conducted in restricted areas, and usually under sanitary and medical supervision. It is not beyond the realm of possibility that five, ten, or twenty years from now public sentiment will have advanced to the point that Capital Punishment itself has met the definition of an unConstitutional Government practice.
 

giantfan1224

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I agree with you to a point, though I'd word it more like Tomorrow did. Considering all the coal raking and scrutiny the SCOTUS is about to be put through over the gay marriage debate, everyone needs to be watching what they say in an official capacity.

The legality of the death penalty wasn't on trial here, merely an implementation of it. The SCOTUS can't make a call on anything that hasn't been presented to them from a lower court.
Hence including the possible legality of Capital Punishment in the dissent was completely inappropriate. Whether a judge is biased or not, why give people reason to question it?
 
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tgara

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In reading this story on the ruling handed down today on Lethal Injection, I was struck by the dissenting opinion of Breyer and Ginsburg.



I believe they overstepped their mandate by injecting an issue that wasn't presented in the case. That’s the very sign of an activist judge. Why bring up the legality of capital punishment when it’s already “settled law” (as is continually pointed out by liberals in regards to roe v. wade)? I can't help but picture Lady Justice with an eye peeking out from the blindfold.
Well, remember Breyer and Ginsburg were writing a dissent, so their opinion is not the law. This tactic of asking for a case in so-called dicta is not new. All the justices do it from time to time, just as they sometimes ask the Congress to do this or that. I remember about 10 years ago Thomas asking for a case that would wipe out all the Establishment/Free Exercise cases so they could start fresh. In a way he was right, because having studied that stuff, the state of the law on that topic is currently a hodgepodge of individual opinions going every which way -- a real mess. Here, Breyer obviously thinks capital punishment is unconstitutional and wants to adjudicate the issue. I'm sure some ACLU lawyer will take him up on his offer.
 
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0007776

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Well, remember Breyer and Ginsburg were writing a dissent, so their opinion is not the law. This tactic of asking for a case in so-called dicta is not new. All the justices do it from time to time, just as they sometimes ask the Congress to do this or that. I remember about 10 years ago Thomas asking for a case that would wipe out all the Establishment/Free Exercise cases so they could start fresh. In a way he was right, because having studied that stuff, the state of the law on that topic is currently a hodgepodge of individual opinions going every which way -- a real mess. Here, Breyer obviously thinks capital punishment is unconstitutional and wants to adjudicate the issue. I'm sure some ACLU lawyer will take him up on his offer.
Looking at the majority opinion which says that
the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-ofexecution claims. See Baze v. Rees, 553 U. S. 35, 61 (2008) (plurality opinion).
http://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf
it looks like the court does need a case on the constitutionality of the death penalty as a whole. I don't think there is any humane way to kill people, but probably the methods we are using are the best so any challenge to them needs to be at the death penalty as a whole rather than a specific method as it won't be easy to find something more humane.
 

giantfan1224

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Looking at the majority opinion which says that
http://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf
it looks like the court does need a case on the constitutionality of the death penalty as a whole. I don't think there is any humane way to kill people, but probably the methods we are using are the best so any challenge to them needs to be at the death penalty as a whole rather than a specific method as it won't be easy to find something more humane.
Those executed by lethal injection are afforded a much more humane death, much less painful one, than the majority of humans on this planet. And certainly more humane than the death they offered their victims.
 

giantfan1224

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Hey, it's ok when they are activating conservative issues, like Hobby Lobby. :rolleyes:
Nice derail. As mentioned in the OP, it's highly irresponsible of a judge--in a dissent to a ruling he lost--to state what cases he'd like to see come before the bench. That's the reckless activism I'm talking about.
 

chown33

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Looking at the majority opinion which says that
http://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf
it looks like the court does need a case on the constitutionality of the death penalty as a whole. I don't think there is any humane way to kill people, but probably the methods we are using are the best so any challenge to them needs to be at the death penalty as a whole rather than a specific method as it won't be easy to find something more humane.
https://en.wikipedia.org/wiki/Inert_gas_asphyxiation
According to the U.S. Chemical Safety and Hazard Investigation Board, in humans, “breathing an oxygen deficient atmosphere can have serious and immediate effects, including unconsciousness after only one or two breaths. The exposed person has no warning and cannot sense that the oxygen level is too low.”​
 

Eraserhead

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Just like Breyer and Ginsburg, you two can't stay on topic.
What's the difference between this and Thomas' rant about gay marriage in his dissent over DOMA?

Judges do this all the time. This was a death penalty case.

About the only argument in favour of not banning the death penalty as cruel and unusual is that the founding fathers clearly supported the death penalty. But then they did say each generation the constitution should be rewritten.