By Robert Silvey
The five reactionary members of the Bush/Roberts Supreme Court are showing themselves, case by case, to have a radical view of the law and of their place in American government. Furthermore, whatever John Roberts and Samuel Alito said in their Senate confirmation hearings about stare decisis, they have now made clear that they have little regard for precedent or for the history of the Court.
Yesterday, in yet another 5â€“4 decision, Roberts, Alito, Scalia, Thomas, and Kennedy overturned decades of case law in a way that will likely result in more executions. They allowed a trial judge to disqualify a juror who expressed some doubts about the death penalty but who was prepared to follow the law. We can now expect many more “hanging juries.” The justices’ view of the matter was so extreme that their decision overturned a grant of habeas corpus by an appellate judge who is known to be unusually conservative.
John Paul Stevens read part of his forceful dissent aloud, a rare practice that has become more common in this term, as the four centrist justices express their frustration with a majority that continues to deny once-secure legal rights. In the New York Times, Linda Greenhouse writes:
The Supreme Court on Monday strengthened the hand of prosecutors in death penalty cases by making it easier to remove potential jurors who express ambivalence about the death penalty or confusion about how it should be applied.â€¦
The decision overturned a ruling by a conservative icon among federal appellate judges, Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit.â€¦
Judge Kozinski said the trial judge, in a Washington State court, had improperly granted the prosecutorâ€™s request to dismiss a juror who, while expressing some qualms about the death penalty, also said he would be willing to impose it in an “appropriate” case.
Writing for the four dissenters on Monday, Justice John Paul Stevens said â€¦ the courtâ€™s precedents made it clear that no matter what a jurorâ€™s personal opinion about capital punishment, that juror should not be dismissed in the absence of evidence of unwillingness or inability to follow the law.
The process of questioning potential jurors in a death penalty case, and weeding out those who hold such strong feelings for or against capital punishment that they would be unable to apply the law, is known as “death-qualifying” a jury. It is an exacting process that in this case took 11 days, and it is governedby a series of Supreme Court decisions going back to 1968, before the modern era in capital punishment. The concern in those cases has been that if prosecutors had too free a hand in eliminating those with doubts about the death penalty, the jury would be stacked against the defendant.
And now death juries will certainly be stacked against the defendant. Judges will be able to exclude not only those potential jurors (like me) who would refuse to sanction state murder in any case, but also any who are uncomfortable with the death penalty but still willing to enforce the barbaric law. The jurors who are left will tend to be those who are strong supporters of capital punishment, and any prosecutor’s request for execution will be much more likely to be approved. As Justice Stevens wrote:
Today, the Court has fundamentally redefinedâ€”or maybe just misunderstoodâ€”the meaning of “substantially impaired,” and, in doing so, has gotten it horribly backwards. It appears to be under the impression that trial courts should be encouraging the inclusion of jurors who will impose the death penalty rather than only ensuring the exclusion of those who say that, in all circumstances, they cannot [my emphasis].
It’s a sad day for American justice.
Categories: American Culture