The Greenhouse Effect
Last week, the Supreme Court held, 7 to 2, that Kentucky's method of lethal injection remains a constitutional way of executing the rapist of a child. Justice John Paul Stevens concurred.
In his opinion, however, Stevens exhilarated liberals by coming out of the closet as a born-again abolitionist of capital punishment.
Said his honor, it is time to reconsider the "justification for the death penalty itself." Court decisions and state actions that justify it are but "the product of habit and inattention rather than an acceptable and deliberative process."
Enlightened men and women, the justice is saying, will abolish capital punishment as a barbaric relic of a blessedly bygone era.
For his defection to the abolitionist camp, the 88-year-old justice was rewarded with her patented deep massage by Linda Greenhouse, the veteran—and after 30 years retiring—Supreme Court reporter of The New York Times:
"When Justice John Paul Stevens intervened in a Supreme Court argument on Wednesday to score a few points off the lawyer who was defending the death penalty for the rape of a child, the courtroom audience saw a master strategist at work, fully in command of the flow of the argument and the smallest details of the case. For those accustomed to watching Justice Stevens, it was a familiar sight."
For rolling over on its back, the dog gets its tummy scratched.
To Greenhouse, Stevens' flip on capital punishment, following his flip to favor affirmative action, represents the "culmination of a remarkable journey for a Republican antitrust lawyer."
It sure does. But had Stevens moved from left to right, rather than the reverse, one imagines Greenhouse's enthusiasm for the "master strategist" would have been well contained.
What we see here is a textbook example of what U.S. Judge Laurence Silberman calls "The Greenhouse Effect."
This is the effect on aging and weak-minded Republican justices, like Harry Blackmun, David Souter, Anthony Kennedy, Sandra Day O'Connor and John Paul Stevens, of the lure of fawning publicity, if they will but recant their convictions and embrace the agenda of the left.
The Faustian bargain these justices are offered is favorable media, comparisons to great liberal jurists of yesterday like Louis Brandeis and Hugo Black, and repeated references to how they have "evolved," and "grown," and are being accorded a strange "new respect."
When they accept such media favors, these justices, nominated by Republican presidents to restore constitutionalism to the court, begin to receive ovations at establishment dinners and turn up on the most desirable party lists. Where once they were the "clones of Scalia," suddenly, they are jurists of "independent thought."
Stevens, however, as Greenhouse is swift to remind him, has a ways to go if he wishes to make it to Cooperstown.
"(Stevens') renunciation of capital punishment in the lethal injection case, Baze v. Rees, was ... low key and undramatic. While reminiscent of Justice Harry Blackmun's similar step, shortly before his retirement in 1994, Justice Stevens' opinion lacked the ringing declaration of Justice Blackmun's 'From this day forward, I no longer shall tinker with the machinery of death.'"
Greenhouse did not mention Blackmun's role in getting the "machinery of death" up and running in all 50 states against unborn children, 50 million of whom have wound up in garbage bags or dumpsters outside abortion mills because of her hero's great decision.
There is another and larger issue here.
It is the question not of what is decided, but of who decides.
Whether Citizen Stevens abhors the death penalty should not matter to Justice Stevens. For if the constitution provides for a death penalty, and capital punishment has been imposed throughout our history, and the form it takes does not violate the ban on cruel and unusual punishment, Stevens' decision should be automatic, no matter his personal beliefs.
What Stevens is signaling, however, is that his altered opinion of the death penalty may cause him to start voting against it—that is, to substitute his personal view of capital punishment for the decision of the elected leaders who have voted to retain it.
But Justice Steven is not, or should not be, the decider. In a democratic republic, that is the prerogative of the majority, through its elected representatives.
It is just such usurpations of power by Supreme Court justices that loosed the culture war that has torn us apart. Repeatedly, justices have imposed their own views and values—on pornography, abortion, school prayer, busing, homosexuality, the death penalty—on the nation, usurping the authority of legislators.
If Stevens has come to believe capital punishment is abhorrent and ought to be abolished, he ought to resign his seat and campaign for its abolition. But if he exploits his position as a justice to impose his views on a dissenting democracy, Stevens should be impeached.
And he would be, if we had a Congress that cared about its own and the states' right to make such decisions under the Constitution.
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"This is the effect on aging and weak-minded Republican justices, like Harry Blackmun, David Souter, Anthony Kennedy, Sandra Day O’Connor and John Paul Stevens, of the lure of fawning publicity, if they will but recant their convictions and embrace the agenda of the left."
The temptress of "respectability" and of "acceptance" by the chattering classes beguiles many, even the allegedly wise, Justice Stevens being but the lastest of the divines sirened off. Were such but the loss of their moral and intellectual integrity, few of us, certainly not I, would take note; however, this fundamental shift in premise, in the case of a Supreme Court justice, is a threat to liberty itself.
"If Stevens has come to believe capital punishment is abhorrent and ought to be abolished, he ought to resign his seat and campaign for its abolition. But if he exploits his position as a justice to impose his views on a dissenting democracy, Stevens should be impeached."
This is the truth. This should be encouraged by his fellow Justices and eventually by Congress. In sensible media this story would be front and center and these possible consequences (resignation or impeachment) would be suggested and discussed by all the mindless talking heads (conservatives included). The Supreme Court is by far the most damaging institution inside this country, but it is not because of the tyrannical power they wield. It is because of the respect, wisdom, and authority they and their decisions and opinions are afforded by our politicians. There is a name for a government where one man's personal opinions affect the entire land for years to come and it is not 'republic.'
death is a comfort to us all - the moment of not being - or if we go on ... then it didn't happen per se. It's always more difficult for those who remain behind. Except if MONSTERS are [put] out of our own misery, as well as theirs. ... I'd favor the death penalty, except the Pope does not. So I can't favor it. He's a good Papa and seriously I 'believe' he knows better. I love him-and you, so I'd say no. ... If that seems too simple then I'd say don't let the simple elude you. If the Pope changes his mind on this 6 of one - half-dozen of another issue - so would I. Really. ... Pat convert please, back to Catholicism, please. ... note: did i read pat's above, no - sped read it. something about he's not opposed to the death penalty. (blind - did i get it right?) HUMOR that's all it deserves. ... States Rights - yes. Yes, yes, yes!!!!!!!!! did he mention that? if so - YES! ... humor- - this is what happens when you speed read. sorry. "I took the Evelyn Wood'head sped reding course and my reding-sped has impro'hved 300 percents." -cheech&chong
Nixon was warned when nominating Blackmun, Ford when nominating Stevens, Reagan with O'Connor and Kennedy, and finally Bush the elder with the "stealth justice," Souter. They were warned when the establishment media started fawning all over them and embracing them as being devoid of any controversial or polarizing positions. These jurists would unite rather than divide the country, the politicians and talking heads told us. Almost two decades after the aforementioned additions to the court, who received a COMBINED nine Senate votes against confirmation, the records of three of those justices place them to the left of CLINTON'S nominees, Stephen Breyer, an aide to Ted Kennedy, and Ruth Bader Ginsburg, an ACLU feminist. O'Connor built the reputation of being the "swing vote" who more often voted with the activist side, and Kennedy, the new swinger, also can be depended upon to vote with the Four Horsemen, at least as far as social issues go. Meanwhile, two other Republican justices, Stevens and Souter, who knew very well that they were nominated to return the Court to its constitutional role, have instead sought to leave their marks as the most activist members of the court. Indeed, there are few distinctions left between those two justices and their predecessors, Wild Bill Douglas and William "Red" Brennan. God bless Senator Joe McCarthy for his vote against the latter's confirmation.
For Brock:
I always thought the reference to Douglas as William Zero Douglas was the most apropos. But Wild Bill, presumably referring to Douglas' outdoorsmanship, works quite alright.
Sorry, but you're wrong about Stevens. Ford prided himself on being a "Moderate", unlike Reagan who in Ford's opinion was a "Right-wing extremist". Ford nominated Stevens because he was a "moderate", Ford hated the "Religious Right".
Poppy Bush was in the same Rockefeller Republican mode. He was for abortion in 1980 and thought a Reagan a "right wing nut" on the social issues. He then pretended to be conservative to win election in '88 but once elected went back to his Eastern Establishment roots & nominated Souter.
OTOH, Reagan had to settle for Kennedy since the Democrats wouldn't accept a Bork like conservative. He was warned about O'Conner but conservatives like Renquist and Meese said she was OK. Don't blame the Gipper.
McCain will go down the same road as Poppy Bush. He has zero desire to fight Ted Kennedy to get a Scalia or Alito on the SCOTUS. He will cave and nominate a souter or at best a Kennedy.
William Bradford Reynolds told me while Kennedy's nomination was pending before the Senate that Kennedy would make a good justice, that Meese had long known Kennedy, etc. Was he right?
For an account of the tendency Mr. Buchanan describes through all of American history, see my _The Politically Incorrect Guide to the Constitution_.
Mr. Gutzman,
I have read your book on the Constitution as well as Judge Napolitano's book on the same. Together, both works, although taking a different approach and having definite differences, substantiate the notions I grew up with concerning the Constitution and the usurpation thereof by the nine divines - notions fostered by my father who was fully aware of the Constitution and of American history.
Ok I read it slowly:
"For misery is trodden on by many,
And, being low, never relieved by any." -W.S.
Revenge is God's domain - it's not liberal - i'm CONSERVATIVE - if it ain't necessary to change, it's necessary not to change. No death penalty (State by State) - since it is OUR tradition to mitigate but not usurp His prerogative. Kill me, I'll forgive'ya (unless in self-defense i get you first.) Kill ALL of my own - i'll forgive ya. Even if I may kill'ya somewhere down the road if I can't control myself - Knowing me, might be the case. Sorry. Don't mean I'm right. ... We forgive and mitigate - that's our/MY tradition. I'm CONSERVATIVE. Pat? (strap on a pair - carry concealed guns, if nessary - Consitutional right.) The bad guys always have'em - *always will. ... Unless you can't trust yourself with them, like me. I'd shoot myself in the foot - or worse. But there are folks better than me and I respect it. Amen.
Reading the affirmations and dissents of Supreme Court Justices tells you a lot about the case - and the Justice. Much of what has been said in this thread is a response to what is seen as the damage inflicted on constitutional jurisprudence by Justices appointed by presidents of both parties. Although it is still far too early to tell, the recent appointments of Chief Justice Roberts and Associate Justice Alito are encouraging signs of the "the return to normalcy" by the Court. A case in point is the recent 7-2 decision by the Court the the case of Baze vs. Reees, to uphold the constitutionaly of lethal injection.
In contrast to Greenhouse's extolling the jurisprudential virtues of Justice Stevens' in The Times, might I suggest reading a far less laudatory analysis of the Justice? I've done my share of reading decisions by the Supremes over the past 20 years, but rarely - if ever - have I seen any opinion that exhibited a more direct and pointed criticism of one Justice by another than Justice Scalia's open reproof of Justice Stevens.
It is far too long to write about here, but Scalia's rebuke, and that is what it was, takes Stevens to task for his indifference to "the vast majority" of Americans who favor capital punishment, and Stevens' use of contradictory empirical data to prove the point that "the death penalty is unconstitutional."
But Scalia's most resonating criticism occured when Stevens, who, ironically, voted to sustain the execution of criminals by lethal injection, then reversed course in his opinion and wrote: "I have relied on my own experience in reaching the conclusion that the imposition of the death penalty is unconstitutional," that Scalia described what has been the most serious departure in my lifetime in constitutional jurisprudence:
Purer expression cannot be found in the rule by judicial fiat.
The assumed role as the Supreme Court being "the least dangerous branch of government," has been turned on its head, and Scalia's indictment of more than 40 years of judicial activism was right on the money. It is very much worth reading in full.
a presto
Vincent
Blackmun, Souter, Stevens. O'Connor, Kennedy, Brennan. Warren, etc.---these Republican appointees did not flipflop. They were never any good to begin with. Let's quit fooling ourselves that the Republican Party was EVER any good but somehow or other went bad. It was never any good. Its destruction is the first necessity of all reformation.
The point made by Prof. Wilson regarding the Supremes nominated by GOP presidents cannot be denied, but his comment that "they were never any good to begin with" tickles my fancy, as well as my interest.
May I ask whom he would consider a Supreme Court nominee in his lifetime (or mine; I'm 71) worth his salt? Justice Douglas? Justice Black, with or without his KKK credentials? Justice Fortas? Or the terribly overrated Justice Marshall? Having made that point, allow me to make one more.
As I believe I wrote, or should have, the road to the Supreme Court is amply littered with those who failed their president and the people. This "least dangerous branch of government" has grown into a branch of government whose self-aggrandizement is now accepted as "the rule of law:" theirs. In so doing they have, since the New Deal and more so since the Great Society, largely destroyed the concept of popular will inherent in the 10th Amendment. That is beyond cavil.
Currently, there are four members of the Court who may be able to slowly, but surely, reduce that acceleration toward judicial fiat as law; all were the nominees of a GOP president. The Fifth Horseman, Justice Kennedy, shows signs of some change in his legal approach, although I would not bet my life - or Prof. Wilson's - on it. My sense is that so long as Justice Scalia sits on that Court, we have some chance of returning to the "originalism" that he inspires in his writing. And that trust has nothing to do with the fact that both our surnames end in a vowel.
a presto
Vincent
"Although it is still far too early to tell, the recent appointments of Chief Justice Roberts and Associate Justice Alito are encouraging signs of the 'the return to normalcy' by the Court. A case in point is the recent 7-2 decision by the Court the the case of Baze vs. Reees, to uphold the constitutionaly of lethal injection."
Mr. Chiarello, in my opinion our trouble doesn't so much involve whether Justices will uphold whatever traditional Constitutional norms still exist. Very few do. The more serious question is whether our Justices will ever vote to overturn the obviously erroneous, pernicious, and yes, unconstitutional rulings and interpretations that have become enthroned in our law over the last umpteen decades. That is what most needs to happen, yet I see precious little enthusiasm on the part of anyone to actually hike up their britches and do it. As Dr. Gutzman suggests in his book, there is a tangible reluctance on the part of originalist reformers to weather the legal and political storms that must be caused by overturning established precedent, whereas there is never any equivalent reluctance on the part of the revolutionaries, who revel in their ability to undo centuries of civilization with a simple snap of their fingers.
What we need are men with--excuse the French--balls. Big ones. Do Alito and Roberts strike you as such men?
What we really need is for the states and the people thereof to assert their authority, under and next to God, the ultimate authority over the document which they ratified and thereby gave to it its lawful mandate and thereby and therethrough created the general government as the agent and the servant of the states and the people thereof who are the actual principals. The dictatorship of the nine divines must be broken, regardless of how they "interpret" the Constitution. The problem is, of course, that the general government has been and continues to be in the process of creating a "new people" with no cultural or moral objective correlative to the heritage which goes back to the letter and the spirit of the Magna Charta or even to the hopes and aspirations of those people from the British Isles who here struggled to give our ancient rights new expression as they conquered a wildness and brought a new and fresh version of the civilization which they had inherited. I am quite afraid that this new fiat Americans, as freshly "printed" as the fiat dollars, would create a monster worse than the one which now plagues us.
Ok now it's a matter from *where are we 'thinking' which also goes to 'how to.' - Look - the "supreme" Court - how do we get there? I mean it's silly but if we're an 'egalitarian' society - whether we 'should' be that or not - then THAT'S a question to consider (if we are.) I think so. Let's not kid ourselves like philistines who don't even know they're hypocrites...Let's just take the fact we all *are hyprocrites inevitably (to some degree) whether we know it or will admit it or not, ok? I won't even deal with that.
Let's just go to 'how to' think. ... Think - begins with onto-theologically if we're honest, as 'method', and so even more recently sadly in our culture as 'torture' if deemed the right 'method.' But precisely because p.c. or onto-theologically correct. (E.g. in the past Cardinal Richelieu's cages) BECAUSE we won't deal with the inevitable thing itself - ourselves as is, i.e. you & me. (Perhaps we shouldn't...I won't deal with that either.)...We deal with method primarily. Not that this is bad if that's where we're at. We're all inevitably in conventional thought, who we're supposed to be 'like.' It's comparison based. ... That's why when something new presents itself to us we wonder first, what's that 'like' and secondly who said it. (It's cultural, and so closer than conscious thought.) *Who are supposed to be onto-theologically 'equal' to. And on who's 'authority' is it being presented. But given 'us' the thing itself - 'how to' think about us?
Well to deal with 'us' especially at the level of the "supreme" court (a job for superman?) we have to deal with the thing itself, i.e. you and me. But we don't often, we deal with how to 'handle' you and me. Because we 'believe' the method and subjectivity is how to *know us. That's where we're at yet as human critters.
So that whole court in essence or the totality is bogus, really, except if we WANT it. We do. So there it is.
Admittedly that may be good enough for now in a jury of our peers (it's the progress of the world 'thought' so far) but it often as 'not' renders justice...Since we yet hold culturally to the notion of the matter itself - is ruled by *transcendental subjectivity (i.e. so inevitably method.) That is our cultural bias (our lot) even when sitting in the jury box...Or in how (at another level) to 'deal' with foreign countries... Then that bias gets mitigated by whatever i.e. usually fashion - (he/she's black or white, or democratic or not etc.) So jury tampering would be as 'nothing' in that larger context. Right? ? It's why I think the French system for one example might be preferable. But that's another story. I'm thinking out loud. Sorry. I'm not in love. Love means never having to say you're sorry? At least it's not just humor?!? Although you may prefer it. Well, sorry. I guess I do it out of love, to put the best spin on it. My bias - another story.
We haven't yet had the guts (no one has so far) to arrive at the thing itself... which is you & me, sadly. 96 tears... Funny too.
Robert M. Peters @ 14:
Amen.