Justice in the end?

The Supreme Court has grappled with the death penalty a number of times, most recently this week.

Cases involving eight death row inmates have come before the court this term. Four prisoners have won and four have lost. The most recent case was a 5-4 decision Monday to reinstate the death penalty in a rape and murder near Seattle.

In that case and the seven others, Breyer, Ginsburg, Souter and Stevens sided with the prisoner. In four cases, Justice Anthony Kennedy provided a fifth vote and, thus, a majority. In one of those four – which the court dismissed without deciding – Chief Justice John Roberts joined as well, leaving in place an appeals court ruling that set aside a death sentence.

The court has been implacably split on this issue, as on others. Roberts typically has been aligned with Justices Samuel Alito, Antonin Scalia and Clarence Thomas, opting to defer to the state courts that imposed and upheld death sentences.

That’s federalism, which is what will happen when Roe v. Wade is overturned by the Supreme Court. It will go back to the individual states, which governed abortion law before the stunning seizure of that power in Roe.

There are a couple of interesting insights further along in this AP story.

“In the late ’80s and early ’90s, you were a rare defendant who won a death penalty case at the Supreme Court,” said Richard Dieter, executive director of the anti-capital punishment Death Penalty Information Center. “Now there’s a fair chance that if you can get Justice Kennedy, you’ll win.”… Two years ago, Kennedy wrote the 5-4 decision outlawing the execution of juveniles.

When I read that, I thought of Justice Kennedy’s role in the recent Carhart decision upholding the partial birth abortion ban, which protects infants being born from a brutal execution.

Then there’s this, continuing that AP story, referring to two death penalty cases:

Both decisions focused on a national consensus that the majority said had formed against those types of executions.

Justice Antonin Scalia disputed the existence of such a consensus in his dissents in both cases. He noted that fewer than half the states that allow executions prohibited them for either juveniles or the mentally retarded. “Words have no meaning if the views of less than 50 percent of death penalty states can constitute a national consensus,” Scalia said in 2005.

Many liberal politicians and big media folks like to use the word “consensus” to cover a lot of ground these days, as opposed to the truth that it’s actually the powerbrokers having their way and then justifying it by saying most people agree with them. Scalia called them on it.

And there’s this interesting note in the middle of the story:

None of the liberals has gone so far as the late Justices Thurgood Marshall and William Brennan, who called capital punishment unconstitutional, or Harry Blackmun, who said late in his tenure he never again would vote for death.

So Blackmun, the father of Roe and abortion on demand, said in the end that he never again would vote for death. He’d had enough.