Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, November 6, 2015

No case is "sacrosanct," not even Brown

Michael Dorf's post on originalism and Brown two weeks ago touched off an interesting series of observations and arguments by Larry Solum, Paul Horwitz, Asher Steinberg, Michael Ramsey, and Richard Re, among others. (See also follow-up posts by Dorf and Solum.) 

Dorf's post was about the need for originalist theory (or any other constitutional theory) not just to accommodate Brown as decided but to explain why Brown was right. In Dorf's words:

[T]here is something wrong with an argument that is sometimes offered to rescue those brands of originalism that produce the "wrong" results in sacrosanct cases like Brown v. Board. The argument asserts that this is not a worry because originalism is compatible with stare decisis, which preserves Brown. As I explained, that argument misconceives the problem, which is that the rightness of Brown and perhaps a few other cases are settled intuitions. It is not sufficient that an originalist judge would not overturn Brown. Any acceptable approach to constitutional interpretation (or construction) must say that Brown was rightly decided.

Underneath this claim about the relationship between constitutional theory and constitutional doctrine is a claim about our constitutional culture: "A relatively small number of constitutional decisions are so central to our constitutional culture that any interpretive methodology that fails to produce them is, ipso facto, improper."

Now as it happens, there are some who are worried that our legal culture's conception of constitutional interpretation is corrupt, perhaps irredeemably so. And at least one of them is on the Supreme Court. Consider for a moment the penultimate paragraph of Justice Alito's dissent in Obergefell v. Hodges

Today's decision shows that decades of attempts to restrain this Court's abuse of its authority have failed. A lesson that some will take from today's decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture's conception of constitutional interpretation.

Strong words. But don't let agreement or disagreement with Justice Alito's jurisprudence control your reception of this assessment.

Consider also a quotation from Erwin Chemerinsky's recent book, The Case Against the Supreme Court, that Ronald Collins highlights in his online interview of Chemerinsky: "For too long, we have treated the Court is if they are the high priests of the law, or at least as if they are the smartest and best lawyers in society." 

Just so. 

To use a word like "sacrosanct" to describe a case like Brown is to feed the false conception of the Justices as "high priests of the law." 

Any sober assessment of Brown's contribution to dismantling the deep injustice of racial segregation in public schools cannot begin from the premise that Brown is right. No Supreme Court decision stands on its own bottom.

And it is far from clear that everyone who agrees that Brown is right are agreeing about the same thing, anyway. If people disagree about what they are actually saying is right when they say that "Brown is right," then starting from that premise won't get us too far. At least that's one lesson one might take from the deep judicial disagreement over the meaning of Brown in Parents Involved.

I am not arguing (not here, anyway) that Brown was wrong. I am not even making a claim about what Brown held. I am arguing that it is wrong to approach Brown as "sacrosanct." No Supreme Court decision is. Each decision is a group product of an institution composed of human beings, with all the limitations and promise this recognition carries with it.

How might this perspective help?

For one thing, it can help us see potential flaws in Brown. To pick one whose implications have previously been picked apart by others, Chief Justice Warren's opinion for the Court was unanimous. And that is a problem if the Court itself was not unanimous in its legal judgment.

Projection of false unanimity is a sign of weakness, not strength. It deprives the public on the "losing" side of the knowledge that the best arguments for their view were considered and rejected on the legal merits. It deprives the majority of the opportunity to strengthen its legal case by responding to dissenting legal arguments. And it adds to the perception that Supreme Court decisions are the product of will, not judgment. 

This is not to say that Justices should never acquiesce in opinions with which they do not fully agree. I haven't thought enough about such acquiescence to have a view, and it is common enough in Supreme Court history to avoid out-of-hand dismissal. But identifying potential problems with the projection of false unanimity enables one to better appreciate what is and is not involved in the premise "Brown is right." 

Finally, let us not forget that there were two Supreme Court decisions in Brown. Dorf's posts were about Brown I. The remedial decision a year later in Brown II is far from "sacrosanct." Its use of "all deliberate speed," for example, has been widely criticized. (Interesting aside relevant to Catholic legal theory: The phrase "deliberate speed" apparently originated with Francis Thompson's poem, The Hound of HeavenSee Jim Chen, Poetic Justice, 28 Cardozo L. Rev. 581 (2006), and this earlier MOJ post.)

Even though the Supreme Court decided a Brown I and a Brown II, there was only one Brown. This is the unanimous Brown (in both I and II). And it is the ambiguous Brown.

There is no sacrosanct Brown.

November 6, 2015 in Walsh, Kevin | Permalink

Thursday, November 5, 2015

St. Thomas More Society of Richmond Red Mass and Dinner featuring Ryan Anderson

The St. Thomas More Society of Richmond hosted our annual Red Mass and dinner yesterday evening.

The homily closed with an invocation of Mary, Mirror of Justice. I would be surprised if our enterprise here at MOJ had anything causal to do with that. But I took the homily as a renewed call for all of us present to imitate Mary, not as our own sources of light, but as better reflections of God's grace illuminating the world. 

Our keynote speaker at the dinner was Ryan Anderson, whom I had the pleasure of meeting for the first time. His speech, together with an earlier presentation at the University of Richmond Law School, enabled me to appreciate just how courageous and effective he is. No wonder so many people don't like him!

It's uncomfortable to be challenged. But as John Cavadini said in connection with Pope Francis's visit, we need to be challenged and made uncomfortable.

Introducing Ryan to a student audience earlier in the day reminded me of a quotation from Martin Luther King, Jr. that my college pro-life group put on our t-shirts when we restarted the group and became more visible: "There comes a time when one must take a position that is neither safe, nor politic, nor popular, but he must take it because conscience tells him it is right." We thought we were taking unpopular positions, but positions that needed to be taken. As it turns out, we probably overestimated the unpopularity of our views. But we were at least willing to put ourselves out there in order to tell the truth about the value of unborn human life. 

Researching that quotation yesterday to make sure it was an authentic quotation from Martin Luther King, Jr. (unlike the one that circulated after the death of Osama Bin Laden), I came across another quotation attributed to King that seems particularly apt in the wake of Obergefell v. Hodges: "In the end, we will remember not the words of our enemies, but the silence of our friends."

I have not nailed down the source for this one and cannot vouch its authenticity. But the basic idea definitely fits with King's letter from a Birmingham jail, in which he criticized too many in the white church who were "more cautious than courageous" and "remained silent behind the anesthetizing security of stained glass windows."

There is no one right way to choose what to blog about, write about, share on social media, say or not say in casual conversation with co-workers, friends, neighbors, and so on. But there are certain ways of going wrong. Indulging a spirit of self-censoring timidity is one such way.

So ... I am thankful for the thoughtful, forthright, and friendly witness of Ryan Anderson to the truth about marriage as the union of man and woman as husband and wife. And I hope not to remain silent behind online stained glass windows ... even if that means doing something that leads to a professional dead end, like taking Justice Kennedy's pronouncements about substantive due process seriously on their own terms. There's no there there, and yet here we are. It's not too late to stop where we are going.

November 5, 2015 in Walsh, Kevin | Permalink

Thursday, October 29, 2015

Anthony Kennedy, Kim Davis, lawmakers from nowhere in particular, and legal change while looking each other in the eye

A few concluding paragraphs in John Finnis's lecture on judicial power linked by Michael earlier helped me to understand part of what I found frustrating in reading the recent news story "Justice Kennedy says officials must follow law or resign."

Here is Finnis speculating about the drift toward the subjection of legislative power to judicial power:

Why, then, is the drift everywhere towards the subjection of legislative power, directly or indirectly, to judicial power? Why do many judges in many jurisdictions ever more confidently give judgments assuming the roles of constitution makers and legislators? Answers must remain speculative; the causes are various.


One cause is hidden in that word “jurisdiction” I used just then when I meant countries, political and civic communities of households, families, people. Discourse in law schools and courts increasingly locates its participants in a universe of standards of correct thought and decision, and of the incorrect and unacceptable, which are generated and shared among persons who speak as if they were nowhere in particular. And they can carry on this discourse, and make, commend or recommend the corresponding judicial decisions for whole countries and sets of countries with amazingly little pushback by those whom our constitutions still firmly designate as the makers of the law that shapes its people’s future. Why is some pushback in order? Why was and is that historic constitutional distribution of responsibilities sound?


One way of putting a sound answer is this. Pushback, seeking to adaptively restore that constitutional distribution, is timely and fitting because the members of a properly functioning legislature, chosen by persons who (with their families) will be affected, have to look each other in the eye, even while they are deciding, with no pretence that their decision is anything other than what it is: their personal choice of one kind of future, in preference to all others, for themselves, their fellow legislators, and the people they represent and live among. They do not (and cannot) make the claim that bearers of judicial power must at least profess: that this decision of ours about the law merely or essentially conveys (transmits into the present and the future) positions that have already been settled by our law and are found in it by a learned art (Coke’s “artificial reason”) called interpretation, applying commitments made (at least in principle) back in the past. Or interpreting and applying commitments made (it is professed) over there in a haze of “global law”, made how or by whom no-one really can say, but identifiable and professable as rights and standards even by scholars and judges who in another conversation, eye to eye, might well admit their doubt or denial that there is really any moral right or wrong. – their belief that no value judgments are true: all are “subjective”.


That discourse community – or academic, NGO, judicial echo chamber – treats as strangers the legislators in merely local assemblies such as national Parliaments, and the politicians taken to be persons who are unskilled in that learned discourse’s latest tropes and precepts, and who fail to measure themselves against the standards of esteem or disesteem that prevail in a given decade in that community or echo chamber. There is urgent need for legislators who have retained or regained their sense of constitutional place and legitimacy, and who are aware that this whole style and movement of global juridical discourse and judicial reformism is -- like judicial process even at its best – a defective, inferior way for a historically constitutionally minded people to take responsibility for its own future.

There is a lot going on in these few paragraphs, not all of which directly applies in the United States. But still.

Can anyone imagine Justice Kennedy looking Kim Davis in the eye and telling her on the afternoon of June 26 that she must now accept and effectuate the Supreme Court's new understanding of marriage or else quit her job? Surely he could not do so with no pretence that he had not just changed the law. 

Does anyone believe that that Justice Kennedy could describe Obergefell as a decision "about the law [that] merely or essentially conveys (transmits into the present and the future) positions that have already been settled by our law and are found in it by a learned art (Coke’s “artificial reason”) called interpretation, applying commitments made (at least in principle) back in the past"

October 29, 2015 in Walsh, Kevin | Permalink

Tuesday, October 27, 2015

"Put not your trust in princes"

Thanks to Rick for posting Dean Kearney's 2015 Pallium Lecture. The lecture's concluding admonition is about the stance one should take toward the Supreme Court with respect to religious liberty. But its application can be generalized, as it is the verse that keeps coming to mind as I struggle to describe the reactions of many religious believers toward the Supreme Court these days:

“Put not your trust in princes.” I confess that the admonition is taken out of context, but is this not the right attitude for citizens of a democracy to cultivate? Princes in black robes are no more to be trusted to protect our freedoms than are any others. 

October 27, 2015 in Walsh, Kevin | Permalink

Thursday, October 15, 2015

Man in same-sex marriage removed as executive director of Catholic ministry in Richmond

A Richmond, Virginia man married to another man since 2008 was removed from his job as executive director of a Catholic ministry for low-income elderly this past April. John Murphy worked eight days as executive director for St. Francis Home before losing his job.

According to a news report, "two deputies of Bishop Francis Xavier DiLorenzo told him that he was being fired because his marriage goes against church doctrine."

In an interview with a local news outlet, Mr. Murphy said that his removal from the executive director position at St. Francis Home "was something that was out of left field and totally shocking to me."

According to a story at GayRVA.com, Mr. Murphy had "a little misgiving" during the hiring process when he found out that the nonprofit job he was interviewing for would be "heading up a care facility for low income elderly Richmonders run by the Catholic Diocese of Richmond." A Notre Dame graduate who was raised Catholic and attends church semi-regularly, Mr. Murphy nonetheless went ahead in the process after reportedly being reassured that the board "really wanted [Murphy] to focus on [fundraising and related] kinds of things and less on the religious aspect of it."

Murphy has filed a charge with the EEOC. A statement by the diocese says that, "[a]s a Catholic organization, we expect the employees of the Diocese and its ministries, to uphold and embody the consistent values and truths of the Catholic faith, including those preserving the sanctity of marriage." 

If this ends up in federal court, Mr. Murphy will need to plead a prima facie case of discrimination and also overcome Title VII's religious employer exemption. Both will be difficult. Title VII does not encompass sexual orientation discrimination except to the extent that it can be classified as sex discrimination, and discrimination on the basis of being in a marriage that goes against church doctrine is not sexual orientation discrimination even if that were covered.

If Murphy can somehow shoehorn the facts of his claim into discrimination on the basis of sex, the religious employer exemption will also be invoked by the diocese. A news story on Murphy's charge reports that Michigan law professor Sam Bagenstos described the exemption as one that "goes only so far as to allow organizations from refusing to hire people who aren’t part of their religion." But Missouri law professor Carl Esbeck asserts that the Title VII exemption allows religious employers to enforce religiously based codes of conduct, because the operative understanding of religion "is not narrowly doctrinal or creedal but reaches beyond worship and denominations." Esbeck cites multiple cases applying the exemption to shield decisions based on religious codes of conduct. See also Stanley Carlson-Thies; but see Marty Lederman & Rose Saxe. (The Esbeck, Carlson-Thies, Lederman, and Saxe analyses are all more directly about the recent executive order, but the authorities they rely on relate to the Title VII exemption.) Other sources of law that may also be relevant are RFRA (depending on how Title VII would otherwise be applied) and the ministerial exception (depending on the facts).

Legal analysis aside, the facts as reported paint a picture of a broken hiring process for this position. One can imagine a situation in which the removal of someone already on the job for something that was known about the person's marriage at the time of hiring is less easily avoided--say, because there has been a leadership change in the diocese. But the reported facts point more toward a process breakdown. The recruiter or the board or both were not aligned with the diocese.

Perhaps facts will come out that tell a different story; only one side is telling its story right now, and it is coming out through advocates and the press. It would be surprising if nobody thought to verify diocesan policy on a matter like this. But if Mr. Murphy had received credible, authoritative, explicit assurances sufficient to overcome his misgiving about how his same-sex marriage might disqualify him for the position, then he deserves an apology. That is, of course, separate from the legal merits, which are unlikely to go in Mr. Murphy's favor. As long as litigation looms, moreover, it is likely that the parties will only be talking through their lawyers and media representatives.  

October 15, 2015 in Walsh, Kevin | Permalink

Judicial departmentalism and collapse into judicial supremacy

Howard Wasserman finds the term "judicial departmentalism" useful for describing what might also be called bounded judicial supremacy. He says, though, that "judicial departmentalism inevitably morphs into judicial supremacy," and the mechanism is easy to identify. Suppose that non-judicial officials try to follow some approach other than judicial supremacy. They will soon face difficulty. Just about any question of constitutional meaning can be brought within the judicial domain. Once in that domain, the principles promulgated in precedents of the Supreme Court will control. And so we end up with a form of judicial supremacy, but only after time, expense, and strife.

This arrangement of bounded judicial supremacy nonetheless remains different from standard judicial supremacy. On the standard understanding of judicial supremacy, Supreme Court decisions about constitutional meaning control directly for everyone by virtue of being Supreme Court decisions, rather than controlling only indirectly through repetitive litigation governed by vertical stare decisis.

There might not be much practical difference between these two approaches most of the time. But a Supreme Court that operates with a judicial departmentalist mindset may approach matters differently than one that operates with a judicial supremacist mindset. Additionally, the judicial departmentalist framework highlights the legal contestability of the Court's pronouncements within the judicial domain as well as the notion that the judicial domain has boundaries around it.

October 15, 2015 in Walsh, Kevin | Permalink

Friday, October 9, 2015

Combating judicial supremacy through containment and conversion

The American Principles Project has a released a scholars' statement on resistance to Obergefell, and the Campaign for American Principles has put out a related "Call to Action." There is an interesting difference between the two that jumped out at me. 

The Call to Action includes a paragraph that acknowledges the supremacy of the Supreme Court within the federal judicial system, even while differentiating that supremacy from other ways of understanding judicial supremacy:

The Supreme Court is supreme in the federal judicial system. But the justices are not supreme over the other branches of government. And they are certainly not supreme over the Constitution.

That paragraph seems just right, though I did not see any corresponding acknowledgment of intra-judicial supremacy in the scholars' statement. And the pledge at the end of the call to action, as well as the request of officeholders at the end of scholars' statement, includes a position that in tension with the idea that "the Supreme Court is supreme in the federal judicial system." 

The pledge in the call to action asks presidential candidates to "refuse to recognize Obergefell as creating a binding rule controlling other cases or their own conduct as precedent." And the scholars' statement calls on "all federal and state officeholders ... to refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case." 

In legal terms, these statements call for the rejection of vertical stare decisis. This phrase captures the notion that the decisions of a superior appellate court create precedent that is binding on lower courts within the system. This idea that Supreme Court decisions create binding precedents for all other courts in the United States deciding questions of federal law is a widely accepted feature contributing to what makes the Supreme Court "supreme in the federal judicial system."

The vertical stare decisis effect of Supreme Court decisions is largely, though not entirely, uncontroversial. Another way of thinking about the Supreme Court's supremacy focuses on the Court's authority to exercise appellate jurisdiction to reverse decisions that depart from its precedents.

There is not much practical difference between these two positions at the moment because the Supreme Court's appellate jurisdiction is pretty expansive. But a practical difference could emerge if the Supreme Court's appellate jurisdiction were taken away.

As long as the Supreme Court's appellate jurisdiction remains intact, those calling for resistance to Obergfell should recognize the practical and legal obstacles that follow from the Supreme Court's supremacy in the federal judicial system. To the extent that an officeholder's refusal to treat Obergefell as law injures the legal rights of individuals in a way redressable in federal court, the matter will end up there, and then the officeholder will lose (at least for the time being). Direct confrontation with judicial supremacy in the realm of practice therefore seems like a bad idea.

Somewhat analogous to how Lincoln approached slavery or the United States approached Communism during the Cold War, a containment strategy seems more appropriate. The idea behind containment is to limit the damage that comes from erroneous Supreme Court decisions by confining them as much as possible to the federal judicial domain and then cabining their reach through legal argument within that domain. 

Containment should be joined with an effort at conversion. Don't just oppose judicial supremacy; give judicial supremacists a better alternative. In my view, that alternative is judicial departmentalism. 

“Judicial supremacy” is a name for the claim that the Constitution means for everybody what the Supreme Court says that it means in the course of resolving a case or controversy. By contrast, “judicial departmentalism” is the idea that the Constitution means within the judicial department what the Supreme Court says it means in resolving a case or controversy.

Judicial departmentalists may disagree about details, even important details like vertical stare decisis. But their program is not entirely negative. It affirms a truly judicial form of judicial supremacy. And apart from sweeping and erroneous dicta in a few extraordinary constitutional cases, judicial departmentalism fits within our legal structure right now. In many ways, the judicial departmentalist understanding already matches the self-conception of federal judges when they are thinking like judges in normal cases rather than when they are under attack and defensively invoke judicial supremacy. Judicial departmentalists have no problem with judicial supremacy when it is truly judicial. 

So, by all means, count me in the anti-judicial supremacy camp. But join me in the judicial departmentalist camp instead.

In keeping with the structure of the scholars' statement, I conclude with a short list of take-away assertions:

  1. Containment and conversion are the best way to transform "judicial supremacy" as it now exists into truly judicial supremacy. 

  2. Containment and conversion to judicial departmentalism are the best way to contribute to constitutional supremacy.

  3. Confrontation in the realms of theory and of law is needed. But in the realms of practice and politics, we should be content to contain and convert.

October 9, 2015 in Walsh, Kevin | Permalink

Monday, October 5, 2015

At least we had Glucksberg ...

Rick beat me to posting about California's new assisted-suicide law.

It's kind of sad when the solace one takes in reading of such an unfortunate development is that the LA Times at least chose not to use the political language of "aid-in-dying" law that the newspaper had previously used. (Headline: "Governor sends aid-in-dying bill to Gov. Brown")  

Another form of solace in the category of "at least there's that" comes from the fact that this unfortunate change at least came through the appropriate political branches.

The judicial sensibility that brought us Washington v. Glucksberg was sound. When there's no law on a matter, the lawful decision is to decline to pretend there is. This may mean that the Court is unable to save us from ourselves, and we are stuck with laws we'd rather not have. But a Court that won't save us from ourselves when it can't do so lawfully is to be preferred to a Court anointed to save us even if that requires making up the law.

With the ascendancy of the Obergefell identity, we may not much longer enjoy the sting of an honest loss.

October 5, 2015 in Walsh, Kevin | Permalink

Tuesday, September 29, 2015

A friendly reminder: Pope Francis and Justice Scalia believe in Satan

In the warm afterglow of Pope Francis's visit to the United States, Michael's posting of the prayer to St. Michael the Archangel reminded me of some reactions a while back to Justice Scalia's "I even believe in the devil" interview. Pope Francis's insistence on the reality of Satan has sometimes led to expressions of incredulity and scorn like those that greeted Justice Scalia's remarks. Not as many such comments, of course, because Pope Francis is way more popular than Justice Scalia. But enough to notice, I suppose.

Some ways of responding to these responses are better than others. One helpful piece ran on CNN.com earlier this year. In it, Fr. Thomas Rosica addressed the question: "Why is Pope Francis So Obsessed with the Devil?" MOJ readers may find it of interest.

Another take that may be of interest is the New Republic's April 2015 story by Elizabeth Bruenig: "Pope Francis's Populist War with the Devil." Bruenig writes that "perhaps the most promising aspect of Pope Francis’s wholehearted belief in the Prince of Lies is the way it unites all of humankind in a single struggle."

What does this have to do with Catholic legal theory? I'm not entirely sure. But this idea that awareness of a common enemy can unite an embattled group probably helps to explain some of Chief Justice John Marshall's success in holding the Justices together in unanimous opinions in some of his Court's controversial cases.

So there. Happy feast day.

September 29, 2015 in Walsh, Kevin | Permalink

Friday, September 25, 2015

The Living Constitution as an impediment to legislative abolition of the death penalty

Suppose one thinks that the way the Living Constitution works these days involves some judicial leading-from-behind emboldened by shifts in public opinion that have themselves been partially prompted by bolder, earlier attempts by other judges to shift public opinion. And further suppose that one supports the policy outcome pushed by the judicial norm entrepreneurs, but opposes their legal reasoning and the very idea of a Living Constitution. 

This is something of the frame of mind I bring to abolition of the death penalty.

I advocate legislative abolition of the death penalty at the state level. As a matter of political prudence, this seems more likely to occur if the death penalty at the federal level remains available. And while abolition at the federal level also would be desirable, a gradual transition appears more feasible and more likely to prove enduring.

Whether my assessment of the political landscape is correct (it often isn't, after all), legislative abolition of the death penalty is more likely to occur if public opinion supporting abolition grows. So I'd like to see that happen.

But we've learned that Justices of the Supreme Court also have been known to take shifts in public opinion as permission to implement their policy preferences through appeal to the Living Constitution. I don't like to see that happen. It is contrary to the bedrock idea of fixed, authoritative, superior law that underwrites judicial enforcement of the Constitution in the first instance.

So the shift in public opinion I'd like to see regarding the death penalty is not as simple as "death penalty, bad." It's more like "we (the people ... of Virginia, of Pennsylvania, of Indiana, and so on) should get rid of our death penalty."

The headline of a recent Bloomberg News article captures some of what underlies my uneasiness: "Death for the Death Penalty? Justice Scalia Predicts It's Coming."

As an aside, the headline is a little misleading. Justice Scalia said he "wouldn't be surprised" if his colleagues were to find the death penalty unconstitutional. That is not a prediction that Justice Scalia's colleagues will do so, just a statement that he would not be surprised if they did. And there may not be much that some of his colleagues would do with the Constitution that would surprise Justice Scalia, anyway. With respect to the parallel to same-sex marriage suggested in the article, there is an important difference of degree. Justice Scalia's language in Lawrence v. Texas and United States v. Windsor was much stronger, explaining that the Court was dismantling the justification for understanding marriage as requiring a man and a woman. Justice Scalia did not need to be a prophet to see where the Court's logic was leading. 

Put aside, though, problems with the headline. The possibility of an emboldened judiciary using the Living Constitution to find the death penalty itself cruel and unusual is a plausible one.

Anyone who would celebrate this, though, should beware that the Living Constitution can take as well as give. Consider one of the article's main sources:

The ACLU’s national legal director, Steven R. Shapiro, told reporters in Washington Thursday that he, too, sees momentum toward a Supreme Court ruling ending the death penalty. Pointing to the abolition of capital punishment in Connecticut this year, Shapiro likened the cause to the gay marriage movement, which won victories at the state level before the court legalized it nationwide in June. "We may see a repeat of the same-sex marriage playbook," Shapiro said. "We can now see in the future a moment when the death penalty will be declared unconstitutional."

Mr. Shapiro and his organization are the same people who were on the wrong side of the unanimous Supreme Court free speech decision in McCullen v. Coakley. If you want to see "evolution" on constitutional meaning, check out footnote 5 of the ACLU's brief in that case.

Now consider the evidence that Mr. Shapiro cites: "the abolition of capital punishment in Connecticut this year." The reference is to a Connecticut Supreme Court opinion from earlier this year. That opinion eliminated the death penalty judicially for people who remained subject to capital sentences after the Connecticut legislature abolished the death penalty prospectively in 2012. It was a judicial clean-up effort, further evidence of a leading-from-behind judiciary emboldened by shifts in public opinion. By placing prospective legislative abolition of the death penalty off the table, the opinion's reasoning makes it harder in other jurisdictions to undertake abolition legislatively; a powerful compromise for the transition is declared unconstitutional.

Another problem for anti-death-penalty, anti-Living-Constitution people like me is posed by Eighth Amendment doctrine that counts legislative abolition as evidence of "evolving standards of decency" used to underwrite judicial abolition.

Is there any way to abolish the death penalty in one's state without providing more grist for the evolving standards of decency mill? Nothing comes to mind, but I sure would like to know.

For now, I'll simply express regret for, and opposition to, the way in which current Eighth Amendment doctrine makes it more difficult and more costly to accomplish abolition appropriately under our law.

September 25, 2015 in Walsh, Kevin | Permalink