PA Doesn't Matter

Even as I sit here wasting time watching the votes get tallied, and it appears Senator Clinton's moribund campaign will limp along a bit further, I know in the end Jon Chait is right:

In general, I think the coverage of Pennsylvania is wildly overblown. What happens tonight is not going to effect the outcome of the nomination. Obama will be the nominee, and the only thing that could stop him would be a massive scandal. If Wright and Bittergate couldn't dent his standing, a loss in Pennsylvania won't, either. The only thing the Pennsylvania results could possibly change is the timing of Clinton's departure, and even that won't happen unless Obama somehow pulls off a shocker upset win.

The conventions and structural biases of journalism dictate that importance must be read into whatever outcome occurs, but the fact is, it really doesn't matter.

Part of why I've been relatively quiet the past few weeks, after jumping back into blogging, is that I got real excited about the primary election just before it started to get ugly, at which point I became a more solid Obama supporter and yet wanted nothing more to do with politics for the rest of my life. In the months since, both feelings have held pretty strong, though I think the latter will fade.

UPDATE: As Josh Marshall put it, status quo ante.

Baze Effects

Orin Kerr over at the Conspiracy thinks the plurality opinion's new standard is unlikely to increase litigation, despite the fears of Justice Thomas (and the hopes of death penalty critics):

The requirement that the defendant prove a specific alternative should effectively keep Baze from generating endless litigation. It will force defendants to argue a very specific alternative: Don't kill me like that, kill me like this. If a state wants to litigate the issue and loses, the court will not enjoin the execution but rather will just order the state to execute the person in the different but also "feasible" and "readily implemented" way the defendant has proposed. And the state always has the option of eliminating the issue as a delay tactic: It can always cut off the litigation by just agreeing to the defendant's alternative method of execution.

I think this is a quite plausible prediction as to the future of Eighth Amendment death penalty litigation. The current precedent now says two things without question: 1) the death penalty is constitutional; and 2) so is lethal injection, until a death row inmate can prove there is a substantially more humane method of execution (at which point, he will be executed via that method).

Now of course this standard does not answer all of Justice Thomas' objections, but it does a pretty good job of halting "cruel and unusual" challenges to the death penalty for the foreseeable future without relying upon 18th century views regarding executions.

Baze v. Reeds, Part 2

More than anything else, I think this case (and Eighth Amendment jurisprudence generally) demonstrates how varied the approaches are amongst the nine justices on the bench today. While we have a more conservative bench than we had ten, twenty, or thirty years ago, the conservative justices are not taking the same paths up the mountain.

That is demonstrably clear in this case. The plurality opinion, written by the Chief Justice and joined by Justices Kennedy and Alito, upholds Kentucky's use of lethal injection, but holds (as Justice Alito summarizes in his concurrence) that "a State's refusal to change its method [of execution] can be viewed as 'cruel and unusual' under the Eighth Amendment" if, "without a legitimate penological justification," the State rejects an alternative method that is "feasible" and "readily" available and that would "significantly reduce a substantial risk of severe pain."

Justice Thomas, in an opinion joined by Justice Scalia, criticizes both the plurality and the dissent from an originalist perspective:

I write separately because I cannot subscribe to the plurality opinion's formulation of the governing standard... This standard--along with petitioners' proposed "unnecessary risk" standard and the dissent's "untoward risk" standard, post, at 2--finds no support in the original understanding of the Cruel and Unusual Punishments Clause or in our previous method-of-execution cases; casts constitutional doubt on long-accepted methods of execution; and injects the Court into matters it has no institutional capacity to resolve.

While Justice Thomas' brushing aside of the petitioners' and dissent's standards is expected, I'm sure it will come as a surprise to those who supported the nominations of Chief Justice Roberts and Justice Alito to realize they were supporting nominees who would "inject[] the Court into matters it has no institutional capacity to resolve." Yet apparently that is just what has happened.

Baze v. Rees, Part 1

I'll have more to say once I've read the opinions in Baze v. Rees, but this is a heck of a splinter on a death penalty case:

ROBERTS, C. J., announced the judgment of the Court and delivered an opinion, in which KENNEDY and ALITO, JJ., joined. ALITO, J., filed a concurring opinion. STEVENS, J., filed an opinion concurring in the judgment. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. THOMAS, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined. BREYER, J., filed an opinion concurring in the judgment. GINSBURG, J., filed a dissenting opinion, in which SOUTER, J., joined.

Something is awry with the Court's Eighth Amendment jurisprudence, and the fact that we have seven opinions from nine justices is a good indication of it.