Today in Supreme Court History: July 14, 1913

7/14/1913: President Gerald R. Ford's birthday. He would appoint Justice John Paul Stevens to the Supreme Court.

President Gerald Ford

Comments

[Dan Schiavetta]

Barr v. Lee, 140 S.Ct. 2590 (decided July 14, 2020): stay of execution (actually denial of preliminary injunction) denied to death row inmates because their claim that execution by pentobarbital sodium injection was "cruel and unusual" was unlikely to command four votes for certiorari (the per curiam opinion points out the surprising [at least to me] fact that the Court has never found a method of execution to be cruel and unusual); Ginsburg and Breyer dissented on the basis that the death penalty was unconstitutional, Sotomayor because this issue should not be disposed of so hastily on an application for a stay. (the lead petitioner, Daniel Lewis Lee, was executed the next day, the first federal crime execution in 17 years)

[Michael P]

When, and how, did Ginsburg and Breyer hypothesize the death penalty became unconstitutional?

[Dan Schiavetta]

Not sure but it wasn’t the absolutist position of Brennan and Marshall, that execution is per se cruel and unusual (“evolving standards of decency”). Rather they believed that the way the system works, due process cannot be guaranteed.

[Frank Drackman]

They were for the Death Penalty, but only for the unborn.

[DaivdBehar]

The death penalty is in the constitution. How can it be unconstitutional?

[DaivdBehar]

Ford, Yale indoctrinated, big government, Swamp creature. An unmitigated catastrophe, an idiot.

[Cal Cetín]

"Daniel Lewis Lee" - let's see how Wikipedia describes his crime:

"In January 1996, Lee and [Chevie] Kehoe left the state of Washington and traveled to Arkansas. On January 11, 1996, they arrived at the home of William Frederick Mueller, a gun dealer who lived near Tilly, Arkansas who possessed a large collection of weapons, ammunition, and cash. Kehoe and his father had robbed Mueller in February 1995, and Kehoe expected to find valuable property at the house. Dressed in police raid clothing, Lee and Kehoe tried to enter Mueller's home, but the family was not in. When they returned, Lee and Kehoe overpowered and incapacitated Mueller and his wife, Nancy Ann Mueller (née Branch). They then questioned Nancy Mueller's 8-year-old daughter, Sarah Elizabeth Powell, about where they could find the cash, guns, and ammunition, forcing her to talk by shocking her with an electric cattle prod. After finding $50,000 in cash and gold (equivalent to $86,389 in 2021), and $30,000 worth of firearms and firearm parts, they shot each of the three victims with a stun gun. They then placed plastic bags over their heads and sealed the bags with duct tape, suffocating them to death. They took the victims in Kehoe's vehicle to the Illinois Bayou river, 45 miles (72 km) away, where they taped rocks to them and threw each family member into the swamp. Lee received $3,000 or $4,000 and a pistol for his part in the crime. The bodies were discovered in Lake Dardanelle near Russellville, Arkansas in late June 1996."

[Dan Schiavetta]

Yes.

Many of our Constitutional rights were established due to arguments pressed by disgusting, violent people who were guilty as sin. They have to be convicted in order for an appeal to happen and any Constitutional problems to be examined by the Supreme Court or some other appellate court.

[Cal Cetín]

True enough - but this doesn't sound like a case where there's suppressed evidence of innocence or what have you. I'd say give people like him a "menu" of execution methods, one of which, the odds are, would be constitutional. And if he chooses one of the "unconstitutional" methods, well, he's waived his right to challenge it.

[Martinned]

Sure, but when was president Ford's mother's birthday! After all, she's also a key part of the history of the Supreme Court, as the person who gave birth to the person who put Justice Stevens on the court.

[Da5id]

Yeah this one is a reach.

[DaivdBehar]

Nitpicking is lying and in bad faith. The remedy is an ass kicking.

[Rev. Arthur L. Kirkland]

This is legal scholarship, Blackman-, Barnett-, and Volokh Conspiracy-style.

Or, South Texas-, Georgetown-, and UCLA-style.

A few other schools merit mention; their deans, presidents, chancellors, trustees, and other leaders know or should know by now who they are, how they made the list, and how they could avoid recurring problems along this line.

[Bored Lawyer]

Yes, a blog is a place to judge someone's legal scholarship.

Now what can we conclude about you through your blog posts.

[Rev. Arthur L. Kirkland]

That I am part of the liberal-libertarian mainstream, victor in the American culture war at the expense of stale, ugly, right-wing thinking?

That I would be a first-rate beer and music correspondent?

That I dislike bigots and decline to enable them to hide behind euphemisms such as "traditional values," "conservative values," and "colorblind"?

[Frank Drackman]

that your real name is Jerry Sandusky

[Rev. Arthur L. Kirkland]

Does the Volokh Conspiracy pay you for each accusation that I am Jerry Sandusky?

[Krayt]

He once described his process, and yes, some days were high and dry from anything remotely important. This tertiary linked birthday friend of a friend of a tangential to maybe something important is as about as strained as it gets.

Or, if you love the Rube Goldbergian links to the commerce clause, this Ford'a birthday chain is obvious and significant and deeply profound.

[Frank Drackman]

Chevy Chase would have been a better POTUS

[Cal Cetín]

Also, Ford tried unsuccessfully to impeach William O. Douglas (Stevens' predecessor).

https://www.lawweekly.org/col/2019/4/11/impeachment-stories-congressman-gerald-fords-attempt-to-remove-justice-william-o-douglas

[Dan Schiavetta]

That is why Douglas hung on after his stroke, when he clearly could no longer do the job. He didn't want Ford to appoint his successor.

[Cal Cetín]

Incidentally, there seems to be a book out about the unsuccessful impeachment, from the publicity its viewpoint might be up your alley:

"... politics of division and distraction...at President Richard Nixon’s behest...Gerald Ford brazenly called for the impeachment of Douglas...anger...changing social, economic, and moral norms...the Republicans’ “southern strategy,”...vain hope of deflecting attention from a surprisingly unpopular invasion of Cambodia..."

https://kansaspress.ku.edu/978-0-7006-2848-3.html

[Dan Schiavetta]

I remember that. A cartoon in the (right-wing) Daily News had Douglas, in his robes, with his book open and a whirlwind behind him. The caption was "preaching rebellion". This was an era when "dissent" was a dirty word. At least, where I was.

At the time Ford said, ""High crimes and misdemeanors' is whatever the House of Representatives says it is." The whole affair was out of character for him and he later regretted it.

[Michael D]

I still remember during the ‘76 election, two things. I was about 8 or 9.
1) asking my father about Reagan instead of Ford and him telling me Reagan was too conservative to be elected president, and
2) Amy Carter coming to my grammar school to talk about her father. She and I are almost the same age and she was friends with a girl in my class.

[Alpheus W Drinkwater]

That's really weird, because my father told me the exact same thing. I was 13 in 1976. And once when I was on a school trip to the National Zoo, a bunch of secret service agents came into the building I was in, followed by Rosalynn and Amy Carter. My friends and I had a brief conversation with them.

[Dan Schiavetta]

The Reagans and the Carters came from different universes, that's for sure.

I was very impressed with Amy Carter, just as I've been impressed with Chelsea Clinton and the Obama girls. Considering what they've been through they ended up ok. Good kids. Yes, I don't mind including the two Bush daughters also. On the other hand with Reagans and Trumps we had major dysfunctions.