Today in Supreme Court History: October 4, 1965

10/4/1965: Justice Abe Fortas takes the oath.

Justice Abe Fortas

Comments

[Dan Schiavetta]

Buntion v. Lumpkin,142 S.Ct. 3 (decided October 4, 2021): stay of execution denied; Breyer doesn't dissent but notes the "serious legal and practical problem with the death penalty as it is currently administered"; in 1890 the Court said waiting on death row for even four weeks was "one of the more horrible feelings to which a person can be subjected", and Buntion had been on death row for 30 years, which is in itself cruel and unusual punishment (Buntion, age 78 and infirm, wasn't executed for another six months due to illness; his murder of cop was revenge for death of his twin brother during a police shootout)

[Kleppe]

"his murder of cop was revenge for death of his twin brother during a police shootout"

Ok...?

[Dan Schiavetta]

Certainly seemed like it. He had told friends about vowing revenge. The minute a cop stopped his car, he shot him.

[Bob from Ohio]

"death row for 30 years, which is in itself cruel and unusual"

Man convicted of killing his parents begs for mercy because he is an orphan.

These delays are totally due to anti-death penalty activism.

[Michael P]

True, but some of that activism points out that innocent people are sometimes sentenced to death and even executed. Isn't that worth limiting, under an amplification of the whole "it's better for ten guilty men to walk free than one innocent man be single convicted" idea?

[Mr. Bumble]

It shouldn't take 10, 20 or 30 years to determine if somone was improperly convicted and if that conviction was the result of police or prosecutorial misconduct that misconduct should be addressed with more than a slap on the wrist.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

But it does, because the politicians and corrupt prosecutors and police have every incentive in the world to not investigate new evidence or hidden evidence.

[Bob from Ohio]

"even executed"

Who? Execution of innocents is just an opposition myth.

Every case goes to the state supreme court, then state post conviction remedies, then federal post conviction appeals, then "new evidence" cases, etc. etc. 25-30 years or more of taxpayer paid litigation.

No innocents are getting executed, This isn't 1900.

[Krychek_2]

Bob, do you have any reason to think that the percentage of innocent people on death row is less than the percentage of innocent people in the general prison population? Because people in prison get exonerated on innocence grounds all the time. https://innocenceproject.org/

And most of the time, actual innocence isn't an appealable issue. If you're not allowed to raise actual innocence, it doesn't matter how many trips you get to the higher courts.

I'm always amazed at conservatives, who in general think government is too incompetent to fix pot holes, who nevertheless somehow seem to think it acquires the wisdom of Solomon when it comes to deciding that someone should die.

And here's the real question: It's a given that sooner or later some innocent person will be executed, and statistically likely that it's already happened. So, how many innocents are you willing to have die in order to keep the death penalty? What would you consider the tipping point at which you would agree it's too many and the DP should be abolished?

[Bob from Ohio]

Death penalty cases get much more judicial attention than regular cases, much more adherence to the rules.

A few death cases get wrongly decided, the system catches the few mistakes.

No innocents get executed.

[wolfefan]

It's certainly hard to say that NO innocent people get executed, unless you're counting the theological concept of original sin as proof that there is no one truly innocent, including the unborn. Cameron Willingham appears to have been actually innocent, in that there was no arson. It's hard to argue that all of the folks convicted and executed on the basis of known false science, like bite mark analysis, were guilty. It's equally hard to argue about anyone convicted on the basis of testimony from hacks and charlatans like Dr. Stephen Hayne.

[Rev. Arthur L. Kirkland]

Republicans and conservatives figure, as a core belief and strident argument, that government is inept, corrupt, wasteful, counterproductive, and misguided -- until government wants to kill someone (ideally a Black or brown person), at which point the clingers contend that government is effective, efficient, righteous, and infallible.

Maybe it's the lack of education and character.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Bullshit. I don't remember the exact numbers or when it happened, but Illinois's governor commuted every death row inmate to life without parole because of all the prisoners who had gotten off death row one year, the majority had been exonerated because of malfeasance by prosecutors or police; something like 11-12, IIRC. If that many have been exonerated after that long and after all the opposition from the State, some of the executed prisoners must have been innocent too.

I don't doubt that most of the exonerated prisoners were enough of a scumbag anyway to make the false charges stick. But they were still framed, the real killers were still out and about, and justice was twice not served in each case.

[Rev. Arthur L. Kirkland]

" No innocents are getting executed, "

That statement reflects profound ignorance, stupidity, and lack of character.

[apedad]

B - O,

In this case, his initial death penalty WAS found to be unconstitutional.

[Bob from Ohio]

So? He was re-sentenced then in accordance with the Constitution.

[Rev. Arthur L. Kirkland]

" This isn’t 1900. "

No, but in jerkwater jurisdictions such as rural and exurban Ohio the clingers think it's the '70s and wish it were the '50s.

They're roughly equally split on 1950s or 1850s.

[David Nieporent]

No innocents are getting executed,

Cameron Todd Willingham says hello.

[SRG]

You are making the classic error of so many ignorant Americans, which is thinking that appeals are generally about the facts of the case. They are far more likely to be about the process - was the jury fairly selected, was the judge's summing up right on the law, was defence counsel competent in the evidence he presented or challenged, etc. If the processes were followed properly and the jury simply got it wrong, then it's extremely difficult to get a guilty verdict overturned.

It's not uncommon for right-wing governors to reject calls for pardons on the grounds that multiple courts have reviewed the evidence, etc. They're intentionally making the same mistake - because all those courts will have focused on process. Now one traditional purpose of the pardon power was to rectify mistakes that the legal system would necessarily make - but TTBOMK almost no governor looks at it like that. From the position of a governor, there's no percentage in pardoning a DR prisoner - he might after all be guilty, and that would cost him votes at the next election, or if he's innocent, well, it's not the governor's fault.

Larry Swearingen is a good example of the problem - he was an actually innocent man murdered in 2019 by the State of Texas.

[SRG]

Radley Balko just published an article on his substack.

https://radleybalko.substack.com/p/the-maddening-irrelevance-of-charlie

By the time a case got to federal post-conviction review, they argued, it had already been seen by multiple courts at multiple levels. That was true, but only in the sense that the case had crossed the desks of the judges who sat on those courts. The reality is that appellate courts typically only look for procedural or constitutional errors. They rarely second-guess juries, reassess the evidence, or otherwise look to overturn wrongful convictions.

[GKHoffman]

[Drbusybody]

It would have been better for liberals if Abe Fortas had not gotten on the Court. He was found to be corrupt and forced to resign letting Richard Nixon fill his seat. Meanwhile, Arthur Goldberg, who was spirited off the Court to allow Fortas to be appointed, lived until 1990.

[Krychek_2]

There's a long list of true statements that begin "It would have been better for liberals if . . ."

My own personal favorite is "if Joe Biden had been elected president in 1992 rather than in 2020."

[The Margrave of Azilia]

“letting Richard Nixon fill his seat”

With Harry Blackmun.

I’d say progressives didn’t do so badly with Blackmun in their corner. As to the country…

[Krychek_2]

At the time Blackmun was appointed, his views were mainstream Republican. It's just incredible how extremist the Republicans have become in the last fifty years.

[wolfefan]

True, Krychek. It's hard to remember back then, when abortion was seen as a Catholic-only issue. I think that's what the head of the National Association of Evangelicals said at the time.

[The Margrave of Azilia]

Based on your comment, I must presume that at the time of Blackmun’s appointment, Republicans were against the death penalty and for gay marriage, not to mention supportive of a broad right to abortion, supervised by federal courts.

[Krychek_2]

A lot of Republicans did oppose the death penalty, like Mark Hatfield, Dan Evans, Gerald Ford,Leverett Saltonstall and Edward Brooke, none of whom could win a Republican primary today.

Blackmun was long dead when gay marriage came along so what his views on it would have been is anyones guess.

And Ronald Reagan and Nelson Rockefeller, both Republicans, signed abortion rights laws as governors of California and New York respectively.

Like I said, it’s amazing how extremist the GOP has become.

[Krychek_2]

Ok it appears I may have spoken too soon about Gerald Ford; I just googled it and found that over the years he made conflicting statements about the death penalty. However, in the 1960s and 70s it was not hard to find anti-DP Republicans.

[The Margrave of Azilia]

"Blackmun was long dead when gay marriage came along so what his views on it would have been is anyones guess."

Didn't he join Baker v. Nelson?

If anyone in 1970 had accused a *Democrat* of believing that men could identify as women and become women, or that men could marry men, or women marry women, or that bakers should be compelled to bake gay cakes, that Democrat would have indignantly replied that (s)he was being slandered by an unscrupulous, lying right-wing smear tactic. And that Democrat would probably have been correct.

[Krychek_2]

We don't know if he joined Baker v. Nelson or not. Baker was an unsigned one-sentence order dismissing the case for lack of jurisdiction. There are multiple possibilities, all of which involve reading tea leaves: Maybe Blackmun opposed gay marriage. Maybe Blackmun supported gay marriage but didn't believe it was a constitutional right. Maybe Blackmun believed it was a constitutional right but knew there weren't 5 votes on the court for that position. Maybe he disagreed with the dismissal but for some reason decided not to write a dissent. The bottom line is we don't know and he's no longer around to ask.

And yes, you are right, the Democratic party has changed too. Policies aside, at this point I would argue there are far more sane people in the Democratic Party than the Republican Party; it's not that long ago that the idea of either party uniting behind someone like Donald Trump would have been unthinkable. At this point, Trumpism has basically become a cult. Sure, the Democrats have AOC and the leftist wing, but they don't run the party the way the extremists do the GOP.

[Krychek_2]

And whatever you may think of gay or trans issues, they flow from the Democratic Party's commitment to individual rights. We can discuss whether maybe that commitment goes too far at times, but overall, the Republicans are now the party of big government. They want to make reproductive choices for women, and tell people whom they can marry, and ban medical treatments they oppose, and see to it that only their ideology is taught in the schools. Who knew that some day the GOP would be the party of big government?

[The Margrave of Azilia]

The GOP has a long history of big-governmentalism, starting with the tariff.

Your point about the Republicans was that they have supposedly become more radical. I’m suggesting that the Democrats also became more radical, with the party as a whole (not just the “leftist wing”) taking positions which previous generations of Democrats would have indignantly (and accurately) denied believing in.

Indeed, the old Democrats (1970) would have had good reason to claim that only bad-faith actors would accuse them of supporting same-sex marriage and the rest.

And they would have denied vehemently that their individual rights traditions would lead to compulsory gay cakes.

In 1970, the two parties were beginning to lose some of their “uniparty” characteristics, but even today, on numerous issues, the two cartel parties continue to cooperate – promoting big spending, supporting corporate privilege, and of course steering the voters away from third parties and independent candidates, by making use of election disinformation and often vote suppression.

Even before the Herschel Walker thing made the news, I suggested that most Republican Congressmen actually support abortion – at least when it comes to getting abortions for their adulterous lovers. They would sell out prolifers in a (fetal) heartbeat if they weren’t worried about being primaried.

Regarding Baker v. Nelson, your "defense" of Blackmun makes him look even worse. If he believed in a right to gay marriage, or even if he thought that the issue required full briefing and argument, he ought to have said so. Dissents were all the rage back then, so why would have have omitted a dissent on this point?

[Krychek_2]

I think the Democrats have gone where their core principle of individual rights has taken them. In 1970, few people had thought seriously about gay marriage and it wasn't something that was on anyone's radar. However, once the connection to individual rights was made, people realized it was a logical extension, especially when the issue started to be debated and it became clear that opponents of gay marriage didn't really have any good arguments. (I do not consider indignation and tradition as being good arguments.)

As for Blackmun, I haven't defended him; I've said he never stated (as far as I know) why he voted as he did in Baker and there are multiple possibilities. Since we don't know why he voted as he did, I'm not going to assume the worst about him. His not writing a dissent may simply have been a case of picking one's battles, but again, we don't know and I'm not going to guess.

[The Margrave of Azilia]

"I think the Democrats have gone where their core principle of individual rights has taken them."

Compulsory cakes?

[Rev. Arthur L. Kirkland]

That mention of Edmund Brooke reminds of how much and for how long I have despised bigots.

During a college summer I worked with some fraternity brothers as a greenskeeper (by day, and at a newspaper during the evening). One day there was a bit of a commotion at the first tee, as a member was about to start a round with three guests.

One of the guests was a U.S. Senator, Brooke. The other two were pitchers, one a Cy Young winner on his way to the Hall of Fame,

While the four were at the driving range other members complained because the senator preparing to golf was Black. By the time the group reached the first tee discussions among the club’s leaders had caused the club manager to head to that tee to inform the sponsoring member that the senator could not golf on that course.

After some argument the foursome prepared to leave. Another member recognized the pitching ace and invited him to stay for a round. The pitcher responded that not only would he be leaving with the senator but also that the manager and that other member should head up to the hill to the clubhouse promptly — otherwise, ‘these clubs are rentals so l’d have no problem shoving them right up your ass.’

Most of the club’s members were Republicans. Plenty were bigots. Forty years later, better Americans have arranged enough progress that that club has a few Black, Jewish, and Italian members, but in general both statements — mostly Republicans, plenty of bigots — are still true.

The progress will continue, as will my disdain for our vestigial clingers.