Today in Supreme Court History: July 2, 1908

7/2/1908: Justice Thurgood Marshall's birthday.

Justice Thurgood Marshall

Comments

[Dan Schiavetta]

Gregg v. Georgia, 428 U.S. 153 (decided July 2, 1976): death penalty is ok if rendered by jury in separate sentencing phase with established aggravating and mitigating factors and appellate review provided as to disproportionality (in a sense overruling Furman v. Georgia, 1972)

Roberts v. Louisiana, 428 U.S. 325 (decided July 2, 1976): death penalty is unconstitutional if it’s mandatory for certain crimes (this decision cited Gregg)

Proffitt v. Florida, 428 U.S. 242 (decided July 2, 1976): Florida death penalty is now o.k. because it has been changed along the lines of the Georgia law in Gregg

Fullilove v. Klutznick, 448 U.S. 448 (decided July 2, 1980): upholds against Equal Protection attack statute requiring 10% of funds for public works to go to minority contractors (fractured opinions, which allowed a later Court to more or less overrule this case and require strict scrutiny for such set-asides, Adarand Constructors v. Pena, 1995)

New York v. Ferber, 458 U.S. 747 (decided July 2, 1982): First Amendment not violated by bans on children engaged in sexual activity (here, boys masturbating) even if not “obscene” (i.e., even if it has educational value and does not involve putting penis into some orifice)

Hobby v. United States, 468 U.S. 339 (decided July 2, 1984): even if there was discrimination in the selection of grand jury foremen (for 7 years, none had been black) that does not violate due process so as to dismiss indictment

Randall v. Loftsgaarden, 478 U.S. 647 (decided July 2, 1986): even when purchased as a tax shelter, the rescission benefits awarded to an investor after fraud is found do not act as setoff to the tax benefits received from the shelter

Berkemer v. McCarty, 468 U.S. 420 (decided July 2, 1984): Miranda warning must be given when arrested for misdemeanors (drunk driving -- which the Court calls a “minor traffic offense”??) and well as felonies

Columbus Board of Education v. Penick, 443 U.S. 449 (decided July 2, 1979): Columbus, O. school district in violation of Brown desegregation order because its practice of assigning only black teachers to black schools and pattern of new school placements had effect of perpetuating segregation

[JoeFromtheBronx]

I personally am against the death penalty. I also think that it is constitutionally problematic in action.

When Gregg was handed down, I would be somewhat hard pressed to go all in with Brennan and Marshall. I think the 8A particularly is affected by current realities. "Cruel and unusual" has a certain normative feel even more than some other things.

The Fourth Amendment ("reasonable") also has some of this character. Orin Kerr has written about how over time there is constant balancing, a push and pull, with that amendment.

Justice Blackmun joined the majority even though he personally opposed the death penalty. He stopped tinkering with death after needing to experience weighing the rules for almost twenty years. And it was proper to let the process run out.

Ferber shows the limits of free speech. And it is not simply because minors are involved. Certain sexually themed works of a teen Brooke Shields should not be banned. But there is a line when actual minors are involved. Virtual porn or written materials are not the same thing. As with this, as with other rights.

[Dan Schiavetta]

The truth is, to Americans, killing someone as punishment doesn’t seem cruel. It does seem cruel to the rest of the world, with exceptions that are not flattering to us.

[Brett Bellmore]

Your average American would reply that, if we wanted to live in the rest of the world, we'd emigrate.

Anyway, the lack of a death penalty in Europe should not be taken as reflective of public opinion there. It's reflective of a deficit of democracy:

Capital punishment in Europe, polling

"Despite the fact that in Europe nearly all nations don't have the capital punishment, polling has found many nations in Europe have majority support for it and its return.

In 2015 a Poll found that 70% of Estonians are in favor of death penalty, this is an increase of support from then 62% in a 2010 poll.[61]

In 2020, a Ipsos/Sopra Steria survey showed that 55% of the French people support re-introduction of the death penalty. This was an increase.[62]

In April 2021 a poll found that 54% of Britons said they would support reinstating the death penalty for those convicted of terrorism in the United Kingdom. About a quarter (23%) of respondents said they would be opposed."

[Frank Drackman]

Of course you don’t consider the million-plus unborn executed every year to have any rights, so there’s that.
Some of the oldest and most advanced Civilizations still routinely carry out the Death Penalty, including Chy-Na! Jap-Ann, Roosha, Ear-Ron, and most of the A-rab World the Lefty side seems to be so in love with.
Most of the countries that don’t are the ones who don’t really need it, Sweden, Norway, heck even that Anders Breyvik didn’t get an “Official” Life Sentence, much less a Death one.

Frank

[ducksalad]

The Fourth Amendment (“reasonable”) also has some of this character. Orin Kerr has written about how over time there is constant balancing, a push and pull, with that amendment.

I’d say it’s more constant erosion than balancing. Any pushback from the SC is minor trimming of massive exceptions that they shouldn’t have created in the first place.

I’d also say that Orin Kerr is more a neutral observer of the erosion than an opponent. Which of course is his right…

[Bob from Ohio]

Today in history:

"Resolved, That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved."

Hurrah!

[JoeFromtheBronx]

Still to England I say
Good night, forever, good night!
For I have crossed the Rubicon
Let the bridge be burned behind me
Come what may, come what may

Commitment!

[Jerry B.]

Insurrectionists.

Many were slave owners.

ETA: /s
Some folks here can't tell.

[Frank Drackman]

Thouroughly-Bad Marshall, if you can believe it probably even more demented during his final years on the Court than Comatose Joe today. Remember watching his retirement announcement, deaf as a post, to every question he answered “Whuttttttttt!!!!!!!” while some toady assistant whispered the question in his ear. Explains some of his opinions.
and Trivia Time, who was the only Senator to vote against both Thoroughly Bad and Clarence "Frogman" Thomas?
Frank