A Proxy War for Gay Rights?

Justice Stevens reminds us why we’ll miss him:

While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old, see post, at 4, 10, n. 3, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

Graham v. Florida, 5__ U.S. ___, ____ (May 17, 2010) (Stevens, J., concurring). The case concerns a simple question — whether a juvenile can, subject to the Eighth Amendment, be imprisoned for life without possibility of parole for a non-homicide crime — which the Court answered in the negative. Court-watchers should note that the Eighth Amendment is one of the rare creatures that all parties concede evolves with society, so the Court’s 6-3 endorsement of evolving norms needn’t be read as the larger, ringing endorsement of a “living Constitution” that we deserve. But Stevens’ concurrence, joined by Ginsburg & Sotomayor, can. These proxy wars are fairly regular in Court history and may, at least, allow us to put to bed the notion that Sotomayor was insufficiently liberal. If she’ll join Ginsburg and Stevens on these opinions, I’m happy. But what about Kagan?


  1. When they covered this on the news this morning (yes, even Danish public radio covers the SCOTUS sometimes), they mentioned that Florida has abolished the parole system altogether. Is that really true? Sounds like an awful policy if it is.

  2. 8th Amendment jurisprudence is crap, but that’s to be expected given that the 8th Amendment and the goals which caused it are likewise crap. Mercy is the worst of all sins.

    1. Your right, we should torture people for double parking, that will solve congestion problems in no time.

    2. I was needlessly inflammatory and contributed nothing to the discussion, so let me expound.

      The 8th Amendment serves a trivial beneficial purpose – banning things like Pi’s ludicrous hypothetical. However, with cases like Graham v. Florida, and Kennedy v. Louisiana, and Coker v. Georgia, and Furman v. Georgia, and Roper v. Simmons, and Atkins v. Virginia, have turned it into a weapon for a full-fledged assault on the very concepts of guilt and of punishment. At this point, the vast harm done by it far outweighs the little good it ever did and it needs to be repealed.

      No, we should not torture for parking violations. We absolutely should, however, be able to torture for rape just as we should be able to execute for white-collar crimes.

      1. So you are annoyed that the amendment stops you giving the death penalty to children and the mentally retarded? I can see the death penalty for rape (maybe in the case of a extremely violent or repeat offender), but seriously torture?

        I can’t see how any person would want the death penalty for a crime in which no person was actually harmed. I am actually glad this amendment exists as it keeps people and their sick revenge fantasies under control.

      2. What practical purpose would that even serve, other than destroying the soul of your society, metaphorically speaking?

        1. It would destroy the living rot within that society by destroying those who are undeserving to live. It would also ensure that justice were done by meting out appropriate levels of suffering to the guilty.

          And Pi, white collar crime does harm people. It harms a great many people, which is why it’s severe enough to merit execution. A little harm to thousands is as bad as or worse than a lot of harm to a handful.

        2. You’re always so delightfully atavistic, Steve. ^_^

          Have you ever thought about moving to the PRC for a while? I believe you would find that their approach to, er, jurisprudence and correctional theory fits very well with your own.

          (Just a hint, though: Don’t get accused of any crimes while you’re there. Seriously.)

          1. I had to look up “atavistic”‘s meaning. Always a treat when that happens.

            And while I’ve given your suggestion thought in the past, I’m stymied by having zero knowledge of any Chinese language, which I understand to be a prerequisite for being allowed to live there. So, I’m stuck with trying to get my own country to emulate their strong points, such as their post-conviction criminal justice system (their pre-conviction system is by all accounts I’ve heard as you alluded: pretty shoddy… though not as shoddy as India’s).

      3. oneiroi · ·

        I always sort of liked that we weren’t barbarians.

        Maybe that’s my civilized sense of liberal superiority.

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