Wednesday, June 28, 2006

Kansas v. Marsh

Slate is running another dialogue between Dahlia Lithwick and Walter Dellinger regarding the Supreme Court.  They've been discussing Kansas v. Marsh, in which the Supreme Court found that it is not unconstitutional to execute someone if the mitigators equal the aggravators. 
I've had the pleasure of reading this opinion (please refer to previous post) and reading it along with the Breakfast Table discussion on Slate.  It's rather interesting.  Each concurring / dissenting opinion sets forth a different approach by which to examine this question.
One thing that struck me was a footnote in the dissenting opinion of Justice Stevens, in which he mentions that perhaps the Supreme Court should have taken into account WHO was appealing when granting cert.  It was the State of Kansas, not the defendant, who appealed the ruling of the Kansas Supreme Court (striking down the death penalty statute as unconstitutional).  If the 8th and 14th Amendments are designed to protect individuals, is that "interest entirely absent when the State is the petitioner", as Stevens claims?  Interesting way to look at it.  I don't think that avoids the fact that the U.S. Supreme Court, not the Kansas Supreme Court, is the final arbiter of federal Constitutional claims.  Otherwise, states could start claiming that the 4th Amendment requires that all warrants must be executed by clowns...  but aside from clown hypos, I find something compelling about Stevens's argument.  Emotionally or intellectually or legally compelling?  Not sure which.  But compelling nonetheless.

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