In a widely splintered opinion that ultimately reduces to a 7-2 decision, the Supreme Court held this morning that states may lawfully use lethal injection as a means of effecting capital punishment.  The Court rejected claims by two Kentucky death row inmates that the method violated the Eighth Amendment ban on cruel and unusual punishment by inflicting needless pain and suffering, mostly in the risk that the designated procedures would not be properly followed in all cases.

As to why it's constitutional, that's a bit complicated.  According Chief Justice Roberts, joined by Justices Kennedy and Alito:

Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of "objectively intolerable risk of harm" that qualifies as cruel and unusual. ...

Given what our cases have said about the nature of the risk of harm that is actionable under the Eighth Amendment, a condemned prisoner cannot successfully challenge a State’s method of execution merely by showing a slightly or marginally safer alternative.

Permitting an Eighth Amendment violation to be established on such a showing would threaten to transform courts into boards of inquiry charged with determining "best practices" for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology. Such an approach finds no support in our cases, would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing their execution procedures -- a role that by all accounts the States have fulfilled with an earnest desire to provide for a progressively more humane manner of death

So, can a state be forced to employ a more humane method?  Maybe, they write:

[T]he proffered alternatives must effectively address a "substantial risk of serious harm." To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State’s refusal to change its method can be viewed as "cruel and unusual" under the Eighth Amendment.

Justice Stevens writes a concurrence that's unusual, to say the least.  After focusing on the use of pancuronium bromide as part of the three-drug cocktail as being particularly cruel, he essentially says that the death penalty should be deemed unconstitutional because no expressed rationale really justifies it, but that under current precedent it clearly is, and he feels obliged to obey it:

The thoughtful opinions written by THE CHIEF JUSTICE and by JUSTICE GINSBURG have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty.

... I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents "the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment."

The conclusion that I have reached with regard to the constitutionality of the death penalty itself makes my decision in this case particularly difficult. It does not, however, justify a refusal to respect precedents that remain a part of our law. This Court has held that the death penalty is constitutional, and has established a framework for evaluating the constitutionality of particular methods of execution. Under those precedents, whether as interpreted by THE CHIEF JUSTICE or JUSTICE GINSBURG, I am persuaded that the evidence adduced by petitioners fails to prove that Kentucky’s lethal injection protocol violates the Eighth Amendment.

To which Justice Scalia pitches something of a fit, because how dare Justice Stevens be a judge and employ his own judgment!

It is simply not our place to choose one set of responsible empirical studies over another in interpreting the Constitution. Nor is it our place to demand that state legislatures support their criminal sanctions with foolproof empirical studies, rather than commonsense predictions about human behavior. "The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts." Gregg, supra, at 186 (joint opinion of Stewart, Powell, and STEVENS, JJ.). Were JUSTICE STEVENS’ current view the constitutional test, even his own preferred criminal sanction -- life imprisonment without the possibility of parole -- may fail constitutional scrutiny, because it is entirely unclear that enough empirical evidence supports that sanction as compared to alternatives such as life with the possibility of parole.

Justice Thomas, along with Scalia, would give legislatures even more latitude to allow for a painful execution:

As I understand it, that [plurality] opinion would hold that a method of execution violates the Eighth Amendment if it poses a substantial risk of severe pain that could be significantly reduced by adopting readily available alternative procedures. ... in my view, a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain

It is not a little ironic -— and telling -- that lethal injection, hailed just a few years ago as the humane alternative in light of which every other method of execution was deemed an unconstitutional relic of the past, is the subject of today’s challenge. It appears the Constitution is "evolving" even faster than I suspected.

So, in his view, gibbeting is out, as are "embowelling alive, beheading, and quartering," but not lethal injection.

Justices Ginsburg and Souter dissent:

It is undisputed that the second and third drugs used in Kentucky’s three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. [] Potassium chloride causes burning and intense pain as it circulates throughout the body. [] Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be "constitutionally unacceptable."  The constitutionality of Kentucky’s protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentucky’s system is constitutional, the plurality states, because "petitioners have not shown that the risk of an inadequate dose of the first drug is substantial."  I would not dispose of the case so swiftly given the character of the risk at stake. Kentucky’s protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs. I would vacate and remand with instructions to consider whether Kentucky’s omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.

...if readily available measures can materially increase the likelihood that the protocol will cause no pain, a State fails to adhere to contemporary standards of decency if it declines to employ those measures.

The remainder of the dissent focuses on simple procedures employed in other states to ensure that the first drug was properly administered, steps which the Commonwealth of Kentucky declined to require.

[As for Justice Breyer, he agrees with the test that Ginsburg sets up, but believes the evidence presented was not sufficient to prove some other method would be significantly more humane.]

So the Court's not getting rid of the death penalty, or of this particular method.  Instead, as that three-Justice plurality writes, it's up to us if we want to eliminate the death penalty, or make its infliction less barbaric:

Reasonable people of good faith disagree on the morality and efficacy of capital punishment, and for many who oppose it, no method of execution would ever be acceptable.... This Court has ruled that capital punishment is not prohibited under our Constitution, and that the States may enact laws specifying that sanction. ...

Throughout our history, whenever a method of execution has been challenged in this Court as cruel and unusual, the Court has rejected the challenge. Our society has nonetheless steadily moved to more humane methods of carrying out capital punishment. The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection. [] The broad framework of the Eighth Amendment has accommodated this progress toward more humane methods of execution, and our approval of a particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment. There is no reason to suppose that today’s decision will be any different.

Supreme Court Shields Medical-Device Makers

On Wednesday, by an 8-1 margin, the U.S. Supreme Court ruled to protect "the makers of medical devices that have passed the most rigorous federal review standards from lawsuits by consumers who allege that the devices caused them harm."

The case was brought by the wife of a man who was seriously injured when a balloon catheter burst during an angioplasty in 1996. The man died three years ago. The wife alleged that the device’s design was faulty and its labeling deficient.

Okay, so the reason this case caught my eye was that four months ago I had an implantable cardioverter-defibrillator (ICD) installed in my chest to keep my heart from beating too fast or too slow.  

The United States Supreme Court has taken another giant step toward our nation as a police state.  In Ali v. Federal Bureau of Prisons, No. 06-9130, the Court ruled five to four that "federal law enforcement officers are immune from lawsuits for mishandling, losing or even stealing personal property that comes under their control in the course of their official duties."
http://www.nytimes.com/...

The case was brought by a federal prison inmate, but the ruling was not limited to the prison context. It was an interpretation of the Federal Tort Claims Act, which applies to federal employees’ liability for damages and generally waives immunity from being sued.

In response to the tragic church shootings in Colorado, Family Research Council head Tony Perkins naturally pointed the finger of blame at the "secular media."  The senseless massacre of several deeply religious people by one of their own reflected, he claimed, "hostility that is being fomented in our culture from some in the secular media toward Christians."  Of course, Perkins has it almost exactly backwards.  Whether concerning abortion, gay Americans, immigration or judicial appointments, the line connecting the rhetoric of the Republican Party and the mainstream conservative movement to right-wing terror is a very short one.

Seriously.  It's just, like, so obvious, isn't it?

Give me... a break.

Are we even serious?

No.

Alright then.

More after the jump.

Sorry I couldn't blog about this yesterday, but I already had a diary up about the Supreme Court's tragic undoing of Brown v. Board of Education, which I did not want to dilute with an almost-as-stunning and noteworthy Supreme Court move (a good one this time).  In February, the D.C. Court of Appeals upheld the hideous Military Commissions Act provision that stripped habeas corpus rights from Gitmo detainees and laid the path for military commissions.  Yesterday the Supreme Court reversed itself and decided it will hear the case after all.  Apparently two justices (in addition to the three we already know about) got ticked off enough at this Administration's antics to change their minds--and foreshadow an eventual majority on this important issue.

Supreme Court terms begin in October and end in June. Six of the nine justices are 67 years of age or older - older than many ordinary Americans will be when they retire.

Recent decisions assaulting women’s and employee freedoms have put a new focus on the Court. Given the likelihood that we will once again see at least one, if not two or more, vacancies on the Court during the next president’s term, the Supreme Court is poised to be a very crucial issue in 2008, one that I’d rank as important as Iraq, terrorism, and global warming. Perhaps it is the most important issue in the 2008 election, because it involves the heart of what our nation is all about: our freedoms.

In a Washington court room today, Americans learned that the growing conservative campaign of judicial intimidation reached the Scooter Libby case.  Judge Reggie Walton, recently appointed by Chief Justice John Roberts to the FISA Court and who last week sentenced former Cheney aide Libby to 30 months in prison, announced that he had received threatening phone calls and letters.  Apparently, threatening judges is now business as usual for the American conservative movement.

Linda Greenhouse has an excellent article posted just now on Ruth Bader Ginsburg and the Supreme Court. It's called Oral Dissents Give Justice a New Voice.

Professor Liu said that when he read the dissent on Tuesday, it occurred to him that in recounting the workplace travails of the plaintiff, Lilly M. Ledbetter, Justice Ginsburg was also telling a version of her own story. "Here she is, the one woman of a nine-member body, describing the get-along imperative and the desire not to make waves felt by the one woman among 16 men," Professor Liu said. "It’s as if after 15 years on the court, she’s finally voicing some complaints of her own."

A fascinating story in the Times about Ruth Bader Ginsburg and her new-found voice dissenting with her colleagues on the US Supreme Court.

Some might say her dissents are an expression of sour grapes over being in the minority more often than not. But there may be strategic judgment, as well as frustration, behind Justice Ginsburg’s new style. She may have concluded that quiet collegiality has proved futile and that her new colleagues, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., are not open to persuasion on the issues that matter most to her.

Quiet collegiality is a waste of breath when you're dealing with fascist neocons and Theocrats.  I applaud Justice Ginsburg's willingness to throw restraint to the wind.

Fuck 'em.

This is a diary about pole vaulting, a stoning, and women.

The Washington Post had a story on teenage pole vaulter Allison Stokke.

I want to highlight something lower down in the article first:

A former gymnast, Stokke had tried pole vaulting as a lark as a freshman in high school. Two months later, she set a school record. She won the 2004 state championship three months after that. Stokke had augmented her natural, pole-vaulting disposition -- speed, upper-body strength and courage -- by lifting weights three times each week. College programs including Harvard, Stanford and UCLA also recruited her.

During her meet at Cerritos College, Stokke cleared 11 feet, then 12 feet, then 13 feet and qualified for the state meet. By the time she stared ahead at a bar set 13 feet 6 inches, all other nine pole vaulters had maxed out. Stokke warmed up by herself, the only athlete left.

Gene Zimmerman is teaching legal seminars and I am taking it in Ava MO. I started today at 8 am and he talked until 7 pm, unhurried, funny,brilliant and so revolutionary that I think he makes many kossacks look conservative. Just wait until I get to some of the meat. This is what we have been waiting for but didn't know it. We have lost our rights because we don't know we have them and do not have the knowledge to protect ourselves. Well, that knowledge started pouring out today and went on for eleven hours. Two short potty breaks and lunch intervened. I have not sat in a room of people so focussed for years and years, without all that silly questioning and second guessing that goes on in classrooms the world over.

This was an overview inundating us with his philosophy of active resistance to what they are doing to us in the courts. Continue for a sampling that may save you, a family or friend, your property etc if you heed it.

My local newsweekly, the Stranger, stumbled across this interesting tidbit from the ABC News legal blog:

http://blogs.abcnews.com/...

In it she notes that it appeared that Justice Ruth Bader Ginsburg might be ill....more after the jump.....

The victory last Tuesday was an exceptional expression of the American peoples distaste for the farce in Iraq and the Republican attempts to cover it up. Make no mistake about it though; had the Iraq war gone well, deposing Saddam Hussein and allowing American troops to leave with minimal casualties, the average American could not have cared less that the war was initiated on a series of lies and was immoral and illogical. In my opinion, 70% of Americans have never heard of Habeas Corpus and less than half of those who have heard of it know what it means.

The coordinated campaign to intimidate the judiciary and consolidate executive monarchical power continues. Bills have been introduced in both Senate and House to create a lapdog "watchdog," who be appointed by John Roberts (lifetime appointment for John Roberts; he's a committed rightwinger, in case you didn't know) and would snoop amongst the affairs of federal judges and report any suspected "malfeasances," (as in the way the House Ethics committee works, you can bet) to the Chief Justice and to the Justice Department (that's a branch of the executive branch, in case you weren't aware, and that is headed by King George W. Bush GOP-uberall-ist Karl Rove and his band of amoral dirty tricksters.

Justice Ruth Bader Ginsburg has correctly labeled the plan a "Soviet"-style proposal.

MORE BELOW

According to an Associated Press story, Supreme Court Justice Ruth Bader Ginsburg revealed in a speech in South Africa last month that she and then-fellow justice Sandra Day O'Connor were recipients of death threats from the "irrational fringe" of society.

I searched appropriate tags and did not find another diary on this speech.  The story is dated March 15.  If another diary on this has been written, I'll be glad to delete.

Justice Ruth Bader Ginsburg (diaried earlier today by caribmon) recently gave a speech about threats on her life that, she feels, grew from statements made by GOP leaders who were unhappy with judicial decisions.

Perhaps you remember when Senator John Cornyn (R-TX) said this about judicial decisions he did not agree with:

It causes a lot of people, including me, great distress to see judges . . . make raw political or ideological decisions . . .I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country. . . . And I wonder whether there may be some connection between the perception . . . where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in violence.

It turns out that Supreme Court Justice Ruth Bader Ginsburg presaged the recent comments by former Justice Sandra Day O'Connor about the growing threat of right-wing violence against the judiciary – and the concominant threat to American democracy. (What's left of it.) Both women emphasize the point that this "fringe" threat is being fed and exacerbated by the bellicose and undemocratic rhetoric of so-called mainstream Republicans, like felonious Tom DeLay, odious Bush bootlicker Tom Feeney of Florida, and Imamess Anne Coulter, with her fatwa calling for the death of Justice John Paul Stevens.