"The death penalty is not a proportional punishment for the rape of a child"

[Cali Coug]

Originally Posted by Tex

The Court more-or-less said the data was insufficient when they turned to "their own understanding."

Your redefining judicial activism as a disagreeable decision is just intellectually lazy, no surprise given your reading problems.

Ed Whelan gives a great definition of the term here:



http://bench.nationalreview.com/post...M5Y2MxMzM3ZDU=

The Court more-or-less said the data was insufficient when they turned to "their own understanding." [/quote]

The Court said no such thing. You did. The Court cited, among other facts, the following as reasons the 8th Amendment required the overturning of the statute:

A review of the authorities informed by contemporary norms, including the history of the death penalty for this and other nonhomicide crimes, current state statutes and new enactments, and the number of executions since 1964, demonstrates a national consensus against capital punishment for the crime of child rape. Pp. 11–23.
(a)
The Court follows the approach of cases in which objective indicia of consensus demonstrated an opinion against the death penaltyfor juveniles, see Roper, supra, mentally retarded offenders, see Atkins, supra, and vicarious felony murderers, see Enmund, supra. Thirty-seven jurisdictions—36 States plus the Federal Government—currently impose capital punishment, but only six States authorize it for child rape. In 45 jurisdictions, by contrast, petitioner could not beexecuted for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 in Enmund that prohibited thedeath penalty under the circumstances those cases considered. Pp. 11–15.
(b)
Respondent’s argument that Coker’s general discussion contrasting murder and rape, 433 U. S., at 598, has been interpreted tooexpansively, leading some States to conclude that Coker applies tochild rape when in fact it does not, is unsound. Coker’s holding wasnarrower than some of its language read in isolation indicates. The Coker plurality framed the question as whether, “with respect to rapeof an adult woman,” the death penalty is disproportionate punishment, id., at 592, and it repeated the phrase “adult woman” or “adultfemale” eight times in discussing the crime or the victim. The distinction between adult and child rape was not merely rhetorical; it was central to Coker’s reasoning, including its analysis of legislative consensus. See, e.g., id., at 595–596. There is little evidence to support respondent’s contention that state legislatures have understood Coker to state a broad rule that covers minor victims, and state courts have uniformly concluded that Coker did not address that crime. Accordingly, the small number of States that have enactedthe death penalty for child rape is relevant to determining whether there is a consensus against capital punishment for the rape of a child. Pp. 15–20.
(c)
A consistent direction of change in support of the death penalty for child rape might counterbalance an otherwise weak demonstration of consensus, see, e.g., Atkins, 536 U. S., at 315, but no showing of consistent change has been made here. That five States mayhave had pending legislation authorizing death for child rape is not dispositive because it is not this Court’s practice, nor is it sound, to find contemporary norms based on legislation proposed but not yetenacted. Indeed, since the parties submitted their briefs, the legislation in at least two of the five States has failed. Further, evidence that, in the last 13 years, six new death penalty statutes have beenenacted, three in the last two years, is not as significant as the datain Atkins, where 18 States between 1986 and 2001 had enacted legislation prohibiting the execution of mentally retarded persons. See id., at 314–315. Respondent argues that this case is like Roper because, there, only five States had shifted their positions between1989 and 2005, one less State than here. See 543 U. S., at 565. But the Roper Court emphasized that the slow pace of abolition was counterbalanced by the total number of States that had recognized the impropriety of executing juvenile offenders. See id., at 566–567. Here, the fact that only six States have made child rape a capital offense is not an indication of a trend or change in direction comparable to the one in Roper. The evidence bears a closer resemblance to that in Enmund, where the Court found a national consensus againstdeath for vicarious felony murder despite eight jurisdictions having authorized it. See 458 U. S., at 789, 792. Pp. 20–22.
(d)
Execution statistics also confirm that there is a social consensus against the death penalty for child rape. Nine States have permitted capital punishment for adult or child rape for some length of time between the Court’s 1972 Furman decision and today; yet no individual has been executed for the rape of an adult or child since1964, and no execution for any other nonhomicide offense has beenconducted since 1963. Louisiana is the only State since 1964 that has sentenced an individual to death for child rape, and petitioner and another man so sentenced are the only individuals now on death rowin the United States for nonhomicide offenses. Pp. 22–23.

Your redefining judicial activism as a disagreeable decision is just intellectually lazy, no surprise given your reading problems.

Ed Whelan gives a great definition of the term here:


Quote:
Let me offer a few points of explanation of what I mean by the term “liberal judicial activism”:

1. For rulings on questions of constitutional law, I will identify judicial decisions that wrongly override laws or policies that flow from the democratic processes and instead entrench, in the name of the Constitution, liberal policy preferences.

Wow- he really did a great job of defining the term here. "Judicial activism" is any decision that "wrongly" overrides laws or policies. Hmm, that sounds exactly what I just said. Who decides if a case is "wrongly" decided? Let me guess: Tex does. And if Tex thinks it was wrongly decided, it is judicial activism. That sounds exactly like what I just said you thought the definition would be.

2. I intend to use the term “judicial passivism” for judicial decisions that make the opposite error—that fail to enforce constitutional guarantees. Because the two errors are often related—it’s no surprise that justices and judges who embrace the make-it-up-as-you-go-along approach to inventing rights that aren’t in the Constitution also will ignore rights that are in it—I may occasionally include instances of liberal judicial passivism.

See above.

3. For rulings on non-constitutional questions, I will identify judicial decisions that implausibly construe legal texts to reach liberal policy results.

See above. Who says it is implausible? Oh yeah, Tex does.

4. I will not be not probing the subjective motivations of judges. To identify a decision as an instance of liberal judicial activism does not necessarily mean that I am alleging that the judges responsible for the decision have indulged, deliberately or otherwise, their own policy preferences, though I certainly believe that often to be the case. It might instead be that they misconceive the judicial role or that they simply err. In terms of the injury done to American citizens’ power of self-governance, the cause of the error is of little interest.

Irrelevant.

[SoCalCoug]

Originally Posted by Tex

Is that all you got out of Whelan's points?

He's the one who's saying it.

1. Liberal activism = decisions that "wrongly" (a subjective premise) override existing laws and result in laws that "entrench" liberal policies. What's incorrect about this restatement?

2. Liberal activism = the reverse of 1, by his definition (he calls in "judicial passivism"), although he didn't really explain it clearly. It appears to me that he means decisions that fail to override "liberal" laws which he subjectively believes fail to enforce constitutional guarantees.

So we've got the definition including rulings that override conservative laws in favor of liberal policies, and rulings that fail to override liberal laws in favor of conservative policies.

Are you with me, or do I need to use smaller words?

3. Liberal activism = on nonconstitutional questions, rulings that "implausibly" (another subjective premise) embrace liberal policies. Does this one really need any further interpretation?

4. He just seems to be saying he's not going to say whether these activist judges are doing it deliberately or not.

There doesn't appear to be any other points he made to be drawn out of that.

It's a very self-serving definition which really underscores the subjectivity of the existence of an alleged widespread "liberal activism" by the courts.

[SoCalCoug]

And Tex hits the mat after a nasty 1-2 combination of reason and intelligence.

[SoCalCoug]

Originally Posted by SoCalCoug

And Tex hits the mat after a nasty 1-2 combination of reason and intelligence.

And as he is carted off in a stretcher, he will no doubt still be claiming victory.

[Tex]

Originally Posted by Cali Coug

The Court said no such thing. You did. The Court cited, among other facts, the following as reasons the 8th Amendment required the overturning of the statute:

Following which Kennedy made the statement quoted. p. 24. I guess you didn't read far enough.

Originally Posted by Cali Coug

Wow- he really did a great job of defining the term here. "Judicial activism" is any decision that "wrongly" overrides laws or policies. Hmm, that sounds exactly what I just said. Who decides if a case is "wrongly" decided? Let me guess: Tex does. And if Tex thinks it was wrongly decided, it is judicial activism. That sounds exactly like what I just said you thought the definition would be.



See above.



See above. Who says it is implausible? Oh yeah, Tex does.



Irrelevant.

Wrongly decided != in opposition to one's wishes. Roe being an obvious example, even Ginsburg now recognizes how bad a decision it was, despite that she agrees with its consequences.

In the end, everything in the law is just opinion, so that's no defense of judicial activism. The question is whether or not a given opinion logically follows established legal precedent. In this case, it was clearly overtly influenced by the justices' predisposition to the outcome.

The inability to distinguish the difference is a mark of a judicial activist.

[Tex]

Originally Posted by SoCalCoug

Are you with me, or do I need to use smaller words?

You wouldn't still be floating in this conversation if you weren't relying on Cali to do the heavy lifting for you. And that's not saying much.

[SoCalCoug]

Originally Posted by Tex

You wouldn't still be floating in this conversation if you weren't relying on Cali to do the heavy lifting for you. And that's not saying much.

Ok. Next time, I'll try to use smaller words.

[MikeWaters]

I like how the usual job with the reacharound is now a menage a trois.

[SoCalCoug]

Originally Posted by Tex

In the end, everything in the law is just opinion, so that's no defense of judicial activism. The question is whether or not a given opinion logically follows established legal precedent. In this case, it was clearly overtly influenced by the justices' predisposition to the outcome.

The inability to distinguish the difference is a mark of a judicial activist.

I'm not sure you have a clear picture of the judicial system. Yes, legal precedent is important. But I think most appellate opinions arise where there is no legal precedent, or where there is conflicting legal precedent.

You're giving too much importance to the concept of "legal precedent" as it applies to appellate law (including SCOTUS) in perpetuating this myth of rampant judicial activism.

If there was clear "legal precedent" for every possible issue, there would be little need for appeals courts. The trial courts would just be able to follow the precedent.

The problems arise in the absence of clear legal precedent, when judges have to do what they think is right, according to their understanding of the law.

You simply don't have a complete understanding of appellate law and precedent here, and you're subjecting yourself to the intellectual buffetings of partisan blowhards who understand little more than you do.

[Tex]

Originally Posted by SoCalCoug

I'm not sure you have a clear picture of the judicial system. Yes, legal precedent is important. But I think most appellate opinions arise where there is no legal precedent, or where there is conflicting legal precedent.

You're giving too much importance to the concept of "legal precedent" as it applies to appellate law (including SCOTUS) in perpetuating this myth of rampant judicial activism.

If there was clear "legal precedent" for every possible issue, there would be little need for appeals courts. The trial courts would just be able to follow the precedent.

The problems arise in the absence of clear legal precedent, when judges have to do what they think is right, according to their understanding of the law.

Perhaps precedent was the wrong word. I meant following tried legal principles using sound legal logic.

Originally Posted by SoCalCoug

You simply don't have a complete understanding of appellate law and precedent here, and you're subjecting yourself to the intellectual buffetings of partisan blowhards who understand little more than you do.

Disagree all you like, but there's no reason to cast aspersions on Whelan's credentials. They're better than mine, and I'm sure they're far better than yours.