Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—December 2

(Photo Illustration: NRO)

2009—In an opinion concerning the Court’s denial of certiorari in Johnson v. Bredesen, Justice Stevens, joined by Justice Breyer, opines that Tennessee violated a death-row inmate’s Eighth Amendment rights when it delayed carrying out his execution “for nearly 29 years.” Justice Thomas responds:

In 1981, the petitioner in this case was convicted and sentenced to death for three brutal murders he committed in the course of a robbery. He spent the next 29 years challenging his conviction and sentence in state and federal judicial proceedings and in a petition for executive clemency. His challenges were unsuccessful. He now contends that the very proceedings he used to contest his sentence should prohibit the State from carrying it out, because executing him after the “lengthy and inhumane delay” occasioned by his appeals would violate the Eighth Amendment’s prohibition on “cruel and unusual” punishment.

It has been 14 years since Justice Stevens proposed this “novel” Eighth Amendment argument. I was unaware of any constitutional support for the argument then. And I am unaware of any support for it now. There is simply no authority in the American constitutional tradition or in this Court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.

Most Popular

Elections

On Kamala Harris

Joe Biden has named his 2020 running mate: authoritarianism. American prosecutors wield awesome and terrible powers that lend themselves easily to abuse, and Senator Kamala Harris, formerly the attorney general of California, is an enthusiastic abuser of them. Harris was a leader in the junta of Democratic ... Read More
Elections

On Kamala Harris

Joe Biden has named his 2020 running mate: authoritarianism. American prosecutors wield awesome and terrible powers that lend themselves easily to abuse, and Senator Kamala Harris, formerly the attorney general of California, is an enthusiastic abuser of them. Harris was a leader in the junta of Democratic ... Read More
U.S.

New York City’s Downward Spiral

New York City must be one of the few places on earth where chaos nostalgia is widespread. Many were the laments, in the Giuliani-Bloomberg era, that the city was “too sanitized,” “too gentrified,” “too boring,” “anodyne,” “suburban.” Often you’d hear people saying, or declaiming, that their ... Read More
U.S.

New York City’s Downward Spiral

New York City must be one of the few places on earth where chaos nostalgia is widespread. Many were the laments, in the Giuliani-Bloomberg era, that the city was “too sanitized,” “too gentrified,” “too boring,” “anodyne,” “suburban.” Often you’d hear people saying, or declaiming, that their ... Read More

The Anarchist Storm over Portland

Stephen Peifer, a retired assistant U.S. attorney in Portland, Ore., sat down with National Review’s Luther Abel to discuss the state’s long and infamous struggle with left-wing extremist groups, why federal officers were deployed to Portland, and what makes the current situation in the city uniquely ... Read More

The Anarchist Storm over Portland

Stephen Peifer, a retired assistant U.S. attorney in Portland, Ore., sat down with National Review’s Luther Abel to discuss the state’s long and infamous struggle with left-wing extremist groups, why federal officers were deployed to Portland, and what makes the current situation in the city uniquely ... Read More
Elections

Kamala Harris’s Anti-Catholic Bigotry

Someone might want to remind Joe Biden, who’s just picked progressive California senator Kamala Harris as his running mate, that his vice-president-to-be believes Catholics are unfit to serve in our nation’s courts. (Biden, of course, as I considered at length on the homepage today, has spent his entire ... Read More
Elections

Kamala Harris’s Anti-Catholic Bigotry

Someone might want to remind Joe Biden, who’s just picked progressive California senator Kamala Harris as his running mate, that his vice-president-to-be believes Catholics are unfit to serve in our nation’s courts. (Biden, of course, as I considered at length on the homepage today, has spent his entire ... Read More