The Supreme Court and the Death Penalty: The "Swing Man" Swings against Civilization

The Supreme Court ruled 5-4 today that a Washington state judge was correct in removing a juror who had doubts about the application of the death penalty in all cases in a specific death penalty case. It was the second five to four ruling in the last few days. The first restricted the rights of employees to file discrimination suits based on longterm discrimination concerning salary increases, promotions, etc., on the grounds that they must file within a very narrow time frame, a sort of Catch 22 ruling since most individuals, like the woman in the case, would not be aware or have any evidence of such discrimination until long after the filing deadlines. In both cases, Judge William Kennedy was the "swing vote," joining the gang of four ultra rightists, Scalia, Thomas, Alito, and Chief Justice John Roberts in the majority.

Both cases are clear and direct evidence of how much more destructive the Court, which ceased to play a progressive role in American life after the Nixon appointments of the earlier 1970s, has become under George W. Bush, who appointed Alito to the Court and Roberts to the powerful position of Chief Justice. It is a harbinger of a the coming struggle for judicial reconstruction that the center and the left will have to carry forward if democratic right and civil liberties are to be preserved.

While it should be said that the case involved rape and murder, John Paul Stevens, the longest serving member of the Court, appointed by Gerald Ford more than thirty years ago (a Republican Centrist in the 1970s, one of the more militant "liberals" on the court by today's standards) issued a strong dissent verbally from the bench, condemning the majority for re-instating the death penalty in this case on the apparent ground that "trial courts should be encouraging the inclusion of jurors who will impose the death penalty rather than only insuring the exclusion of those who say that, in all circumstances, they cannot." Stevens called this approach "horribly backward," which might serve as a general comment on the present court majority, where the moderate conservative Sandra Day O'Connor, who with William Kennedy provided a buffer of sorts against the ultra-right on many issues over the years, has now been replaced by an ultra-rightist and Kennedy, for whatever reasons, is now allying himself with the ultra-right "Gang of Four."

The death penalty has been abolished in most of the developed world and its continuation and more extensive use in the United States is seen very widely as a barbaric anarchism. It is the reason why many nations refuse to extradite people to the United States in potential death penalty cases. The movement against the death penalty has in recent years won a number of victories in establishing death penalty moratoriums at the state level, although much of this so far has been centered on both the racist nature of the death penalties use and the fact that DNA and other evidence has been used to exonerate individuals on death row, rather than a rejection of the death penalty itself as a "cruel and unusual punishment" which has no place in the United States under the Constitution. Very few Americans no that the death penalty was declared unconstitutional for that reason for a four year period in the early 1970s, before a more conservative court permitted states to re-instate it.

Anti-death penalty activists should see this outrageous decision as abolitionists saw the Dred Scott decision giving slaveholders everything they wanted in law 150 years ago--as an opportunity to organize and strengthen the movement against the death penalty and its eventual outlawing. More and more people see the death penalty as unjust on a wide variety of grounds. William Kennedy's "swing vote" will encourage those people to be excluded from juries that decide death penalty cases and put more and more people on death row. That will bring more dishonor to the United States in the eyes of civilized people throughout the world.

--Norman Markowitz