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Apr 12th 2009

Jeffrey Fisher is Effed Up, Too

[This is another unpublished post from the summer of 2008. It is substantially incomplete, but it is at least readable and there are some decent points in it. In reading these old posts, I seemed to have a lot of anger pent up inside last summer.]

In June 2008, the Supreme Court held that a state may not execute an adult male who rapes a child. To reach this decision, it had to scamper up several levels of spurious reasoning and sketchy holdings. Let us walk down this retarded trail together, and bask in the idiocy of the people who make the laws:

(1) Its actual reasoning for barring capital punishment for those convicted of non-capital crimes is the “evolving standards of decency” fiction. This is the idea (invented by a liberal judge) that the Eighth Amendment’s prohibition on “cruel and unusual” punishment must be read in light of “the evolving standards of decency that mark the progress of a maturing society” since “the words of the Amendment are not precise” and, therefore, “their scope is not static.” Trop v. Dulles, 356 U.S. 86 (1958).

In Trop v. Dulles, an American citizen who deserted from the army during WWII, and whose punishment for desertion included losing his citizenship, challenged the punishment as cruel and unusual. He won, despite the fact that he could have been executed for desertion under military law. This lead Justice Frankfurter to query, famously, “Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death?”

The problem with the evolving standards of decency fiction is that it only goes one way, while society’s standards are always in flux. The “evolving standards of decency” theory, then, may (and often does) overshoot its mark.

(2) The court based the “evolving standards” measure on a make-weight argument, adding up state laws that permitted capital punishment for child rape. It then concluded the trend (read: “evolving standard”) was a “national consensus” away from capital punishment for child rape. This was shown to be complete BS only weeks later when a Quinnipiac poll showed Americans widely favor the death penalty for child rapists.

By a 55 – 38 percent margin, voters favor the death penalty for a person convicted of raping a child. Women and men are consistent in their support. [source: July 17, 2008 poll – Quinnipiac University]

The national consensus is exactly the opposite of the one the Supreme Court made up by choosing to rely on the statistics that gave it the result it wanted. Then after the decision was announced, it turns out it had completely overlooked the military code in this analysis. adding insult to injury, the law the Supreme Court missed was enacted recently and does, in fact, provide for a penalty of death for a non-capital crime. Even if this wouldn’t have changed the Supreme Court’s decision, the law should have entered into its analysis. When asked about it, Stanford Law professor Jeffrey Fisher completely ignored the point of the question.

The death row inmate involved in the case, Patrick Kennedy, was represented by Stanford law professor Jeffrey L. Fisher. On Monday, responding to media inquiries, Fisher issued a statement saying the 2006 provision could not have applied to a civilian like Kennedy, and, in any event, that provision may not even remain valid. [source: scotusblog]

Total non sequitur.

2 Responses to “Jeffrey Fisher is Effed Up, Too”

  1. MIguel

    Interesting post–the more I learn about the Supreme Court’s record the more shocked I am to here the reasons behind their decision–even the one’s whose outcomes I ultimately agree with.

    But don’t you mean that you think the SCOTUS is “effed up?” and not Jerry Fisher? After all, wasn’t he just doing what lawyer types are paid (and ethically bound) to do? Zealous representation?

  2. travis

    But don’t you mean that you think the SCOTUS is “effed up?”

    not as much as jeffrey fisher and eugene volokh. yes, anthony kennedy is ruining our country’s body of law, but i have come to accept and tolerate his erratic views (kind of like what we’ve all had to do with timothy geithner).

    and not Jerry Fisher? After all, wasn’t he just doing what lawyer types are paid (and ethically bound) to do? Zealous representation?

    i think he could have responded to the questions without being so disingenuous. i now recall the real reason i got so fired up about this was not that fisher argued (or that the supreme court accepted his arguments) that the evolving standards of decency mean no death penalty unless there is a dead victim. i mean, that is dishonest enough. but then the response ignores questions that demand answers, and settles for circular reasoning. first, fisher notes the

    provision could not have applied to a civilian like Kennedy

    no kidding?! i thought common criminals get prosecuted under the military code every day! i mean, how dumb does he think we are? the issue is not “oh, shouldn’t his death sentence have been upheld since all americans are subject to the UCMJ?” no the inquiries to which fisher was responding asked whether the discovery of the inconsistent provision in the military code, enacted just in 2006, affected his belief that standards were “evolving” as clearly as he just argued they were evolving.

    his answer ignored that question entirely. the issue was not whether the provision “applied” to his client, the question was, can we include the provision in your genius “national concensus” idea?

    in his answer, fisher sounded a lot like a global warming adherent who was confronted with a data point he didn’t like. he ignored it.

    and, in any event, that provision may not even remain valid.

    indeed! the provision may not remain valid because the supreme court has just said all such provisions are invalid! they arrived at this conclusion by noting a trend in US law, while failing to review perhaps the most recently enacted contrary provision in question. this is circular logic a/k/a begging the question a/k/a the tail wagging the dog.

    regardless of our positions on this issue (as you note, mike), all of us who have brains should take fisher’s statement “it may not even remain valid” as somewhat of a slap in the face.