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Tuesday, November 29, 2005

Why Not

Just below, I asked why we don't simply move death penalty cases out of the Supreme Court to a specialized criminal court. One possible reason now occurs to me. It occurs to me that those who hope for the elimination of the death penalty might oppose my move, because they are hoping that members of the Supreme Court will grow so tired with the conflicting demands of Eighth Amendment jurisprudence, that they will eventually, like Justice Blackmun, attempt to simply shut down the machinery of death. It seems rather unlikely that a death penalty court will ever declare the death penalty categorically unconstitutional, since it would put them out of a job.
Now I don't know if that political calculation is actually right, and I don't know if anybody would find it persuasive, but it does seem like one group of people who might reasonably oppose a death penalty court.
UPDATE: Doug Berman has some further thoughts on other death-related topics. Via email, he also asks how I would decide whether a case counts as a "death" case. My initial inclination was to say that any case in which there is a legal issue that would result in a condemned person no longer being a condemned person would be a "death" case, but that might mean that my death court would rapidly turn into a general court of criminal appeals. I am not sure that would be so bad, although several commenters (including co-blogger Steve) appear to think that the Texas example shows that this is a mistake. I would love to hear more from those in the know.

Posted by Will Baude on November 29, 2005 at 02:33 PM in Criminal Law | Permalink


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I think this is unlikely to be helpful if en banc review remains a serious possibility, because the pressures that currently lead to SCOTUS taking on lots of death cases would probably ead the State court to take them en banc. Plus it's not clear this makes the cases any better.

At any rate, my original proposal was about the Supreme Court of the U.S., and I take it any proposal to double its size and have it start hearing cases in panels is a nonstarter.

Posted by: Will Baude | Nov 29, 2005 5:23:59 PM

Instead of substantive division, which bears the risk of capture in the same way that administrative agencies get captured, why not just adopt panel systems like the federal appellate courts? Double the size of state supreme courts and use three-justice panels with the option for en banc review.

Posted by: Paul Gowder | Nov 29, 2005 5:18:20 PM

Fair point. I exaggerated. State courts are working hard to get rid of their mandatory criminal docket, and with good reason. Supreme Court Justices at the state and federal levels are selected for their ability to issue broad pronouncements of law or policy, not for their ability to scrutinize a record and figure out whether a guy got a bum rap in his trial. And given that these are very separate skills, but both rather important judicial functions, why not have two separate bodies to do them?

Posted by: Will Baude | Nov 29, 2005 3:30:35 PM

Really? It seems to me that an increasing number of state supreme courts _are_ borrowing from the U.S. Supreme Court's model... take California, for example, where the Supreme Court not only hears a very limited class of cases (in many of which the Court's jurisdiction is discretionary), but it even "depublishes" lower court decisions in cases it chooses _not_ to hear sometimes...

But it would, indeed, be good to know more from someone whose knowledge of the CCA isn't limited to one episode of Boston Legal (and a few other scattered encounters). :-)

Posted by: Steve Vladeck | Nov 29, 2005 3:27:25 PM


I was hoping somebody more knowledgeable about the Texas Court systems would offer some empirical knowledge on that. My own sense is that it probably does make the Texas Supreme Court's workload a little less criminal-centered, which is probably a good thing. Are there people who think the Texas justice system would be superior if the Texas Supremes handled all of the CCA's work?

In any case, while I would like more information about how the split has played out there, I do think the U.S. Supreme Court is a different animal, since it so jealously guards the quality of its own docket in a way that most State Sup. Cts. don't.

Posted by: Will Baude | Nov 29, 2005 3:13:27 PM

Will -- What about Texas's experience, in bifurcating the Texas Court of Criminal Appeals' jurisdiction from that of the Texas Supreme Court? Leaving aside the actual ideological bent of the CCA, to which I can add little not already covered by "Alan Shore" on Boston Legal, do you think that Texas's experience with a more "specialized" death-penalty court, even one where only a _substantial_ part of their docket is death penalty cases, has produced a benefit for the legal system as a whole?

Posted by: Steve Vladeck | Nov 29, 2005 3:07:10 PM

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