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March 10, 2006


Dennis J. Tuchler

I take it the executions are not in violation of a specific federal court order?

I don't see how the disregard of an opinion of the Supreme Court counts as an act of rebellion or in any way raises an issue under the guarantee clause.

Mark Tushnet

The example is complicated (a bit) by the fact that the Supreme Court decision affirmed a decision by the state supreme court (albeit one that that court said was compelled by U.S. Supreme Court precedent). So, the defiance here is of both the U.S. and the state supreme court.


Mark, thank you for the clarification. Although, I still am not sure how it addresses the hypo. If the legislative (or executive) branch of a state government defies a decision from the Supreme Court interpreting the Constitution -- that public schools must be racially integrated to comport with the 14th amendment, for example, or that the choice to terminate a pregnancy must be free from the threat of criminal prosecution in the case of protecting the health and life of the pregnant woman -- under what circumstances can the federal government force compliance? Are some circumstances more palatable than others? Is Dennis (the first commenter) right that a court order (as if bringing an as applied challenge) is required in every instance? I thought Roper held that all executions of juvenile offenders violates the 8th and 14th amendments. Why, then, would a subsequent juvenile offender need a court order to enforce Roper as to his case? My hypo goes to the issue of whether the state executive branch who continues to put juvenile offenders on death row and execute them can claim that Roper is likely to be overturned in short order such that federal enforcement of the Supreme Court decision would somehow be "unconstitutional" (as in, contrary to the correct reading of the Constitution).


A federal court order may be impossible in some situations if the juvenile's death sentence was final before Roper was decided. In that case, AEDPA appears to bar federal habeas review of the claim. If there is no state court postconviction remedy, then the convict would have no judicial remedy. In that case, would the President's power under the Take Care Clause authorize him to enforce the Eighth Amendment guarantee against a state that insisted on going ahead with such executions? (It's doubtful that a state would persist in carrying out such executions after Roper, but it is possible.)


pk -
Why do you think it doubtful that a state would go ahead with such executions after Roper given its debatable status should Stevens retire during Bush's presidency? How is it different from South Dakota (and soon to be Mississippi) passing laws that contradict Roe?


The difference between the two cases is the availability of a judicial remedy to challenge the state action. The SD law will be challenged facially and if it is enforced against a woman or doctor protected by Casey, then the enforcing official will face a 1983 suit. Either way, the constitutionality of the statute will be determined in court. If the juveniles on State X's death row could not be executed under Roper, but have no judicial remedy to enforce that right (i.e., no state post-conviction remedy available and federal habeas cut off by Teague v. Lane and AEDPA)then the constitutionality of State X's actions would never be decided in court. In cases where only a constitutional remedy is lacking, but not a constitutional right, I doubt a state would proceed with an execution.

Put another way, SD is actively trying to change the law by putting the issue before the Supreme Court (in the off chance that the Court would grant cert). By continuing with the executions, State X is not trying to change the law, but merely taking an advantage of a loophole in the availability of judicial remedies.

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