Susan Raeker-Jordan

Kennedy, Kennedy, and the Eighth Amendment: "Still in Search of a Unifying Principle"?

Susan Raeker-Jordan — Fri, 11 Mar 2011 09:18:31 PST

In Kennedy v. Louisiana, the United States Supreme Court held unconstitutional a state law that provided for the imposition of death upon one convicted of raping, but not killing or attempting to kill, a child. Justice Anthony Kennedy wrote the opinion for the Court, in which the majority, employing various analytical tools, brought its “own judgment” to bear on the excessiveness, and therefore the constitutionality, of the death sentence under the Eighth Amendment’s Cruel and Unusual Punishments Clause. In emphasizing the Court’s use of its own judgment in making the determination of excessiveness or disproportionality, Justice Kennedy and the majority risked the same public and internal, dissenting Court criticisms that accompanied previous death penalty opinions in which Court majorities and pluralities similarly employed their own judgments. In the sharp divide over these issues, critics have accused those jurists of disguising their personal views of morality as the doctrinal application of their “own judgment” on these questions. This article argues that despite the criticisms, and despite the Court’s statement that at least some of its capital punishment case law is “still in search of a unifying principle,” there is a precedential thread unifying and justifying the Court’s own assessment of excessiveness under the Eighth Amendment. Historical analysis of the Court’s Eighth Amendment statements shows that the clear thread in the cases is respect for human dignity and restraint that plays out through the Amendment’s proportionality guarantee. The Court’s application of that guarantee against excessiveness has time and again invoked the Court’s own judgment, based on contemporary knowledge of punishment, of punishment’s goals, and about decency in punishment. The article argues that approach is the sound and historical one and that the Court should continue to apply its own judgment about decency, excessiveness, and proportionality, despite criticisms from the Court’s conservative members about personal predilections.

Annual Survey of South Carolina Law/Practice and Procedure: Defendant Not Allowed to Assert Collateral Estoppel Against Stranger to Prior Judgment

Susan Raeker-Jordan — Thu, 09 Apr 2009 14:22:29 PDT

Annual Survey of South Carolina Law/ Tort Law: Liability of Information Suppliers Expanded

Susan Raeker-Jordan — Thu, 09 Apr 2009 14:21:47 PDT

Annual Survey of South Carolina Law/ Tort Law: Plaintiff Does Not Need to Allege a "Sale" in a Strict Liability Action

Susan Raeker-Jordan — Thu, 09 Apr 2009 14:20:56 PDT

A Pro-Death, Self-Fulfilling Constitutional Construct: The Supreme Court’s Evolving Standard of Decency for the Death Penalty

Susan Raeker-Jordan — Mon, 06 Apr 2009 12:31:59 PDT

In recent Eighth Amendment decisions applying the Cruel and Unusual Punishment Clause to substantive challenges to the death penalty, a plurality of the United States Supreme Court has favored employing only the "evolving standards of decency" test of constitutionality, purportedly because it is an objective measurement of cruelty and unusualness. The Article will show, however, that contrary to the assertions of some Court members, the indicia for ascertaining the evolving standard of decency are far from objective. Rather, the evidence gleaned from he "objective indicia" of legislative enactments and jury sentencing behavior can be and has been rigged to favor death, both through the selective evaluation of legislative enactments and the creation of procedural rules that slant juror decisionmaking toward death sentences.

This Article concludes that to counter the manipulability of the "objective" prongs of the evolving standards test and the resultant self-fulfilling nature of the entire jurisprudential construct, the Court should consider all state capital punishment legislation, and should not confine its consideration only to American conceptions of decency. Continued reliance on the Court's own assessment of proportionality and the furtherance of penological goals as additional constitutional benchmarks is also necessary to prevent the self-fulfilling nature of the evolving standards construct from eliminating any real constrain on the penalty.

The Pre-Emption Presumption that Never Was: Pre-Emption Doctrine Swallows the Rule

Susan Raeker-Jordan — Mon, 06 Apr 2009 12:28:41 PDT

A Study in Judicial Sleight of Hand: Did Geier v. American Honda Motor Co. Eradicate the Presumption Against Preemption?

Susan Raeker-Jordan — Mon, 06 Apr 2009 12:25:17 PDT

Parsing Personal Predilections: A Fresh Look at the Supreme Court’s Cruel and Unusual Death Penalty Jurisprudence

Susan Raeker-Jordan — Mon, 06 Apr 2009 12:13:13 PDT

Impeachment Calls and Death Threats: Assessing Criticisms of the Death Penalty Jurisprudence of Justices Kennedy and O’Connor

Susan Raeker-Jordan — Mon, 06 Apr 2009 12:11:03 PDT