Wednesday, July 1, 2015

Justice Breyer v. the Death Penalty

The two most unusual opinions of the past Supreme Court term addressed issues that were not even presented by the cases before the Court. In a dispute involving claims of racial discrimination in jury selection, Justice Anthony Kennedy took it upon himself to write a separate five-page opinion condemning the practice of prolonged solitary confinement and inviting a future constitutional challenge. (The defendant in the case, Hector Ayala, had been in solitary confinement for most of his twenty-five years on death row, prompting Kennedy’s concern, even though Ayala never raised the issue.) And, on the term’s last day, in a case questioning the validity of Oklahoma’s particular method of administering lethal-injection drugs for executions, Justice Stephen Breyer wrote a forty-page dissent questioning the constitutionality of the death penalty itself, and calling for a challenge raising that question.

As a rule, the Court addresses only the questions presented to it in concrete cases. Indeed, under the Constitution, it lacks the power to do otherwise. Individual Justices are free to raise whatever concerns they want in separate opinions, but they generally stick to the matter at hand. Evidently, Kennedy and Breyer felt strongly enough about the issues of solitary confinement and capital punishment to break from that tradition.

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