Supreme Court: Abortion vs. the Death Penalty

[Frodo]

Given the current makeup of the Court, of these two (unlikely) situations, what would they be more likely to do?  Return abortion to the states through the repeal of Roe vs. Wade (along with Planned Parenthood vs. Casey)?  Or end the death penalty by repealing Gregg vs. Georgia?  

 

[Antonio the Sixth]

With 5/9 conservatives ? Guess...

[Kaine for Senate '18]

Repeal Gregg.  I could see an older Kennedy voting for it.

[Free Palestine]

I think repealing Roe v. Wade has a less shaky constitutional basis than repealing Gregg v. Georgia, unfortunately.

[© tweed]

I think repealing Roe v. Wade has a less shaky constitutional basis than repealing Gregg v. Georgia, unfortunately.

there's no such thing as 'constitutional basis'.  the J's have a political or moral position and then couch it in plausible or semi-plausible legal argument.

[Free Palestine]

I think repealing Roe v. Wade has a less shaky constitutional basis than repealing Gregg v. Georgia, unfortunately.

there's no such thing as 'constitutional basis'.  the J's have a political or moral position and then couch it in plausible or semi-plausible legal argument.

True, especially with folks like Scalia.

[True Federalist (진정한 연방 주의자)]

By and large the Supreme Court has more badly handled the Cruel and Unusual Punishment clause than the abortion issue.

With abortion, the decision has been based upon the right of privacy, which while not explicitly laid out in the constitution can be inferred from what is there.  Where I disagree with the Court is over its claim to be the arbiter of when the unborn achieve personhood thereby allowing the right of privacy that shields a person from state interference in abortion to be breached in defense of the rights of another person's right to life.  Either that determination should be left to the legislative branch to define, or the 14th Amendment definition of citizenship should be taken as an implicit definition of personhood that excludes the unborn. My preference is the former, but I can respect the latter.

With the Cruel and Unusual Punishment clause, the court has also largely taken unto itself legislative authority and cloaked it in judicial clothing.

Consider the four-pronged test Brennan laid out for determining whether a punishment was cruel and unusual in his opinion in Furman v. Georgia.

• A punishment must not be so severe as to be degrading to the dignity of human beings.
• The state may not arbitrarily inflict an unusually severe punishment.
• Society will disapprove of its infliction.
• A punishment may not be excessive in view of the purposes for which it is inflicted.

It's not an unreasonable test, but only the second is a wholly judicially determinable condition.  The first and fourth prongs are primarily ones to be determined by the legislative branch, but could on occasion warrant judicial action.  But it is the third prong that the Court has turned to time and time again in deciding that punishments are cruel and unusual and the judiciary has absolutely no business in deciding whether society disapproves of a punishment.  That is clearly and absolutely a legislative prerogative that the Court should stay clear of.