Sotomayor & Prop 8: Hegemony & The Courts

by: Paul Rosenberg

Tue May 26, 2009 at 17:14

At Calitics, Brian Leubitz wrote, before the decision bame down:

The Courts Matter

As we've just heard that Judge Sonia Sotomayor has been appointed to the Supreme Court, I am reminded of just how important the "counter-majoritarian branch" really is.  With the looming Prop 8 decision expected in just a few hours at 10AM, it can never be said that policy does not emerge from the judiciary.  Not matter how the court decides on Prop 8, the California Supreme Court is clearly making policy when it determines whether I am married or not.  There is no such thing as merely being an arbitrator, there are always shades of gray, and the requirement for a judge to apply their judgment.  After all, it is nearly impossible for one to stand in judgment without, um, judgment....

But here in California, policy is made all of the time in the courts, primarily because our elected leaders have been hamstrung by a disastrous structure of government but also by years of failed leadership on issues like the prison system. Years of the failed ToughOnCrimeTM policy and the unwillingness to put policy over politics left us with an absolute mess. Judge Thelton Henderson, a prominent NorCal district court judge, has consistently made more policy for our state prison system than the elected leaders....  

The courts are there to protect those who need protection. The courts are there to block the tyranny of the majority.  Hopefully we'll see that today.

Of course, we didn't see that.  What we saw, instead, was a form of stealth activism--judges actively destroying California's constitutional distinction between a constitutional amendment (which is subject to majority rule) and a constitutional revision  (which is not).  That activism, in turn, descends directly from 1986 corporate-funded judicial recall election, in which 3 Jerry Brown appointees were voted out of office under the banner of rolling back judicial activism against the death penalty.  After they were ousted, California swiftly reinstated executions... six years later, in 1992

As this overview of death penalty history notes:

Legal challenges to the death penalty culminated in a 5-4 U.S. Supreme Court  decision Furman  v. Georgia, 408 U.S. 153 (1972), which struck down federal and state  capital punishment laws permitting wide discretion in the application of  the death penalty. Characterizing these laws as "arbitrary and capricious,"  the majority ruled that they constituted cruel and unusual punishment in  violation of the Eighth  Amendment to the U.S. Constitution and the due process guarantees of  the Fourteenth  Amendment. Only two of the justices concurring in the decision (Justices  Brennan and Marshall) declared capital punishment to be unconstitutional  in all instances, however; other concurrences by Justices Douglas, Stewart,  and White focused on the abitrariness of the application of capital punishment,  including the appearance of racial bias against black defendants. In all,  nine separate opinions -- five invalidating existing laws and four arguing  for their retention -- were written by the nine Supreme Court justices spelling  out their different views on what constituted the "cruel and unusual  punishment" prohibited by the Eighth Amendment.

The Furman decision was preceded by the growth of a widespread de facto consensus against the death penalty.  Simply put, it stopped being enforced. Throughout the first half of the 20th Century, execution rates of 100 per year or more were the norm.  But 1951 was the last year of triple digit executions. 1960 was the last year that more than 50 were executed;  1964 was the last year that more then 10 were executed; and only 9 were executed over the next three years.  As of 1968, they ceased entirely, until a new set of laws were passed in response to the Supreme Court ruling, after which executions began again, but at a very low rate, foughly comparable to what it had been in the 1960s before coming to a complete halt.

Here's a complete graph of executions from the 1930s to the 1990s:

There were just six executions in the six years, 1977-1982. Then 5 in 1983--one each in 5 different states.  Then the floodgates opened, 21 executions in 1984, and 18 each in the next two years--1985 and 1986, the year that the supposed "anti-death penalty" "activist judges" were defeated in California.  The next year, 25 people were executed, but that remained the high water mark until 1992, the year that California finally put someone to death.  Here is the complete record of Californians put to death since 1986:

 4/21/1992    Robert Alton Harris
 8/24/1993    David Edwin Mason
 2/23/1996    William George Bonin
 5/03/1996     Keith Daniel Williams
 7/14/1998    Thomas Martin Thompson
 2/09/1999    Jaturun Siripongs
 5/04/1999    Manuel Pina Babbitt
 3/15/2000    Darrell Keith "Young Elk" Rich
 3/27/2001    Robert Lee Massie
 1/29/2002    Stephen Wayne Anderson
 1/19/2005    Donald Jay Beardslee
12/13/2005    Stanley "Tookie" Williams
 1/17/2006    Clarence Ray Allen

That is the full extent of the "horrific murders" put to death as a result of freeing California from it's terrible scourge of "liberal activist judges." (Data comes from the Death Penalty Information Center, which has a webpage dedicated to Executions in the United States.  That page links to an exhaustive spreadsheet of executions, which is the source of the data above and to come.

So how does that compare with everyone else?

There were just 12 states that had resumed executions at the time that the California Supreme Court justices were recalled.  These were: Utah (1), Mississippi (1), Nevada (2), Indiana (2), Alabama (2), South Carolina (2), North Carolina (3), Virginia (5), Louisiana (7), Georgia (7), Florida (16), and Texas (20).  Of these 12 states, nine were from the old Confederacy, and of the 68 total executions, more than half--36 of them--came from one of two states--Florida and Texas, the two states where sons of George H.W. Bush would go on to become governors.

In contrast, there were 22 states, plus the federal government, which had executed no one by 1986, but went on to execute at least one prisoners in the years since then.  Six states did execute just one prisoner.  Fifteen states executed less than 10.  California's total of 13 put it just ahead of Illinois (12), and just behind Delaware (14).  Three state--Arizona, Arkansas and Ohio--had totals in the 20s, while two were far ahead of the rest: Missouri with 66 and Oklahoma with 89.  The average for these states was 12.7--just below California's total od 13.

What's more, by the time that California did execute its first prisoner, 1992, there were 13 states, plus the Federal Bureau of Prisons, that still had not executed a single prisoner, but that would go on to execute someone by 2008.

In short, there is no evidence whatsoever from a statistical point of view, that California's Supreme Court was unduly delaying a flood of executions that the California people were clamoring for.  It was, quite simply, an hysterical distraction from the real purpose of the campaign, which was to replace justices who were more likely to find on behalf of the politically powerless, most notably, workers and consumers vs. corporations--corporations who put a lot of money into the campaign.  And because factors like social dominance orientation and rightwing authoritarianism link together favoritism toward a broad spectrum of the powerful and a against a broad spectrum of the powerless, it was a foreseeable result that they would be much less inclined to protect minority rights against the tyranny of the majority at the ballot box last November.

That, in a nutshell, is how conservative hegemony and conservative judicial activism work together hand-in-hand.  That is what we have to learn to focus on, and that is what we have to defeat, in order to attain the ideal of liberty and just for all--not just for the majority, or powerful special interests, but for those most in need of the common protections for all.