Wednesday, October 3, 2018

Chief Justice Roberts goes about deal making without ninth justice

This week the U.S. Supreme Court heard arguments in Madison v. Alabama a capital case in which death row inmate Vernon Madison's attorneys are suggesting that his dementia disqualifies him for execution.  The case was a glimpse into how the court might proceed with only eight members. is During arguments it quickly became clear that the justices were divided—possibly by a 4-4 vote.
So Chief Justice John Roberts Jr. went to work—as he did in the 2016 term when the court also had only eight members, as reported by The National Law Journal, Supreme Court Brief.
Roberts distilled the conflicting arguments to find common ground, and soon was laying out a possible solution so narrow, it might apply only to one death row inmate—Vernon Madison, the man whose case was before the court, and whose severe avascular dementia has left him disabled in many ways and unable to remember his crime of killing a police officer in 1985.
Roberts started crafting the deal after both Bryan Stevenson, Madison's lawyer, and Alabama Deputy Attorney General Thomas Govan Jr. seemed to give ground. They probably knew that the current eight-member court is not in the mood for big decisions.
In a colloquy with Govan, Roberts said Stevenson had conceded that "simply not remembering the crime is not enough" to let Madison avoid the death penalty, while Govan argued that "if it's vascular dementia that affects you up to the point of Ford and Panetti, that is enough" to make Madison ineligible for execution.
"So are all we arguing about is whether Mr. Madison himself meets the Ford and Panetti standard?" Roberts asked, referring to the two relevant Supreme Court precedents that bar the execution of persons who are incompetent or have no comprehension of why they face execution.
He seemed to be telegraphing that because of Madison's severe form of dementia, it’s not necessary to craft a sweeping Eighth Amendment decision that would expand the ban to include the growing number of aging inmates with less severe dementia or memory loss.
"That's exactly right," Gavan told Roberts, and the deal seemed sealed. The outcome is still uncertain, but Roberts may have found a way out of a 4-4 tie—a tactic he may have to deploy again soon.
To read the argument CLICK HERE

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