Tuesday, October 23, 2012

Judge Carnes, Florida's death penalty, and Shakespeare

Remember that case in which Judge Martinez found Florida's death penalty unconstitutional under Ring?

The 11th Circuit, per Judge Carnes and joined by Judges Marcus and Pryor, decided today that the death penalty was fine and dandy even though it's pretty clear that Judge Martinez is right and that the Florida death penalty can't survive Ring.

But, the 11th says that we have to wait for the Supreme Court to explicitly say so. Judge Carnes starts off this way:

Confident that he knew what the future would bring, one of Shakespeare’s
characters boasted that “[t]here are many events in the womb of time which will be
delivered.” William Shakespeare, Othello, Act I, Scene 3, lines 412–13. On the
subject of lower courts predicting that the Supreme Court is going to overrule one
of its own decisions, however, Judge Hand cautioned against “embrac[ing] the
exhilarating opportunity of anticipating a doctrine which may be in the womb of
time, but whose birth is distant.” Spector Motor Serv. v. Walsh, 139 F.2d 809,
823 (2d Cir. 1943) (Hand, J., dissenting). The Supreme Court has made Hand’s
warning a clear command by repeatedly instructing lower courts that when one of
its earlier decisions with direct application to a case appears to rest on reasons
rejected in a more recent line of decisions, we must follow the directly applicable
decision and leave to the high Court the prerogative of overruling its own
decisions. As will become apparent, those instructions are dispositive of the
State’s appeal from the grant of habeas corpus relief in this case.

Well, this case is off to the Supreme Court and my money is on Judge Martinez getting vindicated.


Rumpole said...

From your blog to Scalia's pen.

Anonymous said...

Actually, if the Supreme Court reverses the Eleventh Circuit and overrules its prior decision, Judge Martinez won't be vindicated at all. Judge Carnes will be vindicated. The whole point of Judge Carnes's opinion is that Judge Martinez oughtn't to have guessed how the Supreme Court might rule in the future; he ought to have ruled in accordance with the Supreme Court decision that directly controls -- however undercut said decision may now be in the light of Ring.