Dead Spin

Earlier today, the Nebraska Supreme Court ruled that electrocution - death by electric chair - constitutes cruel and unusual punishment under the Nebraska state constitution, and is therefore unconstitutional under the state constitution.

Before the ink had dried on the Court's opinion, conservatives in the state were predictably assailing the opinion, claiming it had been written by "activist" judges. The spin gets worse though, with some critics claiming that the Nebraska Supreme Court had outlawed capital punishment in the state. They hadn't; they'd merely said that the state's one form of capital punishment was cruel and unusual, specifically noting that victi...er, the punished would endure broken bones, severe burns, and the like during the execution process, and that there was evidence that the executed would endure intense pain and agony in the execution process.

There's a lot of talk about so-called "activist" judges, and the word activist has been thrown around in this Nebraska situation. Conservatives like to style them as judges who go out of their way to insert personal or political bias into the judicial decision-making process, as if these folks would ignore the plain text of a statute or the plain meaning of precedent in order to sustitute their beliefs for law. In reality, and I think this is the case here, conservatives are just complaining that they don't win all the time. And they're not being entirely honest about the debate either.

Conservative jurists have construed laws, precedent, and even the US Constitution to suit their needs. The most notorious era of activist judicial philosophy, called the Lochner era because of a seminal case during that time, read conservative, laissez-faire economic policy into nearly every aspect of American law. The New Deal Court followed that era, along with the Warren Court and the Burger Court, all of which were very liberal, and we're starting to swing back into a more conservative judicial era. But the point is, and Stanley Fish has a great blog about this, construing law sometimes comes down to making a black-and-white decision where the law is not black and not white. And judges, regardless of their statements otherwise, can't always follow plain meanings or be so-called strict constructionists. There sometimes just aren't plain meanings.

But, conservatives have put that idea out there: the law says what the law says. And they've made it seem as if only liberals are activists. It's pure spin. Beware.