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OA192: Capital Punishment, the Eighth Amendment &... Obergefell? (Patreon)

Published:
2018-07-16 20:47:13
Imported:
2022-10

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Content

Today's episode takes an in-depth historical look at the Eighth Amendment's prohibition on "cruel and unusual punishment" and what that might mean for the future of Obergefell v. Hodges in the next Supreme Court.  What does capital punishment have to do with gay marriage?  Listen and find out!

We begin, however, with a discussion of the District Court's refusal to modify the Flores settlement we discussed in Episode 184.  Find out what the court thinks of Trump's Executive Order to "keep families together" at the border... by indefinitely detaining minors in violation of the law.

After that, it's time for a double-length dive into the history of Eighth Amendment jurisprudence, and in particular, the Supreme Court's decision outlawing capital punishment in 1972 (Furman v. Georgia) and then reversing itself just four years later (Gregg v. Georgia).  Is this a blueprint for what the next SCOTUS will do?  Listen and find out!

Finally, we end the answer to Thomas Takes The Bar Exam #84 regarding spousal privilege.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

By the time you download this, Andrew will have been a guest discussing Judge Kavanaugh with conservative talk show host Chuck Morse.  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. We first discussed the President's Executive Order regarding family separation in Episode 184; and you can click hear to read the District Court's Order refusing to modify the Flores settlement.
  2. The first case we discussed was Pavan v. Smith, 137 S.Ct. 2075 (2017), in which Roberts refused to sign on with the hard-right dissent.
  3. Our two main cases we broke down were Furman v. Georgia, 408 U.S. 238 (1972) and Gregg v. Georgia, 482 U.S. 153 (1976).
  4. Finally, we strongly recommend reading Justice Brennan's 1986 Oliver Wendell Holmes lecture in which he explains his view of the Eighth Amendment.

Support us on Patreon at:  patreon.com/law

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For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com

Comments

law

On the right-hand side of this page, under "Become a Patron" and then "Audio RSS Link"

Dr. Clerk

It is my great privilege and guilty pleasure to correct Andrew for the second episode in a row. John Paul Stevens is actually still alive at age 98. In fact, he recently advocated the repeal of the Second Amendment in a New York Times editorial. (<a href="https://www.nytimes.com/2018/03/27/opinion/john-paul-stevens-repeal-second-amendment.html)" rel="nofollow noopener" target="_blank">https://www.nytimes.com/2018/03/27/opinion/john-paul-stevens-repeal-second-amendment.html</a>) A lot of liberals were annoyed because it played into the GOP's narrative. Our chief concern is usually SCOTUS's activism and not the text of the Constitution. Be careful next episode, because according to bird law, it's three strikes and you're out; bye, bye birdie.