In Connecticut’s politicized Supreme Court, exceptions have BECOME the rule. That is what happened when Justice Richard Palmer constructed his decision on the Constitutionality of Connecticut’s death penalty on a dissent in Glossip v. Gross, a case in which a challenge to the death penalty on Constitutional grounds had been denied by the U.S. Supreme Court, which upheld Oklahoma’s lethal injection protocol. The decision was a narrow one, but Justices Stephen G. Breyer and Ruth Bader Ginsburg managed in their dissent to import larger issues.
In the same manner, Mr. Palmer inflated his decision by importing into it extraneous detail. Mr. Palmer’s decision rested upon putative changes in “contemporary standards of decency,” a catch-all objection used by other courts to judicially repeal constitutionally passed laws justices feel are no longer necessary, a process that does indeed violate contemporary standards of judicial review. Mr. Palmer determined that “the death penalty is no longer consistent with standards of decency in Connecticut and does not serve any valid penological objective." In virtually every poll addressing the issue of justices who imperiously imagine themselves to be cultural psychologists and mini-legislators, the public has determined by wide margins that appellate courts should say what the law is and observe a necessary constitution modesty in rendering their decisions.
In a concurring opinion, Justices Flemming Norcott and Andrew J. McDonald, newly appointed to Connecticut’s Supreme Court by Governor Dannel Malloy, strayed even further from the proper matter under review by stressing allegations of racial and ethnic discrimination. Charges that Connecticut’s judicial system is rife with discrimination have been percolating in the appellate courts for decades; no decisive judgment on the issue has been rendered. Since the Connecticut Supreme Court decision striking down the death penalty rests entirely on Connecticut’s Constitution and not the U.S. Constitution, the highly attenuated decision of the court may not be appealed to the nation’s highest court.
Chief Justice Chase T. Rogers’ stinging dissent is, unlike Mr. Palmer’s initial non-appealable dictat, as thoughtful as it is devastating. "The majority's determination that the death penalty is unconstitutional under our state's constitution,” Ms. Rogers wrote, “is based on a house of cards, falling under the slightest breath of scrutiny… Every step” of the majority’s opinion, Ms. Rogers wrote, was “fundamentally flawed.”
While the majority opinion written by Justice Richard Palmer cannot be appealed to the U.S. Supreme Court, Chief State's Attorney Kevin T. Kane and Senior Assistant State's Attorney Harry Weller have requested that the case be “argued’ – please note, not “reargued” – before Connecticut’s Supreme Court, jocularly referred to by some irreverent legislators as the State Supreme Legislature.
The Chief State's Attorney has requested that the whole concurring opinion of Justices Flemming Norcott and Andrew J. McDonald should be stricken from the record, a motion characterized in one newspaper as “extraordinary.” However, extraordinary concurrences can only be ameliorated by extraordinary means. Justice McDonald should have recused himself from any deliberation concerning Connecticut’s death penalty. Mr. McDonald was one of two co-chairs of the state's Judiciary Committee -- the other was Mike Lawlor, now Mr. Malloy’s meddlesome Under Secretary for Criminal Justice Policy and Planning -- who were chiefly responsible for mounting opposition to the death penalty in the General Assembly. As such, Mr. McDonald is incapable of rendering a disinterested opinion on any matter touching the death penalty.
So then, we have a decision on the death penalty rendered by a partisan, highly politicized Connecticut Supreme Court that relies on a DISSENT issued in a U.S. Supreme Court decision that UPHELD the death penalty; the Connecticut Supreme Court’s faulty decision was roundly and properly denounced by Chief Justice Chase Rogers as a house of cards that would fall apart at the slightest touch; the chief argument wielded by Justice Palmer – that “community standards” require the court to abolish the death penalty – is preposterous nonsense, according to multiple juries that sentenced to death the eleven convicted murderers awaiting punishment on Death Row; one of the Justices assenting to the majority decision, Mr. McDonald, is inescapably and irretrievably prejudiced against the death penalty – and, just to round off this repeating loop of absurdities – the decision of the Court, resting entirely upon the state rather than the U.S. Constitution, cannot be appealed to the U.S. Supreme Court, where it would be quickly overthrown by thoughtful jurists more rigorous than Mr. Palmer.
This is how great Republics are ruined.
In Connecticut’s one party state, desperate republicans and democrats -- note the lower case designations -- rely on a disinterested court to call legislators to their constitutional obligations. But alas, the court, the last bastion of republican and democratic government, is in danger of becoming a mere appendage of one-party Democratic rule. Gone is judicial independence, a fierce guardian of our liberties under law; gone is the separation of powers upon which republican government precariously rests. And the result of the concentration of power and the dissolution of independent political bodies is, as Justice Rogers rightly warns us, “a house of cards” resting precariously on the whimsy of self-interested politicians.