Marbury Was A Piker

So what is the Court's job?  According to the Corner, when writing the other day about a ruling they didn't agree with:

• K-LO: Seems to me if the death penalty is constitutional, it's not a Supreme matter to draw such a line. - Because clearly, if Marbury v Madison taught us anything, it's that the Supreme Court's job is not to decide minute details about Constitutionality in any narrow sense about anything.

• Andy McCarthy: The Eighth Amendment talks about punishment that is cruel. First, punishment does not become cruel just because it's disproportionate. And second, are we really striving here for proportionality? If a crime is cruel — as it clearly was in this case — wouldn't a proportionate punishment also have to be cruel, and thus in violation of the Eighth Amendment?
  
  Wouldn't it be refreshingly honest if activist justices just bluntly us: "We don't like the death penalty and we can stop it because there are five of us." Sure, it would be tyrannical, but at least it would be accurate, and not nearly as nauseating as what passes for reasoning in these cases. - So we're upset that they use legal reasoning that contradicts your understanding of the word "proportionate" instead of just saying what you want?

• Mark Levin: Let me put this bluntly — every time the Supreme Court meets in secret conference, it sits as a constitutional convention, rewriting the Constitution at will. - Uh, no, they're interpreting what it means, which has been a Court function for a couple centuries.

• Jonah Goldberg: The death penalty used to be constitutional for barn-burning, horse stealing, fairly minor thefts etc. I completely agree that our evolving standards of decency make that seem like overkill, pardon the pun. - No, the death penalty wasn't constitutional for barn-burning any more than Jim Crow was Constitutional.  The Court hadn't had an opportunity to weigh in at that point.

• Ramesh Ponnuru: Justice Kennedy's opinion for the Court argues that there is a national consensus against executing child rapists, as evidenced by the fact that only six states have provisions for such executions. Justice Alito's dissent points out that one reason few states have such provisions is that in an earlier case, Coker, the Supreme Court had prohibited the imposition of the death penalty on the rapists of adult women—and called into doubt whether it would permit executions for anything other than murder. One act of activism thus provides a spurious legitimacy for another. - Funny how it's always "activism" when it's a "liberal" result instead of, you know, the Court doing its goddamned job.  And what horror that the Court relies on precedent.

Brilliant fucking legal minds at the Corner.  They should be nominated for the Supreme Court!  And a Nobel!

BTW, the only word on the Court's "activism" about today's gun ruling?  A note by K-Lo that 7 in 10 Americans agree with me on the 2nd Amendment's provision for individual rights.  No mention of the Court's overthrowing a duly-enacted law or anything, or that it left gun licensing intact.  Odd, that.

ntodd

[Update: Oh, Jonah's got this doozy, too: I think the death penalty is constitutional. The Supreme Court has no business saying otherwise.  Quick, get Scalia on the Batphone!]