Legal News

Law Blog Lawyer of the Day: Stanford Law?s Jeffrey Fisher

By Dan Slater

This morning, Stanford law prof Jeff Fisher awoke to pretty exciting news — opinions from from two Supreme Court cases he argued roll in. Fisher (Duke, Michigan Law) lost Exxon v. Baker, the punitive damages case, but scored a victory in Kennedy v. Louisiana, the child rape case.

Artist rendering of Jeffrey Fisher speaking before the Supreme Court, Feb. 27, 2008, in the Exxon Valdez case. (Credit: Associated Press/Dana Verkouteren)

Fisher — a former Justice Stevens clerk who in 2004 was on the winning side of Blakely v. Washington, the landmark Sixth Amendment case — represented Patrick Kennedy, whom Louisiana lawmakers wanted executed for raping his 8 year-old stepdaughter. Today, Justice Kennedy, writing for a five-justice majority, ruled categorically that the death penalty is forbidden for crimes against individuals that do not result in death. The decision nullified the Louisiana law that provided capital punishment for raping a child under age 12.

Back in April, we blogged about the arguments in Kennedy, focusing on a contentious exchange that Fisher, who co-chairs Davis Wright & Tremaine’s appellate litigation department, had with Justice Scalia. Fisher, addressing the controversial ‘evolving standards of decency’ standard used by the majority, argued that if you look at a pair of recent cases that banned capital punishment for mentally retarded offenders (in 2002) and juvenile offenders (in 2005), it’s clear the social consensus is trending away from the death penalty.

When Chief Justice Roberts contradicted him, pointing out that, in fact, states are increasingly passing statutes imposing the death penalty in non-homicide cases — and that that’s the trend that matters — Justice Scalia reportedly chuckled. “Did you ever hear the expression ‘hoist by your own petard?’” he asked Fisher. “The trend here is clearly in the direction of permitting more and more . . . capital punishment for this crime!”

But today, Fisher’s view of where we stand in the evolution of the country’s so-called evolving standards of decency won out. Here’s the money passage from Justice Kennedy’s conclusion:

Our determination that there is a consensus against the death penalty for child rape raises the question whether the Court’s own institutional position and its holding will have the effect of blocking further or later consensus in favor of the penalty from developing. . .The Court, according to the criticism, itself becomes enmeshed in the process, part judge and part the maker of that which it judges.

These concerns overlook the meaning and full substance of the established proposition that the Eighth Amendment is defined by “the evolving standards of decency that mark the progress of a maturing society.” . . .In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim.

Full post as published by Law Blog - WSJ.com on June 25, 2008 (boomark / email).