Ann Althouse, Standing, in Fluffy Slippers 77 Va. L. Rev. 1177 (1991).
Abstract
THIS is an Essay about standing and death, about the abstraction and thinness of judicial opinion as compared to the complex context and dimension of a literary work. It looks at the United States Supreme Court Justices' embrace of jurisdictional orthodoxy as they blind themselves to the danger that states may execute their citizens in violation of constitutional law. It explores the credibility of the orthodoxy pose, set in a larger political context in which the Chief Justice of the Supreme Court himself vigorously advocates legislation designed to expedite the death penalty. It begins with an analysis of The Executioner's Song, a long and detailed account of the events leading up to the execution of Gary Gilmore, shot to death by the state according to his own choice, without any appellate court review of the constitutionality of his trial. It then considers the 1990 case of Whitmore v. Arkansas, in which the Gilmore question recurred, and a Court well-practiced at preserving its capacity to review decisions and to say what the law is rebuffed every argument designed to present the constitutional questions to the Supreme Court. This Essay critiques the Court's willful exclusion of emotion and real context from its decisions, its misguided characterization of this exclusion as heroic, and its deliberate and activist narrowing of standing to serve the publicly stated goal of freeing the states to kill with a minimum of constitutional scrutiny.
