it is difficult to pin down the position of Obama's first nominee for the Supreme Court, Sonia Sotomayor, on the issue of capital punishment. Of course, coming from New York State, where there has really been no effective death penalty for several decades, it is not strange that she would not have had a chance to express judicial views on the matter. Moreover, under the bizarre system of judicial appointments in the United States, a person who expresses views on issues like capital punishment and abortion can be pretty certain of ruling themselves out for appointment to higher courts. The New York Times recently published an article attempting to divine her position: http://www.nytimes.com/2009/06/25/us/politics/25death.html?emc=eta1.
My reading of the US Supreme Court is that there are four pretty certain votes for judicial abolition of capital punishment at some point in the near future, but I am including Judge Sotomayor. This is based on opinions of the justices in recent cases, notably Roper v. Simmonds of 2005, which ruled the juvenile death penalty to be unconstitutional. When I read that ruling, I am struck by how many of the arguments used by the majority work for the death penalty in general.
So there are two missing ingredients. A fifth judge. And a good test case. Obama will have to resolve the first part (assuming some cooperatio from the right-wingers on the Court, one of whom needs to move on to another career and leave a seat open for a new appointment). As for a good test case, there will be no shortage, I am sure. There are only about fifty countries left that have capital punishment, and of them the majority rarely use it. That the United States will abolish the death penalty, by Supreme Court judgment, within the next ten or fifteen years seems to me to be as likely as the melting of the glaciers in Greenland.
Thanks to Chris Ryan.