The 4th of July holiday was hot, but the morning paper contained a breath of fresh air. A column on our eroding freedoms was actually written by a real conservative! What a welcome development to find one, after these past decades of listening to the right-wing crap that passes for conservatism these days.
His name is Thomas J. Lucente, Jr., and here are some of his observations: 1) We are waging illegal wars around the globe and here at home; 2) The greatest threat to our national security today is not terrorism, Islamic extremism or some other nation. The greatest security threat is our national debt; 3) The Congress, in cahoots with the Supreme Court, have destroyed the idea of federalism and states' rights by reinterpreting the Constitution in such a fashion that gives the federal government unlimited power; 4) Perhaps more than any other sign of the decay of American liberty is the fact that the United States imprisons a larger percentage of its population than any other country in the world. Nearly 1 percent of the American population is in a prison or jail; 5) Beyond that, the government has imprisoned hundreds, possibly thousands, of people here and abroad without criminal charges being filed. You can find these prisoners in immigration jails and our concentration camp in Cuba.
Wednesday, July 7, 2010
Monday, June 28, 2010
Diversity on the Supreme Court
Much cosmetic diversity on the Supreme Court has been created starting in the '60's with the first Black being appointed by LBJ, and then continuing with the women starting in the '80's. But where has this left us? If Kagan is confirmed, the Court will have 3 Jews and 6 Catholics, surely the most non-diverse Court in history! Also, they will all be heterosexual, another slap in the face at true diversity.
The real issue is whether any of this really matters. If you endorse the idea that the Supreme Court should make social policy, then of course it does matter. But if you believe that the Court should be interpreting the law and not making policy, then it doesn't matter.
The real issue is whether any of this really matters. If you endorse the idea that the Supreme Court should make social policy, then of course it does matter. But if you believe that the Court should be interpreting the law and not making policy, then it doesn't matter.
Saturday, June 26, 2010
The Constitution Triumphs Again
Faithful readers will know of my view that the U.S. is disintegrating much faster than most people realize. However, this reality in no way diminishes my deep respect for the Constitution, which seems to always come out the winner every time there is a crisis.
It triumphed again this week when President Obama did the only thing he could, and relieved General McChrystal of command in Afghanistan. This is a tribute to the wisdom of the Founders who provided for civilian control of the military. One need only look around the world at all the countries in which civilian control is not able to be exercised, and see the problems. How many of the 195 countries in this world have experienced military coups? My guess is a lot, but a survey of this magnitude is beyond my energy level at this time.
Anyway, here's to our Founders, whose wisdom has again been demonstrated.
It triumphed again this week when President Obama did the only thing he could, and relieved General McChrystal of command in Afghanistan. This is a tribute to the wisdom of the Founders who provided for civilian control of the military. One need only look around the world at all the countries in which civilian control is not able to be exercised, and see the problems. How many of the 195 countries in this world have experienced military coups? My guess is a lot, but a survey of this magnitude is beyond my energy level at this time.
Anyway, here's to our Founders, whose wisdom has again been demonstrated.
Wednesday, June 16, 2010
On Limiting Miranda
I see some liberals bemoaning the Supreme Court's decision in Berghius v. Thompkins, in that it cuts back on a suspect's Miranda protections. I think this concern is misplaced.
First, as a longtime liberal I have generally supported the trend started in the '60's. However, after a careful review of the major decisions this year, I now understand what conservatives are referring to when they complain about the Court making social policy, "legislating from the bench" as its often called. It is clear to me that this is what the Court often does, at least used to often do.
Take the Court's recent decision in the Florida case involving a life without parole sentence for a juvenile. The dissent by Thomas clearly identifies that the Court is here making social policy, not rendering a legal decision. After all, when 31 jurisdictions have such a law, it can hardly be said to be "unusual". And how can life without parole be considered "cruel", when we routinely do it for adults. If it is indeed cruel, then it should not be done for either adults or children. Consequently, simple logic dictates that one cnanot with integrity conclude it is "cruel and unusual" as a matter of law. Thonas wins this arugment hands down.
Turning then to Miranda, it is clear the Court was making social policy here also. In his book "Guilty: The Collapse of Criminal Justice", Judge Harold J. Rothwax examines the cases involving police coercion of confessions which led up to the Miranda decision. Clearly we don't want confessions being forced, but Rothwax says that this decision throws the baby out with the bath water. He argues that Miranda was wrongly decided and should be overruled.
Given the shaky background of the decision itself, it is hardly surprisingly that any subsequent decisions would limit it rather than expand it. Indeed, it is hard to imagine how it could ever be expanded. The burden it placed on the police to affirmatively show a waiver of rights by the defendant was a huge one, and what the Thompkins decision does is merely to cut back on that unhealthy burden.
The genera rule is that rights must be affirmatively asserted to be invoked, they are not invoked automatically. The Thompkins decision merely restores this principle to the category of admissions. If being advised of one's rights is so damned important, why are the police not required to do so in the case of searches? The vast majority of police searches are conducted under the guise of "consent". But people do not have to be advised that they have the right not to consent, and many surely feel they have no choice when the cops show up and ask if they can search the place, or simply *say* they are going to search the place.
The other side of this issue is the "right to a lawyer". Here, too, Rothwax feels the law has gone way overobard. He points out that the Sixth Amendment gives the right to a lawyer "in all criminal prosecutions". Thus, the right kicks in once a case is filed against the defendant. Until then, the case is in the investigative phase and is in the hands of the police. When it is turned over to the DA, then the legal process starts.
This, too, maks eminently good sense. What role is there for a lawyer before there is any prosecution? All he can do is tell the defendant not to talk to the police. In a small number of cases it might be possible to arrange to avoid prosecution, if the client wants to go to work for the police as a snitch.
It is in this general area that the show "Law and Order" screws things up so badly, giving people wrong ideas of the lawyer's role. The show routinely has the prosecutors getting involved in the investigation, going out and interviewing witnesses and rounding up evidence, not as preparation for trial, but as part of the investigation. Similalry, defense attonreys constantly are magically appearing in an interview room while police investigative work is going on. The idea that defense attorneys have the run of a police station like this is something happening only on TV shows.
Conversely, once the case is filed the worst procedural errors occur, these being the meetings which always take place between the prosecutors and the defendant on "Law and Order". Yes, the defendant's attorney is present, but in real life this sort of meeting would never happen. If the prosecutors had in inquiry to make of the defendant in real life, they would go through the defense attorney, who would consult with the client and come back with an answer for the DA. But on the show, prosecutors are allowed to badger and berate the defendants, and even surprise them with witnesses or family members at these meetings, anything designed to bludgeon the defendant into confessing. No defense attorney would ever allow this sort of thing to go on.
I say let's go back to where everybody has a particular job to do, and the rest of us stay out of their way and let them do it. Let's let the police do their investigative job, and everybody else stay out of their way. Let's let defense attorneys do their job, once a case is filed, and everybody stay out of their way. Let's let Judges go back to their job of deciding if a confession is voluntarily made, based on the totality of the circumstances in a given case. Let's let the Supreme Court go back to making legal decisions, not making policy. And let's let legislators go back to writing laws, which after all is what we elect them to do.
First, as a longtime liberal I have generally supported the trend started in the '60's. However, after a careful review of the major decisions this year, I now understand what conservatives are referring to when they complain about the Court making social policy, "legislating from the bench" as its often called. It is clear to me that this is what the Court often does, at least used to often do.
Take the Court's recent decision in the Florida case involving a life without parole sentence for a juvenile. The dissent by Thomas clearly identifies that the Court is here making social policy, not rendering a legal decision. After all, when 31 jurisdictions have such a law, it can hardly be said to be "unusual". And how can life without parole be considered "cruel", when we routinely do it for adults. If it is indeed cruel, then it should not be done for either adults or children. Consequently, simple logic dictates that one cnanot with integrity conclude it is "cruel and unusual" as a matter of law. Thonas wins this arugment hands down.
Turning then to Miranda, it is clear the Court was making social policy here also. In his book "Guilty: The Collapse of Criminal Justice", Judge Harold J. Rothwax examines the cases involving police coercion of confessions which led up to the Miranda decision. Clearly we don't want confessions being forced, but Rothwax says that this decision throws the baby out with the bath water. He argues that Miranda was wrongly decided and should be overruled.
Given the shaky background of the decision itself, it is hardly surprisingly that any subsequent decisions would limit it rather than expand it. Indeed, it is hard to imagine how it could ever be expanded. The burden it placed on the police to affirmatively show a waiver of rights by the defendant was a huge one, and what the Thompkins decision does is merely to cut back on that unhealthy burden.
The genera rule is that rights must be affirmatively asserted to be invoked, they are not invoked automatically. The Thompkins decision merely restores this principle to the category of admissions. If being advised of one's rights is so damned important, why are the police not required to do so in the case of searches? The vast majority of police searches are conducted under the guise of "consent". But people do not have to be advised that they have the right not to consent, and many surely feel they have no choice when the cops show up and ask if they can search the place, or simply *say* they are going to search the place.
The other side of this issue is the "right to a lawyer". Here, too, Rothwax feels the law has gone way overobard. He points out that the Sixth Amendment gives the right to a lawyer "in all criminal prosecutions". Thus, the right kicks in once a case is filed against the defendant. Until then, the case is in the investigative phase and is in the hands of the police. When it is turned over to the DA, then the legal process starts.
This, too, maks eminently good sense. What role is there for a lawyer before there is any prosecution? All he can do is tell the defendant not to talk to the police. In a small number of cases it might be possible to arrange to avoid prosecution, if the client wants to go to work for the police as a snitch.
It is in this general area that the show "Law and Order" screws things up so badly, giving people wrong ideas of the lawyer's role. The show routinely has the prosecutors getting involved in the investigation, going out and interviewing witnesses and rounding up evidence, not as preparation for trial, but as part of the investigation. Similalry, defense attonreys constantly are magically appearing in an interview room while police investigative work is going on. The idea that defense attorneys have the run of a police station like this is something happening only on TV shows.
Conversely, once the case is filed the worst procedural errors occur, these being the meetings which always take place between the prosecutors and the defendant on "Law and Order". Yes, the defendant's attorney is present, but in real life this sort of meeting would never happen. If the prosecutors had in inquiry to make of the defendant in real life, they would go through the defense attorney, who would consult with the client and come back with an answer for the DA. But on the show, prosecutors are allowed to badger and berate the defendants, and even surprise them with witnesses or family members at these meetings, anything designed to bludgeon the defendant into confessing. No defense attorney would ever allow this sort of thing to go on.
I say let's go back to where everybody has a particular job to do, and the rest of us stay out of their way and let them do it. Let's let the police do their investigative job, and everybody else stay out of their way. Let's let defense attorneys do their job, once a case is filed, and everybody stay out of their way. Let's let Judges go back to their job of deciding if a confession is voluntarily made, based on the totality of the circumstances in a given case. Let's let the Supreme Court go back to making legal decisions, not making policy. And let's let legislators go back to writing laws, which after all is what we elect them to do.
Thursday, June 3, 2010
Letter to Mennonite Weekly Review
I appreciated the May 10th column by Elaine Sommers Rich on the rise and fall of civilizations. She is of course correct in her observation that all civilizations rise and fall, and keeping this in mind is helpful for those of us who are given to despair at the direction our country seems to be going.
What is perhaps shocking is how fast the U.S. is disintegrating. The signs are everywhere. In the last ten years we have dropped from producing 32% of the world's gross domestic product, down to 24%. Over one-fourth of our manufacturing jobs have disappeared during this ten-year period. Our national debt is now more than fifteen times what it was in 1980, and is increasing at an unsustainable pace.
Our childhood obesity epidemic shows no signs of abating. With our fitness and our productivity spiraling downhill, the end is far closer than any of us would care to acknowledge.
Of some comfort is the thought that centuries from now the U.S. will at least be remembered for three lasting contributions to the world's culture--baseball, jazz music, and the Constitution.
What is perhaps shocking is how fast the U.S. is disintegrating. The signs are everywhere. In the last ten years we have dropped from producing 32% of the world's gross domestic product, down to 24%. Over one-fourth of our manufacturing jobs have disappeared during this ten-year period. Our national debt is now more than fifteen times what it was in 1980, and is increasing at an unsustainable pace.
Our childhood obesity epidemic shows no signs of abating. With our fitness and our productivity spiraling downhill, the end is far closer than any of us would care to acknowledge.
Of some comfort is the thought that centuries from now the U.S. will at least be remembered for three lasting contributions to the world's culture--baseball, jazz music, and the Constitution.
Wednesday, June 2, 2010
Citizenship and the 14th Amendment
There have been some calls to change the 14th Amendment provision that any child born in the U.S. is automatically a citizen. Frankly, this provision has always seemed odd to me, that a child whose mother crosses the border to give birth should be a citizen just for being born north of the Rio Grande, even if the mother is here illegally.
Upon looking into this, it is apparent that the 14th Amendment provision in question was designed to overturn the Dred Scott decision and give citizenship to former slaves, and to children of former slaves. There has never (apparently) been any judicial opinion extending this to the children of those here illegally, although this extension has been assumed.
I think liberals would be wise to not toss this proposed amendment into the scrap heap with all the other looney proposals the right wing has come up with over the years, like the balanced budget amendment, outlawing abortion, etc. This one actually makes sense, and would correct what is obviously an unintended flaw in our Constitution.
Upon looking into this, it is apparent that the 14th Amendment provision in question was designed to overturn the Dred Scott decision and give citizenship to former slaves, and to children of former slaves. There has never (apparently) been any judicial opinion extending this to the children of those here illegally, although this extension has been assumed.
I think liberals would be wise to not toss this proposed amendment into the scrap heap with all the other looney proposals the right wing has come up with over the years, like the balanced budget amendment, outlawing abortion, etc. This one actually makes sense, and would correct what is obviously an unintended flaw in our Constitution.
Thursday, May 20, 2010
Grading Justices from a Conservative Viewpoint
Conservatives complain of judges who are "activist", and say they want "strict constructionists" on the court, justices who are willing to interpret the constitution as written. Consequently, I thought it would be interesting to examine the four major Supreme Court decisions so far in 2010 and see who the activists and the strict constructionists have been this year.
The first case was the campaign finance case, striking down Congress' ban on political advertising by corporations. The activists here were the conservatives; in fact, Justice Stevens in dissent specifically accused the majority of "political activism".
The second case was the cross on public land in California. The breakdown here was quite interesting. Scalia and Thomas felt the plaintiff had no standing to pursue the lawsuit, since he was not alleging any personal harm to himself. This would be the non-activist approach. The four liberals would have let the lower court order stand, requiring the removal of the cross. The middle opinion, which was the controlling one, was by Justice Kennedy, saying the case should be sent back to the lower court for a determination as to whether the proposed land transfer to private hands looked like a government endorsement of religion. Alito issued a concurring opinion stating his belief that the factual record was sufficiently developed that the court should have simply ruled the land transfer could proceed.
The there is the sex offender opinion just announced. Again, we have Scalia and Thomas with the strict constructionist position, holding that nothing in the Constitution gives the federal government the authority to run the sex offender civil commitment program it had instituted. Justice Breyer's majority opinion found the authority in the "necessary and proper" clause. Alito and Kennedy concurred in the result but did not like the sweeping language Breyer used.
Another just-announced decision is the fourth in a decade-long series of decisions on the cruel and unusual punishment clause. It found that life without possibility of parole for juveniles who have not committed murder is cruel and unusual. As is so often the case, Justice Kennedy was the swing vote and wrote the majority opinion in this 5-4 decision. He found it was cruel and unusual, with the four conservatives in the minority (although Roberts concurred in the result).
In grading the Justices on their activist element, a definition is in order. I think the definition conservatives use when they complain about it is that the will of the people is thwarted, i.e., valid laws passed by Congress or by a state legislature are not upheld. Being a strict constructionist is a different matter, as one often must strike down a law if one were seeking to uphold the Constitution.
Because the cases had as many as four different positions to be graded, I will give 0 for least activist, up to 3 for most activist. Breakdown is:
Thomas and Scalia -- 3, 0, 3, 0 = 6
4 liberals -- 0, 3, 1, 3 = 7
Kennedy -- 3, 2, 0, 3 = 8
Alito -- 3, 1, 0, 0 = 4
Roberts -- 3, 2, 1 , 2 = 8
The other criterion is the one of "strict constructionist". This is a term used more often in President Nixon's time than today, but we still see it around. After the activism of the Warren Court years, Nixon was adamant that the court contain more of what he called "strict constructionists", people who will interpret the constitution as written without reading into it things that aren't there. The grade card here, with 0 for strictest and 3 for least strict:
Thomas & Scalia -- 0, 0, 0, 0 = 0
4 liberals -- 3, 3, 3, 3 = 12
Kennedy -- 0, 2, 2, 3 = 7
Alito -- 0, 1, 2, 0 = 3
Roberts -- 0, 2, 3, 2 = 7
It is clear that the "strict constructionist" scorecard more accurately portrays what the conservatives are after than does the "activist" standard. The conservatives would achieve more authenticity for their viewpoint if they would avoid using the "activist" language, since conservatives are "activist" as often as liberals, and stick to the "strict constructionist" standard.
The contrast here between Thomas/Scalia and the liberals is striking. In every case they were at opposite ends of the strict constructionist ranking. Kennedy is a well-known middle-of-the-roader, so his middle ranking is not surprising. Roberts' middle ranking is perhaps more surprising. The 7-point difference between Roberts and Thomas/Scalia comes about from the last three cases. In the cross case, T/S held the plaintiff had no standing, which I rate as the strict constructionist position. The majority opinion found that the standing issue had already been settled earlier in the litigation, and the ruling granting standing was upheld on appeal and not appealed further to the Supreme Court, so it had become final. This might at first glance seem to cast the T/S position into disrepute, but one must remember that most of the argument in the briefs and at oral argument centered on the standing issue, so it's not like T/S was making this up. Apparently everyone else involved in the case thought it was a significant issue, and I tend to agree with the T/S position because the plaintiff testified that he was not personally offended by the Christian cross, he just didn't like seeing it on federal land. Hence no personal harm to him.
Roberts gets a 2 here because he joined in the majority opinion, which would have sent back the case for further action, thereby prolonging the agony for all concerned. Alito gets a 1, because he would have decided the case then and there on the record, which is the least interventionist position after T/S.
One can argue that the liberals here qualify as "strict constructionist", because they were strictly applying the prohibition against government "establishment of religion". However, their position was so beyond the pale that I rate it as a stretch of the constitution, not an application of it. This cross had been there since 1934 as a memorial to WWI war dead, not as a statement about religion. It was in a remote area of the Mojave Desert, out of the way and surely not a bother to anybody. Further, the land swap with the VFW took care of the matter of it being on public land. The liberals just had their heads up their asses on this one.
Another divergence among the conservatives was in the sex offender case. Here Roberts gets a 3 for joining in Breyer's majority opinion, which used sweeping language to seemingly give the OK for Congress to do anything it wants under the "necessary and proper" clause. Alito gets only a 2 because he rejected this sweeping language.
In the cruel and unusual case Roberts rejected the sweeping rule announced by the majority, but he concurred in the result because he felt the sentence was disproportionate to the crime in this particular case. Hence he gets a 2 here.
The issue mentioned above of "stretching" came clearly into focus in the cruel and unusual case. Thomas wrote a stinging dissent attacking the Court's role in determining what society's "evolving standards of decency" are. Thomas repeatedly drives home the point that when the federal government, the District of Columbia, and 37 states have such a law on the books, how in the world can it be said to be against society's current standards? Hard to argue with that logic.
Stevens wrote a concurring opinion for the sole purpose of getting into a pissing contest with Thomas. He writes: "Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time....While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so."
This sets the stage for an honest evaluation of the strict constructionist approach. Certainly if I were a legislator, I would never support a law which precluded a juvenile offender from ever being granted parole, whether the offense was murder or otherwise. To do so would ignore the basic realities that first, a juvenile is different than an adult; and second, that there is the possibility of rehabilitation. The life expectancy for a 17-year-old in this day and age is into the 80's; to say that a juvenile offender at the age of 70, or 60, or 50, can never be considered to be fit for return to society is ludicrous.
But the constitutional issue is different, and this is what Thomas and the strict constructionists can rightly harp on. Stevens is right to say that our standards do evolve over time, but Thomas is also right in saying that the fact that 37 states, PLUS the federal govt., PLUS the D.C. have seen fit to enact such a law shows that the standards have *not* evolved to the extent that the majority feels they have.
The approach used by the majority is more suited for a law that a renegade state, say Arizona, has enacted and which has been rejected by all other jurisdictions. Then it can be said with a modicum of intellectual honesty that the law under review is contrary to existing standards of decency.
The first case was the campaign finance case, striking down Congress' ban on political advertising by corporations. The activists here were the conservatives; in fact, Justice Stevens in dissent specifically accused the majority of "political activism".
The second case was the cross on public land in California. The breakdown here was quite interesting. Scalia and Thomas felt the plaintiff had no standing to pursue the lawsuit, since he was not alleging any personal harm to himself. This would be the non-activist approach. The four liberals would have let the lower court order stand, requiring the removal of the cross. The middle opinion, which was the controlling one, was by Justice Kennedy, saying the case should be sent back to the lower court for a determination as to whether the proposed land transfer to private hands looked like a government endorsement of religion. Alito issued a concurring opinion stating his belief that the factual record was sufficiently developed that the court should have simply ruled the land transfer could proceed.
The there is the sex offender opinion just announced. Again, we have Scalia and Thomas with the strict constructionist position, holding that nothing in the Constitution gives the federal government the authority to run the sex offender civil commitment program it had instituted. Justice Breyer's majority opinion found the authority in the "necessary and proper" clause. Alito and Kennedy concurred in the result but did not like the sweeping language Breyer used.
Another just-announced decision is the fourth in a decade-long series of decisions on the cruel and unusual punishment clause. It found that life without possibility of parole for juveniles who have not committed murder is cruel and unusual. As is so often the case, Justice Kennedy was the swing vote and wrote the majority opinion in this 5-4 decision. He found it was cruel and unusual, with the four conservatives in the minority (although Roberts concurred in the result).
In grading the Justices on their activist element, a definition is in order. I think the definition conservatives use when they complain about it is that the will of the people is thwarted, i.e., valid laws passed by Congress or by a state legislature are not upheld. Being a strict constructionist is a different matter, as one often must strike down a law if one were seeking to uphold the Constitution.
Because the cases had as many as four different positions to be graded, I will give 0 for least activist, up to 3 for most activist. Breakdown is:
Thomas and Scalia -- 3, 0, 3, 0 = 6
4 liberals -- 0, 3, 1, 3 = 7
Kennedy -- 3, 2, 0, 3 = 8
Alito -- 3, 1, 0, 0 = 4
Roberts -- 3, 2, 1 , 2 = 8
The other criterion is the one of "strict constructionist". This is a term used more often in President Nixon's time than today, but we still see it around. After the activism of the Warren Court years, Nixon was adamant that the court contain more of what he called "strict constructionists", people who will interpret the constitution as written without reading into it things that aren't there. The grade card here, with 0 for strictest and 3 for least strict:
Thomas & Scalia -- 0, 0, 0, 0 = 0
4 liberals -- 3, 3, 3, 3 = 12
Kennedy -- 0, 2, 2, 3 = 7
Alito -- 0, 1, 2, 0 = 3
Roberts -- 0, 2, 3, 2 = 7
It is clear that the "strict constructionist" scorecard more accurately portrays what the conservatives are after than does the "activist" standard. The conservatives would achieve more authenticity for their viewpoint if they would avoid using the "activist" language, since conservatives are "activist" as often as liberals, and stick to the "strict constructionist" standard.
The contrast here between Thomas/Scalia and the liberals is striking. In every case they were at opposite ends of the strict constructionist ranking. Kennedy is a well-known middle-of-the-roader, so his middle ranking is not surprising. Roberts' middle ranking is perhaps more surprising. The 7-point difference between Roberts and Thomas/Scalia comes about from the last three cases. In the cross case, T/S held the plaintiff had no standing, which I rate as the strict constructionist position. The majority opinion found that the standing issue had already been settled earlier in the litigation, and the ruling granting standing was upheld on appeal and not appealed further to the Supreme Court, so it had become final. This might at first glance seem to cast the T/S position into disrepute, but one must remember that most of the argument in the briefs and at oral argument centered on the standing issue, so it's not like T/S was making this up. Apparently everyone else involved in the case thought it was a significant issue, and I tend to agree with the T/S position because the plaintiff testified that he was not personally offended by the Christian cross, he just didn't like seeing it on federal land. Hence no personal harm to him.
Roberts gets a 2 here because he joined in the majority opinion, which would have sent back the case for further action, thereby prolonging the agony for all concerned. Alito gets a 1, because he would have decided the case then and there on the record, which is the least interventionist position after T/S.
One can argue that the liberals here qualify as "strict constructionist", because they were strictly applying the prohibition against government "establishment of religion". However, their position was so beyond the pale that I rate it as a stretch of the constitution, not an application of it. This cross had been there since 1934 as a memorial to WWI war dead, not as a statement about religion. It was in a remote area of the Mojave Desert, out of the way and surely not a bother to anybody. Further, the land swap with the VFW took care of the matter of it being on public land. The liberals just had their heads up their asses on this one.
Another divergence among the conservatives was in the sex offender case. Here Roberts gets a 3 for joining in Breyer's majority opinion, which used sweeping language to seemingly give the OK for Congress to do anything it wants under the "necessary and proper" clause. Alito gets only a 2 because he rejected this sweeping language.
In the cruel and unusual case Roberts rejected the sweeping rule announced by the majority, but he concurred in the result because he felt the sentence was disproportionate to the crime in this particular case. Hence he gets a 2 here.
The issue mentioned above of "stretching" came clearly into focus in the cruel and unusual case. Thomas wrote a stinging dissent attacking the Court's role in determining what society's "evolving standards of decency" are. Thomas repeatedly drives home the point that when the federal government, the District of Columbia, and 37 states have such a law on the books, how in the world can it be said to be against society's current standards? Hard to argue with that logic.
Stevens wrote a concurring opinion for the sole purpose of getting into a pissing contest with Thomas. He writes: "Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time....While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so."
This sets the stage for an honest evaluation of the strict constructionist approach. Certainly if I were a legislator, I would never support a law which precluded a juvenile offender from ever being granted parole, whether the offense was murder or otherwise. To do so would ignore the basic realities that first, a juvenile is different than an adult; and second, that there is the possibility of rehabilitation. The life expectancy for a 17-year-old in this day and age is into the 80's; to say that a juvenile offender at the age of 70, or 60, or 50, can never be considered to be fit for return to society is ludicrous.
But the constitutional issue is different, and this is what Thomas and the strict constructionists can rightly harp on. Stevens is right to say that our standards do evolve over time, but Thomas is also right in saying that the fact that 37 states, PLUS the federal govt., PLUS the D.C. have seen fit to enact such a law shows that the standards have *not* evolved to the extent that the majority feels they have.
The approach used by the majority is more suited for a law that a renegade state, say Arizona, has enacted and which has been rejected by all other jurisdictions. Then it can be said with a modicum of intellectual honesty that the law under review is contrary to existing standards of decency.
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