Wednesday, March 02, 2005

Precedent? What Precedent???

Refer to SCOTUSblog for in-depth coverage on Roper v Simmons, the recent Supreme Court case where the Court ruled that the death penalty for juveniles is unconstitutional.

I find this case interesting not because of the decision itself but rather because of how this decision "defines" the term "national consensus" as a deciding factor in overturning a previous SC decision. The overturned decision in the Roper case was Stanford v Kentucky (1989). The Stanford decision had two major thrusts: that state statutes calling for the death penalty for people between the ages of 16 and 18 was not unlawful (subject to the legislation of the state) AND that the court should NOT rule directly on the question of juvenile capital punishment. The money lines from Justice Scalia's 16-year old opinion: "The punishment is either "cruel and unusual" (i.e., society has set its face against it) or it is not. The audience for these arguments, in other words, is not this Court, but the citizenry of the United States. It is they, not we, who must be persuaded. For, as we stated earlier, our job is to identify the "evolving standards of decency"; to determine, not what they should be, but what they are."

So 15-ish years ago, the Court makes a decision remotely based on the "national consensus" of that day but PRIMARILY based on the rights of a state to choose its own forms of punishment, then says that the SC should not directly weigh in on capital punishment for juveniles. Today, the Supreme Court rejects the idea that the legislatures are best suited to determine punishment limits from the earlier decision and decides that 4 states--that's less than 10 % of the union--changing their laws about capital punishment forms a "national consensus" sufficient enough to overturn a prior decision.

Hey, I'm all about the Supreme Court entertaining cases that are similar--or maybe even the exact same--as prior cases that they have ruled on--in fact, it warms my heart that the Supremes would be willing to correct a perceived wrong from their past. . .but their Roper decision sets the bar awful low for future use of the "national consensus" argument. When the Supremes site the change of heart of less than 10% of a measurable populace (in this case the state legislatures) as valid reason to invoke "national consensus" to scuttle a prior decision, they open the door on guaranteeing the obsolescence of ALL their decisions.

Of course, it doesn't quite work that way. Most of the SC's decisions that pre-empt legislation are done with such broad strokes that the "playing field" goes from somewhat balanced to entirely nonexistent. For example, take this Roper decision: by determining that all juvenile capital punishment statutes are unconstitutional, in one day the number of states with such enforceable statutes on the books went from 20 to zero. The same is true of the Roe v Wade decision: in one night, the number of states with statutes declaring abortion to be illegal in all but a few special cases went from some number (I don't know what that number is) to zero. Against this landscape, a surge of "national consensus" in the OPPOSITE direction of the Supreme's decision has almost no outlet to gain legal momentum--short of a dramatic shift in the make-up of the court, that is.

And again, I must reiterate the following: just 15 years ago a plurality of the Supremes felt that the issue of juvenile capital punishment was best left for the state legislatures. That this court would act so soon in the exact opposite direction and with tedious evidence of a SHIFT in the national consensus is bothersome, to say the least.

So back to "precedents": on top of the decision itself, I think there are 2 things established in this decision that will probably come up again at some point in time. First, there will not have to be a SIGNIFICANTLY measurable change in the "national consensus" in the future in order to use that alley as a way to overturn previous decisions. Again, when a less than 10% shift of an identifiable populace is enough to get this court to do a 180 on a prior decision, the "bar" is set so low as to be almost nonexistent. Secondly, and even more troublesome, is that State Supreme Courts now should feel free to challenge ALL precedents of prior SCOTUS decisions. The Missouri Supreme Court didn't even get admonished by the majority of the Supreme's judges for their total disregard of the Stanford precedent, a point written about with great clarity by Justice Scalia in his dissent. With this "challenge" precedent in place, I see virtually no end to the amount of legislation that will end up at the SCOTUS' feet. Kinda makes you wonder why we even pay our elected representatives. . .

Read Justice Scalia's dissent--and read all of it.

1 Comments:

Blogger Karl Maher said...

Hey, stop complaining and help me impeach Justice Kennedy.

10:40 AM  

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