Textual Betrayal - The Supreme Court legislates again - The Ornery American
Textual Betrayal - The Supreme Court legislates again
| By Mark Nicodemo |
May 27, 2005 |
A number of Supreme Court Justices are on a mission. For many years, conservatives
have objected to the Court's "legislation from the bench" in abandonment of its true judicial role
and with good reason. As two of its more recent decisions show, complaints by conservatives
continue to be vindicated. It is a Court which is less concerned with the text of the Constitution
or of statutes as it is with rectifying perceived injustices and creating whatever result it desires,
even if out of whole cloth.
In early March, in Romer v. Simmons, the Court was presented with the question of
whether the Eight Amendment permits the execution of a minor who commits murder. A closely
divided court led by Justice Anthony Kennedy affirmed the decision of the Missouri Supreme
Court in its refusal to apply the death penalty to Christopher Simmons.
The circumstances surrounding the Romer case are of tragedy and irony. Simmons, a 17-year-old junior in high school, had assured his friends that they could "get away with" a murder
because they were minors. Joined by an accomplice, Simmons broke into the home of Shirley
Crook, covered her eyes and mouth with duct tape, drove her to nearby river where she was then
tied with electrical wire, and threw the conscious woman over a bridge where she drowned.
Insofar as he is spared the death penalty, Simmons correctly predicted that he did "get away
with" the murder of an innocent woman.
The majority spent little time analyzing the Eight Amendment, which prohibits
"excessive bail… excessive fines, nor cruel and unusual punishments." Rather than focusing on
the Eight Amendment itself or the intent behind to its drafting, Justice Kennedy relies heavily on
malleable "evolving standards of decency" and the Courts own precedent.
Kennedy cites to Thompson v. Oklahoma, where a plurality decided that "our standards of
decency do not permit the execution of any offender under age 16," yet Thompson suffers from
the same flawed reasoning as Kennedy's in Romer. In Thompson, the Court noted that
prohibition of executions of minors is consistent with the views held by "other nations and
leading members of Western European community" as if the rulings of other nations with
decidedly different legal traditions should influence a fair reading of the Constitution. The U.S.
Constitution and even the Eight Amendment seem superfluous to the Court in its quest to win an
international popularity contest.
In support of his assertion that "national consensus" has evolved on whether to execute
minors, Kennedy notes that since 1989, only six states have executed juvenile murderers while in
the past 10 years, only three states have done so: Oklahoma, Texas and Virginia. Such statistics
are more likely to support the proposition that juries are careful in assigning the death penalty,
not that there is a consensus against the practice. Nor do the small numbers detract Kennedy
from his goal in deciding against the death penalty. Instead, he focuses on "the same consistency
of direction of change" implying that a consensus can be established even if the numbers do not
establish one.
In a typically stinging dissent, Justice Antonin Scalia, joined by Chief Justice Rehnquist
and Justice Thomas, took issue with Kennedy's "national consensus" argument noting that only
"18 states - or 47% of States that permit capital punishment - now have legislation prohibiting
the execution of offenders under 18…" He added that, "Words have no meaning if the views of
less than 50 percent of death penalty States can constitute a national consensus. Our previous
cases have required overwhelming opposition to a challenged practice, generally over a long
period of time." Indeed, in cases like Coker v. Georgia, where the court ruled that the Eight
Amendment prohibited the execution of a man who raped an adult woman, only one state
authorized such a punishment. Similarly, in Ford v. Wainwright, the Supreme Court ruled
against execution of the insane; at the time of the Ford ruling no states permitted such
punishment.
Scalia then attacks the flimsy evidence among psychologists regarding the maturity of
minors, observing that legislatures are "better qualified" to evaluate such studies rather than the
Court. Notably, the majority's conclusion regarding the maturity of minors stands in stark
contrast to the Court's abortion jurisprudence, which relied on American Psychological
Association's conclusion that juveniles are "mature enough to decide whether to obtain an
abortion without parental involvement."
He finally takes issue with the Supreme Court's scattered adherence to international
norms. For example, the majority relies on the U.N. Convention on the Rights of the Child -unratified by Somalia and the United States - which prohibits execution of juveniles. Yet the
majority ignores cases where our own laws differ markedly from those of other countries - the
right to jury trial and grand jury indictment are common examples. In contrast to England and
Canada, for example, which rarely exclude evidence obtained during an illegal search and
seizure, the Supreme Court announced the opposite rule in Mapp v. Ohio. Even in the realm of
religion, Scalia notes that other countries such as the "Netherlands, Germany and Australia, allow
direct government funding of religious schools" while in secular France "contracting for
educational services provided by Catholic schools is very widespread."
Weeks after Romer was decided, the court issued its decision in Jackson v. Birmingham
Board of Education, another case exhibiting the Court's faulty and halfhearted textual analysis.
A teacher and girl's basketball coach was fired after complaints to the Birmingham School Board
regarding the lack of equal funding and the condition of the girl's basketball program. An
equally divided court led by Justice Sandra Day O'Connor ruled that Jackson had a cause of
action to sue under Title IX alleging that his complaints led to retaliation against him.
Justice O'Connor reversed the rulings of the District Court and Court of Appeals, holding
that Title IX included a cause of action for retaliation. "Reporting incidents of discrimination is
integral to Title IX enforcement and would be discouraged if retaliation against those who report
went unpunished," O'Connor wrote. She then spends much of the remainder of her decision
citing a succession of Supreme Court cases that ruled in favor of private causes of action to
enforce prohibition against sexual discrimination. In an odd reading of Title IX, O'Connor
wrote, "retaliation against a person because that person has complained of sex discrimination is
another form of intentional sex discrimination." In effect, O'Connor broadens the scope of Title
IX including anyone closely related to such discrimination, even if a party like Jackson suffered
no sexual discrimination himself.
In another example of faulty reasoning, O'Connor cites Cannon v. University of Chicago,
a 1979 case where the Court held that Title IX implies a private right of action. In doing so,
O'Connor assumes that because Congress, at the time Title IX was enacted, was familiar with the
Supreme Court's precedent, it must have also intended to incorporate such precedent in the text
of Title IX. But this begs the question: why did not Congress simply do so, rather than leaving it
to the judiciary to fathom?
Justice Thomas, joined by Chief Justice Rehnquist, and Justices Scalia and Kennedy
dissented, criticizing the majority's faulty textual analysis. Thomas believed the holding was
"contrary to the plain terms of Title IX" and that the Court should "require that the statute itself
evince a plain intent to provide" a cause of action for retaliation. Indeed, Title IX makes no
mention of retaliation. Where the text referred to discrimination on the basis of sex, Thomas
noted that it referred to the plaintiff's sex, that is, Jackson, not that of a third party. Jackson did
not in fact claim that his sex was ever at issue, but rather complained on behalf of the girl's
basketball team. Ultimately, Thomas expressed concern that "the majority substitutes its own
policy judgments for the bargains struck by Congress."
Broad legal interpretations that stretch the plain meaning of statutes or take into account
international legal norms are yet another example of a Court that seeks to insert square pegs into
round holes. Whether misreading the plain meaning of text or grasping for extra-judicial theories,
the liberal wing of the Court continues to further the integration of U.S. law into international
law. Justice Ruth Bader Ginsburg made this heightened awareness clear in a speech to the
American Society of International Law: "What the United States does, for good or for ill,
continues to be watched by the international community, in particular by organizations concerned
with the advancement of the rule of law and respect for human dignity." Apparently, the U.S.
Constitution is not satisfactory in advancement of the rule of law and respect for human dignity.
With a Congress that seems unwilling to put judges on notice of their limited role, and a
public that does not yet grasp the magnitude of judicial fiat, expect the courts to continue
minimizing legislative acts from the people's elected representatives with legislation of its own.
Copyright © 2005 by Mark Nicodemo
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