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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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