Thursday, June 26, 2008

Supreme Court-ification - Part I

Yesterday, the U.S. Supreme Court issued its opinion in Kennedy v. Louisiana (No. 07-343; argued April 16, 2008), a Louisiana criminal case in which a convicted child rapist challenged the constitutionality of a Louisiana law which made the death penalty available in cases where a defendant is found guilty of raping a child under the age of 12.

The defendant's challenge was based on Coker v. Georgia, 433 U.S. 584 (1977), a Supreme Court case where the Court previously ruled that the prohibition of the 8th Amendment of the U.S. Constitution against "cruel and unusual punishment" prohibited the death penalty in cases involving rape only because "the punishment imposed is [a] grossly disproportionate and excessive punishment for the crime of rape." The Court relied upon its previous decision in Gregg v. Georgia, 428 U.S. 153 (1976), stating, "[T]he Eighth Amendment bars not only those punishments that are 'barbaric,' but also those that are 'excessive' in relation to the crime committed. ... [A] punishment is 'excessive' and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment, and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. A punishment might fail the test on either ground. Furthermore, these Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent." Coker, citing Gregg.

Hmmm. I don't know about you, but words like "disproportionate, "excessive," and "barbaric" are, by their very nature, subjective. How is a judge supposed to adjudicate such a case without being subjective, without using his own opinions? Further, what is 'disproportionate,' 'excessive' or 'barbaric' to one person is likely to be much less so to another person. What do the terms "measurable contribution" or "acceptable goal of punishment" mean? Isn't "punishment," by its very nature, supposed to be the "imposition of pain [or] suffering."? Let's be honest. The Supreme Court's "test" for conduct violative of the 8th Amendment is, in the end, no real "test," at least in the objective sense of the word.

More importantly, however, the Court's decision is is flawed in that it relies upon the status quo to define how the Bill of Rights is to be interpreted. Sounds okay. The problem is that the Bill of Rights was designed to serve as a protection of minority opinions against majority opinion - the Bill of Rights was designed to protect the rights of the minority from the status quo. This is not the only area where the Supreme Court relies on majority opinion to determine what the Bill of Rights will and will not protect. In Chaplinsky v. New Hampshire (315 U.S. 568) for instance, the Court held that "[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." In Griswold v. Connecticut (381 U.S. 489), the Court relied on a real or imagined sense of public morality to determine that a "right to privacy" exists in Constitution, even though no such a right is never explicitly or implicitly referred to in either the Constitution or the Bill of Rights.

In Kennedy v. Louisiana, the Supreme Court got it wrong for a couple of reasons. First, the Supreme Court's jurisprudence invovling the interpretation of the term "cruel and unusual punishment" is, by its very nature, subjective. Don't act like you are not being subjective when, in fact, your are. Although the Bill of Rights contains a number of terms that are, by their very nature, subjective, subjectivity is an area in which the legislative branch is much more competent to determine when a given punishment is "cruel" or "unusual." Second, the prohibition against "cruel and unusual punishment" comes from the 8th Amendment to the Bill of Rights. The Bill of Rights was intended to serve as a protection against public opinion. The Supreme Court should not be relying on public opinion in order to determine how to protect against public opinion.

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