Posts Tagged ‘Supreme Court’
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men [sic].
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms….
We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal.
The Supreme Court, according to many, seems poised to strike down Section 5 of the Voting Rights Act, which would make it far easier for states and localities to engage in all manner of disenfranchisement knowing full well that it will take forever for a federal court to rule against them via the normal litigation process. Creativity in such things is not a rare quality.
This should have been settled a long time ago. As Justice Frankfurter said:
The reach of the Fifteenth Amendment against contrivances by a state to thwart equality in the enjoyment of the right to vote by citizens of the United States regardless of race or color, has been amply expounded by prior decisions. Guinn v. United States, 238 U.S. 347 , 35 S.Ct. 926, L.R.A.1916A, 1124; Myers v. Anderson, 238 U.S. 368 , 35 S.Ct. 932. The Amendment nullifies sophisticated as well as simple-minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race.
Petitioner Benny Lee Hodge was convicted of murder. Then, after his trial counsel failed to present any mitigation evidence during the penalty phase of his trial, he was sentenced to death. In fact, counsel had not even investigated any possible grounds for mitigation. If counsel had made any effort, he would have found that Hodge, as a child, suffered what the Kentucky Supreme Court called a “most severe and unimaginable level of physical and mental abuse.” No. 2009–SC–000791–MR (Aug. 25, 2011), App. to Pet for Cert. 11. The Commonwealth conceded that counsel’s performance was constitutionally deficient as a result. Yet the court below concluded that Hodge would have been sentenced to death anyway because even if this evidence had been presented, it would not have “explained” his actions, and thus the jury would have arrived at the same result. Ibid. This was error. Mitigation evidence need not, and rarely could, “explai[n]” a heinous crime; rather, mitigation evidence allows a jury to make a reasoned moral decision whether the individual defendant deserves to be executed, or to be shown mercy instead. The Kentucky Supreme Court’s error of law could well have led to an error in result. I would grant the petition for certiorari, summarily vacate, and remand to allow the Kentucky Supreme Court to reconsider its decision under the proper standard.
Just so we’re clear, Hodge failed to get his constitutionally required level of performance from his lawyer, effectively denying him his right to counsel and due process. And the Court will leave this stand. This passage shows the catch-22 of the death penalty. The Court has insisted that due process doesn’t require getting a correct result, it requires following the correct procedures. This is why actual innocence is not a federal claim. But when, like here, basic fairness has been denied, whether because of incompetent state appointed defense lawyers, or cheating by police or prosecutors, the Court shifts. No longer is following the correct procedures what is required. Instead, there is an independent inquiry where judges decide what the jury would have done if they had known what they should have known. This not only undermines the right to a jury trial, but it directly contradicts the reasoning for not allowing innocence claims.
Sotomayor is correct, in my mind, that the Court erred in failing to overturn the ruling below. Mitigation is not about explaining the crime. This is basic stuff. But it’s important to understand what was kept from the jury’s view. Like practically all death penalty defendants, Hodge was himself a victim of horrific abuse. Here the justice recounts the evidence. Read on if you can stomach it.
The beatings began in utero. Hodge’s father battered his mother while she carried Hodge in her womb, and continued to beat her once Hodge was born, even while she held the infant in her arms. When Hodge was a few years older, he escaped his mother’s next husband, a drunkard, by staying with his stepfather’s parents, bootleggers who ran a brothel. His mother next married Billy Joe. Family members described Billy Joe as a “‘monster.’” Id., at 7. Billy Joe controlled what little money the family had, leaving them to live in abject poverty. He beat Hodge’s mother relentlessly, once so severely that she had a miscarriage. He raped her regularly. And he threatened to kill her while pointing a gun at her. All of this abuse occurred while Hodge and his sisters could see or hear. And following many beatings, Hodge and his sisters thought their mother was dead.
Billy Joe also targeted Hodge’s sisters, molesting at least one of them. But according to neighbors and family members, as the only male in the house, Hodge bore the brunt of Billy Joe’s anger, especially when he tried to defend his mother and sisters from attack. Billy Joe often beat Hodge with a belt, sometimes leaving imprints from his belt buckle on Hodge’s body. Hodge was kicked, thrown against walls, and punched. Billy Joe once made Hodge watch while he brutally killed Hodge’s dog. On another occasion, Billy Joe rubbed Hodge’s nose in his own feces.
The abuse took its toll on Hodge. He had been an average student in school, but he began to change when Billy Joe entered his life. He started stealing around age 12, and wound up in juvenile detention for his crimes. There, Hodge was beaten routinely and subjected to frequent verbal and emotional abuse. After assaulting Billy Joe at age 16, Hodge returned to juvenile detention, where the abuse continued. Hodge remained there until he was 18. Over the 16 years between his release from juvenile detention and the murder, Hodge committed various theft crimes that landed him in prison for about 13 of those years. He twice escaped, but each time, he was recaptured.
It would be nice to believe that this was some sort of aberration, but anyone with a little familiarity with the backgrounds of death row inmates knows that it’s not. The death penalty is billed as a punishment for the worst of the worst, but really it is a punishment for those who have been most failed. No prosecutor wants a jury to hear these stories because it doesn’t fit with how the death penalty is sold. So this creates incentives to cheat and for judges to look the other way. That is your death penalty. It convicts the innocent, is racially biased, makes a mockery of the law and provides our harshest punishment to those most brutalized, all while spending more while providing no additional public safety. And the money and attention it uses drain money that could be used to intercede in situations like this, potentially breaking the cycle of violence – if that was what our goal was.
The death penalty is a brutal policy of failure.
[T]he candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
Abraham Lincoln, quoted in Larry Kramer, The People Themselves.
Paul Campos notes the most recent injustice in our death penalty system—the state of Texas plans on executing a man with the IQ of child (for a crime he may well not have even been present for) despite the Supreme Court ruling in Atkins v. Virginia (2002) that the Eighth Amendment bars executions for defendants with “mental retardation.” Read the details if you can stomach it, but Campos sums up the situation well.
Wilson is a poster child – in every sense – for the savage arbitrariness of the death penalty as it is employed by the state of Texas. Poor, black, with the mental age of a six-year-old, he was sentenced to death for his ambiguous role in a drug-trade murder, when literally every day in America people are given far lighter sentences for more heinous crimes.
The death penalty system is lawless – if a state were forced to respect the law and conform with due process, it would collapse. That this is done in the name of law and order is one of the more patently false claims in politics, which is saying something. The Venn diagram showing those who vigorously support the death penalty and those who take constitutional rights and avoiding executing the innocent seriously does not intersect. Killing someone is more important than preventing future crimes, our constitutional system, or playing fair. It’s worth asking what purposes this serves, because it sure isn’t justice. And no, the fact that our discourse is so lopsided on this issue cannot be blamed on regular people, who are closely divided. This punitiveness is driven by our failing elites.
Also, remember that 33 states and the federal government still have the death penalty. It is not isolated to places like Texas, but is common in places where progressives have more leverage. And it will never end there until it’s ended in places like Maryland and California (on the latter see Yes on 34).
On Thursday, every single member of the Court agreed that the Constitution is one of enumerated powers, as the justices split three ways in ruling on the American Care Act, a comprehensive health insurance reform bill: upholding the mandate, but as a tax under the power to tax and spend and not a penalty under the commerce clause, striking down the provision authorizing the Secretary of Health and Human Services* to penalize states that failed to participate in the expansion of Medicaid , but allowing the Medicaid expansion and the Secretary’s authority to stop funding for the expansion. Chief Justice Roberts’ opinion (pdf) waxes poetically about the centrality of the principle that the Constitution only allowed for enumerated powers at the federal level.
The Federal Government “is acknowledged by all to be one of enumerated powers.” Ibid. That is, rather than granting general authority to perform all the conceivable functions of government, the Constitution lists, or enumerates, the Federal Government’s powers.
While not all the opinions were as explicit about this, they all rested on this idea.
This contrasted quite strongly with the position taken by all nine justices in Arizona v. United States (pdf) that the federal government was endowed with unenumerated powers, resulting from sovereignty, to regulate immigration despite disagreeing over whether Arizona’s punitive immigration law was preempted by federal law. This is from the majority opinion (which Roberts joined)
The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. See Toll v. Moreno, 458 U. S. 1, 10 (1982);see generally S. Legomsky & C. Rodríguez, Immigration and Refugee Law and Policy 115–132 (5th ed. 2009). This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Naturalization,” U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations, see Toll, supra, at 10 (citing United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 318 (1936)). [my bold]
The odd thing is that both positions were consistent with past decisions. When it comes to foreign affairs, the Court has, at least since United States v. Curtiss-Wright Export Corp. (1936) if not the Chinese Exclusion Cases in the 1880s. When it comes to domestic affairs, the enumerated powers principle has held sway. One could make an argument that the Constitution only was meant to be a system of enumerated powers with regard to domestic affairs (Curtiss-Wright does just that, although I’d say it’s not persuasive in the least). But typically, the two claims are made without such qualifications. And of course, the lines between domestic and foreign affairs are fairly blurry (for example, with powers relating to ‘national security’ largely unmoored from any limits at all yet applying to American citizens existing well within the interior).
All this illustrates a point I’ve been trying to make–we have to distinguish between claims about what the Court does, from what it does, but both involve talk. Both are consequential, but neither are automatic. The key is not to ignore what the Court says or to take it as truth, but rather to focus on in what contexts certain things are taken for granted (and here we’re not just talking about the Court but also the larger legal community) and how it differs from other contexts.
*Seriously, what are ‘human services’?
As I noted earlier, the big question at the moment is what the potential impact of the limits the Court imposed on the ACA’s Medicaid expansion, which extends to all adults earning less than 133 percent of the poverty level.
David Cole, who I respect a great deal, has thing to say in The Nation
It seems unlikely that states will turn down those funds. Under the ACA, the federal government initially covers 100 percent of all new Medicaid costs, and while the federal contribution diminishes over time, it never falls below 90 percent of the program’s cost, so any rational state will likely take the money and expand its coverage.
I don’t see what that last statement has to do with anything. If your goal is to ensure insecurity, to provide punishment to those at or near the bottom, then the fact that the federal government will mostly pay for achieving a goal you don’t share is irrelevant. Since breaking the budget to justify further cuts to things like health care, education and public employee pay & benefits is a standard strategy among Republicans in the states right now, this seems to have the logic exactly backwards. This statement is not an outlier, but it seems to reflect an all too common mistake–assuming that conservatives and progressives share the same goals but disagree on means. I’d suggest reading Cory Robin‘s most recent book to fully understand how mistaken that is. (Robin has some great posts which include excerpts from the book that discuss Justice Scalia that are very timely).
My concern is articulated well in a post entitled Beyond the mandate: Court’s ruling on another ACA provision could have sweeping implications by Ned Resnikoff:
As Lean Forward reported earlier, George Washington University law professor Jonathan Turley believes that the Medicaid decision could spell disaster for health care reform:
“This creates a ripple effect,” Turley said on MSNBC. “A majority of states oppose this law. If they had an ability to opt out, they would. I don’t see how the health care law could survive if the pool is reduced by that amount. You need to force young people to buy health insurance since they’re not going to get sick as often and (having them in the pool) makes it more affordable.”
Note the issue here isn’t just these individuals, but the impact leaving them out could have on everyone else.
Like I said, this history isn’t written yet. Whether it’s implementing the law, or expanding it in the future, what happens will be a result of politics,of agitation. If only one side mobilizes, they have the advantage.
The Court has made it’s ruling. As best as I’ve been able to gather, here’s what happened: Chief Justice John Roberts joined the four Democrats (calling them liberals wouldn’t be very accurate) ruling 1) that the mandate is constitutional (although as a tax, not under the commerce clause, per the objection of three members of the majority including Roberts) and 2) Medicaid expansion is constitutional, as long as it’s not coercive, meaning that the federal government can offer conditional funding for it but cannot penalize states by taking away other funds for failing to adopt the expansion. This means that the battle continues in the states, where legislative battles will have to be fought to ensure the expansion takes place.
I wasn’t convinced that the mandate was necessary (David Dayen said it carried a weak, easily evaded penalty and Jon Walker argued that history showed that subsidies alone were sufficient), which made its inclusion despite the fact that Obama ran against it and it’s deep unpopularity very frustrating. Medicaid expansion was a key means for insurance access expansion.
I don’t know what the odds look like on this. My initial thought are this. As a program that targets the poor, Medicaid expansion isn’t terribly strong politically. The Republicans seem committed to stopping implementation at all costs. And breaking budgets seems to be a conscious strategy, do being a cost saver might actually hurt it’s chances. On average, Republicans are more likely to control states that have a higher percentage of people who fall under Medicaid. As I said before the ruling came down, the right has been mobilized on this issue and Democrats have not.
Aside from the states, there are things that must be done by the executive branch and Congress in order to fully implement the ACA, and some of these, if I recall correctly, must take place after the next presidential term, so they can’t be done by the Obama Administration regardless of the outcome of the election. (In addition, there will be additional court challenges to specific aspects of the law, but these again are mostly out of our hands in the short run.)
So I made no predictions about the “outcome” but the decision does vindicate what I did say-this is not over, and it will be a long slog. Thinking of this in terms of wins and losses, as an outcome instead of a process, will steer you wrong.