Notes on a Theory…

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Posts Tagged ‘Supreme Court

The Fundamental Principle of Popular Sovereignty…Good for One Day Only

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At the end of the Supreme Court’s term last year, I noted that when it came to the Affordable Care Act case, every justice agreed with the principle that the Constitution creates a system of enumerated powers at the federal level. But, when it came to the Arizona’s punitive immigration law, those same nine justices all agreed the federal government was endowed with unenumerated powers, resulting from sovereignty, to regulate immigration.

As I said then, “both positions were consistent with past decisions”:

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.

This term brings a similar example, although this time it involves a smaller number of justices.

Read the rest of this entry »

Written by David Kaib

June 28, 2013 at 1:22 pm

State are not Sovereign: The Supreme Court and Voting Rights

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[Update: For a sense of legal landscape in the wake of the Supreme Court's decision, read The Way Forward After Shelby County by Joey Fishkin]

The Supreme Court has struck down Section 4 of the Voting Rights Act (pdf), rendering Section 5 inoperable until Congress changes Section 4 (assuming Congress can and there is anything Congress could pass that the Supreme Court would allow, which is unclear).  I addressed the most fundamental conservative objection to the Voting Rights Act after oral arguments – that it is a “racial entitlement”.

Generally speaking, you should just read Justice Ginsburg’s dissent, which righteously shreds Chief Justice Roberts’, and Jessica Mason Pieklo.

I wanted to address something a little more abstract.

Roberts’ opinion repeatedly references ‘state sovereignty’ as an (unenumerated) constitutional principle that supposedly overrides the enumerated power of Congress to enforce the 15th Amendment through appropriate legislation. Let’s leave aside the issue of enumeration, and of the case law (Ginsburg dispatched that handily).  The bigger problem with this is that it’s absurd.

The Constitution makes clear that sovereignty is not vested in governments. It is vested in the people. Neither the states nor the federal government are sovereign. (Yes, don’t miss that second part – and let’s not pretend that a war settles constitutional questions either). From the opening words of the preamble of the original Constitution to it’s final clause, from the beginning to the end of the Bill of Rights, the basic, most fundamental constitutional principle is popular sovereignty. The entire process of ratification, by conventions rather than by state governments, only makes sense if you begin with popular sovereignty.

Literally every other principle we associate with American constitutionalism–separation of powers, federalism, enumerated powers–flows from this basic principle. Read the rest of this entry »

Written by David Kaib

June 26, 2013 at 9:24 am

Justice Scalia, Voting Rights, and Racial Entitlement

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Demonstrators walk down a street during the civil rights march from Selma to Montgomery, Alabama in 1965. (Peter Pettus. 1965. Library of Congress Prints and Photographs Division. Lot 13514, no. 25. More about the photograph)

Demonstrators walk down a street during the civil rights march from Selma to Montgomery, Alabama in 1965. (Peter Pettus. 1965. Library of Congress Prints and Photographs Division. Lot 13514, no. 25. More about the photograph)

[updated below]

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.

Ironically, the Court (via Chief Justice Warren) used Selma, Alabama to illustrate the necessity of Section 5: Read the rest of this entry »

Catch 22 and the Death Penalty: Shredding Due Process to Punish the Abused

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Via Sentencing Law and Policy, Justice Sotomayor dissented (pdf) from a denial of review for a death penalty case, and her opinion illustrated two important points.

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.

Written by David Kaib

December 3, 2012 at 10:41 pm

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