Another Judicial Power Grab

Another Judicial Power Grab
Thomas Sowell
Wednesday, May 19, 2010

You might think that being a Supreme Court justice would be the top of the line job for someone in the legal profession. But, many Supreme Court decisions suggest that too many justices are not satisfied with their role, and seek more sweeping powers as supreme policy-makers, grand second-guessers or philosopher-kings.

The latest example of this is the recent Supreme Court decision in the case of Graham versus Florida. The issue was whether the Constitution permitted a state to impose a sentence of life without the possibility of parole when the criminal was a youthful offender. The Supreme Court voted 6 to 3 that this was a violation of the Constitution.

If your copy of the Constitution doesn't say anything about youthful offenders, do not worry that you have a defective copy. There is no such statement in the Constitution. What the justices cited as the alleged basis for their decision was the Eighth Amendment's prohibition against "cruel and unusual punishments."

Since 37 out of the 50 states permit sentences of life without the possibility of parole, such a sentence is not unusual. How about cruel? If it is cruel, then why is it OK to impose that sentence on people who are not youthful?

The case of Graham versus Florida involved a 16-year-old repeat offender, who was convicted of a home invasion robbery while on probation from a previous felony. He was sentenced to life imprisonment without the possibility of parole. The Supreme Court then over-ruled that decision.

The role of an appellate court is not to simply second-guess the decision of the trial judge and jury, much less usurp the responsibility of legislatures to make social policy. But the pretense of applying the Constitution gives appellate judges the power to do both.

The bolder justices go further, citing practices in other countries as supporting their decisions that are supposedly based on the Constitution of the United States. If justices can pick and choose which legal principles and practices they will follow, from the many widely varying principles and practices in countries around the world, then they can find a basis for doing just about anything they feel like doing.

This too goes counter to the very basis of American government, as a system in which "We the people" ultimately govern ourselves through representatives of our own choosing and the officials appointed by them. Once appellate judges are free to base their rulings on what people do in India, Egypt or Germany, Americans are no longer a self-governing people.

As if to add a touch of farce to lighten the tragedy of the dismantling of the Constitution, Supreme Court justices on opposing sides of the case of Graham versus Florida cited statistics seeking to show that there was national consensus for or against life sentences without the possibility of parole.

Appellate courts, including the Supreme Court, are not institutions equipped to make policy judgments like that. Legislatures exist to make policy judgments-- and to be voted out of office if these policy judgments turn out to produce results that the electorate do not want. But there are no such corrective mechanisms in place if Supreme Court justices misjudge.

Finally, there is the old, moth-eaten argument cited by Justice John Paul Stevens, that the society is evolving and therefore the interpretation of the Constitution must evolve with it.

Nobody-- from the moment that the Constitution was adopted in the 18th century to the present-- has ever denied that societies evolve, and that their laws must evolve to meet changing circumstances. But, unless Justice Stevens is either stupid or dishonest, he cannot leap from a need for laws to change to the conclusion that it is judges who must be the ones to make those changes.

Just saying the magic word "change" does not justify judges grabbing the power to make whatever changes they please in the law. There are, after all, two other branches of the federal government, specifically charged with legislative and executive responsibilities and powers, not to mention the Constitutional Amendment process.
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Supreme Court Continues to Impose Morality on States
Ken Klukowski
Wednesday, May 19, 2010

Monday’s Supreme Court decision holding that sentencing an underage person to life in prison is unconstitutional is yet another disturbing example of judicial activism. More than simply another run-of-the-mill activist decision, the Court has reached a new level of usurping the powers the Constitution entrusts to our elected leaders in the states.

On May 17, the Supreme Court handed down its decision in Graham v. Florida. In this case, a 16 year-old habitual criminal named Terrance Graham had served time for armed burglary and assault. When he was released on probation, he was then arrested again for robbing a woman in her home at gunpoint. During questioning, he admitted to other felonies he had recently committed as well. Found to be a felon who could not be rehabilitated, he was sentenced to life in prison under Florida law.

When that conviction was upheld on appeal in Florida, the Supreme Court took the case to consider whether sentencing a minor to life in prison without parole violates the Eighth Amendment, which forbids cruel and unusual punishments.

As Justice Clarence Thomas explained in dissent, the Eighth Amendment only prohibits methods of punishment and interrogation that are cruel and unusual, as that term was understood when the Bill of Rights was adopted in 1791. That’s to say, the Eighth Amendment outlaws torturing people to get confessions, or punishments such as maiming, branding, disfigurements, or other such agonizing or debilitating punishments.

In recent decades (the last half of the 1900s), the Supreme Court added the rule that the Eighth Amendment requires punishments be “proportional” to the crime. This proportionality requirement increasingly became a factor in federal courts being able to strike down state criminal laws.

Then the Supreme Court decided Roper v. Simmons in 2005. In an opinion by Justice Kennedy, the Court held that the death penalty was unconstitutional if the criminal was under age 18 at the moment he committed the crime, even if he killed someone.

In Graham, five justices formed a majority, whereby the Court extended the Eighth Amendment to cover life in prison as well (at least where no one died as a result of the crime). The Court held that even though most states allow this punishment for minors, the fact that it was rarely imposed somehow means that there’s a “national consensus” against it, which in turn means that the our society’s “evolving standards of decency” do not permit this punishment.

In a strong dissent, Justice Thomas (joined by Justice Scalia, and in part by Justice Alito) objected that the Court is substituting its own moral judgment for that of the people of Florida. Thomas points out that the Court seemed to make an exception for the death penalty because death is the ultimate punishment, different from any other. Now, Thomas explains, the Court reserves the right to ban the second most-severe punishment. “No reliable limiting principle remains to prevent the Court from immunizing any class of offenders, from the law’s third, fourth, fifth, or fiftieth most severe penalties as well.”

As Justice Thomas explains, this means that the Court is now making “moral judgments,” and imposing those judgments on the American people. “I am unwilling to assume that we, as members of this Court, are any more capable of making such moral judgments than our fellow citizens. Nothing in our training as judges qualifies us for that task, and nothing in Article III [of the Constitution] gives us that authority.”

Surprisingly, Chief Justice Roberts voted to throw out the penalty is this case. He clearly rejected the idea that life in prison could never be imposed on a minor and refused to join the majority opinion, instead saying that he thought the facts of this case alone did not rise to the level of life in prison. The chief justice instead reasoned that the penalty was not proportional to the crime, and that the state of Florida did not ask the Court to consider overturning those precedents that established the proportionality rule.

The most disturbing aspect of this decision is the erosion of state sovereignty. Under the Tenth Amendment, all matters not expressly entrusted to the federal government by the Constitution are reserved to the states and the people. One of the main areas where states are sovereign is determining what acts within each state are criminal, and what punishment to impose on those criminals.

As my coauthor Ken Blackwell and I explain in our book The Blueprint: Obama’s Plan to Subvert the Constitution and Build an Imperial Presidency, a key part of President Obama’s plan to transform America is to appoint federal judges who will impose their own beliefs, overriding the moral judgments of democratically-elected leaders.

This week’s Supreme Court decision suggests that President Obama may be close to getting what he wants, as he continues to remake the Supreme Court in his own image.