Tag Archive for ‘Supreme-Court’ at Buried Planet

Tag Archive for 'Supreme-Court'

SCOTUS fails to take advantage of opportunity to make Kennedy right

Published

on October 2, 2008

. 2 Comments

Yesterday, the Supreme Court saw fit to deny rehearing in Kennedy v. Louisiana, the case that declared the death penalty unconsitutional for the crime of child rape. The State of Louisiana, along with the U.S. Solicitor General, had argued for rehearing and reargument after it was discovered that the Congress passed, and the President signed, a 2006 law making child rape a capital offense in the military justice system. The Court’s prior decision made no note of this law, and in fact claimed there was a “consensus” against the child rape provision by claiming there was no Federal law.

About the only thing the Court’s revised ruling does is remove the reference to no Conrgessional action - but still relies almost solely on its own “independent judgment”, as Justice Scalia so observes in his statement attached to the order denying rehearing:
Continue reading ‘SCOTUS fails to take advantage of opportunity to make Kennedy right’

Individual right: Heller affirmed on 5-4 vote

Published

Relantel

on June 26, 2008

in Law and Politics

. 5 Comments

Yet another “big case” this term was saved for last. District of Columbia v. Heller had been decided in favor of an individual right at the D. C. Circuit Court of Appeals in Parker v. District of Columbia, and the circuit court’s decision was affirmed this morning.

Justice Scalia with the majority opinion of the court, joined by the Chief Justice and Justices Alito, Thomas and Kennedy, with two dissents: one by Justice Breyer, joined by Souter, Stevens and Ginsburg, and the other by Stevens, joined by Breyer, Souter and Ginsburg.

Opinion here. An excerpt where Scalia destroys the dissent’s view of “arms” (on page 13 of Scalia’s opinion):

In any event, the meaning of “bear arms” that petitioners and JUSTICE STEVENS propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

Scalia’s conclusion (Page 64, emphasis mine):

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.
* * *
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Judicial Restraint. It’s a concept lost on too many Judges, and it is refreshing in a way. But this case, with that opinion, should have been 9-0, not 5-4. Further excerpts from Scalia’s opinion, as compiled by SCOTUSBlog’s Tom Goldstein, can be found here.

SCOTUS (Kennedy) says Child Rapists should live in Kennedy v. Louisiana

Published

Relantel

on June 25, 2008

in Law

. 3 Comments

With the same 5-4 split as the Boumediene Gitmo detainee case earlier this month, the Supreme Court has struck down a Louisiana Statute, adopted in 1995, that made Child Rape a Capital offense.

Justice Kennedy has the opinion of the Majority, where they rely on “evolving standards of decency” in determining what is “Cruel and Unusual Punishment” as such is prohibited by the Eighth Amendment. Justices Stevens, Souter, Breyer and Ginsburg joined Kennedy’s rambling opinion.

Justice Alito provides the dissent, joined by the Chief Justice and Justices Scalia and Thomas.

The opinion and dissent can be found here. Ed Whelan of NRO’s Bench Memos has the details of the graphic crime that Kennedy et al find less grusome than murder. As Whelan notes:

Kennedy’s 36 pages of insufferable blather amount to little more than a declaration that the majority doesn’t think that capital punishment is ever a fair penalty for the rape of a child—“no matter,” as Justice Alito puts it in his dissent, “how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.”

UPDATE: NRO has this editorial Thursday AM:

In his opinion Wednesday for a five-justice majority in Kennedy v. Louisiana, Justice Anthony Kennedy ruled that the Eighth Amendment’s prohibition of “cruel and unusual punishments” forbids imposition of the death penalty for the rape of a child. Or, rather, he ruled that the Court’s modern rewriting of the Eighth Amendment as a license for the Court to impose its “independent judgment” of “the evolving standards of decency that mark the progress of a maturing society” yields that result. If any further evidence were needed that the Supreme Court’s death-penalty decisions have become entirely unmoored from the actual Eighth Amendment — as well as from the good sense of the American people — Kennedy’s opinion provides it.

Is Scalia tasked with the majority opinion in Heller?

Published

Relantel

on June 23, 2008

in Law

. 1 Comment

SCOTUSblog’s Tom Goldstein, at 10:12 AM on today’s LiveBlog from the Court, speculates based on prior decisions and opinion authors from the March sittings that Justice Antonin Scalia is the likely author of the Heller vs District of Columbia, the 2nd Amendment case challenging D.C.’s ban on handguns.

Tom Goldstein - The only opinion remaining from the March sitting is Heller. The only Justice without a majority opinion from that sitting is Justice Scalia.

One would think this bodes good news for the gun rights crowd, given Scalia’s originalist nature. Scalia is not a monolith, though, and I see this as bad news for the cross-appeals by the five other residents that the lower courts found lacking standing.

Heller (the one of the six original plantiffs that the lower courts found had standing, and ruled in his favor) rests on the premise that the 2nd Amendment secures an individual right to bear arms, while D.C. rests on the theory it is not an individual right but a collective one. One would think Justice Scalia would be reading the 2nd Amendment as it stood at the time of its 1790 proposal and 1791 adoption - when individual gun ownership was a necessity for most of the country.

SCOTUS oversteps jurisdiction, while ignoring its own rules, in detainee Habeus ruling

Published

Relantel

on June 12, 2008

in Law and Politics

. 0 Comments

By a 5-4 decision in Boumediene vs Bush, authored by Justice Kennedy, and joined by Justices Stevens, Breyer, Ginsburg and Souter, the Supreme Court has declared Congress’ provision stripping the Court of jurisdiction to be an “unconstitutional suspension of the writ” (of Habeus Corpus), despite the fact that the Congress has the right to determine the Court’s jurisdiction. Then the Court found it necessary to rule (make a statement) on a question that was not considered at all by the D.C. Circuit Court of Appeals, as to whether the DTA/MCA were a sufficient Habeus substitute, and answered the question in the negative. No briefings, no fidings of fact by a lower court, nothing. In the past, the Court has preferred to stay out of a case until all lower options have been exhausted. In this case, the majority chose not to do so.

Chief Justice Roberts writes an unusually stunning dissent, noting that the Court has engaged in a “constitutional bait and switch”, in holding DTA unconstitutional after it was crafted to meet the Court’s 2004 decision in Hamdi, as well as the MCA, which was enacted after 2006’s Hamdan case. Justices Scalia, Thomas and Alito joined in the Chief Justice’s dissent.

Justice Scalia’s own lengthy dissent starts by identifying the beginning of the “war with radical Islamists” - the 241 Marines killed at the Barracks in Lebanon 25 years ago. The Chief Justice and Justices Alito and Thomas joined Justice Scalia’s dissent.

Continue reading ‘SCOTUS oversteps jurisdiction, while ignoring its own rules, in detainee Habeus ruling’

Major victory in the fight against voter fraud

Published

Relantel

on April 28, 2008

in Law and Politics

. 0 Comments

Today’s 6-3 Supreme Court decision, written by none other than Justice John Paul Stevens, clears the way for voter ID requirements to be put in force for the remainder of the 2008 election campaign. First up is the Indiana primary, whose restrictions were upheld by the ruling in Crawford vs. Marion County Election Board. Other states whose restrictions were in doubt will be free to proceed forward. It is a major victory in the battle to erradicate voter fraud, and it is no surprise that the heavy opposition to it was from the Democrat party.

It should be noted that although the vote was 6-3, the opinions were split between Stevens, joined by Roberts and Kennedy, one by Scalia, joined by Thomas and Alito, that concurred in the judgment, and dissenting opinions from Souter, joined by Ginsberg, and a separate dissent by Breyer. The basic difference between Stevens and Scalia is Stevens assumes some facts and bases result upon those, while Scalia thinks them irrelevant.

Jonah Goldberg - “Monarchy of Nation of Laws?”

Published

Krogenar

on April 22, 2008

in Law and Politics

. 1 Comment

Great column by Jonah Goldberg over at National Review Online, give it a read.

An excerpt:

The court ruled that the state of Kentucky may continue to use lethal injections when administering the death penalty. But that’s not what’s shocking. Nor was it surprising that for the first time Justice John Paul Stevens admitted he thinks the death penalty is unconstitutional.

What is staggering, or at least should be, is that Stevens freely admits that he no longer considers “objective evidence” or even the plain text of the Constitution determinative of what is or isn’t constitutional: “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional.

Justice Antonin Scalia, in a blistering response, justifiably exclaimed that, “Purer expression cannot be found of the principle of rule by judicial fiat.”

I say “justifiably” rather than “accurately” because I think we hear purer expressions of the principle that “good” judges are those who make it up as they go along all the time. Consider Barack Obama. The Democratic front-runner and former lecturer on constitutional law at the University of Chicago has explained his thinking toward judicial appointments thus: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criteria by which I’ll be selecting my judges.”

Agreed! Judges should consult the Constitution, not their own personal empathies when deciding the law.

Supreme Court Shoots Down ACLU Wiretapping Lawsuit

Published

Krogenar

on February 19, 2008

in Law, Politics and Terrorism

. 0 Comments

The Supreme Court has shot down the ACLU’s attempt to sue the government over the Bush Administration’s warrantless wiretapping program on the grounds that the defendants cannot prove that they have been under surveillance.

The government has refused to turn over information about the closely guarded program that could reveal who has been under surveillance.

ACLU legal director Steven R. Shapiro has said his group is in a “Catch-22″ because the government says the identities of people whose communications have been intercepted is secret. But only people who know they have been wiretapped can sue over the program, Shapiro has said.

The 9th U.S. Circuit Court of Appeals last year ruled against an Islamic charity that also challenged program, concluding that a key piece of evidence is protected as a state secret.

In that case, the Oregon-based U.S. arm of the Al-Haramain Islamic Foundation alleged the National Security Agency illegally listened to its calls. The charity had wanted to introduce as evidence a top-secret call log it received mistakenly from the Treasury Department.

Does the ACLU have even a shred of decency? If the government reveals who is under surveillance and/or how the surveillance is being performed, that does great damage to the government’s ability to prevent terrorism. They must know that, but simply not care.

McCain falling: says no to an Alito & lies about Romney

Published

Relantel

on January 28, 2008

in Politics

. 5 Comments

From John Fund in the WSJ (via Kathryn Jean Lopez and Mark Levin, with additional commentary by Stanley Kurtz and Andy McCarthy in NRO’s the corner):

More recently, Mr. McCain has told conservatives he would be happy to appoint the likes of Chief Justice John Roberts to the Supreme Court. But he indicated he might draw the line on a Samuel Alito, because “he wore his conservatism on his sleeve.”

If this is how McCain plans on winning over conservatives, watch how his stock will drop, and Romney and Giuliani will be picking them up. Throw this on top of McCain’s outright lie on Saturday, where he tried to accuse Romney of being for timetables in Iraq… it was so bad that even the NYT, AP, and others quickly saw the facts of the matter, and the video itself proved McCain’s assertions false.

Having been in Fred’s camp, I have not made up my mind between Romney and Giuliani - but I still have two weeks left until Virginia has its primary. One thing is for certain, McCain, if he even had a chance in getting back into good graces after the whole Gang of 14 mess, has completely destroyed himself among the voters he needs most to win the GOP nomination: Republicans.

Reading the Tea Leaves: New Jersey v. Delaware

Published

Relantel

on November 28, 2007

in Law

. 0 Comments

Yesterday, the Supreme Court heard oral argument in the case of New Jersey v. Delaware, a case of original jurisdiction in the Court over Riparian rights in the Delaware River. The two states agreed in a 1905 Compact that each possessed right to regulate riparian matters “on their own side” of the river, even as their boundary dispute was ongoing. A later Supreme Court ruling in 1934 between the two states set the boundary as the low-water mark on the New Jersey side, leading to Delaware now, since the 1960s, asserting rights over the subauqeous land beneath New Jersey wharves, with the instant controversy being Delaware’s denial of New Jersey’s right to build a wharf to receive ships carrying Liquified Natural Gas. Continue reading ‘Reading the Tea Leaves: New Jersey v. Delaware’

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