Reviews | The only way the new conservative Supreme Court majority has lived up to its billing


If divisions within the Court are common, strictly ideological ruptures are less so. Judge Stephen Breyer explained it this way in June 2021 Podcast for the non-partisan National Constitution Center: “I mean, we agree almost half the time, we are unanimous. And, he continued, “The five-four are roughly, I don’t know, 20 percent, 25 percent, 15 percent depending on the year. And they are not the same five and the same four. This is what makes cases involving the rights of accused persons and the term immigrants so remarkable: the split was often the same six and the same three, a detail that provides insight into one aspect of the development of the Court’s identity.

Because the criminal justice system in the United States is largely over-represented by black and brown defendants, who are five times more likely to end up in state prisons than whites, this predictable ideological split is not good news from a racial and ethnic justice standpoint. The extraordinary interpretive power of nine unelected judges cannot be overstated. The United States Constitution houses the primary legal prohibitions against arbitrary government restraints on life and liberty, the Fifth Amendment preserving due process rights vis-à-vis the federal government, and the Fourteenth Amendment binding on states.

Also keep in mind that indeed, the Supreme Court amends the Constitution by interpretation independently of the policy of each court. For actual voters to change the Constitution, on the other hand, they must elect politicians who will ratify revisions two-thirds in both houses of Congress and three-quarters in all state legislatures. This is almost impossible to achieve, a reality that highlights the gigantic power of unelected judges, whose decisions cannot be changed without a new majority in the court or a formal amendment to the Constitution overturning a particular decision.

Paradoxically, it is the aforementioned cases in which judges crossed ideological lines that demonstrate how important it is that on issues of incarceration, Conservatives and Liberals separate so sharply. Because it represents such a departure from the historical behavior of the Court. In 2014, a panel of the scholars have concluded that the John Roberts Court at that time “in fact [produced] a notable number of liberal rulings protecting rights “, and that” when the Roberts Court [was] more deeply divided on criminal justice issues, it produced more liberal than conservative decisions, in large part due to the voting patterns of Judge Anthony Kennedy whose moderate voting record places[d] him in the center of the court.

The late Judge Antonin Scalia – a conservative icon who reshaped constitutional jurisprudence in several ways – had developed a broad view of individual rights within the criminal justice system, particularly in the context of the Fourth Amendment, which governs searches and searches. abusive seizures. Now that Kennedy, Scalia and Ruth Bader Ginsburg, a reliable Liberal, are gone, those embroiled in the coercive criminal justice and immigration systems must rely on those appointed by President Donald Trump to exercise their broad discretion to ‘assert or dissolve constitutional rights. So far, the new conservative coalition denies an uncomfortable callousness in close cases.

The ideologically divided cases were not the most prominent in the recent court case. But a closer look at how the majority ruled shows why they collectively reveal the emerging character of the modern court.

Jones vs. Mississippi was an Eighth Amendment case challenging the life sentence without parole of a 15-year-old for the murder of his grandfather. Writing for a 6-3 majority, Justice Kavanaugh acknowledged that the court made two landmark decisions in 2012 and 2016 constitutionally prohibiting obligatory life sentences without parole for juvenile offenders. In a sentencing hearing in light of those rulings, lawyer for defendant Brett Jones, now 32, argued unsuccessfully that the sentencing court “must.” .. draw a separate factual conclusion that the defendant is definitely incorrigible ”before deciding to imprison him for life. Kavanaugh concluded that a more detailed conclusion regarding the prospects of rehabilitating a minor was not constitutionally required as long as “the convict …[s] the youth of the accused.

In a dissenting opinion, Judge Sotomayor said: “[t]a court does not deceive anyone. “Time and again this Court has recognized that children are constitutionally different from adults for the purposes of sentencing,” she wrote, because “the character of a minor is more transient” and “the impetuosity and recklessness that can dominate in the younger years can subside. . “But with Ginsburg and Kennedy no longer in court, the new majority was collectively more optimistic about tolerance discretionary life sentences for minors, likely paving the way for more children to spend their adult lives behind bars.

Kavanaugh wrote for the same 6-3 majority in Edwards vs. Vannoy, refusing to apply an earlier Supreme Court decision in favor of an accused. A few months earlier, in April 2020, the Court had decided in Ramos v. Louisiana that criminal convictions handed down by non-unanimous juries were unconstitutional. The question in Edwards was whether this decision should apply retroactively to non-unanimous jury convictions that occurred before Ramos. Although Judge Neil Gorsuch delivered the main opinion in Ramos, the other judges fell on the map in this case. Gorsuch was joined in part by Ginsburg, Breyer, Sotomayor and Kavanaugh, for example, while Judge Elana Kagan joined in part of Alito’s dissenting opinion. But once Coney Barrett joined the court, the Conservative bloc became more consistent in rejecting the accused’s plea in Edwards, leaving prisoners who had been sentenced without the benefit of Ramos decision to serve his sentence. Kagan’s dissent pointed out that, “[c]ith centuries of history, the Court in Ramos called Sixth Amendment law to a unanimous jury “vital,” “essential,” “indispensable” and “fundamental” “to the US legal system, and” upholding the fundamental principles of racial justice. ” The touchstone of the new conservative majority looks decidedly different.

The Conservatives were also not sympathetic to complaints from criminal defendants for bad lawyers. In Shinn vs. Kayer, a 6-3 majority in an opinion by curiam (meaning no court has claimed paternity) reinstated the death penalty for an Arizona inmate for the shooting death in 1994 of a certain Delbart Haas on a gaming trip to Nevada. The United States Court of Appeals for the Ninth Circuit overturned the death sentence of the accused George Kayer, believing that his Sixth Amendment right to counsel had been violated in determining the sentence because his lawyer had not investigated the evidence of drug addiction, mental illness and recent heart disease. attack, among other mitigating factors. But the majority of the Supreme Court concluded that “an impartial jurist” would have given more weight to the accused’s previous conviction for robbery with a handgun and doubted that Kayer’s addictions and bipolar disorder “affected. considerably his capacity to appreciate the wrongfulness of his conduct ”. In Dunn vs. Reeves, the same 6-3 majority overturned a lower court ruling granting habeas corpus to a death row inmate who claimed his lawyer had failed to present mitigating evidence of his intellectual disability.

On the immigration front, the scoreboard has also been stacked against individual petitioners to favor the government. Judge Alito wrote the opinion for a 6-3 majority in Johnson vs. Guzman Chavez, ruling against a group of non-citizens who were deported from the United States but then returned without permission. When the government found out they had returned, it reinstated their removal orders. The applicants applied for asylum because they feared persecution or torture if they returned to their country of origin. The Court found that, in the meantime, while their asylum claims were being adjudicated, they were subject to obligatory detention, denying them as much as a bail hearing. Without a hearing, the government would effectively keep immigrants in prison indefinitely. As Breyer noted in his dissent, they “face proceedings that can last for months or years.”

Judge Gorsuch appeared equally insensitive to the plight of non-nationals in his opinion for a 5-3 majority in Pereida v. Wilkinson, who ruled against an undocumented resident who challenged the eviction based on his guilty plea to the petty misdemeanor of attempted identity theft under Nebraska law. The court ordered the immigrant – a father of three who had been in the United States illegally for 25 years, but sought to avoid deportation under a provision that provides exceptions for family hardship – to prove that his crime was not a “moral offense”. turpitude ”which would prevent him from taking advantage of the expulsion exception. The problem was that his criminal record did not make it clear what his underlying crime was. As Breyer J. explained in his dissent: “We cannot review the jury’s instructions because there was no jury. There is also no plea agreement, plea symposium or “comparable court record” of plea that could help determine what Mr. Pereida admitted. “ To make matters worse, “[t]The government repeatedly confirmed in oral argument that it had not argued that a judge should be allowed to consider a wider range of evidence because, in its view, this issue was not in issue since ‘there is no other document. That hasn’t stopped the majority from speaking out against Pereida for failing to prove what the government apparently couldn’t.

For the most part, the latest set of court cases indicate that the law, in all its ambiguities, always trumps partisanship. But the handful of cases where Tories have joined forces also suggest that personal ideology – or perhaps the Tory emphasis on individual responsibility makes them reluctant to give people a second chance at freedom or immigration status. legal – stealthily remains in play. Meanwhile, the United States has the the highest rate of prisoners in the world, with 639 prisoners per 100,000 inhabitants. So far, this tribunal seems unresponsive to such statistics.


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