« "Sentencing Proportionality in the States" | Main | Maryland Governor talking about using budget tricks to thwart state's death penalty »

December 20, 2011

Sixth and Eighth Amendment cases as notable amuse-bouche for SCOTUS health care litigation

As reported here at SCOTUSblog, the Supreme Court has released its oral arguments calendars for its February and March sittings. Not surprisingly, the legal media is mostly talking about the court's decision to set arguments on the new federal health care law for all its sessions in the week of March 26.   And, also not surprisingly, I find interesting the fact that the Court has scheduled for oral argument its Sixth Amendment Apprendi fines case (Southern Union Co.) and its two Eighth Amendment juve LWOP cases (Miller and Jackson) in the week just prior to the health care litigation.

As the title to this post suggests, I thin these constitutional criminal law and procedure cases will provide a notable tingler for the constitutional taste buds to prepare the Justices for the health care fight to follow. In Southern Union Co., the federal government will be urging the Justices not to read the Constitution to place any more procedural burdens on its efforts to impose criminal fines, and in Miller and Jackson, two states will be urging the Justices not to read the Constitution to place any more substantive limits on what punishments they can impose on juveniles convicted of murder. In these cases, some of the more conservative Justices will surely be sympathetic to assertions that an unelected judiciary should not find new constitutional problems with duly enacted criminal laws.

But, of course, the script will be (somewhat) flipped the following week with the health care litigation. The feds, of course, will still be defending federal law against constitutional attack. But now state will be urging an unelected judiciary should to find constitutional problems with duly enacted civil laws. And, so the thinking goes, now the more conservative Justices seem likely to be sympathetic to assertions that these duly enacted laws go to far.

December 20, 2011 at 09:13 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e20162fe15939c970d

Listed below are links to weblogs that reference Sixth and Eighth Amendment cases as notable amuse-bouche for SCOTUS health care litigation:

Comments

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB