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October 1, 2010

Looking back playfully before looking forward to the new SCOTUS term

I have not spent too much time on Supreme Court previews recently (partially because Ryder Cup previews are more timely and somewhat more interesting these days).  But, especially with the new Term about to start, I had extra fun reading this great "revue" of last SCOTUS Term from the pen of Jon Elwood, which is titled "What Were They Thinking -- The Supreme Court in Revue, October Term 2009." Here are a couple of amusing paragraphs from the revue focused on the Court's Eighth Amendment work last Term:

If you noticed that society refilled the tank without being asked the last time it borrowed the car, you’re not alone in marking the progress of a maturing society.  Justice Kennedy has been sufficiently impressed that he’s recently voted (and sometimes written opinions) to render unconstitutional previously lawful sentencing practices under the Eighth Amendment’s Cruel and Unusual Punishments Clause — think Atkins v. Virginia (2002) (holding it unconstitutional to execute mentally retarded offenders); Roper v. Simmons (2005) (holding it unconstitutional to execute defendants who murdered while under age 18), and to a lesser extent (because the Court had already so held regarding rape of an adult), Kennedy v. Louisiana (2008) (holding capital punishment cannot be imposed for rape of a child).  Kennedy reprised his role as a one-man evolving standard of decency in Graham v. Florida, which is one of those opinions that people seem to forget when they’re bemoaning the arch-conservative Roberts Court.  The Court held 6-3 that the Cruel and Unusual Punishments Clause does not permit imposing a sentence of life without parole on a juvenile offender convicted of a nonhomicide offense.  The Court noted that while 37 states permit such sentences, only 11 impose them as a practical matter, and they were mostly states without a first-rate daily paper or bookstore.  Thus, there was a national consensus against imposing sentences of life parole on such offenders.

The sort of numerical analysis that is reserved for Eighth Amendment cases, movie-studio accounting, and the federal budget alone would have been enough to cause TMJ-aggravating tooth-gnashing on the right, but Kennedy was not done yet.  In a selfless effort to promote renewable energy, Kennedy ended his opinion by noting that the Court’s conclusion was supported by the fact that the sentencing practice was “rejected the world over.”  The resulting geysers of steam emanating from conservatives’ ears promises to be a significant source of thermal energy for years to come.

October 1, 2010 at 09:10 AM | Permalink


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Yes, this is a rant. However, it is also serious question. Should a set of people who know nothing about anything outside of law books, get to decide highly technical questions? The technical subject includes sentencing and punishment of crime. Judicial review is not authorized by any clause in the constitution, and violates Article I Section 1. It came about under shady circumstances. Its first substantive expression was catastrophic when the Dred Scott set off the Civil War by canceling carefully negotiated compromises. It is very difficult to think of any example in which the making of law by judges helped the public. If the Justices were ordinary people, one could say, well they make decisions others do not want to, and apply ordinary values. However, almost all are personally horrible people. If one moved next door, one would feel compelled to move. They are actively hostile to the values of the average person in the US. They believe themselves to be and have placed themselves above the law. Although they are public employees, they even refuse to allow cameras in their deliberations, for which the public is paying every penny. It is impossible to differentiate between conservative and liberal once lawyer rent seeking enters a decision.

One may not even criticize them without getting bashed by Congressional elite. So our representatives are intimidated whenever they dare to respond to the horrible mistakes these know nothing lawyers are making at a machine gun pace. An academic said, legal realism cannot be removed once people begin to practice it. Yet, history teaches otherwise. The Nazi judiciary was tried and hanged. That ended legal realism in Germany. Nazi legal realism allowed the campaign against ethnic minorities despite the clear language of the writing protecting them until they committed a crime. Nor is the comparison an example of Godwin's law, since both judiciaries had their practices originate in the German Free Law Movement, and they are both spawns of it. The German foreigner Llewellyn, of contract fame, taught it to Cardozo, a homosexual and a sneaky crypto-Communist. The profession understood its potential to enrich and empower the lawyer, and it spread within months. Today, all Justices practice legal realism, and there is no prospect of change into the foreseeable future. Once the lawyer accepts legal realism, the political affiliation introduces perhaps a 5% variance into decision making, and rent seeking is the overwhelming goal.

Short of the German remedy at Nuremberg, this court should be slowed down by giving it an even number of justices. So even opposing votes let the prior decision stand. Second, if it is to legislate, give it a legislature size, such as 500 Justices. Thirdly, exclude lawyers from all future appointments. Law school makes ordinary, intelligent people into horrible people dumbasses.

Posted by: Supremacy Claus | Oct 2, 2010 6:44:35 AM

i have to agree. sorry they lost me completely with the Carr decison. It proved once an for all time they are nothing but TRAITORS to their OATH OF OFFICE.

Posted by: rodsmith | Oct 3, 2010 3:42:00 PM

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