That our Constitution has come to be regularly defined by a single vote is bad enough. But when the Supreme Court Justice who casts that deciding vote, Anthony Kennedy, speaks out against the very evil that he voted to maintain, it reduces the notion of constitutionality to a farce. That’s worse.
Today’s New York Times editorial addresses a speech given by Justice Kennedy at Pepperdine University law school, where he was critical of California’s absurd three-strikes law.
This would be the same Justice Kennedy who held that a life sentence for shoplifting, as a third felony, did not violate the 8th Amendment’s cruel and unusual punishment clause based on its glaring disproportionality. We’re not talking about mere incrementally increased punishment, but dropping the atom bomb.
When a Supreme Court Justice states, “that’s sick,” might we think that it’s bad enough to violate the 8th Amendment?
As the editorial properly notes, Justice Kennedy’s speech clearly gets it right. So why then is the 5th vote in favor of its constitutionality? Judicial modesty perhaps? Is “sick” not sick enough? Mind you, this was a 5-4 decision, with Justice Kennedy casting the deciding vote. It’s not like he would have been going out on a limb, all crazy and such, to make it a 5-4 decision the other way.
It’s wonderful to hear a Supreme speak his mind outside of the parameters of a decision. It certainly provides a far greater feel, maybe even a meaningful understanding, of who this person is who holds such vast power over our law. But there is similarly no way to reconcile such public pronouncements with the failure to use the power entrusted to a justice of the Supreme Court to make decisions consistent with this belief.
Of course it would be easier for the justices if voters and elected officials would rid the courts of the burden of having to pass judgment on bad laws. It takes the onus off the justices and they won’t be responsible for making the tough decisions. But that’s what the job is, whether they like it or not. It’s making tough calls when the public and politicians stray from the Constitution to sate whatever blood lust arises from the issue of the day. This is the job of being a Supreme Court Justice. You’ve got the power to do something about it, and you’re expected to have the guts to use it.
That Justice Anthony Kennedy believes this to be so fundamentally wrong that he would call it “sick”, yet votes to uphold its constitutionality. Now that’s sick.
Today’s New York Times editorial addresses a speech given by Justice Kennedy at Pepperdine University law school, where he was critical of California’s absurd three-strikes law.
Justice Anthony Kennedy spoke out against excessive prison sentences this month in California, criticizing the state’s deeply misguided three-strikes law. It was a welcome message, delivered with unusual force. Much of the blame for the law, however, lies with the Supreme Court, which upheld it in a decision on which Justice Kennedy cast the deciding vote.
He turned more serious, however, on the subject of incarceration. Sentences in the United States are eight times longer than those handed out in Europe, Justice Kennedy said. California has 185,000 people in prison at a cost of $32,500 each per year, he said. He urged voters and elected officials to compare taxpayer spending on prisons with spending on elementary education.Justice Kennedy took special aim at the three-strikes law, which puts people behind bars for 25 years to life if they commit a third felony, even a nonviolent one. The law’s sponsor, he said, is the correctional officers’ union, “and that is sick.”
This would be the same Justice Kennedy who held that a life sentence for shoplifting, as a third felony, did not violate the 8th Amendment’s cruel and unusual punishment clause based on its glaring disproportionality. We’re not talking about mere incrementally increased punishment, but dropping the atom bomb.
When a Supreme Court Justice states, “that’s sick,” might we think that it’s bad enough to violate the 8th Amendment?
As the editorial properly notes, Justice Kennedy’s speech clearly gets it right. So why then is the 5th vote in favor of its constitutionality? Judicial modesty perhaps? Is “sick” not sick enough? Mind you, this was a 5-4 decision, with Justice Kennedy casting the deciding vote. It’s not like he would have been going out on a limb, all crazy and such, to make it a 5-4 decision the other way.
It’s wonderful to hear a Supreme speak his mind outside of the parameters of a decision. It certainly provides a far greater feel, maybe even a meaningful understanding, of who this person is who holds such vast power over our law. But there is similarly no way to reconcile such public pronouncements with the failure to use the power entrusted to a justice of the Supreme Court to make decisions consistent with this belief.
Of course it would be easier for the justices if voters and elected officials would rid the courts of the burden of having to pass judgment on bad laws. It takes the onus off the justices and they won’t be responsible for making the tough decisions. But that’s what the job is, whether they like it or not. It’s making tough calls when the public and politicians stray from the Constitution to sate whatever blood lust arises from the issue of the day. This is the job of being a Supreme Court Justice. You’ve got the power to do something about it, and you’re expected to have the guts to use it.
That Justice Anthony Kennedy believes this to be so fundamentally wrong that he would call it “sick”, yet votes to uphold its constitutionality. Now that’s sick.
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Great take on Kennedy. Its too bad this “sickness” is being ignored by the lawmakers, while CA sits on the verge of major fiscal meltdown.
There are situations where I could respect a Supreme Court justice believed an outcome was “sick” but voted to uphold the law, anyway. Interpretation of “cruel and unusual” in the 8th Amendment, where subjective analysis is explicitly called for, is not one of those instances.
Wonder what was in it for Kennedy to donate the fifth vote. What was it about the case that was threatening to him or tickled his biases?
Exactly. There is no real test for an 8th Amendment challenge, leaving it entirely to the conscience of the justice.
There is strong statistical evidence that Justices tend to get more liberal the longer they hold office, Justice Kennedy among them.
I wonder if we aren’t in one of those moments like the one that turned Bowers v Hardwick into Lawrence, with a Justice psychologically rethinking a prior ruling similar to Justice Powell’s rare expressed regret of his ruling in Bowers.
Maybe Kennedy will flip on this issue. No, he didn’t publicly say so publicly, which would be against court protocol, but maybe he is offering the public a signal that he’s changed his mind.
According to the NYT, Kennedy said the fact that the law was sponsored by the correctional officers’ union (i.e. among the few people who benefit from longer sentences) was sick, not that the law itself was. He can realize that Americans are fools to incarcerate people for so long at such expense, without ruling that the law therefore violates the 8th Amendment.
I bet you’re a law student. Am I right?
Like you, a former law student 🙂 Currently a litigator. So far as I know, the 8th Amendment challenge to the three-strikes law was premised on whether it was inherently cruel and unusual punishment, not on whether the process of enacting the law (e.g. the sponsorship of the correctional officers union) was improper.
PG is of course correct. Scott, do you have an actual substantive response, or will you just try to avoid the point by asking if I’m a law student, too?
Indeed, as I believe was well noted in the post, Ewing was an 8th Amendment case. But the sponsorship of the law would be irrelevant if the law was otherwise sound. If it makes Justice Kennedy sick, then it must be because of the correlation between the law and its source. Interested sponsor produces bad law.
Source alone is not merely irrelevant, but in this instance, quite common. Teachers unions lobby for teacher laws. Prison guard unions lobby for prisons. But Justice Kennedy found it important enough to single out for his talk, and to express it as something that made him sick. Does the DOJ make him sick for putting together the USA Patriot Act overnight from its wishlist? If so, he didn’t mention it.
You mentioned the union angle from the editorial as if it was new information. It’s in the quote in the post. Nothing new there. But to ignore the connection is to ignore his point. If the prison guards union’s participation makes Justice Kennedy sick, then it must relate to how bad a law it is. And if it’s that bad a law, there must be a reason why. Is it possible that it just lands too many people in prison? That’s hard to imagine, given that we have so many laws that do that. Why single this one out? The logical connection would be because the unique feature of this law is its disproportionality for a third time felon. It’s what makes three-strikes special. And hence, we arrive at the only rational conclusion as to Justice Kennedy’s point, and the irony of his being the deciding vote as to its constitutionality.
And since when do you stop by just to offer some snark? You wouldn’t let a comment like this stand at one of your posts, but you leave it for me? Then again, since when am I obliged to provide a substantive response to anyone who asks?
Nonetheless, I have done so. My law student question had to do with PG’s suggestion that the post didn’t mention the context of Justice Kennedy’s statement that it made him sick. Of course, it did. That’s the sort of omission I usually find with law students, who tend not to read a post thoroughly before trying to make a point. And sometimes lawprofs. As for the answer to PG’s question, it seemed rather self-evident, but sometimes you have to spell it out. That’s okay. I’m here to help.
Scott,
Perhaps I am mistaken, but I believe your post is premised on the alleged inconsistency between saying a law is “sick” and saying that it does not violate the 8th Amendment. The problem that PG pointed out, as I understand it, is that Justice Kennedy did not say the law was “sick.” Given that, there doesn’t seem to be anything inconsistent with what Kennedy said.
Logically that’s true, but given the way reasonable people communicate that sounds like a stretch. If Kennedy thinks the law itself is not overly troubling, why would it he consider it “sick” for the correctional officers’ union to sponsor it? It would seem odd for Kennedy to attach outrage to the sponsorship of the law, without attaching outrage to the law itself.
I think you’re being too literal as to the reach of the “sick” comment. As Davis says, it’s a stretch to disconnect the sick comment from the law itself and ignores its plain meaning.
And your apology is accepted. Just because you’re slumming here doesn’t mean you get to be as snarky as me. 😉
SHG,
Er, where did I “suggest” that the post didn’t mention the context of Kennedy’s statement? Of course it did; I’m relying solely on the post for my knowledge of what Kennedy said. Please quote where I said the post didn’t mention the context… unless you’re the one who didn’t read thoroughly before trying to make a point. Your assertion that I asked a question at some point — despite the total absence of question marks in my comments — indicates that you didn’t care to read my comment carefully before deriding it.
I think the way Supreme Court justices communicate is generally better-guided by looking at the statement for logical truth instead of for its similarity to “the way reasonable people communicate.” Many justices have derided laws whose constitutionality they uphold (see Thomas’s dissent in Lawrence v. Texas), and praised laws they’d deemed unconstitutional (see Scalia speaking about Texas v. Johnson). That laymen often equate “stupid law” with “unconstitutional law” doesn’t help you understand what a justice is saying about the law.
And it seems pretty clear that Kennedy was particularly concerned about the literal dollar cost of American incarceration (not just the figurative “cost” in human suffering): “California has 185,000 people in prison at a cost of $32,500 each per year, he said. He urged voters and elected officials to compare taxpayer spending on prisons with spending on elementary education.”
Thus the sponsorship of the correctional officers’ union is relevant because he’s talking about how voters are taking money out of their pockets, and away from elementary schools and other priorities, and handing it to the very folks who pushed the law. That kind of dubious politicking doesn’t inherently cause the law to violate the 8th Amendment. (Though one could wish Kennedy would reflect on what Citizens United’s removing limits on unions and corporations in politicking will do in creating more “sick” connections between a law’s political proponents and the folks who will benefit financially from it.)
Here’s the deal. You don’t get to come to my house and demand that I prove something to you. Narcissist though you may be, you’ve posted comments on this one post, yet think I owe you responses. I don’t. I allow you to post your thoughts. I can similarly not allow you to do so.
You are a “litigator like me?” I’m not a litigator. I’m a trial lawyer. A trial lawyer is what litigators hope to be when they grow up. We are not the same, and you are not in charge here. No one reads SJ wondering what PG thinks about something. Here’s a surprise: this is my blawg, not yours. Your comments post because I am gracious enough to allow them to post. You want to challenge me? Do it elsewhere. Do not come here and behave like spoiled brat.
I allow Orin to post the occasional snarky comment because I like and respect Orin. It’s a courtesy I give him. You don’t get that courtesy. So be angry all you want. Don’t read another post here. Don’t write another comment here. It doesn’t matter to me at all. But do not come here and think you own the place or behave like an asshole. Trust me. Your absence won’t be missed.
The prison guards’ union didn’t write Three Strikes, even if they put a lot of money into passing it. In fact, it was written by Polly Klaas’ grandfather.
But the logic (?) of your conclusion blows me away. Are you seriously asserting that every objectionable law is, ipso facto, unconstitutional? Or did you mean to say that being unconstitutional is the only way in which a law can be objectionable? Your final sentence implies one or the other.
This is an 8th Amendment cruel and unusual punishment issue, not “every law.” Stay away from things you don’t grasp.
JDG- you are correct; CCPOA did not write the three strikes law- in fact they partnered with CVU/Harriet Salarno (Crime Victims United) and the ensuing media blitz persuaded the GP in passing three strikes. I would call that a major conflict of interest.
According to California state officials, there presently are 7100 three-strikes prisoners incarcerated under that law. Most triggered their sentences by committing serious crimes. They include 294 convictions for murder, 34 for manslaughter, 1,408 robbery, 241 for child molesters, 136 for rape, and 83 for kidnapping.
However, there are also 344 prisoners convicted of petty theft, who are languishing, too, under the 25-years-to-life sentencing. The Supreme Court heard oral arguments in two test cases, that challenged the constitutionality of the California statue. The defendants are claiming the law violated the Eighth Amendment’s prohibition against “cruel and unusual punishment.” Twenty-six states, and the federal government, also, have comparable three-strike laws on their books. It’s clear the “Three-Strikes” sentencing has added to the growing prison population disgrace. It discriminates in its application against poor and working class defendants, while leaving the wealthy ones, who cleverly hide behind a corporate shield: to steal, cheat, rob, conspire and to bribe over and over again, with impunity.
Finally, If a fifty years sentence for stealing video tapes doesn’t shock the conscience of the Supreme Court, nothing will. It should also compel the legislatures, and the Congress, too, in to repealing the “Three-Strikes” statutes, as being repugnant to the public policy of a free people.
One of the cases before the highest tribunal involves Leandro Andrade. He got hit with a 50-year-to-life sentence for shoplifting Kmart video tapes, like “Snow White” and “Free Willie,” valued at $153, years after his convictions for two home burglary offenses. Another target of the “three-strike” law is Gary Ewing. He got socked with a 25 years to life sentence for stealing three Callaway golf clubs worth $1,197. This, too, was years after his earlier convictions for robbery and burglary. The prosecutor in Ewing’s case could have elected to charge him with a misdemeanor, which would not have triggered the three-strikes law. Instead, the D.A. decided to charge him with a felony.
The U.S. 9th Circuit agreed with Andrade that his sentence was unconstitutional, but affirmed Ewing’s conviction. Unfortunately, for both defendants, the Supreme Court, under strict constructionist Chief Justice William H. Rehnquist, tends to defer to the wisdom of state legislatures, when dealing with the appropriateness of the punishment for crimes committed under their laws.
Much as I appreciate your comment, this comes dangerously close to a soap box comment, which is something that I strongly urge you to avoid. As much as you might want to use the opportunity to espouse a lengthy position, I would appreciate your sticking to the subject of the post.