Mediaboss Marketing

While divisions on the Court are common, cleanly ideological breaks are less so. Justice Stephen Breyer explained it this way in a June 2021 podcast for the non-partisan National Constitution Center: I mean, we agree almost half the time, were unanimous. And, he continued, the five-fours are about, I dont know, 20 percent, 25 percent, 15 percent depending on the year. And its not the same five and the same four. Thats what makes the cases involving the rights of criminal defendants and immigrants this term so notable: The split was often the same six and the same three, a detail that offers some insight into one aspect of the Courts developing identity.

Because the criminal justice system in the U.S. is vastly 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 the standpoint of racial and ethnic justice. The extraordinary interpretive power of nine unelected justices cannot be overstated. The U.S. Constitution houses the primary legal prohibitions on arbitrary governmental constraints on life and liberty, with the Fifth Amendment preserving due process rights vis--vis the federal government and the Fourteenth Amendment binding the states.

Bear in mind too, that in effect, the Supreme Court amends the Constitution through interpretation irrespective of each justices politics. For actual voters to amend the Constitution, by contrast, they must elect politicians who will ratify revisions by two-thirds in both Houses of Congress and three-quarters in all state legislatures. This is nearly impossible to achieve, a reality that shines a light on the mammoth power of the unelected justices, whose decisions cannot be altered absent a fresh majority on the Court or a formal amendment to the Constitution overruling a particular decision.

Paradoxically, it is the aforementioned cases in which justices crossed ideological lines that demonstrate how significant it is that on questions of incarceration, conservatives and liberals split so cleanly. Because it represents such a departure from the Courts historical behavior. In 2014, a panel of scholars concluded that the John Roberts Court at that point actually [produced] a notable number of rights-protective liberal decisions, and that when the Roberts Court [was] most deeply divided on criminal justice issues, it has produced more liberal decisions than conservative decisions, due largely to the voting patterns of Justice Anthony Kennedy whose moderate voting record place[d] him at the Courts center.

The late Justice Antonin Scaliaa conservative icon who reshaped constitutional jurisprudence in a number of wayshad developed a spacious view of individual rights within the criminal justice system, particularly under the Fourth Amendment, which governs unreasonable searches and seizures. With Kennedy, Scalia and the reliably liberal Ruth Bader Ginsburg now gone, those enmeshed in the coercive criminal justice and immigration systems must rely on President Donald Trumps appointees to exercise their vast discretion to either affirm or dissolve constitutional rights. So far, the new conservative coalition belies a discomforting callousness in close cases.

The ideologically split cases were not the most attention-grabbing of the Courts recent docket. But a closer examination of how the majority ruled shows why they collectively reveal the modern Courts emerging character.

Jones v. Mississippi was an Eighth Amendment case challenging a 15-year-old minors sentence to life without parole for murdering his grandfather. Writing for a 6-3 majority, Justice Kavanaugh acknowledged that the Court had issued two landmark rulings in 2012 and 2016 constitutionally outlawing mandatory life-without-parole sentences for juvenile offenders. At a resentencing hearing in light of these rulings, counsel for the defendant Brett Jones, who is now 32 years old, argued unsuccessfully that the sentencing court must...make a separate factual finding that the defendant is permanently incorrigible before deciding to lock him up for life. Kavanaugh concluded that a more detailed finding regarding a juveniles prospect for rehabilitation was not constitutionally required so long as the sentencer consider[s] the defendants youth.

In a dissenting opinion, Justice Sotomayor said [t]he Court is fooling no one. Time and again, this Court has recognized that children are constitutionally different from adults for purpose of sentencing, she wrote, as the character of a juvenile is more transitory and the impetuousness and recklessness that may dominate in younger years can subside. But with Ginsburg and Kennedy no longer on the Court, the new majority was collectively more sanguine about condoning discretionary life sentences for juveniles, likely paving the way for more children to spend their adult lives behind bars.

Kavanaugh wrote for the same 6-3 majority in Edwards v. Vannoy, refusing to apply a prior Supreme Court ruling to benefit a criminal defendant. Just months before, in April 2020, the Court had decided in Ramos v. Louisiana that criminal convictions by non-unanimous juries were unconstitutional. The question in Edwards was whether that ruling should apply retroactively to non-unanimous jury convictions that occurred before Ramos. Although Justice Neil Gorsuch delivered the lead opinion in Ramos, the other justices fell all over the map in that case. Gorsuch was joined in part by Ginsburg, Breyer, Sotomayor and Kavanaugh, for example, while Justice Elana Kagan joined part of Alitos dissenting opinion. But once Coney Barrett had joined the Court, the conservative bloc became more cohesive in rejecting the criminal defendants plea in Edwards, leaving prisoners who had been sentenced without the benefit of the Ramos decision to serve their time. Kagans dissent underscored that, [c]iting centuries of history, the Court in Ramos termed the Sixth Amendment right to a unanimous jury vital,' essential,' indispensable,' and fundamental to the American legal system, and vindicated core principles of racial justice. The touchstone of the new conservative majority looks decidedly different.

Conservatives were likewise unsympathetic to criminal defendants complaints of bad lawyering. In Shinn v. Kayer, a 6-3 majority in a per curiam opinion (meaning no justice claimed authorship) reinstated an Arizona inmates death sentence for the 1994 shooting death of one Delbert Haas during a gambling trip in Nevada. The U.S. Court of Appeals for the Ninth Circuit had thrown out defendant George Kayers sentence of death, persuaded that his Sixth Amendment right to effective assistance of counsel was violated during sentencing because his lawyer failed to investigate evidence of addiction, mental illness and a recent heart attack, among other mitigating factors. But the Supreme Court majority concluded that a fairminded jurist would have given more weight to the defendants prior conviction for burglary with a handgun and doubted whether Kayers addictions and bipolar disorder significantly impaired his ability to appreciate the wrongfulness of his conduct. In Dunn v. Reeves, the same 6-3 majority reversed a lower courts decision granting habeas corpus relief to a death row prisoner who claimed that his trial counsel failed to present mitigating evidence of his intellectual disability.

On the immigration front, the scorecard was similarly stacked against individual petitioners to favor the government. Justice Alito authored the opinion for a 6-3 majority in Johnson v. Guzman Chavez, ruling against a group of noncitizens who were deported from the United States but later reentered without authorization. When the government discovered they had returned, it reinstated their removal orders. The petitioners filed asylum proceedings because they feared persecution or torture if they returned to their home countries. The Court held that, in the interim, while their asylum pleas were adjudicated, they were subject to mandatory detention, denying them so much as a bond hearing. Without a hearing, the government would effectively keep the immigrants indefinitely jailed. As Breyer noted in dissent, they face proceedings that may last for many months or years.

Justice Gorsuch seemed equally unsympathetic to the plight of non-citizens in his opinion for a 5-3 majority in Pereida v. Wilkinson, which ruled against an undocumented resident who challenged deportation based on his guilty plea for the minor crime of attempted impersonation under Nebraska law. The Court placed the burden on the immigranta father of three who had been in the United States illegally for 25 years but sought to avoid deportation under a provision that makes exceptions for family hardshipto prove that his crime was not one of moral turpitude that would disqualify him from using the deportation exception. The trouble was that his criminal record did not make clear what his underlying crime was. As Justice Breyer explained in dissent: "We cannot look to jury instructions because there was no jury. Nor is there any plea agreement, plea colloquy, or 'comparable judicial record of the plea that might help determine what Mr. Pereida admitted. To make matters worse, [t]he Government confirmed several times at oral argument that it had not argued that a judge should be allowed to look at a broader array of evidentiary materials because, in its view, that issue was not implicated since no other documents exist. That did not stop the majority from ruling against Pereida for failing to prove what the government apparently could not.

For the most part, the Courts latest slew of cases signals that the law, in all its ambiguities, still trumps partisanship. But the handful of cases where conservatives joined forces also suggest that personal ideologyor perhaps the conservative focus on individual responsibility makes them loath to allow people second chances at liberty or legal immigration statusremains stealthily at play. Meanwhile, the United States has the highest prisoner rate in the world, with 639 prisoners per 100,000 people. So far this court appears unmoved by such statistics.

Link:
Opinion | The One Area Where the Supreme Courts Six Conservative Judges Could Agree - POLITICO