April 28, 2008
Now Texas law allows for the presentation of the voter registration card, which lacks a picture. As per that statute, I accept it, but I always have this niggling doubt in the back of my mind -- what if this has been stolen from someone's mailbox? I believe that a sstate-issued photo ID would be preferrable.
Yesterday, the Supreme Court ruled that nothing in the US Constitution forbids a state from requiring one for voting purposes.
States can require voters to produce photo identification, the Supreme Court ruled Monday, upholding a Republican-inspired law that Democrats say will keep some poor, older and minority voters from casting ballots.Twenty-five states require some form of ID, and the court's 6-3 decision rejecting a challenge to Indiana's strict voter ID law could encourage others to adopt their own measures. Oklahoma legislators said the decision should help them get a version approved.
The ruling means the ID requirement will be in effect for next week's presidential primary in Indiana, where a significant number of new voters are expected to turn out for the Democratic contest between Sens. Hillary Rodham Clinton and Barack Obama.
The basis for the decision is a very straightforward one, and comes from one of the members of the more liberal bloc on the Supreme Court.
"The application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting the integrity and reliability of the electoral process," he wrote. His opinion was joined by Chief Justice John G. Roberts Jr., who is normally on the right, and Justice Anthony M. Kennedy, who is often considered a swing vote.The opinion left open the possibility that voters who had proof that they were adversely affected by such laws could petition the courts, but made it clear that it would be difficult for them to prevail.
In other words, the state has a legitimate interest in preventing voter fraud -- but the controlling opinion in this case allows for additional consideration of the question depending upon some showing of actual harm or disparate impact. By any stretch of all but the most fevered imagination, that is a reasonable standard to impose when one looks at a law that is neutral on its face and designed to safeguard something so fundamental as the integrity of elections.
Which only serves to prove that there are three members of the High Court whose hyperactive imaginations make it impossible for them to be taken seriously on this (or most other) issues.
Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer dissented. Justice Souter, in an opinion joined by Justice Ginsburg, said the Indiana law, which calls for a government-issued photo identification, like a driver’s license or passport, “threatens to impose nontrivial burdens on the voting rights of tens of thousands of the state’s citizens.”
The so-called "nontrivial burdens" being the acquisition of a free state-issued identification card and presenting it on election day -- or within 10 days afterwards if they do not have it on election day.
Am I insensitive to the concerns of those who brought this challenge? No, I am not -- and agree with the Washington Post that the impact of such laws should be monitored to make sure that there is in practice no undue burden placed upon the exercise of the right to vote.
On the other hand, I am not at all in sympathy with the impotent attempt of the New York Times to overrule the nation's top court in today's editorial, in which it uncritically accepts all the arguments of those who challenged the law. But even those speculative claims fall victim to one of the undeniable realities of this case -- one of the plaintiffs in the case was found to be a fraudulent voter, and this law is likely to stop even more.
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April 23, 2008
The most significant decision handed down yesterday dealt with search and seizure issues.
The Supreme Court affirmed Wednesday that police have the power to conduct searches and seize evidence, even when done during an arrest that turns out to have violated state law.The unanimous decision comes in a case from Portsmouth, Va., where city detectives seized crack cocaine from a motorist after arresting him for a traffic ticket offense.
David Lee Moore was pulled over for driving on a suspended license. The violation is a minor crime in Virginia and calls for police to issue a court summons and let the driver go.
Instead, city detectives arrested Moore and prosecutors say that drugs taken from him in a subsequent search can be used against him as evidence.
"We reaffirm against a novel challenge what we have signaled for half a century," Justice Antonin Scalia wrote.
Scalia said that when officers have probable cause to believe a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest and to search the suspect in order to safeguard evidence and ensure their own safety.
Now this gets into the whole issue of whether actions taken in good faith by police, even when there was an error, violate the Constitution. After all, the search was standard procedure pursuant to an arrest, and it appears from my reading o this somewhat vague wire service report that the officers did not realize that an arrest under the circumstances was a violation of the standards set by the state. A string of cases dating back to the early 1980s made this result no surprise -- after all, police officers cannot be expected to be fortune tellers regarding future appeals court decisions.
And before our friends on the left start intoning the usual rhetoric about fascist police states, please notice that even Ruth Bader Ginsburg, the ACLU's mouthpiece on the Supreme Court, ruled that there was no problem with the search.
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, April 16, 2008
Justice Stevens, in a welcome surprise, said that he had come to the conclusion that the death penalty carries such high risks of error and discrimination, while doing so little good, that it is unconstitutional. He voted to uphold KentuckyÂ’s procedures because he believed precedent required it, but he said it is time for the court and legislatures to take a hard look at whether the death penaltyÂ’s substantial costs outweigh its benefits.WednesdayÂ’s ruling clears the way for states that had put their executions on hold to resume them. Lawyers for death-row inmates insist, however, that the legal test the Roberts decision used gives them a basis for more challenges to lethal injection. That means more fights over how much needless pain is too much.
The better course would be for the nation to undertake Justice Stevens’s hard look at capital punishment — and leave it behind.
Now I disagree with the "leave it behind" conclusion, but at least the editors are constitutionally honest here. They know that the death penalty is unambiguously constitutional, and that any decision that declared otherwise would be an abrogation of the language of the Constitution itself.
On the other hand, I've no problem with a discussion of the death penalty -- indeed, I have already made clear the preferred, relatively painless method of execution that I believe would meet the Robert's test. The Texas Moratorium Network has continued to allow its heart to bleed over the poor murderers rather than their innocent victims.
Let the discussion over capital punishment (not capital rehabilitation or capital deterrence -- capital PUNISHMENT) continue. If the democratic process leads to its repeal, then so be it. but i believe most folks recognize that there are crimes for which the ultimate penalty is the only appropriate one.
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The Supreme Court on Wednesday upheld the most common method of lethal injection executions, likely clearing the way to resume executions that have been on hold for nearly 7 months.The justices, by a 7-2 vote, turned back a constitutional challenge to the procedures in place in Kentucky, which uses three drugs to sedate, paralyze and kill inmates. Similar methods are used by roughly three dozen states.
''We ... agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment,'' Chief Justice John Roberts said in an opinion that garnered only three votes. Four other justices, however, agreed with the outcome.
Roberts' opinion did leave open subsequent challenges to lethal injection practices if a state refused to adopt an alternative method that significantly reduced the risk of severe pain.
The reality, though, is that the opponents are likely to never meet that burden of proof. How does on determine that there is severe pain? What constitutes a significant reduction of risk? The terms are so vague as to be meaningless.
I still want states to adopt my alternative form of lethal injection – 9mm of lead to the base of the skull delivered at high velocity. Quick, efficient, and relatively painless.
And if we want to be sporting about it, give the condemned a choice of 10 pistols – one of which will be unloaded. An empty chamber results in an automatic commutation to life without parole – but only after the condemned has felt the muzzle to the head and heard the click of the trigger, giving them instant empathy with their innocent victim who was not even offered that much mercy.
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April 14, 2008
Ever since the Supreme Court reinstated the death penalty more than 30 years ago, justices have been finding ways to limit it.In the intervening years, they have employed their interpretations of society's "evolving standards of decency" to remove juvenile and mentally retarded killers from death row.
Before that, they excluded kidnappers who did not kill and even some accomplices to murder. In 1977 the court also concluded that a state could not execute a man who raped an adult woman.
But on Wednesday the court will consider whether a person who rapes a child is different. Louisiana prosecutors will argue that the same societal mores that have persuaded justices to spare certain categories of criminals lead in the opposite direction when it comes to child rapists, demanding an expansion of capital punishment, not a retrenchment.
And herein lies the problem with the “evolving standard of decency” argument used by the Supreme Court. If it is, in fact, based upon what society holds is acceptable, then there is no fixed standard of what is or is not constitutional in the realm of the death penalty, which produces a degree of constitutional uncertainty which is unacceptable in a society that operates based upon the dictates of law rather than men. Unless, of course, the argument is that this evolution can move in only one direction, a liberal one, then the position taken by the justices is inherently flawed and illegitimate from a constitutional perspective because there is no language in the Constitution to support such a position. Indeed, I’d argue that most of the death penalty jurisprudence of the last three decades suffers from such flaws, all of which come back to the underlying problem that the justices have been substituting personal opinion and non-constitutional sources for the Constitution itself.
As for the question of the constitutionality of executing child rapists, an originalist reading of the Constitution certainly allows for it. Indeed, it would also allow for the execution of those under 18, based upon the practices in place at the time the Bill of Rights was adopted. One can question the wisdom of the law in question – but striking a law down as unwise is not the province of the Supreme Court under our system of government.
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April 13, 2008
The study — with the unwieldy title “An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court” —published in Constitutional Commentary, looked at how nine long-serving justices answered Senate questions, and how they then voted on the court. While it does not say that any nominee was intentionally misleading, it still found a wide gap.Justices Antonin Scalia and Clarence Thomas, for example, told the Senate that they had strong respect for Supreme Court precedents. On the court they were the justices most likely to vote to overturn those precedents. Justice David Souter deferred more to precedent than his Senate testimony suggested he would.
Here's the problem with the analysis - justices take an oath to uphold the Constitution of the United States, not the precedents of the Supreme Court. Their obligation when they find a precedent which they believe was wrongly decided is to make a decision that conforms with the Constitution, not the seemingly erroneous precedent. After all, it is the Constitution that is the highest law of the land, not the decisions of the Supreme Court.
Of course, the Warren Court also made short shrift of many earlier precedents. I don't see any objections to their work. But then again, that was a liberal court full of liberal justices, so I doubt that we will ever hear much criticism (explicit or implicit) out of the NY Times editorial board.
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