I look at one decision and view it as having been just about right. I look at another and consider it to be completely wrong. And a third -- one that I did not expect to see decided -- was spot-on.
First, let's look at the Arizona immigration law decision. I honestly think that this decision was the best we could reasonably hope for. The creation of immigration related crimes by the state of Arizona really did tread into areas constitutionally reserved to the federal government. On the other hand, checking immigration status when making unrelated stops and/or arrests is no different than running a warrant check. I'm therefore not displeased with the direction the court went here. And beyond that, we got another gift, courtesy of the Obama Regime itself, in the wake of this decision -- the Department of Homeland Security will no longer respond to Arizona requests for verification of immigration status unless there is an outstanding felony warrant. In other words, the Obama Regime has once again indicated that it will not uphold the laws of the United States regarding illegal immigration. The lawlessness is staggering.
The conservative justice accused Obama of selectively enforcing only those immigration laws that he deems appropriate and said states would never have joined the union if the framers of the Constitution had intended for the executive branch to wield power in such a way.
“The delegates to the Grand Convention would have rushed to the exits,” Scalia wrote.
While I don't like that the justice waded in to the current dispute over Obama's order that those brought to the country as children not be deported (it was not a part of this case and he'll now have to recuse himself if it does reach the High Court), he is exactly correct in his observation -- the framers never intended the President to have such powers. Once again, Scalia sounds the clarion call back to fidelity to the Constitution. Unfortunately, I fear that the controversy over his policy criticism will detract from his having done so. I also agree with his observations on state sovereignty -- though will note that the Supreme Court's Fourteenth Amendment and Commerce Clause jurisprudence have served to strip states of sovereignty for the better part of a century.
I'm less pleased by the Court's Eighth Amendment ruling. In that ruling, the majority decided that a sentence of life without parole for juveniles constituted cruel and unusual punishment, even in cases of murder that would qualify for the death penalty if committed by an adult.
The Supreme Court on Monday abolished the imposition of mandatory sentences of life without parole for all juveniles convicted of murder.
Justice Elena Kagan, writing for the 5-4 majority, said, “By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment.”
The ruling that such sentences violate the Eighth Amendment continues the juvenile justice reform movement’s streak of victories at the high court over the last decade. In 2005, the justices eliminated the death penalty for minors. In 2010, the court struck down life-without-parole sentences for all juveniles convicted of non-homicide offenses. Justice Anthony Kennedy wrote the majority opinion both times, joined by the court’s four-justice liberal bloc.
As I've pointed out in the past in the predecessor rulings to this decision, the holding of the court has no firm grounding in either the Constitution or the American legal tradition. The liberal wing of the Supreme Court is constitutionalizing its policy preferences here -- and having done so, prevented the "evolving national consensus" from continuing its evolution in any direction other than that preferred by liberals.
Professor Ann Althouse points to Justice Alito's comments in dissent echoing my position.
"Our Eighth Amendment case law is now entirely inward looking," writes Justice Alito, dissenting today in Miller v. Alabama — PDF — which declared it mandatory life imprisonment to be "cruel and unusual" punishment when imposed on a juvenile.
Unless our cases change course, we will continue to march toward some vision of evolutionary culmination that the Court has not yet disclosed.
There is nothing in our legal or constitutional history to support this decision aside from a couple of precedents that amount to "because we say so". If you want a reason to make sure we have a conservative in the White House after this election, consider that at least two of the members of the majority here are likely to leave the Supreme Court and be replaced by the man elected in November -- as is also the case with Justice Scalia.
And then there was the surprise decision, coming on a Montana case in which the court summarily overturned a decision of the state's supreme court that directly conflicted with Citizens United. The justices decided that there was no need for oral arguments -- and acted to preserve the First Amendment. Hurrah!