Ken Klukowski: Supreme Court Continues to Impose Morality on States


ACRU Staff


May 20, 2010

ACRU Senior Legal Analyst Ken Klukowski wrote this column appearing on on May 19, 2010.

Monday’s Supreme Court decision holding that sentencing an underage person to life in prison is unconstitutional is yet another disturbing example of judicial activism. More than simply another run-of-the-mill activist decision, the Court has reached a new level of usurping the powers the Constitution entrusts to our elected leaders in the states.

On May 17, the Supreme Court handed down its decision in Graham v. Florida. In this case, a 16 year-old habitual criminal named Terrance Graham had served time for armed burglary and assault. When he was released on probation, he was then arrested again for robbing a woman in her home at gunpoint. During questioning, he admitted to other felonies he had recently committed as well. Found to be a felon who could not be rehabilitated, he was sentenced to life in prison under Florida law.

When that conviction was upheld on appeal in Florida, the Supreme Court took the case to consider whether sentencing a minor to life in prison without parole violates the Eighth Amendment, which forbids cruel and unusual punishments.

As Justice Clarence Thomas explained in dissent, the Eighth Amendment only prohibits methods of punishment and interrogation that are cruel and unusual, as that term was understood when the Bill of Rights was adopted in 1791. That’s to say, the Eighth Amendment outlaws torturing people to get confessions, or punishments such as maiming, branding, disfigurements, or other such agonizing or debilitating punishments.

In recent decades (the last half of the 1900s), the Supreme Court added the rule that the Eighth Amendment requires punishments be “proportional” to the crime. This proportionality requirement increasingly became a factor in federal courts being able to strike down state criminal laws.

Then the Supreme Court decided Roper v. Simmons in 2005. In an opinion by Justice Kennedy, the Court held that the death penalty was unconstitutional if the criminal was under age 18 at the moment he committed the crime, even if he killed someone.

In Graham, five justices formed a majority, whereby the Court extended the Eighth Amendment to cover life in prison as well (at least where no one died as a result of the crime). The Court held that even though most states allow this punishment for minors, the fact that it was rarely imposed somehow means that there’s a “national consensus” against it, which in turn means that the our society’s “evolving standards of decency” do not permit this punishment.

In a strong dissent, Justice Thomas (joined by Justice Scalia, and in part by Justice Alito) objected that the Court is substituting its own moral judgment for that of the people of Florida. Thomas points out that the Court seemed to make an exception for the death penalty because death is the ultimate punishment, different from any other. Now, Thomas explains, the Court reserves the right to ban the second most-severe punishment. “No reliable limiting principle remains to prevent the Court from immunizing any class of offenders, from the law’s third, fourth, fifth, or fiftieth most severe penalties as well.”

As Justice Thomas explains, this means that the Court is now making “moral judgments,” and imposing those judgments on the American people. “I am unwilling to assume that we, as members of this Court, are any more capable of making such moral judgments than our fellow citizens. Nothing in our training as judges qualifies us for that task, and nothing in Article III [of the Constitution] gives us that authority.”

Surprisingly, Chief Justice Roberts voted to throw out the penalty is this case. He clearly rejected the idea that life in prison could never be imposed on a minor and refused to join the majority opinion, instead saying that he thought the facts of this case alone did not rise to the level of life in prison. The chief justice instead reasoned that the penalty was not proportional to the crime, and that the state of Florida did not ask the Court to consider overturning those precedents that established the proportionality rule.

The most disturbing aspect of this decision is the erosion of state sovereignty. Under the Tenth Amendment, all matters not expressly entrusted to the federal government by the Constitution are reserved to the states and the people. One of the main areas where states are sovereign is determining what acts within each state are criminal, and what punishment to impose on those criminals.

As my coauthor Ken Blackwell and I explain in our book The Blueprint: Obama’s Plan to Subvert the Constitution and Build an Imperial Presidency, a key part of President Obama’s plan to transform America is to appoint federal judges who will impose their own beliefs, overriding the moral judgments of democratically-elected leaders.

This week’s Supreme Court decision suggests that President Obama may be close to getting what he wants, as he continues to remake the Supreme Court in his own image.



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