Supreme Court: Highlights...(Part 13--Partisanship?: GRAPHIC Recap of All)

Without delay. Here's the bottom line--graphically.
GRAPH 1
Politically Conservative vs Politically Liberal
(click to enlarge)
Justices Scalia and Thomas, perfectly politically conservative. Chief Justice Roberts and Justice Alito, very much so. Justices Ginsburg, Breyer, and Sotomayor, perfectly politically liberal. Justice Stevens (now retired), nearly so.

Justice Kennnedy, typically the swing vote, was significantly more politically conservative than liberal. The Court as a whole, slightly less so.

Supreme Court: Highlights...(Part 12--GRAPHIC Recap of Criminal Cases [Restraint? Partisanship?])

There is so much talk about the need for judicial restraint. Politicians (especially Senators during the Supreme Court confirmation process), commentators, and some Justices themselves, speak about it passionately, religiously, robotically. You know: judicial restraint good; activist judges bad. The dichotomy is largely nonsense. It is also an extremely poor proxy for what the restraint partisans actually do and don't want from judges.

A major tenet of judicial restraint, if not the major tenet, is that judges should defer to the choices of the other branches and of the states. Judges should uphold the laws enacted by the Congress and the states, unless those enactments clearly violate the Constitution. Judges should not invalidate the choices of those more democratic, majoritarian, more-accountable-to-the-people, and closer-to-the-people arms of the government. The duly enacted laws of Congress and the states should be left alone by the judiciary, unless they are unconstitutional beyond a reasonable doubt.

In today's political and judicial discourse--and I don't mean to suggest that those two are necessarily distinct--it is typically the conservative politicians and judges who advocate restraint. It is the liberal judges who are typically accused of being activists. Of course, who's accusing who is oftentimes reversed. It depends on the case and the issue. (E.g., who votes to invalidate affirmative action laws? gun control laws? campaign finance laws? etc., etc.)

Supreme Court: Highlights...(Part 11--GRAPHIC Recap of Criminal Law & Related Voting)

In the last several posts, we examined the Justices' voting in the criminal law and related cases included among last term's "Top Ten" highlights. Now let's collate what we've seen. And let's do so in graphs.

We'll combine the data from the 5 cases, consider that data from several angles, and then depict the results in graphs. Indeed, this post's center of gravity will be graphs. Not the least because many readers of New Court Court Watcher understandably prefer to look at a few graphs than to wade through the [i.e., my] verbiage. Plus, graphs can show pretty starkly what the Justices really are and are not doing, regardless of their verbiage. Plus plus, I do get a kick out of these graphs--apparently a symptom of my accelerating geekage.

So let's get on with the graphs.

Supreme Court: Highlights...(Part 10--Even More Criminal Law: "Honest Services" and Guns [continued])

In McDonald v. Chicago, the Court ruled that the recently recognized 2d Amendment right of individuals to keep and bear arms was applicable against state and local laws, not only against federal ones. This is the last of the 5 criminal law-related cases among the "Top Ten" highlights of last term.

The Court had previously decided, in D.C. v. Heller (2008), that the 2d Amendment guarantees the firearm right to individuals, not simply to states to form and maintain organized militias. But because the Bill of Rights, ratified in the early years of the Republic, provides protections only against the federal government, the question remained whether such an individual firearm right was sufficiently fundamental to be a protection against state and local government infringement as well. That is, speaking constitutionally, whether the firearm right is part of the "liberty" that is guaranteed against state governments and their subsidiaries by the 14th Amendment--one of the Amendments ratified after the Civil War.

In McDonald, a 5-4 majority answered in the affirmative. State and local gun control laws throughout the country are now subject to close constitutional scrutiny. Undoubtedly, many of them will be casualties of the McDonald ruling.

Supreme Court: Highlights...(Part 9--Even More Criminal Law: "Honest Services" and Guns)

   The remaining 2 cases included within the "Top Ten" highlights of the Court's last term are a bit different than the first 3 previously discussed. These 2 cases do not deal with street crime, violent crime, crime typically committed by undesirables or in parts of town that they have made undesirable, crime that strikes fear in the citizenry and stokes calls for government-sanctioned violence in return. These are not cases about crimes that evoke the usual law-and-order versus rights-of-the-accused divide.

No, "honest services" fraud and owning firearms do not fall easily within the same class as those other crimes. "Honest services" fraud, a white collar crime, is more likely to have been committed by a "respectable" member of the community as by a "common" thug. And owning guns for self or home defense or for hunting, even if in violation of some state or local regulation, is just as likely to be engaged in by an otherwise law-abiding neighbor as by a violent miscreant.

No, these crimes are different. They evoke different reactions, politically, ideologically, emotionally. And they do so for the Justices as well as for most everyone else.

Supreme Court: Highlights...(Part 8--More Criminal Law: Miranda)

Miranda warnings and rights have been the subject of unrelenting debate, Court interpretations cum vacillations, and near death experiences ever since the landmark decision inaugurating those interrogation safeguards in 1966. The decision in Miranda v. Arizona was rendered by a bitterly contentious 5-4 vote. The most recent variation on the Miranda theme, Berghuis v. Thompkins, was likewise a bitter, contentious, 5-4 decision.

May the police continue to interrogate a suspect, for 3 hours, after reciting the Miranda warnings, but without first obtaining the suspect's waiver of the right to remain silent? That's the Thompkins case.

Previously, the Miranda safeguards were understood to mean that interrogation is not permitted unless a suspect voluntarily and knowingly waives the right to remain silent. (And that is exactly how the federal appeals court had ruled in this case.) But now, after the Supreme Court's decision in  Thompkins,  interrogation is permitted unless the suspect clearly invokes that right. The presumption of interrogation validity has been reversed.

Supreme Court: Highlights...(Part 7--More Criminal Law Decisions)

Among the highlights of the Supreme Court's last term was a case involving a life-without-parole sentence for a crime committed by a minor. As with every other case discussed in this series, the Court was sharply divided.

In the last post, we began a closer look at the criminal law decisions among those "Top Ten" highlights. We discussed the Court's ruling, in Padilla v. Kentucky, about an accused's constitutional right to counsel. The Court held that the right was violated because the lawyer failed to tell his client that he would be deported if he pleaded guilty. In fact, the lawyer had assured the client that he wouldn't be. (See Supreme Court: Highlights...(Part 7), Dec. 14, 2010.)

 The Court was split in that case along the expected liberal versus conservative lines, with Justice Kennedy siding with the liberals. On the conservative side, Chief Justice Roberts and Justice Alito took a position midway between the 2 ideological camps. They joined in a separate opinion, authored by Alito, to argue that the right to counsel is NOT violated when a lawyer simply fails to say anything about the deportation consequences. The right to counsel, in their view, is violated only when the lawyer does say something, but what he says is wrong. [Regardless of how I would have voted in that case, I'm not really sure how a client is better off with an attorney who is too incompetent to give any warning at all, as opposed to an attorney who tells him not too worry. In any event...]

Now for the case, Graham v. Florida, involving a life sentence for a juvenile crime. More specifically, it was a sentence of imprisonment for life, without any chance of release, for a crime, not involving homicide, that was committed when the defendant was 16 years old.