Barack Obama, Constitutional Law, Election 2012, Election Law, Health Care / Medicine, Immigration, Politics, SCOTUS, Sentencing Law, Supreme Court

While We’re Waiting For Obamacare, It’s All About The Dissents

Thursday the Supreme Court will sit for its final session of October Term 2011. The Court will issue opinions in all the cases pending before it. For example, the Court will let the American people know whether they ever have a right to lie.

The Court will also rule on the case that, according to a sign I saw earlier, presents the question of whether we need to “Get The Feds Out of Medicare.” I’m not sure about the details of that case though, because it hasn’t gotten much press attention (I only read the Bicycle Times).

Today, however, the Court issued two opinions in argued cases. The fun in the courtroom was not in the opinions, but in the dissents….

Justice Kennedy announced the Court’s opinion in the Arizona immigration case. The bottom line is that field preemption applies to state efforts to legislate in the shadow of federal immigration law. The Court struck down three of four portions of the Arizona statute at issue.

Justice Scalia read his dissent from the bench. He started by telling us that for the first hundred years of our country, immigration enforcement was all done by the states. Because of that, and because immigration enforcement is a matter of state sovereignty, the Court should only apply field preemption if there is an express congressional statement that it should.

Scalia’s view is that the Court should really not do much work; rather, the Court should defer to Congress. It’s a narrow view of the Court’s power – I can’t wait to see it applied on Thursday.

Most interesting in the dissent, though, was that Scalia doesn’t seem to like President Obama’s new immigration policy of allowing certain folks who came to the U.S. when they were children to remain in this country. After noting that the new program will take a lot of resources, Justice Scalia makes it clear that he thinks Arizona should be able to opt out:

The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.

This has been a remarkable year of conversation between the judiciary and the President. First the President says the Court shouldn’t strike down Obamacare. Then the Fifth Circuit demands to know the President’s view of its power to review a statute. Now Scalia comments on the President’s immigration policy.

If you like cross-branch cat fights, this is your year.

Justice Kagan had the Court’s other announced opinion of the day, Miller v. Alabama. The question was whether the Eighth Amendment allows mandatory life sentences of life without the possibility of parole for any person under the age of 18 who commits a murder.

The Court’s opinion was narrow: mandatory life without parole for children is not allowed by the Eighth Amendment. If a person under the age of 18 is going to prison for the rest of his life, the sentencing court should look into the kid’s life a little bit. As the opinion puts it:

[I]n imposing a State’s harshest penalties, a sentencer misses too much if he treats every child as an adult. To recap: Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him.

Under this rule, a court can still sentence a kid to life without the possibility of parole — there just has to be a hearing first.

Justice Alito read his dissent from the bench. He read it with feeling, at times mocking the Court’s reasoning. He also criticized Justice Kagan’s majority opinion for referring to people under years old 18 as children.

Justice Alito sits next to Justice Kagan. It seemed a little awkward.

Here’s his characterization of the holding:

Even a 17½-year-old who sets off a bomb in a crowded mall or guns down a dozen students and teachers is a “child” and must be given a chance to persuade a judge to permit his release into society.

Alito clearly likes short hearings.

Alito dislikes the Court’s prior cases on the Eighth Amendment (citations omitted):

The Court long ago abandoned the original meaning of the Eighth Amendment, holding instead that the prohibition of “cruel and unusual punishment” embodies the “evolving standards of decency that mark the progress of a maturing society.” Both the provenance and philosophical basis for this standard were problematic from the start. (Is it true that our society is inexorably evolving in the direction of greater and greater decency? Who says so, and how did this particular philosophy of history find its way into our fundamental law? And in any event, aren’t elected representatives more likely than unaccountable judges to reflect changing societal standards?)

We don’t put people’s heads on pikes anymore, and that seems like progress to me. But perhaps this progress isn’t sufficiently inexorable.

Justice Alito was very concerned that the Court was trampling the will of the legislature. After noting that many states and Congress have allowed for seventeen-year-olds to be sentenced to mandatory life without parole, he complains than “[t]he majority of this Court now overrules these legislative judgments.”

All eyes turn to Thursday. Let’s see if Justice Alito agrees that it’s a bad thing for a “majority of this Court [to] overrule[] legislative judgments” on Thursday (smart money says he won’t).

Finally, the Court issued a per curiam opinion in the Montana Supreme Court’s effort to overturn Citizens United.

The Justices who signed on to Citizens United still think it’s good law.

Miller v. Alabama [Supreme Court of the United States]
Arizona v. United States [Supreme Court of the United States]
American Tradition Partnership, Inc. v. Bullock [Supreme Court of the United States]

Earlier: What Happened at the Supreme Court Today?


Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.

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