Things to Worry About for the Upcoming SCOTUS Term, Part 2

Posted: October 7, 2016 by beguide in Uncategorized


On October 3, 2016, the Supreme Court will begin the 2016/2017 term, ushering in a new year of arguments, decisions and Constitutional law. While one would hope that this venerable institution could serve as a bright spot compared to the on-going incompetence of the other two branches of government, it is important to note that not a year goes by where the Supreme Court doesn’t take some action that leaves jurists, criminal defendants, police officers, politicians, and commentators scratching their heads.   Just last year, the Supreme Court weakened liberal causes like immigration reform, fourth amendment rights, and civil class actions.  The Court did not spare those of the conservative persuasion either, as the Court strengthened Roe v. Wade and affirmative action in lieu of commenting on gun control and the Affordable Care Act.    Overall, there was plenty of bad medicine to go around, and there are likely more decisions worth fretting over around the corner.

To help prepare for the months to come, the following statements are possible reasons to be worried about the upcoming term, and the appropriate level of fear you should have regarding each issue.  Because different political leanings are afraid of different things, both liberal and conservative concerns are addressed.  For the benefit of those unfamiliar with the law, your level of concern will be represented with situations from popular 1980’s movies.  Part One was posted on Monday October 3rd.

  1. The Court Will/Will Not Overturn the Death Penalty.

This is two for the price of one, because regardless of how you feel about the death penalty, there is good news and bad news.  First, it is highly unlikely that the Supreme Court will overrule the death penalty this year.  Second, the Supreme Court will more likely issue an opinion that invalidates State procedures used to sentence someone to death, thus making death penalty statutes unusable and irrelevant.

The case of Glossip v. Gross is a good representation of the Court’s current situation with the death penalty.  Glossip was filed by a death row inmate who challenged the State of Oklahoma’s use of the drug midazolam when performing lethal injection.  The purpose of midazolam was to sedate persons during the administration of the death penalty so that said person would not feel the second injection of chemicals that creates the sensation of being burned alive from the inside out.   As you would imagine, it’s fairly important that midazolam does its job and there was considerable evidence that it did not.  The legal issue in this case was therefore whether or not a non-zero chance that a death row inmate could suffer inconceivable pain during the death penalty violates the 8th Amendment’s ban against cruel and unusual punishment.

Before getting into how the Court resolved that question, it’s important to take a step back to 1776 to think about what the founding fathers of the Constitution intended when they passed the 8th amendment.   Considering that most people in the 18th Century were executed via hanging or the firing squad, one would imagine that George Washington and Thomas Jefferson would scoff at the idea that the Constitution would bar executing someone if there was a chance that said person would feel pain.  But the evolution of society from 1776 to current day is representative of how the Court views the 8th amendment, in that the standards for what is “cruel and unusual” are constantly changing.  Therefore, what is cruel and barbaric now was likely common even a few decades ago.  Case in point, the Supreme Court only banned the execution of minors in 2006, which is approximately thirty years after the Supreme Court held that you have a Constitutional right to buy condoms.

Under that theory, there is hypothetically always a chance that the Court will decide that today is the day when the death penalty is too barbaric for modern society; however, there are a majority of justices who do not feel that it is appropriate for the Court to make that decision.   Those justices will often take cases like Glossip at face value and will focus specifically on the question at hand, which in Glossip was whether or not the lower court made a mistake in believing Oklahoma’s expert witness who stated that midazolam did its job just fine.  Since that question is easier to answer than deciding whether a century’s old practice is banned unilaterally throughout the Country, a majority of justices held in favor of Oklahoma and passed on declaring the death penalty unconstitutional.

That is not to say that the Constitutionality of the death penalty went unnoticed, as Justice Steven Breyer questioned whether the Court should do way away with executions entirely.  For the first time since Thurgood Marshall in the 1970’s (Furman v. Georgia), Breyer openly questioned the effectiveness of the death penalty, stating that it is unreliable, takes too long to administer, and has no deterrent effect.   Breyer’s concurrence gained national attention, but it did not gather the same type of support in the Court, as Breyer’s opinion was joined only by Ginsberg, and faced harsh criticism from Scalia.   Breyer’s point was heard, but there is little evidence to suggest that the Breyer had enough backing to make an outright reversal of the death penalty under the Constitution.

That being said, he may not have to.  While the narrow, issue-focused approach didn’t win any favors in Glossip, it has served to invalidate procedural elements of the death penalty, which in turn freezes the use of the death penalty until said procedures can be fixed.  Last year, the Court held in Hurst v. Florida that it is unconstitutional for a State to share the duty of sentencing a defendant to death between the judge and the jury.  The reasoning behind those laws was to avoid having the jury feel guilty about sentencing someone to death, being the modern equivalent of having some percentage of a firing squad use blanks so that each shooter could think he/she did not kill someone.  Either way, the Court held that any death penalty statute that did not leave the decision on death exclusively to the jury was unconstitutional under the Sixth Amendment.  Subsequent to that ruling, States who had those procedures were forced to either amend their death penalty statute or simply allow the statute to die on the vine without any chance of being used.  This case lacked grandeur, but it certainly saved more lives than Breyer’s concurrence did.   Ultimately, the Supreme Court is unlikely going to be the venue that kills the death penalty, but the Court is more than happy to put that burden on the political process.

Level of Fear as Displayed Through Classic 80’s Movies

Depending on how you view the issue, you are either Elliot or the Government from E.T.  In the midst of a climactic chase scene, it becomes abundantly clear that despite your best intentions, you probably have no business handling an alien.  You shouldn’t have fed him Reese’s Pieces, you shouldn’t have subjected him to scientific testing, and you also shouldn’t have taken him on a bike ride.  Your best hope at this point is that E.T.’s space ship shows up and takes E.T. back to wherever ever he came from while you stare at the sky in awe.  That way, you can go back to your suburban California home or whatever sterile government facility you came from and let someone else handle the complicated nuances of extraterrestrial life.


  1. The Ninth Seat Will Not Be Filled/Will Be Filled By An Idiot.

Congress’ refusal to appoint Justice Merrick Garland to the Supreme Court is dumb for a host of different reasons, but the current eight person iteration of the Court does not come without precedent.  First off, there is no set number of required Supreme Court justices in the Constitution.  Article III of the Constitution, which is the exclusive statement on the Court’s scope and power, merely requires that (1) we have a Court, (2) the justices behave, and (3) we should pay them.   The founding father’s lack of specificity on the Supreme Court is best conveyed by the fact that the Supreme Court’s role as the one true interpreter of the Constitution appears nowhere within the actual document, but was instead established after the Court basically called “dibs” on it to spite Thomas Jefferson.  It should also be noted that the Court has had fewer than nine Justices throughout the 19th Century; and during the 1930’s, FDR threatened to add Justices when he felt that the Court was getting in the way of New Deal legislation.  Therefore, nine is not the magic number.

It’s also important to note that an odd number of Justices is also not required.  Throughout the 1800s, the Court had between six and eight justices, with nine justices only being the norm sometime after the Civil War.  Much is made about the fact that Court is unable to rule on issues that are divided equally between an even numbered Court, but consider the practical consequences of a 4-4 result.  If the Court cannot obtain a majority on any given case, the lower court’s decision is automatically affirmed without an opinion.   This means that the lower court’s decision acts as the ninth vote in the case of a split, thus making the ruling based on the collection of justices at the lower level.   In these instances, the Court is blocked from explaining the reasoning behind their decision, but the parties subject to the lawsuit, who have the most on the line, have a final resolution to their problem.

While these cases lack written opinions interpreting the law and creating precedent, denying the Court the right to create new law isn’t exactly a bad thing.   Before getting into this point, I first want to caveat that I understand this isn’t a perfect argument, but here me out as a broader concept.  I feel like the legal system often operates under the premise that the rules are applied consistently to everyone and that issues and people which fall through the cracks are an acceptable fallacy of the system.  The reasonable doubt standard, for example, doesn’t apply perfectly to every case, but in 99.99% of cases it reaches the right result.  In turn, we don’t change the entire criminal justice system when O.J. Simpson is found innocent, because the same standard rightfully exonerates exponentially more non-famous people every day.  The following argument operates under that same premise.

The thought is that with so much on the line with Supreme Court cases, it is actually more prudent to require the Court to have a two justice majority before issuing an opinion that has wide-ranging effects on citizens and the government.  This would mean that 5-4 decisions, which often hinge on the vote of one person, would no longer exist thus eliminating instances where one swing vote can change substantive law.  Take last year’s case of U.S. v. Texas for example, where the Supreme Court was asked to evaluate the Constitutionality of President Obama’s executive order granting pseudo-clemency to parents and children of illegal immigrants.  Had Scalia been alive, the case most likely would have been decided 5-4 in favor of Texas and against the President.  This is a big assumption, but let’s say that the Court issued an opinion that affected not only this specific immigration policy, but also the President’s authority to any action in the scope of immigration.  This would be patently unfair for the Court to make such a sweeping declaration on a divisive issue when there is only the slimmest of majorities supporting that view.  Instead, the Court came to a 4-4 split, the 5th Circuit’s decision served as the ninth vote, and the Supreme Court affirmed the outcome without commenting on any broader issue of executive power.  While this may seem like a far-fetched premise, consider the case of Friedrichs v. California Teachers Association, in which the Court was asked specifically to overrule precedent that allowed union dues to be collected from teachers who do not participate in the union.  Had there been a ninth Justice, most if not all teachers unions would be affected by one single vote.  Supreme Court cases have far-reaching consequences and it is not crazy to consider whether or not that power belongs to nine individuals.  There is a perfectly reasonable argument to the contrary that many of the Supreme Court’s most influential civil rights decisions in history were decided on a 5-4 basis; however, requiring the Court to find a resolution with one extra justice should be within our expectations of the highest Court in the land.

Realistically speaking though, a ninth Justice will likely be appointed after the November election, but chances are that whomever is appointed to the Supreme Court will not be the game changing personality that many political commentators have made it out to be.   Regardless of who wins the presidential election, the new Supreme Court Justice will likely be someone who is highly qualified for the position and most likely someone who is currently sitting on the federal Court of Appeals.  Seven out of the eight current Supreme Court Justices were previous federal court justices; and Kagan, the only Justice without judicial experience, had qualifications that included being the first female Solicitor General in U.S. history and the former Dean of Harvard Law School.  So regardless of which president is nominating said Justice, it is probably an incredibly smart person you’ve never heard of.

In addition, any Supreme Court justice who is nominated must be approved by the Senate, which means that the President does not have unilateral authority to appoint whomever they want.  In history, fifteen people have been appointed by the President and then subsequently rejected by Congress.  A host of other individuals withdrew from Presidential nominations to avoid blowback from the press, including Douglas Ginsberg, a Reagan appointee who withdrew from consideration after being accused of smoking pot with students when he was a professor at Harvard Law, and Harriet Miers, George W. Bush’s personal attorney who withdrew from consideration when a general consensus arose that Miers was totally unqualified for the job.  Therefore, to whatever extent you are worried that a certain Presidential candidate is going to appoint some ridiculous personality from a certain reality show, you can relax.

Finally, even if a Supreme Court justice is nominated by the Presidential candidate that you didn’t vote for, there’s a good chance that person’s ideology will not as advertised.  Of the biggest personalities on the current bench, consider how predictions regarding their ideologies have played out.  Chief Justice Roberts was pegged as a conservative leader of the Court who would defend the Republican ideals of those who appointed him, but Roberts twice cast decisive votes saving the Affordable Care Act.  Anthony Kennedy was appointed as a Reagan-era, conservative Republican justice, but then cast key votes in liberal democratic issues like a women’s right to terminate a pregnancy and gay marriage.  Clarence Thomas was appointed to succeed Thurgood Marshall as the Court’s second African-American Justice, and is now regularly a vocal opponent of affirmative action.   These examples may represent outliers, but there’s no way to solidly predict how the next justice will rule.

Level of Fear as Displayed Through Classic 80’s Movies

You are a young, attractive teenager who is excited for the summer.  You and your friends have been employed as camp counselors for a local camp, where you plan on playing pranks, staying up late, and making out with other counselors.  Depending on the camp you’re at, you could either be Meatballs or Friday the 13th.   Whether it’s the summer you’ll never forget or the summer you got gored with a machete is pretty much out of your hands, so you might as well crack open a beer and enjoy the sunshine.


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