Author & Speaker

The Supreme Court: Writing on Sand

This week’s big Supreme Court rulings demand some attention, and did some remarkable things:
— Interpreting the Second Amendment for the first time in 1939, the Justices voted 5-4 that the provision creates a personal right to own guns, though that right may be regulated for common safety. District of Columbia v. Heller.
— Interpreting the Eighth Amendment’s prohibition against cruel and unusual punishments, the Court barred capital punishment for child rape, preserving that penalty for (i) treason, and (ii) murder. This also was a 5-4 vote. Kennedy v. Louisiana.
— Interpreting federal maritime law to ban punitive damages greater than actual damages following the massive Exxon Valdez spill off the coast of Alaska. This was a 5-3 vote, with Justice Alito recused. Exxon Shipping v. Baker.
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These three important and controversial decisions share important features. Most important to me, they all involved areas of law that were by no means clear. Oh, the justices write their opinions to make it seem like the other side is being completely ridiculous, but they know better. When I clerked for Judge Skelly Wright on the D.C. Circuit, he said to me that a good opinion takes a case where the equities are 55/45 and makes it seem like they are 70/30. But, in truth, all three of these cases involved pretty murky stuff.
The gun rights case was afflicted by the unfortunate drafting of the Second Amendment, which could be read to limit the right to bear arms to state militias, or could be read to create a personal right. That’s what I wrote a while ago. I am sorry, but neither surprised nor enraged, that the Justices followed their political preferences in how they construed the language.
On the death penalty case, I’m on record as a semi-ambivalent opponent of capital punishment, so I welcomed the decision. But I can’t claim that the Eighth Amendment is crystal clear on the issue. What do you think “cruel and unusual punishment” is? Reasonable people can differ.
The punitive damages ruling seems unwise to me. Exxon’s conduct was unforgivable, and had huge and lasting impact on the plaintiffs in the case. The Justices’ exercise in that case — how much is “too much”? — is perhaps the an extreme example of seat-of-the-pants jurisprudence.
The plain point here is that a legal system sometimes involves rough judgments by fallible human beings. Written constitutions, written statutes, and common law precedents do not answer as many questions as we would think. That’s when we need judges who are wise. When was the last time that “wisdom” was touted as a judicial candidate’s qualification? I suppose wisdom can be difficult to detect in people, but there are people in the world — at least a few — whose judgment we trust. They should be the judges. Sometimes they are.