Monday, March 25, 2013


Recently Associate Supreme Court Justice Sandra Sotomayor wrote a long and thoughtful opinion to the Bongani Charles Calhoun v. United States case. Her opinion wasn't part of the decision, it was simply what she thought about some of the issues raised throughout the case.

In the Calhoun case the defendant Charles Calhoun argued that the drug charges against him should be dropped because of a racially charged question presented by the prosecutor. During the original trial Calhoun argued that he had nothing to do with the drug deal, which was entirely plausible given the details of the case. Still, the prosecutor tried to prove that Calhoun's presence with the other defendants during a drug deal made him an accomplice. To help make his point the prosecutor asked:

“You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?” 

Calhoun's appeal was denied - a ruling Justice Sotomayor agreed with - because Calhoun (or his attorneys) didn't object to the language used by the prosecutor during the trial.

There's more to the story, but the key here is that Justice Sotomayor - like all Supreme Court justices do from time to time - issued her opinion on the case after the decision was made. Opinions like this are referred to as "Term Opinions Relating to Orders" and don't affect the outcome. They simply register what the justices think about the issues surrounding the case.

This is important because while we would like to think that our Supreme Court justices have no opinions (i.e. "justice is blind"), or simply rule on the constitutionality of a case, the reality is our Supreme Court justices have strong opinions. Our Supreme Court has been full of politically charged jurists, who regularly brought (and continue to bring) their political views to the bench.

The question is How much do they allow their opinions to inform their decisions?

We discuss this and other issues in my Introduction to American Politics class, where I discuss how SC judges should rule on each case. Should they base their opinions on the "facts" of the case, then use the Constitution to apply what is called the "Original Intent" of the Founding Fathers?

Or should they look at the evidence and process, and then take into consideration contemporary standards and belief systems that turn our justices into what critics call "Judicial Activists"?

Original Intent versus Judicial Activism. This is one of the more interesting discussion topics we have when I lecture on our court system. In the case of the former (Original Intent) it's argued that our SC justices should take a case and apply what the Constitution says (also called the "Strict Constructionist" argument). End of story.

The latter view suggests that we have a living Constitution and that justices are there to interpret the Constitution according to the times. This position, according to critics of the decisions that are made, turn our SC justices into activists because of how they advocate or read things into a case that simply is not there.

In the modern era Antonin Scalia and Clarence Thomas are viewed as "activist" judges while Chief Justice Earl Warren was viewed as an activist judge in the 1950s and 1960s. In all cases those charged with being judicial activists are accused of cutting off the other branches of government, and turning them into deadwood.

I bring this up because the LA Times' Eric J. Segall argues in "Supreme Court justices: The case for hanging it up" that Supreme Court justices become increasingly activist judges the longer they sit on the bench. As such, they should be given time limits of 20 years instead of life terms. His argument is that SC justices have gone beyond simply issuing "term opinions" - like the one made by Sotomayor - and increasingly inject their political views into their rulings.

As I see it where you stand on the issue depends on where you sit.

If you like the opinion there is no activism involved. For example, those who support the Affordable Care Act (Obamacare) saw nothing wrong with the Supreme Court decision that upheld the AFA. Similarly, if you're opposed to corporations being viewed as people (as I do) you probably saw an activist court with the Citizens United decision. Those who were opposed desegregation in the 1950s saw an activist court after the Brown v. Board of Education case in 1954. And on it goes ...

So, what do you think? Original Intent or Judicial Activism? Wherever you fall on the issue, Do you believe our SC justices should have 20 year (or any) limits?

- Mark

Here's the case where Sotomayor issued her opinion ...

2012 Term Opinions Relating to Orders (or "Comments from the Bench")

The opinions included here are those written by individual Justices to comment on the summary disposition of cases by orders. Such an opinion might, for example, dissent from the denial of certiorari or concur in that denial. The opinions here include those written during October Term 2012 (October 1, 2012, through October 6, 2013). These opinions were posted here on the day of their issuance. They will remain posted until the opinions for the entire Term are published in the bound volumes of the United States Reports. For further information, see Column Header Definitions.

2/25/1312-6142Calhoun v. United StatesSS568/2

1 comment:

Anonymous said...

Am I mistaken, or doesn’t Article V of the Constitution allow state legislatures (a convention of two thirds) to propose amendments and pass the amendment with a three-fourths majority of state legislatures if the citizenry views a ruling by the Supreme Court as an egregious violation of their wishes?

And aren’t SC justices granted tenure for good behavior with Congress having the constitutional means to try and dismiss a justice for a crime or “unacceptable acts”?