Sunday, January 15, 2006

Is it possible to be activist when applicable law is mere caprice?

There has been some recent commentary on the Internet about an op-ed written by Justice Tom Parker of the Ala. Supreme Court (see his campaign/personal web site). In the op-ed, Justice Parker criticizes his colleagues for a recent decision in which the Ala. Supreme Court vacated a death sentence under the "rule" of Roper v. Simmons. (Justice Parker was recused from participating in the case because he had been involved with the prosecution.)

The op-ed doesn't question that, if Roper v. Simmons governed, it would require the sentence to be vacated. Justice Parker assumes that is the case, but argues (to the consternation of some) that the death sentence should stand because Roper is incorrect. Parker says: the U.S. Supreme Court was wrong; the federal constitution does not limit the death penalty in the way Roper says it does; the death penalty should stand.

This op-ed has been criticized as an instance of conservative judicial activism. See here. I just think this was an odd case in which to criticize a state judge for failing to apply a federal Supreme Court decision. In Roper, the Supreme Court sanctioned* a state supreme court that had done just that.

*I use "sanctioned" in the sense of "approved." "Sanctioned" is one of those words that means one thing as well as the exact opposite. It can mean "approved" as well as "punished." Another example is "dust" -- dusting a piece of furniture removes a layer of dust; dusting crops adds the layer of dust. I once started a list of such words, but can't remember any of the others. Suffice it to say that the list is longer than you might think at first.

In deciding the case that became Roper, the Mo. Supreme Court was faced with applying directly on-point, controlling precedent that the federal constitution did not prevent the death penalty in that case. The Mo. Supreme Court decided to the contrary. When it got to the federal Supreme Court, the Court did not even criticize the lawlessness of the Mo. Supreme Court, but actually affirmed the Mo. disregard of the federal precedent. So Roper provides a uniquely poor basis on which to criticize a state court for disregard of federal precedent.

More generally, if one accepts that the "rule of law" contained in the Eighth Amendment depends upon prevailing social custom -- or if one accept that such mutability is the controlling rule of law in any circumstance -- how is it ever possible to criticize a lower court not applying a prior decision of a superior court on the same subject? The lower court can always say "But times have changed since then."


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