SCOTUS Double Header: Eighth Amendment and Civil Caging

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May 18, 2010 SCOTUS Double Header: Eighth Amendment and Civil Caging

Supreme Court spiral staircase.

Yesterday the Supreme Court issued two critical opinions whose importance extend well beyond the specific case facts.

Graham v. Florida, ___ U.S. ___ (May 17, 2010) , provides further discussion about the application of the Eight Amendment’s prohibition against cruel and unusual punishment, and reverses non-parolable life imprisonment on a non-homicide crime committed while the defendant was a juvenile. Don’t miss Justice Stevens’s brief concurring opinion that asserts: “While [dissenting] JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old … the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.”

U.S. v. Comstock, ___ U.S. ___ (May 17, 2010) , chillingly reminds us that civil liberties threats do not only come from the Supreme Court’s right wing. In Comstock, the Court’s so-called leftwing of Justices Breyer, Ginsburg, Stevens, and Sotomayor —- joined by Chief Justice Roberts -— reversed the Fourth Circuit (one of the most “law and order” circuits) and upheld a federal law giving the government broad authority to continue to cage prisoners after the expiration of their criminal sentences.

Kudos to Justice Thomas, joined by Justice Scalia (neither of whom I have wanted on the Court, nonetheless) by dissenting and insisting on more brakes on Congressional authority under the Constitution’s Necessary and Proper Clause.

Thanks to concurring Justice Alito (whom I also do not want on the Court), for recognizing that:

The Necessary and Proper Clause does not give Congress carte blanche. Although the term “necessary” does not mean “absolutely necessary” or indispensable, the term requires an “appropriate” link between a power conferred by the Constitution and the law enacted by Congress. See McCulloch v. Maryland, 4 Wheat. 316, 415 (1819). And it is an obligation of this Court to enforce compliance with that limitation. Id., at 423.

In any event, the importance of Comstock goes beyond this particular case to defining the boundaries, or lack thereof, on Congress’s power. Congress by now has immense power —- ripe for terrible abuse — that has been affirmed by the federal courts under the Constitution’s Necessary and Proper Clause and Commerce Clause — ironically and significantly resulting from earlier federal civil rights litigation victories (which confirms that good goals do not always get won without resulting harm). Jon Katz

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