Posted on 07/02/2008 8:28:14 PM PDT by Uncle Ralph
ANOTHER GROSS FACTUAL ERROR AT THE SUPREME COURT. Following up on similar huge errors from Justice Stevens in Heller. Plus, another Stevens Heller error here. What gives?
Sounds like the clerks didn't do their homework. JMHO.
The Constitution say that “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact . . .” I don’t think the framers had in mind that they invent their own facts.
This citation should be used to pound the liberals. In this case they attempt to limit the second amendment to acts of Congress. In 1st amendment cases, they extend the restriction to any government entity.
Note that the 1st amendment specifically states the restriction “Congress shall make no law...”. The second amendment makes no reference to Congress. Yet the liberals would apply the 1st amendment to libraries, firehouses and public squares. The second amendment they attempt to restrict to acts of Congress only.
Ignorance of the law is no excuse, Justice Kennedy...
Stevens believes that states have right to ignore the constitution?
I'm not exactly sure what you might be referring to, but I have read that -- strictly speaking -- the Heller decision pertained to 2nd Amendment and (the Federally administered) D.C., and that it would take a decision regarding the 14th Amendment to make the states comply with the ruling. That may be what you are seeing reflected in the text.
Whaddyathink?
A real possibility for the Chief Justice and the 3 others on the right if the Dems get more seats in the Senate after November.
Question: Is there any way an Supreme Court decision can be rescinded and the case retried because of an error like this?
Other courts have thrown out trials and lawsuits for technical errors, why not the same for the SC?
Interesting comments at source. Thanks for posting.
Beyond Stevens, the 4 appointees so derelict in their duty to uphold the inalienable right to your life and its necessary corollary...the right to defend your life...in the least, should be removed from their positions.
Minimally, ABSOLUTELY!
To what court would you appeal. Trial and procedural errors are the cause for retrials and resubmissions when directed by a higher court. As the Constitution places SCOTUS at the top of the judicial food chain I see no avenue of appeal.
Of course that would be outrageously frivolous, whereas in this case, Kennedy had blatantly ignored due diligence in a gross error. Not only is he guilty of negligence in the performance of his office, but in calling capital punishment for child rape unconstitutional because its contrary to the “evolving standards of decency” he's committed judicial heresy in that he's overridden the language and intent of the Constitution and inserted his own moral assessments and legal inventions (capital crime is spoken of and not prohibited in Amendment V).
This should be well described as an absence of good behavior and therefore render him quantifiably eligible for impeachment.
There’s lots more than that ... seems like Scalia was pointing out an error of Stevens or Breyer on just about every page of his Heller opinion. Made them look like a couple of 9th Circus hacks.
What Justice Kennedy stated was that the death penalty is not available for a child rapist under federal law. If one considers only non-military federal law, that statement is correct. But there is such a provision in the UCMJ.
The reason why this oversight is not critical is that the case that was being decided was a civilian one and it clearly depended on the justices' interpretation of the "cruel and unusual punishment" clause of the Eighth Amendment.
As is well known, the military justice system has, generally for good reason, features that wouldn't pass the same degree of constitutional muster that the civilian system is subject to. So Kennedy's missed detail about the UCMJ provision could legitimately be considered incidental to the case at bar.
Nonetheless, all factual errors in SCOTUS opinions - even if a clerk is utimately to blame for slipshod research - detract from the public's confidence in the SCOTUS' decisions.
As for Stevens' factual errors, could it be his age?
I would have to disagree with that idea in this particular case, because I think that the factual error was was irrelevant to Kennedy's decision, whether one agrees with his ultimate conclusion or not.
If you say "Separation of Church and State" enough times, someone is liable to think its actually in the Constitution!
Well, at least they didn’t cite any foreign precedents in these decisions!
Well, to be fair, even if Stevens’ clerks are among the small number of smart liberals, and I’m sure they must be to be clerking for SCOTUS, their job is a lot harder than trying to find historical and logical basis for a correct opinion. Maybe the lefty justices should hire sleight-of-hand artists as clerks instead of lawyers.
Yeah, but getting rid of Kennedy with Bush as a lame duck significant appointment wise would be a mistake. Kennedy is near the center of the spectrum, and in fact, has voted most often this year with the conservatives. Remove Stevens, Ginsburg or Souter and replace them with Janice Rogers Brown or somebody and that would be progress indeed.
That was kind of my assessment too. As far as Stevens’ errors being due to his advanced years, it’s also surprising that none of the rest of the minority, or Scalia or any others on the majority for that matter, caught this. They all had to have read the opinion in numerous draft stages.
I say throw all those bums out for the same reason. It would be a wake-up call to anyone aspiring to be an activist SCOTUS Justice to think again. It could do a lot towards turning things around. How could you do it with our socialist Congress? I don't know but it would be worth a try and if it was done right, the American people, who are sick of judicial tyranny and activism, would be behind it. The difference would be the American people - something Reagan, but few others these days, understood.
The analysis I read said that the
...inventory of jurisdictions was a central part of the court’s analysis, the foundation for Justice Anthony M. Kennedy’s conclusion in his majority opinion that capital punishment for child rape was contrary to the “evolving standards of decency” by which the court judges how the death penalty is applied. http://patterico.com/2008/07/02/blogger-catches-justice-kennedy-with-his-pants-down/
That makes this look like a gross error bordering on negligence and the absence of "good behavior". He and his majority also called capital punishment for child rape unconstitutional for the same reason and have therefore committed judicial heresy in that they've overridden the language and intent of the Constitution and inserted their own moral assessments and legal inventions (capital crime is spoken of and not prohibited in Amendment V).
This adds up to gross negligence and mischief and is grounds for impeachment.
I wrote my congressman to ask them to start impeachment proceedings if I ever hear that phrase again on a decision. I told him I was serious and gave the reasons why this was not their job and what they swore to uphold.
The only thing I think they understand is a mountain of letters to show we are watching. Remember the "amnesty compromise"? It was going to pass until the switchboards lit up. Just throwing stuff at the TV doesn't work.
For instance see:
CAN THE SIMPLE CITE BE TRUSTED?:
LOWER COURT INTERPRETATIONS OF UNITED STATES V. MILLER AND THE SECOND AMENDMENT
26 Cumb. L. Rev. 961-1004 (1996)
Brannon P. Denning
You may disagree with Kennedy’s opinion, but that’s hardly grounds for impeachment. These cases come down to the interpretation as to what constitutes “cruel and unusual punishment” as prohibited in the Eighth Amendment of the Constitution. This is a rather subjective matter, and judges may in good faith disagree with one another on a case by case basis.
About the only charge on which (a handful of) federal judges have been impeached is for bribery, e. g., the notorious Alcee Hastings, who is now a ‘Rat member of Congress.
Of course my disagreement with the decision of Kennedy and his group is not grounds for impeachment. Else you have mob rule. However nothing I’ve said is about that.
I’m basing my comments on the Constitution itself. Nowhere does the constitution state in text or intent that capital crimes are cruel and unusual. Amendment V acknowledges and allows and does not forbid “capital” crimes. Judicial activism and heresy is when a judge inserts his own moral code (that capital punishment for child rape is contrary to the “evolving standards of decency”) for the text and intent of the Constitution.
What about basing his decision on gross negligence and misstatement of facts (the inventory of jurisdictions was a central part of the court’s analysis noting that a child rapist could face the ultimate penalty in only six states — not in any of the 30 other states that have the death penalty)?
These add up to gross negligence of both the facts surrounding the case and Constitution itself. This could well come under the heading of mischief and removal of the constitutional protection of “good behavior” that would expose these Justices to serious considerations of impeachment.
I think you meant, "No where does the constitution state ... that capital punishments are cruel and unusual," because the adjectives "cruel and unusual" modify the noun "punishments" in the text of the Eighth Amendment.
But, whether or not a particular punishment is "cruel and unusual" necessarily depends on the crime for which it is meted out. This is a judgment of proportionality. It was the majority's view that that capital punishment is disprortionately "cruel and unusual" for a crime that, though heinous, did not cause death to another individual.
That determination of "cruel and unusual" is necessarily subjective, but this is how the Eighth Amendmendment was written. The court was not meddling into something that it shouldn't, in contrast to what it has done in a slew of other cases.
As I understand it, their argument was based on capital punishment for child rape being contrary to the “evolving standards of decency”, noting that a child rapist could face the ultimate penalty in only six states (instead of 36 states that have the death penalty). It seems that their argument questioned the death penalty itself as unconstitutional. THAT is judicial activism (including gross neglect of the facts upon which their opinion and decision stood).
BTW, I hate the death penalty and am against it. But I hate judicial activism and the slow-but-sure neglect and judicial destruction of our Constitution even more since it is the bulwark and protect of out God-given rights and freedoms.
BTW, some child victims' rights groups praised the decision because, they claimed, a child rape victim would be less likely to report the crime if what she/he said might result in the death of a relative or someone else she/he looks up to.
Well thanks for the update. If I have time, I’ll try yo go through the actual opinion (all I have is an analysis of it). BTW, do you know where I can get a hold the actual text of Kennedy’s written opinion on this?
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