Why Democrats Need to ‘Unpack’ a Reactionary SCOTUS And Restore Balance To The Court

There has been a lot of right-wing caterwauling about how Democrats want to “pack the court.” Sorry lazy media villagers who parrot right-wing talking points, but Mitch McConnell has already “packed” the courts with right-wing reactionary judges approved by the conservative Confederate Heritage Foundation and the far-right Federalist Society.  Many of these judges were inexperienced and rated “not qualified” by the American Bar Association.

What Democrats are actually talking about is “unpacking the court” from this abuse of the judicial branch by Mitch McConnell and his gang of seditious insurrectionists. Get it right. Democrats want to restore “balance” to the federal courts with competent, highly qualified jurists who are not right-wing reactionaries with a right-wing agenda to reverse the advancements made during the 20th Century.

There is good reason to do this. The Mitch McConnell built John Roberts Supreme Court is making up law based upon its right-wing ideological agenda, rather than following long-established court precedents and court doctrines. They are “legislating” from the bench, as conservatives used to claim about the liberal Warren Court decades ago.

As Chief Justice, John Roberts has presided over 21 precedent-overturning cases and voted to overturn precedent in 17 of them (81%). Take Back The Court.

Last week the court added yet another reversal of long-standing precedent in a 6-3 decision, the opinion ironically written by Justice Brett “I like beer” Kavanaugh, accused of sexual assault,  a “youthful indiscretion” (as George W. Bush used to call it) as a 17 year-old high school student at the elite Georgetown Preparatory School,  during his glorious Summer of ’82, with his hard-partying pals “Timmy, Judge, Tom, P.J., Bernie and Squi.”

“Lucky” for this privileged rich white boy he was not a poor Black kid going to a rundown public school high school in the inner city somewhere, who stood accused of such a “youthful indiscretion.” He could have gone to prison for life without parole as Justice Brett Kavanaugh ruled last week.

CNN legal analyst Elliot Williams writes, Supreme Court’s staggering deviation from precedent:

For nearly two decades, the Supreme Court has established more leniency toward children convicted of violent crimes, in line with the Constitution’s ban on cruel and unusual punishment.

This trend came to an abrupt stop on Thursday, with the Court’s decision in Jones v. Mississippi that judges do not need to find a juvenile murderer to have a hope of rehabilitation before sentencing them to die in prison.

Most stunning, however, is the manner in which the Court got there, by casting aside years of precedent with the stroke of a pen. Yesterday’s decision was a frightening reminder of how easily the Court can speak out of both sides of its mouth: claiming fidelity to its own past decisions, while simultaneously gutting them.

Courts are governed by the doctrine of stare decisis, Latin for “to stand by things decided.” In short, stare decisis is the fundamental doctrine that precedent matters, and that a court will stand by its rulings on issues previously brought before it. As the Supreme Court has said, stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Such predictability is critical for helping the public understand what its rights are.

Put another way, in plain language, stare decisis isn’t just a legal expression of if it ain’t broke, don’t fix it, but more like it ain’t broke, and moreover, our role as its stewards demands that we ensure that it be respected and protected.

This basic backdrop makes the court’s decision in Jones so perplexing. Since 2005, a series of Supreme Court rulings have methodically addressed questions of how youths can be sentenced for serious crimes. In 2005, the Court ruled that juveniles cannot be sentenced to death. In 2010, it banned the use of life without parole for juveniles not convicted of homicide. Two years later, it ruled in Miller v. Alabama that mandatory life without parole sentences for minors violate the Eighth Amendment’s ban on cruel and unusual punishment. Finally, in 2016, the Court found that its ruling in Miller could be applied retroactively.

The Court’s decision in Jones broke this pattern in dramatic fashion. In the case, a 6-3 majority, led by Justice Brett Kavanaugh, who wrote for the majority, found that judges need not specifically find a juvenile defendant “permanently incorrigible” — beyond redemption — before sentencing him to life in prison. Brett Jones, convicted of the 2004 stabbing death of his grandfather after an argument when Jones had just turned 15, was challenging a mandatory sentence of life without parole imposed in Mississippi [i.e, Miller v. Alabama].

This decision to refuse to impose restrictions on the ability of states to sentence juveniles to life without parole was a clear break from the Court’s history, couched in language suggesting, wrongly, that the nation’s highest Court wasn’t the right venue to decide such issues. Jones “articulates several moral and policy arguments for why he should not be forced to spend the rest of his life in prison,” Kavanaugh wrote, but “our decision allows [him] to present those arguments to the state officials authorized to act on them, such as the state legislature, state courts, or Governor.”

In effect, it’s a sad tale, but not our problem bro.

Justice Sonia Sotomayor was not having it, writing a withering dissent that accused the majority of turning its back on decades of precedent governing both sentencing minors, and how the Court ought to follow its past decisions. While acknowledging the heinous nature of the crime, Sotomayor outlined Jones’ history of suffering abuse and neglect and noted his lack of access before the murder to drugs he took for mental health purposes.

“How low this court’s respect for stare decisis has sunk,” she also wrote. “Now, it seems, the court is willing to overrule precedent without even acknowledging it is doing so, much less providing any special justification.”

She’s right. Kavanaugh’s opinion presents dozens of pages of justification for an outcome that is plainly out of line with the Court’s past decisions. Certainly, the Court has a more conservative majority today than it did several years ago; Kavanaugh replaced a less reliably conservative Anthony Kennedy in 2018, and Amy Coney Barrett replaced Ruth Bader Ginsburg in 2020. Still, were the Court functioning properly, respect for precedent would trump ideology.

Even in spite of a growing bipartisan consensus, there is a persistent strain of conservative thought that continues to cling to the past on matters of criminal justice. The majority in Jones was carrying out a political victory for many, by enshrining in law the belief that anything that makes it easier to put people in jail and keep them there has to be a good thing.

That a new conservative majority so quickly emboldened the Court to overturn longstanding precedent confirms what many in the public might believe about jurists — that they are not bound by fidelity to the law alone, but are also political actors, deciding as they want. In fact, the majority decision in Jones gave Congress a great reason for expanding the size of the Supreme Court, as some have recently recommended. When a clear majority has signaled how willing it is to toss aside its own precedents with alarming haste, it is hard to argue, as some have, that adding more justices would be the thing that would politicize the Court beyond repair. It seems it is already there.

Never mind the staggering immorality of the Jones decision in the full context of America’s justice system. The United States stands alone as the only country in the world that sentences people to life without parole for crimes committed during their youth. The United States is one of only about 50 nations in the world that continues to have a death penalty, placing it in the esteemed company of places we regularly criticize for their human rights records, including China, Iran, North Korea and Saudi Arabia. The United States dwarfs virtually every other nation on the planet with its incarceration rate. The ship sailed long ago on the question of whether America has a humane system of punishment.

However, it is the Supreme Court’s caprice, and the fragility of its precedents, that should give us all pause. Despite everything the Court might say about the power of precedent, they made clear this week that their past decisions only matter until they don’t.

The Jones decision is a signal to far-right organizations that the Supreme Court is open for business for reversing the advancements made during the 20th Century and overturning long-standing court precedents. You know what that means: abortion and guns (“save the fetus so I can shoot ’em dead later”).

SCOTUSblog reports, last week two cert petitions asked the Supreme Court to consider the constitutionality of two controversial abortion laws – and, more broadly, to clarify how lower courts analyzing abortion restrictions should apply last year’s fractured decision in June Medical Services v. Russo. These two new petitions join Dobbs v. Jackson Women’s Health Organization (which has been pending before the justices for nearly a year) in asking the court to wade back into the abortion debate. Two new tests of the court’s abortion jurisprudence:

Box v. Planned Parenthood of Indiana and Kentucky involves the constitutionality of an Indiana law that provides for parental notice before a minor obtains an abortion. Indiana generally requires minors to have their parents’ consent in order to get an abortion, but the state also allows minors to petition a juvenile court to bypass the parental-consent requirement. (That judicial-bypass exception is required under Supreme Court precedent.) In 2017, the Indiana legislature enacted a law providing that, even when a minor receives a judicial bypass to get an abortion, her parents must still be given advance notice of the abortion unless the judge finds that such notice would not be in the minor’s best interests.

Rutledge v. Little Rock Family Planning Services involves a 2019 Arkansas law that prohibits medical providers from performing abortions if the sole reason for the abortion is a prenatal test indicating that the fetus has Down syndrome. A district court blocked the law from taking effect, and a panel of the U.S. Court of Appeals for the 8th Circuit – relying on Roberts’ concurrence in June Medical– affirmed that ruling in January. Two judges on the panel wrote separately to say they regret the outcome even though they believe binding precedent requires it.

In its petition for review, Arkansas argues that the 8th Circuit and other lower courts have misconstrued Roberts’ June Medical concurrence as holding that a state’s asserted interests in enacting abortion restrictions are no longer relevant in the legal analysis of whether those restrictions are constitutional. Like Indiana, Arkansas says that granting its petition would provide the court with an ideal vehicle to clarify the current state of the court’s abortion jurisprudence.

Today the Court granted cert in New York Rifle & Pistol Association v. Corlett. SCOTUSblog reports, Court to take up major gun-rights case:

Over a decade after it ruled that the Second Amendment protects the right to have a handgun in the home for self-defense, [in District of Columbia v. Heller (PDF)], the Supreme Court agreed on Monday to decide whether the Constitution also protects the right to carry a gun outside the home. The justices’ announcement that they will take up a challenge to a New York law that requires anyone who wants to carry a gun in the state to show a good reason for doing so sets the stage for a major ruling on gun rights in the court’s 2021-22 term.

The law at issue in the case, New York Rifle & Pistol Association v. Corlett, is similar to gun-control measures in other states. To receive an unrestricted license to carry a concealed firearm outside the home, a person must show “proper cause” – meaning a special need for self-protection. Two men challenged the law after New York rejected their concealed-carry applications, and the [plaintiffs] are backed by a gun-rights advocacy group. The U.S. Court of Appeals for the 2nd Circuit upheld the law, prompting the challengers to appeal to the Supreme Court.

After considering the case at three conferences, the justices agreed to weigh in. They instructed the parties to brief a slightly narrower question than the challengers had asked them to decide, limiting the issue to whether the state’s denial of the individuals’ applications to carry a gun outside the home for self-defense violated the Second Amendment. But the case nonetheless has the potential to be a landmark ruling. It will be argued in the fall, with a decision expected sometime next year.

The announcement came just one day short of one year after the court’s ruling in a different challenge brought by the same gun-rights group. That case involved New York City’s ban on the transport of licensed handguns outside the city. Because the city had repealed the ban before the case reached the Supreme Court, a majority of the court agreed with the city that the challengers’ original claims were moot – that is, no longer a live controversy. In a concurring opinion, Justice Brett Kavanaugh agreed that the case should return to the lower court, but he also indicated that he shared the concern – expressed by Justice Samuel Alito in his dissenting opinion – that the lower courts “may not be properly applying” the Supreme Court’s most recent gun-rights rulings, District of Columbia v. Heller and McDonald v. City of Chicago. Therefore, Kavanaugh urged the court to “address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari” then pending before the justices, several of which involved the right to carry a handgun outside the home for self-defense.

[J]ustice Clarence Thomas dissented from the court’s decision not to take up at least one of the 10 cases [in 2020]. In an opinion that was joined in part by Kavanaugh, Thomas argued that the Supreme Court would likely grant review if a law required someone to show a good reason before exercising her right to free speech or to seek an abortion. However, Thomas continued, the Supreme Court had opted to “simply look[] the other way” when “faced with a petition challenging just such a restriction on citizens’ Second Amendment rights.”

These appeals will not be heard until next term.