Amid all the recent assaults on the Bill of Rights, including the latest trashing in the USA Patriot Act and the denial of habeas corpus to citizens, amid all this, in the span of one week, the Supreme Court has issued rulings almost beyond the dreams of the most ardent civil libertarians.
Listen to the exultant cry of Steven Hawkins, executive director of the National Coalition to Abolish the Death Penalty, who said this is “the most favorable term in a quarter of a century, in terms of death penalty jurisprudence.”
For those who have gazed aghast over the past generation as jury rights have been trampled by tough-on-crime fanatics and liberal elites, there are paragraphs in certain opinions in the Court’s rulings that are as momentous as any in the Warren Court. From whose pen did these sentiments issue?
“My observing over the past twelve years the accelerating propensity of both state and federal legislatures to adopt sentencing factors determined by judges that increase punishment beyond what is authorized by the jury’s verdict, and my witnessing the belief of a near majority of my colleagues that this novel practice is perfectly OK, cause me to believe that our people’s traditional belief in the right of trial by jury is in perilous decline. That decline is bound to be confirmed, and indeed accelerated, by the repeated spectacle of a man’s going to his death because a judge found that an aggravating factor existed. We cannot preserve our veneration for the protection of the jury in criminal cases if we render ourselves callous to the need for that protection by regularly imposing the death penalty without it.”
John Paul Stevens, you guess? No, Antonin Scalia. His emphasis on the fundamental role of the jury as guardian of our rights under the Constitution runs entirely counter to the trend of the past couple of decades, when judges have, with either the approval or indifference of legislatures and the press, been allowed not only to deprecate the jury’s fundamental right to nullify and set the law aside but also to set jurors’ verdicts aside and impose their own, often with lower standards of proof.
By and large, liberals have been the architects of these erosions of fundamental popular rights, whether it was Tip O’Neill rushing through totalitarian drug laws in the mid-1980s; or Clinton’s Antiterrorism and Effective Death Penalty Act (which, among other horrors, junked the doctrine of habeas corpus); or the hate crimes statutes written into many state codes at the behest of gay, feminist and liberal civil rights groups in the wake of the James Byrd and Matthew Shepard killings.
Scalia exposes the contradictions tellingly in his concurring opinion in Ring v. Arizona, where the Court struck down, 7 to 2, an Arizona statute that allowed judges rather than juries to impose the death penalty. He rightly chides Justice Stephen Breyer for inconsistency in endorsing the right of judges to overrule the jury in tacking on enhanced punishment under hate crimes statutes, and then, in Ring v. Arizona, for tacking the other way. Scalia’s term for this kind of pirouette is “death-is-different jurisprudence.”