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Saturday, June 22, 2024

On Responding to Muddy Complaints -- and a Comment on Departmentalism

Granting everything Rick says, my point is that Roberts's response to lower court confusion was too SCOTUS-centric. He could have said something such as "firearms regulation is necessarily indeterminate and we'll give you as much to go on as we can as part of a continuing process." Instead, he said "we've explained it twice; nevertheless, lower courts have misunderstood what should be 'a commonplace task for any lawyer or judge,' so we'll just have to do it again."

If the principle is hard to apply, that's one thing. Just say so. If the lower courts "misunderstood" SCOTUS's directions, that's SCOTUS's fault, which is something the Chief cannot bring himself to admit.

Let's put it this way: An umpire calls balls and strikes. If the players cannot understand which way the call went, that's the umpire's fault and nobody else's.

Now, on to departmentalism.

Howard argues that the Alabama legislature acted legitimately when ordering every public school classroom in the state to display the Protestant Ten Commandments, even though there is contrary Supreme Court authority prohibiting it (actually, the statute lists eleven commandments, which I guess is closer to the 21 verses in Exodus). Without such seemingly unconstitutional legislation, he explains, "a court could never reconsider or revisit precedent."

That is logical, but where does it end? An unconstitutional statute, after all, imposes burdens on people while it is making its way through the courts -- especially given Howard's view that many statutes can only be challenged defensively.

Does a legislature have an obligation --prudential or ethical, if not legal -- to avoid acting unconstitutionally in the hope that a law might be upheld after several years of enforcement?

Let's say that a legislature decides that the juvenile death penalty is permissible, notwithstanding Roper v. Simmons. Would it be "legitimate" to start seeking the death penalty for fifteen-year-olds, while waiting to see what happens at SCOTUS? If so, an untold number of young defendants would probably plead guilty to lesser offenses, for fear of execution. And some number would have to be actually sentenced to death, and presumably placed on death row, before an effective defensive challenge could be raised.

So the statute would have a serious effect even if eventually found unconstitutional (which the drafters might consider a success).

Like I said, where does it end?

Posted by Steve Lubet on June 22, 2024 at 07:13 PM | Permalink


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