Whatever Happened to Comity?

Four Supreme Court cases over the past few weeks have piqued my interest. I'll run them down here and offer my own thoughts. Full disclosure: I am not a lawyer or a constitutional law scholar.

Case 1: Crawford v. Marion County (IN) Election Board
Brief Background: Indiana state law requires a very strict check of voter identification before an election takes place.
Question Posed: Are strict voter identification laws an undue burden on voters?
Answer: No, by 6-3, though the decision was split and there are some interesting opinions at work:

- Justices Stevens, Roberts, and Kennedy acknowledged that while Indiana did not present evidence indicating the necessity for a strict voter identification law, neither did the petitioners present evidence of legal voters being prevented from voting. In other words, they essentially argued that the petitioners lacked standing: they had no proof of individual harm.
- Justices Alito, Scalia, and Thomas took it a step further: the law was nondiscriminatory as a voting regulation, and was perfectly constitutional because it posed the burdens equally.
- Justices Ginsburg and Souter put the onus on Indiana to prove why it needed any restriction on voting because there was no evidence of widespread voter fraud. Souter penned the dissent.
- In a separate dissent, Justice Breyer questioned why the law had to be so strict, pointing towards fairly permissive laws in Florida and Georgia, which allowed for far more identification types (student IDs).

Voting rights are definitely an issue where the Court has responsibility; the Court is the country's leading opponent of the "tyranny of the majority," and it's very easy to manipulate voting laws in that way. With that said, I'm with the lead opinion on this. Without any concrete evidence that people are harmed by this, I am reluctant to strike down a state law. Strict voter ID laws have a justifiable purpose: to prevent voter fraud.

For more, see http://www.nytimes.com/2008/04/29/washington/29scotus.html.

Case 2: Exxon Shipping Co. v. Baker
Brief Background: Nineteen years ago, an Exxon oil tanker spilled a massive amount of crude oil off the Alaskan coast. Exxon was charged $507 million in compensatory damages and $5 billion in punitive damages. An appeals court reduced the punitive damages to $2.5 billion.
Question: Is $2.5 billion too much?
Answer: Yes, by quite a bit. The Court established a 1:1 ratio between compensatory and punitive damages in maritime cases in a 5-3 decision.

- Justices Souter, Thomas, Scalia, Roberts, and Kennedy all supported a 1:1 ratio between compensatory and punitive damages.
- Justices Stevens, Ginsburg, and Breyer disagreed, arguing that the damage caused warranted severe punishment as a deterrent for future negligence. Stevens also argued that establishing limits is a job for the legislature.
- Justices Scalia and Thomas, interestingly, filed a concurring opinion indicating that they made their decision based on a precedent from a case that they believed had been decided in error -- Scalia once wrote, "the Due Process Clause provides no substantive protections against 'excessive' or 'unreasonable' awards of punitive damages" (State Farm v. Campbell, 2003).

Excessive damages are a problem, certainly, and the $5 billion punitive damages amount was excessive. But in reality, once it was knocked down to $2.5 billion, it was only a 5:1 ratio. Is that really that excessive, to warrant further judicial interference in the process? And why is the court establishing a punitive/compensatory damages ratio? That is certainly the job for a legislature.

I think that Scalia has the right idea. The idea that the Court should really be going after excessive damages is misguided. With that said, the Court has established that it does, and accordingly, is doing so in this case. I like the idea of a 1:1 or 2:1 ratio as a rule, but I would like it a lot more if it were put forth by a legislature rather than the Court.

One thing that you will not see in mainstream coverage of this is the Scalia/Thomas principled concurrence. This is important. The two are falling in with the conservative bloc, but only reluctantly. If the Court had decided, as they would prefer, to avoid dealing with punitive damage cases, then Exxon would still be paying $2.5 billion.

For more, see http://www.nytimes.com/2008/06/26/washington/26punitive.html.

Case 3: Kennedy v. Louisiana
Brief Background: Patrick Kennedy, a 40-ish Louisiana resident, was tried and found guilty of raping his eight-year old stepdaughter and was sentenced to death for the crime.
Question: Is the death penalty a proportional punishment for child rape in cases where the victim survives?
Answer: No, apparently. The Court ruled 5-4 against.

- Justices Kennedy, Stevens, Souter, Ginsburg, and Breyer argued that the death penalty was not proportionate for child rape.
- Justices Alito, Roberts, Thomas, and Scalia dissented, arguing that the Louisiana legislature passed the law and it did not fall under the umbrella of cruel and unusual punishment for such a crime.

I must say that I was surprised when I agreed with Obama 100% on this, but I do. He said:

"I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes. I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution."

More importantly, though, is the overreach. This was a democratically-decided issue. And it's not like he's innocent. He was found guilty!

I think I am with Obama on the death penalty 100%. My terminology is generally "used sparingly, if supported by a state population."

Case 4: District of Columbia v. Heller
Brief Background: The District of Columbia has a law on the books from the 1970s that bans handgun ownership entirely.
Question: Does this ban violate the Second Amendment?
Answer: Yes, by 5-4.

- Justices Scalia, Roberts, Thomas, Kennedy, and Alito ruled that the ban was a violation of the Second Amendment.
- Justices Stevens, Ginsburg, Breyer, and Souter dissented, arguing that the Founders never would have restricted the federal government's ability to control firearm ownership altogether.

The Kennedy swing vote remains in full force with the last two decisions.

There certainly was standing here; a security guard wanted to own a gun, and he felt his safety was imperiled by not being allowed to own one. In characteristically blunt fashion, Scalia noted that handguns are preferable for self-defense because they "can be pointed at a burglar with one hand while the other hand dials the police."

I think that constitutionally, the Court absolutely could strike down such a ban, based on a basic interpretation of the Second Amendment. Strict background checks and waiting periods are not really constitutionally questionable, but a total ban on guns anywhere is certainly not compatible with a right to bear arms. What bothers me more is how active the Court is being.

I think I would have ruled as follows:

- Crawford v. Marion County (IN) Election Board: with Stevens and the majority
- Exxon Shipping Co. v. Baker: reluctantly with Scalia, using the same reasoning
- Kennedy v. Louisiana: with the dissent
- District of Columbia v. Heller: probably concurring, with a reaffirmation of the types of restrictions that can be put in place by a democratically-elected legislature

Comity, then, where the judiciary defers to the other democratically-elected branches, is out of style. I am not a fan of this type of activism. I am happy with Crawford, at least.