Fanning the Flames: The Freedom Project Blog


Supreme Court Review

By kgpatia
On Thursday, August 7, Richard Epstein and Geoffrey Stone, both distinguished professors of law at the University of Chicago (the James Parker Hall Distinguished Service Professor of Law and the Edward H. Levi Distinguished Service Professor of Law, respectively), reviewed some of the year’s most important and interesting Supreme Court cases. An audience of nearly 200 gathered to hear the forum, which was sponsored by the McCormick Freedom Museum in partnership with the Chicago Lawyer Chapter of the American Constitution Society and the Federalist Society. The evening’s discussion was moderated by Alison Cuddy, a senior producer, editor, and host at Chicago Public Radio.

The forum’s topic, a review of the 2007-2008 Supreme Court docket, certainly provided a springboard for a riveting discussion that touched on topics from gun control and voting rights to the application of the writ of habeas corpus and what, if any, circumstances call for judicial activism. Many of the Court’s decisions involved controversial and important matters, and left a deluge of media coverage and analysis in their wake. From this body of decisions, Epstein and Stone highlighted five cases which represented the range of topics addressed, distilled the essence and important questions caught up in each case, and proffered their own analysis.

What follows is a synopsis of the discussion surrounding each of the five selected cases.

Boumediene v. Bush

Cuddy set up the basics of the case before turning things over to the panelists. She noted that in Boumediene v. Bush, the Court considered, in a series of companion cases, whether foreign prisoners being held at Guantanamo Bay have the right to go into courts and challenge their detention using the writ of habeas corpus. In a 5-4 decision, the Court found part of the Military Commissions Act of 2006 unconstitutional. In a June 13 article on the decision, the New York Times described the unconstitutional portion of the Act as having “stripped the federal courts of jurisdiction to hear habeas corpus petitions from the detainees seeking to challenge their designation as enemy combatants.” Thus the two main issues caught up in the case are the rights of Guantanamo detainees and the application of habeas corpus.

Stone began by delving into the second of these issues—the writ of habeas corpus. He noted that this “fundamental part of…Anglo-American Law” provides for instances where, if an individual is seized and detained by the government, he or she can petition the court to determine whether the detention is lawful. If the court finds the detention to be unlawful, it can then issue a writ of habeas corpus, which “directs the executive officials to release the individual.”

Stone emphasized the importance of the writ of habeas corpus, calling it a “fundamental part of the whole concept of liberty,” noting that “without the writ of habeas corpus, the king, initially, or the executive branch today, could simply seize any of you off the street, toss you in a brig, and you would be there as long as the executive chose to hold you, and no other part of the government would have any other opportunity to determine if the executive had acted unlawfully.”

Epstein, for his part, found the central question posed by the case to be the scope and reach of the writ of habeas corpus, since the conditions for its suspense (contained in the suspension clause of the Constitution) are “clearly” not present. He argued that there are four categories that must be considered when considering the scope of habeas corpus: citizens at home, citizens abroad, aliens at home, and aliens abroad. The question, Epstein noted, is: How do we think of the writ of habeas corpus in connection with these four categories? Ultimately, he argued, due process applies to all persons, unlike other privileges that only apply to citizens.

Stone called the lack of due process at Guantanamo Bay “a disgraceful episode in American history,” explicating that, “the idea that we would not even allow these people to have due process is something about which we should not be proud.” He aptly summarized the main questions and issues involved in the case when he asked, “Are we holding people [at Guantanamo Bay] for 5, 6, 7, 8 years who didn’t do anything, and they’ve never had a chance to have a hearing to determine whether in fact they’re being held lawfully?”

In one of two dissenting opinions issued by the Supreme Court, Justice Antonin Scalia vehemently disagreed with the majority opinion (and ultimately Stone and Epstein’s classification of the case). The New York Times described Justice Scalia’s dissent as “apocalyptic,” quoting from the Justice’s opinion in which he declared, “It will almost certainly cause more Americans to be killed…The nation will live to regret what the court has done today.”

District of Columbia v. Heller

In District of Columbia v. Heller, the Supreme Court asked “Does Washington D.C.’s ban on private handgun ownership violate the Second Amendment?” The Court ultimately affirmed that question in (another) 5-4 ruling, and found Washington D.C.’s handgun ban unconstitutional.

Epstein began the analysis of this case, noting that in the media that followed the decision, the best take came from the Chicago Tribune, which noted, “Sometimes the Founders needed an editor.” He then proceeded to read aloud the second amendment, because, as he noted, “the ambiguity leaps out after you.” He read: “A well-regulated militia being necessary to the security of a free state,” adding to laughter, “a proposition that many people would deny today…oh no, that’s not in there,” and then finished, “the right of the people to keep and bear arms shall not be infringed.” The two clauses, he concluded, do not fit together.

The question inherent in the case, he suggested, is “how do you think about this under the Constitution of the United States? Which is not a question about what Richard Epstein happens to think about the wisdom of gun laws.” The decision, he argued, was a case of “poor originalism.”

Justice Scalia’s error in judgment, Epstein argued, was that in treating the first clause of the second amendment as a precatory clause (a clause which is non-binding), he engaged in a “14-word disappearing act.” Having thus narrowed down the amendment to the second clause, Justice Scalia then concluded, as Epstein put it, “this statute is over-broad, come back to me sometime in the next 20 years, more than once if need be, and I’ll tell you what’s ok.” That problematically presents a flood of litigation; as Epstein put it, “everybody and anybody and his uncle are going to be suing saying that these restrictions are too much, these restrictions are too little.”

Justice John Paul Stevens, on the other hand, argued in his dissenting opinion that the first clause of the second amendment was not precatory, but rather, as Epstein classified his argument, established “an essential nexus” between the purposes of the clauses and the protection involved. Thus, Stevens argued, the only way one could justify use of the amendment is to connect it to performance of a well-regulated militia; since the plaintiff was not a part of the militia, and was just an ordinary citizen, Justice Stevens concluded the second amendment doesn’t apply in these cases.

Epstein concluded that in the end, Justice Stevens was right because he did something that Scalia did not: “integrate the second amendment with the rest of the Constitution.”

Stone went back to the discussion of the ambiguity of the second amendment, and offered up a compelling way to demonstrate the importance of this first clause. He posited the question, what if the first amendment had said: “Democracy being necessary for the welfare of the state, Congress shall make no law abridging the freedom of speech…”?
Under this version of the first amendment, he argued, commercial advertising is not protected, “because it specifies a purpose which may have nothing to do with commercial advertising, although it may have a lot to do with political discourse.”

As a final point, Stone noted that this case presents an interesting take on judicial activism. As Stone explained, in this case, it was the so-called judicial conservatives who were advocating “a muscular intervention, when you would expect conservatives to be… much more cautious about intervening in this way.” This, Stone observed, is a break from what we typically think of as judicial activism.

Crawford v. Marion County Election Board

In a 6-3 Decision, the Supreme Court upheld an Indiana law that requires voters to present identification prior to casting a ballot. The law had been challenged as “an unconstitutional burden on the right to vote” by the Democratic Party of Indiana, as well as the ACLU. The court ruled that the law does not present a burden, and that in order to overturn it, the court would need proof that real people are actually being deterred from voting.

Stone described the reasoning behind the challenge, noting that there were many individuals for whom the availability of photo identification could be a burden, for instance, the elderly, the poor, those without a drivers license, and those registered voters that “have no other reason to have a photo ID, and so the only way for them to be able to vote is to go get a photo ID specifically and exclusively for the purpose of voting.”

Stone noted that part of what made the case and subsequent decision so interesting was that its “political origins are so in-your-face.” The Republican Party, after all, was responsible for enacting the legislation, and the Democratic Party for challenging the legislation. Stone argued that the purpose of the legislation was “to make sure poor people and others who are more likely to vote Democratic are put to a disadvantage in terms of their ability to vote,” and that “no one really doubts that is what this law is about.”

Stone would have found the law unconstitutional, and noted that the Court should have seen through the “fantasy” of this being just a case about voter IDs and voter fraud and recognize that this was an effort to “shape the electorate to advance certain partisan interests at the disadvantage of other partisan interests.” Furthermore, Stone would have put the burden of proof back on the state to justify the law, rather than on the plaintiffs, to prove what is “obviously” the case. “If you have to go out and get a voter ID just for the sake of voting,” Stone explicated, “a lot of us wouldn’t bother, and we wouldn’t vote.”

Epstein noted that he was inclined in the state’s favor, but probably would not have sustained the law. Rather, he noted, he would have said, “Go back and tell me a little bit more about this fraud stuff, I’m inclined in your favor, but I just don’t think you said enough to do it…I would have remanded rather than sustained at the end.”

Stone added one exception to his earlier conclusions, noting that, he “actually would have upheld this if the state law said everybody has to go get a special voter ID…I want to emphasize the equality point. What this does is allow all of us who have driver’s licenses and are middle class…we don’t have to do that. The only people that have to do it is a small segment of the population, almost all of whom are Democrats.”

Kennedy v. Louisiana

In yet another 5-4 decision, the Supreme Court found a Louisiana law that allowed the death penalty for the crime of child rape to be unconstitutional under the 8th amendment’s ban on cruel and unusual punishment.

Epstein felt that the decision was “clearly wrong,” because within the Constitution, death is dealt with in other places besides the 8th amendment. Thus, if you already have things in place that regulate death, Epstein argued, the “cruel and unusual punishment” clause clearly does not involve a regulation of death. Explaining himself, he noted that, “The way I look at it, the only question you can decide is ‘can you use the death penalty?’ and if so, then the question of the offenses for which you use it then becomes a political question.”

Stone noted that this was one case on which he and Epstein disagreed. While Epstein’s argument was based on originalism, Stone argued for evolving standards of moral decency. He noted that while the Framers of the Constitution imagined a world in which there was the death penalty, they also lived in a world in which there were not prisons, at least not in the sort that exist today. Since there was no such thing as life in prison, this was why, Stone explained, individuals “had to resort to various kinds of physical punishments in that society that made sense because the alternatives were not available.”

Defending his position of evolving standards of decency, Stone said, “It seems to me that the availability of those alternatives is perfectly relevant to deciding what is a cruel or unusual punishment, and that that can change over time, the variety of sociological and technical changes, and the existence of the ability to confine a person and isolate them from society changes the calculation.”

Stone reasoned that the death penalty requires a higher degree of scrutiny for the “simple reason that it’s irreversible. If it turns out 5, 10, 20 years later you were innocent, you can’t do a damn thing about it.”

Epstein countered Stone’s reasoning, noting that, “The argument that we now have prisons so don’t worry about this is a very dangerous way, and I’d rather be a craven originalist than a dubious sociologist.” He added that, “I don’t see any reason why moral decisions that are contestable have to be made by a court; for once, I think the democratic process ought to do it.”

Davis v. FEC

The final case analyzed by the two panelists, Davis v. FEC, received much attention and analysis from the media in the days and weeks after the decision was handed down by the Court. In another 5-4 decision, the Supreme Court struck down the so-called ‘Millionaire’s Amendment’ provision of the McCain-Feingold Act (Bi-Partisan Campaign Reform Act).

In this case, money was seen by the Court as extension of other forms of expression (and thus protected under the first amendment of the Constitution). As Stone pointed out, the four “moderate liberals” on the court did not see any reason to disallow the Millionaire’s Amendment, as they felt it did not harm a disadvantaged part of the population.

Stone noted that although he was sympathetic to the goal of equalizing—for instance, he notes, in a town hall setting, “we would never think of selling debate time to the highest bidder”—he ultimately would have found the law unconstitutional.

His backing of the ruling is based in his distrust of legislators dealing in regulation of political expenditures, likening it to “the fox going in the hen house.” He explained his skepticism, saying, “I mean what you can really be sure about with political regulation of political campaigns is that the first goal will be to get themselves re-elected, so they will never enact legislation that threatens incumbents.”

Epstein agreed with the Court and Stone’s rejection of the Millionaire’s Amendment. He noted that while, “corruption in politics is a serious issue,” there are other ways to deal with corruption than the way the amendment approached it. On this point, Epstein put forward a challenge: “Tell me why it is that these things have broken down; you’re not telling me that when you just prove people spend a fortune on an election.”

He added, evoking some laughter from the audience, “Given the damage that both political candidates can do by victory, the fact that we’re only going to spend a billion dollars when they have the capacity to cost us a trillion dollars with one piece of legislation, strikes me that we’re spending much too little on politics relative to what we ought to spend given the stakes of these campaigns.”


Blogger dudleysharp said...

Besides all parties overlooking  the death penalty application for child rapists in military law, within Kennedy v Louisiana, SCOTUS makes this blunder, as well:
"the court rested its condemnation of executing the rapists of children largely on what it described as a trend away from the use of death to punish such crimes both here and abroad."
Just the opposite is true.
The US state laws imposing the death penalty option on child rape cases were relatively new and few in number.  However,  a number of states were actively considering passing such laws. This is not in dispute.
By outlawing such laws, now, it can, reasonably, be argued that SCOTUS wrongly and intentionally, may have stopped a new trend, an evolving standard toward the death penalty for child rapists which may have established a national consensus.
It appears, with the monster SCOTUS has created, that SCOTUS should require itself to wait until both an evolving standard and national consensus can be fully realized within a developing trend.

Or is the newest "constitutional" guide for SCOTUS to be "preemptive trend stopping"?
SCOTUS' evolving standards doctrine and the national consensus "standards" are both prone to this type of constitutional perversion - the alchemy of highly strained legal arguments derived from personal opinion.
In fact, the national consensus was for the death penalty for child rape cases.
See Jim Lindgren's, A “National Consensus” in Favor of the Death Penalty for Child Rapists"
And a  July, 2008 National Poll
By a 55 - 38 percent margin, voters favor the death penalty for a person convicted of raping a child. Women and men are consistent in their support.
Another excellent example of this type of phony consensus and evolving standards doctrine improperly used by SCOTUS is this,
A phony 'consensus' on youthful killers
by Jeff Jacoby in a Boston Globe op/ed
When SCOTUS can stop trends, which may define a new national consensus and a new evolving standard, then they have come full circle, in what has always been questionable legal and constitutional interpretation.
NOTE: As a firm adherent to the reality that incentives matter to most people, including criminals, I was concerned that if the sanction options were equal for child rape and child murder that some rapists would be more prone to murder their victims. Therefore, I was not a proponent of the death penalty for child rape.
copyright 1998-2008 Dudley Sharp
Permission for distribution of this document, in whole or in part,  is approved with proper attribution.
Dudley Sharp, Justice Matters
e-mail,  713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
Pro death penalty sites 


www(dot)   (Sweden)

12:15 PM  

Post a Comment

<< Home


Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

Subscribe to
Posts [Atom]

About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at