FIRST ONE @ ONE FIRST

Kagan’s First Opinion; Scalia cites Foreign Law

Posted in Case Reports by Mike Sacks on January 11, 2011

Just a few quick thoughts before I get back to bar studies:

  • Justice Kagan’s first opinion is in the first case she heard on the Supreme Court.  True to tradition, it’s a dog of a case.
  • Justice Scalia is the lone dissent, breaking from the tradition of unanimity for a new justice’s first opinion.  Last year, Justice Thomas concurred in part in Justice Sotomayor’s first opinion.  Does two years away from the tradition mean it’s no longer a tradition?
  • Kagan wasted no time getting into a footnote scuffle with Scalia over the textual relevance of consulting the IRS’s “Collection Financial Standards”:
    • Kagan, fn7 – “Because the dissent appears to misunderstand our use of the Collection Financial Standards, and because it may be important for future cases to  be clear on this point, we emphasize again that the statute does not “incorporat[e]” or otherwise “impor[t]” the IRS’s guidance. Post, at 1, 4 (opinion of SCALIA, J.).  The dissent questions what possible basis except incorporation could justify our consulting  the IRS’s view, post, at 4, n.,  but we think that basis obvious: The IRS creates the National and Local Standards referenced in the statute, revises them as it deems necessary, and uses them every day.  The agency might,therefore, have something insightful and persuasive (albeit not controlling) to say about them.
    • Scalia, fn* – “The Court protests that I misunderstand its use of the Collection Financial Standards.   Its opinion does not, it says, find them to beincorporated  by the Bankruptcy Code; they simply “reinforc[e] our conclusion that . . . a debtor seeking to claim this deduction must makesome loan or lease payments.”  Ante, at 10.  True enough, the opinionsays that the Bankruptcy Code “does not incorporate the IRS’s guidelines,” but it immediately continues that “courts may consult this material in interpreting the National and Local Standards” so long as itis not  “at odds with the  statutory language.”   Ibid.  In the presentcontext, the  real-world difference between finding  the guidelines incorporated  and finding it appropriate to consult them escapes me, since I can imagine no basis for consulting them unless Congress meant them to be consulted, which would mean they are incorporated.  And without incorporation, they  are  at odds  with the statutory language, which otherwise contains no hint that eligibility for a Car Ownership deduction requires anything other than ownership of a car.”
  • Does citing midcentury UK law count as a dreaded citation to foreign law?  Scalia: “The canon against superfluity is not a canon against verbosity.When a thought could have  been expressed more concisely, one  does not always have to cast about for someadditional meaning to the word or phrase that could havebeen dispensed with.  This has always been understood.  A House of Lords opinion holds, for example, that in  the phrase “ ‘in addition to and not in derogation of ’ ” the last part adds nothing but emphasis.  Davies v. Powell Duffryn Associated Collieries, Ltd., [1942] A. C. 601, 607.”

Back to the barstuffs.

Graham v. Florida

Posted in Case Reports by Mike Sacks on May 17, 2010

Today Justice Kennedy extended his Eighth Amendment legacy as the author of the majority opinion in Graham v. Florida.  The Court invalidated sentences of life without parole for juveniles convicted of non-homicide crimes.  His opinion was joined by Justices Stevens, Ginsburg, Breyer, and Sotomayor.

Justice Roberts added his vote to the majority’s judgment that Graham’s sentence should be overturned, but refused to follow the majority’s broad determination that all sentences like Graham’s facially violate the Eighth Amendment’s ban on cruel and unusual punishment.

Justice Thomas, in a dissent joined by Justices Scalia and partially by Alito, wrote that the Court has rejected “the judgments of…legislatures, judges, and juries regarding what the Court describes as the ‘moral’ question of whether this sentence can ever be ‘proportionat[e]‘ when applied to the category of offenders at issue here.”

In addition, Thomas struck at the return of Justice Kennedy’s famous citations to foreign law at the close of the majority opinion.  Unwilling to dignify such references with a rebuttal in the body of the dissent, Thomas “confine[d] to a footnote the Court’s discussion of foreign laws and sentencing practices because past opinions explain at length why such factors are irrelevant to the meaning of our Constitution or the Court’s discernment of any longstanding tradition in this Nation.”

Justice Alito, writing for himself, added a short dissent noting that courts could still sentence juveniles to very long sentences without parole, as long as the sentences were not for life.

In two-paragraph concurring opinion, retiring Justice Stevens, joined by Justices Ginsburg and Sotomayor, attacked Justice Thomas’s dissent as too “rigid” an interpretation of the “evolving standards of decency” doctrine that has guided the Court’s Eighth Amendment jurisprudence since 1910.  Stevens wrote:

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commit- ment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete.

While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

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