U.S. Supreme Court – Page 31 – Marquette University Law School Faculty Blog

Sticking It To The Constitution

Post author:Edward A. Fallone
Post published:September 18, 2012
Post category:Constitutional Interpretation Judges & Judicial Process Public U.S. Supreme Court

Yesterday, I spoke on a panel on the occasion of Constitution Day here at Marquette University. What follows is a copy of my remarks:

Today’s panel asks, “What does it mean to stick to the Constitution?” This is another way of asking how we – you, me judges, lawmakers – should go about interpreting the meaning of the constitutional text.

Today, this interpretative question is often presented as a binary debate between either originalism or a “living Constitution.”

My argument today is that this clear dichotomy is nothing more than an illusion. There is not a choice between two stark extremes. This is because, in practice, most originalists and advocates of a living Constitution tend to meet in the middle.

So this debate between originalism and the living Constitution is often very loud and very energetic, but it tends to distract us from the real question. Both sides of the debate behave as if the original intent of the Framers of the Constitution is important. They argue very heatedly over how much weight to give to this original intent, in comparison to other factors such as changing circumstances or contrary precedent.

California Answers Some of the Graham/Miller Questions, Sort Of

Post author:Michael M. O'Hear
Post published:August 17, 2012
Post category:Criminal Law & Process Public U.S. Supreme Court

As I discussed in a recent post, the United States Supreme Court left many questions unanswered in its two recent decisions on life without parole for juveniles. In the first case, Graham v. Florida (2010), the Court banned LWOP for juveniles convicted of nonhomicide offenses. Then, in Miller v. Alabama (2012), the Court banned mandatory LWOP even for juveniles convicted of homicide. These were important Eighth Amendment decisions, but the lower courts have been left to implement them without much guidance.

Yesterday, the California Supreme Court began to address some of the unanswered questions in People v. Caballero. I think Caballero got things right, as far as it went, but the case left much open for future litigation.

Ice Gets Iced

Post author:Michael M. O'Hear
Post published:August 14, 2012
Post category:Business Regulation Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Public U.S. Supreme Court

Earlier this summer, in Southern Union Co. v. United States (No. 11-94), the Supreme Court seemed to reverse course yet again in its on-and-off revolution in the area of jury-trial rights at sentencing. The revolution began with Apprendi v. New Jersey (2000), which held that a jury, and not a judge, must find the facts that increase a statutory maximum prison term. The revolution seemed over two years later, when the Court decided in Harris v. United States that no jury was required for mandatory minimum sentences. But, another two years after that, in Blakely v. Washington, the revolution was back on, with the Court extending Apprendi rights to sentencing guidelines. Blakelywas especially notable for its hard-nosed formalism: Apprendi was said to have created a bright-line rule firmly grounded in the framers’ reverence for the jury; we are not in the business, declared Justice Scalia for the Blakely majority, of carving out exceptions to such clear rules in the interest of efficiency or other contemporary policy concerns.

Then came Oregon v. Ice in 2009, which seemed to signal that the Court had again grown weary of the revolution.