Idea storage

Tuesday, June 28, 2005

Reaction to this term of the Supreme Court

Over at Sentencing Law and Policy, Professor Douglas Berman is critical of the Court's obsession with death penalty cases, while wavering and qualifying with sentencing in general (e.g., Booker, etc.). As Berman and the writer he quotes point out, the death penalty is relatively infrequent in the big picture of punishment as a whole. Not that Berman seems to be against the death penalty.

Berman links to Tom Goldstein's list of 10 Court cases of the term at SCOTUS. Of that list, I'm going to pare it down to six big decisions (this is entirely my subjective analysis, based on how much people have been talking, and my legal instinct).
  1. Kelo - city can exercise eminent domain for public development as long as the town has a plan in place for how the taking will benefit the community that it serves [5-4] (takings clause of the fifth amendment)
  2. Grokster - peer to peer file sharing software and marketing schemes themselves violate copyright law when they deliberately and openly facilitate widespread copyright infringement [9-0] (copyright law)
  3. Raich - feds can criminalize medicinal marijuana even when state has legalized it [6-3] (interstate commerce clause)
  4. Roper - state can't execute a person who was a juvenile at the time of their offense [5-4] (8th amendment)
  5. Booker/Fan Fan - the federal sentencing guidelines, to the extent that they allow a judge to enhance a sentence based on facts not found by the jury, are unconstitutional [5-4] (6th amendment right to jury trial)
  6. Van Orden/ McReary County - ten commandment ok as one of multiple statutues on the courthouse lawn, but not ok as a framed copy inside the courthouse [5-4 on each with Breyer as the swing vote] (first amendment establishment clause)
Of these cases, I'm most inclined to "agree" with the rulings in Roper, Booker, McReary County and "disagree" with Grokster, Raich, Van Orden. Kelo, as mentioned a few posts ago, I'm right on the fence on, but inclined to agree with.


Post a Comment

<< Home