UNELECTED, POLITICALLY UNACCOUNTABLE JUDGES

The Supreme Court's recent decision regarding the right to habeas corpus by those designated "enemy combatants" has been the subject of heated and extensive debate. I have no intention of discussing the merits, but rather wish to focus on the disappointing use of the phrase "unelected, politically unaccountable judges" by the Chief Justice in his dissent criticizing the majority opinion. That language comes right out of the conservative-Republican playbook. It is code for "liberal activist" judges.

Every decision by a federal court is rendered by "unelected, politically unaccountable judges", a principle embedded and cherished in the Constitution. There are many meritorious arguments against the extension of habeas writs to enemy combatants, but why demean the Court in the process with the use of this old saw, particularly by the Chief Justice himself. It is vital that the public respects the decisions of the Court even it it disagrees with them. The Chief Justice should engender that respect, not demean it.

PUNITIVE DAMAGES v. THE DEATH PENALTY

The Supreme Court recently decided that the due process clause prohibits calculating punitive damages based upon harm caused to strangers. (Philip Morris USA v. Williams). In other words, when punishing a corporation with money damages, a jury must engage in individualized decision-making, but maybe not so in deciding the imposition of the death penalty. (In re William Weaver, NY Times 3/22/07)

I suggested in an earlier post (Punishing Punitive Damages) that it might not be inappropriate in awarding punitive damages to consider that the corporate defendant had a history of the same wrongful conduct and knowingly continued it, and that an award based upon that history would serve to punish the defendant and deter it and others from doing the same. But the Court having confined a jury's consideration to the individual claimant where only money is involved, it is difficult to reconcile that with the argument that a jury can consider the effect upon "strangers" where life is involved. True, in the punitive damage case the "strangers" were other victims, and here they are potential perpetrators, but in each instance, we are talking about persons not before the court.

It can be debated whether or not the death penalty actually deters anyone. But assuming, as Justice Kennedy stated that "Deterrence is one of the reasons we have the death penalty", the question remains whether or not that policy should be presented to a jury as a reason to execute a particular individual. Assuming a jury is undecided, should the possible effect upon unknown others tip the scales and result in the imposition of the death penalty?

Of course, all of this is played out against the unfortunate and almost insurmountable barrier to habeas corpus imposed by the Antiterrorism and Effective Death Penalty Act. In effect and logically, it permits the prosecutor (and others) the opportunity to claim that the state court decision was not contrary to "clearly established federal law as determined by the Supreme Court of the United States" (as the statute requires), if the members of the Court themselves cannot agree on the resolution of the underlying question!

The Constitution and a Trip to the Dentist

This is my first entry in to the world of blog, because I am astonished by the lack of outrage over the case of Jose Padilla---an American citizen who has been held in solitary confinement for 31/2 years, been deprived of the right to counsel for 21 months, all as a result of the unfettered discretion of the President in designating Mr Padilla as an "enemy combatant". The N.Y. Times (12/4/06) reported that during a recent trip to the dentist, Mr. Padilla's legs were shackled, his wrists cuffed and "noise-blocking headphones placed over his ears and blacked-out goggles over his eyes".
Mr. Padilla was originally arrested and publicly charged with plotting a dirty bomb attack in the United States. He was eventually charged with conspiracy and of providing material support to terrorists. The recent indictment was not in recognition of his constitutional rights as an American citizen, but rather a strategic decision by the administration to avoid what undoubtedly would have been an adverse judicial decision condemning the confinement and treatment of Mr. Padilla. The alleged dirty bomb plot is nowhere mentioned in the indictment against him. Mr. Padilla may be guilty of something, but the administration is guilty of far worse.
The administration has justified (and to large extent the public has accepted) wiretapping, these detentions, and possibly even torture, on the basis that these methods fight terrorism and confine terrorists. But what if they are not terrorists? Hundreds have been released after extended confinement without charges. They are all someone's husband, son, brother or father. For many such persons, the government has now suspended habeas corpus ("the best and only sufficient defense of personal freedom" Justice Chase, 1868), thus denying the means and opportunity for those detained to establish their innocence of any wrongdoing.
American soldiers are dying to win freedom for the people of Iraq, while we are losing freedom for the people of America.