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Supreme Court Docket Watch

February 27th, 2007

The decision to grant or deny Supreme Court review has been made in two important cases, one involving the Washington State primary and the other involving criminal sentencing. I’ve blogged about the Washington State primary system before, my belief that the state parties are shooting themselves in the foot, and that the courts holdings so far have been rather inflexible given the political nature of the question.

Well, now we are going to get the Supreme Court’s opinion on whether the top-two system is constitutional or not. Louisiana has been using the system for years, so they better be on the lookout… remember, it was California, who adopted Washington’s previous system, that went to the Supreme Court last time. If Washington loses like California lost, a national precedent will have been set.

Legal mumbo-jumbo aside, I have to wonder what the courts are doing with all of this? If the blanket primary is unconstitutional, and the top-two is unconstitutional, it begins to seem as if the Constitution has a preferred sort of primary, even though the constitution makes no mention of a primary and the founders, through Federalist 10, make clear that factions–only possible through primaries–are to be avoided. Personally, I found the District Court and 9th Circuit court opinions on the top-two system to be less than convincing. Their holding boils down to relying on the earlier blanket primary holding in California Democratic Party vs. Jones, concluding that anything which diminishes a political party’s right to “speak” by selecting a candidate is unconstitutional.

Given that free speech is generally a balancing test, I don’t think the courts really gave the question the appropriate scrutiny it deserves. The whole idea behind the top-two system is to say the parties don’t get to decide who appears on the general ballot. They can use whatever system they want to pick who gets to use the party political apparatus, but such authority does not extend to deciding who gets to run for office. Put another way, it’s not limiting the party’s right to speak, it’s saying the state isn’t going to listen.

The other case, involving a 200 year sentence for a man found with 20 pictures of child pornography on this computer, was denied review. The case sought to question whether such a long sentences (10 years for each photo), served consecutively (instead of concurrently, as most jurisdictions would do) violated the ban against cruel and unusual punishment. The state court review only asked whether the 10 years per photo was fair, and having decided in the affirmative, it did not question the state’s decision to apply the sentence consecutively.

What’s interesting about this case to me is the quote in the article from a Professor Berman.

For a host of good reasons, the justices think they have a role in regulating extreme corporate punishment, but I fear the court doesn’t embrace a role in regulating extreme individual punishment.

He is referring to the court’s decisions limiting punitive damages, such as the rough guideline that the punitive should never be more than nine times the actual damages.

For me, the critical distinction here revolves around state decision making. In the case of punitive damages, the decisions are made by juries within the context of judge made common law. Which gives the Supreme Court a critical role in forming, and revising, those precedents. The criminal punishment, on the other hand, is not by common law. Because of the due process clause of the Constitution (5th or 14th Amendment, take your pick), all crimes, and their punishments, must be the product of the legislature. Which means Arizona’s decision to impose consecutive terms, instead of concurrent terms, was made by the state legislature. If the result is seen as excessive, then the political process is the proper route for change.

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