Law and order and the U.S. Constitution

Marc Levin writes in Real Clear Policy:

Judicial confirmation battles continue to solidify their place in one of the lowest circles of Dante’s Inferno. We have careened from accusations that a religious “dogma” would prevent now Justice Amy Coney Barrett from performing her secular duty to faithfully interpret the law to allegations that Judge Ketanji Brown Jackson would bring a “soft on crime” agenda to the bench.

Fortunately, the Constitution is an unwilling partner in this descent into purgatory. Our founding document prohibits religious tests and largely does not prescribe criminal justice policy outcomes, establishing just one federal crime of treason. Ultimately, whether a Supreme Court justice takes a strict or more liberal approach to interpreting the Constitution and our nation’s laws does not reliably predict whether the outcomes of the cases they decide will make life easier or harder for defendants.

And while judicial philosophy is fair game for honest disagreement, the public is not served when some on both sides in recent confirmation battles let bumper-sticker slogans trivialize complex questions of justice. At issue now, of course, are claims that Judge Jackson’s sentencing of some child pornography defendants was outside of the mainstream. Jackson cited mitigating factors in rejecting this characterization at her confirmation hearing and conservative legal commentator and former prosecutor, Andrew McCarthy, has most prominently debunked claims that Jackson’s sentences of child pornography defendants were beyond the pale, given that other judges also used their authority to depart below the guidelines in similar cases.

Though as a general matter second-guessing any trial court’s discretionary sentences is hardly inappropriate, there is a risk of confusing debates over such sentences with the separate question of how Judge Jackson would interpret the Constitution and federal law if confirmed. Judge Jackson assured the Senate Judiciary Committee that her judicial philosophy is grounded in applying the Constitution’s literal text and original intent. This led Professor Randy Barnett to take a victory lap for originalism, but many more center-right observers likely agree with the National Review’s Kevin Williamson that she would interpret the Constitution and federal law far more broadly than recent conservatives on the court. However, assuming Williamson and the conventional wisdom are correct, this may be just as likely to harm as help criminal defendants. Indeed, in many areas, traditionally conservative judicial approaches that rely heavily on originalism and strictly construing provisions work to the advantage of defendants.

Moreover, it is this philosophical inquiry that is most important going forward given that the Supreme Court’s primary role is not to second-guess the factual predicate for individual sentences but to decide much broader questions of constitutional and statutory interpretation that affect scores of defendants. In making these broad decisions, such as determining the reach of federal drug and sex offender registration laws, it is the narrower approaches taken by conservative justices that often stand to benefit defendants. Furthermore, because federal laws covering the same conduct such as drug possession are typically harsher than state laws and federal defendants are much less likely to receive probation than state defendants, more restrictive interpretations of federal constitutional powers and federal statutes that are typically associated with conservatives’ jurisprudence, including a reverence for the Tenth Amendment, often work to the advantage of defendants.

Consider, for example, the 2005 case of Gonzales v. Raich. In this instance, Chief Justice William Rehnquist and Justice Clarence Thomas, two staunch conservatives, dissented from the high court’s holding that the Commerce Clause was so broad as to allow federal drug statutes to effectively trump California’s medical marijuana law. The liberal majority, by contrast, concluded that people who medically use the pot grown in their backyard are somehow connected to the interstate marijuana market. This reasoning construed the Commerce Clause so broadly that it justified a level of limitless federal power that would have been foreign to the Founders.

The story is similar when it comes to the court’s jurisprudence on the sweeping Sex Offender Registration and Notification Act. In the 2019 case Gundy v. United States, the majority ruled that the U.S. Attorney General has the power to retroactively apply this statute to an individual who was convicted prior to the law’s enactment.

Dissenting conservatives, including Justice Thomas and Justice Neil Gorsuch, made the more convincing case anchored in the Constitution’s traditional separation of powers doctrine, under which the legislative power is expressly reserved for Congress. With the Heritage Foundation documenting thousands of federal offenses created through agency rulemaking, a more exacting approach by the court’s majority to the nondelegation doctrine is vital to protecting Americans from facing prosecution from unknowingly violating obscure rules that their democratically elected representatives never authorized.

These dissenting opinions relating to marijuana and sex offender registration are important because the narrow approach they take to the Commerce Clause and the ability of Congress to delegate policymaking to bureaucracies, respectively, could command majorities on the current, much more conservative court. This has profound implications not just for many criminal cases but also for limiting the reach of the federal administrative state in controversial areas such as environmental regulation.

Another example of how strictly interpreting the law can benefit defendants is the late archconservative Justice Antonin Scalia’s commitment to narrowly construing the wording of criminal laws that lend themselves to more than one reasonable interpretation, including through applying the rule of lenity. This rule is not to be confused with leniency, as it does not relate to the degree of punishment but rather to the question of whether a statute covers the defendant’s actual conduct. As such, the rule of lenity is one method of interpreting ambiguous criminal laws wherein ambiguity is resolved in favor of the defendant. Notably, in her 77-page response to written questions from the Senate Judiciary Committee, Judge Jackson indicated she would apply the rule of lenity along with other methods in interpreting vague criminal statutes.

Justice Scalia and legal scholars have elucidated several compelling reasons for this rule that dates back to at least the 13th century in England, including the importance of citizens being put on fair notice of what constitutes a crime, which a vague law by definition fails to do. For instance, dissenting in a 1993 case, Justice Scalia applied the rule of lenity in interpreting the word “use” in a federal firearms statute, finding that it could just as easily be interpreted as to only cover a defendant who employed a gun in customarily illegal ways as opposed to also including the defendant who bartered it for drugs.

Conversely, there are areas where a more far-ranging and purportedly contemporary approach to constitutional interpretation benefits defendants, particularly when state laws and the severity of punishment are at issue. For example, liberal judges have been more inclined to find that certain applications of the death penalty and juvenile life without parole sentences constitute cruel and unusual punishment under the Eighth Amendment. Though the gravity of the outcomes determined by these cases cannot be doubted, these rulings have little impact on the daily churn of the criminal justice system, as a total of 11 Americans were executed in 2021. Moreover, the threshold of “evolving standards of decency” is itself constrained by trends in practice and public opinion, meaning that even the decisions striking down the harshest sentences for youths rely in large measure on such sentences having become increasingly uncommon.

There are genuine and significant differences on how to interpret the Constitution and criminal statutes, but if a Supreme Court justice allowed her decisions to be based on whether the outcome was tough or soft on crime, they would be in dereliction of their duty to rule without fear or favor to any party. Judicial philosophy is well worth arguing over, but judicial confirmation battles should not conflate religious litmus tests or criminal justice policy outcomes with assessing a nominee’s approach to interpreting the law. Those on either side who make their desire for pro-defendant or pro-prosecution decisions the test of whether to confirm Judge Jackson or any nominee are likely to be disappointed in both in the results and the tenor of the confirmation process.

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