SCOTUS Left Takes on Death Penalty, Redistricting

On Monday, the Supreme Court of the United States continued its gushing vomit of nonsensical opinion, issuing three rulings of varying degrees of logic and coherence. First, the Court ruled that death-row inmates had not been denied their Eigth Amendment rights by state use of midazolam in executions (although Justices Breyer and Ginsburg, once again mistaking the term “interpretation of the law” for “stuff I once said in an AP political science course,” said that the death penalty ought to be banned altogether). Second, the Court ruled that the Environmental Protection Agency had exceeded its regulatory authority in going after mercury, arsenic, and acid gases emitted by coal plants. Finally, the Court ruled that Arizona voters could overrule the legislature by appointing a redistricting commission instead of utilizing the process laid out by the constitution of the state.

In Michigan v. Environmental Protection Agency, the Court found 5-4 that the EPA could not exceed its regulatory authority by targeting certain emissions from coal plants. Justice Scalia, in his opinion, states that the authorization statute for the EPA in this case, the Clean Air Act, states that the EPA must consider whether regulation is “appropriate and necessary” – and that the language of the provision requires that the EPA consider cost when determining “appropriate and necessary.” The Agency, writes Scalia, did an analysis finding that power plants would have to absorb costs of $9.6 billion per year, and would generate benefits worth $4 to $6 million per year. Scalia concludes:

One would not say that it is even rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits…EPA’s interpretation precludes the Agency from considering any type of cost – including, for instance, harms that regulation might do to human health or the environment.

Justice Thomas’ concurrence goes further: he suggests that the courts should not defer to executive agencies in terms of interpretation at all. Agencies, Thomas says, “are engaged in the ‘formulation of policy.’ Statutory ambiguity thus becomes an implicit delegation of rule-making authority, and that authority is used not to find the best meaning of the text, but to formulate legally binding rules to fill in gaps based on policy judgment made by the agency rather than Congress.” Justice Kagan, joining her leftist colleagues, wrote that the EPA had taken into account cost.

Meanwhile, the leftists on the Court tried to play for bigger stakes in Glossip v. Gross, in which the Court ruled 5-4 that the use of midazolam in administering the death penalty did not violate the “cruel and unusual punishment” clause of the Constitution. The majority’s opinion, written by Justice Alito, was straightforward:

[T]he prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain…the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.

Two of the justices, however, Breyer and Ginsburg, decided to use the case as an opportunity to vent their spleen regarding the death penalty itself. Breyer wrote for the intellectually and morally impoverished pair, stating that the Constitution bars “cruel and unusual punishments,” which he says means the death penalty itself, despite multiple instances in which the Constitution explicitly speaks of the death penalty. Breyer says none of that means anything, of course – the Constitution means nothing, as we’ve learned repeatedly in the last week. He says that the death penalty ought to be barred because studies, and because of his “own 20 years of experience on this Court.” To which the Constitution-minded on the Court responded: whoop-de-freaking-do.

Justice Scalia fired back:

Justice Breyer’s rewriting of the Eight Amendment, his argument is full of internal contradictions and (it must be said) gobbled-gook….We federal judges live in a world apart from the vast majority of Americans. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door. We are not confronted with the threat of violence that is ever present in many Americans’ everyday lives….The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.

Justice Thomas was similarly horrified by the Breyer dissent: “We owe victims more than this sort of pseudoscientific assessment of their lives.”

Ouch. But the truth is this: leftists on the Court may as well go for broke. Why not? They just abolished traditional marriage. Since we’re knocking down fundamental pillars of civilization like some sort of Obama-high blind Samson, why not go for the death penalty, too? One vote more, and this sort of nonsense will be happening on a regular basis. Hell, it already is when Justice Kennedy forgets to take his pills.

Which, apparently, Justice Kennedy forgot to do in the third case of the day, Arizona State Legislature v. Arizona Independent Redistricting Commission. In that case, a 5-4 majority decided that the state constitution of Arizona could be rewritten in order to greenlight a redistricting scheme the left wing of the Court likes better than the state constitutional version. In Arizona, the state constitution mandates that “The Times, Place and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Nonetheless, the courts allowed a referendum on the ballot to create the Arizona Independent Redistricting Commission to redraw the lines. The legislature sued.

Justice Ginsburg found that “the Legislature thereof” also means referenda. Why? Because it just does. Come on, haven’t we learned anything about legal reinterpretation by now?

Justice Roberts, ironically, wrote in favor of interpreting words as if they have meaning:

Just over a century ago, Arizona became the second State in the Union to ratify the Seventeenth Amendment. That Amendment transferred power to choose United States Senators from “the Legislature” of each State, Art. I, §3, to “the people thereof.” The Amendment resulted from an arduous, decades-long campaign in which reformers across the country worked hard to garner approval from Congress and three-quarters of the States. What chumps! Didn’t they realize that all they had to do was interpret the constitutional term “the Legislature” to mean “the people”? The Court today performs just such a magic trick with the Elections Clause… The Court’s position has no basis in the text, structure, or history of the Constitution, and it contradicts precedents from both Congress and this Court.

This from the guy who interpreted a fine as a tax, and then stated that “State” exchanges included those created by the federal government. Odd.

This has been a disastrous term for the United States, and for the Court. The Court doesn’t see it yet – they’ve been expanding their own power willy-nilly, understanding, as the executive branch does, that no one in the legislature or on the state level will stop them. But there will be blowback. And the harder the Court pushes, the harsher that blowback will be.

Ben Shapiro is Senior Editor-At-Large of Breitbart News and author of the book, The People vs. Barack Obama: The Criminal Case Against The Obama Administration (Threshold Editions, June 10, 2014). Follow Ben Shapiro on Twitter @benshapiro.


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