(June 23) In a case involving criminal sentencing, the Supreme Court proved again on Friday that the media narrative of a bench polluted by partisan agendas is blatantly untrue. Alas, while the ideological hodge-podge court applied the right principle in the case, it reached the wrong result.

First, let’s dispense with the ignorant leftist narrative. It posits that the court is a partisan or ideological battleground where the six Republican-appointed justices impose extremist conservative decisions on the country over the objections of Democrat-appointed Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson. Or, that five conservatives do so, while Chief Justice John Roberts plays umpire by occasionally siding with the liberals but usually joining the conservatives, albeit on narrower grounds.

Nonsense. Of 47 cases decided this term so far, only five have produced dissents by, and only by, the three Democratic appointees. Not a single one so far has produced a 5-4 split, with only Roberts leaving the Republican reservation. Conservative Justices Clarence Thomas and Neil Gorsuch both have been on the “losing” side more often than any of the three Democrats. In sum, there is no partisan or ideological agenda.

By the liberal media narrative, the criminal sentencing case, Erlinger v. United States, looks like one of the most likely to create a 6-3 conservative-liberal split. The narrative holds that the conservatives are determined to crack down on crime, even at the expense of the constitutional assurances of fair procedures that liberal justices uphold. The conservatives are portrayed as ruthless, while the liberals are credited with protecting “the little guy” from rogue police and prosecutors.

Erlinger is just the latest case showing that, even on defendants’ rights cases, the narrative is bunk. The majority opinion, essentially in favor of the defendant, was written by Gorsuch, joined by Thomas, Roberts, conservative Amy Coney Barrett, and liberals Kagan and Sotomayor. The three dissenters were Republican appointees Brett Kavanaugh and Samuel Alito and reputationally hard-liberal Jackson. Yes, Jackson would have allowed an enhanced sentence to stand, while Thomas and Gorsuch would at least temporarily void it.

Hmmm… Maybe, just maybe, the justices are actually doing their best to apply laws to disputed circumstances rather than just engaging in ideological cage matches.

In this case, the court’s majority decided that the Constitution’s various guarantees of trial by jury require that juries, not judges, are required to determine any “fact” relevant to criminal sentencing. Here, lower courts had made the defendant subject to a significantly longer sentence because he was a multiple-time violent offender. His appeal argued that no jury had newly ascertained that three of his prior offenses had been “committed on occasions different from one another,” which is what is required for the enhanced sentence to kick in. Instead, a judge, looking at the record, determined that the offenses had occurred on different occasions.

Here’s where the court majority needlessly complicated a straightforward issue…. [The full column is at this link.]


Tags: , , , ,