I have always found that mercy bears richer fruits than strict justice.
- Abraham Lincoln
In urging voters to ratify the Constitution in its form delineating three distinct branches of government, Alexander Hamilton noted that of the three, the Judiciary would be in the least position to infringe upon political rights. The Executive, he argued, had control of the armed forces; the Legislature commanded the power of the purse and thus the courts were a mere safe haven for judgment alone. All these years later we look to the courts to protect individual liberties - as the Framers intended - but also fear the influence of the courts over political rights and expectations.
In a recent Ninth Circuit case, the majority opinion sought to champion individual rights - avoid a miscarriage of justice - by resurrecting a claim denied to the petitioner by the district court. Essentially, the court requested briefing on a matter not raised and, based on that information, decided to allow a claim to go forward in the most sympathetic of cases: a man served 19 years in prison for a crime he did not commit based upon tactics and procedures of the Los Angeles police. Among other things, the claim in question dealt with a false confession coerced from a 19 year old boy in the harshest of conditions and the most ruthless manner of psychological torment. If the claim were not available, the petitioner would lose all at stake under his §1983 claim. All people who breathe air, save those in the opposing party, would want this man to succeed.
Undoubtedly, then, the court was correct in raising the issue sua sponte, asking the parties to brief the matter and remanding to the lower court to consider the claim. Not so said the dissenting opinion in a powerful, logical and reasoned opposition tugging at all the right heartstrings for judicial restraint and strict construction. The dissent raises the argument that Art. III courts decide cases in controversy on issues raised and do not have the leeway to make their own argument just because it is the right thing to do. The dissent is specific and articulate and wrong.
The Constitution does not say that judges have no authority to protect an individual from losing a valid claim simply because it was poorly crafted. It says, "[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made..." U.S. Const. Art. III sec. 2. Judicial power is just that - the ability to admit human error but not let that be the sole reason to deprive a worthy claim. The question in the Ninth Circuit case was whether the court could, on its own, ask the parties to brief and then rule upon an issue not originally claimed. This is not only permissible but has been affirmed by the Supreme Court in opposition to a defendant's rights. Certainly if the Constitution permits an appellate court to rule on a timeliness issue not raised which would obliterate a valid claim, it allows advancement of an issue not raised in order to avoid a miscarriage of justice.
Contrast this very thoughtful Ninth Circuit opinion with another federal court ruling on matters not squarely raised. In Scott v. Sandford, the Supreme Court not only denigrated states rights (the state being Illinois) to confer citizenship but also invalidated the Missouri Compromise. The issue of state sovereignty was not squarely before the Court, and the Missouri Compromise clearly wasn't since it has been effectively repealed by the Kansas-Nebraska Act two years earlier. That sua sponte decision, it is fair to say, was error.
As a tiny bit of background, the Missouri Compromise sought to maintain a balance of power between states which had outlawed slavery and those which permitted slavery. Maine would be admitted as a free state and Missouri would be admitted as a slave state with prohibitions on slavery in the northern reaches of the Louisiana Purchase. That got thrown into the trash barrel as territories were settled for statehood; emigrants from both free and slave states moved into areas which would apply for statehood. The Kansas-Nebraska Act allowed these territories, although in the "free" sections of the Louisiana Purchase territory, to decide for themselves whether they wanted to permit or prohibit slavery. What the Court ultimately ruled in Scott v. Sandford - questions never raised, never briefed, not germane and contrary to common belief at the time - was that Congress could not regulate slavery in federal territories and that no person of African descent could be a citizen of the United States or any state therein.
So, in 1856, four years before South Carolina would secede from the Union ultimately bringing Mississippi, Alabama, Florida, Louisiana, Texas, Georgia, Virginia, Arkansas, Tennessee and North Carolina along to form the Confederacy, the Supreme Court of the United States did what Hamilton said we should not fear: the Supreme Court infringed upon political rights. Where Illinois granted citizenship to Dred Scott and his family, the Court took it away. Where the legislature had been seeking to avoid fracture and war by balancing states with slavery against states without, the Court took it away. Where states sought to enfranchise all inhabitants, the Court took that away.
Hamilton's politically neutral Judiciary would infringe upon and deny rights in fewer than 70 years from that prediction. The Court would swing back, but the notion that it would not impact political rights has not borne fruit. Yet, even in the throes of a hotly contested presidential campaign, no one is talking about the Court.
The Supreme Court of the United States is now back in session with as political a docket as it has ever addressed. Voting rights, affirmative action, competence of criminal defendants, the government's authority to conduct surveillance, and possibly the question of marriage equality, are all to be decided this term. At least, that is that is on the docket - what the judges add on their own is anyone's guess.
Voting is a clearly defined right and, under the 15th Amendment and the 19th Amendment, any act by Congress designed to empower the citizenry to vote should be upheld as both Amendments include the phrase,"Congress shall have the power to enforce this article by appropriate legislation." Only restrictions on voting should be invalidated. But decisional law is split on this and the Court's rulings could impact the very core of those Amendments.
Other than voting, the questions relate more to ideals we perceive as rights: to marry, to equality in an unequal universe, to be free from being followed by our own government, to protection for the most vulnerable. These are difficult questions to resolve under a Constitution that was designed as framework to join divergent groups and then modified to prohibit the denial of equal protection of the laws. The bizarre "textualists" on the Court now threaten the vision of the Enlightened Framers who - it is very safe to say - did not intend for the document to be set in stone to terminology from the 18th Century. Even traditional "strict constructionists" agree that the "original intent" was to be flexible and adaptable without straying from its purpose to bind together the diverse.
As the Court convenes this new session, how closely will it heed the prediction of Alexander Hamilton and not be a danger to political rights? Will it seek, as the Ninth Circuit recently did, to protect the most vulnerable through its mandate to be independent in its judgment? Perhaps this Court would do well to listen to the words of one of their former colleagues, a strict constructionist of the highest order, "[n]o higher duty, or more solemn responsibility rests upon this Court than that of translating into living law and maintaining this constitutional shield...for the benefit of every human being subject to our Constitution— of whatever race, creed, or persuasion." - Hugo Black.
Protecting individual liberties, dignity and self-empowerment embodies justice; and in the end, the role of all government is justice.
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