In 1892, a seemingly innocuous case was decided unanimously by the Supreme Court - Rector of the Holy Trinity Church v. United States. Congress had passed ”An act to prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States, its territories, and the District of Columbia.”
Its decision stated that “the circuit court did err when it held that the contract hiring an English rector was within the prohibition of the statute, which disallowed a “…person, company, partnership, or corporation, in any manner whatsoever to prepay the transportation, or in any way assist or encourage the importation or migration, of any alien or aliens, any foreigner or foreigners, into the United States … under contract or agreement … to perform labor or service of any kind in the United States…”
What sets the stage for future activism is the very last sentence. Justice David Josiah Brewer, writing for the majority, says “ It is the duty of the courts under those circumstances to say that, however broad the language of the statute may be, the act, although within the letter, is not within the intention of the legislature, and therefore cannot be within the statute.”
This divination of intent has been replicated many times over, especially by the most overturned court in the United States – the Ninth Circuit. Harvard Law Review in November of 2004 noted “What has not changed is the Ninth Circuit’s status as the tribunal most frequently reversed by the Supreme Court — a trend noted by legislators and jurists alike.”
“Table VI(D) reveals that the Ninth Circuit accounts for over thirty percent of the cases in which the Supreme Court reversed a federal court of appeals decision. Although the Ninth Circuit’s docket size no doubt offers a partial explanation, this side-by-side comparison is nonetheless striking.”
Currently there are 27 active justices in the Ninth Circuit, with 5 vacancies and only 2 nominations, which are stalled. The next President will nominate at least five justices, with the potential of another five to seven based on retirements or elevation to Senior status. Here’s the breakdown by President:
Jimmy Carter – 2
Ronald Reagan – 3
George H.W. Bush – 2
Bill Clinton – 13
George W. Bush – 7
Why is this important to law enforcement? Because of judges like Rosemary Barkett, Eleventh Circuit Court of Appeals. Her activism was clearly noted in a capital murder case on appeal - Richard Henyard. What did Henyard do? Here’s the excerpt from the actual court file:
“In June 1994, a jury in the Circuit Court of Lake County, Florida, convicted Henyard of multiple crimes, including the carjacking of Dorothy Lewis and her two children, Jasmine, age 3, and Jamilya, age 7; the first degree murder of Jasmine and Jamilya Lewis; and the rape and attempted murder of Dorothy Lewis. The jury unanimously recommended, and the trial court imposed, a sentence of death.”
Henyard appealed the district court’s decision to deny him a writ of habeas corpus based on three points of appeal: “(1) whether the state trial court’s denial of petitioner’s motion to suppress certain statements violated his right against self-incrimination; (2) whether the trial court’s denial of petitioner’s request for a change of venue denied him a fair trial by an impartial jury; and (3) whether trial counsel’s failure to present certain mitigating evidence during the penalty phase constituted ineffective assistance of counsel.”
The court heard oral arguments, reviewed the transcripts, and affirmed the decision of the lower court. Over, right? Not so. Judge Barkett had to attempt divination of the 8th Amendment “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
At section 208 of the ruling, Judge Barkett agrees with the finding in Section 209 – “I agree that the district court’s denial of Henyard’s petition for habeas corpus must be affirmed because Henyard has not established that the state courts’ rejection of the claims he makes here was contrary to, or an unreasonable application of, clearly established federal law pursuant to the requirements of AEDPA.” Now here’s the ‘but’…
At Section 210, Judge Barkett opines “I write to address the separate and troubling issue of Henyard’s mental age.” Here is where the Constitution gets imperiled. She attempts to create new constitutional law where it did not exist before. She opines that the 8th Amendment should be construed to bar the death penalty for convicted murderers with a “mental” age of less than 18.
“The characteristics identified by the Court as those which diminish culpability and thus militate against the imposition of the death penalty for children under the chronological age of 18 as well as the mentally retarded appear equally present in those with a mental age of less than eighteen years.”
This is neither based on case law or precedent. She is unable to cite any medical or legal findings to support her supposition, which is clearly indicated by the last line in her writings, Section 216 – “Although it may not be directly before us, at some juncture this issue must be addressed.” This is what makes judicial activism so troubling for law enforcement. The ability for a judge, who is appointed for life, to legislate from the bench based on a whim, as opposed to those who have strict rules and laws to follow.
It’s like whiffle ball…the rules can change with seemingly ease with no accountability for actions. This is what is at stake for law enforcement with unchecked judicial activism.
No related posts.
You must log in to post a comment.