Bench Memos

Law & the Courts

‘Brooks Borks Cruz’

That, alas, is the fitting title of James Taranto’s exposition of New York Times columnist David Brooks’s gross misuse of a Supreme Court case that Ted Cruz, as solicitor general of Texas, argued in 2004.

According to Brooks, Cruz’s position that an offender was not entitled to have his prison sentence overturned is compelling evidence of what Brooks claims to be Cruz’s “brutalism.” But as Taranto points out, Cruz won the case by a 6-3 vote, with Justice O’Connor authoring the majority opinion and Justices Ginsburg and Breyer among those joining it. Thus:

If arguing against Haley’s legal position “reveals something interesting about Cruz’s character,” what does deciding against it reveal about the character of O’Connor, Ginsburg, Breyer and the others in the majority? Don’t worry, there won’t be a test. The answer is nada; the question is rhetorical and demonstrates the falsity of Brooks’s premise….

Cruz’s successful appeal in Haley tells us nothing about him except that he was a competent solicitor general. His job was to make legal arguments, not moral judgments about crime and punishment or personal ones about particular criminal defendants. If Brooks thinks Haley’s punishment was unjust—and there is nothing to suggest he has an informed view of the matter at all—he can fault the legislators who passed the three-strikes law, the prosecutors who applied (and misapplied) it, and the trial judge who imposed the sentence.

Kent Scheidegger shows in further legal detail in his own dismantling of Brooks’s “hatchet job” that Cruz clearly “took the case to the Supreme Court … to resolve an important question of [habeas] law and not to get” (i.e., not to stick it to) the offender.

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