Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—September 2

2003—In Summerlin v. Stewart, the Ninth Circuit addresses whether the Supreme Court’s decision in Ring v. Arizona, which held that aggravating factors under Arizona’s death-penalty law need to be proved to a jury rather than to a judge, applies retroactively to cases already final on direct review. The limited en banc panel of eleven judges (a creature unique to the Ninth Circuit), consisting in this case of ten Carter/Clinton appointees and one Reagan appointee, divides 8 to 3 in favor of a ruling that Ring applies retroactively. In her dissent, Judge Rawlinson observes that the majority “wanders afield”—and contradicts a very recent Supreme Court precedent as well as rulings from other circuits—in holding that Ring announced a substantive rule. She also disputes the majority’s alternative holding that Ring announced a watershed rule of criminal procedure.

On review, the Supreme Court (in Schriro v. Summerlin) will reverse the Ninth Circuit in June 2004. Not a single justice will express agreement with the Ninth Circuit’s holding that Ring announced a substantive rule, and Justice Scalia’s opinion will take four brief paragraphs to dispense with the “remarkable” analysis that covered 20 pages of the Ninth Circuit’s ruling. By a vote of 5 to 4, the Court will rule that Ring did not announce a watershed rule of criminal procedure.

2008—Federal district judge Beverly B. Martin rules that the federal statutory minimum sentence of 30 years for the crime of crossing a state line with intent to engage in a sexual act with a person under 12 years of age violated Kelly Brenton Farley’s Eighth Amendment right against cruel and unusual punishments “under the specific facts of his case.” (Emphasis in original.)

In June 2010, a unanimous Eleventh Circuit panel, after presenting the “specific facts” of Farley’s case in excruciating detail, will reverse Martin’s ruling. The panel explains that the Supreme Court’s 1992 ruling in Harmelin v. Michigan, which rejected an Eighth Amendment challenge to a mandatory life sentence of life imprisonment for the crime of possessing 672 grams of cocaine, forecloses Martin’s conclusion.

But in the meantime President Obama will appoint Martin to a seat on the Eleventh Circuit.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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