New Supreme Court Outrage

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In a pair of decisions this week, the Supreme Court undertook a breathtaking invasion of Congress’s legislative authority. Despite Congress’s stated intention, federal courts will henceforth assume far greater discretion to sentence convicted criminals to whatever prison terms they like, regardless of Congress’s legislation.

Congress in 1984 adopted legislation pointing toward the establishment of federal criminal-sentencing guidelines. Those guidelines finally appeared in 1987. Their function was to ensure that people convicted of similar crimes received similar sentences, regardless of the part of the country in which they lived and the judge before whom they happened to have been convicted.

The sentencing guidelines now will be considered by federal judges as "advisory," not "mandatory," even though Congress clearly indicated that they should be mandatory. In its decision in the joined cases of Kimbrough v. U.S. and Gall v. U.S, the Court clearly thwarted the intention of Congress.

This pair of decisions reflects a long-standing campaign by federal courts, and courts (meaning judges) generally, to grab authority from voters, legislatures, and juries — in other words, the people — and exercise it themselves. The first battle in this campaign came in the early nineteenth century, when courts seized juries’ traditional power to decide matters of law. From that point, the formal system in the United States distinguished between fact finders (usually meaning juries) and finders of law (judges).

Judges’ campaign to grab power from the people has long manifested itself in what is now the tradition of using specious arguments about the meaning of the federal constitution in justification of decisions invalidating statutes and state constitutional provisions distasteful to the judges. Finally, the Supreme Court in 2000 used its power to short-circuit the constitutional process for selecting Florida’s presidential electors, when it in Bush v. Gore seized that power (lodged by the Constitution in the Florida legislature) for itself.

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In Kimbrough and Gall, the Supreme Court has announced essentially that it intends to disregard Congress’s policy concerning sentencing of people convicted of federal crimes. Even though most federal criminal statutes are themselves unconstitutional (a fact about which the Court has shown no inclination to take action), one cannot help but lament that in enforcing them, federal judges have in a new way arbitrarily limited Congress’s power to devise appropriate penalties.

The only solution to the Supreme Court’s lawlessness is a campaign of amendments and impeachments. Justices who participate in such decisions deserve to be tossed from office, immediately, for the high misdemeanor of violating their oath to uphold the Constitution. If — when — Congress does nothing in response to Kimbrough and Gall, it will have given the justices yet another indication that they are free to legislate as they will.

Kevin R. C. Gutzman, J.D., Ph.D. [send him mail], Associate Professor of History at Western Connecticut State University, is the author of The Politically Incorrect Guide to the Constitution.

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