Supreme Activists Toss Rape, Gun, Campaign Laws: Ann Woolner

Commentary by Ann Woolner

June 27 (Bloomberg) -- U.S. Supreme Court watchers of the conservative persuasion complained this week that the justices dared strike down a Louisiana law allowing executions for child rapists.

I don't hear them squawking when the court, also this week, concocted a formula and used it to take away all but a pittance of a punitive award to long-suffering Exxon Valdez victims.

Nor are the judicial activism complainers troubled that on the last day of the high court's term, the unelected justices threw into the trash bin two statutes enacted by duly elected representatives of the people.

With swing voter Anthony Kennedy on its side, the court's conservative quartet tossed out the District of Columbia's gun ban and a federal campaign finance law.

Oddly, these decisions seem to be hailed by the very same people who complain when the liberal wing of the court coaxes Kennedy to join them in striking down some other law.

``This gun decision is a rare breath of fresh air from the U.S. Supreme Court, whose judicial activism has been on high- profile display over the past few weeks,'' Jessica Echard, who runs the conservative Eagle Forum, said in a press statement yesterday.

So much for the will of the people of the District of Columbia, who want to curtail gun violence and whose city council members acted on their behalf.

And what about those Americans perfectly happy with the campaign finance law the court struck down on the same day?

No Meaning

Can we please just admit that the term judicial activism has no meaning, other than to slam opinions with which one doesn't agree?

Both wings of the court strike down or uphold laws on constitutional grounds. That is the justices' job.

The liberals did it this week when they (along with Kennedy) struck down a Louisiana law allowing the death penalty for those who rape children.

The troubling part is that frequent 5-4 rulings usually divide the court by predictable, ideological groupings, with Kennedy deciding the outcome.

Not only does this make Kennedy a one-man court on hot- button items, it also leads to the conclusion that the justices are results-driven, not law-driven.

President George W. Bush has been going around complaining about a 5-4 vote earlier this month. In that one, the court said he and Congress had violated a bedrock principle of the Constitution by holding suspected enemy combatants indefinitely at Guantanamo Bay with no way to challenge their imprisonment.

Presidential Powers

The court was right. But Bush, ever eager to extend presidential powers beyond constitutional limits, says otherwise to rally the party.

``This is precisely the kind of judicial activism that frustrates the American people,'' Bush told crowds at Republican functions last week in Washington and this week in Detroit.

I'm waiting to hear him share the frustration of Alaskans who have been trying to collect on a perfectly good verdict rendered for a disaster occurring 19 years ago.

As an example of judicial activism, the Valdez decision is not quite on par with the others this week. It was based on maritime law, which is mostly judge-made, anyway.

Still, it takes considerable chutzpah to ignore a jury award of $5 billion, which already had been reduced to $2.5 billion by a federal appeals court before the Supreme Court slashed it to $507 million this week. The trial judge said the evidence at a months-long trial fully supported the $5 billion award, not to mention the halved one.

Exxon Stock Owner

Alito sat that one out, apparently because he owned Exxon stock. The other three conservatives were joined by Kennedy and David Souter, who wrote for the 5-3 majority.

He conceded that he could find no general problem with runaway verdicts, look though he did.

The problem, said Souter, was in the ``outlier'' cases, the unusual ones that throw off the curve and which make litigation unpredictable.

His ruling ignores the fact that the Exxon Valdez verdict grew out of an outlier catastrophe, completely preventable but for the recklessness of a company that knowingly put a relapsed alcoholic in charge of guiding a supertanker through the ice- clogged straits of formerly pristine Prince William Sound.

Even putting that one aside, the justices had a pretty active week what with the constitutional rulings that struck down the D.C. gun ban, Louisiana's death penalty for child rapists and the campaign finance law.

The Activist Wing

Of those three, liberals (with Kennedy) struck down one. Conservatives (with Kennedy), killed two. So, which wing is the activist wing?

And how is it that the most moderate member of the court, Kennedy, voted to strike down all three?

A simple count doesn't shed light on whether the rulings are correct. For that, you must look beyond the result and wade through the hundreds of pages of conflicting opinions.

The Louisiana law on child rape was a terrible law from a policy standpoint, as it had the effect of encouraging the rapist to kill his young victim, and required the youngster to endure years of hearings, often against a family member whose life was at stake.

But is it unconstitutionally disproportionate to forbid capital punishment for all child rapists, no matter how many children he had raped, how much torture he inflicted, how young his victims? I frankly find Alito's dissent endorsing the law persuasive.

As for campaign finance, the conservatives may have persuaded Kennedy. But they haven't convinced me that it violates free speech to lift the limit on how much contributors can give to those who oppose a congressional candidate tapping some bottomless stash of personal wealth.

Surely that encourages speech, not squelches it, as the dissenters point out.

As for the gun ban, the hottest issue of all, each side read the Constitution's Second Amendment differently. But all on the court agree localities can impose certain restrictions on guns.

So, what is the big deal? After all, it's the result that really counts.

(Ann Woolner is a Bloomberg news columnist. The opinions expressed are her own.)

To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net .

Last Updated: June 27, 2008 00:00 EDT

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