June at One First Street Northeast

June is always an exciting time at 1 First Street NE. The Justices always like to take their time on very important cases, which means they often get announced at the very end of the term. This week is the last week before the Justices leave for their three-month summer vacation, so it is time to announce all the big decisions that are still pending.

One of the cases announced today, Kennedy v. Louisiana, asked the court whether it was constitutional, under the 8th Amendment, to put a man to death for raping a young child. Louisiana had a statute that provided for death as a penalty for raping a child under the age of 12. Mr. Kennedy did so, and was sentenced to die. In Coker v. Georgia, 433 U.S. 584 (1977), the Court held that capital punishment was disproportionate to the crime of rape of an adult woman. In the opinion in Kennedy, (written, incidentally, by Justice Kennedy) the Court categorically rules the death penalty disproportionate to any crime other than an crime against a person which was intended to cause, and did in fact cause, that person's death. The Court found that Mr. Kennedy had not been found to have intended to kill his victim, and that the victim had not died, and that therefore application of the death penalty in Mr. Kennedy's case was disproportionate to his crimes and barred by the 8th Amendment.

In another of the cases announced today, Exxon v. Baker, the Court was asked to review the proportionality of punitive damages awarded against Exxon in the aftermath of the Exxon-Valdez oil tanker accident. A jury had initially awarded nearly $5B (yes, that's a 'B' for billion) punitive damages verdict. That amount was cut in half by the 9th Circuit Court of Appeals. The Supreme Court overturned the punitive damages award altogether and remanded the case to the District Court with instructions that Federal Maritime Common Law (one of the very few areas where Federal Common Law still exists after Erie) prohibits the imposition of punitive damages in excess of the amount of compensatory damages awarded, meaning that the trial court could only impose punitive damages up to approximately $500M.

Probably the most widely anticipated decision of the term, District of Columbia v. Heller, was not announced today. But C.J. Roberts did announce that all remaining cases would be announced tomorrow at 10:00am. Heller is the 2nd Amendment challenge to the District's handgun ban, where the Court is expected to expressly state whether the 2nd Amendment protects an individual right or a collective right.

I think anyone who reads my blog knows my stand on all three of these issues. But for the record: rape is a heinous offense for which death is warranted, but only under an objective statute defining the crime of rape in objective terms, which we do not have; I disapprove of civil punitive damages generally, on the grounds that punishment is the province of the criminal statutes, not of civil suits; and there is no such thing as a "collective right" for the 2nd Amendment to protect, there are only individual rights, and a statute that forbids the mere possession of a handgun violates them.

So, more tomorrow, after the last few decisions are announced.

Tom G Varik