This month at the Court

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I like law. I don't know why. I don't think I'd ever want to put in the time to study the law, practice it, and climb the ladder necessary to be a judge... and I started too late to be on the Supreme Court, but I do like reading about the cases that the Supreme Court rules on, and then sounding off.

As we approach the end of another term, I wanted to comment on two cases, and I suppose my evolving understanding of the law, and the courts' role in it.

Up first, we have an 8-0 finding in Ashcroft v. Al-Kidd where the Court held that former Attorney General John Ashcroft's actions in arresting a "material witness" and holding him for 16 days while never calling him to trial were not clearly illegal at the time. I suppose the Court correctly interpreted the law as I'm not going to pit my Law & Order J.D. (A J.D. awarded to oneself after watching greater than 90% of the Law & Order episodes and being well versed in "television law.") against the Supremes... but four of the justices wrote, what I suppose are concurring opinions, differing in points from the Majority opinion.

The question being settled wasn't whether Ashcroft's actions were unconstitutional, but whether they were clearly so at the time, to the point that Ashcroft should be liable. (There is generally some immunity from these types of suits granted to government employees.)

Regardless, I identify with Justices Kennedy, Ginsburg, Sotomayor, and Breyer when they express a little discomfort at the way a US Citizen was treated. Imagine for a moment, some DA decides that you're a "material witness" in a case, throws together some affidavit and gets a judge to sign a material witness warrant. Suddenly, you're thrown in the slammer without the normal legal checks (like needing to be charged with a crime)... and you're being held at the mercy of some DA... who doesn't ever need you for a material witness. How long have we held Sheik Mohammed since we captured him? Imagine if you were a material witness in that case. You could be looking at eight plus years of lockup waiting for the government to get around to "needing" your witness - and then when the government doesn't call you, you have no legal recourse against the government.

Scary! I like the limits that make the government charge you with a crime before/within 24 hours of detaining you... and then giving you the right to a speedy trial.

In a similar vein, we also saw the Court rule that California's overcrowded prison system constituted cruel and unusual punishment. A lower court had ruled on the case and determined that 137.5% of capacity was the upper limit for overcrowding in California's prisons, and the Supreme Court upheld the ruling.

This case is an example of both the best things about our judicial system and the worst. 137.5%? How does a court come up with that number. My guess is that the lower court has some great reasons why 137.5% is the right number and not 110% or 140%, or even 200%, but is that really the role of the judiciary to determine this? (No.)

That said, the role of the legislature isn't to make more actions illegal than funding for the prison space needed to enforce those laws. The legislature was derelict in their duty in how they formed the laws and funded the penal system. This is exactly the type of check and balance that the court should be providing... and although almost all the newspaper articles were headlined like this WSJ article ("Top Court Sets Stage for Felons to go Free"), the headlines should have read: "Courts impose balance on legislators, tell them to do their jobs and spend the money to properly imprison felons." After all, the new law for California isn't that the state needs to release 33,630 inmates, it's that California needs to build prison space suitable to hold 73% of the inmates it plans to incarcerate. (73% is the inverse of 137.5%).

OK, enough about the court. I should also note some exciting things from this month:


Congratulations to Wyatt and Ngoshali! They got engaged this month. Wedding date TBD.