Stop the Tyrants Part II

Integrity Down the Drain

§B   Abusing the Rule of Lenity

The majority deliberately abuses the rule of lenity. The rule of lenity informs judges that when they read a criminal statute, a law that defines a criminal offense, they should consider the defined crime to include the smallest set of circumstances possible under the law, and not the largest possible set of circumstances. This important judicial principle states that courts should interpret criminal statutes to forbid the least that the text of the law allows, rather than the most the text might possible allow.

When the majority set about to include the death-by-dismemberment abortion procedure, the Dilation and Evacuation (D&E;), they deliberately violated the rule of lenity. That, of course, is willful misconduct; and therefore grounds for impeachment and removal from office.

Normally when reviewing a state statute, the Supreme Court considers the interpretation that the state's attorney general gives to that statute. The Nebraska Attorney General, Don Stenberg, told the Court he considered his State's ban to include only the partial-birth abortion method, the Dilation and Extraction (D&X;). But the Stenberg majority refused to give any weight to Mr. Stenberg's reading of the law. Their refusal to do so was simply a gift to Dr. Carhart. Once again, let me quote Justice Thomas:

The fact that the Court declines to defer to the interpretation of the Attorney General, is not... a reason to give the statute a contrary representation. Even without according the Attorney General's view any particular respect, we should agree with his interpretation because it is undoubtedly the correct one. [Thomas dissent: Page 27]

To justify their unusual attitude toward the Nebraska Attorney General's reading of his own State's law, the Stenberg majority deliberately misapplied an opinion written by Justice Scalia. This is just one more lie:

The majority relies on Justice Scalia's observation in Crandon v. United States, 494 U.S. 152 (1990) that "we have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference." But Justice Scalia was commenting on the United States Attorney General's overly broad interpretation of a federal statute, deference to which, as he said, would "turn the normal construction of criminal statutes upside-down, replacing the doctrine of lenity with a doctrine of severity." Here the Nebraska Attorney General has adopted a narrow view of a criminal statute, one that comports with the rule of lenity (not to mention the statute's plain meaning). [Thomas dissent: Footnote 17 on Pages 27 - 28]

§C   Deciding an Unnecessary Question

By dragging the D&E; late abortion method into the case, the majority deliberately ignored one of the most important of all judicial doctrines: Courts should not address legal questions that do not need to be settled in the current case. Justice Kennedy candidly pointed this out: "The majority and, even more so, the concurring opinion of Justice O'Connor, ignore the settled rule against deciding unnecessary constitutional questions. [Kennedy dissent: Page 23]"

The rule that courts shall not address constitutional questions unless absolutely necessary is one of the most important principles of judicial review. In his opinion in Zobrest v. Catalina Foothills School District (decided in June 1993), Justice Blackmun said so:

If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not pass on questions of constitutionality... unless such adjudication is unavoidable.

The three members of the Stenberg majority who were on the Court at the time of Zobrest, Justices Stevens, O'Connor, and Souter, all joined with Mr. Blackmun in this part of his opinion.

Once again, we have judges changing the normal rules of jurisprudence in order to get a preferred outcome in a case. (And -- as will become clear in the next chapter -- a most cruel outcome, at that!)

See the Chapter 3 Table of Contents.

The Stop the Tyrants Project [page 14]: Chapter 3 (Sections B-C)
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