Justice Sotomayor and Murderer Advocacy

I have a critique of Justice Sotomayor’s media-ignored but highly revealing Dec. 3 dissent seeking mercy for twice-convicted triple-murderer Benny Lee Hodge. The dissent deserves attention for what it says, what it implies and what it disregards. It is a graphic illustration of the grave danger of confirming justices whose values are contrary to those of a vast majority of the public – and have no scruples about rewriting the Constitution to contain commands nowhere within the actual written document.
 
Sotomayor’s dissent is a call for a highly organized campaign to inform the public about how justices have abused what Justice White famously termed their “raw judicial power” and to vigorously oppose placing more justices such as Sotomayor on the Supreme Court (and lower courts).
 
Essentially, Sotomayor takes the position that "especially heinous" murders cannot and need not be "explained" but can and should be "mitigated," in a quest to find “at least one juror” who can be persuaded to show “respect” and “mercy” for a brutal killer who celebrated slaughtering his victims without mercy. In lecturing the Kentucky Supreme Court that this has been “clear” for 30 years, Sotomayor implicitly admits that it had never been “clear” before that – for the very good reason that such judicial concoctions never before existed because they were and are not in the Constitution.
 
In arguing for “mitigation” and “mercy,” Sotomayor is less than forthright. She complains of "deficient" attention to Hodge's abused childhood by his lawyer in the appealed death sentence for a single murder before the court. However, she omits that Hodge is actually facing two death sentences from two trials, for three premeditated murders and one attempted murder on two separate occasions 27 years ago, not one death sentence for one murder. And she omits that in the trial resulting in the other death sentence, Hodge’s lawyers presented “substantial” so-called mitigation evidence, including referring to his abused childhood.

Amending the Constitution with 5 Votes

A New York Times article scorning the Constitution as unworthy of emulation approvingly quotes Prof. Levinson’s view that it is extremely difficult to amend. This is true of resort to Article V. However, unnoticed by the public and most pundits, activist interpretation abuse has effectively neutered Article V, amending the amendment process itself by transferring the amending power to the Supreme Court.

In practice, the justices have "interpreted" the very word "interpret" to be a license for them not only "to say what the law is," but to say it isn't what it is, and is what it isn't. Turning interpretation into a scam, they repeatedly have authorized what is constitutionally prohibited and prohibited what is authorized or required.  

In reality, myriad de facto constitutional amendments have been very easily adopted, often by as few as five justices. This has caused Supreme Court nominations to become proxy fights to determine what amendments are going to be imposed (and statutes rewritten). 

Given the number of Supreme Court appointments likely to be made between 2013 and 2017, the next election will be critical for the future of the Constitution and the country. It will determine whether there will be unlimited government power over the minutest details of the lives of the American people, limited only by newly invented "rights" never imagined by the framers.  

For more on this subject, see my article originally appearing here and slightly revised here.