January 7, 2019

OUR TWO REPUBLICAN PARTIES:

Sotomayor and Gorsuch Resume Their Fight for the Future of the Sixth Amendment (MARK JOSEPH STERN, JAN 07, 2019, Slate)

Justices Sonia Sotomayor and Neil Gorsuch are on a mission to restore criminal defendants' constitutional rights. In November, the two justices teamed up to champion Sixth Amendment safeguards against notoriously flawed forensic analysis. Weeks later, they came together to attack policing for profit, endorsing Eighth Amendment protections against civil forfeiture. And on Monday, the two joined forces once again to stick up for the right to a trial by jury when the government seeks to impose crippling fines in the form of criminal restitution.

It's no surprise that Sotomayor and Gorsuch are emerging as the court's staunchest defenders of the Sixth Amendment. Sotomayor is a crusader for the rights of the accused and views government overreach through the lens of social justice. Gorsuch is a libertarian skeptic of state power who sees juries as a bulwark against tyranny. (For what it's worth, so did John Adams, who called representative government and trial by jury "the heart and lungs of liberty.") The two justices may disagree on much. But it's perfectly logical that they'd unite to stick up for defendants who demand that a jury--not a judge--decide the facts that justify criminal penalties.

The case in question, Hester v. United States, should be an easy one. In 2000's Apprendi v. New Jersey, the Supreme Court held that prosecutors must prove any fact that increases the maximum sentence for a crime to a jury beyond a reasonable doubt. This rule is quite sensible and tracks the Framers' understanding of the Sixth Amendment. After all, if a judge can unilaterally increase a sentence by finding facts not proved to the jury, then the Constitution's guarantee of a trial by jury is rendered meaningless. In 2012's Southern Union Company v. United States, the court extended Apprendi to criminal fines, holding that any fact that increases a maximum fine must be proved to a jury beyond a reasonable doubt.

Posted by at January 7, 2019 5:48 PM

  

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