Ruth Bader Ginsburg and what her passing means for Registered Persons

US Supreme Court Justice Ruth Bader Ginsburg passed away on September 18, 2020, and with her passing, a fierce fight over the next nomination begins. When Scalia passed away in 2016, the Republicans argued we should let the voters decide the next Supreme Court Justice with our Presidential vote, but before funeral plans for GB were even announced, Mitch McConnell has vowed to announce a replacement in record time.

Many folks within the Anti-Registry Movement lean to the right politically, but conservative justices have not been our allies. For many years, Justice Kennedy was the swing vote on an evenly divided SCOTUS, leading to many 5-4 decisions. To understand what losing a liberal justice has means for our cause, you must understand the political alignment of the justices and how that impacted many SCOTUS cases:

Kansas v Hendricks, 521 US 346 (1997): A 5-4 split, with conservative justices Thomas, Scalia, Rehnquist, and O’Connor joining Kennedy in upholding civil commitment based on a lower standard for commitment and a lower burden of proof. Justices Ginsburg joined Breyer, Stevens, and Souter in dissent.

McKune v. Lile, 536 US 24 (2002): A 5-4 split, with conservative justices Thomas, Scalia, Rehnquist, and O’Connor joining Kennedy in denying the Kansas Sexual Abuse Treatment Program violate inmates’ Fifth Amendment privilege against compelled self-incrimination. Justices Ginsburg joined Breyer, Stevens, and Souter in dissent.

Smith v Doe, 538 US 84 (2003): A 6-3 split, with conservative justices Thomas, Scalia, Rehnquist, and O’Connor joining Kennedy and liberal justice Souter in denying the Alaska sex offense registry is punitive and thus violating the ex post facto clause. Justices Ginsburg wrote the dissent, joined by Breyer and Stevens.

“What ultimately tips the balance for me is the Act’s excessiveness in relation to its nonpunitive purpose,” Ginsburg wrote in her dissent. “The Act applies to all convicted sex offenders, without regard to their future dangerousness. And the duration of the reporting requirement is keyed not to any determination of a particular offender’s risk of reoffending, but to whether the offense of conviction qualified as aggravated. The reporting requirements themselves are exorbitant: The Act requires aggravated offenders to engage in perpetual quarterly reporting, even if their personal information has not changed. And meriting heaviest weight in my judgment, the Act makes no provision whatever for the possibility of rehabilitation: Offenders cannot shorten their registration or notification period, even on the clearest demonstration of rehabilitation or conclusive proof of physical incapacitation. However plain it may be that a former sex offender currently poses no threat of recidivism, he will remain subject to long-term monitoring and inescapable humiliation.” (Citations omitted.)

Kennedy v Louisiana, 554 US 407 (2008): A 5-4 split, with liberal justices Ginsburg, Stevens, Souter, and Breyer joining Kennedy in a majority opinion declaring a person cannot be executed for a sex offense where no death was involved. Conservative justices Roberts, Alito, Scalia, and Thomas feels it is perfectly fine to execute a Registered Person if his offense did not result in death.

Packingham v North Carolina, 582 US _ (2017): While this decision was unanimous on upholding a registrant’s right to social media (8-0, as Justice Gorsuch was not a part of the vote), the conservative justices Roberts, Alito, Roberts, and Thomas wrote a concurring opinion that state states should be allowed to regulate activity on certain websites.

US v Haymond, 588 US _ (2019): In a 5-4 split that ruled 18 USC 3583(k) violates the Fifth and Sixth Amendments by imposing a mandatory minimum punishment on a criminal defendant upon a finding by a preponderance of the evidence that the defendant engaged in certain criminal conduct during supervised release, Ginsburg joined liberal justices Breyer, Kagan, and Sotomayor and conservative justice Gorsuch in the majority opinion. Conservative justices Alito, Roberts, Thomas, and Kavanaugh dissented. The case involved a Registered Person sentenced on a parole violation based on a “preponderance of the evidence” finding the registrant’s computer may have recently contained illicit photos.

While this pattern has not been universal (See US v Comstock, 560 US 126 (2010), where only conservative justices Alito and Thomas rejected the majority opinion that Congress had the constitutional authority to enact the Adam Walsh Act under the Necessary and Proper Clause), the majority of landmark cases impacting Registered Persons have been divided, with liberal justices more likely to vote against registry laws and other draconian sanctions.

This upcoming battle for the next Supreme Court nominee affects Registered Persons more than you realize. With Ginsburg’s death, only liberal justice Breyer and conservative justice Thomas remain from the Rehnquist court that gave us the Smith v Doe decision. However, John “Price Club” Roberts was the man who argued for the state of Alaska in Smith v Doe. We’re currently left with three left-leaning justices – Sotomayor, Kagan, and Breyer. The conservative justice voted to uphold the registry, uphold civil commitment, and even voted to execute registered persons. Even when they voted for free speech in Packingham, they failed to commit fully to that belief by writing a concurring opinion.

A conservative majority is not great news for registry legal reforms. That is evident by a quarter-century of landmark legislation listed in this article. Many of us continue to hope to see Smith v Doe overturned in our lifetimes. In my opinion, having a sixth conservative justice would pretty much kill that faint glimmer of hope.

8 comments for “Ruth Bader Ginsburg and what her passing means for Registered Persons

  1. Alan Davis
    September 21, 2020 at 5:57 am

    How would adding a liberal leaning judge to SCOTUS make any since to a Republican President and a Republican controlled Senate? Back when Obama was in his last year of an eight year term as President, he did make an appointment to fill the empty seat on the court but the Republican held Senate blocked voting for confirmation. That currently isn’t the case.

    At this point, the court is generally balanced since Roberts now, in nearly every single decision made during the past three years, he has voted the liberal viewpoint. One of Bush’s appointments from years earlier also switched their leanings from generally conservative to now liberal. If a liberal leaning judge fills the Ginsberg seat, (Note, seats are not assigned to be liberal or conservative, but remain under the control of those who make appointments) than the balance will become five to four in favor of the liberals who often reinterpret the Constitution to mean what they want it to mean.

    I am completely in favor of Trump nominating and the current Senate confirming a judge who will rule based on the Constitution rather than just following a progressive agenda.

    • John Doe
      September 21, 2020 at 8:51 am

      “I am completely in favor of Trump nominating and the current Senate confirming a judge who will rule based on the Constitution rather than just following a progressive agenda.”

      Having faith in Trump is a fatal error.

    • September 21, 2020 at 10:33 am

      If you support a conservative SCOTUS, then you obviously don’t want the registry abolished.

      These votes speak for themselves. A conservative leaning court is bad news for criminal justice reforms.

      • Alan Davis
        September 24, 2020 at 11:20 am

        The only criminal justice reform that has been done in twenty years, at least on the Federal level was the Second Chance Act that was signed into law by President Trump.

        You said, “If you support a conservative SCOTUS, then you obviously don’t want the registry abolished.” I think that is a massive leap of an assumption that is only founded in a liberal viewpoint that seems to think that only one view can be right.

        I certainly want the registry, not just modified, but COMPLETELY ABOLISHED and it also want it made illegal for any search engine that has scraped the registry, or any for profit organization, to continue to post the registry information either.

        My desire is not to have just a conservative Associate Justice put on SCOTUS, though the court is presently at a balance of 4 to 4 right now, since for the past four years, Roberts has sided with the liberal view in most decisions. But I digress, I don’t just want a conservative Associate Justice, I want a Constitution honoring Justice, one that reads it and rules on what the Constitution says and not based on what they wished it said.

        In my honest opinion, I think that the only way that the registry will ever be brought down will be when a case is brought to SCOTUS and when all the actual evidence we now know about the registry is presented, there will have to be a ruling that the Sex Offender Registry is Unconstitutional.

    • Ron
      September 22, 2020 at 2:57 pm

      I completely agree with you Alan. I stopped coming to Sosen a couple of years ago because it is getting too political. Even the comment I made here was deleted. Sad. We keep looking to the same people that started this for help and they have done NOTHING for decades. Insanity is doing the same thing over and over expecting different results.

  2. September 25, 2020 at 5:06 am

    Trump could not have signed an act passed in 2007, which is when the Second Chance Act passed. You must be thinking of the First Step Act. Neither of these laws have benefitted us in any way as people convicted of sex offenses were largely excluded from any benefits these two bills offer. None of these laws do much of anything but give pols a reason to eat themselves on the back if you go and actually read what these two acts do.

    Your conservative bias is showing. I have shown a consistent pattern that conservatives largely vote to keep the registry scheme going. Your argument argues against your own interests. Conservatives certainly did not vote on the side of the US Constitution in any of the cases listed above.

    Ginsburg argued the registry is unconstitutional based on the Mendoza factors. The conservative majority reasoned the registry is not punitive. It is no more intrusive than joining the Price Club. I have yet to see a conservative justice honor the constitution. If you cannot see such an obvious pattern here, you are simply being willfully ignorant.

  3. Tim in WI
    September 25, 2020 at 6:43 am

    It will without doubt be the right wing to first reject the unfettered deep states use of the database driven infrastructure. We’ve already begun to see signs of their disapproval of the peculiar uses that seem to be outright blocking conservative opinion.

    All that has occurred so far was infact signed into law by William Jefferson Clinton, a southern Dixiecrat who along with the big data daddies to reconstitute human slavery a “civil cause” to regulate those incapable of regulating themselves. ” The liberal judges ( Jews) in Alaska V Doe called it ” unquestionably punitive” and meanwhile the Catholics deemed the regime non punitive. This is not the first time in history Catholic lawyers looked the other way so that national socialist unions could feed upon the disfavored. The same as occurred to The Jews during their demanded registration by 1930s Nazi. History merely repeats so it is no reason to wonder or question why the minority opinion was what it was. I make it a main point in my several FTR cases.

    The whole fight is over the uses, and potential uses, for maintaining political security wrought via the advent of the database driven infrastructure. The sex offender was merely the key that cracked open the door to public opinion for a much broader use. If a state can indenture and impact individual liberty without process; then how far can the Federalists go with its use. Naturally there can be no limit given the state’s were granted authority to reinstate slavery human to database – registry.

    property maintenance. Free men are paid to maintain machines! Registrants are not free men at liberty!.

  4. September 27, 2020 at 3:35 pm

    I present to you, Amy Coney Barrett.

    https://law.justia.com/cases/federal/appellate-courts/ca7/17-1449/17-1449-2018-08-23.html

    In Beley v. Chicago, for example, she wrote an opinion rejecting a homeless man’s claim that the city’s refusal to register him under the Illinois Sex Offender Registration Act (SORA) deprived him of due process. The reason he wanted to be registered is to avoid an arrest, conviction and up to five years in prison for failing to register. The homeless man’s attempt to register was rejected by the city of Chicago because he had no identification card or proof of an address. He was later arrested for failing to register.

    In her decision, Coney Barrett was unforgiving: “[S]aying that one has the right to register under SORA is like saying that one has the right to serve a sentence or the right to pay taxes.” She rejected the suggestion that the government must “provide due process . . . for actions that create the potential for a later loss” of the man’s freedom from incarceration due to a SORA violation. Coney Barrett identified no “way in which the possibility of incarceration burdens” a homeless person. Case dismissed.

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