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.