Kneejerk SCOTUS Criticism

Prof. Erik Loomis is an expert on various things, including things historical, but goes into curmudgeon mode regarding the Supreme Court decision (split on ideological lines) upholding a law against the homeless:

But what I took from reading about the case is what I usually take from the Court–there’s nothing principled about any of them at all. They are all–liberal, conservative, and fascist–utter hacks who just find constitutional precepts for their own personal political positions. Does the ban on homelessness violate the 8th Amendment? I don’t know how you even answer that, but for the justices, it was just an excuse for them to rule based on their own opinions on the issue.

Other than quoting part of a NYT article (a paper people on that blog often sneer), he has little to say:

The short version is that Sotomayor thinks this is evil and Gorsuch thinks it is good. That’s it. What the Constitution has to do with any of that, I don’t know. What I do know is that the entire idea of a Supreme Court is a complete disaster and I hate this institution very, very much. Why nine hacks should be our godkings is a question I wish more people asked.

The comments are filled with generalized comments that similarly largely do not engage with the reasoning of the opinions. One person talks about what the Eighth Amendment "intended," part of his repeated appeals to originalism, without blatantly admitting his support of that approach.

The "entire idea of a Supreme Court" being a problem is a novel thing. Some critics do not like judicial review -- though countries around the world apply it -- but how does not having a Supreme Court at all work? Or, is this some badly framed criticism of a court with such a wide reach as compared to a more limited constitutional court? Hard to say.  

Why not try engaging with Justice Sotomayor's argument (even if some on that blog are mad she didn't retire) since unlike Alito et. al., she is not a troll? The basic concept, citing a precedent involving drug addicts, is that it is cruel and unusual to criminalize status. The homeless (unsheltered?) here are granted to be involuntarily so since there is not adequate housing.

The policy here, good or bad, involves the use of criminal law. People who are unable to obtain a home can be criminally fined. The law also raises various other problems, including due process concerns, that are not directly involved in this litigation. 

The majority argues it is not a status crime. The locality is criminalizing camping in public. Goruch for the conservatives emphasizes the complexity of the policy issue. He is also not a big fan of the original precedent though granting a status crime might also raise due process problems since it involves involuntary conduct. 

I find that somewhat a matter of semantics, especially since ultimately we are using the Due Process Clause anyway. This is state action so the Fourteenth Amendment is applied. I think a crime and fines do raise Eighth Amendment issues particularly. A punishment can be unjust, cruel and unusual because even a day in prison or a dollar is unjust.  

A long time college professor, with a Ph.D. yet, should be able to handle that. But, as sometimes is the case with him, Loomis is too lazy or whatever to actually spend time to address the issue.  

The application of the law is going to be influenced by the ideology of the judges who apply it. I am not led to believe Erik Loomis is against a court system. Or, a system where certain rights have to be applied. 

If you want to greatly reduce the power of the Supreme Court, go right at it. It should require a bit more effort to address what is going on when they interpret the law. 

BTW, this is a guy who is fine with the Department of the Interior setting out large portions of land for national monuments and parks. That is a lot of power too. He cares more about that subject. Still, I have not seen him explain how they go about deciding what is appropriate there. 

This "both sides do" crap is tiresome.