The "tender-hearted" SCOTUS

I will say some more about yesterday's opinions that have received some commentary including regarding the importance of the takings and administrative searches (hotel guest registry). One discussion on the latter noted that the decision states: 

a clear doctrinal rule requiring an “opportunity for precompliance review” for virtually all governmental inspection programs. While the decision on the specific Los Angeles statute is close [5-4], the Court does not seem divided on the fundamental principles. Thus the Court appears to fulfill one of its primary functions: stating general rules that can be relatively clearly implemented, to guide governmental and litigant behaviors on a national level.

While we can debate the substantive merits of such opinions and quibble over language, this is an important bottom line, including when talking about stare decisis (an issue in another case yesterday, once that again split Scalia/Thomas, this time Scalia was the one assigning things to a liberal justice).  These cases are important partially because they retain some basic limits that should relieve the hearts of liberals who are inclined to generally deem the Roberts Courts a bunch of retrograde fascists.  The split might too often be too "close," but there is enough there for hope, especially since it provides the tools for willing (and even some wary) lower court judges and others including the victims that now have more tools to fight back.

Though I'm still inclined to think the raisins case was overblown, the basic idea that we should be concerned about the government taking all types of property illegitimately, including without just compensation is part of this whole affair.  A comment here, e.g., suggests the possible breadth of Sotomayor's "if you don't take all the property interests" rule.  And, though I really question she would apply it to seizure of 1/3 of a hotel's rooms, the concern has some merit as a matter of principle. Yesterday, therefore should be seen as in some small way protecting various constitutional rights, especially given the breadth of administrative power, those detained in the criminal justice system awaiting before being found guilty and so on.

The split is still too close at times and it is troubling that Chief Justice Roberts continues to at times join broader opinions as seen both in the passport case and now in a prison excessive force ruling. Again, Alito found a way to avoid the broader argument while Kennedy this time joined the majority upholding the liberty interest at hand.  Thus, Roberts' join of Scalia (and Thomas) again seems gratuitous. Usage of a federal statute in place to protect federal civil rights (even though there was generally also state means of relief too given state action is involved) is a "tender-hearted desire" to federalize tort law.  The "tort" here alleged excessive force against a person in criminal custody, but still legally innocent. Scalia's dissent argues that: "The Constitution contains no freestanding prohibition of excessive force. "The Fourth Amendment not at issue (Alito relies on this), allegedly the only thing left is an "intentional infliction of punishment."

The majority, correctly and more logically, holds that the Fourteenth Amendment's protection of "liberty" is more stringent. As one opinion cited noted: "[a] court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose."  Not only is use of force in a prison without a legitimate purpose in effect assumed to be "punishment" for constitutional purposes, one would think obviously there is some bare minimum standards of treatment in government detainment. 

The opinion here holds that the force must be judged "objectively," not merely trying to show the specific officer subjectively intended to hurt the person. The added requirement is more appropriate in the 8th Amendment context where such intent has been deemed necessary.  This has application in a case of current notoriety.  A reliance on subjective intent can be much harder since even if objectively something is unreasonable, a particular actor might be able to show the lack of the guilty mind needed to obtain satisfaction.  We should not have to rely on the unreasonable assumptions of state actors at some point -- at some point, when finding fault and/or the need to provide damages, a general sense of reasonableness should be enough.  This is particularly the case where criminal allegations are not at issue but civil right claims. 

The Court is not only "tender-hearted" to raisin brokers.