Sometimes they surprise you

The "they" in the title of this post is judges (justices, too).

We predict and predict, speculate and speculate. And mostly, of course, we're right. Those who wear the robe are, basically, as predictable as can be. And the more you know, the more predictable they are.

So, at the U.S. Supreme Court, we know (or think we do) that on every controversial decision, civil or criminal, the vote will split 4-4 with Stevens, Souter (I'm being retroactive here), Ginsburg, and Breyer on one side; Roberts, Scalia, Thomas, and Alito on the other. As Justice Kennedy goes, so goes the America, or as Adam Liptak puts it in today's NY Times:

The Constitution, it turns out, means what Justice Kennedy says it means.

Like I say, we all know that. But aside from the Kennedy part (and even there), it's not really true.

Scalia, for instance, believes pretty much absolutely in the consequences of the Sixth Amendment right to jury trial in criminal cases. That would seem to put him in the camp with the 4 alleged liberals, but Breyer refuses to join them. Alemendarez-Torres v. United States, Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker.

Of course, Scalia and Breyer would both explain that these cases are typical of them. Scalia says the Constitution requires juries to find facts relevant to guilt and punishment. Period. Breyer (and this is seriously troubling) seems to say that although the Constitution does require that, fairness, which is a Constitutional goal, doesn't. To be fair to Breyer, here's what he says in Apprendi:

The majority holds that the Constitution contains the following requirement: "any fact [other than recidivism] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Ante, at 24. This rule would seem to promote a procedural ideal--that of juries, not judges, determining the existence of those facts upon which increased punishment turns. But the real world of criminal justice cannot hope to meet any such ideal. It can function only with the help of procedural compromises, particularly in respect to sentencing. And those compromises, which are themselves necessary for the fair functioning of the criminal justice system, preclude implementation of the procedural model that today's decision reflects. At the very least, the impractical nature of the requirement that the majority now recognizes supports the proposition that the Constitution was not intended to embody it.
. . .
Nonetheless, it is important for present purposes to understand why judges, rather than juries, traditionally have determined the presence or absence of such sentence-affecting facts in any given case. And it is important to realize that the reason is not a theoretical one, but a practical one. It does not reflect (Justice Scalia's opinion to the contrary notwithstanding) an ideal of procedural "fairness," ante, at 1 (concurring opinion), but rather an administrative need for procedural compromise. There are, to put it simply, far too many potentially relevant sentencing factors to permit submission of all (or even many) of them to a jury.
. . .
At the same time, to require jury consideration of all such factors--say, during trial where the issue is guilt or innocence--could easily place the defendant in the awkward (and conceivably unfair) position of having to deny he committed the crime yet offer proof about how he committed it, e.g., "I did not sell drugs, but I sold no more than 500 grams." And while special postverdict sentencing juries could cure this problem, they have seemed (but for capital cases) not worth their administrative costs.
. . .
By placing today's constitutional question in a broader context, this brief survey may help to clarify the nature of today's decision. It also may explain why, in respect to sentencing systems, proportionality, uniformity, and administrability are all aspects of that basic "fairness" that the Constitution demands. And it suggests my basic problem with the Court's rule: A sentencing system in which judges have discretion to find sentencing-related factors is a workable system and one that has long been thought consistent with the Constitution; why, then, would the Constitution treat sentencing statutes any differently?

Constitutional goals trump actual Constitutional directives for Breyer, as he explains at length, though not so bluntly, in his book Active Liberty: Interpreting Our Democratic Constitution. So the two disagree strenuously and, to those who haven't been paying attention, each took a surprising view. (The same atypical voting pattern came in last week's Confrontation Clause case, Melendez-Diaz v. Massachusetts.)

All of that - and I'm going to have more to say about Constitutional interpretation and about the three justices (Scalia, Thomas, and Breyer) who actually claim to have (and at least sometimes seem to apply) actual methodologies for interpreting the Constitution - is by way of preface for an observation that led to the title of this post: Sometimes they really do surprise you. It's like you just cannot know enough to figure out how they'd ever have come down that way on an issue.

Case in point, and what set me off: Spangler v. State, decided yesterday by a panel of the 11th District Court of Appeals.

Spangler is one of the literally thousands of cases around Ohio challenging on various grounds the Constituitonality of retroactive application of Ohio's Adam Walsh Act (S.B. 10). The Act, the latest version of Ohio's sexual offender registration and notification law, makes very substantial and onerous changes to the prior law and imposes those changes on people who had been registering under the prior law.

While a few Ohio trial courts have found the Adam Walsh Act unconstitutional when applied retroactively, the appellate courts have generally not. (They won't have the last word. The Ohio Supreme Court is hearing four or five, depends on how you count, cases challenging the law, and dozens of others are working their way to the court and being held for the decisions in those cases.)

But the 11th District, in Spangler did find AWA unconstitutional. Two judges thought it violated principles of res judicata. One of them thought it also violated the separation of powers. The other thought it violated constitutional prohibitions on ex post facto laws and on certain retroactive laws. The third judge thought the Act was constituitonal. That's interesting, but hardly the stuff of this post. Rather, what surprised me (and "surprised" is really too weak a word) is that one of the judges in the majority, the one who thought there was a separation of powers problem, is Judge Diane Grendell.

That's the Judge Diane Grendell who never met a punishment she didn't like or a criminal defendant whose conviction she couldn't affirm. (OK, maybe there have been a few exceptions, but sure not many.) More to the point, that's the Judge Diane Grendell whose husband, State Senator Timothy J. Grendell, I debated last year on the constitutionality of the law. That's the Senator Grendell who was a sponsor of the legislation.

Did she get integrity? Does she know a sex offender? Did executive branch official screw with one of her decisions? I don't know. And I can't explain it. But I'm awfully glad she did the right thing.