Chief Justice John Roberts is doing all in his power to help the Supreme Court not look overtly political as it moves ideologically to the right.
WASHINGTON – The Supreme Court tries to remain above the partisan fray. But it was fitting in these politically perilous times, perhaps, that the justices raised the curtain on their 2019 term Monday with a debate about what it means to be insane.
The court’s term itself promises a degree of insanity, as it combines oral arguments on LGBT employment discrimination Tuesday – and immigration, guns, religion and abortion in the months to come – with a possible starring role in impeachment and other battles between President Trump and Congress.
The focus of their attention Monday – besides new guidelines that encourage the loquacious justices to wait two minutes before asking questions, which they barely managed – was a quadruple murder committed by a Kansas man seeking to use an insanity defense.
The problem for James Kahler, who admitted to killing his estranged wife, mother-in-law and two daughters in 2008, is that Kansas had abandoned that defense a decade earlier. To win a conviction, the state need only prove that the defendant acted with intent – not that he understood right from wrong.
Only three other states – Idaho, Montana and Utah – have eliminated the insanity defense, though Associate Justice Elena Kagan opined that Kahler likely would not have been found insane anywhere.
Even so, she and other justices noted that throughout history, prosecutors have needed to prove more than intent to overcome mental health defenses. Briefs filed on Kahler’s behalf refer to early Jewish tradition, in which “madness” excused otherwise punishable crimes, and the first pages of Genesis introduce “knowledge of good and evil.”
Associate Justice Stephen Breyer said Kansas’ standard would treat two defendants differently: “The first defendant thinks that Smith is a dog. The second defendant knows it’s a person but thinks the dog told him to do it.”
“What’s the difference?” Breyer asked, rhetorically. “They are both crazy.”
On the other hand, Chief Justice John Roberts implied that states should not be too free to grant claims of insanity. He noted that Kahler’s attorney, Sarah Schrup, included as evidence of his disordered personality that Kahler was obsessively frugal and would “borrow rather than purchase tools.”
Roberts – who last month quipped about his home-repair skills that he would “return the tools when I find them” – wondered why borrowing borders on insanity. “That sounds like a reasonable option,” he said.
And Associate Justice Samuel Alito said letting criminals off the hook because they believe their actions are moral would “revolutionize criminal law.”
In a separate criminal case later in the day, most of the justices appeared to believe that it would revolutionize constitutional law to allow non-unanimous jury verdicts in criminal trials, as Louisiana asked them to do.
That case focused on Evangelisto Ramos, who was convicted of murder by a 10-2 vote. His attorney, Stanford Law School professor Jeffrey Fisher, urged the court to overrule yet another of its precedents that allowed non-unanimous verdicts in state courts.
Only Louisiana and Oregon have used that standard, and Louisiana’s law since has been changed. Still, the state wants to protect non-unanimous verdicts rendered against criminals now serving their sentences.
Louisiana solicitor general Elizabeth Murrill, noting the justices usually insist that states follow the Constitution, urged the court to remove the unanimity requirement entirely. That didn’t sit well with the court’s liberals or conservative libertarians.
“The words ‘jury trial’ themselves mean unanimous verdict,” said Associate Justice Ruth Bader Ginsburg, who was an active questioner on her first day back in court following treatment for her fourth bout with cancer over the summer.
Associate Justice Brett Kavanaugh noted that the non-unanimous rule dates back to the 1890s and was intended to diminish the voices of black jurors. And Associate Justice Neil Gorsuch said, “We’re talking about a Constitution that’s supposed to endure.”
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