by Ted Cruz
I have said previously—indeed, I said it in the course of the South Carolina presidential debate in 2016—that, had I been president, I would have appointed Judge Luttig instead of John Roberts to be chief justice of the United States. Once upon a time, both men were the two finalists to replace Chief Justice William Rehnquist, and had Luttig been nominated instead of Roberts, I have complete confidence that Judge Luttig would have remained faithful to his oath to support the Constitution.
In the 1995 Fourth Circuit Court of Appeals case of Turner v. Jabe, a capital murderer raised a Lackey claim. The panel considering the appeal rejected the claim, carefully weighing the pros and cons before rejecting the case on its merits. Judge Luttig wrote a short concurrence that he typed out on his own keyboard using two fingers to type furiously, as he always did. It was extraordinarily powerful. Judge Luttig criticized the claim as “a mockery of our system of justice, and an affront to law-abiding citizens who are already rightly disillusioned with that system.”
The short concurrence cut to the heart of the gamesmanship that pervades and characterizes so much capital litigation. When I was a law clerk at the Supreme Court, Justice Clarence Thomas, who is also close friends with Judge Luttig, kept a copy of Judge Luttig’s opinion in this case under the glass on his desk in his chambers.
As Kennedy v. Louisiana demonstrated, five justices far too often have believed that they have the arbitrary power to resolve contested policy issues concerning criminal law and the death penalty. But that is not the role of judges under the Constitution. For those who wish to change the substantive standards, that responsibility is left to elected legislatures. And yet, in case after case, involving the very worst criminals committing the most unspeakable crimes, a host of lawyers, advocates, and activist judges continue to frustrate the carrying out of the laws.
When it comes to capital punishment, activist judges try to subvert the law rather than apply it. They do the same thing when they argue against particular cocktails of drugs used in lethal injection cases. This litigation strategy is an unabashed abolition strategy, trying to get the Court to revisit the four-year period, from 1972 to 1976, when every death penalty law in America was struck down.
In 2008, the Supreme Court decided Baze v. Rees, a challenge to Kentucky’s method of lethal injection, which was then the primary or only method of execution by the federal government and in thirty-seven states. I authored an amicus brief on behalf of Texas and nineteen other states defending the constitutionality of lethal injection. At the time, our position prevailed 7–2.
But after Baze, private pharmaceutical companies were all too eager to assist the activist lawyers and judges by limiting or ending production of various lethal injection drug cocktails—thereby forcing states to experiment with more novel and potentially more dangerous drugs in order to carry out the executions required by the law.
By making the injections used in capital punishment cases more risky, pharmaceutical companies gave the activists exactly what they wanted: a new avenue to ban the death penalty. In the 2015 Supreme Court case of Glossip v. Gross, a bare 5–4 Court majority held that lethal injection using the drug cocktail known as midazolam did not violate the Cruel and Unusual Punishments Clause. In Glossip, Clayton Lockett was executed in Oklahoma using midazolam, dying forty-three minutes after the lethal injection after groaning about the drug cocktail allegedly not working properly. Though the majority prevailed, liberal justices in dissent again used the case as a lever to try to enact a total ban on capital punishment.
Justice Breyer wrote that circumstances had so changed since Gregg v. Georgia that the death penalty itself, in all forms and instances, is once again violative of the Cruel and Unusual Punishments Clause. In other words, Justice Breyer wrote that he believes Furman v. Georgia should be restored. He pointed to what he saw as four separate policy reasons for this: serious unreliability of the death penalty, arbitrariness in application of the death penalty, excessive delays of the death penalty, and the fact that many places in the United States have largely abandoned use of the death penalty. Justice Breyer’s dissent in Glossip was joined by his fellow long-standing Court liberal, Justice Ruth Bader Ginsburg. The separate dissenting opinion, written by Justice Sonia Sotomayor and also joined by Breyer, Ginsburg, and Justice Elena Kagan, reached the same outcome, albeit in the specific factual circumstances of that case.
Justice Scalia, joined by Justice Thomas, wrote a characteristically powerful concurrence, concluding with a stinging rebuke of Justice Breyer and the dissenting justices:
Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.
Recent capital punishment cases at the Supreme Court suggest that now there may be four votes on the current Court to bring us back to the days of Furman v. Georgia. In other words, it now seems likely that there are four sitting justices who would ignore the unmistakably plain language of both the Fifth and Fourteenth Amendments and conclude that the Eighth Amendment’s Cruel and Unusual Punishments Clause prohibits any and all forms and methods of execution.
If that is correct, on this issue, as with so many, we’re once again just one vote away from a remaking of our constitutional order.
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There is a place to deal with the highly contested issues of criminal punishment, and it’s not the federal bench. Violent crime has the potential to touch any family, and the question of how society should deal with those who commit the most grievous of crimes is a question with which elected legislatures always have, and always will, wrestle. Violent crime is, I believe, qualitatively different from non-violent criminal offenses.
In the Senate, I have taken up criminal justice issues in my role as a legislator. I was proud to co-sponsor the 2018 First Step Act, criminal-justice reform legislation that lessened penalties for non-violent drug offenses. In criminal sentencing, our statutory systems have vacillated between widespread judicial discretion, which produced widely varying sentences for comparable crimes, and strict mandatory minimums and sentencing guidelines, which produced more uniformity but at the same time could result in unjustly harsh sentences in at least some of the applications.
I supported the First Step Act, the most far-reaching criminal-justice reform in decades, because I believed mandatory sentences for non-violent drug offenses had gotten too strict and that our scarce law enforcement resources were better spent combating violent crime. But the price of my support for that legislation was drawing a very clear distinction between violent crime and non-violent crime.
The Senate Judiciary Committee had previously taken up criminal justice reform twice in recent years, with the effort spearheaded by my close friend Senator Mike Lee of Utah, as well as Democratic senator Dick Durbin of Illinois. Although I supported the objective, I felt compelled to offer amendments that clearly carved out violent criminals from the reform efforts, ensuring that relief only flowed to non-violent offenders and that we did not give clemency to those who had committed the crimes of murder, rape, or other violent assaults.
Twice, the Senate Judiciary Committee rejected my proposed amendments to the legislation. In each instance, there were sufficient votes on the Committee to pass the bill out of Committee and to the Senate floor: all of the Democrats and several of the Republicans. But in both instances, I argued to the Committee that although they could move the legislation out of Committee, it would never pass on the Senate floor unless and until they accepted my amendments excluding violent criminals.
Senate Republican leadership had made it clear that the bill would not be brought forward for a vote unless there was greater consensus. And numerous Republican se
nators indicated both privately and publicly that they shared my already-expressed concerns about releasing violent offenders from prison. Several Republican senators expressed the view in particular that, if my amendment were adopted, they would be willing to support the legislation.
When Donald Trump was elected president, he made criminal-justice reform a signature issue, tasking his son-in-law, Jared Kushner, with driving the White House’s legislative effort. Despite saying he supported reform, over eight years President Obama had never been able to get it done (and, to be honest, didn’t devote much effort to trying to do so). There was strong bipartisan support behind criminal-justice reform, and yet, a number of law-and-order Republicans understandably had serious concerns.
Once again, I offered my amendment excluding violent criminals from the bill’s coverage. I spent hours in person and on the phone negotiating with fellow senators and with Jared and the White House legislative team. After considerable resistance, both Kushner and Senator Durbin agreed to my amendment. Within hours of my amendment’s incorporation into the draft legislation, I announced my support for the bill and, the very next business day, Senate leadership announced that it would finally be brought to the Senate floor for a vote. As I said at the time, “With these changes, this bill gives non-violent offenders a better chance at rejoining society while keeping violent offenders behind bars.”
The First Step Act, with my amendment, came to a vote on the floor of the Senate and passed overwhelmingly by a bipartisan majority of 87–12. Of the eighty-seven votes in favor of the legislation, thirty-eight were Republicans, and forty-nine were Democrats.
The First Step Act mirrored, in significant respects, similar legislation that the Texas Legislature had passed, reducing punishments for non-violent drug offenders and shifting law-enforcement focus to violent criminals instead. And in Texas, the results had been strongly positive.
I was proud to play an integral role in the passage of such crucial bipartisan legislation at the federal level. As I said at the time, “Too many young men, particularly young black men, face long mandatory prison sentences for nonviolent drug offenses; this bipartisan legislation corrects that injustice. And it will focus our law enforcement resources where they are most needed: preventing violent crime.”
In my view, there is a profound and crucial distinction between violent and non-violent crime. Far too many young men, and young African-American and Hispanic men in particular, historically have faced long prison terms for the non-violent possession of drugs. For those struggling with addiction, there are better, more effective strategies, often dealing with treatment and rehabilitation, that can produce real results.
Violent crime is different. With violent crime, I have comforted too many grieving families mourning the loss of a child or loved one who was brutalized at the hands of a depraved rapist or killer. And I, for one, was not willing to look a mother in the eyes and tell her that I had any part in releasing early the murderer who took her child’s life.
President Trump signed the First Step Act into law, and I joined him in the Oval Office with an amazing coalition of criminal-justice reform advocates, evangelical and faith-based leaders, conservative and libertarian think-tank leaders, and law-enforcement leaders. At the White House signing ceremony, I praised the spirit of compromise that governed the bill’s drafting process. Because we were willing to compromise, we were able to write good legislation that keeps Americans safe while making sure that justice is properly served. That kind of compromise is what the legislative process is designed to accomplish. It’s picture proof of why lawmaking should be left in the hands of legislators rather than judges.
The way the First Step Act passed, through policy, legal and constitutional arguments about what is right, appropriate, and just, through a consideration of facts and data and evidence about what is most effective in deterring crime and preventing recidivism—all of it was done through the legislative process. That is how our system is supposed to work. Elected legislatures exist to consider and to weigh policy arguments and to reflect the wishes and values of the voters who elected them. When unelected judges seize issues of the criminal law and mandate that violent criminals receive lesser punishments, they are going against both the constitutional structure and their responsibility as judges.
CHAPTER 8 DEMOCRACY AND THE ELECTORAL PROCESS
Dressed in a white pantsuit, Bo Derek bowled barefoot and with both hands. She was with us in an Austin bowling alley on Election Day 2000, lending a surreal quality to an otherwise extraordinary day.
I had just spent the last year and a half on the George W. Bush presidential campaign, where I had been part of the policy team. And, most importantly (for me at least), I had met Heidi on the campaign, my then-girlfriend and soon-to-be wife. Our boss, Joshua Bolten, was the campaign’s policy director. He would later go on to become President Bush’s head of the Office of Management and Budget and then chief of staff. Josh, it so happened, was dating Bo Derek, the legendary beauty who had starred in the movie 10. Decades later, she retained her movie-star radiance.
Josh was a bowling enthusiast. Although we had worked around the clock for the entirety of the campaign, on election day, nobody wants or needs a policy team, and so Josh took us out bowling with his girlfriend. The women didn’t get what the big deal was, but every man on the team, all of us in our twenties, was rendered speechless. And it would’ve been better if I had remained speechless because as that day and evening proceeded, we began an election-night party that kept us out until the not-so-wee hours of the morning.
By 4:00 a.m., we all stood out in the street on Congress Avenue in downtown Austin in a light drizzling rain, and Don Evans, the chairman of the campaign, came out to tell the assembled crowd that there would be no election result that evening. As we were walking home, Heidi asked me, “So, do you think Bo Derek is good looking?” Sober, I can answer that question, but at 4:00 in the morning after many hours of election-night revelry, I responded with a bit too much enthusiasm and candor. To this day, Heidi rightfully gives me grief over my foolish answer to her that evening.
As election night began, the networks called the election for Al Gore early on. At 7:50 p.m., they declared that Florida, with its pivotal twenty-five electoral votes, had voted for Gore—even before the polls had closed in the entire state of Florida. The western panhandle (the most reliably conservative part of the state), in a later time zone, still had people going to the polls when the networks declared it all over.
All of us were despondent; it seemed our efforts had been in vain, until suddenly the networks revisited their call. As more results came in, one network after the other changed the call from Florida going for Vice President Gore to being too close to call. Then, later in the evening, the networks were ready to make a call again. This time, they declared the state won by George W. Bush, and shortly thereafter, the presidency won by George W. Bush.
Al Gore called to concede, and we began the celebrations. But then, not long after, Gore called back to retract his concession. The margin had grown narrower—with Bush’s lead dropping from some 50,000 votes down to just 1784 votes—and, at the end of the night, the results remained uncertain.
Two days later, Josh called me into his office and asked me to get on a plane and fly to Florida. The Gore campaign was contesting the election, and lawyers from across the country were descending on the Sunshine State like proverbial locusts. I packed a bag and headed straight to the airport. When I arrived in Tallahassee, we set up headquarters in the State Republican Party building, coincidentally named the George Herbert Walker Bush Building. Initially, there were just a handful of Republican lawyers on the ground. Our team was led by Ben Ginsburg, the campaign’s outside counsel and an experienced election lawyer. Ben was a friend, and he knew well the complex world of the Federal Election Commission (FEC).
Many lawyers in Ben’s position would have seen this litigation as an opportunity for them to be the stars, but Ben demonstrated
a remarkable humility by recognizing early on that his primary expertise was not as a litigator, but rather as an advisor—a quarterback—on FEC matters. Accordingly, Ben and I sat down, just the two of us, in a conference room in Tallahassee with a yellow notepad and asked ourselves, “Who are the best lawyers in the country to defend Governor Bush, to try our case?”
My being in that room was a happy accident. At the time, I was just twenty-nine years old. Just a few years out of law school, I had clerked for Judge Luttig and the Chief and had spent two years in private practice. And as it so happened, I was the only practicing litigator on the full-time campaign staff in Austin. What I had practiced, albeit briefly, was constitutional litigation.
As we sat looking at the empty notepad, it was a Field of Dreams-type scenario: “If you call them, they will come.” The first lawyer I suggested was my former boss, Mike Carvin. Mike, a brilliant Supreme Court litigator, is the best lawyer I have ever seen at anticipating unexpected questions and seeing around corners in unpredictable litigation. Ben readily agreed, so I called Mike on his cellphone. Mike was, at the time, at a wedding in Seattle. He flew from Seattle to D.C., where his wife met him at the airport with a suitcase of fresh clothing, and, hours later, he arrived on the ground in Tallahassee.
Another lawyer I suggested calling was John Roberts. John was then the head of the Supreme Court practice at Hogan & Hartson and universally considered one of the finest Supreme Court advocates in the country. I called John and asked him to come down. He dropped everything and flew to Florida.
Ted Olson, another highly respected Supreme Court advocate and the former head of the Office of Legal Counsel under Ronald Reagan, had already been tapped to lead the Supreme Court team.