Justice Clarence Thomas Delivers an Intelligent, Thoughtful Opinion Upholding the Right to a Trial by Jury

The “Hang’em High” other Conservatives on the Court Must be Horrified

This Forum has been unrelenting in its criticism of Justice Clarence Thomas, but apparently even Justice Thomas does have it within him to ability to know that when the Constitution guarantees the right of the accused to trial by jury, it guarantees the right of the accused to trial by jury.

The situation in this case was very simple.  An individual was accused and convicted of using a gun in a criminal act.  The penalty is five years.  If the gun were ‘brandished’ this is a different crime and the penalty is seven years.  The jury found the defendant guilty of using but not brandishing a gun and sentenced him to five years.  The judge upped the sentence to seven years, apparently deciding that the gun was brandished and effectively overruling the jury.  This of course gave the defendant no chance to defend himself against the more severe charge and took the decision out of the hands of the jury.

Justice Thomas said no.  In very simple plain English his point was this.

As noted, the essential Sixth Amendment inquiry is whether a fact is an element of the crime. When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury. It is no answer to say that the defendant could have received the same sentence with or without that fact. It is obvious, for example, that a defendant could not be convicted and sentenced for assault, if the jury only finds the facts for larceny, even if the punishments prescribed for each crime are identical. One reason is that each crime has different elements and a defendant can be convicted only if the jury has found each element of the crime of conviction.

Similarly, because the fact of brandishing aggravates the legally prescribed range of allowable sentences, it constitutes an element of a separate, aggravated offense that must be found by the jury, regardless of what sentence the defendant might have received if a different range had been applicable. . . . The essential point is that the aggravating fact produced a higher range, which, in turn, conclusively indicates that the fact is an element of a distinct and aggravated crime. It must, therefore, be submitted to the jury and found beyond a reasonable doubt.

In his dissent Judge Alito decried the overturning of precedent 

The Court overrules a well-entrenched precedent with barely a mention of stare decisis. See ante, at 16, n. 6. Stare decisis is, of course, not an “inexorable command” in the field of constitutional law. Payne v. Tennessee, 501 U. S. 808, 828 (1991) . Nevertheless, the Court ought to be consistent in its willingness to reconsider precedent. If Harris v. United States, 536 U. S. 545 (2002) , and McMillan v. Pennsylvania, 477 U. S. 79 (1986) , can be cast aside simply because a majority of this Court now disagrees with them, that same approach may properly be followed in future cases. See Arizona v. Gant, 556 U. S. 332–364 (2009) (Alito, J., dissenting).

but it seems clear that all he is doing is setting the scene to overturn Roe v. Wade when it comes before the Court again.

So Conservatives are once again thwarted in their efforts to remove basic Constitutional rights from the accused, simply because they, the Conservatives, believe that the police would not arrest someone who is not guilty.  The great irony here of course is that one of the most conservative members of the Court betrayed his brethern, and that is just the chocolate icing on the devil's food cake.