April Is Unconstitutional
Authority has long established that April is the cruellest month. But it has never before been thought to be, in any legally significant sense, unusual. It seems to come and go once a year, every year, like clockwork. In fact, literally very much like clockwork, just slower.
Now, in an unexpected development, an ideologically diverse majority of the Supreme Court now appears ready to declare the month unconstitutional. Here’s how the votes line up:
Justice THOMAS holds the view that tax day, April 15, was unknown to the founders and that therefore we must not recognize any such day. And while Justice Thomas understands that technically the 15th is just one day in the month of April, he believes it necessary to wipe the slate clean and start fresh. He also notes that there was a time, before the Etruscans, when April did not exist.
Justice SCALIA gets to the heart of the matter and acknowledges that the framers’ view of our modern April is irrelevant in light of the Eighth Amendment’s proscription of punishment that is both cruel and unusual. The term “unusual,” Scalia believes, often calls for evaluation of what the framers thought—but only regarding the things that the framers thought about. So, for example, the death penalty cannot be unusual in the constitutional sense, because the death penalty was in accepted practice at the time of the Eighth’s ratification. But income tax day was not known to the framers and therefore not something the framers thought about. So we must evaluate its significance relative to our own experience in the income-tax era, beginning with ratification of the Sixteenth Amendment in 1913. And in our own experience, there is no other single day of the year like April 15. What word best describes a day that no other day of the year is like? Unusual. Period. End of case.
Justice GINSBURG is disturbed that April might have been named after Aphrodite, goddess of love. Such gender stereotyping must meet an intermediate scrutiny standard, and the government has not demonstrated what important interest it has in glorifying harlotry.
Justice BREYER thinks that Congress could rationally conclude that there was a proper balance between the benefits and burdens of the month of April. However, he stresses that the sheer magnitude of cruelty is itself unusual and, absent specific congressional findings, a pattern of such cruelty shifts the burden to the government.
Chief Justice ROBERTS and Justice ALITO agree with the (likely) dissenters, Justices STEVENS and SOTOMAYOR, that there’s nothing unusual about April. They refer approvingly to Justice Stevens’ comments that in all his years on the bench, not one Justice ever believed anything at all constitutionally amiss about any month of the year, which in any case, is not a punishment and therefore does not invoke the Eighth Amendment’s protections. But Roberts and Alito are not convinced that punishment must be both cruel and unusual at the same time, and that simply being exceedingly cruel may be enough. And furthermore, they say, it would baffle the entire legal system to declare that April was cruel but yet somehow not punishment. If it is cruel, it is punishment. To say otherwise is to split hairs and invite legal wrangling over the question for decades to come.
And Justice KENNEDY finds April to be simply undignified.
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