History > 2006 > USA > Supreme Court (II-III)

The 29-foot cross atop Mount Soledad in the La Jolla district,

overlooking San Diego and the Pacific.

Monica Almeida/The New York Times

Supreme Court Gives Cross in San Diego a Reprieve

NYT

4.7.2006

http://www.nytimes.com/2006/07/04/us/04cross.html

Supreme Court Memo

Women Suddenly Scarce

Among Justices’ Clerks

August 30, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Aug. 29 — Everyone knows that with the retirement of Justice Sandra Day O’Connor, the number of female Supreme Court justices fell by half. The talk of the court this summer, with the arrival of the new crop of law clerks, is that the number of female clerks has fallen even more sharply.

Just under 50 percent of new law school graduates in 2005 were women. Yet women account for only 7 of the 37 law clerkships for the new term, the first time the number has been in the single digits since 1994, when there were 4,000 fewer women among the country’s new law school graduates than there are today.

Last year at this time, there were 14 female clerks, including one, Ann E. O’Connell, who was hired by William H. Rehnquist, the chief justice who died before the term began. His successor, Chief Justice John G. Roberts Jr., then hired Ms. O’Connell.

Justice Samuel A. Alito Jr., who joined the court in January, hired Hannah Smith, who had clerked for him on the appeals court where he had previously served. So by the end of the term, and counting Ms. O’Connell twice, there were 16 women among the 43 law clerks hired by last term’s justices.

After years in which more than a third of the clerks were women, the sudden drop was a hot topic this summer on various law-related blogs. Word of the justices’ individual hiring decisions spread quickly among those for whom the comings and goings of law clerks are more riveting than any offering on reality television.

Who are these young lawyers who are the subject of such interest? They do not, contrary to myth — propagated in part by law clerks themselves — run the court. They do play a significant role in screening new cases, though, and they help their justices in preparing for argument and in drafting opinions.

While their pay is a modest $63,335 for their year of service, a Supreme Court clerkship is money in the bank: the clerks are considered such a catch that law firms are currently paying each one they hire a signing bonus of $200,000.

In interviews, two of the justices, David H. Souter and Stephen G. Breyer, suggested that the sharp drop in women among the clerkship ranks reflected a random variation in the applicant pool.

But outside the court, those who care about what goes on inside are thirsting for more than statistical randomness as an explanation.

A post on one popular legal Web site, the Volokh Conspiracy, asked, “Why so few women Supreme Court clerks?” and drew 135 comments during a single week in July. The answers included the relative scarcity of female students among the top editors of the leading law schools’ law reviews — an important preclerkship credential — and the absence of women among the “feeder judges,” the dozen or so federal appeals court judges who, year in and year out, offer a reliable pipeline to the Supreme Court for their own favored law clerks.

Some speculated that Justice Antonin Scalia, who hired only two women among 28 law clerks during the last seven years and who will have none this year, could not find enough conservative women to meet his test of ideological purity. (Justice Clarence Thomas will also have no female clerks this year, but over the preceding six years hired 11.)

In a brief telephone interview, Justice O’Connor said she was “surprised” by the development, but declined to speculate on the cause.

Justice Ruth Bader Ginsburg expressed no such surprise. In a conversation the other day, she knew the numbers off the top of her head, and in fact had noted them in a speech this month in Montreal to the annual meeting of the American Sociological Association, during which she also observed with obvious regret that “I have been all alone in my corner on the bench” since Justice O’Connor’s retirement in January.

Justice Ginsburg, who will have two women among her four clerks, declined during the conversation to comment further on the clerkship numbers. Why not ask a justice who has not hired any women for the coming term, she suggested.

One who is in that position, Justice Souter, said he was disappointed to find himself without any female clerks. He explained that he had hired the top four applicants, who turned out to be men.

In recent years, more than a third of Justice Souter’s law clerks have been women; since women rarely make up as much as a third of the applicant pool, he said, they have been somewhat overrepresented among his hires.

“I’ve found that a mix is a wonderful thing,” he said, speaking from his home in New Hampshire.

Unaware of the overall drop in numbers, Justice Souter said he assumed it reflected no more than a random variation among this year’s applicants.

That was also the assessment offered by Justice Breyer, who nonetheless has hired his usual total of two women for his four law clerk positions.

In the last seven years, Justice Breyer has hired more women than any other member of the court; more than half his law clerks, 15 of 28, have been women, a result, he said in an interview from his chambers in Boston, not of any conscious effort but of choosing the best available candidates.

With the number of women in clerkships high by historical standards until now, attention has been focused on a lack of ethnic and racial diversity among the clerks. There are no reliable figures, but the clerkship cadre remains overwhelmingly white.

It was not until the 1940’s that any justice hired either a female or black law clerk.

Justice William O. Douglas hired the first female clerk, Lucille Lomen, in 1944, and it was 22 years before Justice Hugo L. Black hired the second, Margaret Corcoran. The first black clerk, William T. Coleman Jr., who is still practicing law here, was hired by Justice Felix Frankfurter in 1948.

Justice Frankfurter was not, however, ready to hire a woman when the dean of Harvard Law School strongly recommended a former star student in 1960. He turned down Ruth Bader Ginsburg.

    Women Suddenly Scarce Among Justices’ Clerks, NYT, 30.8.2006, http://www.nytimes.com/2006/08/30/washington/30scotus.html?hp&ex=1156996800&en=f7897a410e22d170&ei=5094&partner=homepage

Op-Ed Contributors

The Insanity Defense Goes Back on Trial

July 30, 2006
The New York Times
By MORRIS B. HOFFMAN and STEPHEN J. MORSE

IN June, the Supreme Court upheld a narrow Arizona test for legal insanity, which asked simply whether mental disorder prevented the defendant from knowing right from wrong. Last week, a Texas jury used a similarly narrow test to decide that Andrea Yates was legally insane when she drowned her five children in a bathtub, allegedly to save them from being tormented forever in hell.

Many scientists and legal scholars have complained that tests like these, used by the law to determine criminal responsibility, are unscientific. Given recent advances in our understanding of human behavior and of the brain, these critics argue, the legal test for insanity is a quaint relic of a bygone era.

These criticisms misunderstand the nature of criminal responsibility, which is moral, not scientific. On the other hand, legislation that has eliminated or unduly constrained the insanity defense, often in response to unpopular verdicts of not guilty by reason of insanity, is likewise off the mark. Between these two attacks, the concept of the morally responsible individual seems to be disappearing.

For centuries we have had a rough idea of the categories of people whom we should not hold criminally responsible. Early cases labeled them “the juvenile, possessed or insane.” The idea was that only people capable of understanding and abiding by the rules of the social contract may justly be declared criminally responsible for their breaches. Someone who genuinely believes he has heard God’s voice command him to kill another does not deserve blame and punishment, because he lacks the ability to reason about the moral quality of his action.

In an effort to hold most people accountable, and recognizing both the difficulty of establishing what was in the defendant’s mind at the time of the crime and the defendant’s incentive to lie about it, the law sought to establish strict standards for responsibility. As a result, legal insanity tests were drawn quite narrowly. They did not excuse most defendants whose intentional conduct broke the law, even if they might have suffered from mental disorders or other problems at the time of the crime.

The rise of various materialistic and deterministic explanations of human behavior, including psychiatry, psychology, sociology and, more recently, neuroscience, has posed a particular challenge to the criminal law’s relatively simple central assumption that with few exceptions we act intentionally and can be held responsible. These schools of thought attribute people’s actions not to their own intentions, but rather to powerful and predictable forces over which they have no control. People aren’t responsible for their crimes: it’s their poverty, their addictions or, ultimately, their neurons.

Lawyers and policymakers brought these academic explanations into the courts and legislatures, many of which responded to the pressure by expanding the doctrines of mitigation and excuse. Predictably, however, the public tired of many of the broader uses of the defense, especially after John Hinckley Jr. was found not guilty for reason of insanity for the attempted murder of President Ronald Reagan and others. Congress responded by adopting a narrow insanity defense, and many states followed suit. Four states have abolished the insanity defense entirely.

Once we agree that there may be some small percentage of people whose moral cognition is seriously disordered, how can the law identify those people in a way that will not allow the materialism of science to expand the definitions of excusing conditions to include all criminals? That is, if paranoid schizophrenia can provide part of the basis to excuse some criminal acts, why not bipolar disorder, or being angry, or having a bad day, or just being a jerk? After all, a large number of factors over which we have no rational control cause each of us to be the way we are.

The short answer is that we should recognize that the criteria for responsibility — intentionality and moral capacity — are social and legal concepts, not scientific, medical or psychiatric ones. Neither behavioral science nor neuroscience has demonstrated that we are automatons who lack the capacity for rational moral evaluation, even though we sometimes don’t use it. Some people suffer from mental disorder and some do not; some people form intentions and some do not. Most people are responsible, but some are not.

Punishing the deserving wrongdoers among us — those who intentionally violate the criminal law and are cognitively unimpaired — takes people seriously as moral agents and lies at the heart of what being civilized is all about. But being civilized also means not punishing those whom we deem morally impaired by mental disorder. Convicting and punishing a defendant who genuinely believed that God commanded him to kill is not unscientific, it is immoral and unjust.

We should be skeptical about claims of non-responsibility. But, if insanity-defense tests are interpreted sensibly to excuse people who genuinely lacked the ability to reason morally at the time of the crime, and expert testimony is treated with appropriate caution, the criminal justice system can reasonably decide whom to blame and punish.

Wrong insanity verdicts are possible, of course, but wrong verdicts are always possible. We should not respond by abandoning a defense that justice requires. A sensible test for legal insanity, fairly applied, can help prevent the concept of the responsible person from disappearing, either because the law naïvely accepts a cacophony of untestable excuses, or because cynical legislators overreact by permitting the conviction and punishment of blameless defendants.

Morris B. Hoffman is a state trial judge in Denver and a fellow at the Gruter Institute for Law and Behavioral Research. Stephen J. Morse is a professor of law and psychiatry at the University of Pennsylvania.

    The Insanity Defense Goes Back on Trial, NYT, 30.7.2006, http://www.nytimes.com/2006/07/30/opinion/30hoffman.html

Editorial

The Court Under Siege

July 29, 2006
The New York Times

One big thing we’ve learned from watching President Bush’s assault on the balance of powers is that the federal courts are the only line of defense. Congress not only lacks the spine to stand up to Mr. Bush, but is usually eager to accommodate him.

So it is especially frightening to see the administration use the debates over the prisoners at Guantánamo Bay and domestic spying to mount a new offensive against the courts.

Wiretapping: This campaign is most evident in the debate over Mr. Bush’s decision to authorize the interception of Americans’ international phone calls and e-mail.

Mr. Bush and his legal advisers claim the president is free to ignore the 1978 law requiring warrants for such wiretaps, as well as the Constitution, because the eternal war with Al Qaeda gives him commander-in-chief superpowers. But the administration knows the Supreme Court is unlikely to endorse this nonsense. So it has agreed with the chairman of the Senate Judiciary Committee, Arlen Specter, on a bill that is a mockery of judicial process.

Under the bill, Mr. Bush would have the option, but not the obligation, to ask the Foreign Intelligence Surveillance Court to decide whether his spying program is constitutional. The surveillance court was created for one purpose — to review applications for surveillance warrants. It is not the place to make a constitutional judgment.

The case would be heard in secret, and only Mr. Bush’s case would be made because no one would be there to argue against him. There is not even a requirement that the final judgment be made public. Worst of all, if Mr. Bush lost in the secret court, he could appeal. But if he won, there would be no appeal and the case would never go to the Supreme Court.

There is a better way of doing this — a bill by Senator Charles Schumer of New York that would allow groups or people to challenge the spying and let the courts work as they have for two centuries.

Prisoners: Last month, the Supreme Court ruled that Mr. Bush violated the Geneva Conventions and American law by creating military commissions to try prisoners at Guantánamo Bay without any of the accepted safeguards of a judicial process. It rejected Mr. Bush’s notion that he could decide which people deserved civilized treatment and which did not. (Keep in mind that the majority of prisoners at Guantánamo Bay are either low-level Taliban soldiers captured in Afghanistan or innocents turned over to American troops in return for money.)

The court said Congress had to draft a law covering the prisoners that conformed to American standards of justice and to international law. But Congress had barely started hearings before the White House began circulating its own bill, which would simply endorse what Mr. Bush did rather than trying to overcome the court’s objections.

On the Geneva Conventions, for instance, the bill offers a particularly twisted bit of reasoning that says Congress has decided to interpret the conventions in such a way that everything Mr. Bush has done, or will do, conforms with their requirements. But the court firmly endorsed the Geneva Conventions, which include the requirement that a prisoner be present at his trial. The White House bill simply revokes that right.

The White House says it’s showing this draft law to the military lawyers it ignored when it formed its original policies on prisoners. Since the bill essentially mirrors the original policy, we hope those courageous lawyers object once again and that this time, the administration actually listens.

    The Court Under Siege, NYT, 29.7.2006, http://www.nytimes.com/2006/07/29/opinion/29sat1.html

Ohio Supreme Court Rejects Taking of Homes for Project

July 27, 2006
The New York Times
By IAN URBINA

The Ohio Supreme Court ruled unanimously yesterday that a Cincinnati suburb cannot take private property by eminent domain for a $125 million redevelopment project.

The property rights case was the first of its kind to reach a state’s highest court since the United States Supreme Court ruled last year that municipalities could seize property for private development that public officials argue would benefit the community.

The Ohio decision rejected that view, and is part of a broader backlash. Since the ruling last year, 28 state legislatures have passed new protections against the use of eminent domain.

“This is the final word in Ohio, and it says something that I think all Americans feel,” said Dana Berliner, a lawyer with the Institute for Justice, a public-interest law firm in Arlington, Va., who argued on behalf of the homeowners before the Ohio court. “Ownership of a home is a basic right, regardless of what the U.S. Supreme Court may have decided.”

Since the Ohio case was argued based on the state’s Constitution, yesterday’s decision cannot be appealed to the United States Supreme Court, which decides matters involving federal law.

The United States Supreme Court decision last year made it clear that state constitutions could set different standards for property rights.

“The Ohio decision takes the loophole that was left by the U.S. Supreme Court decision and drives a Mack truck right through it,” said Richard A. Epstein, a law professor at the University of Chicago.

Mr. Epstein said the decision was especially surprising coming from the Ohio Supreme Court, which he said had rarely reached unanimous decisions and had often sided with developers. “But this decision indicates that the justices were entirely distrustful of planning officials and developers working under nebulous criteria.”

The Ohio decision involves the city of Norwood, which moved in 2002 to seize about 70 houses for a project to build offices, shops and restaurants in a neighborhood widely viewed to be deteriorating. Virtually all the property owners sold their land voluntarily, often at prices greatly above their audited value, state officials said. All but three of the houses at the site have been bulldozed.

“We’re just grateful that this is still a constitutional republic,” said Joy Gamble, one of the plaintiffs in the lawsuit against the state. “We raised our children in that home, we lived there for 35 years, and we planned to live out our retirement there.”

Mrs. Gamble said that after being evicted in February 2005, she and her husband, Carl, moved in with their daughter across the Ohio River in Independence, Ky.

“We were nervous because we knew that the same developer who built the mall across from us with help from the city and eminent domain was the one who wanted our land,” said Mrs. Gamble, whose house is one of the three still standing on the contested site. “But in the end, the city and developer took it away and the courts gave it back, which makes you feel like there is real justice.”

In a 5-to-4 decision last year in a Connecticut case, Kelo v. City of New London, the United States Supreme Court ruled that economic development is an appropriate use of the government’s power of eminent domain. That decision gave New London the authority to condemn houses in an aging neighborhood to make way for private development.

The legal debate over eminent domain has not been whether governments could condemn private property to build a public amenity like a park or a highway. That power was established by the Fifth Amendment, provided that property owners are given “just compensation.”

The conflict has been over government attempts to take private homes or businesses for redevelopment projects that at least partly benefit private entities.

Two months after the ruling in June 2005, Justice John Paul Stevens, who wrote the majority opinion, said he was bound by the law and legal precedent. But in responding to criticism, he called the outcome “unwise,” and said that had he been a legislator he would have opposed it.

Ms. Berliner of the Institute for Justice said the Ohio decision was a reaction to the growing use of eminent domain by developers and local officials. Since the Kelo decision, more than 5,700 properties nationwide have been threatened with seizure or have been seized through eminent domain, a threefold increase from the numbers before that decision, she said.

The Ohio decision was a blow to Norwood officials, who hoped to gain $2 million a year in tax revenue through the seven-acre project.

“The city is running one hell of a deficit,” said Mayor Thomas Williams, who predicted that the city would run out of money for its operating budget in October. “We’re just trying to generate enough income to keep our doors open.”

The developer, Jeffrey R. Anderson Real Estate, could not be reached for comment on whether the project would go forward.

The 58-page Ohio decision said that while economic factors may be considered in determining whether governments can take private property, the economic benefit to the government and community cannot be the only justification used for seizure.

“For the individual property owner, the appropriation is not simply the seizure of a house,” Justice Maureen O’Connor wrote. “It is the taking of a home, the place where ancestors toiled, where families were raised, where memories were made.”

The decision said that justifying the seizure by claiming that the area is deteriorating was unconstitutional because the term is too vague.

Christopher Maag contributed reporting from Cleveland for this article.

    Ohio Supreme Court Rejects Taking of Homes for Project, NYT, 27.7.2006, http://www.nytimes.com/2006/07/27/us/27ohio.html

White House Bill Proposes System to Try Detainees

July 26, 2006
The New York Times
By DAVID S. CLOUD and SHERYL GAY STOLBERG

WASHINGTON, July 25 — Legislation drafted by the Bush administration setting out new rules on bringing terror detainees to trial would allow hearsay evidence to be introduced unless it was deemed “unreliable” and would permit defendants to be excluded from their own trials if necessary to protect national security, according to a copy of the proposal.

The bill, which officials said was being circulated within the administration, is not final, but it indicates the direction of the administration’s approach for dealing with a Supreme Court decision that struck down the tribunals established to try terror suspects at Guantánamo Bay, Cuba.

The 32-page bill preserves the idea of using military commissions to prosecute terror suspects and makes modest changes in their procedural rules, including several expanded protections for defendants, many of them drawn from the military’s legal code. But the proposal also sets up a possible confrontation with lawmakers who have called for modeling the trials on the military’s rules for courts-martial, which would allow defendants more rights.

The draft measure describes court-martial procedure as “not practicable in trying enemy combatants” because doing so would “require the government to share classified information” and would exclude “hearsay evidence determined to be probative and reliable.”

President Bush reviewed the bill last week in a meeting with his top advisers, according to a senior White House official, who said the advisers told Mr. Bush that they were comfortable with the bill and were ready to present it to military lawyers. When the legislation is in its final form, the administration will have to ask a member of Congress to introduce it.

The White House would not comment on the specifics of the bill.

“We are in the middle of a process of getting reaction from the various stakeholders, and that is why we circulated a draft,” said Dana Perino, a deputy White House press secretary. “We are working to strike a balance of a fair system of justice that deals with terrorists who don’t recognize the rules of war.”

But one former White House official, granted anonymity to discuss internal deliberations, said the administration was circulating the measure among military lawyers at the Pentagon with the intention of winning over Republican senators who have led the calls for using court-martial procedures, including Senator Lindsey Graham of South Carolina, a former military lawyer.

A copy of the draft legislation was provided to The New York Times by an official at an agency that is reviewing it. The copy was labeled “for discussion purposes only, deliberative draft, close hold,” and the official who shared it did so on condition of anonymity. The official did not express an opinion about its contents.

Mr. Graham reviewed the draft briefly last week in a meeting with administration officials but was not given a copy of it. He described the measure as “a good start,” but added, “I have some concerns.” He would not be specific, saying he wanted to withhold judgment until hearing the views of military lawyers.

Mr. Graham praised the administration for engaging in “a collaborative process” and said the measure incorporated some of his suggestions, including the requirement that a military judge be detailed to each commission.

A senior Congressional aide said Senator John McCain, Republican of Arizona, by contrast, is believed to be more adamant that using the existing commissions with modest changes will not suffice, largely because of the danger that American troops could face similar treatment if captured abroad.

Though House Republicans are considered more supportive of the administration’s plan, it could have difficulty passing the Senate without additional changes, said Eugene R. Fidell, the president of the National Institute of Military Justice.

“I believe the sentiment on the Hill is for a much more nuanced approach that tracks much more closely with the procedures used for general courts-martial,” Mr. Fidell said. He called the administration plan “a missed opportunity.”

Rather than requiring a speedy trial for enemy combatants, the draft proposal says they “may be tried and punished at any time without limitations.” Defendants could be held until hostilities end, even if found not guilty by a commission.

Nor does the bill adhere to the military’s rules for the admissibility of evidence and witnesses because “the United States cannot safely require members of the armed forces to gather evidence on the battlefield as though they were police officers,” the proposal says.

The draft bill specifies that no matter how it is gathered, evidence “shall be admissible if the military judge” determines it has “probative value.” Hearsay statements, meaning something a witness has heard but does not know to be true, would be allowed “at the discretion of the judge unless the circumstances render it unreliable or lacking in probative value.”

The bill would also bar “statements obtained by the use of torture” from being introduced as evidence, but evidence obtained during interrogations where coercion was used would be admissible unless a military judge found it “unreliable.”

The provision allowing defendants to be excluded from a trial to prevent them from hearing classified evidence against them is likely to be among the more controversial aspects of the proposal. The bill notes that “members of Al Qaeda cannot be trusted with our nation’s secrets.” But the bill specifies that the “exclusion of the accused shall be no broader than necessary” and requires that a declassified summary of the information be given to defendants.

One of the most difficult issues the administration faces is whether a provision of the Geneva Conventions, known as Common Article Three, applies to detainees; the Supreme Court ruled that it did. The draft measure says explicitly that the Geneva Conventions “are not a source of judicially enforceable individual rights,” meaning that in the future, terror suspects like Salim Ahmed Hamdan, a Yemeni held at Guantánamo whose case resulted in the Supreme Court ruling, cannot file lawsuits saying their Geneva Convention rights were violated.

Common Article 3 prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment” of detainees. Administration lawyers have warned that the provision could lead to war crimes charges against American troops who use overly harsh interrogation tactics. The draft bill attempts to remove that concern by saying that a law signed last year by Mr. Bush on the treatment of detainees would “fully satisfy” the article’s requirement for humane treatment.

Officials said the bill was drafted by Steven G. Bradbury, acting assistant attorney general. On Tuesday, Attorney General Alberto R. Gonzales met with Senator John W. Warner of Virginia, the Republican chairman of the Armed Services Committee, about the administration’s proposal. Mr. Gonzalez later went to the Pentagon to brief senior civilian and military officials, including the judge advocates general from each of the services, a Pentagon official said.

Getting the support of uniformed Pentagon lawyers could prove critical to the fate of the measure. At a hearing before the Senate Armed Services Committee earlier this month, each of the judge advocates general said that, like some lawmakers, they preferred a system for trying detainees that relied on the Uniform Code of Military Justice, which governs court-martial proceedings.

That was at odds with testimony from civilian lawyers from the Departments of Defense and Justice, who had said that they believed the military code was inappropriate for prosecuting terror suspects and recommended that Congress retain the administration’s military commission system. Pentagon officials said they were still open to suggested changes from the military lawyers.

Eric Ruff, the Pentagon spokesman, said Defense Secretary Donald H. Rumsfeld “is asking that draft legislation be reviewed by everyone from a legal as well as policy perspective, and he would like them to provide feedback on what the effects might be on the ability of our military to carry out its various missions.”

Kate Zernike contributed reporting for this article.

    White House Bill Proposes System to Try Detainees, NYT, 26.7.2006, http://www.nytimes.com/2006/07/26/washington/26detain.html?hp&ex=1153972800&en=9426e5f672f2826b&ei=5094&partner=homepage

Kennedy relative takes murder appeal to high court

Wed Jul 12, 2006 8:50 PM ET
Reuters

NEW HAVEN, Connecticut (Reuters) - Kennedy relative Michael Skakel filed a petition with the U.S. Supreme Court on Wednesday in a bid to overturn his conviction for the 1975 murder of his 15-year-old neighbor Martha Moxley.

Skakel, 45, the nephew of Sen. Robert Kennedy's widow, Ethel, was 15 at the time of the murder and lost an appeal against his conviction to the Connecticut Supreme Court in January.

His lawyers have vowed to take his case to the nation's highest court, arguing that Connecticut's five-year statute of limitations had expired when he was charged in with the murder in 2000.

"Today's petition requests that the United States Supreme Court consider the state of Connecticut's failure to play by its own rules in its treatment of Mr. Skakel," his attorney, former U.S. Solicitor General Theodore Olson, said in a statement.

Skakel's lawyers are also seeking a new trial in Connecticut, arguing that he had ineffective legal counsel in 2002.

Evidence in the state trial included testimony by a former classmate who said Skakel boasted three years after the murder that he would get away with it, "because I'm a Kennedy."

Moxley's body was found on the lawn of her parents' home in the affluent town of Greenwich, Connecticut, next door to the Skakel house. She had been bludgeoned with a golf club that matched a set belonging to Skakel's late mother.

The case added to the aura of tragedy haunting America's most celebrated political family some four decades after the assassinations of its most famous scions, President John F. Kennedy and his brother Robert.

Kennedy family members have faced battles with alcoholism and drug addiction, as well as suicides, courtroom dramas and tragic deaths.

    Kennedy relative takes murder appeal to high court, R, 12.7.2006, http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=2006-07-13T005021Z_01_N12357736_RTRUKOC_0_US-CRIME-SKAKEL.xml

Editorial

The Rule of Law: Recognizing the Power of the Courts, Finally

July 12, 2006
The New York Times

We were pleased to see the Defense Department finally recognize the power of the Supreme Court over prisoners of the military and order the armed forces to follow the Geneva Conventions requirement of decent treatment for all prisoners, even terrorism suspects. It was a real step forward for an administration that tossed aside the Geneva rules years ago and then tried to place itself beyond the reach of the courts.

However, the Pentagon memo released yesterday claimed, falsely, that its prisoner policies already generally complied with the Geneva Conventions — the sole exception being the military commissions created by President Bush and struck down by the high court. That disingenuousness may have simply been an attempt to save face. If so, it was distressing but ultimately not all that significant. What really matters is that Congress bring the military prisons back under the rule of law, and create military tribunals for terrorism suspects that will meet the requirements of the Constitution and the Geneva Conventions.

The other thing that really matters is that the White House actually agrees to obey the law this time.

Yesterday, the Senate Judiciary Committee held the first of three hearings scheduled this week on this issue, and the early results were mixed. Most of the senators, including key Republicans, said they were committed to drafting legislation that did more than merely rubber-stamp the way Mr. Bush decided to set up Guantánamo Bay.

The government’s witnesses, including top lawyers from the Justice and Defense Departments, seemed most interested in arguing that the military commissions were legal. They argued for what would be the worst possible outcome: that Congress just approve what Mr. Bush did and enact exceptions to the Geneva Conventions.

But Lt. Cmdr. Charles Swift of the Navy, who represented Salim Ahmed Hamdan, the prisoner whose case was before the Supreme Court, provided damning evidence about how utterly flawed those commissions were — from military prosecutors. He quoted one, Capt. John Carr of the Air Force (since promoted to major), who condemned “a halfhearted and disorganized effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged.”

The administration has professed its allegiance to the humane treatment of prisoners and to the rule of law before. But repairing the constitutional balance of powers and America’s profoundly damaged global image demand more than lip service.

    The Rule of Law: Recognizing the Power of the Courts, Finally, NYT, 12.7.2006, http://www.nytimes.com/2006/07/12/opinion/12weds1.html

Military Lawyers Prepare to Speak on Guantánamo

July 11, 2006
The New York Times
By NEIL A. LEWIS

WASHINGTON, July 10 — Four years ago, the military’s most senior uniformed lawyers found their objections brushed aside when the Bush administration formulated plans for military commissions at Guantánamo Bay, Cuba. This week, their concerns will get a public hearing as Congress takes up the question of whether to resurrect the tribunals struck down by the Supreme Court.

“We’re at a crossroads now,” said John D. Hutson, a retired rear admiral who was the top uniformed lawyer in the Navy until 2000 and who has been part of a cadre of retired senior military lawyers who have filed briefs challenging the administration’s legal approach. “We can finally get on the right side of the law and have a system that will pass Supreme Court and international scrutiny.”

Admiral Hutson, one of several current and former senior military lawyers who will testify this week before one of the three Congressional committees looking into the matter, plans to urge Congress to avoid trying to get around last month’s Supreme Court ruling.

Beginning shortly after the attacks of Sept. 11, 2001, the military lawyers warned that the administration’s plan for military commissions put the United States on the wrong side of the law and of international standards. Most important, they warned, the arrangements could endanger members of the American military who might someday be captured by an enemy and treated like the detainees at Guantánamo.

But the lawyers’ sense of vindication at the Supreme Court’s 5-to-3 decision is tempered by growing anxiety over what may happen next. Several military lawyers, most of them retired, have said they are troubled by the possibility that Congress may restore the kind of system they have long argued against.

Donald J. Guter, another retired admiral who succeeded Admiral Hutson as the Navy’s top uniformed lawyer, said it would be a mistake for Congress to try to undo the Supreme Court ruling. Admiral Guter was one of several senior military judge advocates general, known as JAG’s, who after objecting to the planned military commissions found their advice pointedly unheeded.

“This was the concern all along of the JAG’s,” Admiral Guter said. “It’s a matter of defending what we always thought was the rule of law and proper behavior for civilized nations.”

One of the more intriguing hearings will be held Thursday as the current top military lawyers in the Navy, Army, Air Force and Marines testify before the Senate Armed Services Committee. The main issue at stake will be whether they express the same concerns of those out of uniform who have been critical of the administration’s approach.

Longstanding custom allows serving officers to give their own views at Congressional hearings if specifically asked, and some in the Senate expect the current uniformed lawyers to generally urge that Congress not stray far from the Uniform Code of Military Justice, the system that details court-martial proceedings.

Senator Bill Frist, the Republican leader, told reporters on Monday that he did not expect the Senate to take up any legislation on the issue until at least after the August recess of Congress.

The opportunity to rewrite the laws lies in the structure of the Supreme Court’s ruling, which emphasized that Congress had not explicitly approved deviations from ordinary court-martial proceedings or the Geneva Conventions.

The court majority said the military commissions as currently constituted were illegal because they did not have the same protections for the accused as do the military’s own justice system and court-martial proceedings. In addition, the court ruled that the commissions violated a part of the Geneva Conventions that provides for what it said was a minimum standard of due process in a civilized society.

In response, some legislators have said they will consider rewriting the law to make that part of the Geneva Conventions, known as Common Article 3, no longer applicable.

“We should be embracing Common Article 3 and shouting it from the rooftops,” Admiral Hutson said. “They can’t try to write us out of this, because that means every two-bit dictator could do the same.”

He said it was “unbecoming for America to have people say, ‘We’re going to try to work our way around this because we find it to be inconvenient.’ ”

“If you don’t apply it when it’s inconvenient,” he said, “it’s not a rule of law.”

Brig. Gen. David M. Brahms, a retired officer who was the chief uniformed lawyer for the Marine Corps, said he expected experienced military lawyers to try to persuade Congress that the law should not be changed to allow the military commissions to go forward with the procedures that the court found unlawful.

“Our central theme in all this has always been our great concern about reciprocity,” General Brahms said in an interview. “We don’t want someone saying they’ve got our folks as captives and we’re going to do to them exactly what you’ve done because we no longer hold any moral high ground.”

Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee, which will hold its hearing on Tuesday, said: “The first people we should listen to are the military officers who have decades of experience with these issues. Their insights can help build a system that protects our citizens without sacrificing America’s ideals.”

Underlying the debate over how and whether to change the law on military commissions is a battle over the president’s authority to unilaterally prescribe procedures in a time of war. The Supreme Court’s decision was a rebuke to the administration’s assertions that President Bush’s powers should remain mostly unrestricted in a time of war.

Most military lawyers say they believe that few, if any, of the Guantánamo detainees could be convicted in a regular court-martial.

Lt. Col. Sharon A. Shaffer of the Air Force, the lawyer for a Sudanese detainee who has been charged before a military commission, said she was confident that she would win an acquittal for her client, who is suspected of being an accountant for Al Qaeda, under court-martial rules.

“For me it was awesome to see the court’s views on key issues I’ve been arguing for years,” Colonel Shaffer said.

The majority opinion, written by Justice John Paul Stevens, said the two biggest problems with the commissions were that the military authorities could bar defendants from being present at their own trial, citing security concerns, and that the procedures contained looser rules of evidence, even allowing hearsay and evidence obtained by torture, if the judge thought it helpful.

Colonel Shaffer said she was restrained under the rules from calling as a witness a Qaeda informant whose information had been used to charge her client. “I’m going to want for my client to face his accuser,” she said, “and for me to have an opportunity to impeach his testimony.”

    Military Lawyers Prepare to Speak on Guantánamo, NYT, 11.7.2006, http://www.nytimes.com/2006/07/11/washington/11jags.html

Roberts Is at Court's Helm, but He Isn't Yet in Control

July 2, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, July 1 — As the dust settled on a consequential Supreme Court term, the first in 11 years with a change in membership and the first in two decades with a new chief justice, one question that lingered was whether it was now the Roberts court, in fact as well as in name.

The answer: not yet.

Chief Justice John G. Roberts Jr. was clearly in charge, presiding over the court with grace, wit and meticulous preparation. But he was not in control.

In the court's most significant nonunanimous cases, Chief Justice Roberts was in dissent almost as often as he was in the majority. His goal of inspiring the court to speak softly and unanimously seemed a distant aspiration as important cases failed to produce majority opinions and members of the court, including occasionally the chief justice himself, gave voice to their frustration and pique with colleagues who did not see things their way.

The term's closing weeks were particularly ragged. The court issued no decision in a major patent case that had drawn intense interest from the business community, announcing two months after the argument, over the dissents of three justices, that the case had been "improvidently granted" — they should not have agreed to decide it — in the first place.

So if it wasn't yet the Roberts court, what exactly was it?

Perhaps it was the Kennedy court, based on the frequency with which Justice Anthony M. Kennedy cast the deciding vote in important cases.

Or perhaps it was more accurately seen as the Stevens court, reflecting the ability of John Paul Stevens, the senior associate justice in tenure as well as in age, to deliver a majority in the case for which the term will go down in history, the decision on military commissions that rejected the Bush administration's view of open-ended presidential authority.

Chief Justice Roberts did not participate in that case because he had ruled on it a year earlier as an appeals court judge. Based on his vote to uphold the administration's position then, he almost certainly would have joined Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., the newest member of the court, in dissent.

If none of these labels — Roberts court, Kennedy court, Stevens court — seem to fit precisely, it is probably because what the Supreme Court really was in its 2005-6 term was a court in transition.

For the justices, it was a time of testing, of battles joined and battles, for the moment, postponed.

The term's early period of unanimity, during which cases on such contentious subjects as abortion and federalism were dispatched quickly, with narrowly phrased opinions, reflected agreement not on the underlying legal principles but rather on the desirability of moving on without getting bogged down in a fruitless search for common ground. This was especially so in the term's early months, when Justice Sandra Day O'Connor was still sitting but was counting the days until a new justice could take her place.

Once Justice O'Connor retired in late January, after Justice Alito's confirmation, and as the court moved into the heart of the term, some of the court's early inhibitions seemed to fall away. Yet when its most conservative members reached out aggressively to test the boundaries of consensus in the term's major environmental case, Justice Kennedy unexpectedly pushed back and left them well short of their goal.

In that case, Chief Justice Roberts along with Justices Alito, Scalia and Thomas tried to cut back on federal regulators' expansive view of their authority under the Clean Water Act to define wetlands.

Justice Kennedy also deserted the conservatives in a redistricting case from Texas when he found a violation of the Voting Rights Act in the dismantling of a Congressional district that had previously had a Mexican-American majority. The action of the Republican-led Texas Legislature had deprived the Latinos of the ability to elect the candidate of their choice, Justice Kennedy said, leaving Chief Justice Roberts to complain in dissent, "It is a sordid business, this divvying us up by race."

Nonetheless, there was little doubt that in its transition, the court was becoming more conservative. A statistical analysis by Jason Harrow on the Scotusblog Web site showed that Justice Alito voted with the conservative justices 15 percent more often than Justice O'Connor had.

A separate analysis, by the Supreme Court Institute at Georgetown University Law Center, showed that Justice Alito and Chief Justice Roberts had the highest agreement rate of any two justices in the court's nonunanimous cases, 88 percent, slightly higher than the agreement rate between Justice O'Connor and Justice David H. Souter in the first half of the term, 87.5 percent.

Chief Justice Roberts agreed with Justice Scalia in 77.5 percent of the nonunanimous cases and with Justice Stevens, arguably the court's most liberal member, only 35 percent of the time. The least agreement between any pair of justices was between Justices Alito and Stevens, 23.1 percent.

The court decided 69 cases with signed opinions in the term that began on Oct. 3 and ended on June 29. Nearly half were decided without dissent, a greater number than usual, although not dramatically so. Sixteen cases were decided by five-justice majorities, either 5 to 4 or 5 to 3, a proportion very close to the 10-year average.

One measure of the court's shift to the right is in dissenting votes. In the previous term, the justice who dissented least often was Stephen G. Breyer, who dissented in 10 of the term's 74 decisions. But this term, he had the second-highest number of dissents, 16; Justice Stevens had the most, 19. Justice Thomas and Justices Ruth Bader Ginsburg and Souter were also frequent dissenters. Of those who served the full term, Chief Justice Roberts had the fewest dissents, seven. Justice Kennedy had the second fewest, with nine.

Chief Justice Roberts's dissents, while few, came in some important cases. In addition to dissenting from the Voting Rights Act portion of the Texas redistricting decision, he also dissented from a decision reopening a 20-year-old death penalty case on the basis of new evidence; a federalism case, in which the majority found the states not immune from private bankruptcy suits; and a ruling that invalidated the personal assertion of authority by John Ashcroft, the former attorney general, to penalize doctors in Oregon who follow that state's Death With Dignity Act and prescribe lethal doses of medication for terminally ill patients who request it.

The court's next term, which begins Oct. 2, looms as a major test of the justices' fortitude and ability to work together, with cases challenging precedents on abortion and affirmative action already on the docket.

With the court having indicated in Hamdan v. Rumsfeld, the military commission case, that lawsuits now pending in the lower courts on behalf of dozens of detainees at Guantánamo Bay, Cuba, are still alive, the justices are likely to have further opportunities to address the profound issues of presidential power and judicial authority that these cases raise. This time, the chief justice will not need to stay silent, and the country that is just getting to know him will hear his voice.

Following are summaries of the term's major rulings.

Presidential Power

The court repudiated the Bush administration's plan to use military commissions to try Guantánamo detainees, ruling 5 to 3 that the commissions were unauthorized by statute and violated a provision of the Geneva Conventions.

The majority opinion in Hamdan v. Rumsfeld, No. 05-184, by Justice Stevens, set minimum procedural protections that any future commissions, even those authorized by Congress, would have to provide. Justices Kennedy, Souter, Ginsburg and Breyer joined the opinion. Justices Scalia, Thomas and Alito dissented. Chief Justice Roberts, who had voted as an appeals court judge to uphold the commissions, did not participate.

Elections

A splintered decision rejected a challenge to the Republican-driven mid-decade redistricting of Texas's Congressional map, finding that it was not an impermissible partisan gerrymander. Justice Kennedy wrote the opinion in League of United Latin American Citizens v. Perry, No. 05-204. Agreeing with the judgment on the gerrymander challenge were Chief Justice Roberts and Justices Alito, Scalia and Thomas. Justices Stevens and Breyer dissented. Justices Souter and Ginsburg expressed no view on the issue, making the vote 5 to 2 to 2.

In the same case, the court ruled that the dismantling of a district in southwestern Texas with a Latino majority, an action the State Legislature had taken to shore up the faltering prospects of the Republican incumbent, violated the Voting Rights Act. On this question, Justice Kennedy spoke for a 5-to-4 majority that included Justices Stevens, Souter, Ginsburg and Breyer.

The court voted 6 to 3 to strike down Vermont's campaign finance law, which both limited the amount that candidates could spend on their own campaigns and placed the country's lowest ceilings on contributions to candidates from individuals and political parties.

The fragmented majority did not offer a unified approach to contribution limits, leaving the court's path in this area uncertain. Justice Breyer wrote the controlling opinion in the case, Randall v. Sorrell, No. 04-1528, joined by Chief Justice Roberts and Justice Alito. Justices Kennedy, Thomas and Scalia joined the judgment.

Criminal Law

In Georgia v. Randolph, No. 04-1067, the court held that when the police lack a search warrant, they cannot enter a home if one occupant objects, even if another occupant gives permission. The vote was 5 to 3, with Justice Alito not participating. In his majority opinion, Justice Souter said the decision comported with "widely shared social expectations" about privacy in the home. Chief Justice Roberts filed his first dissenting opinion in this case. Justices Scalia and Thomas also voted in dissent.

The court ruled that evidence the police find when they search a home to execute a search warrant can be admitted in court despite an officer's failure to observe the constitutional requirement to "knock and announce" before entering. Justice Scalia, writing for the 5-to-4 majority, said the ordinary rule against admitting unconstitutionally obtained evidence should not apply in this circumstance — nor, he implied, in many other circumstances currently governed by the "exclusionary rule."

This case, Hudson v. Michigan, No. 04-1360, was argued for a second time after Justice Alito joined the court; his vote with the majority determined the outcome. The others in the majority were Chief Justice Roberts and Justices Thomas and Kennedy.

The court was unanimous in ruling that inmates facing execution by lethal injection can invoke a federal civil rights law to challenge the state's choice of drugs and the manner in which they are administered. The decision, Hill v. McDonough, No. 05-8794, opened the door to lawsuits that would be prohibited by tight restrictions on petitions for habeas corpus. Justice Kennedy wrote the opinion.

The court ruled 5 to 3 that new evidence in a Tennessee murder case, including DNA evidence, sufficiently undermined the prosecution's theory of the case to require a new federal court hearing for the man who was convicted and sentenced to death for the crime 21 years ago.

The case, House v. Bell, No. 04-8990, was the first in which the court factored the results of modern DNA testing into consideration of whether a prisoner might qualify for a chance at habeas corpus that would otherwise be prohibited by procedural obstacles. Justice Kennedy wrote for the majority. Chief Justice Roberts dissented, along with Justices Scalia and Thomas. Justice Alito did not participate.

The court ruled 6 to 3 that foreign criminal defendants who have not been notified of their right under an international treaty to contact one of their country's diplomats are not entitled to special accommodation from courts in the United States. The decision, Sanchez-Llamas v. Oregon, No. 04-10566, rejected claims brought under the Vienna Convention on Consular Relations by foreign citizens convicted in Oregon and Virginia. Chief Justice Roberts wrote for the majority. Justices Breyer, Stevens and Souter dissented.

In a unanimous opinion, the court ordered a new trial for an inmate on South Carolina's death row on the ground that an evidentiary rule used in that state's courts had prevented the inmate from putting on a complete defense. Justice Alito, writing his first opinion for the court, said the rule was irrational and arbitrary. The case was Holmes v. South Carolina, No. 04-1327.

The court was deeply split on a basic question of death penalty law: the validity of the death penalty statute in Kansas under which a death sentence is automatic if the jury finds that the mitigating evidence and aggravating evidence are of equal weight. Voting 5 to 4 in an opinion by Justice Thomas, the court upheld the law, which the State Supreme Court had declared unconstitutional. Justice Alito's vote, following a reargument after he joined the court, made the difference. Justices Souter, Stevens, Ginsburg and Breyer dissented in the case, Kansas v. Marsh, No. 04-1170.

The court considered defendants' rights to cross-examine the state's witnesses, a right protected by the Confrontation Clause of the Sixth Amendment, in a pair of cases that were decided in a single opinion by Justice Scalia.

In the first part of the opinion in Davis v. Washington, No. 05-5224, the court was unanimous in ruling that a crime victim's emergency telephone call to 911 can be introduced as evidence at trial, even if the victim is not present for cross-examination, because a call to 911 does not produce the kind of "testimonial statement" to which the Confrontation Clause is addressed.

The court then went on to hold, by a vote of 8 to 1, with Justice Thomas dissenting, that a crime victim's statement to police officers who arrive at a scene should be considered "testimonial" if the police are investigating the crime rather than providing emergency assistance. Such a statement should therefore be banned from the trial if the person who gave it is not available for cross-examination, Justice Scalia said.

In another Sixth Amendment case, on the right to the assistance of counsel, the court ruled 5 to 4 that defendants who are wrongly deprived of the right to hire a lawyer of their choice are entitled to have a conviction overturned without the need to show that the first-choice lawyer would have achieved a better result. Justice Scalia wrote the opinion in the case, United States v. Gonzalez-Lopez, No. 05-352, joined by Justices Stevens, Souter, Ginsburg and Breyer.

Government Authority

The court ruled 6 to 3 that John Ashcroft, the former attorney general, acted without legal authority when he declared that doctors in Oregon who followed the procedures of that state's Death With Dignity Act to help patients commit suicide would lose their federal prescription rights and thus forfeit, as a practical matter, their ability to practice medicine.

No statute authorized the attorney general to take such action unilaterally contrary to "the background principles of our federal system," Justice Kennedy said in the majority opinion. The decision, Gonzales v. Oregon, No. 04-623, was a rebuff of the Bush administration, which had embraced Mr. Ashcroft's personal fight against assisted suicide and carried on the case after he left the government.

Chief Justice Roberts joined a dissenting opinion written by Justice Scalia. Justice Thomas also dissented. Justice Alito was not yet on the court when the case was decided, with Justice O'Connor in the majority, on January 17.

A pair of decisions on the question of state immunity from suit, also issued in January, before Justice Alito joined the court, gave strong indications that the Rehnquist court's federalism battles were far from over.

The court was unanimous in permitting a disabled Georgia prison inmate's lawsuit against the state to go forward under the Americans With Disabilities Act. But the unanimity was achieved only because the court limited the decision, Goodman v. Georgia, No. 04-1203, to little more than the statement of a truism: that Congress has the power to make the states liable to lawsuit when they violate the Constitution.

In this case, the inmate claimed that his mistreatment had been so egregious as to violate not only the disabilities law, but also the Constitution. Justice Scalia's opinion said that to this extent, the lawsuit could proceed.

In the second decision, the court split 5 to 4 in ruling that states are not immune from private lawsuits brought under federal bankruptcy law. Justice O'Connor joined the majority opinion by Justice Stevens in this case, Central Virginia Community College v. Katz, No. 04-885. The dissenters were Chief Justice Roberts and Justices Scalia, Kennedy and Thomas, who wrote the dissenting opinion supporting state immunity.

The court ruled that as a matter of constitutional due process, the government must take reasonable steps to make sure that homeowners have been notified before it sells a house for nonpayment of taxes. Chief Justice Roberts wrote for the 5-to-3 majority in this case, Jones v. Flowers, No. 04-1477. Justices Thomas, Scalia and Kennedy dissented, and Justice Alito did not participate.

The justices ruled 7 to 1 that the Postal Service may be sued by people who trip over packages that letter carriers have carelessly left in their path. The majority opinion by Justice Kennedy in this case, Dolan v. United States Postal Service, No. 04-848, was based on an interpretation of the Federal Tort Claims Act, not on the Constitution. Justice Thomas dissented, and Justice Alito did not participate.

Environment

A fractured decision in the term's major environmental case, defining federal jurisdiction over wetlands in the Clean Water Act, did not produce a majority opinion but did retain the ability of the government to continue enforcing the 1972 statute vigorously.

The court split 4 to 1 to 4 in the case, Rapanos v. United States, No. 04-1034, with Justice Kennedy in the middle. One group of four — Justices Scalia, Thomas and Alito, and Chief Justice Roberts — denounced federal regulators' open-ended approach to wetlands as "beyond parody" and would have redefined the term to land adjacent to open water and actually wet most of the time.

The other foursome, Justices Stevens, Souter, Ginsburg and Breyer, would have deferred to the longstanding judgment of the Army Corps of Engineers that a "wetland" can often appear dry and can be miles from a body of water, as long as it sometimes performs a filtering or runoff-control function. Justice Kennedy voted with the first group to send the case back to a lower court, but he proposed a standard much closer to that of the Stevens group.

In a second case under the Clean Water Act, the court ruled unanimously that operators of hydroelectric dams must meet a state's water quality requirements to qualify for a federal license. Justice Souter wrote the opinion in this case, S. D. Warren Company v. Maine Board of Environmental Protection, No. 04-1527.

Religion

In a significant application of the Religious Freedom Restoration Act, the court ruled 8 to 0 that a small religious sect based in Brazil has the right to import a hallucinogenic tea that the federal government had wanted to seize as a banned narcotic.

The tea, known as hoasca, is central to the sect's rituals, Chief Justice Roberts noted in his opinion for the court. He said the government had not met the religious freedom act's demanding standard for applying a generally applicable law — federal narcotics law, in this instance — in a way that impinges on religious observance. Justice Alito did not participate in the case, Gonzales v. O Centro Espírita Beneficente União do Vegetal, No. 04-1084.

Education

Voting 8 to 0, the court upheld a federal law that requires universities to forfeit all federal financing if any part of the university does not provide military recruiters with the same access to students as it provides other potential employers.

The law, known as the Solomon Amendment, was challenged by a coalition of law schools that objected to the military's exclusion of openly gay men and women. The law schools argued that their First Amendment rights to free speech and association had been violated by the requirement that they open their doors to military recruiters.

Writing for the court in this case, Rumsfeld v. Forum for Academic and Institutional Rights, No. 04-1152, Chief Justice Roberts said the speech in question was that of the government, not of the law schools, which he noted remained free to criticize the military and to express their views on its policies. Justice Alito did not participate.

The court ruled 6 to 2 that parents who disagree with a public school system's special-education plan for their children have the legal burden of proving that the plan will fail to provide the "appropriate" education that a federal law guarantees to children with disabilities. Justice O'Connor wrote the decision in the case, Schaffer v. Weast, No. 04-698. Chief Justice Roberts did not participate, and Justice Alito was not yet on the court.

Separately, the court ruled 6 to 3 that parents who prevail at a special-education hearing are not entitled to reimbursement for the cost of hiring expert witnesses. Justice Alito wrote this opinion, Arlington Central School District v. Murphy, No. 05-18. Justices Souter, Breyer and Stevens dissented.

Employees' Rights

The court gave employees substantially enhanced protection against retaliation for complaining about discrimination on the job. Justice Breyer wrote the opinion in the case, Burlington Northern & Santa Fe Railway Company v. White, No. 05-259, which interpreted the anti-retaliation provision of the Civil Rights Act of 1964.

The court defined retaliation broadly as any "materially adverse" employment action that "might have dissuaded a reasonable worker" from making the complaint. Eight justices joined the majority opinion, and Justice Alito filed a separate concurring opinion.

Addressing the free-speech rights of government workers, the court ruled 5 to 4 that the Constitution does not protect public employees against retaliation for what they say in the course of performing their assigned duties.

Justice Kennedy's majority opinion in this case, Garcetti v. Ceballos, No. 04-473, drew a distinction between public employees' official speech, which he said supervisors were entitled to control, and their speech as citizens contributing to "civic discourse," for which they retained constitutional protection. The dissenters were Justices Stevens, Souter, Breyer and Ginsburg.

Abortion

The justices papered over, at least for this term, their fundamental differences on abortion, ruling narrowly and unanimously in a case from New Hampshire on access to abortion for teenagers facing medical emergencies. In an opinion by Justice O'Connor, her last before leaving the bench, the court reaffirmed that a medical-emergency exception was constitutionally required in a law that placed obstacles, like a parental-notice requirement and a waiting period, in the path of teenagers seeking abortions.

The more difficult question in the case, Ayotte v. Planned Parenthood of Northern New England, No. 04-1144, was that of what to do about New Hampshire's failure to include such an exception in its parental notice law. The justices sent the case back to the federal appeals court in Boston, which had banned enforcement of the law in its entirety, even for teenagers not facing a medical emergency.

That "most blunt remedy" would be justified, Justice O'Connor said, only if it was clear that New Hampshire's legislature, which enacted the law in 2003, would have preferred no law at all to one with the necessary health exception. Otherwise, she said, the appeals court should come up with a more limited remedy for the constitutional problem.

Patents

Indicating new interest in intellectual property law, the justices considered several patent cases but failed to offer much guidance in this burgeoning legal area.

The court handed a limited victory to eBay in its patent dispute with MercExchange, which successfully sued eBay for patent infringement on the method behind the online auction company's "Buy It Now" feature. The United States Court of Appeals for the Federal Circuit, which has sole jurisdiction over patent appeals, then granted an injunction against eBay's use of the technology, under the view that an injunction should automatically follow a finding of infringement.

In a unanimous opinion by Justice Thomas, the justices instructed the appeals court to make a case-by-case determination rather than apply an automatic injunction rule. But the opinion, eBay v. MercExchange, No. 05-130, left it unclear what presumptions and factors should go into that determination, and it was evident that the justices themselves had not agreed on a standard.

    Roberts Is at Court's Helm, but He Isn't Yet in Control, NYT, 5.7.2006, http://www.nytimes.com/2006/07/02/washington/02scotus.html

Supreme Court Gives Cross in San Diego a Reprieve

July 4, 2006
The New York Times
By RANDAL C. ARCHIBOLD

LOS ANGELES, July 3 — A long-running legal battle over a 29-foot-tall cross atop one of the highest hills in San Diego took a new twist on Monday when the United States Supreme Court issued a stay temporarily blocking a lower court order forcing the city to remove it.

Justice Anthony M. Kennedy, without comment, issued the stay pending a further order from the court. The action blocked a ruling by a district court that would have imposed daily fines of $5,000 beginning on Aug. 1 if the city had not taken down the cross.

The stay gave a flicker of hope to supporters of the 20-ton white cross who have been on the losing side of most federal and state court rulings since an atheist, Philip K. Paulson, sued in 1989. Mr. Paulson argued that the cross, in a city property park in the La Jolla district, was an unconstitutional preference of one religion over another.

It was unclear how long the stay would remain in effect. People on both sides differed over whether it suggested a leaning of the court or whether a long-term stay was in the offing.

Supporters of the cross, atop 800-foot-high Mount Soledad, had asked the Supreme Court for an emergency stay of the lower court ruling after the United States Court of Appeals for the Ninth Circuit refused to grant a stay and scheduled a hearing on the latest appeal for October.

That is well after the Aug. 1 deadline and may have had the effect of bringing down the cross, because Mayor Jerry Sanders, who generally supports it, had said he would sooner take it down than pay the fines.

"Justice Kennedy has to believe four other members of the court would agree with him that this case has merit and has national implications," said Phil Thalheimer, the chairman of San Diegans for the Mount Soledad National War Memorial. "It is huge."

Mr. Thalheimer noted that three years ago the Supreme Court denied another appeal in the case and said the fact that Justice Kennedy issued the order the day before Independence Day was "the most important thing for me," because "we want the freedom to express religion and faith."

Mr. Paulson's lawyer, James E. McElroy, said it was not unusual for a justice to issue such an order and called it more a technicality than any reading of the merits.

"All it says," Mr. McElroy said, "is 'Hold on, I'll get back to you with my decision.' "

The first cross was built on the spot in 1913 and figured prominently in Easter sunrise services. The latest was built in 1954 to replace one that had fallen in a windstorm. It was dedicated on Easter Sunday that year as a Korean War veterans' memorial.

After Mr. Paulson sued, the group that built and maintains the cross surrounded it with commemorations of the war dead, including concentric walls with plaques. Mr. Paulson argued that the additions served just to camouflage the true purpose of the cross, to promote Christianity.

Defenders of the cross and city lawyers argue that the cross, with or without the memorial plaques, was intended as a tribute to war dead.

    Supreme Court Gives Cross in San Diego a Reprieve, NYT, 4.7.2006, http://www.nytimes.com/2006/07/04/us/04cross.html

The Court Enters the War, Loudly

July 2, 2006
The New York Times
By ADAM LIPTAK

JOHN C. YOO, a principal architect of the Bush administration's legal response to the terrorist threat, sounded perplexed and a little bitter on Thursday afternoon. A few hours earlier, the Supreme Court had methodically dismantled the legal framework that he and a few other administration lawyers had built after the Sept. 11, 2001, attacks.

"What the court is doing is attempting to suppress creative thinking," said Professor Yoo, who now teaches law at the University of California, Berkeley. "The court has just declared that it's going to be very intrusive in the war on terror. They're saying, 'We're going to treat this more like the way we supervise the criminal justice system.' "

While in the Justice Department's Office of Legal Counsel from 2001 to 2003, Mr. Yoo helped write a series of memorandums setting out a bold and novel legal strategy to find, hold, question and punish the nation's enemies. The memorandums said the Geneva Conventions do not apply to people the administration designates as enemy combatants. They contemplated the use of highly coercive interrogation techniques. They justified secret surveillance.

The court's decision in Hamdan v. Rumsfeld, Professor Yoo said, may signal the collapse of the entire enterprise. "It could affect detention conditions, interrogation methods, the use of force," he said. "It could affect every aspect of the war on terror."

He was not overstating his case. True, the decision itself — holding that the government could not try detainees held at Guantánamo Bay, Cuba, for war crimes in a particular way — was narrow, given that it directly affected only 10 men and did not address the administration's broader contention that it can hold those men and hundreds of others without charges forever. And Congress may yet put some or all of the president's programs on firmer legal footing.

But the effect of the decision, constitutional lawyers across the political spectrum agreed, could devastate the administration's main legal justifications for its campaign against the terrorist threat.

"The mood music of this opinion so lacks the traditional deference to the president," said John O. McGinnis, who served in the Justice Department from 1987 to 1991 and now teaches law at Northwestern, "that it would seem to have implications for his other programs."

The administration had built its case in part on a vote by Congress, taken a week after Sept. 11, that authorized the president to "use all necessary and appropriate force" against those who participated in and supported the attacks. The administration has relied on that authorization as legal support for several of its programs.

In 2004, the Supreme Court endorsed a part of this argument, but Justice John Paul Stevens, writing for the majority in Hamdan, was having none of it. There is, he said "nothing in the text or legislative history" of the authorization "even hinting that Congress intended to expand or alter" existing laws concerning military trials.

The opinion, Professor Yoo said, seemed to require Congress to specify a laundry list of powers before the president can act.

"I worked on the authorization," he added. "We wrote it as broadly as possible. In past wars, the court used to let the president and Congress figure out how to wage the war. That's very different from what's happening today. The court said, 'If you want to do anything, you have to be very specific and precise about it.' "

The logic of the ruling and its requirement that Congress directly authorize presidential actions even in wartime has broad implications. For one thing, said Laurence H. Tribe, a law professor at Harvard, it seems to destroy the administration's argument that Congress blessed the National Security Agency's domestic surveillance program when it voted for the authorization.

"That argument is blown out of the water and is obliterated," Professor Tribe said.

Justice Stevens also took aim at the administration's chief constitutional argument, the one that critics call "Article II on steroids."

Because Article II of the Constitution, among other things, anoints the president as commander in chief, Professor Yoo and other administration lawyers have argued the president can ignore or override laws that seem to limit his authority to conduct war. In the current struggle against terrorism, they argue, the entire world is the battlefield.

Perhaps not any more. Steven G. Calabresi, a law professor at Northwestern and a founder of the Federalist Society, the conservative legal group, said this second argument is also in trouble.

"The court is certainly not embracing the broader Article II power," he said.

Indeed, a footnote in the majority opinion, one sure to be read closely, seems tailored to address these other controversies by rejecting the argument that the president is free to ignore Congressional limitations on his power.

"Conceivably the court had in mind controversies like the N.S.A. terrorist surveillance program" in crafting the footnote, said Curtis A. Bradley, a former Bush administration lawyer who now teaches law at Duke.

There are supporters of the N.S.A. program who say that the Hamdan decision does not affect it. They note that a 2002 appeals court decision said that Congress "could not encroach on the president's constitutional power" to conduct warrantless surveillance to obtain foreign intelligence.

The wholesale rejection of the administration's positions in Hamdan may have its roots in part in judicial hostility toward the memorandums Professor Yoo helped prepare several years ago. The justices in the majority, said Professor McGinnis, "have been so skeptical of a variety of legal interpretations coming out of the executive branch, like the so-called torture memos, that they are not giving the president any deference."

But some justices seemed to leave a door open, suggesting that the decision is not so much a judicial attack on executive power as it is an insistence that Congress, rather than a small group of administration lawyers, must play a leading role in formulating the response to terror.

"Where, as here, no emergency prevents consultation with Congress," Justice Stephen G. Breyer wrote in a brief concurrence that three other justices joined, "judicial insistence upon that consultation does not weaken our nation's ability to deal with danger. To the contrary, that insistence strengthens the nation's ability to determine — through democratic means — how best to do so."

But Professor Yoo was not inclined to accept the decision as a triumph of the democratic process. Instead, he saw it as a judicial usurpation of the president's power to protect the nation. "The court is saying we're going to be a player now," he observed ruefully.

    The Court Enters the War, Loudly, NYT, 2.7.2006, http://www.nytimes.com/2006/07/02/weekinreview/02liptak.html

After Ruling, Uncertainty Hovers at Cuba Prison

June 30, 2006
The New York Times
By TIM GOLDEN

GUANTÁNAMO BAY, Cuba, June 29 — As the Supreme Court prepared to rule on the Bush administration's plan to try terror suspects before special military tribunals here, the commander of Guantánamo's military detention center was asked what impact the court's decision might have on its operations.

"If they rule against the government, I don't see how that is going to affect us," the commander, Rear Adm. Harry B. Harris, said Tuesday evening as he sat in a conference room in his headquarters. "From my perspective, I think the direct impact will be negligible."

The Defense Department repeated that view on Thursday, asserting that the court's sweeping ruling against the tribunals did not undermine the government's argument that it can hold foreign suspects indefinitely and without charge, as "enemy combatants" in its declared war on terror.

Privately, though, some administration officials involved in detention policy — along with many critics of that policy — were skeptical that Guantánamo could or would go about its business as before. "It appears to be about as broad a holding as you could imagine," said one administration lawyer, who insisted on anonymity because he was not authorized to discuss the ruling. "It's very broad, it's very significant, and it's a slam."

For the moment, the effect of the court's ruling on the detention and interrogation operations at Guantánamo is likely to be as political as it is practical.

Construction crews went to work Thursday morning as usual at Camp Six, putting final touches on a hulking, $24 million concrete structure that is to be the permanent, medium-security facility for terror detainees.

President Bush and other officials have said repeatedly of late that they have yet to find a better place to incarcerate the dangerous men still held at Guantánamo, and there is no indication that the administration has seriously begun to widen its consideration of those possibilities.

But administration officials said Thursday that they would have no choice but to start thinking anew about the problem.

Over the last six weeks, the military custodians at Guantánamo have been rocked by desperate protests — the suicides of three detainees who hanged themselves from the steel-mesh walls of their small cells, the intentional drug overdoses of at least two other prisoners, and a riot against guards in a showcase camp for the most compliant detainees. Those events, in turn, set off new waves of criticism of the camp from foreign governments, legal associations and human rights groups.

Thursday, in rejecting the administration's elaborate plan to try Guantánamo detainees by military commission, as the tribunals are called, the court struck at one of the first ramparts the administration built to defend itself against criticism that Guantánamo was a "black hole" in which men declared to be enemies of the United States were stripped of rights guaranteed by the Constitution.

"It strengthens calls for solving 'the Guantánamo problem,' " the administration lawyer said. "Not because it deals with the detention issue directly, but because it removes the argument that soon there would be more legal process there."

While officials at the White House counsel's office, the Justice Department and the Pentagon begin considering how to seek Congressional authorization for a new version of military commissions or perhaps to prosecute terror suspects in military courts-martial, Defense Department officials said Guantánamo would operate much as before.

"Guantánamo serves as an important detention and intelligence facility," said a senior Pentagon spokesman, Bryan Whitman. "These are dangerous people. Many have vowed to go back to the battlefield if released. It enables us to thwart future attacks."

Only 10 of the approximately 450 detainees now held at Guantánamo have been formally charged before the military commissions. Officials declined to say whether those detainees — who include Salim Ahmed Hamdan, a onetime driver for Osama bin Laden who was the plaintiff in the Supreme Court case — might now be moved back out of the maximum-security cells in which they have been held since pretrial hearings for the commissions began to accelerate in early April.

The court's ruling is expected to jump-start litigation in more than 100 district court cases on behalf of the detainees, and could also allow for new cases, officials and lawyers for the detainees said. Those cases cover a wide range of issues dealing with the prisoners' treatment, including their medical attention and how they are interrogated.

"What the decision says is that the government cannot hold these prisoners lawlessly," said Joseph Margulies, a lawyer with the MacArthur Justice Center in Chicago who has defended one of the military commission defendants and is the author of a new book, "Guantánamo and the Abuse of Presidential Power."

"It is now incumbent on the government to come into federal court and demonstrate the lawfulness of the detentions," Mr. Margulies said. "It cannot hold people in conditions that are cruel and degrading. It cannot apply coercive interrogation techniques."

Military and intelligence officials at Guantánamo said they had stopped using such interrogation methods, and had taken many steps over the last two years to treat the detainees more humanely. Now, however, issues like how detainees on hunger strikes should be force-fed will again be litigated.

Officials said the ruling was also likely to influence a long-running debate within the administration over whether to explicitly apply a minimum standard from the Geneva Conventions to the treatment of all military detainees.

The debate has focused on a proposed Pentagon directive that would establish guidelines for interrogating detainees as well as on a draft field manual for Army interrogators.

Some officials, including lawyers in the military services and the State Department, have advocated drawing the language of those documents directly from Article 3 of the Geneva Conventions, which sets out that minimum standard for the treatment of captured fighters and others in conflicts that do not involve nation states.

Other officials, led by Vice President Dick Cheney's chief of staff, David S. Addington, have opposed any direct reference to Article 3. These officials argued in part that Mr. Bush rejected that standard when he determined in 2002 that terror detainees should be treated humanely even though the conventions did not apply to the conflict in which they were involved, officials familiar with the debate said.

In his majority opinion, Justice John Paul Stevens said that the United States was legally bound by Common Article 3, as the provision is known (it is common to all four Geneva Conventions). He said the article "affords some minimal protection" to detainees even when the forces they represent are not signatories to the conventions themselves.

The court's ruling was also a setback to the administration's litigation strategy in cases involving the detention and prosecution of terror suspects. That strategy, according to current and former officials, has been to press for the most expansive interpretation of executive power — and the toughest military commissions possible — and to back down only if the courts required it.

Federal courts previously ruled in the administration's favor in several important decisions involving Guantánamo. And despite the qualms of some legislators, the Congress made no significant effort to intervene in detention policy until Senator John McCain, Republican of Arizona, began his successful push last summer to prohibit the cruel, inhumane or degrading treatment of terror detainees held by the military.

However the policies on prisoner treatment at Guantánamo are ultimately resolved, the administration has already quickened the pace of its efforts to repatriate as many of the detainees as possible. Some 300 have been sent home, either for continued detention by their own governments or to be released outright.

In Washington on Thursday, President Bush repeated that he hoped to find "a way to return people from Guantánamo to their home countries." He added, however, that some of the detainees "need to be tried in our courts."

    After Ruling, Uncertainty Hovers at Cuba Prison, NYT, 30.6.2006, http://www.nytimes.com/2006/06/30/washington/30gitmo.html?hp&ex=1151726400&en=c4e57afd0b0bd044&ei=5094&partner=homepage

Justices, 5-3, Broadly Reject Bush Plan to Try Detainees

June 30, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, June 29 — The Supreme Court on Thursday repudiated the Bush administration's plan to put Guantánamo detainees on trial before military commissions, ruling broadly that the commissions were unauthorized by federal statute and violated international law.

"The executive is bound to comply with the rule of law that prevails in this jurisdiction," Justice John Paul Stevens, writing for the 5-to-3 majority, said at the end of a 73-page opinion that in sober tones shredded each of the administration's arguments, including the assertion that Congress had stripped the court of jurisdiction to decide the case.

A principal flaw the court found in the commissions was that the president had established them without Congressional authorization.

The decision was such a sweeping and categorical defeat for the administration that it left human rights lawyers who have pressed this and other cases on behalf of Guantánamo detainees almost speechless with surprise and delight, using words like "fantastic," "amazing" and "remarkable."

Michael Ratner, president of the Center for Constitutional Rights, a public interest law firm in New York that represents hundreds of detainees, said, "It doesn't get any better."

President Bush said he planned to work with Congress to "find a way forward," and there were signs of bipartisan interest on Capitol Hill in devising legislation that would authorize revamped commissions intended to withstand judicial scrutiny.

The ruling marked the most significant setback yet for the administration's broad expansions of presidential power.

The courtroom was, surprisingly, not full, but among those in attendance there was no doubt they were witnessing a historic event, a defining moment in the ever-shifting balance of power among branches of government that ranked with the court's order to President Richard M. Nixon in 1974 to turn over the Watergate tapes, or with the court's rejection of President Harry S. Truman's seizing of the nation's steel mills, a 1952 landmark decision from which Justice Anthony M. Kennedy quoted at length.

Senator Arlen Specter, Republican of Pennsylvania and chairman of the Judiciary Committee, introduced a bill immediately and said his committee would hold a hearing on July 11, as soon as Congress returned from the July 4 recess. Mr. Specter said the administration had resisted his effort to propose similar legislation as early as 2002.

Two Republican senators, Lindsey Graham of South Carolina and Jon Kyl of Arizona, said in a joint statement that they were "disappointed" but that "we believe the problems cited by the court can and should be fixed."

"Working together, Congress and the administration can draft a fair, suitable and constitutionally permissible tribunal statute," they added.

Both overseas and in the United States, critics of the administration's detention policies praised the decision and urged Mr. Bush to take it as an occasion to shut down the Guantánamo prison camp in Cuba.

"The ruling destroys one of the key pillars of the Guantánamo system," said Gerald Staberock, a director of the International Commission of Jurists in Geneva. "Guantánamo was built on the idea that prisoners there have limited rights. There is no longer that legal black hole."

The majority opinion by Justice Stevens and a concurring opinion by Justice Kennedy, who also signed most of Justice Stevens's opinion, indicated that finding a legislative solution would not necessarily be easy. In an important part of the ruling, the court held that a provision of the Geneva Conventions known as Common Article 3 applies to the Guantánamo detainees and is enforceable in federal court for their protection.

The provision requires humane treatment of captured combatants and prohibits trials except by "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people."

The opinion made it clear that while this provision does not necessarily require the full range of protections of a civilian court or a military court-martial, it does require observance of protections for defendants that are missing from the rules the administration has issued for military commissions. The flaws the court cited were the failure to guarantee the defendant the right to attend the trial and the prosecution's ability under the rules to introduce hearsay evidence, unsworn testimony, and evidence obtained through coercion.

Justice Stevens said the historical origin of military commissions was in their use as a "tribunal of necessity" under wartime conditions. "Exigency lent the commission its legitimacy," he said, "but did not further justify the wholesale jettisoning of procedural protections."

The majority opinion was joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, who wrote a concurring opinion focusing on the role of Congress. "The court's conclusion ultimately rests upon a single ground: Congress has not issued the executive a blank check," Justice Breyer said.

The dissenters were Justices Clarence Thomas, Antonin Scalia and Samuel A. Alito Jr. Each wrote a dissenting opinion.

Justice Scalia focused on the jurisdictional issue, arguing that Congress had stripped the court of jurisdiction to proceed with this case, Hamdan v. Rumsfeld, No. 05-184, when it passed the Detainee Treatment Act last December and provided that "no court, justice, or judge" had jurisdiction to hear habeas corpus petitions filed by detainees at Guantánamo Bay.

The question was whether that withdrawal of jurisdiction applied to pending cases. The majority held that it did not.

Justice Thomas's dissent addressed the substance of the court's conclusions. In a part of his opinion that Justices Scalia and Alito also signed, he called the decision "untenable" and "dangerous." He said "those justices who today disregard the commander in chief's wartime decisions" had last week been willing to defer to the judgment of the Army Corps of Engineers in a Clean Water Act case. "It goes without saying that there is much more at stake here than storm drains," he said.

Chief Justice John G. Roberts Jr. did not take part in the case. Last July, four days before Mr. Bush nominated him to the Supreme Court, he was one of the members of a three-judge panel of the federal appeals court here that ruled for the administration in the case.

In the courtroom on Thursday, the chief justice sat silently in his center chair as Justice Stevens, sitting to his immediate right as the senior associate justice, read from the majority opinion. It made for a striking tableau on the final day of the first term of the Roberts court: the young chief justice, observing his work of just a year earlier taken apart point by point by the tenacious 86-year-old Justice Stevens, winner of a Bronze Star for his service as a Navy officer in World War II.

The decision came in an appeal brought on behalf of Salim Ahmed Hamdan, a Yemeni who was captured in Afghanistan in November 2001 and taken to Guantánamo in June 2002. According to the government, Mr. Hamdan was a driver and bodyguard for Osama bin Laden. In July 2003, he and five others were to be the first to face trial by military commission. But it was not until the next year that he was formally charged with a crime, conspiracy.

The commission proceeding began but was interrupted when the federal district court here ruled in November 2004 that the commission was invalid. This was the ruling the federal appeals court, with Judge Roberts participating, overturned.

Lt. Cmdr. Charles Swift, Mr. Hamdan's Navy lawyer, told The Associated Press that he had informed his client about the ruling by telephone. "I think he was awe-struck that the court would rule for him, and give a little man like him an equal chance," Commander Swift said. "Where he's from, that is not true."

The decision contained unwelcome implications, from the administration's point of view, for other legal battles, some with equal or greater importance than the fate of the military commissions.

For example, in finding that the federal courts still have jurisdiction to hear cases filed before this year by detainees at Guantánamo Bay, the justices put back on track for decision a dozen cases in the lower courts here that challenge basic rules and procedures governing life for the hundreds of people confined at the United States naval base there.

In ruling that the Congressional "authorization for the use of military force," passed in the days immediately after the Sept. 11 attacks, cannot be interpreted to legitimize the military commissions, the ruling poses a direct challenge to the administration's legal justification for its secret wiretapping program.

Representative Adam Schiff, a California Democrat who has also introduced a bill with procedures for trying the Guantánamo detainees, said the court's refusal to give an open-ended ruling to the force resolution meant that the resolution could not be viewed as authorizing the National Security Agency's domestic wiretapping.

Perhaps most significantly, in ruling that Common Article 3 of the Geneva Conventions applies to the Guantánamo detainees, the court rejected the administration's view that the article does not cover followers of Al Qaeda. The decision potentially opened the door to challenges, by those held by the United States anywhere in the world, to treatment that could be regarded under the provision as inhumane.

Justice Stevens said that because the charge against Mr. Hamdan, conspiracy, was not a violation of the law of war, it could not be the basis for a trial before a military panel.

    Justices, 5-3, Broadly Reject Bush Plan to Try Detainees, NYT, 30.6.2006, http://www.nytimes.com/2006/06/30/washington/30hamdan.html

     Related http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=05-184&friend=nytimes

News Analysis

Court's Ruling Is Likely to Force Negotiations Over Presidential Power

June 30, 2006
The New York Times
By DAVID E. SANGER and SCOTT SHANE

WASHINGTON, June 29 — The Supreme Court's Guantánamo ruling on Thursday was the most significant setback yet for the Bush administration's contention that the Sept. 11 attacks and their aftermath have justified one of the broadest expansions of presidential power in American history.

President Bush and Vice President Dick Cheney spent much of their first term bypassing Congress in the service of what they labeled a "different kind of war." Now they will almost certainly plunge into negotiations they previously spurned, over the extent of the president's powers, this time in the midst of a midterm election in which Mr. Bush's wartime strategies and their consequences have emerged as a potent issue.

The ruling bolsters those in Congress who for months have been trying to force the White House into a retreat from its claims that Mr. Bush not only has the unilateral authority as commander in chief to determine how suspected terrorists are tried, but also to set the rules for domestic wiretapping, for interrogating prisoners and for pursuing a global fight against terror that many suspect could stretch for as long as the cold war did.

What the court's 5-to-3 decision declared, in essence, was that Mr. Bush and Mr. Cheney had overreached and must now either use the established rules of courts-martial or go back to Congress — this time with vastly diminished leverage — to win approval for the military commissions that Mr. Bush argues are the best way to keep the nation safe.

For Mr. Bush, this is not the first such setback. The court ruled two years ago that the giant prison at Guantánamo Bay, Cuba, was not beyond the reach of American courts and that prisoners there had some minimal rights.

Then, last year, came the overwhelming 90-to-9 vote in the Senate, over Mr. Cheney's strong objections, to ban "cruel, inhumane and degrading" treatment of prisoners. That forced Mr. Bush, grudgingly, to reach an accord with Senator John McCain, Republican of Arizona, on principles for interrogation, which are still being turned into rules.

As seen by Mr. Bush's critics, the court has finally reined in an executive who used the Sept. 11 attacks as a justification — or an excuse — to tilt the balance of power decidedly toward the White House.

"This is a great triumph for the rule of law and the separation of powers," said Bruce Ackerman, a professor of law and political science at Yale. "The administration will have to go back to Congress and talk in a much more discriminating fashion about what we need to do."

Some allies of Mr. Bush reacted bitterly on Thursday, asserting that it was the court, rather than Mr. Bush, that had overreacted.

"Nothing about the administration's solution was radical or even particularly aggressive," said Bradford A. Berenson, who served from 2001 to 2003 as associate White House counsel. "What is truly radical is the Supreme Court's willingness to bend to world opinion and undermine some of the most important foundations of American national security law in the middle of a war."

At least rhetorically, the administration is giving no ground about the reach of the president's powers. Just 10 days ago, speaking here in Washington, Mr. Cheney cited the responses to Watergate and the Vietnam War as examples of where he thought Congress had "begun to encroach upon the power and responsibilities of the president," and said he had come to the White House with the view that "it was important to go back and try to restore that balance."

Since taking office, Mr. Bush and Mr. Cheney have largely tried to do so by fiat, sometimes with public declarations, sometimes with highly classified directives governing how suspects could be plucked from the battlefield or, in the case decided on Thursday, how they would be tried. The president's tone on Thursday, during a news conference with Prime Minister Junichiro Koizumi of Japan, suggested that he recognized he might now have to give ground.

Mr. Bush said he would be taking "the findings" of the Supreme Court "very seriously."

"One thing I'm not going to do, though, is I'm not going to jeopardize the safety of the American people," he said. But then he backtracked a bit, saying he would "work with Congress" to give legal foundation to the system he had already put in place.

To some degree, the court may have helped Mr. Bush out of a political predicament. He has repeatedly said he would like to close the detention center at Guantánamo, a recognition that the indefinite imprisonment of suspects without trial and the accusations that they have been mistreated were seriously undercutting American credibility abroad. But he set no schedule and said he was waiting for the court to rule.

"The court really rescued the administration by taking it out of this quagmire it's been in," said Michael Greenberger, who teaches the law of counterterrorism at the University of Maryland law school.

Now Congress, with the court's encouragement, may help the president find a way forward. For Senator Lindsey Graham, Republican of South Carolina, who said a legislative proposal on military commissions he sent to the White House 18 months ago "went nowhere," the ruling was a welcome restoration of the balance of power.

"The Supreme Court has set the rules of the road," Mr. Graham, a former military lawyer, said, "and the Congress and the president can drive to the destination together."

Supporters of the president emphasized that the question of how to balance suspects' rights against the need for intelligence on imminent attacks was always a daunting challenge, and that the ruling did not change that.

In fact, said Jack Goldsmith, who headed the Justice Department's Office of Legal Counsel in 2003 and 2004, the fact that no second attack has occurred on American soil is an achievement of the administration that is now complicating its political situation.

"The longer the president and the administration successfully prevent another attack," Mr. Goldsmith said, "the more people think the threat has abated and the more they demand that the administration adhere to traditional civil liberties protections."

In today's less panicky national mood, tough measures that few dared question as American forces first moved into Afghanistan, and then Iraq, are now the subject of nightly debate on cable television and of a small flotilla of court challenges.

But history suggests that this pendulum swing was inevitable. It took years, but history came to condemn the internment of Japanese-Americans during World War II, and to question Lincoln's suspension of habeas corpus during the Civil War.

Sooner or later, that same reversal was bound to happen to Mr. Bush and Mr. Cheney.

The question is how far it will swing back while they are still in office and while what Mr. Bush calls "the long war" continues around the globe.

    Court's Ruling Is Likely to Force Negotiations Over Presidential Power, NYT, 30.6.2006, http://www.nytimes.com/2006/06/30/washington/30assess.html

Justices reject Guantanamo tribunals

Updated 6/30/2006 12:10 AM ET
USA TODAY
By Joan Biskupic and Laura Parker

WASHINGTON — The fate of more than 400 detainees at Guantanamo Bay, Cuba, was thrown into question when the Supreme Court rejected President Bush's plan to hold military tribunals for foreign terrorism suspects.

In a 5-3 vote Thursday that brought a dramatic end to the court's term, the justices said Bush exceeded his authority by setting up the trial system without authorization from Congress. The justices said Bush's plan — which would not allow a detainee to see all the evidence against him or attend all court hearings in his case — lacked sufficient protections for detainees. The court said the plan violated the U.S. Military Code of Justice and the Geneva Conventions dealing with prisoners of war.

The five-justice majority led by John Paul Stevens also said a congressional resolution passed just after the Sept. 11, 2001, attacks did not grant Bush as much authority to fight terrorism as his administration claimed. The administration has said the resolution gave Bush the power to impose the tribunal system. The court's finding could have repercussions for other Bush policies, including a secret surveillance program overseen by the National Security Agency.

The ruling came in a case involving Salim Hamdan, a Yemeni accused of being a guard for Osama bin Laden and delivering weapons to al-Qaeda. It forces the administration to devise another way to try foreign terror suspects and possibly to seek Congress' approval.

Bush and Pentagon officials said they were reviewing the ruling. It was unclear what would become of the 14 Guantanamo detainees who have been designated for tribunals at the prison that has spurred international controversy. Bush said he would work with Congress on whether "military tribunals will be an avenue" for terror suspects. Absent action by Congress, Bush could court-martial detainees under military law.

"This is a blockbuster decision," said Sen. John Cornyn, R-Texas, a supporter of Bush. "But (the court) opened the door to a legislative remedy."

Critics of Bush's moves to hold foreigners in Cuba indefinitely and keep them out of civilian courts suggested the prison could be closed. It was set up "to evade the jurisdiction of federal courts," said Gene Fidell of the National Institute of Military Justice. "The whole purpose has been undercut."

Stevens, a World War II veteran, emphasized that Bush cannot go it alone in the war on terrorism. After Stevens read the ruling, Justice Antonin Scalia read an acerbic dissent. Justice Clarence Thomas then read a dissent, noting it was the first time in 15 years on the court he had been moved to announce his dissent. He said Bush, as commander in chief, could form the tribunals.

Scalia and Thomas were joined by Justice Samuel Alito. Chief Justice John Roberts did not participate; he had been on a lower court that upheld Bush's plan. Stevens' majority included Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

GLANCE INSIDE GUANTANAMO BAY

Facts about the U.S. detention center:

- A total of 759 detainees from 49 countries have been held at Guantanamo Bay Naval Base in eastern Cuba, most of them from Afghanistan, Saudi Arabia, Pakistan and Yemen, since January 2002, when the United States began using the base to hold people suspected of links to al-Qaeda or the Taliban.

- The Bush administration has argued that because the base is not U.S. territory, detainees held there are beyond the reach of U.S. civilian courts.

- About 300 detainees have been released or transferred from Guantanamo. The United States now holds about 450 detainees.

- The Pentagon says 136 of the detainees have been approved for release or transfer, but it cannot release them because they are either too dangerous, unwanted by their homelands or are at risk of being tortured if returned home.

- The United States has filed charges against 10 detainees and was preparing to try them in military tribunals until the Supreme Court ruled Thursday that the process was unconstitutional.

- A new wing of the prison, being built for $30 million by a subsidiary of Halliburton Corp., is to open in August, replacing the wire cages some detainees have been held in with a modern complex of concrete and steel.
 

    Justices reject Guantanamo tribunals, UT, 30.6.2006, http://www.usatoday.com/news/washington/2006-06-29-gitmo-decision_x.htm

 

Justices Uphold Most Remapping in Texas by G.O.P.        NYT        29.6.2006
http://www.nytimes.com/2006/06/29/washington/29district.html

Justices Uphold Most Remapping in Texas by G.O.P.

June 29, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, June 28 — The Supreme Court on Wednesday rejected a broad challenge to Texas's controversial Congressional redistricting plan, giving a victory to the Republican Party and the architect of the plan, Tom DeLay, the former House majority leader.

But at the same time, the court ruled that the Texas Legislature violated the Voting Rights Act in redrawing a particular district in southwestern Texas when it adopted the plan in 2003. The Legislature had carved up Laredo, removing 100,000 Mexican-Americans and adding an Anglo population from the Hill Country to shore up the faltering prospects of the Republican incumbent.

The decision means that a Federal District Court in Texas will now have to redraw the boundaries of that district and the surrounding ones. The district court is likely to act in time for the midterm Congressional elections in November, as it did almost exactly 10 years ago when faced with an earlier Supreme Court decision that called for a rapid response.

But it is not clear whether the change back to a Latino majority in the district would enable the Democrats to defeat the incumbent, Henry Bonilla, who received only 8 percent of the district's Latino vote in 2002, the court's decision said.

The ruling also cleared the way for other states to join Texas in adopting the approach that was challenged in the case: setting aside the tradition of redrawing Congressional districts only after the once-a-decade census, instead using a change of political control in the state governments as reason to reshape their maps. But there was no indication that there would be any rush to do so.

In political terms, the ruling was something of a vindication for Mr. DeLay, who stepped down from his leadership post and resigned from Congress this year after being indicted last year in Texas on charges of illegally routing campaign contributions to Texas Republicans. His indictment was related to his effort to win control of the Texas Legislature in 2002; it was that development that allowed the redistricting to go forward, helping Republicans to win six additional House seats in Texas in 2004.

With only Justice Anthony M. Kennedy joining both parts of the decision, the court looked in two directions in its most important voting rights case of the decade, rejecting the statewide gerrymandering claim brought by Democrats and other plaintiffs while accepting the Voting Rights Act challenge in southwestern Texas, brought by the Mexican American Legal Defense and Educational Fund. The case produced six separate opinions, a total of 123 pages.

On the gerrymander question, only two justices, John Paul Stevens and Stephen G. Breyer, found the Texas plan completely invalid, calling it a violation of "the state's constitutional duty to govern impartially."

Justice Kennedy's opinion for a plurality of justices — on two sections of the opinion he spoke only for himself — kept open the theoretical possibility that a partisan gerrymander might someday be found unconstitutional. But that prospect appeared remote. Despite finding that the Texas Legislature appeared to have acted "with the sole purpose of achieving a Republican congressional majority," Justice Kennedy said the case did not provide a "workable test" for deciding "how much partisan dominance is too much."

On the Voting Rights Act question, the majority's strong disapproval of what the Republicans did in southwestern Texas showed that the statute remains a crucial tool for minorities who can show that their right to equal participation in the political process has been impaired.

"In essence the state took away the Latinos' opportunity because Latinos were about to exercise it," Justice Kennedy said in his majority opinion.

The decision was based on Section 2 of the Voting Rights Act, one of the law's permanent provisions, which guarantees to minorities the right to "participate in the political process and to elect representatives of their choice." A separate provision, Section 5, is up for renewal and has become bogged down in Congress because of objections from some Republicans in the House.

The three-judge Federal District Court in Austin that had upheld the plan in its entirety must now redraw the district lines in southwestern Texas before the November election.

Although the Texas attorney general's office said in an official statement that only "one district must be partially redrawn," any changes would have ripple effects in neighboring districts, and the court's opinion clearly contemplated a broader remedy. "The districts in South and West Texas will have to be redrawn," Justice Kennedy said, without specifying a number or procedure.

Justice Kennedy was joined in the Voting Rights Act part of the decision by the court's four most liberal members, Justices David H. Souter and Ruth Bader Ginsburg along with Justices Stevens and Breyer. This was, in fact, the only part of the decision that five justices signed.

Justice Kennedy's rejection of the statewide gerrymander challenge, brought by Texas Democrats and others, had the support of a majority of the court for his conclusion, but not for his analysis.

Justices Antonin Scalia and Clarence Thomas agreed because they believe, as they said in a case from Pennsylvania in 2004, that claims of partisan gerrymandering were categorically invalid and could never be considered by a federal court.

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. took no position on whether such claims could ever be brought. With that proviso, they said Justice Kennedy had resolved the issue correctly in this case, League of United Latin American Citizens v. Perry, No. 05-204.

Justices Souter and Ginsburg agreed with one relatively minor part of Justice Kennedy's analysis, his rejection of the argument that a mid-decade plan that relied on census data from the beginning of the decade, not taking account of inevitable population shifts, violated the constitutional requirement of one person one vote.

But on the more general question of how to assess a redistricting plan for impermissible partisanship, these two justices said there was "nothing to be gained" by revisiting an issue on which the court was deadlocked. They said they would keep the issue alive for future cases but would not express a view now.

With only Justices Stevens and Breyer voting to invalidate the Texas plan as an invalid gerrymander, that left the vote on the gerrymander part of the opinion at 5-to-2-to-2.

The Texas plan was adopted in 2003 after a protracted struggle during which Democratic legislators fled the state to deprive the Legislature of a quorum. It replaced a plan drawn by the federal court in 2002 when the Republican-controlled Senate and the Democratic-controlled House failed to agree.

The court-ordered plan was greatly resented by the Republicans, who viewed it as unfairly carrying forward the 1990 plan, drawn by the Democratic-controlled Legislature, despite the fact that Republicans had made statewide gains in the intervening decade. So when the Republicans picked up the State House in 2002, they made redistricting a priority. Success was immediate. The Congressional delegation went from 17 Democrats and 15 Republicans in 2002 to 11 Democrats and 21 Republicans after the 2004 election.

The plan dismantled the districts of several Democratic incumbents. In one portion of the opinion on Wednesday, the court rejected a challenge brought on behalf of black voters to the redrawing of a Dallas district long represented by a white Democrat, Martin Frost, who had black support. Justice Kennedy said that with only 25.7 percent of the population, African-Americans were not numerous enough to assert that their "effective control" of the district had been taken away.

Of the many strands to the complex case, the court's treatment of the southwestern Texas district was perhaps the most surprising. Chief Justice Roberts wrote a strongly worded dissenting opinion, which Justice Alito signed. "It is a sordid business, this divvying us up by race," he said.

His dispute with Justice Kennedy was over how to evaluate the challenged district in light of the fact that the Legislature had at the same time created a new district with a Latino majority, running a narrow band, 300 miles long, from Austin to McAllen, on the Mexican border. Chief Justice Roberts said this district meant that over all, the Latino vote was not impermissibly diluted under the plan.

But the Kennedy majority said that this new district was illegal under the Voting Rights Act and could not offset the loss of the Laredo district. He said the district was not sufficiently compact and did nothing more than combine "two far-flung segments of a racial group with disparate interests," whose "only common index was race."

    Justices Uphold Most Remapping in Texas by G.O.P., NYT, 29.6.2006, http://www.nytimes.com/2006/06/29/washington/29district.html?hp&ex=1151640000&en=93d882654549a036&ei=5094&partner=homepage

High court saves some best cases for last

Updated 6/25/2006 1:34 AM ET
AP
USA Today

WASHINGTON (AP) — The Supreme Court has had divisive rulings this year on the environment, police power and whistle-blowers, and the justices are not even through with their hardest cases.

The high court is on a tight deadline to finish before July, when justices begin a three-month break that provides time for traveling, teaching classes, writing books and relaxing.

As usual, justices have left some of the most significant cases to the very end. There are 10 rulings left, on issues from a president's wartime powers, capital punishment, Texas' political boundaries and the insanity defense.

The past year has been a time of change. Chief Justice William H. Rehnquist died and a protege, his former law clerk John Roberts, succeeded him.

In addition, the influential Justice Sandra Day O'Connor, the first female justice, retired. She was replaced in January by Samuel Alito.

Justice Anthony M. Kennedy has emerged as an important swing voter — a role previously held by O'Connor. Kennedy wrote the term's two biggest death penalty cases, which made it easier for death row inmates to contest lethal injections and to get DNA evidence before the courts.

Kennedy, a centrist put on the court by President Reagan, also blocked conservatives from dramatically scaling back the Clean Water Act. The 5-4 decision preserves government authority to block development on wetlands as long as the wetlands meet Kennedy's test.

"We have entered the era of the Kennedy court. It's striking what a pivotal role Kennedy has come to play," Duke Law School professor Erwin Chemerinsky said.

In conservative victories, Kennedy wrote a 5-4 decision that said public employees do not have free-speech protections for what they say as part of their jobs. He also broke a 4-4 tie to make it easier for police with search warrants to enter homes without knocking or waiting.

Roberts, in his first term as chief justice, has built a firm conservative voting record, but without Kennedy does not have a solid voting block.

"This is not a court that has a clear solid five votes for doing anything that a conservative majority wants to do," said Stephen Wermiel, a law professor at American University.

Roberts has written seven opinions, all but one unanimous. Among them, he bolstered police power to enter a home to break up a fight without knocking first; upheld a church's use of hallucinogenic tea; and found that the government can force colleges to open campuses to military recruiters despite university objections to the Pentagon's "don't ask, don't tell" policy on gays.

The chief justice has encouraged his colleagues to be more unified in their decision-making. So far, justices have been split 5-4 in just seven of the 59 rulings.

The big test, however, is still ahead.

The most significant case of the year challenges the president's power to order military trials for suspected foreign terrorists held at the Navy prison at Guantanamo Bay, Cuba. Roberts cannot participate because he served on an appeals court panel that backed the Bush administration in the case last year.

Two election cases are still to be decided.

Justices have been asked to throw out all or part of a Texas congressional map promoted by former House Majority Leader Tom DeLay, R-Texas. They also will decide how far states can go to limit spending and donations to political campaigns.

Alito is expected to break a tie in the one death penalty case still undecided, a constitutional test of Kansas' death penalty law. The case was argued the first time before O'Connor's departure. A new argument session was held after his arrival.

It is tough to tell the court's direction so early in the tenures of Roberts and Alito, most court-watchers say.

Justices have lined up some significant cases for next fall, on abortion, public school affirmative action and the environment.

"Justices are willing to test the new lineup right away. Next year is where the rubber is going to hit the road," said John Yoo, a University of California, Berkeley, law professor.

______

 
LIST OF MAJOR HIGH COURT CASES

Some Supreme Court cases still to be decided and the issues involved:

GUANTANAMO TRIALS: Whether President Bush has overstepped his authority with military war-crimes trials for foreigners held at the U.S. prison camp at Guantanamo Bay, Cuba.

TEXAS REDISTRICTING: Whether to throw out all or part of a 2003 congressional map promoted by former House Majority Leader Tom DeLay.

INSANITY: Whether to strike down Arizona's insanity defense law, in an appeal brought on behalf of a schizophrenic teenager who killed a police officer.

CAMPAIGN FINANCE: If Vermont and other states can limit how much money is contributed and spent in political campaigns.

FOREIGN SUSPECTS: If two foreigners convicted of violent crimes in the United States have to be given new trials because police did not tell them they could seek legal help from their countries' governments, as required by a 1969 treaty.

INMATE NEWSPAPERS: Whether states can keep troublesome inmates from reading most newspapers and magazines.

DEATH PENALTY: Whether Kansas' death penalty law is constitutional.

LAWYERS: Whether criminal defendants who are denied the lawyer of their choice, even though they are paying for their own defense, are automatically entitled to a new trial if convicted.

In some of the cases resolved this term, the court:

ASSISTED SUICIDE: Upheld on a 6-3 vote Oregon's one-of-a-kind assisted-suicide law.

CAMPUS RECRUITERS: Ruled unanimously that the government can withhold funding from colleges that won't open their campuses to military recruiters because of the Pentagon's policy on gays.

DEATH PENALTY: Ruled 9-0 that condemned inmates can file special federal court claims that the chemicals used in executions cause unconstitutionally cruel pain; Ruled 5-3 that a Tennessee death row inmate could use new evidence to try to get his conviction overturned.

FREE SPEECH: Scaled back protections for government workers who blow the whistle on official misconduct, on a 5-4 vote.

ABORTION: Reaffirmed 9-0 that states can require parental involvement in abortion decisions and that state restrictions must have an exception to protect the mother's health.

PLAYMATE'S BATTLE: Revived 9-0 former Playboy Playmate Anna Nicole Smith's pursuit of her late husband's oil fortune.

POLICE SEARCHES: Ruled 5-4 vote that judges cannot throw out evidence collected by police who have search warrants but do not properly announce their arrival.

WETLANDS: Ruled 5-4 that the government can block development on wetlands, even those miles away from waterways, as long as regulators prove a significant connection to the waterways.

    High court saves some best cases for last, UT, 25.6.2006, http://www.usatoday.com/news/washington/2006-06-24-scotus_x.htm

Supreme Court Gives Employees Broader Protection Against Retaliation in Workplace

June 23, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, June 22 — The Supreme Court substantially enhanced legal protection against retaliation for employees who complain about discrimination or harassment on the job, in a ruling on Thursday.

The 9-to-0 decision adopted a broadly worded and employee-friendly definition of the type of retaliation that is prohibited by the basic federal law against discrimination in employment.

That law, Title VII of the Civil Rights Act of 1964, prohibits discrimination and prohibits employers from retaliating against workers who complain about discrimination. But the statute does not define retaliation, leading to disarray among the federal appeals courts and uncertainty for employers and employees alike. Under the standard applied by many courts, it has been almost impossible to win a retaliation case unless the retaliation resulted in dismissal.

By contrast, under the standard the justices adopted on Thursday in an opinion by Justice Stephen G. Breyer, any "materially adverse" employment action that "might have dissuaded a reasonable worker" from complaining about discrimination will count as prohibited retaliation. Depending on the context, retaliation might be found in an unfavorable annual evaluation, an unwelcome schedule change, or other action well short of losing a job.

Retaliation claims make up an important and rapidly growing part of employment law. Some 20,000 retaliation cases were filed with the Equal Employment Opportunity Commission in 2004, a number that has doubled since 1992. The cases now account for more than one-quarter of the federal agency's docket.

"This is an exceptionally important decision that changes the law in most of the country," Eric Schnapper, a law professor at the University of Washington who helped represent the plaintiff in the case, said in an interview .

Lawyers representing employers agreed about the decision's significance, but with considerably less enthusiasm. Karen Harned, executive director of the National Federation of Independent Business Legal Foundation, said the ruling would lead to "burdensome" litigation and was "particularly disappointing to small employers."

Daniel P. Westman, an employment lawyer with the firm Morrison & Foerster who advises management, said he expected a "huge effect" from the ruling. Mr. Westman said employers would have to take special care to make sure that an employee who lodges a discrimination complaint does not suffer adverse consequences.

The decision upheld a finding of retaliation by a railroad company against a female maintenance worker who was transferred to less desirable duties within her job category and placed on an unpaid leave for 37 days after she complained about sexual harassment. She was reinstated with back pay after a grievance by her union.

A jury awarded $43,500 to the woman, Sheila White, and the United States Court of Appeals for the Sixth Circuit, in Cincinnati, upheld the judgment. The employer, Burlington Northern & Santa Fe Railway Company, appealed to the Supreme Court, arguing that Ms. White had not suffered the type of "tangible employment action" that met the definition of retaliation.

The Bush administration, rejecting the broader standard used by the Equal Employment Opportunity Commission, argued on behalf of the railroad that only those actions that affect an employee's "compensation, terms, conditions, or privileges of employment" should count as retaliation.

Writing for the court on Thursday, Justice Breyer said this argument reflected a misreading of the two relevant sections of Title VII, the one that defines discrimination and the one that prohibits retaliation. The wording of the two is not the same.

While Title VII bars discrimination on the basis of race, sex and religion in the "terms" and "conditions" of employment, "no such limiting words appear in the anti-retaliation provision," Justice Breyer said. He said there was "strong reason to believe" that Congress intended the protection against retaliation to be broader than the protection against discrimination because it wanted to "deter the many forms that effective retaliation can take," in the workplace and beyond.

Consequently, Justice Breyer said, "the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment."

While agreeing with the other eight justices to uphold the judgment for Ms. White, Justice Samuel A. Alito Jr. disagreed with the standard, which he said was "unclear" and could lead to "topsy-turvy results." He said the retaliation definition should be limited to "only those discriminatory practices" that Title VII forbids. Ms. White suffered from "adverse" and "tangible" employment actions that met that test, he said.

In the majority opinion, Burlington Northern & Santa Fe Railway Company v. White, No. 05-259, Justice Breyer said the standard the court was adopting would not impose a "general civility code" on the workplace. Rather, he said, it would serve to "screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining."

Context and common sense mattered, Justice Breyer said, offering as an example a refusal by an employer to take an employee to lunch. That would usually be nothing more than a "petty slight," he said. But he added: "But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee's professional advancement might well deter a reasonable employee from complaining about discrimination."

The plaintiff, Ms. White, was the only woman working in the railroad's Tennessee Yard in Memphis. Because she had previous experience, she was assigned to operate a forklift, a desirable task among the jobs that "track laborers" performed. After she complained that her immediate supervisor was making inappropriate remarks, she was taken off the forklift.

    Supreme Court Gives Employees Broader Protection Against Retaliation in Workplace, NYT, 23.6.2006, http://www.nytimes.com/2006/06/23/washington/23scotus.html

Court Divided Over Wetlands Protections

June 20, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, June 19 — The Supreme Court on Monday came close to rolling back one of the country's fundamental environmental laws, issuing a fractured decision that, while likely to preserve vigorous federal enforcement of the law, the Clean Water Act, is also likely to lead to new regulatory battles, increased litigation by property owners and a push for new legislation.

With four justices on one side arguing for a sharp restriction in the definition of wetlands that are subject to federal jurisdiction, and four justices on the other arguing for retaining the broad definition that the Army Corps of Engineers has used for decades, Justice Anthony M. Kennedy controlled the outcome in a solitary opinion.

Justice Kennedy said that to come within federal protection under a proper interpretation of the Clean Water Act, a wetland needs to have a "significant nexus" to a body of water that is actually navigable.

He then made clear, in his 30-page opinion, that whether such a relationship existed in any specific case was largely a technical and scientific judgment on which courts should defer to the federal regulators. The four parcels of land at issue in the case, all in Michigan, were likely to meet the definition, he said.

Environmental advocacy groups reacted to the decision, which sends the cases back to an appeals court, as if they had dodged a bullet, which in many respects they had. An opinion for four justices, written by Justice Antonin Scalia, would have stripped protection from many areas that federal regulators have treated as wetlands under the 1972 law.

Justice Scalia's opinion, joined by Chief Justice John G. Roberts Jr. and by Justices Clarence Thomas and Samuel A. Alito Jr., said the Army Corps of Engineers had stretched its authority under the Clean Water Act "beyond parody" by regulating land that contained nothing but storm sewers, drainage ditches and "dry arroyos in the middle of the desert."

He said the agency had trampled on state authority by exercising a "scope of discretion that would befit a local zoning board."

The only wetlands properly subject to federal jurisdiction, Justice Scalia said, are those "with a continuous surface connection" to actual waterways, "so that there is no clear demarcation between 'waters' and wetlands."

The waters to which the wetlands must be adjacent, he continued, are only those that are "relatively permanent, standing or flowing." These are the only bodies of water that come within the statute's reference to "the waters of the United States," he said.

On the other side was Justice John Paul Stevens, joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Accusing the Scalia group of "antagonism to environmentalism," Justice Stevens said the Scalia opinion "needlessly jeopardizes the quality of our waters."

Further, Justice Stevens said, the Scalia group "disregards the deference it owes the executive" as well as "its own obligation to interpret laws rather than to make them."

This, of course, was a sly reference to the slogan often heard in connection with conservative nominations to the federal courts. In effect, Justice Stevens was accusing the Scalia group of judicial activism.

The case, which was argued in February and was the oldest undecided case on the court's docket, was clearly the subject of a major internal battle that undercut any image of good fellowship and unanimity on the Roberts court.

The chief justice himself wrote a brief concurring opinion, noting that "it is unfortunate that no opinion commands a majority of the court." He added: "What is unusual in this instance, perhaps, is how readily the situation could have been avoided."

It was not clear whether he was aiming this comment at Justice Kennedy or at the Army Corps of Engineers, which he said had failed to respond properly to a Supreme Court decision five years ago that rejected federal jurisdiction under the Clean Water Act over isolated ponds visited by migratory birds.

The chief justice noted that the Army Corps had embarked after that decision on issuing new, more limited regulations, but had abandoned the effort. "Rather than refining its view of its authority in light of our decision," he said, "the Corps chose to adhere to its essentially boundless view of the scope of its power." He concluded: "The upshot today is another defeat for the agency."

Given Justice Kennedy's refusal to go along, the extent of that defeat was far from certain. At the least, the Army Corps of Engineers may now feel impelled to embark on a new rulemaking process, leading to a regulation that would incorporate Justice Kennedy's "significant nexus" test.

Under that test, regulators need not show that a wetland is adjacent to, or connected with, a navigable body of water. Rather, it is sufficient to show that it is adjacent to a tributary that itself flows into such waters.

Justice Kennedy said the Corps needed to be more specific in defining the tributaries that count for this purpose. He said it needed to identify those "categories of tributaries" that were "significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters."

The current standard used by the Corps, he said, was too open-ended in permitting regulation of remote drains, ditches and streams that did not affect "the integrity of an aquatic system."

The impact of this approach will become more clear when the appeals court, the United States Court of Appeals for the Sixth Circuit, in Cincinnati, revisits the two decisions that the Supreme Court vacated. With Justice Kennedy agreeing that the appeals court needed to take a fresh look at the cases, there were five votes for a judgment to "vacate and remand."

But as Justice Stevens pointed out, one "unusual feature" of the judgment was that there were not five votes for the standard that the appeals court should apply. The judgments should be reinstated as long as the appeals court finds that Justice Kennedy's test is met, disregarding the test proposed by Justice Scalia, Justice Stevens said.

The appeals court, in two separate cases, ruled against Michigan property owners in their battles with federal regulators. In the lead case, Rapanos v. United States, No. 04-1034, John A. Rapanos, after being informed that three parcels he wanted to develop probably contained regulated wetlands, cleared and filled the land without obtaining a Clean Water Act permit.

The government brought criminal charges against Mr. Rapanos. He was convicted, and the Supreme Court denied review of his case in 2004. The case the court decided on Monday grew out of his appeal in a civil case the government brought against him, in which he faces millions of dollars in fines.

His property is as much as 20 miles away from water that is navigable in the traditional sense. But the parcels are within the drainage systems of Lake Huron and two navigable rivers.

In the second case, Carabell v. United States Army Corps of Engineers, No. 04-1034, the Army Corps denied a permit to a couple who wanted to fill part of their property in order to develop condominiums.

In both cases, the property owners challenged the jurisdiction of the Army Corps both under the Clean Water Act and under the Constitution, arguing that if Congress had conferred such broad jurisdiction in the Clean Water Act, it exceeded its authority under the Commerce Clause.

Justice Scalia's opinion, without directly endorsing the constitutional attack, said the agency's interpretation of its authority "stretches the outer limits of Congress's commerce power." Justice Kennedy, however, said that wetlands as defined by his test "raise no serious constitutional or federalism difficulty."

However the case unfolds from here, it was plain that something went awry in the court's handling of its most high-profile environmental case in years.

Given the structure of the principal opinions, including their relative length and tone, it is possible that Justice Stevens had initially controlled the case and, on the assumption that he had five votes on his side, had assigned it to Justice Kennedy, who then strayed somewhat from the more categorical view of the Stevens four. Although he speaks only for himself, his opinion reads like a majority opinion, while Justice Scalia's opinion reads like a dissent.

    Court Divided Over Wetlands Protections, NYT, 20.6.2006, http://www.nytimes.com/2006/06/20/washington/20wetlands.html?hp&ex=1150862400&en=144cd29fb90fcd6d&ei=5094&partner=homepage

Bush: Guantanamo's future up to Supreme Court

Updated 6/14/2006 11:21 PM ET
USA TODAY
By Laura Parker

President Bush said Wednesday that he'd like to close the U.S. military-run prison at Guantanamo Bay, Cuba, where three detainees committed suicide Saturday. He said he was awaiting a Supreme Court decision about how terrorism suspects there could be tried.

"I'd like to close Guantanamo, but I also recognize that we're holding some people there that are darn dangerous and that we better have a plan to deal with them in our courts," Bush said at a news conference in the White House Rose Garden.

It was the second time in recent weeks that Bush has said he hoped to eventually shut down the prison, where 460 mostly Muslim foreigners are being held as unlawful enemy combatants.

The suicides on Saturday of two Saudis and a Yemeni, who hanged themselves with bedsheets, has increased pressure from groups such as Amnesty International and Human Rights Watch to close the prison. European leaders renewed criticism of the facility and might press the point with Bush when they meet him in Vienna for a European Union summit on June 21.

The White House says detainees are treated fairly and humanely. All receive a review by military officers of their status as enemy combatants and are allowed to contest it. Lawyers for the detainees say they should be charged with crimes or released.

Ten detainees have been charged with crimes.

"The government should be ashamed that it has kept people four years without charges," said Nancy Hollander, a defense lawyer for a detainee.

There have been 41 reported suicide attempts since the prison opened in January 2002. Periodic hunger strikes have taken place. One last month involved 75 detainees.

Bush acknowledged that the prison has damaged the United States' reputation abroad.

"No question, Guantanamo sends a signal to some of our friends — provides an excuse, for example, to say the United States is not upholding the values that they're trying to encourage other countries to adhere to," he said.

He reiterated that the detainees are among the world's most dangerous terrorism suspects and that it is legal to hold them until the war on terrorism ends.

Navy Rear Adm. Harry Harris, commander of Guantanamo, had termed the suicides an act of "asymmetrical warfare" against the United States.

Hollander, the attorney, called the description "despicable."

"The question to ask at some point is what would our government do if an American were being held in a foreign country under similar circumstances?" she said.

James Yee, the former Army chaplain at Guantanamo who was accused as a traitor and later exonerated, said the deaths more likely reflect the despair the inmates have over being held.

"This is a greater indication that these individuals were crying out for help," he said.

The suicides are the first at the prison. The military has said it will conduct a review of its operations there. An Afghan delegation returning from a 10-day visit to Guantanamo said Wednesday that conditions there were "humane."

Bush also said that "eventually, these people will have trials."

Military commissions for the 10 men charged were halted when Salim Ahmed Hamdan, a Yemeni who is accused of serving as a bodyguard for Osama bin Laden and delivering weapons to al-Qaeda, challenged the constitutionality of the military tribunal at which he was scheduled to be tried. The Supreme Court decision on the case is expected before the end of this month.

Mark Denbeaux, a law professor at Seton Hall Law School in New Jersey, said the president doesn't need the high court's ruling to either close the prison or allow detainees to be given hearings challenging the U.S. right to detain them without charges.

"Surely the president is powerful enough to give people he's held for four years a hearing," he said.

Contributing: Joan Biskupic in Washington

    Bush: Guantanamo's future up to Supreme Court, UT, 14.6.2006, http://www.usatoday.com/news/washington/2006-06-14-bush-gitmo_x.htm

Prisoners Gain in Suit Attacking Lethal Injection

June 13, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, June 12 — The Supreme Court opened the door Monday for death-row inmates to challenge the way most states carry out executions by lethal injection.

In its unanimous opinion, the court expressed no view on the constitutionality either of lethal injection in general or of the specific procedures and combination of chemicals that a Florida inmate, Clarence E. Hill, and numerous others around the country have recently challenged in federal court.

The justices addressed themselves solely to the procedural route that such lawsuits must take, and chose the route that is by far the more inmate-friendly from the two options that the case presented.

Nonetheless, it was the tight focus of the case, an appeal by Mr. Hill of a ruling by the federal appeals court in Atlanta, that probably enabled the justices to maintain their unanimity. It remains to be seen how they would rule on the underlying constitutional question of whether the disputed lethal injection method violates the Eighth Amendment's prohibition on cruel and unusual punishment.

Just three weeks ago the court turned down, without comment, a case from Tennessee, Abdur'Rahman v. Bredesen, that presented that issue directly. The justices have also permitted several executions to be carried out by lethal injection, without intervening, while the Florida case was pending.

Federal courts around the country have begun wrestling with the issue, which opponents of the death penalty have brought to the fore in recent months on the basis of a report last year in a British medical journal, The Lancet.

The focus of concern is two of the three chemicals that make up the lethal cocktail used by most states. One is sodium pentothal, an anesthetic, which Mr. Hill argues in his lawsuit is insufficient to make the procedure painless.

The second is pancuronium bromide, which causes muscle paralysis but does not block pain or interfere with consciousness. Studies indicate that while inmates who receive this drug look calm and peaceful as the third chemical, potassium chloride, is administered to stop the heart, they can actually feel intense pain without being able to express themselves.

Mr. Hill's suit maintains that Florida's procedure for administering these three drugs presents a "foreseeable risk of gratuitous and unnecessary pain."

Having been convicted in 1983 of killing a police officer, Mr. Hill had long since run through the ordinary appeals process by the time he filed his suit in state court last December, with his execution set for Jan. 24. After the Florida courts threw the case out, and with the clock running, he turned to federal court with an equally poor result. He was strapped to a gurney, intravenous lines to administer the chemicals already inserted, when Justice Anthony M. Kennedy issued a stay nearly five months ago.

The case was filed under the Civil Rights Act of 1871, a Reconstruction-era law usually referred to as Section 1983, for its placement in the compilation of federal statutes. Section 1983 permits suits against government officials for violation of rights guaranteed by the Constitution or federal laws.

The lower federal courts dismissed the suit, however, on the ground that the only way for an inmate to challenge the method by which he is to be executed is through a petition for a writ of habeas corpus.

While such a petition, like a Section 1983 case, can raise constitutional issues, there is a major problem: both Congress and the Supreme Court have placed high hurdles in the path of inmates seeking habeas corpus. For example, it is almost impossible for an inmate who has filed an initial habeas corpus petition to receive permission to file another one, and Mr. Hill had filed one years earlier. Declaring that his Section 1983 suit was the equivalent of a new habeas corpus petition, the lower courts declared that it was barred.

In his opinion for the Supreme Court on Monday, Justice Kennedy said this analysis was mistaken. He said that while a habeas corpus petition was the only way to challenge the constitutionality of a sentence, Mr. Hill was challenging not his "lethal injection sentence as a general matter," but only the way in which the sentence was to be carried out.

Justice Kennedy noted that if Mr. Hill eventually won his case, Florida would not be barred from executing him by lethal injection but would simply have to use a different protocol.

Mr. Hill is now entitled to pursue his Section 1983 suit in the Federal District Court in Tallahassee, where he filed it in January.

When the case, Hill v. McDonough, No. 05-8794, was argued in April, there was considerable debate over whether Mr. Hill should be required to demonstrate his sincerity by specifying a method acceptable to him. Chief Justice John G. Roberts Jr. was among the justices who appeared to endorse such a requirement. But the justices evidently decided to set that argument aside for now, for the sake of unanimity.

The precedent for the ruling on Monday was a 2004 decision in which the court permitted an inmate to use Section 1983 to challenge a surgical procedure that Alabama proposed to use to gain access to his collapsed veins for the purpose of administering a lethal injection.

    Prisoners Gain in Suit Attacking Lethal Injection, NYT, 13.6.2006, http://www.nytimes.com/2006/06/13/us/13lethal.html?hp&ex=1150257600&en=ecd44db6396c444b&ei=5094&partner=homepage

    Related > http://www.nytimes.com/2006/06/13/us/13lethal.html?hp&ex=1150257600&en=ecd44db6396c444b&ei=5094&partner=homepage

Justices Grant Death Row Inmate a New Hearing in 1985 Tennessee Murder

June 13, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, June 12 — The Supreme Court ruled on Monday that new evidence about a long-ago murder in rural Tennessee, including DNA evidence, raised sufficient doubt about who committed the crime to merit a new hearing in federal court for a man who has spent 21 years on the state's death row.

Justice Anthony M. Kennedy, writing for the 5-to-3 majority, called it "the rare case," and it was: the first time the Supreme Court has factored the result of modern DNA testing into the equation in re-examining a death sentence.

Justice Kennedy emphasized that the court's decision did not exonerate the inmate, Paul G. House, and that the state still had enough evidence against him to "support an inference of guilt." But he said the state's case, when examined in light of the new evidence, was now sufficiently undermined so that "it is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt."

That awkward phrase, with its multiple negatives and oblique structure, is the test the court set in a 1995 decision on how a state prisoner who claimed innocence could receive a federal court hearing that would otherwise be barred by procedural obstacles.

In applying that test to Mr. House's case, the court did not make new law. Rather, the majority's goal appeared to be to show the lower federal courts about how to handle such cases in the future, especially when scientific evidence is available that can undermine the prosecution's case while not completely destroying it.

"All the evidence, old and new, incriminating and exculpatory," must be taken into account, Justice Kennedy said. When an inmate comes to federal court with evidence of innocence, he continued, "the court's function is not to make an independent factual determination about what likely occurred, but rather to assess the likely impact of the evidence on reasonable jurors."

Peter J. Neufeld, a co-director of the Innocence Project, a legal clinic at the Cardozo School of Law in Manhattan, said on Monday that the broader significance of the case was to demonstrate the court's increased sensitivity to the power of scientific evidence to reveal wrongful convictions. In an interview, Mr. Neufeld said the decision showed how an entire prosecution could be called into question if one aspect was undermined.

The decision was also a reminder that the Rehnquist Court's fault lines have not been erased in the Roberts era, with Justice Kennedy continuing to play a crucial, central role.

The three justices who dissented, Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas, did not dispute the majority's legal conclusions so much as its interpretation of the facts. Justice Samuel A. Alito Jr., who was not yet on the court when the case was argued in January, did not vote.

In a dissenting opinion, Chief Justice Roberts reviewed in considerable detail much of the evidence that Justice Kennedy canvassed in the majority opinion.

Chief Justice Roberts said the court should have given more deference to the conclusions of the Federal District Court in Chattanooga, which held a hearing in 1996 and rejected Mr. House's claim of innocence after considering his new evidence.

"By casting aside the district court's factual determinations made after a comprehensive evidentiary hearing, the majority has done little more than reiterate the factual disputes presented below," Chief Justice Roberts said, adding: "Witnesses do not testify in our courtroom, and it is not our role to make credibility findings and construct theories."

The specific question for the Supreme Court in this case, House v. Bell, No. 04-8990, was whether the inmate was entitled to an exception to the general rule that legal issues not properly presented to the state courts are forfeited and may not be brought to federal court through a petition for a writ of habeas corpus.

In a 1995 case, Schlup v. Delo, the Supreme Court opened what it called a "gateway" through this barrier to enable an inmate with a plausible claim of innocence, based on newly discovered evidence, to get before a federal judge and thus prevent a "manifest injustice." The gateway, the court said then, was reserved for the "truly extraordinary" case in which the inmate could present evidence that undermined confidence in the jury's verdict.

In his opinion on Monday, Justice Kennedy identified three aspects of Mr. House's case that, taken as a whole, qualified him to pass through the gateway to a habeas corpus hearing in federal district court.

One was the DNA evidence, which excluded Mr. House as the source of semen found on the murder victim, Carolyn Muncey. The case against Mr. House was circumstantial. The prosecution's theory was that he killed Mrs. Muncey, a neighbor, in the course of raping her. An earlier, much cruder test had identified him as a possible source of the semen. The DNA test showed the semen to be from Mrs. Muncey's husband.

"When the only direct evidence of sexual assault drops out of the case," Justice Kennedy said, "so, too, does a central theme in the state's narrative linking House to the crime."

Justice Kennedy said that new evidence linking the husband, William Hubert Muncey Jr., to the crime was another important part of the picture. Mr. House presented two witnesses who testified that they heard Mr. Muncey make a drunken confession around the time of Mr. House's trial, along with another witness who said she saw Mr. Muncey hit his wife on the night of the murder.

At the trial, the prosecution told the jury that Mrs. Muncey's blood had been found on Mr. House's blue jeans. Mr. House's new evidence raised the prospect that the blood had been spattered from a mishandled vial of Mrs. Muncey's blood. Justice Kennedy said that the "evidentiary disarray" on this question would have prevented "reasonable jurors," had they known of it, "from placing significant reliance on the blood evidence."

    Justices Grant Death Row Inmate a New Hearing in 1985 Tennessee Murder, NYT, 13.6.2006, http://www.nytimes.com/2006/06/13/washington/13scotus.html?_r=1&oref=slogin

Supreme Court Roundup

Court to Weigh Race as Factor in School Rolls

June 6, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, June 5 — The Supreme Court agreed on Monday to rule on what measures, if any, public school systems may use to maintain racial balance in individual schools.

The eventual decision on whether they can take race into account could affect hundreds of school systems in all areas of the country. The court accepted challenges to plans in Louisville, Ky., where the schools were once racially segregated by law, and in Seattle, where segregation was never official but was widespread because of residential patterns.

Federal appeals courts upheld these plans, both of which offer students a choice of schools while taking race into account in deciding which transfer applications to accept. Variations of this approach are common, and have been under legal attack around the country.

The Supreme Court's decision to add the cases to the calendar for its next term, a step that by all appearances was controversial within the court and unexpected outside it, plunged the new Roberts court into one of the country's deepest constitutional debates.

The action came three years after the court upheld a racially conscious admissions plan at the University of Michigan Law School. Writing for the majority in that 5-to-4 decision, Grutter v. Bollinger, Justice Sandra Day O'Connor suggested that, at least in higher education, affirmative action might be necessary for another 25 years.

The new cases do not ask the court to revisit that decision, and the justices are unlikely to do so. But the implications are far-reaching nonetheless. The eventual decision, roughly a year from now, could not only set the court's path in this area but could also shape the climate in which government policies with respect to race will be debated.

One difference between the Michigan decision and the new cases is that while the University of Michigan sought to use affirmative action to achieve a measure of racial balance, the school districts are trying to maintain such a balance.

In December, with Justice O'Connor still on the court, the justices refused to hear a challenge to a racially conscious student assignment plan in the public schools of Lynn, Mass. That plan, which a federal appeals court had upheld, is basically indistinguishable from the plans at issue in the new cases: Parents Involved in Community Schools v. Seattle School District, No. 05-908, and Meredith v. Jefferson County Board of Education, No. 05-915.

What has changed is the Supreme Court itself, with the retirement in January of Justice O'Connor and her replacement by Justice Samuel A. Alito Jr. One lawyer involved in the challenges to the Seattle and Louisville plans, Sharon L. Browne of the Pacific Legal Foundation, a conservative public-interest law firm, expressed the view that this change made the difference.

"I think the writing's on the wall, or at least I hope it is," Ms. Browne said in an interview Monday.

The plans under review in the new cases differ in details that are unlikely to prove constitutionally significant. The Jefferson County, Ky., school board adopted the Louisville plan in 2001, shortly after the school system was declared desegregated and was released from 25 years of federal court supervision.

The "managed choice" plan applies to all schools, kindergarten through 12th grade. In a district that is one-third nonwhite, every school is required to seek a black student enrollment of at least 15 percent and no more than 50 percent.

The Louisville case was taken to the Supreme Court by Crystal D. Meredith, a white parent whose son, Joshua McDonald, did not receive a requested transfer to attend kindergarten in a school that was trying to maintain a sufficient number of black students.

The plan in Seattle, which has struggled for decades to deal with the effects on its school system of segregated housing patterns, applies only to the city's 10 high schools. The policy is one of "open choice," subject to various "tiebreakers," one of which is race. Other factors include geographic proximity and whether a student has a sibling at the desired school, both of which count in favor of an application.

Under the "integration tiebreaker," high schools that deviate by more than 15 percent from the systemwide balance, which is 60 percent nonwhite, must take account of an applicant's race in order not to deviate further.

A group of parents organized as a nonprofit corporation called Parents Involved in Community Schools to fight the plan, and filed the Supreme Court appeal after losing by a vote of 7 to 4 in the United States Court of Appeals for the Ninth Circuit.

Both appeals reached the court in January and evidently provoked a vigorous internal debate among the justices, who considered the Seattle case six times and the Louisville case seven times before issuing the one-line order accepting both. Prolonged review of this sort is unusual.

Briefs are now likely to pour into the court in advance of a November argument; the University of Michigan case drew more than 100 briefs. But one of the more influential analyses may prove to be a brief concurring opinion in the Seattle case by Judge Alex Kozinski, the Ninth Circuit judge whose views carry great weight among legal conservatives.

Describing the Seattle plan as one "that gives the American melting pot a healthy stir without benefiting or burdening any particular group," Judge Kozinski addressed the Supreme Court justices directly, on the assumption that they would soon be reviewing the decision.

"There is much to be said for returning primacy on matters of educational policy to local officials," he said.

These were among the other developments at the court.

Speedy Trial

The court ruled unanimously that a federal defendant's rights under the Speedy Trial Act of 1974 were violated when, while seeking more time to prepare his defense to counterfeiting charges, he signed a statement presented by the trial judge in which he waived any future right to a speedy trial.

With certain exceptions, the federal law requires criminal trials to begin within 70 days after a defendant is charged. The trial for this defendant, Jacob Zedner, did not begin for seven years. Mr. Zedner eventually tried to assert his rights under the law and sought dismissal of the indictment, but two lower federal courts in New York enforced his waiver. He was convicted by a jury and sentenced to five years in prison.

In an opinion by Justice Alito, the Supreme Court ordered the indictment dismissed. The statute does not permit such a waiver, Justice Alito said, noting that the public as a whole, and not only an individual defendant, has an interest in the speedy administration of justice.

The significance of this decision, Zedner v. United States, No. 05-5992, is likely to transcend the particular case. Justice Antonin Scalia refused to sign the paragraph of the opinion in which Justice Alito cited the legislative history of the Speedy Trial Act as further evidence for his interpretation of the statute.

"The use of legislative history is illegitimate and ill advised in the interpretation of any statute," Justice Scalia's concurring opinion declared in what has become a familiar theme from him.

The fact that Justice Alito's paragraph of legislative history remained in the majority opinion, and that Chief Justice John G. Roberts Jr. signed the opinion without comment, indicates that Justice Scalia remains isolated in his view.

Sentencing

The court agreed to decide whether to give retroactive application to a 2004 decision that sharply limited judges' discretion to impose sentences above the thresholds set by sentencing guidelines systems.

The question is whether that decision, Blakely v. Washington, established a "new rule," in which case it is not retroactive, or whether it was a straightforward application of an earlier sentencing ruling, Apprendi v. New Jersey. The deeper issue in the new case, Burton v. Waddington, No. 05-9222, is how to tell a "new rule" from one that is not, a question that comes up with some frequency in habeas corpus cases.

    Court to Weigh Race as Factor in School Rolls, NYT, 6.6.2006, http://www.nytimes.com/2006/06/06/washington/06scotus.html?hp&ex=1149652800&en=d6eb5b9f9b7fe81f&ei=5094&partner=homepage

Invoking Secrets Privilege Becomes a More Popular Legal Tactic by U.S.

June 4, 2006
The New York Times
By SCOTT SHANE

WASHINGTON, June 3 — Facing a wave of litigation challenging its eavesdropping at home and its handling of terror suspects abroad, the Bush administration is increasingly turning to a legal tactic that swiftly torpedoes most lawsuits: the state secrets privilege.

In recent weeks alone, officials have used the privilege to win the dismissal of a lawsuit filed by a German man who was abducted and held in Afghanistan for five months and to ask the courts to throw out three legal challenges to the National Security Agency's domestic surveillance program.

But civil liberties groups and some scholars say the privilege claim, in which the government says any discussion of a lawsuit's accusations would endanger national security, has short-circuited judicial scrutiny and public debate of some central controversies of the post-9/11 era.

The privilege has been asserted by the Justice Department more frequently under President Bush than under any of his predecessors — in 19 cases, the same number as during the entire eight-year presidency of Ronald Reagan, the previous record holder, according to a count by William G. Weaver, a political scientist at the University of Texas at El Paso.

While the privilege, defined by a 1953 Supreme Court ruling, was once used to shield sensitive documents or witnesses from disclosure, it is now often used to try to snuff out lawsuits at their inception, Mr. Weaver and other legal specialists say.

"This is a very powerful weapon for the executive branch," said Mr. Weaver, who has a law degree and is a co-author of one of the few scholarly articles examining the privilege. "Once it's asserted, in almost every instance it stops the case cold."

Robert M. Chesney, a law professor at Wake Forest University who is studying the recent use of the privilege, said the administration's legal strategy "raises profound legal and policy questions that will be the subject of intense debate for the foreseeable future."

Some members of Congress also have doubts about the way the privilege has been used. A bill approved by the House Government Reform Committee would limit its use in blocking whistle-blowers' lawsuits.

"If the very people you're suing are the ones who get to use the state secrets privilege, it's a stacked deck," said Representative Christopher Shays, Republican of Connecticut, who proposed the measure and has campaigned against excessive government secrecy.

Yet courts have almost always deferred to the secrecy claims; Mr. Weaver said he believed that the last unsuccessful assertion of the privilege was in 1993. Steven Aftergood, an expert on government secrecy at the Federation of American Scientists, said, "It's a sign of how potent the national security mantra has become."

Under Mr. Bush, the secrets privilege has been used to block a lawsuit by a translator at the Federal Bureau of Investigation, Sibel Edmonds, who was fired after accusing colleagues of security breaches; to stop a discrimination lawsuit filed by Jeffrey Sterling, a Farsi-speaking, African-American officer at the Central Intelligence Agency; and to derail a patent claim involving a coupler for fiber-optic cable, evidently to guard technical details of government eavesdropping.

Such cases can make for oddities. Mark S. Zaid, who has represented Ms. Edmonds, Mr. Sterling and other clients in privilege cases, said he had seen his legal briefs classified by the government and had been barred from contacting a client because his phone line was not secure.

"In most state secrets cases, the plaintiffs' lawyers don't know what the alleged secrets are," Mr. Zaid said.

More recently the privilege has been wielded against lawsuits challenging broader policies, including the three lawsuits attacking the National Security Agency's eavesdropping program — one against AT&T by the Electronic Frontier Foundation in San Francisco and two against the federal government by the American Civil Liberties Union in Michigan and the Center for Constitutional Rights in New York.

In a filing in the New York case, John D. Negroponte, the director of national intelligence, wrote that allowing the case to proceed would "cause exceptionally grave damage to the national security of the United States" because it "would enable adversaries of the United States to avoid detection." Mr. Negroponte said he was providing more detail in classified filings.

Those cases are still pending. Two lawsuits challenging the government's practice of rendition, in which terror suspects are seized and delivered to detention centers overseas, were dismissed after the government raised the secrets privilege.

One plaintiff, Maher Arar, a Syrian-born Canadian, was detained while changing planes in New York and was taken to Syria, where he has said he was held in a tiny cell and beaten with electrical cables. The other, Khaled el-Masri, a German of Kuwaiti origin, was seized in Macedonia and taken to Afghanistan, where he has said he was beaten and injected with drugs before being released in Albania.

The United States never made public any evidence linking either man to terrorism, and both cases are widely viewed as mistakes. Mr. Arar's lawsuit was dismissed in February on separate but similar grounds from the secrets privilege, a decision he is appealing. A federal judge in Virginia dismissed Mr. Masri's lawsuit on May 18, accepting the government's secrets claim.

One frustration of the plaintiffs in such cases is that so much information about the ostensible state secrets is already public. Mr. Arar's case has been examined in months of public hearings by a Canadian government commission, and Mr. Masri's story has been confirmed by American and German officials and blamed on a mix-up of similar names. The N.S.A. program has been described and defended in numerous public statements by Mr. Bush and other top officials and in a 42-page Justice Department legal analysis.

In the A.C.L.U. lawsuit charging that the security agency's eavesdropping is illegal, Ann Beeson, the group's associate legal director, acknowledged that some facts might need to remain secret. "But you don't need those facts to hear this case," she said. "All the facts needed to try this case are already public."

Brian Roehrkasse, a Justice Department spokesman, said he could not discuss any specific case. But he said the state secrets privilege "is well-established in federal law and has been asserted many times in our nation's history to protect our nation's secrets."

Other defenders of the administration's increasing use of the privilege say it merely reflects proliferating lawsuits.

In all of the N.S.A. cases, for instance, "it's the same secret they're trying to protect," said H. Bryan Cunningham, a Denver lawyer who served as a legal adviser to the National Security Council under Mr. Bush. Mr. Cunningham said that under well-established precedent, judges must defer to the executive branch in deciding what secrets must be protected.

But critics of the use of the privilege point out that officials sometimes exaggerate the sensitivities at risk. In fact, documents from the 1953 case that defined the modern privilege, United States v. Reynolds, have been declassified in recent years and suggest that Air Force officials misled the court.

An accident report on a B-29 bomber crash in 1948 was withheld because the Air Force said it included technical details about sensitive intelligence equipment and missions, but it turned out to contain no such information, said Wilson M. Brown III, a lawyer in Philadelphia who represented survivors of those who died in the crash in recent litigation.

"The facts the Supreme Court was relying on in Reynolds were false," Mr. Brown said in an interview. "It shows that if the government is not truthful, plaintiffs will lose and there's very little chance to straighten it out."

    Invoking Secrets Privilege Becomes a More Popular Legal Tactic by U.S., NYT, 4.6.2006, http://www.nytimes.com/2006/06/04/washington/04secrets.html