History > 2006 > USA > Supreme Court (IV)

In recent cases involving abortion,

global warming and school integration,

Chief Justice John Roberts, right, and Justice Samuel Alito

have been aggressive

and sometimes feisty proponents of conservative views.

By Tim Dillon, USA TODAY

 Bush appointees signal court's new direction

UT        19.12.2006

http://www.usatoday.com/news/washington/2006-12-19-alito-roberts-analysis_x.htm

Bush appointees

signal court's new direction

Updated 12/19/2006 8:07 PM ET
USA Today
News analysis by Joan Biskupic

WASHINGTON — They are President Bush's appointees to the Supreme Court, the products of the administration's efforts to make the court more conservative.

And although most of the major decisions in their first full term together won't be announced for months, Chief Justice John Roberts and Justice Samuel Alito have signaled a readiness to move the court to the right.

In recent cases involving abortion, global warming and school integration, Roberts and Alito have been aggressive and sometimes feisty proponents of conservative views and particularly sympathetic to arguments by the Bush administration.

Their tactics have added flair to the court's public sessions and have contrasted sharply with the tentative approach that moderate Justices Sandra Day O'Connor and Anthony Kennedy often took in disputes over abortion, affirmative action and other key issues.

On an ideologically divided, nine-member court, the now-retired O'Connor was an especially key player because she generally was conservative but sometimes voted with the bench's four more-liberal justices: John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

O'Connor voted with the liberals, for example, in favor of affirmative action in college admissions. O'Connor and Kennedy joined the liberals in backing abortion rights.

Now, Alito has replaced O'Connor, and he has joined the new chief justice — who replaced another conservative, the late William Rehnquist — in beginning to alter the court's course.

During last month's dispute over the Bush administration's decision against regulating carbon dioxide emissions and other so-called greenhouse gases, Roberts and Alito were skeptical about whether the USA is a significant contributor to global warming.

Roberts, echoing a sentiment expressed by an administration lawyer, suggested that federal regulation of emissions from cars and trucks might produce only a "marginal benefit" to the environment. Massachusetts and several other states argued that continued inaction by the U.S. government on car and truck emissions could lead to greater harm to the environment around the world.

The abortion issue

Also last month, Roberts suggested by his questions that he was leaning toward voting to uphold a congressional ban on a midterm abortion procedure that critics call "partial birth."

While Kennedy expressed concern about how such a ban would affect women's health, Roberts — again reflecting a position taken by the Bush administration — challenged abortion rights lawyers who argued that the procedure known medically as "dilation and extraction" was safer than other methods of abortion. (Alito asked no questions during that session.)

And during a dispute this month over school integration programs that allow districts to consider a student's race in making school assignments, Roberts compared such diversity programs in Louisville and Seattle to school segregation policies struck down by the high court a half-century ago in Brown v. Board of Education.

Alito, suggesting that he would support arguments brought by parents of white students who were denied their choice of schools, also bristled at the notion of using race as a factor in efforts to diversify school systems.

He indicated that even if the intent of such programs is admirable, the programs' treatment of students is reminiscent of the "separate but equal" doctrine that the court rejected in Brown.

Legal and political conservatives have been pleased with the new justices' approach.

At the annual meeting of the conservative Federalist Society last month, outgoing Senate Majority Whip Mitch McConnell, R-Ky., praised Roberts' and Alito's confirmation to the high court as "signature achievements" of the Congress that Republicans controlled for more than a decade.

After oral arguments in the school integration cases on Dec. 4, Ward Connerly, a former University of California regent who has fought race-based policies nationwide, said he was heartened by comments from Roberts and Alito and believes the court is headed toward rejecting the Seattle and Louisville programs.

"When people go through the Senate (confirmation) process" for judicial nominees, "you think that you might be getting some insight into their intelligence and demeanor," Connerly said last week. "But you never really know because the hearing process is fraught with theater."

Connerly said he interpreted the session on school integration as a sign that the court was on the verge of a new era — one in which the court would not support programs that consider race to promote diversity.

"It's something whose time has come," Connerly said.

For those who are fighting policies set forth by the Bush administration, the early courtroom performances by Roberts and Alito have been disheartening.

After the arguments in the school integration cases, Theodore Shaw of the NAACP Legal Defense Fund said he walked out of the Supreme Court feeling lower than he has in years.

"If the ruling is in keeping with the way the argument went, it would be a tragedy," Shaw said, adding that school districts across the nation could have their hands tied in trying to promote racial diversity.

Turning-point potential

Roberts, 51, and Alito, 56, shared the bench for five months during the 2005-06 term, which ended in June. The term didn't reveal much about how the court might change under Roberts' leadership.

This term is likely to provide some guidance on the issue. The school integration cases heard this month had the feel of a potentially distinctive turning point for the court in dealing with government programs that have been created as remedies to past discrimination.

After Roberts declared that the constitutional guarantee of equality is intended "to ensure that people are treated as individuals rather than based on the color of their skin," Breyer countered that past rulings by the court had allowed race to be used as a factor in programs to address the lasting effects of segregation.

The liberal justice said "thousands of school districts" could have to change their enrollment policies if the court sets a new path by rejecting such initiatives.

Upcoming cases are likely to further define the conservatism of Roberts and Alito, both of whom were lawyers in the Reagan administration who went on to become U.S. appeals court judges. One dispute revolves around whether taxpayers can challenge Bush administration initiatives that encourage faith-based charities to compete for federal grants for social programs.

Outside the courtroom

Beyond the court, Roberts and Alito have been revealing more of themselves as well.

In a speech before the Federalist Society in November, Alito saluted President Reagan's efforts to curtail judicial involvement in solving societal problems and exhibited self-deprecating humor as he recalled his contentious confirmation hearings before the Senate last January.

Alito noted that the Senate Hart Office Building, where his hearings were held, is near the Supreme Court and that he often walks by it. But now, Alito quipped, "I cross to the other side of the street. I quicken my step until I'm well past the building."

Alito was confirmed to the Supreme Court in a 58-42 Senate vote that reflected Democrats' anxiety over whether replacing O'Connor with Alito would lead the court to take a harsher view of abortion rights, affirmative action and other Democratic priorities.

Roberts, who has been on the court since fall 2005, has used speeches at colleges to show the humor that has served him well as a litigator and as a judge.

In court, Roberts' humor has a distinctive bite. During arguments in a recent patent case, he derided a lower-court rule for assessing when an invention should not be patented because it would have been "obvious" at the time of development.

"Who do you get to be an expert to tell you something's not obvious?" he asked. "I mean, the least insightful person you can find?"

As usually happens when the chief justice makes a joke, the spectators laughed.

    Bush appointees signal court's new direction, UT, 19.12.2006, http://www.usatoday.com/news/washington/2006-12-19-alito-roberts-analysis_x.htm

Justices Overturn Ruling in Case on Buttons in Court

December 12, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Dec. 11 — The Supreme Court ruled on Monday that the federal appeals court in California overstepped its authority when it granted a new trial to a murder defendant whose victim’s relatives sat at the trial, in the view of the jury, wearing buttons with the victim’s picture on them.

The appeals court, in granting a writ of habeas corpus, found that the buttons were inherently prejudicial and deprived the defendant, Mathew Musladin, of the right to a fair trial.

Voting 9 to 0, the Supreme Court overturned that ruling in an opinion by Justice Clarence Thomas that did not actually decide whether the buttons were prejudicial. That was, and remains, “an open question in our jurisprudence,” Justice Thomas said. And that was precisely where the appeals court had gone wrong, the justices agreed; it had based a grant of habeas corpus on a legal principle that the Supreme Court itself had not adopted.

A writ of habeas corpus is a judicial declaration that a prison inmate has been wrongfully convicted or sentenced. The decision on Monday was the Supreme Court’s latest effort to interpret and apply a 10-year-old federal statute that substantially restricted the ability of federal judges to use habeas corpus to overturn state-court judgments.

The statute, the Antiterrorism and Effective Death Penalty Act, provides that the writ “shall not be granted” unless the state court issued a decision “that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.”

The statutory language has proved to be a good deal less precise than it looks. When is federal law “clearly established,” and what constitutes an “unreasonable application” of it? The Supreme Court has been wrestling with these questions, often in contention with the United States Court of Appeals for the Ninth Circuit, in San Francisco, which continues to grant writs of habeas corpus considerably more often than the Supreme Court believes it should.

For example, in this case, Carey v. Musladin, No. 05-785, the Ninth Circuit acknowledged that there was no precisely applicable Supreme Court decision, but then went on to extrapolate from two Supreme Court decisions on the question of the effect of courtroom activities on a defendant’s right to a fair trial.

One decision, from 1976, held that defendants should not be forced to wear prison clothes in the jury’s presence. The other, from 1986, considered and rejected the argument that the presence of four uniformed state troopers, seated immediately behind the defendant, deprived the defendant of the right to a fair trial.

The issue in both these cases, as the Supreme Court phrased it then, was “whether an unacceptable risk is presented of impermissible factors coming into play.” The Ninth Circuit applied that test to Mr. Musladin’s trial and concluded that the buttons were just such an “impermissible factor.” The court also invoked one of its own precedents, a 1990 ruling that found that a rape defendant’s rights were violated by spectators at the trial wearing buttons that said “Women Against Rape.”

Justice Thomas said the appeals court was wrong on both counts, in relying on a precedent that was not the Supreme Court’s own and in extrapolating from Supreme Court precedents that arose in a different context.

He said the problem was that while both the Supreme Court precedents — the cases on the required wearing of prison uniforms and on the presence of state troopers — dealt with “government-sponsored practices,” the buttons were worn by private individuals as the result of their private choice. “This court has never addressed a claim that such private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial,” he said.

Although the seven-page opinion did not explore the matter in depth, the distinction between government-sponsored and private conduct is significant in many areas of constitutional law.

Mr. Musladin was convicted in 1994 of killing his estranged wife’s boyfriend, Tom Studer. At the trial, his lawyer objected to the wearing of the buttons by Mr. Studer’s family members. But the judge refused to order the buttons removed, saying they presented “no possible prejudice to the defendant.”

A California appeals court upheld the conviction, finding no proof that the buttons were “taken as a sign of anything other than the normal grief” of the victim’s family.

The Federal District Court in San Francisco declined to issue a writ of habeas corpus, a decision overturned last year by a panel of the Ninth Circuit in a 2-to-1 vote.

While all nine justices agreed on Monday that the Ninth Circuit should be reversed, Justices John Paul Stevens, Anthony M. Kennedy and David H. Souter did not sign Justice Thomas’s opinion, each writing separately to explain his view of the case.

Justice Souter said the distinction between private and public conduct should not matter, because the judge in any event was obliged to keep the courtroom “free of improper influence.”

Justice Kennedy said the question of wearing buttons in a courtroom “should be explored in the court system” and in a future case. Even before then, he said, habeas corpus should be available to a defendant who can show that the trial was “tainted by an atmosphere of coercion or intimidation,” whether by buttons or some other factor.

    Justices Overturn Ruling in Case on Buttons in Court, NYT, 12.12.2006, http://www.nytimes.com/2006/12/12/washington/12scotus.html

Antitrust Ambiguity to Be on Justices’ Docket

December 8, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Dec. 7 — The Supreme Court added two important antitrust cases on Thursday to its calendar for the current term. Both cases, granted at the request of defendants in private antitrust suits, are likely to lead to clarification of areas of antitrust law that have increasingly become unsettled.

One case has been closely watched on Wall Street. It is a class-action lawsuit against more than a dozen leading investment banks and institutional investors that took part in syndicates to underwrite the initial public offerings of hundreds of technology companies in the 1990s.

The suit, brought by purchasers of the stocks, charges that the sharing of information among the underwriters and the way in which they allocated shares to their customers amounted to an antitrust conspiracy.

The Federal District Court in Manhattan dismissed the lawsuit in 2003, finding that the defendants were entitled to antitrust immunity because much of the conduct they were said to have engaged in was explicitly permitted by the Securities and Exchange Commission.

The United States Court of Appeals for the Second Circuit, however, reinstated the suit last year, ruling that Congress had granted no such immunity.

The issue for the Supreme Court in this case, Credit Suisse First Boston v. Billing, No. 05-1157, is how to treat the inherently collaborative activity of an underwriting syndicate, activity that — while it would appear to violate the Sherman Antitrust Act — is permitted by the regulatory agency that oversees it.

While the eventual outcome of the case is uncertain, there is little uncertainty about the second antitrust case the court accepted. The question in that case, Leegin Creative Leather Products v. PSKS, No. 06-480, is how antitrust law should treat the minimum prices that manufacturers require retailers to charge for their products.

In a 1911 case known as the Dr. Miles precedent, this practice of “resale price maintenance” was deemed always illegal under the Sherman Act. The case asks the justices to re-evaluate the precedent in light of modern economic theory, and instead to make these arrangements subject to case-by-case analysis under what is known as the rule of reason.

In other areas of antitrust law, the court has steadily backed away from a categorical view of antitrust liability and is highly likely to use this case as a vehicle for doing the same for resale price maintenance.

Leegin, a privately owned company, manufactures the Brighton line of women’s leather goods and does business only with retailers, mostly small specialty stores, who agree to abide by the suggested retail prices for the products. In 2002, after learning that Kay’s Kloset, a store in Lewisville, Tex., was discounting Brighton products, Leegin suspended shipments.

The store brought an antitrust suit and won more than $1 million in damages, which are tripled under antitrust law. The United States Court of Appeals for the Fifth Circuit, in New Orleans, upheld the judgment. In August, the justices granted a stay to enable Leegin to file a Supreme Court appeal. Such a stay is a fairly unusual action that sends a strong signal that the justices believe that a case is worthy of their attention and that the lower court’s decision was probably wrong.

Leegin’s appeal argues that “the per se rule against resale price maintenance squarely conflicts with this court’s modern antitrust jurisprudence” and has “no foundation in economic theory.” It argues that minimum prices can enhance competition and help consumers by providing incentives to retailers to compete in such nonprice areas as customer service.

If the court accepts Leegin’s argument, a decision about whether any particular minimum price arrangement actually confers a consumer benefit would be subject to case-by-case appraisal under the rule-of-reason analysis that the court already applies to the setting of price ceilings and nonprice retail conditions. Formerly, the court applied a rule of categorical invalidity to those practices as well.

In the securities underwriting case, the court will be scrutinizing a variety of practices that amount to standard conduct on Wall Street: forming a syndicate, ascertaining potential customer interest to determine the size and price of the offering, and then sharing information and markets among competitors. The plaintiffs contend that the underwriters inflated prices by improperly dividing the market and imposing unlawful conditions on their customers.

When the appeal reached the Supreme Court last spring, the justices asked the solicitor general’s office to advise them of the federal government’s view. That request presented a problem because there was no unified government view. Conduct that the Justice Department’s antitrust division regarded as barred under the Sherman Act was seen by the S.E.C. as legal.

A carefully worded brief by the solicitor general, filed last month, urged the court to take the case and find a way to reconcile “two federal statutes critical to the efficient functioning of our economy.”

The brief said the court of appeals failed “to make sufficient accommodation for the securities laws’ policy of encouraging certain types of collaborative activity.”

It added, however, that the district court was also wrong to consider all conduct connected with initial public offerings to be immune from antitrust liability. The brief said the complaint in this lawsuit needed to be examined carefully to make sure that it was based on something more than “conclusory or ambiguous allegations.”

Briefs urging the justices to hear to hear the case were also filed by the New York Stock Exchange, NASD and other industry groups.

    Antitrust Ambiguity to Be on Justices’ Docket, NYT, 8.12.2006, http://www.nytimes.com/2006/12/08/business/08bizcourt.html?hp&ex=1165640400&en=bbbd6bfb91c1882e&ei=5094&partner=homepage

Court Rejects Interpretation of Immigration Drug Law

December 6, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Dec. 5 — The Supreme Court rejected the government’s interpretation of immigration law on Tuesday, ruling that a noncitizen is not subject to mandatory deportation for a drug crime that, while a felony in the state where the crime was prosecuted, is only a misdemeanor under federal law.

The 8-to-1 decision restored to one category of immigrants, caught in the nearly impenetrable maze where immigration law and criminal law meet, the ability to avoid automatic deportation and the other dire consequences of being guilty of an “aggravated felony.”

The category is made up of immigrants convicted of simple drug possession in states that treat those offenses as felonies. Federal law treats possession in most instances as a misdemeanor. But in the government’s view, possession when deemed a felony under state law became a “drug trafficking crime,” which under federal immigration law is an “aggravated felony” that strips an immigrant of the right to seek relief from automatic deportation, to seek asylum, or ever to return legally to the United States.

Writing for the majority on Tuesday, Justice David H. Souter said the government’s interpretation was based on a strained and implausible reading of the definition of “drug trafficking crime” in the federal criminal code.

Thousands of immigrants every year might benefit from the ruling, according to Jayashri Srikantiah, a law professor who heads the Immigrants’ Rights Clinic at Stanford Law School and who filed a brief on behalf of Jose Antonio Lopez, the immigrant whose Supreme Court appeal led to the decision, Lopez v. Gonzales, No. 05-547.

In an interview, Ms. Srikantiah said the decision was informed by “a sense of proportionality” and of the “real world consequences” of subjecting legal residents convicted of minor offenses to automatic deportation.

The Immigration and Nationality Act contains a list of aggravated felonies that includes “a drug trafficking crime.” This phrase, in turn, is defined not in the immigration law, but in the criminal code as “any felony punishable under the Controlled Substances Act,” the basic federal narcotics law.

The government’s position was that “any felony” meant any crime that was considered a felony either under federal law or in the state where the prosecution took place. In this way, a conviction for simple possession could become a drug trafficking offense and hence an aggravated felony, which is what happened to Mr. Lopez.

A Mexican who was a permanent legal resident of the United States, Mr. Lopez pleaded guilty in a South Dakota state court to aiding and abetting another person’s possession of cocaine. That crime is a felony in South Dakota, although the analogous offense is a misdemeanor under federal law.

Mr. Lopez served 15 months in state prison and was then placed in federal deportation proceedings as an aggravated felon. After unsuccessfully contesting the designation before the immigration service and the United States Court of Appeals for the Eighth Circuit, in St. Louis, he was deported to Mexico.

The Supreme Court’s decision makes Mr. Lopez eligible to apply for the administrative relief from deportation known as “cancellation of removal,” an option that was foreclosed by his designation as an aggravated felon.

In analyzing the government’s position that any offense “punishable” under the Controlled Substances Act therefore became a “drug trafficking” felony, Justice Souter said that “there are a few things wrong with this argument, the first being its incoherence.” While “trafficking” ordinarily meant “some sort of commercial dealing,” he said, “commerce, however, was no part of Lopez’s South Dakota offense of helping someone else to possess.”

Justice Souter continued that while the government’s argument appeared implausible, that was “not to deny that the government might still be right; Humpty Dumpty used a word to mean ‘just what he chose it to mean — neither more nor less,’ and legislatures, too, are free to be unorthodox.”

But in this instance, he said, if Congress meant to define drug trafficking in such an “unexpected” way, “Congress would need to tell us so, and there are good reasons to think it was doing no such thing here.”

Justice Souter said that under the government’s interpretation, a central part of federal immigration law, deportation, would depend not on a federal judgment about the seriousness of an offense, but on “varying state criminal classifications.” He added, “We cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies and misdemeanors if it meant courts to ignore it whenever a state chose to punish a given act more heavily.”

The court’s conclusion was that “a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.”

Justice Clarence Thomas was the lone dissenter, observing in his opinion that “without doubt, Congress could have written the definition with this limitation, but it did not.”

This was not the first time the Supreme Court has resisted a categorical interpretation of immigration law by the executive branch. In a unanimous opinion two years ago, the court ruled that contrary to the government’s view, driving under the influence of alcohol was not a “crime of violence” for which an immigrant could be subjected to automatic deportation.

    Court Rejects Interpretation of Immigration Drug Law, NYT, 6.12.2006, http://www.nytimes.com/2006/12/06/washington/06scotus.html

Editorial

An Assault on Local School Control

December 4, 2006
The New York Times

More than 50 years after the Supreme Court decided Brown v. Board of Education, the nation still has not abolished de facto segregation in public schools. But thanks to good will and enormous effort, some communities have made progress. Today the Supreme Court hears arguments in a pair of cases that could undo much of that work.

Conservative activists are seeking to halt the completely voluntary, and laudable, efforts by Seattle and Louisville, Ky., to promote racially integrated education. Both cities have school assignment plans known as managed or open choice. Children are assigned to schools based on a variety of factors, one of which is the applicant’s race.

The plan that Jefferson County adopted for Louisville has a goal of having black enrollment in every school be no less than 15 percent and no more than 50 percent. Seattle assigns students to its 10 high schools based on a number of factors, including an “integration tiebreaker.” This tiebreaker, which is applied to students of all races, requires that an applicant’s race be taken into account when a school departs by more than 15 percent from the district’s overall racial breakdown.

Parents in both districts sued, alleging that the consideration of race is unconstitutional. In each case, the court of appeals upheld the assignment plans. In the Seattle case, Judge Alex Kozinski, a Reagan appointee who is highly respected by legal conservatives, wrote that because the district’s plan does not advantage or disadvantage any particular racial group — its pro-integration formula applies equally to all — it “carries none of the baggage the Supreme Court has found objectionable” in other cases involving race-based actions.

The Louisville and Seattle plans are precisely the kind of benign race-based policies that the court has long held to be constitutional. Promoting diversity in education is a compelling state interest under the equal protection clause, and these districts are using carefully considered, narrowly tailored plans to make their schools more diverse.

It is startling to see the Justice Department, which was such a strong advocate for integration in the civil rights era, urging the court to strike down the plans. Its position is at odds with so much the Bush administration claims to believe. The federal government is asking federal courts to use the Constitution to overturn educational decisions made by localities. Conservative activists should be crying “judicial activism,” but they do not seem to mind this activism with an anti-integration agenda.

If these plans are struck down, many other cities’ plans will most likely also have to be dismantled. In Brown, a unanimous court declared education critical for a child to “succeed in life” and held that equal protection does not permit it to be provided on a segregated basis. It would be tragic if the court changed directions now and began using equal protection to re-segregate the schools.

    An Assault on Local School Control, NYT, 4.12.2006, http://www.nytimes.com/2006/12/04/opinion/04mon1.html

Supreme Court Case Focuses on Race and Schools

December 4, 2006
By THE ASSOCIATED PRESS
Filed at 10:36 a.m. ET
The New York Times

WASHINGTON (AP) -- Pro-affirmative action demonstrators bearing ''Fight For Equality'' placards descended on the Supreme Court Monday as justices prepared to hear fresh arguments in cases testing when race may be used as a basis for assigning students to public schools.

Parents in Louisville, Ky., and Seattle are challenging school assignment plans that factor in a student's race in an effort to have individual school populations approximate the racial makeup of the entire system. Federal appeals courts have upheld both programs.

On the sidewalk in front of the Supreme Court, several hundred of pro-affirmative action demonstrators marched in a brisk wind to dramatize their issue. A parent-teachers group from Chicago and several civil rights groups were among those sponsoring the demonstration.

Demonstrators chanted ''Equal education, not segregation'' and ''We won't go to the back of the bus, integration is a must.'' Some held signs that read ''Stop racism now.'' Among the crowd were representatives of the National Organization for Women, the NAACP and students from Howard University.

''It's ridiculous to separate us. We worked hard to get everyone together. Why separate us now?'' said Jade Johnson, 15, of Washington D.C., who attends Theodore Roosevelt Senior High School in the district. Johnson said she came to the demonstration instead of going to school.

Though outnumbered, there were some in the crowd from the other side.

''Regardless of how well-motivated, allowing the state to engineer racial mixing only creates racial stereotypes and increases racial tension,'' said Terry Pell, president of the Center for Individual Rights, a public interest law firm. ''The court needs to put an end to state-mandated tinkering with race.''

The school policies in contention are designed to keep schools from segregating along the same lines as neighborhoods. In Seattle, only high school students are affected. Louisville's plan applies systemwide.

''The plan has prevented the resegregation that inevitably would result from the community's segregated housing patterns and that most likely would produce many schools that might be perceived as 'failing,''' the Seattle school district said in its brief to the high court.

The Bush administration has taken the side of the parents who are suing the school districts, much as it intervened on behalf of college and graduate students who challenged affirmative action policies before the Supreme Court in 2003.

In 2003, the court upheld race-conscious admissions in higher education in a 5-4 opinion by Justice Sandra Day O'Connor.

O'Connor, however, has since retired and been replaced by conservative Justice Samuel Alito. Lawyers on both sides of the issue presume that Alito is inclined to oppose the school plans.

About 400 of the nation's 15,000 school districts are under court orders to desegregate. It is believed that hundreds more voluntarily take race into account.

There are no firm figures, although the Pacific Legal Foundation of Sacramento, Calif., said up to 1,000 districts voluntarily use race as a factor in school assignments, drawing boundaries, deciding where to locate new buildings and in other ways. The foundation opposes race-based policies.

Seattle has tried for years to achieve racial diversity in its schools in the face of persistent segregated housing patterns. The city's schools have never been subject to court order. Seattle put the assignment system at issue in place in 1998, but suspended it after parents sued.

The Louisville schools, with a history of state-imposed segregation, were under federal court supervision for 25 years. The Jefferson County Board of Education, which encompasses Louisville,came up with its own plan to maintain integrated schools shortly thereafter.

But the policy denigrates children's self-worth by color-coding them throughout their school years, said the legal brief for Crystal Meredith, the Louisville parent who sued after her son was denied his first choice of which school to attend.

The cases are Parents Involved in Community Schools v. Seattle School District No. 1, 05-908; and Meredith v. Jefferson County Board of Education, 05-915.

Associated Press reporter Matthew Daly contributed from Washington

    Supreme Court Case Focuses on Race and Schools, NYT, 4.12.2006, http://www.nytimes.com/aponline/us/AP-Scotus-Schools-Race.html?hp&ex=1165294800&en=4e5897872b94e8e9&ei=5094&partner=homepage

Justices to Decide if Citizens May Challenge White House’s Religion-Based Initiative

December 2, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Dec. 1 — The Supreme Court agreed Friday to decide whether private citizens are entitled to go to court to challenge activities of the White House office in charge of the Bush administration’s religion-based initiative.

A lower court had blocked a lawsuit challenging conferences the White House office holds for the purpose of teaching religious organizations how to apply and compete for federal grants. That constitutional challenge, by a group advocating the strict separation of church and state, was reinstated by an appeals court; the administration in turn appealed to the Supreme Court.

The case is one of three appeals the justices added to their calendar for argument in February. A question in one of the other cases is whether a public school principal in Juneau, Alaska, violated a student’s free-speech rights by suspending him from school for displaying, at a public off-campus event, a banner promoting drug use.

Together with a third new case, on whether federal land-management officials can be sued under the racketeering statute for actions they take against private landowners, the additions to the court’s docket raised the metabolism of what had begun to look like an unusually quiet term. It had been just short of a month since the justices accepted any new cases.

As in the case the justices heard on Wednesday on the administration’s refusal to regulate automobile emissions that contribute to climate change, the question in the White House case is the technical one of “standing to sue.” And as the argument on Wednesday demonstrated, standing is a crucially important aspect of litigation against the government.

In its lawsuit challenging the White House conferences, filed in Federal District Court in Madison, Wis., in 2004, an organization called the Freedom From Religion Foundation named as defendants more than a dozen administration officials who oversaw or participated in the conferences.

The lawsuit alleged that the officials were using tax dollars in ways that violated the separation of church and state required by the Establishment Clause of the First Amendment. For example, the complaint quoted Rod Paige, then the secretary of education, as telling the audience at a 2002 White House conference that “we are here because we have a president, who is true, is a true man of God” and who wanted to enable “good people” to “act on their spiritual imperative” by running social service programs with federal financial support.

Judge John C. Shabaz of Federal District Court dismissed the lawsuit for lack of standing, finding that the officials’ activities were not sufficiently tied to specific Congressional appropriations. Taxpayers’ objections to the use of general appropriations could not be a basis for standing, he said. The president’s Faith-Based and Community Initiative was created through a series of executive orders and not by Congress, he noted.

The decision was overturned, and the lawsuit reinstated, in a 2-to-1 ruling by the United States Court of Appeals for the Seventh Circuit, in Chicago. Writing for the majority, Judge Richard A. Posner said the distinction cited by Judge Shabaz made no difference. Judge Posner said the plaintiffs were entitled to challenge the conferences “as propaganda vehicles for religion,” even if they were neither financed through a specific Congressional appropriation nor made grants directly to religious groups.

As a general matter, people do not have standing, based solely on their status as taxpayers, to challenge the expenditure of federal money. The Supreme Court’s precedents have carved out religion cases as an exception to this general rule.

In its appeal, Hein v. Freedom From Religion Foundation, No. 06-157, the administration is arguing the exception is a narrow one, “designed to prevent the specific historic evil of direct legislative subsidization of religious entities,” a definition that the administration says does not apply to the conferences. For the federal courts to permit such a lawsuit, its brief asserts, would upset “the delicate balance of power between the judicial and executive branches” and open the courthouse door to anyone with a “generalized grievance.”

The student free-speech case the justices accepted, Morse v. Frederick, No. 06-278, is an appeal by a high school principal, Deborah Morse, who suspended a student, Joseph Frederick, after an incident during the Olympic Torch Relay that came through Juneau in 2002. Students were allowed to leave class to watch the parade. Mr. Frederick and some friends unfurled a 20-foot-long banner proclaiming “Bong hits 4 Jesus,” a reference to smoking marijuana.

When the student refused to take down the banner, claiming a First Amendment right to display it off school property, the principal confiscated it and eventually suspended him for 10 days. Mr. Frederick filed a lawsuit, which the Federal District Court in Juneau dismissed.

But the United States Court of Appeals for the Ninth Circuit held that the punishment violated the student’s First Amendment rights and, further, that the principal was liable for damages, in an amount to be determined by the district court. Ms. Morse’s Supreme Court appeal challenges both the appeals court’s interpretation of the First Amendment and its refusal to shield her from financial liability through a doctrine known as qualified immunity.

The third new case, Wilkie v. Robbins, No. 06-219, is a government appeal on behalf of employees of the Bureau of Land Management in a dispute with a Wyoming landowner who charged them with using tactics amounting to extortion to get him to grant public access to his property. The federal appeals court in Denver held that a racketeering suit based on the extortion charge could proceed.

    Justices to Decide if Citizens May Challenge White House’s Religion-Based Initiative, NYT, 2.12.2006, http://www.nytimes.com/2006/12/02/washington/02scotus.html

Court takes 'Bong Hits 4 Jesus' free speech case

Updated 12/1/2006 6:07 PM ET
AP
USA Today

WASHINGTON (AP) — The Supreme Court stepped into a dispute over free speech Friday involving a suspended high school student and his banner that proclaimed "Bong Hits 4 Jesus."

The justices agreed to hear the appeal by the Juneau, Alaska, school board and principal Deborah Morse of a lower court ruling that allowed the student's civil rights lawsuit to proceed. The school board hired former Whitewater prosecutor Kenneth Starr to argue its case to the high court.

Morse suspended Joseph Frederick after he displayed the banner, with its reference to marijuana use, when the Olympic torch passed through Juneau in 2002 on its way to the Winter Games in Salt Lake City.

Frederick, then a senior, was off school property when he hoisted the banner but was suspended for violating the school's policy of promoting illegal substances at a school-sanctioned event.

The Alaska case was one of three appeals the court accepted Friday.

It will also consider a request from the Bush administration to kill a lawsuit challenging the White House's promotion of federal financing for faith-based charities.

The program has been a staple of President Bush's political agenda since 2001, when he created the White House Office of Faith-Based and Community Initiatives.

The Freedom from Religion Foundation, based in Madison, Wis., claims that the administration is violating a constitutional ban on state-supported religions by singling out particular faith-based organizations as worthy of federal funding.

Over administration objections, a federal appeals court earlier said the foundation's members could mount a court challenge to a program funded by Congress.

The court also agreed to hear an appeal from federal Bureau of Land Management officials who are trying to stop a lawsuit by Wyoming ranch owner Harvey Frank Robbins. Robbins accuses the federal officials of persecuting him in an effort to get him to give the government access to roads that cut across his land.

In the banner case, the school board upheld the suspension, and a federal judge initially dismissed Frederick's lawsuit. The 9th Circuit U.S. Court of Appeals said the banner was vague and nonsensical and Frederick's civil rights had been violated.

At that point, the school board retained Starr, who investigated President Clinton's relationship with White House intern Monica Lewinsky. He took the case free of charge.

The appeals court said that even if the banner could be construed as a positive message about marijuana use, the school could not punish or censor a student's speech because it promotes a social message contrary to one the school favors.

Frederick said his motivation for unfurling the banner, at least 14 feet long, was simple: He wanted it seen on television since the torch relay event was being covered by local stations. When Morse saw it, she crossed the street from the school, grabbed the banner and crumpled it. She later suspended Frederick for 10 days.

The court is expected to hear arguments in the case in late February. In addition to the First Amendment issue, the court also will consider whether Morse can be held personally liable for monetary damages.

Morse, now the Juneau district's coordinator of facilities planning, said: "I think it's important for school administrators all across the country to have some guidance in how to enforce school rules at school activities without risking liability."

Frederick, who had been attending the University of Idaho, is teaching abroad this semester, said Michael Macleod-Ball of the ACLU of Alaska Foundation. An ACLU lawyer has been representing Frederick.

"I suppose we are a little surprised" that the court took the case," Macleod-Ball said. "The facts are so unique that I don't think they lend themselves well to crafting significant new law."

The cases are Juneau School Board v. Frederick, 06-278, Grace v. Freedom From Religion Foundation, 06-157, and Wilkie et al v. Robbins, 06-219.

    Court takes 'Bong Hits 4 Jesus' free speech case, UT, 1.12.2006, http://www.usatoday.com/news/washington/2006-12-01-court_x.htm

Editorial

A Crack in the Stone Wall

November 30, 2006
The New York Times

It was one of the more outrageous moments in the story of the Bush administration’s illegal domestic wiretapping. Almost a year ago, Congressional Democrats called for a review of the Justice Department’s role in the program. But the department investigators assigned to do the job were unable to proceed because the White House, at President Bush’s personal direction, refused to give them the necessary security clearance.

Now the president, for reasons we can’t help thinking might have something to do with this month’s elections, has changed his mind. The White House will give Justice Department inspectors the required clearance, and a review will go forward.

That’s all to the good, as long as the investigation is not intended to pre-empt any efforts by the new Democratic majority to conduct its own Congressional review of the wiretap program. The Justice Department inquiry will hardly do the full job.

The department’s inspector general, Glenn Fine, has already said that the question of whether the program was legal is beyond his jurisdiction. Instead, he will investigate whether department employees followed the rules governing the program — rules that were established in a secret executive order signed by the president in October 2001.

Whether or not Justice Department employees followed the rules they were given may have bearing on their individual performance evaluations, but it will tell us very little else. Since the rules Mr. Bush established under his secret order will presumably stay secret, the investigation will not even help us to understand just how far from established legal standards he strayed when he authorized the government to eavesdrop on Americans’ international calls and e-mail without a court-issued warrant.

The Justice Department inquiry also will do nothing to fix the biggest problem with Mr. Bush’s eavesdropping program, which is that — once again — he ignored existing law and instead tried to create a system outside the law, resting on his dangerously expansive claims of executive power.

If Mr. Bush had wanted to conduct the wiretapping within the law, he could have quite easily done so, using the Foreign Intelligence Surveillance Act. That law, written after the Watergate scandal and the eavesdropping abuses of the Vietnam era, created a special court to approve applications for domestic surveillance. The court operates in secret, and has rarely denied the authorities’ requests. Even in the post-9/11 era, it should have met the administration’s needs. And if there was a problem, Congress had shown itself ready and willing to amend the law.

Mr. Fine, who has proved himself willing to criticize administration operations before, could still provide an important — if limited — service. He says, for instance, that he will examine how information gleaned from the wiretaps was used to pursue criminal cases. That inquiry should be useful for those who have been wondering whether the enormous amount of information collected significantly helped antiterrorism efforts, or simply complicated them with a flood of unmanageable data.

The investigation might also help Congress understand whether FISA needs updating — something the administration has been loath to discuss as long as it has been able to end-run the court. Senator Dianne Feinstein, who has introduced a bill aimed at making it easy for the government to get quick court approval of wiretaps on those suspected of terrorism or spying, has already said that nothing she has heard in secret briefings suggests that anything the administration needed could not have been conducted under FISA.

The question of the wiretap program’s constitutionality is now making its way through the courts and should ultimately be decided by the Supreme Court. Congress should not be satisfied with Mr. Fine’s very limited investigation. It should mount its own independent inquiry into how the war on terror, and American civil liberties, are being affected by an eavesdropping program about which we have been told so little.

    A Crack in the Stone Wall, NYT, 30.11.2006, http://www.nytimes.com/2006/11/30/opinion/30thu1.html

Editorial

Global Warming Goes to Court

November 28, 2006
The New York Times

The Bush administration has been on a six-year campaign to expand its powers, often beyond what the Constitution allows. So it is odd to hear it claim that it lacks the power to slow global warming by limiting the emission of harmful gases. But that is just what it will argue to the Supreme Court tomorrow, in what may be the most important environmental case in many years.

A group of 12 states, including New York and Massachusetts, is suing the Environmental Protection Agency for failing to properly do its job. These states, backed by environmental groups and scientists, say that the Clean Air Act requires the E.P.A. to impose limits on carbon dioxide and other greenhouse gases emitted by new cars. These gases are a major contributor to the “greenhouse effect” that is dangerously heating up the planet.

The Bush administration insists that the E.P.A. does not have the power to limit these gases. It argues that they are not “air pollutants” under the Clean Air Act. Alternatively, it contends that the court should dismiss the case because the states do not have “standing,” since they cannot show that they will be specifically harmed by the agency’s failure to regulate greenhouse gases.

A plain reading of the Clean Air Act shows that the states are right. The act says that the E.P.A. “shall” set standards for “any air pollutant” that in its judgment causes or contributes to air pollution that “may reasonably be anticipated to endanger public health or welfare.” The word “welfare,” the law says, includes “climate” and “weather.” The E.P.A. makes an array of specious arguments about why the act does not mean what it expressly says. But it has no right to refuse to do what Congress said it “shall” do.

Beneath the statutory and standing questions, this is a case about how seriously the government takes global warming. The E.P.A.’s decision was based in part on its poorly reasoned conclusion that there was too much “scientific uncertainty” about global warming to worry about it. The government’s claim that the states lack standing also scoffs at global warming, by failing to acknowledge that the states have a strong interest in protecting their land and citizens against coastal flooding and the other kinds of damage that are being projected.

In a friend-of-the-court brief, climate scientists from the NASA Goddard Institute for Space Studies, Stanford University and other respected institutions warn that “the scientific evidence of the risks, long time lags and irreversibility of climate change argue persuasively for prompt regulatory action.” The Supreme Court can strike an important blow in defense of the planet simply by ruling that the E.P.A. must start following the law.

    Global Warming Goes to Court, NYT, 28.11.2006, http://www.nytimes.com/2006/11/28/opinion/28tue1.html

Court Explores Complexities in Job Discrimination Case

November 28, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Nov. 27 — Federal law prohibits discrimination on the job, requiring employers to pay their employees without regard to race, sex, religion or national origin. Many complexities lie behind that simple statement, as a Supreme Court argument on Monday made abundantly clear.

The question for the court was how to treat a discriminatory action that happened long ago, beyond the statute of limitations for the federal Civil Rights Act, but that has effects that continue to the present day. Is each new paycheck, reflecting a salary lower than it would have been without the initial discrimination, a recurring violation that sets the clock running again? Or does the passage of time, without fresh acts of intentional discrimination, render the initial injury a nonevent in the eyes of the law?

The case was brought to the court by a woman, Lilly M. Ledbetter, who worked for 19 years as a manager at a Goodyear Tire and Rubber plant in Gadsden, Ala. For years, Ms. Ledbetter was paid less than men at the same level, and by 1997, as the only female manager, she was earning less than the lowest-paid man in the department. In 1998, after an undesired transfer, she retired and filed a discrimination charge against the company with the Equal Employment Opportunity Commission.

She took her case to federal court and won a jury award of more than $3 million in back pay and compensatory and punitive damages. Because of caps imposed by the law, Title VII of the Civil Rights Act of 1964, the judge reduced the award, to $360,000. But the United States Court of Appeals for the 11th Circuit, in Atlanta, overturned the verdict entirely. It ruled that Ms. Ledbetter had no case because she could not show any intentional discrimination in the 180 days before she complained to the employment commission.

Other federal appeals courts, including those here and in New York, disagree with that analysis, as does the E.E.O.C. The agency has long applied what is known as the “paycheck accrual rule,” under which each pay period of uncorrected discrimination is seen as a fresh incident of discrimination. So although the 180-day limit applies to discrete actions like a discriminatory refusal to hire or failure to promote, it does not, in the view of the federal agency charged with administering the statute, prevent lawsuits for the continuing effects of past discrimination in pay.

But the Bush administration has disavowed the commission’s position. After the court agreed in June to hear Ms. Ledbetter’s appeal, Ledbetter v. Goodyear Tire and Rubber Company Inc., No. 05-1074, the administration entered the case on the company’s behalf.

Irving L. Gornstein, an assistant to the solicitor general, argued that “employees who allow the 180-day period to pass may not years later, and even at the end of their careers, challenge their current paychecks on the grounds that they are the result of a number of discrete, individually discriminatory pay decisions that occurred long ago.”

When Justice Antonin Scalia asked, “Why should we listen to the solicitor general rather than the E.E.O.C.?” Mr. Gornstein acknowledged that the commission “has taken a different position,” one that he said was based on a misunderstanding of a Supreme Court precedent.

Ms. Ledbetter’s lawyer, Kevin K. Russell, said it was often difficult for employees to learn that their pay was discriminatory. Employees who receive regular raises, Mr. Russell said, may well not realize that the raises were smaller than they should have been.

“It’s only when the disparity persists,” he said, “when the different treatment accrues again and again and the overall disparity in the wages increases, that the employee has some reasonable basis to think that it’s not natural variation in the pay decisions but actually intentional discrimination.”

Justices Ruth Bader Ginsburg and Stephen G. Breyer appeared most sympathetic to Mr. Russell’s argument. Justice Breyer commented at one point that “there will be probably a significant number of circumstances where a woman is being paid less, and all she does is for the last six months get her paychecks and she doesn’t really know it because pay is a complicated thing.” It could take “even a year for her to find out,” he said.

Chief Justice John G. Roberts Jr. appeared the most skeptical, several times raising the question of how employers could shoulder the burden of defending long-ago pay decisions.

“It could be 40 years, right?” Chief Justice Roberts asked Mr. Russell, adding, “I mean, if it happened once 20 years ago, you have a case that you can bring” under the plaintiff’s analysis.

The Goodyear lawyer, Glen D. Nager, noting that the statute required proof of intentional discrimination, said the basic point was that “no one at Goodyear took Miss Ledbetter’s sex into account” in the salary she was paid in the 180 days before she filed her complaint.

The law does not permit the accusation “that there is discrimination today merely because there was discrimination yesterday,” Mr. Nager said, adding that when the “filing period passes and no charge is brought, the employer is entitled to treat that past act as if it was a lawful act.”

Justice David H. Souter asked, “Is that so even if they know it was in fact originally an unlawful act?”

“Yes,” Mr. Nager replied.

    Court Explores Complexities in Job Discrimination Case, NYT, 28.11.2006, http://www.nytimes.com/2006/11/28/washington/28scotus.html

Court Clears Way for Prosecutor to Review Records in Times Case

November 28, 2006
The New York Times
By ADAM LIPTAK

The United States Supreme Court refused yesterday to stop a federal prosecutor from reviewing the telephone records of two reporters for The New York Times. The records, the newspaper said, include information about many of the reporters’ confidential sources.

In a one-sentence order offering no reasoning and noting no dissenting votes, the Supreme Court rejected a request from The Times to stay a lower court’s decision while the paper tried to persuade the justices to review the case.

Yesterday’s order effectively allows the United States attorney in Chicago, Patrick J. Fitzgerald, to begin reviewing the records, which he has already obtained from the reporters’ phone companies, as early as this week.

The Justice Department told the Supreme Court on Friday that Mr. Fitzgerald was under enormous time pressure. “The statute of limitations,” the government said, “will imminently expire on Dec. 3 and 13, 2006, on certain substantive offenses that the grand jury is investigating.”

The grand jury, in Chicago, is looking into who told the reporters, Judith Miller and Philip Shenon, about actions the government was planning to take in December 2001 against two Islamic charities in Illinois and Texas. The disclosures to the reporters, the government lawyers wrote on Friday, may have amounted to obstruction of justice.

In August, a three-judge panel of the federal appeals court in Manhattan ruled, 2 to 1, in favor of Mr. Fitzgerald, saying that the reporters were not entitled to shield their sources in the unusual circumstances of the case. The government contended that the reporters had tipped off the charities to the impending actions against them. The Times said the reporters had engaged only in routine newsgathering.

The appeals court also rejected The Times’s argument that the grand jury subpoenas, issued directly to the phone companies, were too broad. The subpoenas, the government said, covered 11 days in September and December 2001. Lawyers for The Times said the requested records could expose scores of confidential sources, most of them unrelated to the two charities.

The appeals court responded by sending the case back to the trial judge to allow The Times an opportunity to black out information concerning those other sources. But because that exercise would, in effect, identify the sources of interest to Mr. Fitzgerald, lawyers for the paper have indicated that they will not cooperate.

In a letter to the Supreme Court on Friday, government lawyers said they hoped to obtain authorization from the trial judge, Robert W. Sweet of Federal District Court in Manhattan, to begin their review as soon as tomorrow.

Ms. Miller, who retired from The Times last year after serving 85 days in jail in connection with an unrelated leak investigation also supervised by Mr. Fitzgerald, said the phone records by themselves might not satisfy the government.

“It doesn’t end there,” Ms. Miller said. “Then there will be subpoenas for, ‘What did you say to that person?’ ”

Randall Samborn, a spokesman for Mr. Fitzgerald, declined to comment.

Yesterday’s decision is the latest in a series of setbacks for the press in the federal courts. “It’s more bad news for the First Amendment,” Ms. Miller said, “and therefore it’s more bad news for the public’s right to know.”

Floyd Abrams, a lawyer for The Times, said the decision was a battle lost in a larger war.

“This case is the latest of a number of skirmishes in an ongoing and far from concluded conflict about the public’s right to information” Mr. Abrams said. “We remain hopeful that in the end, whether in the courts or in Congress, that right will be vindicated.”

    Court Clears Way for Prosecutor to Review Records in Times Case, NYT, 28.11.2006, http://www.nytimes.com/2006/11/28/washington/28leak.html

Supreme Court Sides With Philip Morris

November 27, 2006
By THE ASSOCIATED PRESS
Filed at 12:17 p.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court on Monday sided with Philip Morris USA, refusing to disturb a court ruling that threw out a $10.1 billion verdict over the company's ''light'' cigarettes.

The court issued its order without comment.

Last year, the Illinois Supreme Court threw out the massive fraud judgment against Philip Morris, a unit of the Altria Group Inc., in a class-action lawsuit involving ''light'' cigarettes. Because the Federal Trade Commission allowed companies to characterize their cigarettes as ''light'' and ''low tar,'' Philip Morris could not be held liable under state law even if the terms it used could be found false or misleading, the state court said.

The case involved 1.1 million people who bought ''light'' cigarettes in Illinois. They claimed Philip Morris knew when it introduced such cigarettes in 1971 that they were no healthier than regular cigarettes, but hid that information and the fact that light cigarettes actually had a more toxic form of tar.

An Illinois judge ruled in favor of the smokers in March 2003, saying the company misled customers into believing they were buying a less harmful cigarette.

A separate case involving Philip Morris is pending before the Supreme Court. Justices are considering whether to allow a $79.5 million punitive damages award to the widow of a longtime smoker from Oregon.

The case is Price, et al, v. Philip Morris, 06-465.

    Supreme Court Sides With Philip Morris, NYT, 27.11.2006, http://www.nytimes.com/aponline/business/AP-Scotus-Cigarette-Lawsuit.html?_r=1&oref=slogin

Times Seeks to Bar Review of Phone Data

November 25, 2006
The New York Times
By ADAM LIPTAK

The New York Times asked the Supreme Court yesterday to bar a federal prosecutor from reviewing the phone records of two of its reporters. The records, lawyers for The Times said, would allow the government to learn the identities of many of the reporters’ confidential sources.

The case arose from a Chicago grand jury’s investigation into who told the two reporters, Judith Miller and Philip Shenon, about actions the government was planning to take in 2001 against two Islamic charities. The United States attorney in Chicago, Patrick J. Fitzgerald, sought the reporters’ records directly from their phone companies, and The Times filed suit to stop him.

In August, a divided three-judge panel of the federal appeals court in Manhattan ruled in favor of Mr. Fitzgerald, saying the reporters were not entitled to shield their sources. The needs of law enforcement, the majority said, outweighed any protections the reporters might have in the First Amendment or other areas of law.

Ms. Miller left the paper last year after spending 85 days in jail in connection with a separate leak investigation, also supervised by Mr. Fitzgerald.

The paper’s filing yesterday was a limited one, seeking an order from Justice Ruth Bader Ginsburg staying the appeals court decision until the Supreme Court has an opportunity to decide whether to hear the case. The deadline for seeking review of the appeals court’s decision is in January, but The Times said it would move faster.

In a letter filed in response to yesterday’s application, the Justice Department said it “desires to review the records in question as expeditiously as possible” but agreed not to do so until Wednesday. Yesterday afternoon, the court ordered the government to submit a formal response to the stay application by today at 4 p.m.

The press has been on a losing streak of late in the federal courts, with several decisions refusing to recognize protection for confidential sources. The Supreme Court has not weighed in on the question since 1972.

Floyd Abrams, a lawyer for The Times, said the case now before the court could give it an opportunity to clarify the law.

“If the government is permitted to proceed to scrutinize the telephone records of The New York Times and its journalists,” Mr. Abrams said, “it will be in a position to identify literally scores of confidential sources, thus imperiling both the ability of the press to gather the news and of the public to learn it.”

    Times Seeks to Bar Review of Phone Data, NYT, 25.11.2006, http://www.nytimes.com/2006/11/25/us/25paper.html

Editorial

The Court and Abortion

November 11, 2006
The New York Times

The Supreme Court unnecessarily returned to the politically charged area of abortion this week, hearing arguments in a case testing some of the core principles of Roe v. Wade and the court’s own credibility as an institution removed from politics.

At issue, once again, is a deceptively broad ban on so-called partial-birth abortions. The court struck down a similar measure just six years ago, but since then two new justices have arrived. In the interest of women’s privacy and health — and in defense of the court’s own reputation — the justices should strike down this far-reaching assault on reproductive freedom.

In 2000, the court struck down a nearly identical Nebraska law for essentially two reasons. It found that the law’s imprecise language applied not just to a single late-term abortion method — as the ban’s supporters claimed — but would criminalize other common abortion procedures that are constitutionally protected. The court also ruled that the law was unconstitutional because it provided no exception to protect a woman’s health.

In a cynical move in 2003, Congress passed a law remarkably similar to the one the court had just struck down — with a definition of the procedures it was outlawing about as sweeping as Nebraska’s. Defying the Supreme Court, moreover, Congress refused to include an exception for protecting the health of the woman. Instead, it simply made the medically inaccurate assertion that the ill-defined procedure it outlawed was never necessary to preserve a woman’s health. Every lower federal court that has considered the Congressional ban has held it to be unconstitutional.

If Justice Sandra Day O’Connor, who cast the deciding vote in 2000, had not retired, it is highly unlikely the court would have agreed to entertain this rerun. But without her, it is not clear that there are still five votes to defeat this assault on Roe , or to uphold the bedrock requirement that abortion restrictions have an exception for protecting a woman’s health.

It seems unlikely that Chief Justice John Roberts or Justice Samuel Alito will provide the fifth vote. That means that Justice Anthony Kennedy, the current swing justice, is likely to decide this case. In 2000, Justice Kennedy joined those who would have upheld the Nebraska law. But at oral argument his questions suggested that he may take issue with Congress’s assertion that the ban would not put women’s health at risk — an encouraging sign.

Even justices who oppose abortion rights need to be concerned about that. They also need to worry about how the court will look if the recent change in its membership produces a starkly different result on an issue so vital to women’s privacy and health.

    The Court and Abortion, NYT, 11.11.2006, http://www.nytimes.com/2006/11/11/opinion/11sat1.html

High Court to Hear Tobacco Firm's Appeal

October 31, 2006
By THE ASSOCIATED PRESS
Filed at 1:55 a.m. ET
The New York Times

WASHINGTON (AP) -- Jesse Williams, according to his widow, never gave any credence to the surgeon general's health warnings about smoking cigarettes.

When Williams contracted inoperable lung cancer after smoking two packs a day for 45 years, he told his wife: ''Those darn cigarette people finally did it. They were lying all the time.''

Nine years after Williams' death, the Supreme Court is considering this question: Can Williams' widow collect $79.5 million in punitive damages for fraud from the cigarette company Philip Morris USA?

To the dismay of anti-smoking groups, the Supreme Court agreed to hear the company's appeal of a jury verdict in Oregon.

Philip Morris, the maker of Marlboros, is struggling to turn back unfavorable rulings by Oregon state courts in the Williams case. One ruling upheld the jury award after the Supreme Court sent the case back to Oregon once before to make sure it conformed to a 2003 high court opinion limiting punitive damages.

Another case being argued Tuesday highlights what critics say are problems with court-appointed attorneys for death row inmates in Florida.

Gary Lawrence, convicted of beating his wife's lover to death with a pipe and baseball bat then setting the body on fire, is asking the Supreme Court to allow the appeal of his sentence to proceed despite a lower-court ruling that he missed a deadline. Among Lawrence's arguments is that his lawyer, supervised by Florida courts, was responsible for timely legal filings.

In the case over punitive damages, the Williams family is counting on justices to find that Philip Morris' conduct was so reprehensible that it justifies exceeding guidelines the court has laid out in two rulings in the past 10 years that struck down large awards.

One difference is that the earlier cases did not involve physical injuries.

The company doesn't deny making public statements rejecting a link between smoking and cancer; rather, it says there's no evidence Williams ever heard the statements or ever read them.

The court also will be looking at the decision of the state courts that declared it acceptable for the jury in the Williams case to consider harm by Philip Morris to other smokers for conduct similar to that which allegedly injured Williams.

Three years ago, the U.S. Supreme Court said in a different case that a defendant cannot be punished in an individual lawsuit for harm to people other than the plaintiff.

The cigarette company says the approach of the Oregon courts is collective punishment in an individual action, a violation of due process. Philip Morris complained that the nonparties in the case were never identified, their individual circumstances were not presented in court, and there was no way for a defendant to respond to allegations of widespread harm.

The jury awarded Williams' widow, Mayola, $800,000, in actual damages, a ratio of 97 to one. Justice Anthony Kennedy said three years ago that the ratio of punitive to compensatory damages rarely should be higher than nine to one.

The company says that under long-established practice, when compensatory damages are substantial, the constitutional maximum punishment is between zero and four times the amount of compensatory damages.

The cases are Philip Morris USA v. Williams, 05-1256, and Lawrence v. Florida, 05-8820.

    High Court to Hear Tobacco Firm's Appeal, NYT, 31.10.2006, http://www.nytimes.com/aponline/us/AP-Scotus-Punitive-Damages.html

Supreme Court Considers Indictment Flaws

October 10, 2006
By THE ASSOCIATED PRESS
Filed at 1:16 p.m. ET
The New York Times

WASHINGTON (AP) -- Judges and prosecutors make mistakes, a Justice Department lawyer told the Supreme Court Tuesday, but sometimes those errors are so minor that they don't warrant reversing a conviction in a criminal case.

A jury convicted Juan Resendiz-Ponce of attempting to enter the United States illegally from Mexico. But the 9th Circuit U.S. Court of Appeals overturned Resendiz-Ponce's conviction because his indictment by a grand jury did not set out any specific acts showing how he tried to enter the United States.

The omission was so serious that it required automatic reversal of the conviction, the appellate court said.

Deputy Solicitor General Michael Dreeben told justices Tuesday, however, that Resendiz-Ponce received a fair trial at which the government proved that he had displayed two false pieces of identification in an effort to enter the country. Resendiz-Ponce presented his cousin's green card and driver license when he approached the border crossing at San Luis, Ariz., on June 1, 2003.

Dreeben conceded that prosecutors should have included more information in the indictment and, when they didn't, the trial judge should have dismissed the charge before the trial began.

Even so, he said, the conviction should stand.

''Such an error violates the Fifth Amendment, but it is harmless,'' he said.

Upholding the appeals court ruling would force ''the government to pay a tremendous penalty when a mistake is made in the indictment,'' Dreeben said.

Some justices said they saw nothing wrong with the indictment. ''It doesn't seem to me there's any defect in this indictment,'' Justice Samuel Alito said.

Atmore Baggot, Resendiz-Ponce's lawyer, said the grand jury meets in secret and the only public record of its work is the indictment. If there are errors, the government should be required to have a grand jury correct them, Baggot said.

Resendiz-Ponce remains in jail while the government's appeal is pending. Prosecutors could seek to indict him again.

The case is U.S. v. Resendiz-Ponce, 05-998.

------

On the Net:

Supreme Court: http://www.supremecourtus.gov

    Supreme Court Considers Indictment Flaws, NYT, 10.10.2006, http://www.nytimes.com/aponline/us/AP-Scotus-Flawed-Indictment.html?_r=1&oref=slogin

Editorial

Whose Court Is It Anyway?

October 2, 2006
The New York Times

The Roberts court officially began last year, but the term that starts this week should give the first clear picture of what kind of court it will be. The docket includes major cases involving abortion, affirmative action and the environment.

The justices in the Supreme Court’s now solidly conservative majority will be given a chance to prove what sort of conservatives they intend to be: those who issue rulings to match their personal ideology, or those who want to keep the court on a steady path by respecting precedent.

The cases that have so far attracted the most attention are a pair of challenges to a federal law that criminalizes so-called partial birth abortions. The law, passed by Congress in 2003, does not have an exception for procedures necessary to protect the health of a pregnant woman. The court struck down a nearly identical ban in 2000 by the State of Nebraska. That ruling was 5 to 4, and Justice Sandra Day O’Connor — the court’s perennial swing vote before she retired — sided with the majority.

The “partial birth” cases should reveal a lot about the views of Chief Justice John Roberts and Justice Samuel Alito. If they are as hostile to abortion rights as many court watchers believe, there may now be five votes in favor of the ban, which could outlaw many second-trimester abortions and endanger the lives of women.

But if they are true to the statements they made at their confirmation hearings about respecting precedent, they should not want to reverse a decision the court made on this subject as recently as 2000.

The court has also agreed to hear a pair of challenges to admissions policies at K-12 public schools in Seattle and Louisville, Ky., that take race into account to promote diversity. These cases revisit many issues the court considered in 2003, when it upheld the University of Michigan’s use of race in law school admissions. That was another 5-to-4 decision with Justice O’Connor casting the deciding vote. That ruling was right to say that schools should be able to take race into account, and the court should not change its stance now — opening the door to even more challenges to affirmative action.

Among the other important cases the court will hear is one about global warming. A group of states and environmental organizations have sued the Environmental Protection Agency for failing to do its duty under the Clean Air Act to regulate new cars’ emission of carbon dioxide and other pollutants. The court can and should prod the Bush administration to do more to protect the earth from the buildup of greenhouse gases, by requiring it to enforce the law that Congress passed.

If Chief Justice Roberts and Justice Alito turn out to be conservatives with a deep respect for precedent, the court is likely to remain fairly centrist. But the biggest factor is likely to be Justice Anthony Kennedy, who began last term to fill Justice O’Connor’s role as a voice of moderation. We hope he continues to do so.

    Whose Court Is It Anyway?, NYT, 2.10.2006, http://www.nytimes.com/2006/10/02/opinion/02mon1.html

Roberts Court May Be Defined in Second Term

October 2, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Oct. 1 — If Year 1 was the transition for the new Roberts court, Year 2 is likely to be the test.

During the first term under the leadership of Chief Justice John G. Roberts Jr., the justices were able to find common ground with some regularity by agreeing not to decide much. By the time the term ended in late June, the extent to which the members of the newly configured court were prepared to confront either precedent or one another remained unclear.

Chances are high that the new term, which begins on Monday, will be different. The cases that the court has agreed to decide — 38 so far — offer few off-ramps, requiring instead that the justices proceed to rulings that will define the new court in both substance and style.

Less than six weeks from now, for example, the court will hear the Bush administration’s defense of the Partial-Birth Abortion Ban Act of 2003. While there are some secondary issues, there is no escaping the fact that at the end of the day, the Supreme Court will have to declare whether the federal statute is constitutional. In doing so, it will have to grapple with the meaning of a 5-to-4 decision that struck down a similar state law six years ago. The administration will argue that if the federal statute cannot coexist with that precedent, the court should overrule the earlier case.

Two cases on whether public school systems can take race into account in maintaining balance in individual schools do not confront the court’s precedents quite as directly. But coming only three years after a sharply divided court permitted the continued use of race in university admissions, the decisions in these cases will provide the first clear indication of where the center now lies on questions of race and public policy after the retirement of Justice Sandra Day O’Connor. Justice O’Connor held the balance of power on such questions for years, and wrote the opinion three years ago in the case from the University of Michigan Law School.

The business community is watching several cases closely, particularly an appeal of a $79.5 million award of punitive damages against the cigarette maker Philip Morris, upheld by the Oregon Supreme Court on behalf of the family of a smoker who died of lung cancer.

Of all the areas of Supreme Court doctrine most likely to be affected by the court’s change in membership, punitive damages ranks high on the list. It is also something of a wild card, because the question of whether the constitutional guarantee of due process places any substantive limits on the award of punitive damages by state courts has divided the court in a way that follows no ideological pattern, and the inclinations of the new justices are unknown.

The consistent dissenters from the court’s effort to curb punitive damages have been Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg. Chief Justice William H. Rehnquist and Justice O’Connor were in the majority in seeking to limit punitive damages. If their successors, Chief Justice Roberts and Justice Samuel A. Alito Jr., agree with the dissenters, the court’s shift could be abruptly and bitterly disappointing to those encouraged by the court’s halting but increasingly assertive steps in setting boundaries on punitive damages.

The new chief justice has made some notable administrative choices since the last term ended. As his administrative assistant, he hired Jeffrey P. Minear, a senior lawyer in the office of the solicitor general and a longtime familiar figure at the court.

The title of administrative assistant understates the role its holder plays in the day-to-day management of the court. Previous administrative assistants have come from a variety of backgrounds; Chief Justice Rehnquist’s last assistant, Sally M. Rider, had held several top-level positions as a government lawyer. But none has ever been the chief justice’s professional peer, as Mr. Minear clearly is. His 56 Supreme Court arguments, in fact, surpass Chief Justice Roberts’s 39. Both men are the same age, 51.

In another development, the court has revised its practice of waiting two or three weeks to post argument transcripts on its Web site. Beginning on Tuesday (in observance of Yom Kippur, the court has scheduled no arguments on Monday), the court will post transcripts on the day of argument at www.supremecourtus .gov. While the court continues to resist television coverage of its sessions, the change is a step toward public access that would have been unthinkable only a few years ago.

These are some of the leading issues for the new term:

Abortion Rights

Two federal appeals courts, in St. Louis and San Francisco, declared the federal Partial-Birth Abortion Act of 2003 unconstitutional, basing their rulings on the Supreme Court’s decision in Stenberg v. Carhart, which struck down Nebraska’s similar law six years ago. The new cases, Gonzales v. Carhart, No. 05-380, and Gonzales v. Planned Parenthood, No. 05-1382, are the Bush administration’s appeals of those rulings.

The statute outlaws a surgical procedure that doctors use to perform abortions after about 12 weeks of pregnancy. In its decision six years ago, the Supreme Court held by a vote of 5 to 4 that the law had to take into account medical judgments that the procedure was sometimes necessary for a pregnant woman’s health.

Congress responded by enacting a federal law without a health exception, declaring that the procedure was never necessary to protect a pregnant woman’s health. Among other issues, the new cases therefore present the issue of the respective roles of Congress and the court in defining the scope of constitutional rights, an issue on which Justice Anthony M. Kennedy, a dissenter in the case six years ago, has been particularly protective of the court’s role.

Racial Quotas in Schools

Federal appeals courts upheld student assignment plans in Louisville, Ky. (Meredith v. Jefferson County Board of Education, No. 05-915) and Seattle (Parents Involved in Community Schools v. Seattle School District No. 1, No. 05-908). Both cities have long struggled to achieve integration, and now seek to maintain it by taking race into account in limiting students’ choices of which schools to attend.

While many justices are wary of “this divvying us up by race,” as Chief Justice Roberts phrased it in a voting rights case last term, the same justices also tend to support local education policies. The National School Boards Association is filing a brief supporting the school systems, while the Bush administration is arguing that the assignment plans are unconstitutional.

Punitive Damages Limits

The court has laid down various markers for curbing the discretion of state court systems to award punitive damages. In Philip Morris USA v. William, No. 05-1296, the Oregon Supreme Court upheld the $79.5 million award, nearly 100 times the compensatory damages a jury had awarded the smoker’s widow.

This is far greater than the 10-to-1 ratio that the court’s most recent decision, State Farm v. Campbell in 2003, suggested as the outer limit of due process. On the other hand, earlier cases concerned economic rather than physical injuries. The court’s new membership aside, this case is sufficiently distinctive in several ways so as to make the outcome unpredictable.

Air Pollution Regulation

Two cases present interpretive issues under the Clean Air Act. In Massachusetts v. Environmental Protection Agency, No. 05-1120, 16 states and other parties are challenging the Bush administration’s view that Congress has not authorized federal regulation of motor vehicle emissions that contribute to global warming. The question in Environmental Defense v. Duke Energy Corporation, No. 05-848, is what the law requires of utility companies seeking to modernize aging power plants.

    Roberts Court May Be Defined in Second Term, NYT, 2.10.2006, http://www.nytimes.com/2006/10/02/washington/02scotus.html?hp&ex=1159848000&en=795e493c0d6fa481&ei=5094&partner=homepage

Archbishop’s Call for Court Blessing Steers Clear of Issues

October 2, 2006
The New York Times
By NEELA BANERJEE

WASHINGTON, Oct. 1 — Speaking to Supreme Court justices, cabinet members, politicians and hundreds of judges and lawyers gathered here on Sunday to celebrate a special Mass marking the start of the judicial calendar, Archbishop Donald W. Wuerl of Washington rejoiced in what he called the resurgence of faith in the shaping of public policy and urged those before him to remain rooted in their religion.

“What we do and how we act, our morals and ethics, follow on what be believe,” Archbishop Wuerl told a standing-room crowd at the Roman Catholic Cathedral of St. Matthew downtown. “The religious convictions of a people sustain their moral decisions.”

Officially called the Solemn Votive Mass of the Holy Spirit, “votive” indicating that it is being celebrated for a particular intention, Red Masses are held all over the country, typically at the start of a judicial year. The Supreme Court’s new term begins Monday.

Worshipers ask for the blessing of the Holy Spirit on those who administer justice, in a tradition that goes back to 13th-century Europe. The service is called the Red Mass because of the red vestments clergy members wear.

This year, the Mass was celebrated by the new leader of the Washington Archdiocese, Archbishop Wuerl, to bless a Supreme Court that has a Catholic majority for the first time. The five Catholics on the court are Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas, Antonin Scalia and Samuel A. Alito Jr.

All but Justice Alito were in attendance Sunday, as were Attorney General Alberto R. Gonzales; several other cabinet members; Mayor Anthony A. Williams; and Lt. Gov. Michael Steele of Maryland, a Republican candidate for the Senate.

Many non-Catholics attend Red Masses, as a sign of respect. Last year, President Bush came; generally, presidents attend at least one during their terms.

A procession of priests and bishops was followed by a police color guard. A Ralph Vaughan Williams hymn was followed by the national anthem.

Having earned a reputation as a skilled diplomat in his previous tenure as bishop of Pittsburgh, Archbishop Wuerl did not overtly talk about issues the church has championed, like prohibiting abortion, although the court this session will review the constitutionality of a ban on a type of late-term abortion.

Instead, he said the values formed by religion could not be separated from the insight and judgment brought to bear on law and policy.

“The two spheres, church and state, while distinct, are always interrelated,” Archbishop Wuerl told the worshipers. “Politics, law, faith are mingled because believers are also citizens. Church and state are home for the same people.”

For those who may have been looking for some clue to the archbishop’s approach to political issues, he strode the range of Catholic social teaching without focusing on a particular topic, as he called for “speaking out against racial discrimination, social injustice or threats to the dignity of life.”

Advocates on the right and the left have said that, historically, personal religious beliefs have not necessarily directed the way justices vote on a case. But when Justice Alito was confirmed in January, the news media and others noted the Catholic majority on the court.

Few may have raised the issue of the justices’ religion if they had all been Methodist, for instance, said John H. Garvey, dean of Boston College Law School, in a telephone interview. But Mr. Garvey said it was valid to discuss the religious composition of the court because some people would assume the justices voted a particular way because of their Catholic faith.

“They are not a voting bloc,” Mr. Garvey said. “The Catholic Church is a very big tent with people from the far left and the far right in it. The fact that the Catholic members of the court are center-to-right rather than center-to-left says more about President Bush than about the Catholic Church.”

Lucia A. Silecchia, professor of law at Catholic University of America in Washington, said it was too soon to tell whether the Catholic justices held common views. “Where it gets complicated is that all five identify themselves as Catholic, but they aren’t necessarily consistent with one another,” Professor Silecchia said.

The Mass ended with “America the Beautiful” and the hymn “O God Beyond All Praising.” The archbishop descended the altar and left smiling and chatting with Chief Justice Roberts.

Later, on the steps of the cathedral, two young men approached Archbishop Wuerl to have him bless their rosaries and to take pictures with him.

As the archbishop stood with one man, the other, holding the camera, said happily, “Here’s to the union of church and state!”

The archbishop laughed, but gently corrected him. “No,” he said, “remember, I said they were two distinct spheres.”

    Archbishop’s Call for Court Blessing Steers Clear of Issues, NYT, 2.10.2006, http://www.nytimes.com/2006/10/02/washington/02mass.html?_r=1&oref=slogin