History > 2007 > USA > Constitution, laws

Supreme Court (I)

Court Refuses Child Visitation Dispute

April 30, 2007
By THE ASSOCIATED PRESS
Filed at 11:58 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court on Monday declined to get involved in a dispute between two former lesbian lovers over visitation rights involving a 4-year-old child.

The child's biological mother, Lisa Miller, had asked the justices to take the case because Vermont courts have ordered Miller to allow her former lover, Janet Jenkins, to see the child, Isabella, one week a month.

In 2000, the two women entered into a civil union in Vermont and they decided Lisa would use artificial insemination with an anonymous donor to have a child.

Isabella was born in Virginia in 2002 and the two women moved to Vermont, where they lived for a year before separating.

Miller renounced her homosexuality, returned to Virginia and denied Jenkins' demands for visitation rights.

Relying heavily on the rulings by Vermont courts, the Virginia Court of Appeals said Miller is required to comply with visitation orders of the Vermont courts under the federal Parental Kidnapping Prevention Act.

Miller says the act conflicts with a more recent federal law, the Defense of Marriage Act, on same-sex marriage. That act says no state shall be required to abide by a law of any other state with respect to a same-sex marriage.

In asking the justices to take the case, Miller's lawyers said state courts in Vermont and elsewhere have ''eviscerated the protections afforded each state'' under the Defense of Marriage Act.

Jenkins' lawyers said Vermont courts were the first to take jurisdiction of the case and that Miller's response was to ''run to a Virginia court'' seeking a result more to her liking.

The case is Lisa Miller-Jenkins v. Janet Miller-Jenkins, 06-1110.

    Court Refuses Child Visitation Dispute, NYT, 30.4.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Lesbians.html

Court Favors Microsoft in Patent Fight

April 30, 2007
By THE ASSOCIATED PRESS
Filed at 11:40 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court sided with Microsoft Corp. on Monday in a case that restricts the reach of U.S. patents overseas.

In a 7-1 decision, the court found that Microsoft is not liable in a patent dispute with AT&T.

The decision could impact other lawsuits against Microsoft and save the company billions because of the global scope of its operations.

AT&T had sued Microsoft, alleging computers running the Windows operating system infringe on an AT&T technology that compresses speech into computer code.

AT&T said it is entitled to damages for every Windows-based computer manufactured outside the United States which uses the digital speech coder system.

Microsoft acknowledged violations in the United States regarding the AT&T patent, while insisting the infringement should not be extended internationally.

AT&T said Microsoft ran afoul of a 1984 law making it patent infringement for a company to ship components of a patented product to a foreign country for assembly there.

Microsoft ships its Windows-operating system to foreign countries on master disks or via electronic transmissions. That data is copied by foreign companies which install it on the computers they manufacture.

''The presumption that United States law governs domestically but does not rule the world applies with particular force in patent law,'' Justice Ruth Bader Ginsburg wrote in the majority opinion.

Neither Windows software nor a computer standing alone without Windows installed infringes AT&T's patent, Ginsburg added.

U.S. patent law is inapplicable to the export of blueprints and there is no reason to think that Congress intended ''to place the information Microsoft dispatched from the United States in a separate category,'' Ginsburg wrote.

The Bush administration supported Microsoft in the case.

Microsoft and the Bush administration say computer code is not a component until it is copied onto a hard drive or installation disk.

Copying parts abroad for assembly and sale abroad is properly the subject of foreign law, the Justice Department solicitor general's office told the court.

In a separate unanimous ruling in this area, the justices said that a federal appeals court had gone too far in embracing a standard that has fueled an era of patent protection.

The court said a federal appeals court applied the standard in a manner that is too narrow and too rigid.

The case addresses one of the most basic issues in patent law: How to determine whether a product is obvious and therefore not worthy of a patent.

''Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may ... deprive prior inventions of their value,'' wrote Justice Anthony Kennedy.

In the case of KSR International Co. v. Teleflex Inc., the U.S. Court of Appeals for the Federal Circuit in the District of Columbia had upheld a patent for adjustable gas pedals. This court hears all appeals in the field of patents.

The legal test at issue in the Teleflex lawsuit has been criticized by the Bush administration as leading to an unwarranted extension of patent protection to claimed inventions that are obvious. Critics of the test say it results in less competition and stifles innovation. Proponents warned that throwing out the standard would upset decades of settled law.

To invalidate a patent, a challenger must show that all parts of a claimed invention were known previously. In addition, the challenger must show that there is a prior ''teaching, suggestion or motivation'' to combine these prior technologies to produce the invention.

''Helpful insights'' that the standard provides ''need not become rigid and mandatory formulas,'' Kennedy wrote.

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The Microsoft case is Microsoft v. AT&T, 05-1056

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On the Net:

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

    Court Favors Microsoft in Patent Fight, NYT, 30.4.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Microsoft.html

Justices Back Police in Chase Case

April 30, 2007
By THE ASSOCIATED PRESS
Filed at 11:37 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court on Monday gave police officers protection from lawsuits that result from high-speed car chases, ruling against a Georgia teenager who was paralyzed after his car was run off the road.

In a case that turned on a video of the chase in suburban Atlanta, Justice Antonin Scalia said law enforcement officers do not have to call off pursuit of a fleeing motorist when they reasonably expect that other people could be hurt.

Rather, officers can take measures to stop the car without putting themselves at risk of civil rights lawsuits.

''A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death,'' Scalia said.

The court sided 8-1 with former Coweta County sheriff's deputy Timothy Scott, who rammed a fleeing black Cadillac on a two-lane, rain-slicked road in March 2001.

Victor Harris, the 19-year-old driver of the Cadillac, lost control and his car ended up at the bottom of an embankment. The nighttime chase took place at roughly 90 miles an hour.

Harris, paralyzed, sued Scott.

Lower federal courts ruled the lawsuit could proceed, but the Supreme Court said Monday that it could not. Justice John Paul Stevens dissented.

In an unusual move, the court posted the dramatic video on its Web site.

Scalia described a ''Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury.''

Stevens, however, said that a district court judge and three appellate judges who watched the same video concluded that issue should be decided after a trial, not by a judge in a pretrial ruling.

He said that was preferable to the case ''being decided by a group of elderly appellate judges,'' a reference to himself and his colleagues on the court. At 87, Stevens is the oldest justice.

Scalia said people could watch the tape and decide for themselves. ''We are happy to allow the videotape to speak for itself,'' he said in a footnote that accompanied the ruling.

The case is Scott v. Harris, 05-1631.

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On the Net:

Video of the chase: http://www.supremecourtus.gov/opinions/video/scott--v--harris.rmvb

    Justices Back Police in Chase Case, NYT, 30.4.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Police-Chase.html?hp

Court Adheres to 2003 Clean Air Rules

April 30, 2007
By THE ASSOCIATED PRESS
Filed at 11:26 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court on Monday dealt the utility industry its second setback this month on a program designed to clean up pollution at aging, coal-fired power plants.

The justices refused to review Bush administration standards favored by the companies and blocked a year ago by some state and local regulators and environmental groups.

The court's action, however, is undercut by a new Bush administration regulatory proposal that would relax clean air standards at coal-fired plants. Environmental groups say the rule, if adopted, would give the industry what it could not win in the courts.

The court's action Monday leaves in place a March 2006 court decision that went against both the Bush administration and the utility industry. The U.S. Circuit Court of Appeals for the District of Columbia declared Environmental Protection Agency regulations were so lenient that they violated the Clean Air Act.

The 2003 EPA rules on a program called New Source Review would allow older coal-fired facilities to undergo extensive changes without having to install pollution controls.

The office of then-New York Attorney General Eliot Spitzer led the fight against the 2003 regulations in the lower courts, saying the Bush administration was trying to ''gut'' federal clean air law.

Last week, the Bush administration issued its latest proposal. It would undercut an April 2 Supreme Court decision and the court's decision Monday not to consider the 2003 EPA rules.

In the April 2 decision, the court ruled against Duke Energy Corp., which has been resisting regulators' demands to install pollution controls in units in North and South Carolina. The Duke ruling impacts other pending Clinton-era enforcement cases against several utilities.

The cases are EPA v. New York, 06-736, and Utility Air Regulatory Group v. New York, 06-750.

    Court Adheres to 2003 Clean Air Rules, NYT, 30.4.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Power-Plants.html

Court Decides Trash Fight

April 30, 2007
By THE ASSOCIATED PRESS
Filed at 11:16 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court ruled Monday that local governments can compel private trash haulers to use municipal facilities, even if it would cost more to keep garbage at home than to dispose of it elsewhere.

The ruling upholding local ordinances in upstate New York protects a stream of money that allows the counties, like other governments that have built recycling centers and landfills, to help pay off millions of dollars in debt they incurred to establish such facilities.

The trash companies had argued that the counties violated constitutional protections for interstate commerce. The companies said they would pay much less to send the garbage to out-of-state transfer stations where it is sorted and baled before being shipped off for permanent disposal.

But the court, in a 6-3 decision, said the Oneida-Herkimer Solid Waste Management Authority treats ''in-state private business interests exactly the same as out-of-state ones,'' avoiding any constitutional problems.

''It bears mentioning that the most palpable harm imposed by the ordinances -- more expensive trash removal -- is likely to fall upon the very people who voted for the law,'' Chief Justice John Roberts wrote for the court.

The justices decided a similar case in 1994, ruling 6-3 that local governments unlawfully restricted interstate commerce by requiring that garbage be sent to a designated transfer facility.

In that case, the facility was privately owned. The case the court decided Monday involves government-owned transfer stations.

Justices Samuel Alito, Anthony Kennedy and John Paul Stevens dissented, saying the cases were substantially similar.

The counties also run a landfill, a recycling center, a compost facility and a hazardous waste disposal station. Only the pickup of garbage is done by private companies.

The authority charges $72.15 a ton for solid waste. The trash haulers say they could dispose of the garbage they collect in the two counties for $37 to $55 a ton.

Twenty-six states and 25 other local governments and trash authorities sided with the counties.

The case is United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, 05-1345.

    Court Decides Trash Fight, NYT, 30.4.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Garbage.html

Supreme Court Throws Out 3 Death Sentences

April 25, 2007
By THE ASSOCIATED PRESS
Filed at 11:19 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court threw out death sentences for three Texas killers Wednesday because of problems with instructions given jurors who were deciding between life in prison and death.

In the case of LaRoyce Lathair Smith, the court set aside the death penalty for the second time. It also reversed death sentences for Brent Ray Brewer and Jalil Abdul-Kabir.

The cases all stem from jury instructions that Texas hasn't used since 1991. Under those rules, courts have found that jurors were not allowed to give sufficient weight to factors that might cause them to impose a life sentence instead of death.

The three 5-4 rulings had the same lineup of justices, with Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, David Souter and John Paul Stevens forming the majority.

''When the jury is not permitted to give meaningful effect or a 'reasoned moral response' to a defendant's mitigating evidence...the sentencing process is fatally flawed,'' Stevens wrote in Abdul-Kabir's case

Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented.

Roberts took aim at his colleagues in the majority in dissents he wrote in the Abdul-Kabir and Brewer cases. The court should have deferred to lower court rulings against the defendants because there was no clearly established federal law that judges could have followed to grant relief.

''Whatever the law may be today, the Court's ruling that 'twas always so -- and that state courts were 'objectively unreasonable' not to know it -- is utterly revisionist,'' Roberts said.

Smith was sentenced to die for the murder of Jennifer Soto, a former coworker at a Taco Bell who was stabbed and shot in a failed robbery.

In 2004, the justices overturned Smith's sentence because jurors were not allowed to consider sufficiently the abuse and neglect that Smith had suffered as a child.

The Texas Court of Criminal Appeals reinstated the death penalty, however, saying any errors involving the jury instructions were harmless.

Abdul-Kabir, also known as Ted Calvin Cole, was convicted in 1988 of using a dog leash to strangle Raymond Richardson, 66, during a $20 robbery at his San Angelo home. Abdul-Kabir's lawyers contend the jury that condemned him had no way to take into account the mistreatment and abandonment that contributed to his violent adult behavior.

The same sentencing problems applied to Brewer, convicted of fatally stabbing 66-year-old Robert Laminack, who was attacked in 1990 outside his Amarillo flooring business and robbed of $140. Brewer was abused as a child and suffered from mental illness, factors his jurors weren't allowed to consider, according to his petition.

The 5th U.S. Circuit Court of Appeals had upheld the death penalty for Brewer and Abdul-Kabir.

Forty-seven inmates on Texas' death row were sentenced under the rules that the state abandoned in 1991.

The cases are Smith v. Texas, 05-11304, Brewer v. Quarterman, 05-11287, and Abdul-Kabir v. Quarterman, 05-11284.

    Supreme Court Throws Out 3 Death Sentences, NYT, 25.4.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Death-Penalty.html?hp

Court Weighs Rights of Passengers When Police Stop Cars

April 24, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, April 23 — Most people sitting in the passenger seat of a car that has been stopped by a police officer do not feel free to open the door and leave. Neither do most members of the Supreme Court, or so the justices’ comments indicated during an argument Monday on the constitutional rights of passengers in that familiar but uncomfortable situation.

The question of whether a “reasonable” passenger would feel free to leave was significant because that perception is a principal part of the court’s test for whether a “seizure” has taken place within the meaning of the Fourth Amendment, which prohibits unreasonable searches and seizures.

If a reasonable person would not feel constrained, then he or she has not been “seized” and has no basis for complaining that the police have violated the Fourth Amendment. The converse is also true: a person who reasonably feels detained by the police is entitled to challenge the validity of the police action and perhaps to keep illegally seized evidence out of court.

The surprisingly vexing question of the rights of passengers was brought to the Supreme Court by a California man who was a passenger in a car that a police officer stopped, ostensibly to investigate a possibly expired registration. The stop was later found to be improper because, earlier in the day, when the car was parked, the same officer had checked and learned that it was properly registered.

The officer recognized the passenger, Bruce E. Brendlin, as a former convict who was wanted for violating his parole. The officer arrested Mr. Brendlin and, searching both him and the car, found methamphetamine supplies.

Mr. Brendlin eventually pleaded guilty to a narcotics charge but appealed on the ground that the evidence should be suppressed. The California Supreme Court ruled that because only the driver, and not Mr. Brendlin, had been seized by the stop, Mr. Brendlin had no basis for challenging anything that flowed from it.

Elizabeth M. Campbell, Mr. Brendlin’s lawyer, told the justices that when a police officer makes a traffic stop, “he seizes not only the driver of the car but also the car and every person and everything in that car.”

There might be an exception, she acknowledged in answer to a question from Justice Samuel A. Alito Jr., who asked whether a passenger would be seized if the officer, “before even approaching the car, got on the loudspeaker and said: ‘Driver remain in the car. Passenger, you’re free to go.’ ”

That hypothetical passenger would not be seized, Ms. Campbell said. But typically, she said, “a forward motion stopped by government means, intentionally applied, is a seizure.” Mr. Brendlin was entitled to challenge the search and to have the incriminating evidence excluded, she said.

The court was looking for a general rule to govern the typical passenger case; future cases will turn not on the facts of a particular case but whether there was a seizure as a matter of Fourth Amendment law. Most state courts have ruled that passengers in a typical traffic stop are seized.

Deputy Attorney General Clifford E. Zall of California argued that the driver, but not the passenger, is seized because it is the driver who submits to the officer’s authority by stopping the car. When Mr. Zall referred to “the pervasiveness and commonplace nature of a routine traffic stop,” Justice David H. Souter interrupted him in an incredulous tone. “Have you ever been subject to a traffic stop?” Justice Souter asked.

“Tell the truth now,” Justice Antonin Scalia interjected.

“Yes, yes I have,” Mr. Zall replied.

“O.K.,” Justice Souter said. “The heart rate went up. The blood pressure went up.”

A majority of the justices indicated their belief that the passenger as well as the driver was seized.

Such a conclusion may not be of much help, however, to Mr. Brendlin in his appeal, Brendlin v. California. No. 06-8120, because of an atypical aspect of his case. Many of the justices appeared to think that his arrest as a parole violator, on an existing warrant, was valid, and provided independent justification for the search. Mr. Brendlin could therefore lose his battle while winning the war for others.

Court Rejects University Appeal

WASHINGTON, April 23 (AP) — The University of Phoenix failed on Monday to win Supreme Court review of a lawsuit against the institution over student recruitment.

The university wanted to reverse a decision by the United States Court of Appeals for the Ninth Circuit in favor of two former counselors who say their pay was based on the number of students they enrolled. The appeals court had refused the university’s request to dismiss the case.

Because of abuses brought to light in the 1990s, the Higher Education Act requires that schools promise not to base pay on securing enrollment or financial aid.

    Court Weighs Rights of Passengers When Police Stop Cars, NYT, 24.4.2007, http://www.nytimes.com/2007/04/24/washington/24scotus.html

Summary of Supreme Court Actions Monday

April 23, 2007
By THE ASSOCIATED PRESS
Filed at 11:03 a.m. ET
The New York Times

The Supreme Court on Monday:

-- Accepted one new case for review, the government's challenge to an appeals court ruling that made it more difficult to win convictions in federal money laundering cases.

-- Denied former Catholic nun Lynette Petruska's bid to revive a lawsuit challenging her dismissal as college chaplain by Gannon University, a private school in Erie, Pa.

-- Rejected an appeal by former Army medic Michael New, who is fighting his bad conduct discharge after refusing to serve on a United Nations peacekeeping mission in the former Yugoslavia.

-- Turned down appeals by chemical companies to reduce their share of the costs of cleaning up a Superfund hazardous waste site in Jacksonville, Ark.

--Declined to step into a lawsuit by a white associate professor at historically black Morgan State University who says she was denied tenure and let go because of her race and gender.

-- Refused to hear a lawsuit against the University of Phoenix over allegations that pay for school counselors was based on the number of students they enrolled.

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On the Net:

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

    Summary of Supreme Court Actions Monday, NYT, 23.4.2007, http://www.nytimes.com/aponline/us/AP-Scotus-In-Brief.html

Supreme Court Upholds Ban on Abortion Procedure

April 18, 2007
By THE ASSOCIATED PRESS
Filed at 1:00 p.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court upheld the nationwide ban on a controversial abortion procedure Wednesday, handing abortion opponents the long-awaited victory they expected from a more conservative bench.

The 5-4 ruling said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman's constitutional right to an abortion.

The opponents of the act ''have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases,'' Justice Anthony Kennedy wrote in the majority opinion.

The administration had defended the law as drawing a bright line between abortion and infanticide.

Reacting to the ruling, Bush said that it affirms the progress his administration has made to uphold the ''sanctity of life.''

''I am pleased that the Supreme Court has upheld a law that prohibits the abhorrent procedure of partial birth abortion,'' he said. ''Today's decision affirms that the Constitution does not stand in the way of the people's representatives enacting laws reflecting the compassion and humanity of America.''

The decision pitted the court's conservatives against its liberals, with President Bush's two appointees, Chief Justice John Roberts and Justice Samuel Alito, siding with the majority.

Justices Clarence Thomas and Antonin Scalia also were in the majority.

It was the first time the court banned a specific procedure in a case over how -- not whether -- to perform an abortion.

Abortion rights groups as well as the leading association of obstetricians and gynecologists have said the procedure sometimes is the safest for a woman. They also said that such a ruling could threaten most abortions after 12 weeks of pregnancy, although government lawyers and others who favor the ban said there are alternate, more widely used procedures that remain legal.

The outcome is likely to spur efforts at the state level to place more restrictions on abortions.

''I applaud the Court for its ruling today, and my hope is that it sets the stage for further progress in the fight to ensure our nation's laws respect the sanctity of unborn human life,'' said Rep. John Boehner of Ohio, Republican leader in the House of Representatives.

Said Eve Gartner of the Planned Parenthood Federation of America: ''This ruling flies in the face of 30 years of Supreme Court precedent and the best interest of women's health and safety. ... This ruling tells women that politicians, not doctors, will make their health care decisions for them.'' She had argued that point before the justices.

More than 1 million abortions are performed in the United States each year, according to recent statistics. Nearly 90 percent of those occur in the first 12 weeks of pregnancy, and are not affected by Wednesday's ruling.

Six federal courts have said the law that was in focus Wednesday is an impermissible restriction on a woman's constitutional right to an abortion.

The law bans a method of ending a pregnancy, rather than limiting when an abortion can be performed.

''Today's decision is alarming,'' Justice Ruth Bader Ginsburg wrote in dissent. She said the ruling ''refuses to take ... seriously'' previous Supreme Court decisions on abortion.

Ginsburg said the latest decision ''tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists.''

Ginsburg said that for the first time since the court established a woman's right to an abortion in 1973, ''the court blesses a prohibition with no exception safeguarding a woman's health.''

She was joined by Justices Stephen Breyer, David Souter and John Paul Stevens.

The procedure at issue involves partially removing the fetus intact from a woman's uterus, then crushing or cutting its skull to complete the abortion.

Abortion opponents say the law will not reduce the number of abortions performed because an alternate method -- dismembering the fetus in the uterus -- is available and, indeed, much more common.

In 2000, the court with key differences in its membership struck down a state ban on partial-birth abortions. Writing for a 5-4 majority at that time, Justice Breyer said the law imposed an undue burden on a woman's right to make an abortion decision.

The Republican-controlled Congress responded in 2003 by passing a federal law that asserted the procedure is gruesome, inhumane and never medically necessary to preserve a woman's health. That statement was designed to overcome the health exception to restrictions that the court has demanded in abortion cases.

But federal judges in California, Nebraska and New York said the law was unconstitutional, and three appellate courts agreed. The Supreme Court accepted appeals from California and Nebraska, setting up Wednesday's ruling.

Kennedy's dissent in 2000 was so strong that few court watchers expected him to take a different view of the current case.

Kennedy acknowledged continuing disagreement about the procedure within the medical community. In the past, courts have cited that uncertainty as a reason to allow the disputed procedure.

But Kennedy said, ''The law need not give abortion doctors unfettered choice in the course of their medical practice.''

He said the more common abortion method, involving dismemberment, is beyond the reach of the federal ban.

While the court upheld the law against a broad attack on its constitutionality, Kennedy said the court could entertain a challenge in which a doctor found it necessary to perform the banned procedure on a patient suffering certain medical complications.

Doctors most often refer to the procedure as a dilation and extraction or an intact dilation and evacuation abortion.

The law allows the procedure to be performed when a woman's life is in jeopardy.

The cases are Gonzales v. Carhart, 05-380, and Gonzales v. Planned Parenthood, 05-1382.

    Supreme Court Upholds Ban on Abortion Procedure, NYT, 18.4.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Abortion.html?hp

Editorial

Guantánamo Follies

April 6, 2007
The New York Times

There has been much speculation about the Supreme Court’s decision not to hear an appeal from a group of Guantánamo Bay inmates until they have exhausted their legal options. Was the court signaling that the appeal had no merit? Were the court’s liberals waiting for a better chance to review President Bush’s unconstitutional detention system for “illegal enemy combatants”?

Whatever the justices’ intentions, we saw one clear message in their decision, and we hope that Nancy Pelosi, the House speaker, and Harry Reid, the Senate majority leader, saw it too. It is past time for Congress to undo the grievous damage done by President Bush’s abuse of the Constitution when he created his system of secret prisons and public internment camps to detain selected foreigners indefinitely without any real legal challenge.

In the months since Congress passed the Military Commissions Act of 2006, the administration has pushed ahead with the show trials permitted by the law. Each development in that courtroom brings fresh evidence of how urgent it is for the courts to strike down that law and for Congress to rewrite it.

The plea bargain: Last month, after being held at Guantánamo for five years, David Hicks, an Australian citizen, pleaded guilty to a single, relatively minor charge in exchange for his freedom. This deal should infuriate any side of the debate.

Americans who support Mr. Bush’s policy on prisoners accepted its premise: that the people in Guantánamo are so dangerous that letting any out will compromise American security. If an injustice were committed here or there, Americans would just have to grit their teeth. How does that square with allowing Mr. Hicks to go home and quickly go free? Worse, the plea bargain seemed timed to help Prime Minister John Howard, a Bush ally whose inaction on the case was becoming a re-election issue in Australia.

For Americans, like us, who are sickened by the Guantánamo prison, the Hicks bargain was emblematic of its lawless nature. If there was evidence that Mr. Hicks was a terrorist, we have yet to see it. He was declared an illegal combatant by a kangaroo court created to confirm that designation, which had been applied long before. He was denied a lawyer and censored by the court when he tried to pursue abuse charges. Under his plea bargain he gave up his right to sue, repudiated his own accounts of abuse and was even barred from talking to the news media about his experience.

To understand why Mr. Hicks still found that sort of deal attractive, remember that once a person is declared an “illegal enemy combatant,” he faces a lifetime in detention. He might be released by a “combatant status tribunal,” but his chances are very slim, and the process mocks civilized standards of justice. If the prisoner is one of the very few that the Pentagon plans to charge with a crime, he will be brought before a military tribunal. That court may use evidence obtained through hearsay, coercion or even torture. If convicted, there is little likelihood that he will be released after serving his time. If acquitted, he just goes back to being an illegal combatant who can be held for life.

The censored confession: On March 14, Abd al-Rahim al Nashiri, accused of the bombing of the U.S.S. Cole and other crimes, went before a combatant status tribunal. According to a transcript, Mr. Nashiri said he was tortured. But it is Mr. Bush’s policy that no prisoner may allege torture in public, so this is what appeared in the transcript:

PRESIDENT (of the tribunal): Please describe the methods that were used.

DETAINEE: (CENSORED) What else do I want to say? (CENSORED) There were doing so many things. What else did they did? (CENSORED) After that another method of torture began. (CENSORED) They used to ask me questions and the investigator after that used to laugh. And, I used to answer the answer that I knew. And if I didn’t replay what I heard, he used to (CENSORED).

Officials defended this censorship by arguing that interrogation methods are so secret that they cannot be discussed, even by the prisoner. But they also said that Al Qaeda members are trained to claim torture and that Mr. Nashiri lied. If so, why censor the transcript? His answers can’t help Al Qaeda. Tragically, the most likely answer is to spare United States intelligence agents and their bosses, who could face charges if the Military Commissions Act is ever repealed or rewritten. The law gives a retroactive carte blanche to American interrogators for any abuse they may have committed.

The lawsuit: The case the Supreme Court turned down this week was filed by Guantánamo inmates who contend that their detention was illegal and that the Military Commissions Act is unconstitutional. We agree. Holding people without evidence or charges or trial is barbaric, as is denying them the right to challenge their detention in a real court, a right generally referred to as habeas corpus.

Both violate the Constitution, and the court should strike down the Military Commissions Act of 2006, and the Detainee Treatment Act of 2005, which limits avenues for appeal. But Congress approved the military commissions, left in place the combatant status review tribunals and suspended habeas corpus. Mr. Reid and Ms. Pelosi have a moral obligation to lead the way to righting these wrongs.

    Guantánamo Follies, NYT, 6.4.2007, http://www.nytimes.com/2007/04/06/opinion/06fri1.html

Supreme Court Denies Guantánamo Appeal

April 3, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, April 2 — The Supreme Court on Monday declined to hear urgent appeals from two groups of detainees at Guantánamo Bay. The 45 men sought to challenge the constitutionality of a new law stripping federal judges of the authority to hear challenges to the open-ended confinement of foreign citizens held at the American naval base in Cuba and designated as enemy combatants.

The court’s action leaves standing a ruling six weeks ago by the federal appeals court here that upheld the jurisdiction-stripping provision of the Military Commissions Act of 2006. The justices’ refusal to hear the case at this point, before any of the detainees have availed themselves of alternative appeal procedures that their lawyers argue are unconstitutionally truncated, does not foreclose eventual consideration by the court after those appeals have run their course.

The men have all been held at Guantánamo Bay for more than five years, and none has been charged with a crime. They filed petitions for habeas corpus, challenging their continued confinement, before Congress ordered in the 2006 law that all such petitions must be dismissed and no new ones could be accepted for filing.

Ordinarily, the Supreme Court makes no comment when it turns down an appeal. In this instance, the court offered an unusual degree of transparency, with two separate opinions accompanying the one-sentence order denying the two petitions.

One was a dissenting opinion from three justices, Stephen G. Breyer, David H. Souter and Ruth Bader Ginsburg, who voted to hear the cases as “significant ones warranting our review,” as Justice Breyer said in an opinion that spoke for the three.

The separate opinion was a statement “respecting the denial,” signed jointly by Justices John Paul Stevens and Anthony M. Kennedy. They explained why they voted against hearing the cases. They said the court should follow its usual practice for ordinary prison inmates and require “the exhaustion of available remedies as a precondition to accepting jurisdiction over applications for the writ of habeas corpus.”

Despite the apparent transparency, the real story was probably one that no justice acknowledged: the inability of the court’s four most liberal members, Justices Stevens, Breyer, Souter and Ginsburg, to count on Justice Kennedy’s eventual vote.

While four votes are sufficient to grant a case under the court’s rules, five are of course necessary to win it. The liberal justices, or at least their leader, Justice Stevens, may well have decided that refraining at this point was the wiser course, given the risk that the case might come out the “wrong” way, from their point of view, with an affirmation of the appeals court’s decision that would then become a hard and fast Supreme Court precedent.

Justice Stevens is the author of the court’s two decisions rejecting the Bush administration’s legal analysis of the status of the Guantánamo detainees, Rasul v. Bush in 2004 and Hamdan v. Rumsfeld last June. He almost certainly agreed on Monday with the assessment in Justice Breyer’s dissenting opinion that the men bringing the new appeals “plausibly argue that the lower court’s reasoning is contrary to this court’s precedent” as expressed in the earlier opinions.

But Justice Stevens, who will turn 87 later this month, is also a strategic and canny inside player who knew that providing a fourth vote to hear the cases without assurance of Justice Kennedy’s position risked putting them on track to the wrong destination.

Furthermore, Justice Ginsburg evidently did not agree with Justices Stevens and Souter that the court should not only grant the appeals, but also should schedule argument on an expedited basis in order to decide them in June. She declined to sign the part of Justice Breyer’s opinion that called for expedited review.

That meant that even if the court did vote to hear the cases, the argument would be deferred until next fall and a decision might well be a year or more away. Now that the appeals have been denied, the detainees’ lawyers will undoubtedly explore other options for moving the cases along, perhaps even more quickly.

Justices Stevens and Kennedy said pointedly that if it turns out that “the government has unreasonably delayed proceedings” or subjects the detainees to “some other and ongoing injury,” the Supreme Court would be open to a renewed appeal.

At issue at this point are challenges to proceedings known as Combatant Status Review Tribunals that decide whether a detainee should be labeled an enemy combatant. Under the Detainee Treatment Act of 2005, the United States Court of Appeals for the District of Columbia Circuit has sole jurisdiction to hear appeals from the tribunal’s determination.

The detainees’ lawyers argue that both the tribunals and the limited form of review in the appeals court are fatally flawed.

The cases were Boumediene v. Bush, No. 06-1195, and Al Odah v. United States, No. 06-1196.

    Supreme Court Denies Guantánamo Appeal, NYT, 3.4.2007, http://www.nytimes.com/2007/04/03/washington/03gitmo.html?hp

Supreme Court Denies Guantanamo Appeal

April 2, 2007
By THE ASSOCIATED PRESS
Filed at 12:17 p.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court rejected an appeal Monday from Guantanamo detainees who want to challenge their five-year-long confinement in court, a victory for the Bush administration's legal strategy in its fight against terrorism.

The victory may be only temporary, however. The high court twice previously has extended legal protections to prisoners at the U.S. naval base in Cuba. These individuals were seized as potential terrorists following the Sept. 11, 2001 attacks and only 10 have been charged with a crime.

Despite the earlier rulings, none of the roughly 385 detainees has yet had a hearing in a civilian court challenging his detention because the administration has moved aggressively to limit the legal rights of prisoners it has labeled as enemy combatants.

A federal appeals court in Washington in February upheld a key provision of a law enacted last year that strips federal courts of their ability to hear such challenges.

At issue is whether prisoners held at Guantanamo have a right to habeas corpus review, a basic tenet of the Constitution that protects people from unlawful imprisonment.

The detainees' core argument is that no matter where they are held by American authorities, they are entitled to access to U.S. courts. They want the court to strike down the new law as unconstitutional.

The court does not announce votes on granting cases, but it takes four votes among the nine justices for an appeal to be heard.

In this case, Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter said they would have accepted the appeals.

Two other justices, Anthony Kennedy and John Paul Stevens, said they opposed hearing the cases at this time strictly on procedural grounds. The other justices who did not vote to hear the cases are Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

''We're disappointed and for us this is a delay that is unconscionable,'' said Michael Ratner, president of the Center for Constitutional Rights, which has led the fight to gain court access for the detainees.

Ratner said that in enacting the Detainee Treatment Act, Congress ''rips out the heart'' of court access ''and now the court says 'let's wait.' That's another year of delay.''

Former military officers, diplomats and federal judges joined the detainees in urging the court to take prompt action. The court ''held in no uncertain terms that the Guantanamo detainees were entitled to habeas corpus review to challenge the lawfulness of their detention,'' they said in their supporting brief. ''But since that decision in June 2004, the court's mandate has been frustrated and not a single detainee has had a habeas hearing in federal court.''

But the administration said that because of changes in the law since 2004 there was no need for the justices to hurry. Congress has authorized military hearings to assess whether the prisoners are being properly detained as enemy combatants. Those decisions can be appealed in a limited fashion to the U.S. Court of Appeals for the D.C. Circuit, the same court that ruled in the administration's favor in February.

''There is no need for this court to assess the adequacy of the...review before it has taken place,'' Solicitor General Paul Clement, the administration's top Supreme Court lawyer, wrote.

The court is likely to be faced with the same cases it rejected Monday once the appeals court begins conducting reviews.

Clement also argued that the appeals court was correct in holding that aliens outside the United States have no rights under the U.S. Constitution.

''The questions presented are significant ones warranting our review,'' Breyer wrote.

Bipartisan proposals already have been introduced in the Democratic-led Congress to rewrite the 2006 law that swept away the detainees' access to U.S. courts. It was enacted by the then-GOP majority at the request of the White House.

The Supreme Court has twice thwarted the administration's efforts to keep the detainees out of the courts.

The Bush administration has reacted to each of the two previous rebuffs by undertaking remedial measures.

In 2004, the justices ruled that the courts can hear the detainees' cases, saying that prisoners under U.S. control have access to civilian courts, no matter where they are being held. remedial measures. ''The courts of the United States have traditionally been open to nonresident aliens,'' Stevens wrote in Rasul V. Bush.

In 2006, the justices ruled that President Bush's plan for military war crimes trials, envisioned for a small number of Guantanamo Bay detainees, is illegal under U.S. and international law. The justices also said a law that Congress passed in 2005 to limit federal court lawsuits by Guantanamo detainees did not apply to pending cases.

After the Supreme Court ruling in 2004, the Pentagon set up panels that reviewed whether each of the detainees had been correctly categorized as an enemy combatant, and therefore not entitled to any legal rights.

After the justices' ruling in 2006, Congress at the urging of the White House enacted the law which blocked detainees from coming into U.S. courts and established new rules for the military trials.

    Supreme Court Denies Guantanamo Appeal, NYT, 2.4.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Guantanamo-Detainees.html?hp

Court Rebukes Administration in Global Warming Case

April 2, 2007
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court ordered the federal government on Monday to take a fresh look at regulating carbon dioxide emissions from cars, a rebuke to Bush administration policy on global warming.

In a 5-4 decision, the court said the Clean Air Act gives the Environmental Protection Agency the authority to regulate the emissions of carbon dioxide and other greenhouse gases from cars.

Greenhouse gases are air pollutants under the landmark environmental law, Justice John Paul Stevens said in his majority opinion.

The court's four conservative justices -- Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas -- dissented.

Many scientists believe greenhouse gases, flowing into the atmosphere at an unprecedented rate, are leading to a warming of the Earth, rising sea levels and other marked ecological changes.

The politics of global warming have changed dramatically since the court agreed last year to hear its first global warming case.

"In many ways, the debate has moved beyond this," said Chris Miller, director of the global warming campaign for Greenpeace, one of the environmental groups that sued the EPA. "All the front-runners in the 2008 presidential campaign, both Democrats and Republicans, even the business community, are much further along on this than the Bush administration is."

Democrats took control of Congress last November. The world's leading climate scientists reported in February that global warming is "very likely" caused by man and is so severe that it will "continue for centuries." Former Vice President Al Gore's movie, An Inconvenient Truth -- making the case for quick action on climate change -- won an Oscar. Business leaders are saying they are increasingly open to congressional action to reduce greenhouse gases emissions, of which carbon dioxide is the largest.

Carbon dioxide is produced when fossil fuels such as oil and natural gas are burned. One way to reduce those emissions is to have more fuel-efficient cars.

The court had three questions before it.

--Do states have the right to sue the EPA to challenge its decision?

--Does the Clean Air Act give EPA the authority to regulate tailpipe emissions of greenhouse gases?

--Does EPA have the discretion not to regulate those emissions?

The court said yes to the first two questions. On the third, it ordered EPA to re-evaluate its contention it has the discretion not to regulate tailpipe emissions. The court said the agency has so far provided a "laundry list" of reasons that include foreign policy considerations.

The majority said the agency must tie its rationale more closely to the Clean Air Act.

"EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change," Stevens said. He was joined by his liberal colleagues, Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter, and the court's swing voter, Justice Anthony Kennedy.

The lawsuit was filed by 12 states and 13 environmental groups that had grown frustrated by the Bush administration's inaction on global warming.

In his dissent, Roberts focused on the issue of standing, whether a party has the right to file a lawsuit.

The court should simply recognize that redress of the kind of grievances spelled out by the state of Massachusetts is the function of Congress and the chief executive, not the federal courts, Roberts said.

His position "involves no judgment on whether global warming exists, what causes it, or the extent of the problem," he said.

The decision also is expected to boost California's prospects for gaining EPA approval of its own program to limit tailpipe emissions of greenhouse gases. Federal law considers the state a laboratory on environmental issues and gives California the right to seek approval of standards that are stricter than national norms.

The case is Massachusetts v. EPA, 05-1120.

    Court Rebukes Administration in Global Warming Case, NYT, 2.4.2007, http://www.nytimes.com/aponline/business/AP-Scotus-Greenhouse-Gase.html?hp

Court Rules Against Whistle - Blower

March 27, 2007
By THE ASSOCIATED PRESS
Filed at 3:23 p.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court left an 81-year-old retired engineer without a penny to show for his role in exposing fraud at a former nuclear weapons plant in a ruling that makes it harder for whistle-blowers to claim cash rewards.

James Stone stood to collect up to $1 million from a lawsuit he filed in 1989 against Rockwell International, now part of aerospace giant Boeing Co., over problems with environmental cleanup at the now-closed Rocky Flats nuclear weapons plant northwest of Denver.

A court eventually ordered Rockwell to pay the government nearly $4.2 million for false claims the company submitted. Stone could have received up to a quarter of Rockwell's payment, under the False Claims Act.

But Justice Antonin Scalia, writing in the 6-2 ruling Tuesday, said Stone was not entitled to recover any money because he lacked ''direct and independent knowledge of the information upon which his allegations were based.'' Scalia said Stone had little connection to the jury's ultimate verdict against Rockwell.

The company must pay the entire penalty anyway. The only question before the court was whether Stone would get a cut.

The outcome was sought by business interests that were looking for the court to limit whistle-blowers in false claims lawsuits. Since Congress reinvigorated the Civil War-era law in 1986, those suits have returned $11 billion to the government. Recent high-profile cases include settlements with leading pharmaceutical manufacturers.

The decision will cause whistle-blowers, or relators, to think twice before they file false claims lawsuits, said Peter B. Hutt II, an expert in false claims lawsuits in Washington.

''The principal thing the court did is essentially try to preclude relators from engaging in fishing expeditions,'' said Hutt, a lawyer at the Miller and Chevalier firm.

James Moorman, president of the advocacy group Taxpayers Against Fraud Education Fund, agreed. Individuals whose information leads the government to pursue fraud can be told years later that they can't collect anything, Moorman said.

''No whistle-blower can afford to pursue a case to resolution under these circumstances,'' he said.

The Bush administration sided with Stone, arguing that it was in the government's interest to encourage whistle-blowers, even though the government keeps more money now that Stone has lost.

Hartley Alley, a Colorado-based lawyer who represented Stone, said the decision fails to recognize the importance of Stone's actions at Rocky Flats, now a Superfund cleanup site. ''He is the one primarily responsible for exposing the criminal activities of Rockwell International at Rocky Flats,'' Hartley said.

In nearly four decades, some 70,000 plutonium triggers for nuclear bombs were made at Rocky Flats. Production was halted in 1989 because of chronic safety problems, prompting a raid by FBI agents. The Cold War ended before production could resume.

The company pleaded guilty in 1992 to violating federal environmental laws.

Hartley said Stone, who lives in Wheat Ridge, Colo., would not agree to an interview.

Once allegations are disclosed publicly, often by the media, individuals face a higher hurdle in bringing fraud suits on the government's behalf. Otherwise, people could read a newspaper account or an indictment and then rush to the courthouse to file suit.

The major exception to this rule is if an individual is an original source of the information, which Stone said he was. Stone did not file suit until after problems at Rocky Flats became public. He did, however, approach federal investigators with information about environmental issues before news accounts were published.

The company said his claim was implausible. Stone was laid off the year before Rockwell began submitting false claims saying it was meeting goals of treating low-level radioactive wastes at the former atomic weapons plant.

Justice John Paul Stevens, in a dissent joined by Justice Ruth Bader Ginsburg, said whistle-blowers should have to show only that their information led the government to the fraud, not that the claims ultimately proved to a jury must also have come from them. Justice Stephen Breyer did not take part in the case.

The case is Rockwell International v. U.S., ex rel Stone, 05-1272.

------

On the Net:

Rockwell Internation: http://tinyurl.com/26m8r3

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

    Court Rules Against Whistle - Blower, NYT, 27.3.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Whistle-blower.html

Man Convicted in Incest Case Plans Appeal to Supreme Court

March 25, 2007
The New York Times
By BOB DRIEHAUS

CINCINNATI, March 23 — A man convicted of having sex with his 22-year-old stepdaughter is seeking to challenge Ohio’s incest law through an appeal to the United States Supreme Court.

Paul D. Lowe, 44, a former sheriff’s deputy, pleaded no contest to a sexual battery charge in 2004 for having intercourse with his stepdaughter, who was 22. He was sentenced to 120 days in jail, three years of community control and 250 hours of community service and was designated a sexual offender.

The case is complicated by the county prosecutor’s contention that the sex between Mr. Lowe and his stepdaughter was not consensual.

The case originated in 2003 when the stepdaughter told the police that she had been raped by Mr. Lowe. Because the woman made the accusation well after the sex occurred and to save her the trauma of cross-examination, prosecutors chose not to charge Mr. Lowe with rape, but only with sexual battery based on the incest law, said Ronald Mark Caldwell, an assistant Stark County prosecutor.

The conviction was upheld by the Ohio Supreme Court in a 6-to-1 decision on Feb. 28. It ruled that Mr. Lowe had no constitutional right to have sex with his stepdaughter and that the Ohio law unambiguously barred sex regardless of the stepchild’s age.

“The state has a legitimate interest in prohibiting incestuous relations and in protecting the family unit and family relationships,” the court ruled, adding, “The law makes no exception for consent of the stepchild or the stepchild’s age.”

J. Dean Carro, Mr. Lowe’s lawyer and a University of Akron law professor, said he was troubled by the breadth of the state law, which criminalizes sexual contact between stepparents and stepchildren of any age.

He argues that consensual sex that does not involve minors or adults who may be coerced or injured by the act should be legal in light of the landmark 2003 Lawrence v. Texas decision in which the Supreme Court overturned a Texas sodomy law that barred consenting adults from engaging in homosexual contact.

Mr. Carro hopes the case could refine the Texas ruling by answering whether the court recognizes a fundamental right for adults to have private, consensual sexual relations without government control. Legal scholars on both sides of the issue agree that the 2003 ruling does not definitively answer the question.

County prosecutors have argued successfully that the state has an interest in protecting traditional family structures.

“There’s a certain relationship that we want to foster,” said Mr. Caldwell, the Stark County prosecutor. “If this guy wants to engage in sexual conduct with his stepdaughter, divorce the wife. Break the family bond. Until you do that, the state is going to recognize that this is a family unit with all the rights and responsibilities that entails.”

Mr. Caldwell said the critical difference between Mr. Lowe’s case and the Texas decision was that Mr. Lowe had a familial relationship with his stepdaughter that the state had a legitimate interest in protecting.

Douglas Berman, an Ohio State University law professor, said the rape accusation might keep the case off the Supreme Court’s docket.

He predicted that the court would wait to review the constitutionality of the Ohio law for a more clear-cut case. “When the state of Ohio goes and tries to prosecute the 70-year-old for sleeping with his 50-year-old stepdaughter, we’ll worry about this when that happens.”

    Man Convicted in Incest Case Plans Appeal to Supreme Court, NYT, 25.3.2007, http://www.nytimes.com/2007/03/25/us/25stepdaughter.html

Justices to Hear Case on Wages of Home Aides

March 25, 2007
The New York Times
By STEVEN GREENHOUSE

Evelyn Coke sat in her wood-frame home in Corona, Queens, a hobbled figure, not realizing that this is supposed to be her moment in the spotlight.

For 20 years, she had cared for clients in their homes, bathing them, cooking for them, helping them dress and take their medications. But now, suffering from kidney failure, she is too ill to work.

Her mind and memory are not what they once were, she acknowledges, and as a result she is hazy about the important events that will take place on April 16. On that day, the Supreme Court of the United States is scheduled to hear oral arguments in a case in which Ms. Coke, a 73-year-old immigrant from Jamaica, is the sole plaintiff.

She is challenging Labor Department regulations that say home care attendants, who number 1.4 million, are not covered by federal minimum-wage and overtime laws.

“I loved my work, but the money was not good at all,” Ms. Coke said in a whispering voice, noting that she often worked three or four 24-hour days a week, sleeping at a client’s home, while hardly ever receiving time-and-a-half pay for overtime.

The stakes in her case are considerable, not least because home care attendant is one of the nation’s fastest growing occupations. There are expected to be nearly two million aides by 2014, as the elderly population grows and government pushes for the elderly to be cared for at home rather than in nursing homes, where costs are high.

Ms. Coke’s lawsuit has attracted powerful supporters and opponents.

The nation’s largest health care union, the Service Employees International Union, is backing Ms. Coke’s effort because a victory for her could mean larger paychecks for hundreds of thousands of home care aides, many of whom live in poverty.

AARP plans to file a brief backing Ms. Coke, arguing that the increased pay that would result from requiring overtime coverage would reduce turnover among home care aides and help prevent a shortage.

The federal government and the Bloomberg administration have lined up against her, arguing that a victory for Ms. Coke could greatly increase Medicare and Medicaid costs, perhaps causing a budget shortfall that could leave many of the elderly without home-care aides.

In a friend-of-the-court brief, the Bloomberg administration, joined by the New York State Association of Counties, argued, “In the worst cases, some clients, especially those with high hour needs, might no longer be able to be serviced in their homes and might have to be institutionalized.”

The Bloomberg administration said a victory for Ms. Coke could force the city, state and federal governments, which all finance home care through Medicaid, to pay $250 million more a year to the 60,000 home attendants who work in the city.

Some advocacy groups have criticized the city’s position, saying it conflicts with Mayor Michael R. Bloomberg’s push to reduce poverty because keeping these aides exempt from overtime coverage would hold down their pay.

The defendant in Ms. Coke’s case is Long Island Care at Home, which is based in Westbury and employs 50 aides.

MaryAnn Osborne, Long Island Care’s vice president, said that a defeat in court could put her agency out of business because, with many aides working 60 or 70 hours a week, it might face huge overtime costs. Her agency pays aides $8 to $11 an hour, but a defeat in the Supreme Court would require the agency to pay time and a half, meaning $12 to $16.50 an hour, for overtime.

“This would be horrendous for the entire industry because the reimbursement rate we get won’t cover that type of money,” she said.

But supporters of Ms. Coke’s lawsuit say that if she wins, the government would most likely increase reimbursement rates to compensate for the overtime costs.

Ms. Coke said that Long Island Care made a lot of money off her, saying she earned just $7 an hour when she last worked there in 2001.

Moreover, she said, she did not get paid overtime for her 24-hour stints at homes in Great Neck, Roslyn, Manhasset and other communities.

She said she stopped working because she was hit by a car, injuring her shoulder, and she later had colon and kidney problems. “The job didn’t even give us health insurance,” said Ms. Coke, who goes to a dialysis clinic three times a week.

The Supreme Court agreed to hear her case after the United States Court of Appeals for the Second Circuit overturned Labor Department regulations that exempted home care aides from federal minimum-wage and overtime coverage, saying the exemption conflicted with Congress’s intent.

Before 1974, home care aides were generally covered by minimum-wage and overtime laws if they were employed by agencies. (Aides hired directly by families were not covered and will remain exempt from overtime regardless of the outcome of Ms. Coke’s case.)

In amending the Fair Labor Standards Act in 1974, Congress extended minimum-wage and overtime coverage to household workers like maids and cooks but said that baby sitters and “companions” for the elderly and infirm would be exempt.

When the Labor Department first proposed regulations to enforce the changes in the law, it said that home care workers employed by agencies should continue to get overtime. But the department reversed itself in 1975, saying Congress had not intended to allow those workers overtime when it created the exemptions the year before.

But the Court of Appeals, sitting in Manhattan, wrote, “It is implausible, to say the least, that Congress, in wishing to expand F.L.S.A. coverage, would have wanted the Department of Labor to eliminate coverage for employees of third-party employers who had previously been covered.”

Those urging the Supreme Court to overturn that ruling say the Court of Appeals failed to show proper deference to the Labor Department’s decision-making authority.

Even with the exemption, few home care workers receive less than the federal minimum wage of $5.15 an hour. But many do not receive any overtime premium even when they work more than 40 hours a week. (Under federal rules, workers who sleep in are generally paid for all extra hours on the job, less eight hours’ sleep time.)

Natasha Maye, a home care aide in Philadelphia who is part of a separate suit concerning the minimum wage, is rooting for Ms. Coke. She said that she earned, in effect, less than $5.15 an hour at her former agency because she was not paid for the two hours spent each day traveling between her three clients’ homes. Including travel time, she said, she often put in 60 hours a week and earned $300.

“I don’t think that’s fair,” she said. “We should be entitled to overtime and travel time.”

The Clinton administration, in its next-to-last day in office in 2001, proposed regulations that would restore minimum-wage and overtime protections to home care aides employed by agencies, arguing that the 1975 exemption clashed with Congressional intent. But in 2002, the Bush administration scrapped that proposal, concluding the revised rules would have a severe economic impact on clients, government budgets and home care agencies.

In its brief, Long Island Care at Home argued that exempting aides who worked for agencies was consistent with Congressional intent because some lawmakers back in 1974 voiced concerns about holding costs down. “The need to restrain costs in the case of third-party employees has only become more acute as agencies provide an increasing amount of needed care,” Long Island Care said.

But Craig Becker, the chief lawyer for Ms. Coke, argued that legislative history showed that the exemption to minimum wage and overtime laws was to apply only to baby sitters and companions who were employed directly by families and were not regular breadwinners.

“In its exemption for baby sitters and companions Congress had in mind the quintessential neighbor-to-neighbor relations,” Mr. Becker said. “Increasingly this is not a casual form of work akin to baby-sitting but a full-time regular type of employment.”

Ms. Coke became a plaintiff through unusual circumstances. After she was hit by the car six years ago, she hired a lawyer, Leon Greenberg. When seeking to determine her economic losses, Mr. Greenberg learned that she sometimes worked 70 or more hours a week without receiving any overtime premium.

He invited her to bring a test case challenging the federal exemption. Ms. Coke agreed. Mr. Greenberg is no longer involved in the case; her current legal costs are being paid by the service employees union.

And because of her condition, Ms. Coke now has her own, unpaid, home care aide: her son Michael, a computer technician.

She said she brought the lawsuit to help hundreds of thousands of home care workers like her for years to come. But she also said there was another reason. “I just hope I get some money from this,” she said.

    Justices to Hear Case on Wages of Home Aides, NYT, 25.3.2007, http://www.nytimes.com/2007/03/25/nyregion/25aides.html?hp

Editorial

Students’ Right to Free Speech

March 20, 2007
The New York Times

The Supreme Court heard arguments yesterday in a case that has attracted attention mainly because of its eccentric story line: An Alaska student was suspended from high school in 2002 after he unfurled a banner reading “Bong Hits 4 Jesus” while the Olympic torch passed by. But the case raises important issues of freedom of expression and student censorship that go far beyond the words on that banner. The court should affirm the appeals court’s well-reasoned decision that when the school punished the student it violated his First Amendment rights.

Joseph Frederick and his fellow students were allowed to leave the grounds of Juneau-Douglas High School so they could watch the Olympic torch pass nearby. When the cameras began to roll, he unfurled his banner, which he says was meant to be funny and get him on television. The principal took it from him, and suspended him for 10 days.

Mr. Frederick says the suspension violated his rights. The school board insists the principal had the right to confiscate the banner and punish the student because the language undermined its teachings about the dangers of illegal drugs. The San Francisco-based United States Court of Appeals for the Ninth Circuit ruled for Mr. Frederick, citing the 1969 case Tinker v. Des Moines Independent Community School District, which held that students have the right to free speech, which can be suppressed only when the speech disrupts school activities.

The Bush administration joined the school district in arguing that schools have broad authority to limit talk about drugs because of the importance of keeping drugs away from young people. But if schools can limit speech on any subject deemed to be important, students could soon be punished for talking about the war on terror or the war in Iraq because the government also considers those subjects important.

Some school administrators would no doubt use their power to clamp down on conservative speech while others would clamp down on liberal speech. A school that values diversity could punish students who criticize affirmative action, while a more conservative school could ban students from taking outspoken positions about global warming. Religious groups have joined civil libertarians in backing Mr. Frederick because they fear schools will punish students who talk about their religious beliefs.

If the Supreme Court wants to dodge the free-speech-in-school issues, it could rule that the off-campus Olympic torch event was not a formal school activity — and that the principal had no right to limit anyone’s free speech there. That would not harm students’ free speech rights, but it would also do little to affirm them.

The court should go further, and rule that Mr. Frederick’s rights were infringed. Students do not have the right to interfere substantially with school activities, but Mr. Frederick did not do that. The court should use this case to reaffirm Tinker’s famous pronouncement that students do not shed their right to free speech “at the schoolhouse gate.”

    Students’ Right to Free Speech, NYT, 20.3.2007, http://www.nytimes.com/2007/03/20/opinion/20tue1.html

Court Hears Whether a Drug Statement Is Protected Free Speech for Students

March 20, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, March 19 — Kenneth W. Starr had a strategy for convincing the Supreme Court that an Alaska high school principal and school board did not violate a student’s free-speech rights by punishing him for displaying the words “Bong Hits 4 Jesus” on a 14-foot-long banner across the street from school as the 2002 Olympic torch parade went by.

“Illegal drugs and the glorification of the drug culture are profoundly serious problems for our nation,” Mr. Starr, a former solicitor general, told the justices in the opening moments of his argument on Monday.

In other words, his approach was to present the free-speech case as a drug case and argue that whatever rights students may have under the First Amendment to express themselves, speaking in oblique or even in arguably humorous dissent from a school’s official antidrug message is not one of them.

That was Mr. Starr’s story, and he stuck with it, through a series of hypothetical questions from the justices and on into a one-minute rebuttal at the end of the lively hour. While Mr. Starr may not prevail on the full breadth of his argument, his strategy appeared on the verge of succeeding well enough to shield his clients, the Juneau School Board and Deborah Morse, the high school principal, from having to pay damages to the student, Joseph Frederick.

A majority of the court seemed willing to create what would amount to a drug exception to students’ First Amendment rights, much as the court has in recent years permitted widespread drug testing of students, even those not personally suspected of using drugs, under a relaxed view of the Fourth Amendment prohibition against unreasonable searches.

Mr. Starr’s biggest ally on the court was the man who once worked as his deputy in the solicitor general’s office, Chief Justice John G. Roberts Jr. The chief justice intervened frequently throughout both sides of the argument, making clear his view that schools need not tolerate student expression that undermines what they define as their educational mission.

“Why is it that the classroom ought to be a forum for political debate simply because the students want to put that on their agenda?” Chief Justice Roberts asked Mr. Starr.

The question was particularly interesting because Mr. Starr had just sought to reassure the court that his argument was not limitless. The court’s leading precedent on student speech, a 1969 decision called Tinker v. Des Moines School District, “articulates a baseline of political speech” that students have a presumptive right to engage in, Mr. Starr said.

That was too far to the middle for the chief justice. “Presumably, the teacher’s agenda is a little bit different and includes things like teaching Shakespeare or the Pythagorean theorem,” he said, adding that “just because political speech is on the student’s agenda, I’m not sure that it makes sense to read Tinker so broadly as to include protection of that speech.”

And later, Chief Justice Roberts took issue with a suggestion by the student’s lawyer, Douglas K. Mertz, that schools that seek to inculcate an antidrug message must permit students, outside the formal classroom setting, to offer competing views. “Content neutrality is critical here,” Mr. Mertz said.

“Where does that notion that our schools have to be content neutral” come from, the chief justice wanted to know. He added, “I thought we wanted our schools to teach something, including something besides just basic elements, including character formation and not to use drugs.”

Mr. Mertz clarified his point. “There is no requirement of equal time or that it be neutral,” he said. The school should be able to express a viewpoint, he continued, but “in the lunchroom, outside in recess, across the street, that is a quintessentially open forum where it would not be proper, I think, to tell students you may not mention this subject, you may not take this position.”

One issue in this case, Morse v. Frederick, No. 06-278, was the nature of the event at which the student unfurled his provocative banner. Edwin S. Kneedler, a deputy solicitor general who shared Mr. Starr’s argument time and presented the Bush administration’s position in support of the school, said the torch event was the equivalent of a school assembly, with students attending under their teachers’ supervision and under the school’s jurisdiction.

Mr. Mertz said it was basically a public event in a public place. In that context, he argued, the sign was not disruptive.

The distinction matters, because under the Tinker precedent, student speech can lose its protected status if it is unduly disruptive.

Justice Anthony M. Kennedy took issue with Mr. Mertz’s characterization of the display as not being disruptive.

“It was completely disruptive of the message, of the theme that the school wanted to promote,” Justice Kennedy said, adding: “Completely disruptive of the reason for letting the students out to begin with. Completely disruptive of the school’s image that they wanted to portray in sponsoring the Olympics.”

As in many other cases, Justice Kennedy’s vote may prove crucial to the outcome. This case presents a particular challenge for him. While he is perhaps the most speech-protective of the justices, he is also highly pro-government on issues involving illegal drugs.

Justice Samuel A. Alito Jr. asked a series of questions suggesting that his sympathies lay with the student rather than the school. That would be consistent with a decision he wrote six years ago as a judge on the United States Court of Appeals for the Third Circuit that struck down a Pennsylvania school district’s speech code.

In that case, Saxe v. State College Area School District, Judge Alito said the policy “strikes at the heart of moral and political discourse — the lifeblood of constitutional self-government (and democratic education) and the core concern of the First Amendment.” His opinion was based on an interpretation of the Tinker precedent that was notably more robust than that put forward on Monday by Mr. Starr and Mr. Kneedler and, seemingly, by Chief Justice Roberts.

During the argument, Justice Alito interrupted Mr. Kneedler as the deputy solicitor general was asserting that a school “does not have to tolerate a message that is inconsistent” with is basic educational mission.

“I find that a very, very disturbing argument,” Justice Alito said, “because schools have defined their educational mission so broadly that they can suppress all sorts of political speech and speech expressing fundamental values of the students under the banner of getting rid of speech that’s inconsistent with educational missions.”

In response, Mr. Kneedler said that for that reason, “it would make a lot of sense” for the court to issue a narrow ruling limited to student advocacy of illegal conduct in general or drug use in particular.

This was Mr. Starr’s third argument in a high-profile Supreme Court case since the last chapter of his public career, as the independent counsel in the various investigations of President Bill Clinton. He appeared before the court in the 2003 case that challenged the McCain-Feingold campaign finance law and the next year in case on the recitation of the phrase “under God” in the Pledge of Allegiance.

    Court Hears Whether a Drug Statement Is Protected Free Speech for Students, NYT, 20.3.2007, http://www.nytimes.com/2007/03/20/washington/20scotus.html

Court Hears Arguments Linking Right to Sue and Spending on Religion

March 1, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Feb. 28 — The question for the Supreme Court on Wednesday was a jurisdictional one: whether taxpayers who object to the way the White House Office of Faith-Based and Community Initiatives spends its money can get into federal court to make their case.

Whether the office or its programs actually run afoul of the Constitution was not before the justices.

But any notion that this jurisdictional question was the sort of arcane, technical issue that only a law professor could love was quickly dispelled by the intensity of the argument, one of the liveliest of the term.

The fast-paced hour ended with the clear impression that the Roberts court will soon put its own stamp on the law of taxpayer standing, with potentially significant implications for the relationship between government and religion.

The real question by the end of the argument was whether a majority would be content simply to scale back a Warren court precedent that allows taxpayers to challenge the use of public money for religious purposes or whether the court would disavow the precedent altogether and keep such suits out of federal court.

Solicitor General Paul D. Clement revealed his hand slowly, bringing his argument to a pinpoint landing at the precise close of a three-minute rebuttal. If the justices could not see their way to applying the precedent narrowly, Mr. Clement said, the court should simply overrule it. “If something has to go in this area,” he said, “I think it’s an easy choice.”

Under either option the administration advocated, the court would reject a suit that the federal appeals court in Chicago reinstated last year, a challenge to conferences that Bush administration officials have held to advise religious groups on how to apply for federal grants as part of the effort to bolster the role of such groups in social service programs.

The plaintiff is the Freedom From Religion Foundation Inc. of Madison, Wis., which advocates strict separation of church and state. In a complaint filed initially in 2004, the organization argued that officials who convened and addressed the conferences used congressionally appropriated money in a way that “violated the fundamental principle of the separation of church and state.”

Under the ordinary doctrine of “standing,” which defines who may bring a suit, people who object to a government policy but who cannot claim a concrete injury from that policy have no right to sue. But in a 1968 decision, the court carved out an exception for religion cases. The case, Flast v. Cohen, gave taxpayers standing to challenge federal laws that authorized expenditures for purposes alleged to violate the First Amendment prohibition against the “establishment” of religion.

The administration position in the case argued on Wednesday, Hein v. Freedom From Religion Foundation Inc., No. 06-157, is that the Flast decision should be understood to include two limitations. First, Mr. Clement said, taxpayers should be limited to challenging Congressional statutes, not executive branch programs like that in this suit. Second, the solicitor general argued, taxpayers should be able to challenge only spending outside the government, not internal spending like that cited by the Freedom From Religion Foundation.

Did that mean, Justice Antonin Scalia asked Mr. Clement, taxpayers could challenge a statute that gave money to outside groups to build churches, but not one that directed the government to build its own church?

It was a “horrible hypothetical,” Mr. Clement replied, but Justice Scalia had understood him correctly: taxpayers should not have standing to challenge “an internal government church.”

Andrew J. Pincus, representing the foundation, told the court there was “no basis for drawing the arbitrary lines that the government suggests.” The Flast decision did not include such limitations, he said.

Mr. Clement was unruffled as the justices tossed various hypothetical questions his way. Could a taxpayer challenge a law that commemorated the Pilgrims “by building a government church at Plymouth Rock where we will have the regular worship in the Puritan religion?” Justice Stephen G. Breyer asked.

“I would say no,” Mr. Clement said.

Justice Breyer persisted, asking about a law requiring the government to build churches “all over America” dedicated to one particular sect. “Nobody could challenge it?” he asked.

“There would not be taxpayer standing,” Mr. Clement replied.

Chief Justice John G. Roberts Jr. observed that members of other denominations would not need taxpayer standing and that as victims of government discrimination, they could sue under ordinary principles of standing. This was one of the times the chief justice intervened to make the point that in practical application the government’s position was perhaps not as extreme as it sounded.

His interventions in the other side’s argument seemed to have the opposite goal, rejecting Mr. Pincus’s effort to depict his client’s position as modest. When Mr. Pincus said taxpayers should not be permitted to challenge merely “incidental” spending, the chief justice said that was no real limitation because it would ensnare the courts in deciding “whether the activity you’re challenging is incidental or not.”

Mr. Pincus denied that this initial inquiry would make much work for the courts. For example, he began, “if someone’s claim is that people in the White House have five meetings in the course of a year that they’re upset about — — ”

Chief Justice Roberts cut him off, saying, “Well, then, five meetings isn’t enough. How many?”

“What about 10?” Justice Scalia offered.

“Twenty?” the chief justice asked.

“We’ll litigate it,” Justice Scalia said. “We’ll figure out a number eventually, I’m sure.”

For Mr. Clement, the most helpful hand was that of Justice Samuel A. Alito Jr. As the solicitor general batted back tricky hypothetical questions, Justice Alito asked him whether the lines he was drawing “make a lot of sense in an abstract sense” or were “the best that can be done” under existing precedents.

“The latter, Justice Alito,” Mr. Clement said, evoking laughter. “I appreciate the question.”

    Court Hears Arguments Linking Right to Sue and Spending on Religion, NYT, 1.3.2007, http://www.nytimes.com/2007/03/01/washington/01scotus.html

Justices Hear Arguments on Autism-Case Dispute

February 28, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Feb. 27 — While federal law gives people the right to represent themselves in court, there has been a notable exception to that general rule. Most federal courts have barred parents of children with disabilities from appearing without a lawyer in cases filed under the statute that guarantees all children a “free appropriate public education.”

The Supreme Court on Tuesday heard an appeal that will clarify the situation for the parents of millions of children with disabilities and for the public school districts that are obliged to serve them under the Individuals With Disabilities Education Act.

The appeal was brought by the parents of a 9-year-old autistic boy from Parma, Ohio, who were dissatisfied with the school district’s proposal to provide their son’s special education in a public elementary school. Unable to afford a lawyer, the parents, Jeff and Sandee Winkelman, proceeded on their own to file a lawsuit challenging the adequacy of their son Jacob’s program and seeking reimbursement for the tuition at the private school where they had enrolled him.

They lost in Federal District Court in Cleveland. While their case was on appeal, the United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled that parents could not pursue such suits without a lawyer. Most of the federal circuits agree with that position. The Sixth Circuit ordered the Winkelmans’ case dismissed unless they retained a lawyer within 30 days.

That was 16 months ago, and several events followed, leading to the argument on Tuesday. The case caught the justices’ attention; Justice John Paul Stevens granted a stay of the Sixth Circuit’s order; the full court asked the federal government’s advice on whether to take the case; Solicitor General Paul D. Clement, representing the views of the Department of Education, told the court that the Sixth Circuit was wrong and should be reversed; and the justices agreed in late October to hear the case, Winkelman v. Parma City School District, No. 05-983.

A lawyer from the solicitor general’s office argued for the Winkelmans, as did a lawyer from a Los Angeles law firm who had agreed to handle their Supreme Court appeal without charge. “What we’re advocating here is really access to courts,” that lawyer, Jean-Claude André, told the justices.

The key to the case, Mr. André and David B. Salmons, an assistant to the solicitor general, told the court, lay in the section of the Individuals With Disabilities Education Act providing that a federal lawsuit may be brought by “any party aggrieved” by the prior administrative proceedings aimed at working out differences between parents and school districts.

Both lawyers emphasized that parents should be seen as advocating their own rights in such lawsuits, not simply standing in as representatives of their children. “Our position is that parents share in the substantive right to a ‘free appropriate public education’ under the act,” Mr. Salmons said.

Because parents are “parties” representing their own interests, the lawyers said, they are entitled to invoke the separate federal statute, part of the Judiciary Act, that provides that “in all courts of the United States, the parties may plead and conduct their own cases personally or by counsel.”

Pierre H. Bergeron, representing the Parma City School District, said that to the contrary, claims asserted by parents in these lawsuits were simply “derivative,” based on the rights that the Individuals with Disabilities Education Act gives to children themselves.

The statute gives parents certain procedural rights but not substantive entitlements, Mr. Bergeron said, adding that this was not enough to “circumvent” the basic rule that a person who is not a lawyer cannot represent another person in court.

Bar associations around the country have invoked that underlying rule to bring suits against parents who have brought disability cases on their own, charging the parents with violating state statutes against the “unauthorized practice of law.” The Cleveland Bar Association, in fact, began an investigation of the Winkelmans and another nonlawyer parent who was helping them with their case; the investigation has been put on hold.

The justices were attentive to both sides’ arguments. While several justices tipped their hands, it was difficult to read the court as a whole. Justice Stephen G. Breyer said Mr. Bergeron would have an “uphill battle” to persuade him that despite the statute’s numerous references to parents, the phrase “party aggrieved” should be interpreted as applying only to children and not to parents.

And Justice David H. Souter told Mr. Bergeron that the statutory right to a “free appropriate public education” appeared to be “a right of the family group, the parents and the child together, rather than the right of the child alone.”

On the other hand, Justice Antonin Scalia told Mr. André, the Winkelmans’ lawyer, that lawyers “protect the court from frivolous suits.” When suits are brought without lawyers, “we make a lot more work for federal district judges,” he added.

Mr. André’s response that “a capable district judge can look at the case and decide whether the school should have complied with the statutory mandate” did not satisfy Justice Scalia.

“And do it right after reading pro se prisoner petitions, right?” the justice said, using the legal term for a case filed without a lawyer. “You’d have a nice evening’s work,” he added.

“We think that pro se parents are quite different from pro se prisoners,” Mr. André replied.

    Justices Hear Arguments on Autism-Case Dispute, NYT, 28.2.2007, http://www.nytimes.com/2007/02/28/washington/28scotus.html?ex=1179892800&en=dddadef71eaafb75&ei=5070

High Court to Hear Case for Autistic Boy

February 27, 2007
By THE ASSOCIATED PRESS
Filed at 3:41 a.m. ET
The New York Times

WASHINGTON (AP) -- Jeff and Sandee Winkelman don't have the money to pay for private schooling for their autistic son, let alone hire a lawyer to sue their public school district.

The Winkelmans want the Supreme Court to rule that the main federal special education law gives them the right to go before a federal court to argue that taxpayers should pay for 9-year-old Jacob's private school, even though neither parent is a lawyer.

The case is before the court Tuesday, when the Winkelmans will be represented free of charge by a private lawyer.

Whether Jacob should have private schooling at public expense is not before the Supreme Court, only his parents' right to go into federal court without a lawyer.

The parents objected to the Parma, Ohio, public schools' plan to educate Jacob at a public school. They wanted the district to pay for his $56,000 yearly enrollment in a private school that specializes in educating autistic children.

The Individuals With Disabilities in Education Act gives every child the right to a free appropriate public education, which in the case of special needs children sometimes means enrollment in a private facility.

Parents unhappy with a district's plan can appeal the decision through an administrative process. If they remain dissatisfied, they can file a civil lawsuit.

At that point, however, they have to find a lawyer, the 6th U.S. Circuit Court of Appeals ruled in the Winkelmans' case. People who are not lawyers can represent themselves in court proceedings, but not other parties. The appeals court said the law requires the child to be the plaintiff.

The Winkelmans also are asking the Supreme Court to decide that they can file their own lawsuit under IDEA because they are responsible for Jacob, financially and otherwise.

Most parents who want to sue over special education decisions can't afford a lawyer, according to a brief filed by the Autism Society of America and related rights groups.

The Bush administration and 12 Democratic lawmakers, including Sen. Edward Kennedy of Massachusetts, have sided with the Winkelmans. They argue that Congress clearly intended the special education law to allow parents to go into court without a lawyer's help.

''Congress recognized the interests of parents in guiding the course and substance of their child's education,'' the Democrats' legal brief said.

In response, the school district said Congress declined in its most recent amendments to the special education law to allow the kind of representation the Winkelmans are seeking. A provision that passed the Senate said, ''A parent of a child with a disability may represent the child in any action ... without the assistance of an attorney.'' But the language dropped out of the legislation before it became law.

The Winkelmans have spent about $30,000 in legal fees since first contesting Jacob's treatment in 2003. Jeff Winkelman has taken a second job while his wife has researched previous court rulings and written her own filings.

The case number is Jacob Winkelman v. Parma City School District, 05-983.

    High Court to Hear Case for Autistic Boy, NYT, 27.2.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Autistic-Child.html

Justices Decline Case on 200-Year Sentence for Man Who Possessed Child Pornography

February 27, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Feb. 26 — An Arizona man who received a 200-year prison sentence for possessing 20 pornographic images of children failed Monday to persuade the Supreme Court to consider whether the sentence was unconstitutionally excessive.

Arizona law imposes a mandatory minimum sentence of 10 years for “sexual exploitation of a minor,” and it requires that sentences for multiple convictions be served consecutively.

The sentence that the man, Morton R. Berger, received was consequently longer than the sentence any other state would have imposed for a similar offense, a justice of the Arizona Supreme Court wrote in an opinion last year dissenting from that court’s decision upholding the 200-year sentence.

A majority of the Arizona Supreme Court declined to examine the aggregate sentence as a whole, instead focusing on the sentence of 10 years for possessing a single pornographic image, which it found was not excessive or disproportionate. It was this aspect of the analysis that Mr. Berger, a 57-year-old former high school teacher, challenged in his appeal to the United States Supreme Court.

“If this court reviews Berger’s entire punishment instead of examining the sentence for a single count,” the brief said, “it would find Berger’s punishment cruel, unusual and unconstitutional.”

His appeal said that in most states, sentences for similar crimes would run concurrently, and an offender would serve no more than five years, with the additional possibility of probation or early release. Both are barred under Arizona law. Had the offense been prosecuted under federal law, Mr. Berger’s brief said, the federal guidelines would have provided a five-year sentence.

The case, Berger v. Arizona, No. 06-349, has drawn considerable attention in criminal law circles as providing a possible occasion for the justices to take a fresh look at a subject they have treated only sparingly. While fully engaged in reconsidering the respective roles of judges and juries in criminal sentencing, the court has been extremely reluctant to strike down particular sentences as excessive.

Douglas A. Berman, a professor at the Moritz College of Law at Ohio State University and an authority on sentencing, also noted the difference in the court’s treatment of punitive damages and criminal sentencing.

In an interview on Monday, recalling that the court last week vacated an award of punitive damages against Philip Morris, Professor Berman said, “For a host of good reasons, the justices think they have a role in regulating extreme corporate punishment, but I fear the court doesn’t embrace a role in regulating extreme individual punishment.” Professor Berman has been writing about the Berger case for months on his blog, Sentencing Law and Policy.

Arizona vigorously opposed Supreme Court review of the sentence, telling the justices that it had been properly based on “overwhelming evidence” of Mr. Berger’s “large-scale, deliberate and long-term acquisition of child pornography.”

The state’s brief said that after Mr. Berger turned down a plea bargain, the prosecutor whittled the case to 20 counts out of fear of “deluging the jury” with highly graphic and disturbing images. The police had found the images in Mr. Berger’s possession after learning that his credit card number had been used to buy contraband images from a child pornography Web site based in Dallas.

These were some of the court’s other activities on a busy Monday:

Primary Elections

The justices agreed to decide the constitutionality of the open primary system adopted in 2004 by Washington State. Under that system, people can vote for any candidate without regard to the party affiliation of the candidate or the voter. Candidates, however, can designate their own party preference on the ballot. The top two vote-getters advance to the general election regardless of party label.

The Republican, Democratic and Libertarian parties in the state challenged the system on the ground that it violated their First Amendment right to freedom of association by depriving them and their members of the ability to control the selection of candidates running under their banner. Two lower courts agreed, on the basis of recent Supreme Court precedents upholding the rights of political parties to control their own affairs.

The justices granted and consolidated two separate appeals, one filed by the state (Washington v. Washington Republican Party, No. 06-730) and one by the Washington State Grange, an organization that advocated for the voter initiative that established the new system (Washington State Grange v. Washington Republican Party, No. 06-713).

Gun Use

In its latest effort to parse a federal law that makes it a crime to “use” a gun in relation to a drug offense, the court agreed to decide whether the receipt of an unloaded firearm as payment for drugs amounted to a prohibited “use.”

The federal appeals courts are divided on this question, which the Supreme Court did not directly resolve in 1995 when it ruled that “use” required “active employment” of the gun, a definition that the court said then included using a gun as an item of barter or commerce even if the gun was never fired.

In the new case, Watson v. United States, No. 06-571, the defendant, Michael A. Watson, acquired a gun from a police informant in return for 24 doses of the drug OxyContin. The United States Court of Appeals for the Fifth Circuit, in New Orleans, rejected his argument that receipt of a gun under such circumstances did not meet the “active employment” test.

The question occurs often, in various permutations, because a violation of the statute in question carries a mandatory minimum sentence of five years in prison in addition to any underlying offense. More than one in 10 of all federal drug convictions carry an enhanced sentence for use of a firearm.

    Justices Decline Case on 200-Year Sentence for Man Who Possessed Child Pornography, NYT, 27.2.2007, http://www.nytimes.com/2007/02/27/washington/27scotus.html

Justices Take Up Police Use of Lethal Force

February 27, 2007
By LINDA GREENHOUSE
The New York Times

WASHINGTON, Feb. 26 — There was no dispute in the Supreme Court on Monday about the disastrous consequences of a high-speed police chase over the back roads of a rural Georgia county six years ago.

A deputy sheriff caught up with the car that he and other officers were pursuing and, still traveling at high speed, rammed it with his own car, causing an accident that left Victor Harris, the 19-year-old driver, a quadriplegic. Mr. Harris’s original offense that set off the chase: driving 73 miles an hour in a 55-mile-an-hour zone. The Coweta County police delivered speeding citations to his hospital room.

The question for the court was whether the forcible termination of the chase had been reasonable under the circumstances, or whether a jury should at least be permitted to consider Mr. Harris’s claim that Deputy Sheriff Timothy Scott violated his constitutional rights by unreasonable application of deadly force. At issue were the standards to apply to such a determination.

The United States Court of Appeals for the 11th Circuit, based in Atlanta and not known for being overly solicitous toward criminal defendants, ruled in 2005 that Mr. Harris was entitled to take his suit for damages to a jury. The appeals court refused to give Deputy Scott either summary judgment or immunity, basing its ruling on a series of Supreme Court decisions from the 1980s that set boundaries on the use of deadly police force against fleeing criminal suspects.

But the lawyers arguing for the deputy, both Philip W. Savrin of Atlanta and Gregory G. Garre, a deputy solicitor general in the Justice Department, argued that those precedents were not relevant, given the particular danger that Mr. Harris’s driving, at speeds of up to 90 miles an hour on dark and winding country roads, had posed to other drivers.

The court’s leading precedent, Tennessee v. Garner, from 1985, held that the police had acted unreasonably in shooting an unarmed suspect in the back as he fled from a house he was suspected of burglarizing.

But this case, Scott v. Harris, No. 05-1631, is “fundamentally different from Garner,” Mr. Garre said. When the deputy decided to use force, Mr. Garre continued, he “reasonably determined” that Mr. Harris “posed a grave threat to other motorists, the police and any bystanders who might come in his way.”

Most justices appeared to agree rather readily, describing their reactions to watching a videotape of the pursuit, made by an automatic camera mounted on the deputy’s dashboard, which is part of the record of the case. “He created the scariest chase I ever saw since ‘The French Connection,’ ” Justice Antonin Scalia observed. Justice Samuel A. Alito Jr. told Craig T. Jones, Mr. Harris’s lawyer, that his client “created a tremendous risk” to other drivers.

Only Justices John Paul Stevens and Ruth Bader Ginsburg raised the question of whether it would have been more reasonable for the police simply to have abandoned the chase. “If the police weren’t after him, there is no indication that he would have been speeding,” Justice Ginsburg said.

Justice Stevens raised the issue repeatedly. When Mr. Garre gave a hair-raising description of Mr. Harris’s behavior in trying to elude the police, Justice Stevens observed, “Before being chased he hadn’t done any of this.”

And when Deputy Scott’s lawyer, Mr. Savrin, said he had decided to intercept Mr. Harris after concluding that there was “a high likelihood, in fact a probability,” that harm would otherwise come to others on the road, Justice Stevens asked, “Would that have been likely if the officer had discontinued the chase?”

Chief Justice John G. Roberts Jr. intervened several times to depict the deputy’s behavior as reasonable. “Is it reasonable to suppose that there might be something more going on if the guy is trying this hard to get away from a speeding ticket?” the chief justice asked at one point. Later he suggested that the car might have been stolen or that the deputy could have assumed Mr. Harris was being pursued “for mass murder or terrorism.”

With the court seemingly set against him, it was not easy for Mr. Harris’s lawyer, Mr. Jones, to get much traction during his 30 minutes at the lectern. His client was “an unsafe driver,” he said, but was not an aggressor. Mr. Harris even used his turn signal when he passed other cars, Mr. Jones noted.

That drew a sarcastic response from Justice Anthony M. Kennedy. “He used the turning signal!” Justice Kennedy said, adding, “That’s like the strangler who observes the ‘no smoking’ sign.”

For deadly force to be justified under the Fourth Amendment’s ban on unreasonable seizure, Mr. Jones persisted, “something more than just unsafe flight” is required. The rule the Supreme Court set 22 years ago in the Garner case to protect fleeing suspects should apply in this setting as well, he said, adding:

“The rule simply says you don’t kill him just because he is driving unsafely. And it simply says that if the choice is between killing him and letting him go, you have to let him go if the Garner factors aren’t present. And we find nothing in the law and no reason to create a new exception in the law that says that Garner doesn’t apply if you’re fleeing by vehicle.”

    Justices Take Up Police Use of Lethal Force, NYT, 27.2.2007, http://www.nytimes.com/2007/02/27/washington/27chase.html

High-speed chase reaches Supreme Court

Posted 2/24/2007 11:14 PM ET
By Mark Sherman, Associated Press
USA Today

WASHINGTON — The police cruiser rammed the black Cadillac from behind as they raced along a wet, two-lane road near Atlanta at roughly 90 miles an hour. The Cadillac's 19-year-old driver lost control and ended up at the bottom of an embankment, paralyzed.

Victor Harris was being chased by police because he had been speeding. He said later he was too frightened to stop. Coweta County sheriff's deputy Timothy Scott said he wanted to end the chase before other drivers or pedestrians were hurt.

Harris sued Scott for violating his civil rights and the case has reached the Supreme Court, where it will be argued on Monday. The deputy wants the justices to conclude that his actions, captured on the dashboard camera of his car, were reasonable and dismiss the lawsuit.

The case puts the court in the middle of a national debate over high-speed chases. More than 350 people died each year on average from 1994 to 2004 because of police chases, a group of Georgia police chiefs said in court papers.

It also is the first in more than 20 years in which the court will consider constitutional limits on police use of deadly force to stop fleeing suspects. Courts define deadly force as creating a substantial risk of death or serious injury.

The issue confronting the justices is whether Scott's decision to ram the Cadillac violated Harris' Fourth Amendment right to be free from unreasonable seizure.

Even if the court decides Scott's action was unconstitutional, it still will have to decide whether it should have been clear to him at the time that ramming the car was unlawful.

A federal appeals court in Atlanta said the law was clear at the time of the incident in March 2001. "The use of deadly force is not 'reasonable' in a high-speed chase based only on a speeding violation and traffic infractions where there was little, if any, threat to pedestrians or other motorists as the roads were mostly empty and Harris remained in control of his vehicle," the 11th U.S. Circuit Court of Appeals said.

Scott's lawyer, Philip Savrin of Atlanta, and the Bush administration said the deputy's decision should not be judged with the benefit of hindsight.

If the court upholds the appeals court ruling, the case would proceed to a trial. If Scott wins, Harris' suit will be dismissed.

It was 10:42 p.m. when Clinton Reynolds, another Coweta deputy, clocked Harris at 73 miles an hour in a 55-mile-an-hour zone. Reynolds flashed his lights, then turned on his siren and gave chase in light traffic.

Four minutes later, Harris turned into a strip mall parking lot. Scott, who has joined the pursuit by this time, tried to head off Harris in the parking lot. Their cars collided, though not seriously enough to slow either one.

The chase continued on Georgia Highway 74 and Scott asked to take over the lead pursuit.

"Let me have him, 78," he said, using the number for Reynolds' car. "My car is already tore up."

A few seconds later, Scott asks permission to execute a "Precision Intervention Technique," intended to cause the fleeing car to spin and stop.

"Take him out, take him out," Scott's supervisor said over the radio.

But Scott decided they were traveling too fast for the maneuver, so he rammed Harris' car, hitting it in the rear on the driver's side.

Almost immediately, Harris veered to the left, then sharply right and off the road. Scott brought his cruiser to a stop and the camera picked up the smoking, crumpled Cadillac resting near a telephone pole.

Scott approached the car with his gun drawn, then quickly concluded Harris was no threat.

The chase lasted six minutes, with Scott in the lead for less than a minute before he took the decisive action.

Scott and the government both argued in court papers that the force was not excessive.

"By continuing to flee in a vehicle, the suspect does not merely seek to elude capture, but risks harming the public (intentionally or unintentionally) in the process," Savrin said.

Solicitor General Paul Clement, the administration's top Supreme Court lawyer, said the tragic consequences should not obscure that Harris demonstrated he was dangerous by driving recklessly and continuing to flee even after colliding with Scott's car.

"The reasonableness of force must be assessed from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight," Clement said.

But the appeals court approvingly cited the Supreme Court's decision in a 1985 case involving a Memphis police officer who fatally shot an unarmed, 15-year-old boy as he fled a house that had reportedly been broken into.

"It is not better that all felony suspects die than that they escape," Justice Byron R. White wrote for the court in Tennessee v. Garner.

Craig Jones, Harris' Atlanta-based lawyer, said Harris had committed no serious crime and that officers could have ended the chase and tried to arrest Harris at his home at a later time.

Harris was never prosecuted. Scott left the Coweta sheriff's office for another law enforcement job in Georgia, Savrin said.

The case is Scott v. Harris, 05-1631.

    High-speed chase reaches Supreme Court, UT, 24.2.2007, http://www.usatoday.com/news/washington/judicial/2007-02-24-police-chase-case_x.htm

Editorial

Shielding the Powerful

February 21, 2007
The New York Times

The Supreme Court’s decision yesterday overturning a nearly $80 million punitive damage award against Philip Morris is a win for corporate wrongdoers. It stretches the Constitution’s guarantee of due process in a way that will make it easier for companies that act reprehensibly to sidestep serious punishments.

It also provides unsettling new evidence that the court is more concerned about — and more willing to protect — the powerful than the powerless.

An Oregon jury awarded Mayola Williams, the widow of a cigarette smoker, about $821,000 in compensatory damages and $79.5 million in punitive damages. Ms. Williams argued that Philip Morris had spent 40 years denying the connection between smoking and cancer, even though it knew cigarettes were deadly. The Oregon Supreme Court upheld the punitive damages award, saying that Philip Morris’s actions had been “extraordinarily reprehensible.” By keeping Oregonians smoking longer than they otherwise would have, the court said, the company’s actions would, “naturally and inevitably, lead to significant injury or death.”

By a 5-to-4 vote that did not follow the usual ideological lines, the court ruled that the award was improper because it punished Philip Morris for harm done to people who were not part of the lawsuit. There is nothing unusual, or wrong, about courts considering the broader impact of a wrongdoer’s misdeeds. As Justice John Paul Stevens noted in dissent, “A murderer who kills his victim by throwing a bomb that injures dozens of bystanders should be punished more severely than one who harms no one other than his intended victim.” The fact that Philip Morris hurt so many other smokers along with Jesse Williams is surely relevant to its punishment.

The court in recent years has become increasingly activist when it comes to defending the rights of corporations by striking down punitive damage awards. And yesterday’s ruling continues that trend. It expands the notion of due process. And it overturns the decisions of a jury and a state supreme court.

Unfortunately, the court has been far less activist when ordinary people seek protection or challenge their punishments. The ruling stands in particular contrast with the court’s 2003 decision that the Eighth Amendment’s ban on “cruel and unusual punishments” did not bar California, under its “three strikes” law, from sentencing a man to 50 years in prison for stealing $153.53 worth of videotapes. Yesterday’s decision is another disturbing sign that — as the current court reads the Constitution — powerful parties have more rights than regular people.

    Shielding the Powerful, NYT, 21.2.2007, http://www.nytimes.com/2007/02/21/opinion/21wed1.html

Justices Overturn

$79.5 Million Tobacco Ruling

February 21, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Feb. 20 — The Supreme Court on Tuesday overturned an Oregon jury’s award of $79.5 million in punitive damages against Philip Morris on the ground that jurors might have improperly calculated the figure to punish the cigarette maker for the harm it caused to smokers other than the man whose widow brought the case.

Although of limited scope, the 5 to 4 decision was a victory for the cigarette industry and for other corporate defendants whose products or behavior have caused widespread injury and who are thus likely to face skeptical or hostile juries.

The court was tightly focused on a question of procedural fairness: the need, in the majority’s view, to make sure that juries do not punish defendants for harm to others who are not parties to the lawsuit, or who even may have brought their own lawsuits previously and lost. “The due process clause prohibits a state’s inflicting punishment for harm caused strangers to the litigation,” Justice Stephen G. Breyer wrote in the majority opinion.

The court thus steered clear of the issue that most animates the debate over punitive damages: whether a punitive damage award that is much greater than the compensatory damages awarded by the jury can be considered unconstitutionally excessive. In this case, the ratio of punitive to compensatory damages was nearly 100 to one, but the court did not address the issue despite Philip Morris having raised it.

What happens next in this lawsuit may provide an early indication of the practical significance of the court’s ruling, as far as it went. The case now goes back to the Oregon Supreme Court, which has options ranging from reinstating the award to ordering a new trial. The original trial of the suit, brought by Mayola Williams, whose husband, Jesse, died of lung cancer after smoking two packs of Marlboros a day for 45 years, took place in 1999.

Mrs. Williams’s lawyer asked the jury to “think about how many other Jesse Williams in the last 40 years in the state of Oregon there have been.” The trial judge rejected a request by Philip Morris for an instruction warning the jury that “you are not to punish the defendant for the impact of its alleged misconduct on other persons.”

The Supreme Court on Tuesday did not require any particular wording in the form of a jury instruction. But Justice Breyer said that state judicial systems had a constitutional obligation to avoid “an unreasonable and unnecessary risk” that a jury would calculate the punitive damages based on harm to those not before the court.

The issue is complicated because, under the Supreme Court’s precedents, the “reprehensibility” of a defendant’s conduct is a factor that a jury is explicitly directed to consider in setting a punitive damages award. Justice Breyer acknowledged that harm to others can serve as a measure of reprehensibility, and that jurors will necessarily consider it. That was appropriate, he said, as long as courts “provide some form of protection” against jurors seeking “to punish the defendant for having caused injury to others.”

Sheila L. Birnbaum, a punitive damages specialist with Skadden, Arps, Slate, Meagher & Flom in New York, said the court was requiring jurors to “unring the bell” in a way that might prove difficult. “It’s very hard for jurors to disregard something they have heard,” she said.

Ms. Birnbaum, who successfully argued the most recent punitive damages case heard by the court before this one, on behalf of the State Farm insurance company in 2003, added that the decision was nonetheless “a step in the right direction” for corporate defendants because it would require trial judges and appellate courts to be attentive to the guidance that jurors receive.

Justice Breyer’s majority opinion, Philip Morris USA v. Williams, No. 05-1256, was joined by Chief Justice John G. Roberts Jr. and by Justices Anthony M. Kennedy, David H. Souter and Samuel A. Alito Jr. The dissenters were Justices John Paul Stevens, Ruth Bader Ginsburg, Antonin Scalia and Clarence Thomas.

It is typical for the court’s punitive damages rulings to cut across the usual ideological lines. In fact, the only real surprise was the vote by Justice Stevens, who had previously voted with the court’s majority to support limits on punitive damages.

In his dissenting opinion, Justice Stevens said he was “firmly convinced” that those earlier decisions were correct. But he said that “in my view the Oregon Supreme Court faithfully applied the reasoning in those opinions to the egregious facts disclosed by this record.” He said that “no procedural error even arguably justifying reversal occurred at the trial in this case.”

The court’s two new members, Chief Justice Roberts and Justice Alito, succeeded justices who supported limits on punitive damages, as they themselves did on Tuesday. But the narrowness of the court’s opinion and its avoidance of the excessiveness issue raised the question of whether, beneath the surface stability, the court’s polarity may have shifted.

In the State Farm case that Ms. Birnbaum argued four years ago, the court overturned a punitive damage award that was 145 times greater than the compensatory award. “Few awards exceeding a single-digit ratio” would meet the test of due process, Justice Kennedy wrote then for a 6-to-3 majority, a strong statement that made the court’s failure on Tuesday to address the 97 to one ratio in the Philip Morris case all the more curious. (The Oregon jury awarded Mrs. Williams $821,000 in compensatory damages.)

To hold that a damage award is unconstitutionally excessive requires the court to accept the argument that the due process clause contains a substantive component as well as a procedural one. It is on this basis that Justices Scalia and Thomas, who do not accept the modern doctrine of “substantive due process,” have dissented from the leading punitive damages decisions.

It is not implausible that Chief Justice Roberts and Justice Alito might share that view. Whether they do might become apparent if the Oregon Supreme Court reinstates the punitive damages verdict and Philip Morris comes back before the justices with a new appeal based on excessiveness.

The dissenters tweaked the majority for what they characterized as judicial activism and refusal to give state courts proper respect. “I would accord more respectful treatment to the proceedings and disposition of state courts that sought diligently to adhere to our changing, less than crystalline precedent,” Justice Ginsburg said in an opinion that Justices Scalia and Thomas also signed.

In a prepared statement, William S. Ohlemeyer, vice president and associate general counsel of Philip Morris, a unit of Altria, said the decision would give the company “an opportunity to fully and fairly defend itself in this and other cases.”

Market analysts generally viewed the decision as positive for industry. “Despite a more narrow opinion than we had hoped for, we view the ruling as a positive as it effectively limits the size of punitive damages in future cases,” said Christopher R. Growe, an analyst at A. G. Edwards & Sons, in a note to investors.

In recent months, investors have pushed Altria’s stock to record highs, in part because they believe the litigation environment against tobacco companies has significantly improved. On Tuesday, Altria’s stock closed at $85.95, down 25 cents.

Andrew Martin contributed reporting.

    Justices Overturn $79.5 Million Tobacco Ruling, NYT, 21.2.2007, http://www.nytimes.com/2007/02/21/washington/21scotus.html?hp

Ginsburg 'lonely' without O'Connor

Updated 1/25/2007 10:48 PM ET
USA Today
By Joan Biskupic

WASHINGTON — It's been a year since Sandra Day O'Connor retired from the Supreme Court after a quarter-century tenure and left Ruth Bader Ginsburg as the lone woman on the nine-member court. Although it's unclear how O'Connor's departure will affect the law, this much is certain: Ginsburg misses her friend, and worries about the message court visitors get when they see only one woman on the bench.

"The word I would use to describe my position on the bench is lonely," Ginsburg, 73, said in an interview with USA TODAY.

"This is how it was for Sandra's first 12 years," she said, citing the time from O'Connor's appointment in 1981 to Ginsburg's arrival in 1993. "Neither of us ever thought this would happen again. I didn't realize how much I would miss her until she was gone."

A year after Ginsburg joined the court, O'Connor recalled welcoming the new justice "with enormous pleasure," in part because O'Connor no longer would be the court's only symbolic representative for American women. They confided in each other, and when Ginsburg had surgery for colorectal cancer in 1999, O'Connor, a breast cancer survivor, was the first person to call her in the hospital.

O'Connor, a Reagan appointee, was at the ideological center of the divided court, a key backer of abortion rights and affirmative action in education. President Bush tried to replace her with a woman, then-White House counsel Harriet Miers, but the nomination died amid questions about her qualifications. Bush turned to Samuel Alito, whose record suggests he could tilt the court to the right.

The justices are weighing cases on abortion and school integration. Ginsburg, a Clinton appointee on the court's liberal wing, won't discuss how O'Connor's exit will change the court, saying only, "This term may be very revealing."

For now, O'Connor's absence is more symbolic. In court, the sight of Ginsburg — a slight figure in a tall, black leather chair, flanked by eight men — contrasts with the rising prominence of women in Congress. The number of female judges also is rising: Of the 875 federal judges, 201 are women.

Ginsburg is encouraged by such numbers, but disconcerted by the look of her own court. She said with O'Connor, the message was: "Here are two women. They don't look alike. They don't always vote alike. But here are two women." The former women's rights lawyer fears the message now is that a woman justice is a "one-at-a-time curiosity, not the normal thing."

    Ginsburg 'lonely' without O'Connor, UT, 25.1.2007, http://www.usatoday.com/news/washington/2007-01-25-ginsburg-court_x.htm

Supreme Court Rejects Calif. Sentencing Law

January 22, 2007
By THE ASSOCIATED PRESS
Filed at 11:43 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court struck down California's sentencing law Monday, reaffirming limits on judges' discretion and presaging shorter sentences for thousands of state prisoners.

The 6-3 ruling in Cunningham v. California effectively shaves four years off the 16-year sentence of former police officer John Cunningham, who was convicted of sexually abusing his son.

It's the latest in a series of high court rulings over the past seven years that limit judges' discretion in sentencing defendants. The court has held repeatedly that a judge may not increase a defendant's sentence based on factors that were not determined by a jury.

''This court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by the jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence,'' Justice Ruth Bader Ginsburg wrote for the court.

Several states have changed their sentencing laws to require prosecutors to prove to a jury aggravating factors that could lead to longer sentences.

California had argued that a 2005 state Supreme Court decision interpreting the state's Determinate Sentencing Law effectively brought the state into compliance with the U.S. high court's rulings. The law instructs judges to sentence inmates to the middle of three options, unless factors exist that justify the shorter or longer prison term.

The state warned that its criminal justice system would be burdened by having to re-sentence thousands of inmates.

Rather than prescribing a way to fix the law, Ginsburg said, ''The ball lies in California's court.''

Justice Samuel Alito said in dissent that California's law ''is indistinguishable in any constitutionally significant respect'' from the federal sentencing guidelines that have been approved by the Supreme Court.

There were just under a quarter-million felony convictions in the state in 2005. Data from the 1980s cited by the California Supreme Court suggests that roughly 15 percent of cases involving just one felony count result in sentences in which a judge, not a jury, finds an aggravating factor to justify the additional punishment.

But Peter Gold, Cunningham's lawyer, told the court that in many cases the standard term and longer option differ by just a year. In practical terms, many of those who might be affected by Wednesday's ruling might already have finished serving their time in prison.

Several justices suggested during oral argument in October that the state could tweak the law, rather than overhaul it, to remove constitutional violations.

Nine other states, including Illinois and Texas, urged the court to uphold the California law.

Cunningham, a former Richmond, Calif., police officer, was convicted of sexually abusing his 10-year-old son after the boy moved in with Cunningham and his girlfriend.

The case is Cunningham v. California, 05-6551.

    Supreme Court Rejects Calif. Sentencing Law, NYT, 22.1.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Sentences.html?hp&ex=1169528400&en=2dff38e4da3fd809&ei=5094&partner=homepage

High Court Hears 3 Death Penalty Cases

Capital Punishment Accounts for Larger Share of Justices' Smaller Workload

Thursday, January 18, 2007; A03
By Robert Barnes
Washington Post Staff Writer

It was death penalty day yesterday at the Supreme Court, coincidentally 30 years to the day since Gary Gilmore became the first person to be executed under the country's modern capital punishment laws.

The court heard three death penalty cases from Texas even as executions are on hold in an increasing number of states, from Maryland to California, and as the number of new death sentences continues to fall.

The work of the court so far this term shows that the complicated legal process that attends executing a murderer -- the balance of state laws and federal constitutional guarantees -- can take decades to unspool. Even a trip to the Supreme Court is sometimes not enough to settle the issue.

The cases of at least nine death row inmates nationwide -- who are not proclaiming innocence but are protesting their sentences -- are on the court's docket in this term. Just as the justices scrutinized Virginia's system for carrying out the death penalty several years ago, they are examining four cases from Texas this year, including the three heard yesterday.

The number of capital cases is not unusual for the court, those who follow the issue say. But because the justices so far this year have taken a smaller number of cases overall, the death penalty accounts for "a larger fraction of their work," said Richard Dieter, executive director of the Death Penalty Information Center. Douglas A. Berman, a law professor at Ohio State University, said: "It's probably the normal number, but I always think they take too many. Especially at a moment when the docket is so light." The justices have taken a decreasing number of cases in recent years, and this term, which will end this summer, is likely to continue that trend.

Sometimes the court's decisions are dramatic, such as 2005's Roper v. Simmons, which forbade the execution of those who were younger than 18 at the time of their crimes. But Berman, who writes regularly for and runs the Sentencing Law and Policy blog, said the court's decisions in most death penalty cases affect only a handful of people in the states from which the cases arise. He would like to see the court spend time on other sentencing disparities "that affect thousands of people every day."

Indeed, the Texas cases heard yesterday had all been decided more than 15 years ago, when Texas juries were asked to answer only yes or no to two questions when deciding whether to impose death. They were asked whether the killing was deliberate and whether the killer constituted a continuing threat to society.

Several Supreme Court decisions have said that jurors also need to consider mitigating evidence, such as the IQ of the defendant or an abusive background.

In 2004, the court decided 7 to 2 in the case of LaRoyce Smith, who had murdered a Taco Bell manager in Dallas, that there were broad problems with the Texas law, which has since been changed. It sent the case back. The Texas Court of Criminal Appeals, nevertheless, reaffirmed the death sentence, saying that if an error was made, it was harmless to the outcome of the jury's decision.

And so Smith v. Texas (05-11304) was back before the Supreme Court yesterday, with Smith's advocates and others -- including four retired federal appeals court judges -- arguing that the state court ignored specific directions from the Supreme Court.

As Justice Ruth Bader Ginsburg put it, it was as though the state court were saying, "Thanks, thanks, that's very interesting advice," but we're deciding it on different grounds.

But the state appeared to have strong supporters in Chief Justice John G. Roberts Jr. and Justice Antonin Scalia.

Scalia said the Texas court decided that, though the mitigating evidence should have been presented more straightforwardly, it was in the best position to decide that such evidence would not have affected the jury's decision to sentence Smith to death. And Roberts defended the state's interpretations. "Why do we remand these cases for further proceedings not inconsistent with our opinion if there's nothing further to be considered?" he asked.

University of Texas law professor Jordan M. Steiker, representing Smith, said that the Texas court's actions were indeed contradictory and inconsistent.

Texas Solicitor General R. Ted Cruz said that complying with the Supreme Court's evolving decisions governing the death penalty "is not an easy task, and state and federal courts have struggled for two decades to draw the appropriate lines."

That struggle is evident on the court's docket, in which most of the death penalty cases come from the U.S. Court of Appeals for the 5th Circuit, which covers Texas and much of the South, and the San Francisco-based U.S. Court of Appeals for the 9th Circuit. "The Ninth looks so clearly from a defendant's perspective, and the Fifth looks at it from a prosecutorial perspective," Berman said.

Two of yesterday's cases, Abdul-Kabir v. Quarterman (05-11284) and Brewer v. Quarterman (05-11287), were appeals from the 5th Circuit. The high court in this term has already reversed a 9th Circuit decision that overturned a death sentence.

Dieter said the justices are "in a rather complex area of the law. Maybe they are trying to draw some lines down the middle."

Middle ground could be difficult for a court that has shown itself divided on important aspects of capital punishment. The swing vote on the issue seems to belong to Justice Anthony M. Kennedy, the only justice in the 5 to 4 majority both to uphold Kansas's death penalty and the Roper decision abolishing capital punishment for juveniles.

    High Court Hears 3 Death Penalty Cases, WP, 18.1.2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/01/17/AR2007011701821.html?sub=AR

Justices Decline to Take Up New Eminent Domain Case

January 17, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Jan. 16 — The Supreme Court on Tuesday bypassed an opportunity to revisit or limit its much-disputed 2005 ruling that upheld governmental power to use eminent domain to foster economic development.

Without comment, the justices declined to hear a case from Port Chester in Westchester County, N.Y., that challenged the village’s use of eminent domain in a dispute between a property owner and a private company designated as the developer of a run-down 27-acre urban renewal area.

The redevelopment plan, adopted by Port Chester in 1999, envisioned a retail area that would include a drugstore. In 2002, the developer, G & S Port Chester LLC, announced that a Walgreens store would be part of the project. But Bart Didden, the owner of the parcel where the store was to sit, had by that time separately entered into a lease with a competing drugstore chain, CVS.

After negotiations between Mr. Didden and G & S Port Chester failed, the village sided with its developer and notified the property owner that his half-acre parcel would be taken by eminent domain and made available for the developer’s use. Mr. Didden and his business partner, Domenick Bologna, brought a lawsuit in 2004 arguing that Port Chester’s condemnation of the property was not for a true “public use,” the phrase that identifies the constitutionally permissible use of the eminent domain power, but rather for the private financial benefit of the developer.

The lawsuit accused Gregg Wasser, G & S Port Chester’s owner, of having improperly demanded a financial stake in the plan for the CVS store as the price for permission to proceed with it. Both the Federal District Court in Manhattan and the United States Court of Appeals for the Second Circuit dismissed the lawsuit.

In their Supreme Court appeal, Didden v. Village of Port Chester, No. 06-652, Mr. Didden and Mr. Bologna were represented by the Institute for Justice, a public interest law firm in Arlington, Va., that litigated on behalf of the property owners in the 2005 Supreme Court case and that has organized a national campaign against what it calls eminent domain abuse.

Partly in response to the Supreme Court’s ruling in that case, Kelo v. City of New London, 34 states have adopted measures limiting the use of eminent domain. The Institute for Justice publicized the Port Chester case widely and looked to it as an opportunity for the court to clarify “that Kelo did not suddenly turn every redevelopment area in the United States into a Constitution-free zone,” as Dana Berliner, a senior attorney with the institute, said when the appeal was filed in November.

“The court will have to review an eminent domain case sometime soon,” Ms. Berliner said on Tuesday.

The vote in the Kelo case was 5 to 4. The recent changes at the court are not likely to have an impact, however, because both Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor, the two justices who have since been succeeded, were among the dissenters.

Even if there was interest on the court in revisiting the issue, the justices might have seen the Port Chester case as a poor vehicle for doing so, because the lower courts based their dismissal on the property owner’s failure to file his lawsuit within the three-year statute of limitations. The suit should have been filed within three years of the village’s July 1999 adoption of the redevelopment plan, the courts ruled, rejecting Mr. Didden’s argument that the clock did not start running until late 2003, when the village announced that it would take his property.

“I’m so disillusioned with the whole court system at this point,” Mr. Didden said on Tuesday.

Mark S. Tulis, special counsel to the village, said in an interview that the village had had to choose between condemning Mr. Didden’s property or breaching its 1999 contract with the developer. “Either way,” Mr. Tulis said, “we knew there was no way both sides would be happy.”

The amount that Port Chester has to compensate Mr. Didden is the subject of a separate lawsuit.

In other action on Tuesday, the court declined to hear a California utility company’s appeal of a ruling that required administrative review of the potential environmental impact of a terrorist attack on the Diablo Canyon nuclear power plant in San Luis Obispo.

The utility, Pacific Gas and Electric, is seeking a 20-year license from the Nuclear Regulatory Commission to build and operate a spent-fuel storage installation there. Responding to a lawsuit brought by a local antinuclear group, San Luis Obispo Mothers for Peace, the United States Court of Appeals for the Ninth Circuit ruled that before granting the license, the nuclear agency had to take account of the potential environmental risk of terrorism.

The utility’s appeal, Pacific Gas and Electric v. San Luis Obispo Mothers for Peace, No. 06-466, argued that the ruling was a misinterpretation of federal environmental law that would place unnecessary burdens on license applicants.

The government itself did not file a Supreme Court appeal, however. Solicitor General Paul D. Clement told the court in his brief that while the decision was incorrect and potentially “disruptive,” it was too soon to know how disruptive it would prove to be in practice. While the government would support the utility if the justices nonetheless wanted to accept the case, the brief said, the appeal “does not clearly satisfy the court’s criteria” for taking up appeals and should be denied.

Fernanda Santos contributed reporting from White Plains.

Justices Decline to Take Up New Eminent Domain Case, NYT, 17.1.2007, http://www.nytimes.com/2007/01/17/washington/17scotus.html