History > 2007 > USA > Constitution, laws

Supreme Court (II)

John Sherffius

Boulder Daily Camera        5.7.2007

Op-Ed Contributor

Stacking the Court

July 26, 2007
The New York Times
By JEAN EDWARD SMITH

Huntington, W.Va.

WHEN a majority of Supreme Court justices adopt a manifestly ideological agenda, it plunges the court into the vortex of American politics. If the Roberts court has entered voluntarily what Justice Felix Frankfurter once called the “political thicket,” it may require a political solution to set it straight.

The framers of the Constitution did not envisage the Supreme Court as arbiter of all national issues. As Chief Justice John Marshall made clear in Marbury v. Madison, the court’s authority extends only to legal issues.

When the court overreaches, the Constitution provides checks and balances. In 1805, after persistent political activity by Justice Samuel Chase, Congress responded with its power of impeachment. Chase was acquitted, but never again did he step across the line to mingle law and politics. After the Civil War, when a Republican Congress feared the court might tamper with Reconstruction in the South, it removed those questions from the court’s appellate jurisdiction.

But the method most frequently employed to bring the court to heel has been increasing or decreasing its membership. The size of the Supreme Court is not fixed by the Constitution. It is determined by Congress.

The original Judiciary Act of 1789 set the number of justices at six. When the Federalists were defeated in 1800, the lame-duck Congress reduced the size of the court to five — hoping to deprive President Jefferson of an appointment. The incoming Democratic Congress repealed the Federalist measure (leaving the number at six), and then in 1807 increased the size of the court to seven, giving Jefferson an additional appointment.

In 1837, the number was increased to nine, affording the Democrat Andrew Jackson two additional appointments. During the Civil War, to insure an anti-slavery, pro-Union majority on the bench, the court was increased to 10. When a Democrat, Andrew Johnson, became president upon Lincoln’s death, a Republican Congress voted to reduce the size to seven (achieved by attrition) to guarantee Johnson would have no appointments.

After Ulysses S. Grant was elected in 1868, Congress restored the court to nine. That gave Grant two new appointments. The court had just declared unconstitutional the government’s authority to issue paper currency (greenbacks). Grant took the opportunity to appoint two justices sympathetic to the administration. When the reconstituted court convened, it reheard the legal tender cases and reversed its decision (5-4).

The most recent attempt to alter the size of the court was by Franklin Roosevelt in 1937. But instead of simply requesting that Congress add an additional justice or two, Roosevelt’s convoluted scheme fooled no one and ultimately sank under its own weight.

Roosevelt claimed the justices were too old to keep up with the workload, and urged that for every justice who reached the age of 70 and did not retire within six months, the president should be able to appoint a younger justice to help out. Six of the Supreme Court justices in 1937 were older than 70. But the court was not behind in its docket, and Roosevelt’s subterfuge was exposed. In the Senate, the president could muster only 20 supporters.

Still, there is nothing sacrosanct about having nine justices on the Supreme Court. Roosevelt’s 1937 chicanery has given court-packing a bad name, but it is a hallowed American political tradition participated in by Republicans and Democrats alike.

If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.

Jean Edward Smith is the author, most recently, of “F.D.R.”

Stacking the Court, NYT, 26.7.2007, http://www.nytimes.com/2007/07/26/opinion/26smith.html

Editorial

Justice Denied

July 5, 2007
The New York Times

In the 1960s, Chief Justice Earl Warren presided over a Supreme Court that interpreted the Constitution in ways that protected the powerless — racial and religious minorities, consumers, students and criminal defendants. At the end of its first full term, Chief Justice John Roberts’s court is emerging as the Warren court’s mirror image. Time and again the court has ruled, almost always 5-4, in favor of corporations and powerful interests while slamming the courthouse door on individuals and ideals that truly need the court’s shelter.

President Bush created this radical new court with two appointments in quick succession: Mr. Roberts to replace Chief Justice William Rehnquist and Samuel Alito to replace the far less conservative Sandra Day O’Connor.

The Roberts court’s resulting sharp shift to the right began to be strongly felt in this term. It was on display, most prominently, in the school desegregation ruling last week. The Warren court, and even the Rehnquist court of two years ago, would have upheld the integration plans that Seattle and Louisville, Ky., voluntarily adopted. But the Roberts court, on a 5-4 vote, struck them down, choosing to see the 14th Amendment’s equal-protection clause — which was adopted for the express purpose of integrating blacks more fully into society — as a tool for protecting white students from integration.

On campaign finance, the court handed a major victory to corporations and wealthy individuals — again by a 5-4 vote — striking down portions of the law that reined in the use of phony issue ads. The ruling will make it easier for corporations and lobbyists to buy the policies they want from Congress.

Corporations also won repeatedly over consumers and small stockholders. The court overturned a jury’s award of $79.5 million in punitive damages against Philip Morris. The Oregon Supreme Court had upheld the award, calling Philip Morris’s 40 years of denying the connection between smoking and cancer “extraordinarily reprehensible.”

In a ruling that will enrich companies at the expense of consumers, the court overturned — again by a 5-4 vote — a 96-year-old rule that manufacturers cannot impose minimum prices on retailers.

The flip side of the court’s boundless solicitude for the powerful was its often contemptuous attitude toward common folks looking for justice. It ruled that an inmate who filed his appeal within the deadline set by a federal judge was out of luck, because the judge had given the wrong date — a shockingly unjust decision that overturned two court precedents on missed deadlines.

When Chief Justice Roberts was nominated, his supporters insisted that he believed in “judicial modesty,” and that he could not be put into a simple ideological box. But Justice Alito and he, who voted together in a remarkable 92 percent of nonunanimous decisions, have charted a thoroughly predictable archconservative approach to the law. Chief Justice Roberts said that he wanted to promote greater consensus, but he is presiding over a court that is deeply riven.

In the term’s major abortion case, the court upheld — again by a 5-4 vote — the federal Partial-Birth Abortion Ban Act, even though the court struck down a nearly identical law in 2000. In the term’s major church-state case, the court ruled 5-4 that taxpayers challenging the Bush administration’s faith-based initiatives lacked standing to sue, again reversing well-established precedents. In a few cases, notably ones challenging the Bush administration’s hands-off approach to global warming and executions of the mentally ill, Justice Anthony Kennedy broke with the conservative bloc. But that did not happen often enough.

It has been decades since the most privileged members of society — corporations, the wealthy, white people who want to attend school with other whites — have had such a successful Supreme Court term. Society’s have-nots were not the only losers. The basic ideals of American justice lost as well.

    Justice Denied, NYT, 5.7.2007, http://www.nytimes.com/2007/07/05/opinion/05thu1.html

In Shift, Justices Agree to Review Detainees’ Case

June 30, 2007
The New York Times
By WILLIAM GLABERSON

The United States Supreme Court reversed course yesterday and agreed to hear claims of Guantánamo detainees that they had a right to challenge their detention in American courts.

The decision, announced in a brief order released yesterday morning, set the stage for a legal battle that could shape debates in the Bush administration about how to close the detention center, which has become a lightning rod for international criticism.

The order, which required votes from five of the nine justices, rescinded an April order in which the justices declined to review a federal appeals court decision that ruled against the detainees.

The court offered no explanation. But the order meant that the justices will hear the full appeal in their next term, perhaps by December.

The court rarely grants such motions for reconsideration. Some experts on Supreme Court procedure said they knew of no similar reversal by the court in decades.

After two Supreme Court decisions since 2004 that have been sweeping setbacks for the administration’s detention policies, the order yesterday signaled that the justices had determined to review the issues again.

“Finally, after nearly six years, the Supreme Court is going to rule on the ultimate question: does the Constitution protect the people detained at Guantánamo Bay?” said Neal K. Katyal, a Georgetown University law professor who argued the last Supreme Court case dealing with the Guantánamo detainees. In that case, decided last June, the justices struck down the administration’s planned system for war crimes trials of detainees.

The new case sets up a test of one of the central principles of the administration’s detention policies: that it can hold “enemy combatants” without allowing them habeas corpus proceedings, which have been used in English and American law for centuries to challenge the legality of detentions.

The Justice Department declined to comment in any detail on yesterday’s order, which it had strenuously opposed. “We are disappointed with the decision, but are confident in our legal arguments and look forward to presenting them before the court,” said Erik Ablin, a department spokesman.

The administration has argued that permitting habeas corpus suits by foreigners who are held as enemy combatants outside the United States would paralyze the military during wartime by giving courts the power to review commanders’ decisions. In response, Congress passed a law last year stripping the federal courts of the power to hear such habeas corpus cases filed by Guantánamo detainees.

One issue in the case is whether Congress had the power to enact that law, as a constitutional provision bars the government from suspending habeas corpus except in “cases of rebellion or invasion.”

Lawyers for many of the 375 men now held at the naval station in Cuba greeted the court’s unexpected action with euphoria. “The Supreme Court has taken a giant step toward ensuring the detainees a day in court,” said David H. Remes, a Washington lawyer who represents Yemeni detainees at Guantánamo.

Lawyers for detainees had filed some 300 habeas cases, which were working their way through the courts when Congress passed the law last year. Democrats in Congress have been pressing to explicitly grant the detainees habeas rights. Some supporters said yesterday’s decision would increase political pressure for such a measure, although administration officials have said the president would probably veto it.

Even so, the court’s decision yesterday could increase momentum within the administration to find a way to close the Guantánamo detention center. President Bush and other administration officials have said that they would like to close it, but the question of where else to hold detainees who are considered too dangerous to release is a complex one.

Yesterday’s reversal by the Supreme Court suggested that Justice Anthony M. Kennedy, who opposed hearing the case in April, had changed his position. Although the vote tally for yesterday’s decision was not released, there have been indications that Justice Kennedy’s position on this case has been pivotal. But lawyers said it was not possible to predict how he might eventually vote in what could be a divisive issue on the court.

Lawyers on both sides of the issue also said the Supreme Court’s review was likely to focus on the fairness of the military hearings that the administration has established to determine whether detainees are enemy combatants and should be detained. In the closed hearings, conducted by what are known as combatant status review tribunals, detainees are not permitted lawyers and cannot see much of the evidence against them.

The detainees’ lawyers have said the hearings are sham proceedings that cannot substitute for reviews by federal judges. On June 22, while the Supreme Court was considering whether to reconsider its April decision, detainees’ lawyers filed an affidavit by the first military participant in the hearing process to criticize secret hearing procedures.

In the affidavit, Stephen E. Abraham, a Reserve military intelligence officer, described the process of gathering evidence as haphazard and said commanding officers exerted pressure to have the panels find that detainees were properly held as enemy combatants.

Although military officials said they disagreed with Mr. Abraham’s characterizations, lawyers involved in the case said yesterday that the affidavit might have helped convince some justices that they should more closely examine the legal procedures at Guantánamo. In the case now before the Supreme Court, the federal appeals court in Washington in February upheld the law that stripped federal judges of authority to review foreign prisoners’ challenges to their detention at Guantánamo Bay.

In the case, Boumediene v. Bush, a divided three-judge panel of the United States Court of Appeals for the District of Columbia Circuit found that the 2006 law did not violate the constitutional provision that bars the government from suspending habeas corpus.

Two of the three appeals court judges said the right of habeas corpus did not extend to foreign citizens detained outside the United States. In fighting the effort to get the Supreme Court to review that decision, the administration argued that habeas corpus rights “would not extend to aliens detained at Guantánamo Bay as enemy combatants.”

The Supreme Court twice before had faced similar questions, and had ruled in 2004 that federal courts did have jurisdiction to hear Guantánamo detainees’ cases.

Last June, the court said the administration’s plan to try some of the Guantánamo detainees in military commissions was invalid and struck it down.

Language in the justices’ statements accompanying the April order had suggested maneuvering among them on whether or when they should again get involved in the tangled legal questions presented by Guantánamo.

A statement “respecting the denial” of the detainees’ requests in April was signed jointly by Justices Kennedy and John Paul Stevens. It said the detainees had to contest findings of the military hearings in the federal appeals court in Washington, as provided by Congress, before going to the Supreme Court.

But the April statement also said the Supreme Court would be open to a renewed appeal if it turned out that “the government has unreasonably delayed proceedings” or subjected the detainees to “some other and ongoing injury.”

    In Shift, Justices Agree to Review Detainees’ Case, NYT, 30.6.2007, http://www.nytimes.com/2007/06/30/washington/30scotus.html?hp

Mikhaela Reid        Cagle        28.6.2007

Editorial

Resegregation Now

June 29, 2007
The New York Times
 

The Supreme Court ruled 53 years ago in Brown v. Board of Education that segregated education is inherently unequal, and it ordered the nation’s schools to integrate. Yesterday, the court switched sides and told two cities that they cannot take modest steps to bring public school students of different races together. It was a sad day for the court and for the ideal of racial equality.

Since 1954, the Supreme Court has been the nation’s driving force for integration. Its orders required segregated buses and public buildings, parks and playgrounds to open up to all Americans. It wasn’t always easy: governors, senators and angry mobs talked of massive resistance. But the court never wavered, and in many of the most important cases it spoke unanimously.

Yesterday, the court’s radical new majority turned its back on that proud tradition in a 5-4 ruling, written by Chief Justice John Roberts. It has been some time since the court, which has grown more conservative by the year, did much to compel local governments to promote racial integration. But now it is moving in reverse, broadly ordering the public schools to become more segregated.

Justice Anthony Kennedy, who provided the majority’s fifth vote, reined in the ruling somewhat by signing only part of the majority opinion and writing separately to underscore that some limited programs that take race into account are still acceptable. But it is unclear how much room his analysis will leave, in practice, for school districts to promote integration. His unwillingness to uphold Seattle’s and Louisville’s relatively modest plans is certainly a discouraging sign.

In an eloquent dissent, Justice Stephen Breyer explained just how sharp a break the decision is with history. The Supreme Court has often ordered schools to use race-conscious remedies, and it has unanimously held that deciding to make assignments based on race “to prepare students to live in a pluralistic society” is “within the broad discretionary powers of school authorities.”

Chief Justice Roberts, who assured the Senate at his confirmation hearings that he respected precedent, and Brown in particular, eagerly set these precedents aside. The right wing of the court also tossed aside two other principles they claim to hold dear. Their campaign for “federalism,” or scaling back federal power so states and localities have more authority, argued for upholding the Seattle and Louisville, Ky., programs. So did their supposed opposition to “judicial activism.” This decision is the height of activism: federal judges relying on the Constitution to tell elected local officials what to do.

The nation is getting more diverse, but by many measures public schools are becoming more segregated. More than one in six black children now attend schools that are 99 to 100 percent minority. This resegregation is likely to get appreciably worse as a result of the court’s ruling.

There should be no mistaking just how radical this decision is. In dissent, Justice John Paul Stevens said it was his “firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.” He also noted the “cruel irony” of the court relying on Brown v. Board of Education while robbing that landmark ruling of much of its force and spirit. The citizens of Louisville and Seattle, and the rest of the nation, can ponder the majority’s kind words about Brown as they get to work today making their schools, and their cities, more segregated.

Resegregation Now, NYT, 29.6.2007, http://www.nytimes.com/2007/06/29/opinion/29fri1.html

Bill Day        The Commercial Appeal        Memphis, Tennessee        2.7.2007

Op-Ed Contributor

Don’t Mourn Brown v. Board of Education

June 29, 2007
The New York Times
By JUAN WILLIAMS

Washington

LET us now praise the Brown decision. Let us now bury the Brown decision.

With yesterday’s Supreme Court ruling ending the use of voluntary schemes to create racial balance among students, it is time to acknowledge that Brown’s time has passed. It is worthy of a send-off with fanfare for setting off the civil rights movement and inspiring social progress for women, gays and the poor. But the decision in Brown v. Board of Education that focused on outlawing segregated schools as unconstitutional is now out of step with American political and social realities.

Desegregation does not speak to dropout rates that hover near 50 percent for black and Hispanic high school students. It does not equip society to address the so-called achievement gap between black and white students that mocks Brown’s promise of equal educational opportunity.

And the fact is, during the last 20 years, with Brown in full force, America’s public schools have been growing more segregated — even as the nation has become more racially diverse. In 2001, the National Center for Education Statistics reported that the average white student attends a school that is 80 percent white, while 70 percent of black students attend schools where nearly two-thirds of students are black and Hispanic.

By the early ’90s, support in the federal courts for the central work of Brown — racial integration of public schools — began to rapidly expire. In a series of cases in Atlanta, Oklahoma City and Kansas City, Mo., frustrated parents, black and white, appealed to federal judges to stop shifting children from school to school like pieces on a game board. The parents wanted better neighborhood schools and a better education for their children, no matter the racial make-up of the school. In their rulings ending court mandates for school integration, the judges, too, spoke of the futility of using schoolchildren to address social ills caused by adults holding fast to patterns of residential segregation by both class and race.

The focus of efforts to improve elementary and secondary schools shifted to magnet schools, to allowing parents the choice to move their children out of failing schools and, most recently, to vouchers and charter schools. The federal No Child Left Behind plan has many critics, but there’s no denying that it is an effective tool for forcing teachers’ unions and school administrators to take responsibility for educating poor and minority students.

It was an idealistic Supreme Court that in 1954 approved of Brown as a race-conscious policy needed to repair the damage of school segregation and protect every child’s 14th-Amendment right to equal treatment under law. In 1971, Chief Justice Warren Burger, writing for a unanimous court still embracing Brown, said local school officials could make racial integration a priority even if it did not improve educational outcomes because it helped “to prepare students to live in a pluralistic society.”

But today a high court with a conservative majority concludes that any policy based on race — no matter how well intentioned — is a violation of every child’s 14th-Amendment right to be treated as an individual without regard to race. We’ve come full circle.

In 1990, after months of interviews with Justice Thurgood Marshall, who had been the lead lawyer for the N.A.A.C.P. Legal Defense Fund on the Brown case, I sat in his Supreme Court chambers with a final question. Almost 40 years later, was he satisfied with the outcome of the decision? Outside the courthouse, the failing Washington school system was hypersegregated, with more than 90 percent of its students black and Latino. Schools in the surrounding suburbs, meanwhile, were mostly white and producing some of the top students in the nation.

Had Mr. Marshall, the lawyer, made a mistake by insisting on racial integration instead of improvement in the quality of schools for black children?

His response was that seating black children next to white children in school had never been the point. It had been necessary only because all-white school boards were generously financing schools for white children while leaving black students in overcrowded, decrepit buildings with hand-me-down books and underpaid teachers. He had wanted black children to have the right to attend white schools as a point of leverage over the biased spending patterns of the segregationists who ran schools — both in the 17 states where racially separate schools were required by law and in other states where they were a matter of culture.

If black children had the right to be in schools with white children, Justice Marshall reasoned, then school board officials would have no choice but to equalize spending to protect the interests of their white children.

Racial malice is no longer the primary motive in shaping inferior schools for minority children. Many failing big city schools today are operated by black superintendents and mostly black school boards.

And today the argument that school reform should provide equal opportunity for children, or prepare them to live in a pluralistic society, is spent. The winning argument is that better schools are needed for all children — black, white, brown and every other hue — in order to foster a competitive workforce in a global economy.

Dealing with racism and the bitter fruit of slavery and “separate but equal” legal segregation was at the heart of the court’s brave decision 53 years ago. With Brown officially relegated to the past, the challenge for brave leaders now is to deliver on the promise of a good education for every child.

Juan Williams, a senior correspondent for NPR and a political analyst for Fox News Channel, is the author of “Enough: The Phony Leaders, Dead-End Movements and Culture of Failure That Are Undermining Black America.”

    Don’t Mourn Brown v. Board of Education, NYT, 29.6.2007, http://www.nytimes.com/2007/06/29/opinion/29williams.html

Justices Limit the Use of Race

in Integration Programs

June 29, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, June 28 — With competing blocs of justices claiming the mantle of Brown v. Board of Education, a bitterly divided Supreme Court declared Thursday that public school systems cannot seek to achieve or maintain integration through measures that take explicit account of a student’s race.

Voting 5 to 4, the court, in an opinion by Chief Justice John G. Roberts Jr., invalidated programs in Seattle and metropolitan Louisville, Ky., that sought to maintain school-by-school diversity by limiting transfers on the basis of race or using race as a “tiebreaker” for admission to particular schools.

Both programs had been upheld by lower federal courts and were similar to plans in place in hundreds of school districts around the country. Chief Justice Roberts said such programs were “directed only to racial balance, pure and simple,” a goal he said was forbidden by the Constitution’s guarantee of equal protection.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he said. His side of the debate, the chief justice said, was “more faithful to the heritage of Brown,” the landmark 1954 decision that declared school segregation unconstitutional. “When it comes to using race to assign children to schools, history will be heard,” he said. [News analysis, Page A24; excerpts, Page A25.]

The decision came on the final day of the court’s 2006-7 term, which showed an energized conservative majority in control across many areas of the court’s jurisprudence.

Chief Justice Roberts’s control was not quite complete, however. While Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. joined his opinion on the schools case in full, the fifth member of the majority, Justice Anthony M. Kennedy, did not. Justice Kennedy agreed that the two programs were unconstitutional. But he was highly critical of what he described as the chief justice’s “all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account.”

In a separate opinion that could shape the practical implications of the decision and provide school districts with guidelines for how to create systems that can pass muster with the court, Justice Kennedy said achieving racial diversity, “avoiding racial isolation” and addressing “the problem of de facto resegregation in schooling” were “compelling interests” that a school district could constitutionally pursue as long as it did so through programs that were sufficiently “narrowly tailored.”

The four justices were “too dismissive” of the validity of these goals, Justice Kennedy said, adding that it was “profoundly mistaken” to read the Constitution as requiring “that state and local school authorities must accept the status quo of racial isolation in schools.”

As a matter of constitutional doctrine and practical impact, Justice Kennedy’s opinion thus placed a significant limitation on the full reach of the other four justices’ embrace of a “colorblind Constitution” under which all racially conscious government action, no matter how benign or invidious its goal, is equally suspect.

How important a limitation Justice Kennedy’s opinion proves to be may become clear only with time, as school districts devise and defend plans that appear to meet his test.

Among the measures that Justice Kennedy said would be acceptable were the drawing of school attendance zones, “strategic site selection of new schools,” and directing resources to special programs. These would be permissible even if adopted with a consciousness of racial demographics, Justice Kennedy said, because in avoiding the labeling and sorting of individual children by race they would satisfy the “narrow tailoring” required to meet the equal protection demands of the 14th Amendment.

Justice Stephen G. Breyer, who wrote the principal dissenting opinion, was dismissive of Justice Kennedy’s proposed alternatives and asserted that the court was taking a sharp and seriously mistaken turn.

Speaking from the bench for more than 20 minutes, Justice Breyer made his points to a courtroom audience that had never seen the coolly analytical justice express himself with such emotion. His most pointed words, in fact, appeared nowhere in his 77-page opinion.

“It is not often in the law that so few have so quickly changed so much,” Justice Breyer said.

In his written opinion, Justice Breyer said the decision was a “radical” step away from settled law and would strip local communities of the tools they need, and have used for many years, to prevent resegregation of their public schools. Predicting that the ruling would “substitute for present calm a disruptive round of race-related litigation,” he said, “This is a decision that the court and the nation will come to regret.”

Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg signed Justice Breyer’s opinion. Justice Stevens wrote a dissenting opinion of his own, as pointed as it was brief.

He said the chief justice’s invocation of Brown v. Board of Education was “a cruel irony” when the opinion in fact “rewrites the history of one of this court’s most important decisions” by ignoring the context in which it was issued and the Supreme Court’s subsequent understanding of it to permit voluntary programs of the sort that were now invalidated.

“It is my firm conviction that no member of the court that I joined in 1975 would have agreed with today’s decision,” Justice Stevens said. He did not mention, nor did he need to, that one of the justices then was William H. Rehnquist, later the chief justice, for whom Chief Justice Roberts once worked as a law clerk.

Justice Clarence Thomas was equally pointed and equally personal in an opinion concurring with the majority.

“If our history has taught us anything,” Justice Thomas said, “it has taught us to beware of elites bearing racial theories.” He added in a footnote, “Justice Breyer’s good intentions, which I do not doubt, have the shelf life of Justice Breyer’s tenure.”

The justices had been wrestling for over a year with the two cases. It was in January 2006 that parents who objected to the Louisville and Seattle programs filed their Supreme Court appeals from the lower court decisions that had upheld the programs.

The Louisville case was Meredith v. Jefferson County Board of Education, No. 05-915, filed by the mother of a student who was denied a transfer to his chosen kindergarten class because the school he wanted to leave needed to keep its white students to stay within the program’s racial guidelines.

The Seattle case, Parents Involved in Community Schools v. Seattle School District No. 1, No. 05-908, was filed by a group of parents who had formed a nonprofit corporation to fight the city’s high school assignment plan.

Because a single Supreme Court opinion resolved both cases, the decision carries only the name of the Seattle case, which had the lower docket number.

The appeals provoked a long internal struggle over how the court should respond. Months earlier, when Justice Sandra Day O’Connor was still on the court, the justices had denied review in an appeal challenging a similar program in Massachusetts. With no disagreement among the federal appellate circuits on the validity of such programs, the new appeals did not meet the criterion the court ordinarily uses to decide which cases to hear. It was June of last year before the court, reconfigured by the additions of Chief Justice Roberts and Justice Alito, announced, over the unrecorded but vigorous objection of the liberal justices, that it would hear both appeals.

By the time the court ruled on Thursday, there was little suspense over what the outcome would be. Not only the act of accepting the appeals, but also the tenor of the argument on Dec. 4, gave clear indications that the justices were on course to strike down both plans.

The cases were by far the oldest on the docket by the time they were decided; the other decisions the court announced on Thursday were in cases that were argued in March and April. What consumed the court during the seven months the cases were under consideration, it appears likely, was an effort by each side to edge Justice Kennedy closer to its point of view.

While it is hardly uncommon to find Justice Kennedy in the middle of the court, his position there this time carried a special resonance. He holds the seat once occupied by Justice Lewis F. Powell Jr. who, 29 years ago to the day, announced his separate opinion in the Bakke case. That solitary opinion, rejecting quotas but accepting diversity as a rationale for affirmative action in university admissions, defined the law for the next 25 years, until the decision was refined and to some degree strengthened in the University of Michigan Law School decision.

Justice Kennedy was a dissenter from that 2003 decision. But, surprisingly, he cited it on Thursday, invoking it to rebut the argument that the Constitution must be always be, regardless of context or circumstance, colorblind.

    Justices Limit the Use of Race in Integration Programs, NYT, 29.6.2007, http://www.nytimes.com/2007/06/29/washington/29scotus.html?hp

News Analysis

The Same Words, but Differing Views

June 29, 2007
The New York Times
By ADAM LIPTAK

The five opinions that made up yesterday’s decision limiting the use of race in assigning students to public schools referred to Brown v. Board of Education, the landmark 1954 school desegregation case, some 90 times. The justices went so far as to quote from the original briefs in the case and from the oral argument in 1952.

All of the justices on both sides of yesterday’s 5-to-4 decision claimed to be, in Chief Justice John G. Roberts Jr.’s phrase, “faithful to the heritage of Brown.”

But lawyers who represented the black schoolchildren in the Brown case said yesterday that several justices in the majority had misinterpreted the positions they had taken in the litigation and had misunderstood the true meaning of Brown.

And as those reactions make clear, yesterday’s decision has reignited a societal debate about the role of race in education that will almost certainly prompt divisive lawsuits around the country. Indeed, the decision has invited a fundamental reassessment of Brown itself, perhaps the most important Supreme Court decision of the 20th century.

“There is a historic clash between two dramatically different visions not only of Brown,” said Laurence H. Tribe, a law professor at Harvard, “but also the meaning of the Constitution.”

The four conservatives on the court said Brown and the 14th Amendment’s equal protection clause required the government to be colorblind in making decisions about placing students in public schools in all circumstances. The four liberals said Brown meant to allow school districts to take account of race to achieve integration.

In the middle was Justice Anthony M. Kennedy, whose concurring opinion, at once idiosyncratic, enigmatic and decisive, was perhaps the least engaged with Brown, saying little more than that the case “should teach us that the problem before us defies” an “easy solution.” Justice Kennedy’s concurrence, which split the court 4-1-4 on a crucial point, sharply limited the role race could play in school assignments but did not forbid school districts from taking account of race entirely.

Charles J. Ogletree Jr., a law professor at Harvard and an authority on Brown and its aftermath, applauded that concurrence. “The hidden story in the decision today is that Justice Kennedy refused to follow the lead of the other four justices in eviscerating the legacy of Brown,” Professor Ogletree said.

Writing for the other four justices in the majority, Chief Justice Roberts took a harder line. In an unusual effort to cement his interpretation of Brown, he quoted from the transcript of the 1952 argument in the case.

“We have one fundamental contention,” a lawyer for the schoolchildren, Robert L. Carter, had told the court more than a half-century ago. “No state has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”

Chief Justice Roberts added yesterday, “There is no ambiguity in that statement.”

But the man who made that statement, now a 90-year-old senior federal judge in Manhattan, disputed the chief justice’s characterization in an interview yesterday.

“All that race was used for at that point in time was to deny equal opportunity to black people,” Judge Carter said of the 1950s. “It’s to stand that argument on its head to use race the way they use is now.”

Jack Greenberg, who worked on the Brown case for the plaintiffs and is now a law professor at Columbia, called the chief justice’s interpretation “preposterous.”

“The plaintiffs in Brown were concerned with the marginalization and subjugation of black people,” Professor Greenberg said. “They said you can’t consider race, but that’s how race was being used.”

William T. Coleman Jr., another lawyer who worked on Brown, said, “The majority opinion is 100 percent wrong.”

“It’s dirty pool,” said Mr. Coleman, a Washington lawyer who served as secretary of transportation in the Ford administration, “to say that the people Brown was supposed to protect are the people it’s now not going to protect.”

But Roger Clegg, the president and general counsel of the Center for Equal Opportunity, a research group in the Washington area that supports colorblind government policies, disagreed, saying the majority honored history in yesterday’s decision.

“There is no question but that the principle of Brown is that a child’s skin color should not determine what school he or she should be assigned to,” Mr. Clegg said.

Chief Justice Roberts wrote that Brown not only supported but also required yesterday’s decision striking down student assignment plans in Seattle and Louisville, Ky., meant to ensure racially balanced schools.

Justice John Paul Stevens, in dissent, said Chief Justice Roberts’s discussion of Brown “rewrites the history of one of this court’s most important decisions.” Justice Stephen G. Breyer, also dissenting, said the opinion “undermines Brown’s promise of integrated primary and secondary education” and “threatens to substitute for present calm a disruptive round of race-related litigation.”

Professor Greenberg said he was also wary of the reaction to yesterday’s decision. “Following Brown, there was massive resistance” that lasted some 15 years, he said. “This is essentially the rebirth of massive resistance in more acceptable form.”

Mr. Clegg, by contrast, said the decision’s practical consequences should be minimal. “Kennedy does leave the door open to some degree of consideration of race,” he said, “but it’s not very clear what that would be.”

As a consequence, Mr. Clegg said, most prudent school districts would shy from any use of race in assigning students for fear of costly and disruptive litigation.

Professor Greenberg suggested that more than law was at play in yesterday’s decision.

“You can’t really say that five justices are so smart that they can read the law and precedents and four others can’t,” he said. “Something else is going on.”

Steven Greenhouse contributed reporting.

    The Same Words, but Differing Views, NYT, 29.6.2007, http://www.nytimes.com/2007/06/29/us/29assess.html

Century-Old Ban

Lifted on Minimum Retail Pricing

June 29, 2007
The New York Times
By STEPHEN LABATON

WASHINGTON, June 28 — Striking down an antitrust rule nearly a century old, the Supreme Court ruled on Thursday that it was not automatically unlawful for manufacturers and distributors to agree on minimum retail prices.

The decision will give producers significantly more, though not unlimited, power to dictate retail prices and to restrict the flexibility of discounters.

Five justices, agreeing with the nation’s major manufacturers, said the new rule could in some instances lead to more competition and better service. But four dissenting justices agreed with 37 states and some consumer groups that abandoning the old rule could result in significantly higher prices and less competition for consumer and other goods.

The court struck down the 96-year-old rule that resale price maintenance agreements were an automatic, or per se, violation of the Sherman Antitrust Act. In its place, the court instructed judges considering such agreements for possible antitrust violations to apply a case-by-case approach, known as a “rule of reason,” to assess their impact on competition. The new rule is considerably more favorable to defendants.

The decision was handed down on the last day of the court’s term, which has been notable for overturning precedents and for victories for big businesses and antitrust defendants. It was also the latest of a series of antitrust decisions in recent years rejecting per se rules that had prohibited various marketing agreements between companies.

The Bush administration, along with economists of the Chicago school, had argued that the blanket prohibition against resale price maintenance agreements was archaic and counterproductive because, they said, some resale price agreements actually promote competition.

For example, they said, such agreements can make it easier for a new producer by assuring retailers that they will be able to recoup their investments in helping to market the product. And some distributors would be unfairly harmed by others, like Internet-based retailers, which could offer discounts because they would not have the expense of product demonstrations or other specialized consumer services.

A majority of the court agreed that the flat ban on price agreements discouraged these services and other marketing practices that could promote competition.

“In sum, it is a flawed antitrust doctrine that serves the interests of lawyers — by creating legal distinctions that operate as traps for the unaware — more than the interests of consumers — by requiring manufacturers to choose second-best options to achieve sound business objectives,” the court said in an opinion written by Justice Anthony M. Kennedy and signed by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

But in his dissent, portions of which he read from the bench, Justice Stephen G. Breyer said that there was no compelling reason to overturn a century’s worth of Supreme Court decisions that had affirmed the prohibition on resale maintenance agreements.

“The only safe predictions to make about today’s decision are that it will likely raise the price of goods at retail and that it will create considerable legal turbulence as lower courts seek to develop workable principles,” he wrote. “I do not believe that the majority has shown new or changed conditions sufficient to warrant overruling a decision of such long standing.”

During a 38-year period from 1937 to 1975 that Congress permitted the states to adopt laws allowing retail price fixing, economists estimated that such agreements covered about 10 percent of consumer good purchases. In today’s dollars, Justice Breyer estimated that the agreements translated to a higher annual average bill for a family of four of about $750 to $1,000.

The dissent was signed by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.

The case involved an appeal of a judgment of $1.2 million against Leegin Creative Leather Products after it cut off Kay’s Kloset, a suburban Dallas shop, for refusing to honor Leegin’s no-discount policy. The judgment was automatically tripled under antitrust law.

Leegin’s marketing strategy for finding a niche in the highly competitive world of small leather goods was to sell its “Brighton” line of fashion accessories through small boutiques that could offer personalized service. Retailers were required to accept a no-discounting policy.

After the United States Court of Appeals for the Fifth Circuit, in New Orleans, upheld the judgment and said it was bound by Supreme Court precedent, Leegin took the case to the Supreme Court. Unless it is settled, the case, Leegin Creative Leather Products v. PSK Inc., will now be sent down to a lower court to apply the new standard.

The Supreme Court adopted the flat ban on resale price agreements between manufacturers and retailers in 1911, when it found that the Dr. Miles Medical Company had violated the Sherman act. The company had sought to sell medicine only to distributors who agreed to resell them at set prices. The court said such agreements benefit only the distributors, not consumers, and set a per se rule making such agreements unlawful.

Justice Kennedy said Thursday that the court was not bound by the 1911 precedent because of the “widespread agreement” among economists that resale price maintenance agreements can promote competition.

“Vertical agreements establishing minimum resale prices can have either pro-competitive or anticompetitive effects, depending upon the circumstances in which they are formed,” he wrote.

But Justice Breyer said in his dissent that the court had failed to justify the overturning of the rule, or that there was significant evidence to show that price agreements would often benefit consumers. He said courts would have a difficult time sorting out the price agreements that help consumers from those that harm them.

“The upshot is, as many economists suggest, sometimes resale price maintenance can prove harmful, sometimes it can bring benefits,” he wrote. “But before concluding that courts should consequently apply a rule of reason, I would ask such questions as, how often are harms or benefits likely to occur? How easy is it to separate the beneficial sheep from the antitrust goats?”

“My own answer,” he concluded, “is not very easily.”

    Century-Old Ban Lifted on Minimum Retail Pricing, NYT, 29.6.2007, http://www.nytimes.com/2007/06/29/washington/29bizcourt.html?hp

Justices

Block Execution of Delusional Killer

June 29, 2007
The New York Times
By RALPH BLUMENTHAL

HOUSTON, June 28 — Amplifying its ban against execution of the insane, a closely divided United States Supreme Court on Thursday overturned the death sentence of a delusional Texas murderer who insisted that he was being punished for preaching the Gospel.

In a rebuke to lower courts, the justices ruled 5 to 4 that the defendant, Scott Louis Panetti, had not been shown to have sufficient understanding of why he was to be put to death for gunning down his wife’s parents in 1992.

The court, acting on the last day of the 2006-7 term, declined to lay out a new standard for competency in capital cases. But it found that existing protections had not been afforded.

Justice Anthony M. Kennedy provided the swing vote, joined by the court’s liberal wing: Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

The justices referred the case back to a federal district court to re-evaluate Mr. Panetti’s claims of insanity. They said the district court, Texas courts and the United States Court of Appeals for the Fifth Circuit, in New Orleans, had all failed to assess those claims properly.

In a stinging dissent, Justice Clarence Thomas called the ruling “a half-baked holding that leaves the details of the insanity standard for the district court to work out.” He was joined in the minority by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr.

Gregory W. Wiercioch, a staff lawyer for the Texas Defender Service who argued Mr. Panetti’s appeal before the justices in April, hailed the decision as “reaffirming and strengthening the grounds for proving incompetence” and said it “put the bite back into a standard that the Fifth Circuit had rendered essentially meaningless.”

Larry Cox, executive director of Amnesty International USA, said, “The Supreme Court has taken a much-needed step toward a more humane America.”

But the solicitor general of Texas, Ted Cruz, who had defended the sentence before the court, said the state would continue to seek Mr. Panetti’s execution.

“Unfortunately, today’s 5-to-4 decision will invite abuse from capital murderers, subject the courts to numerous false claims of incompetency and even further delay justice for the victims’ families,” Mr. Cruz said.

“Texas,” he added, “will now return for further proceedings” in the lower courts, “where we will continue working to carry out the jury’s unanimous capital sentence for Scott Louis Panetti’s premeditated double homicide.”

Mr. Panetti, 49, is on death row in the East Texas town of Livingston. He has won periodic delays of execution — he came within a day of being put to death by lethal injection in 2004 — but court decisions against his appeals have added to protests against capital punishment in Texas, where 397 people, more than in any other state, have been executed since the Supreme Court allowed resumption of the death penalty in 1976.

A schizophrenic who served as his own lawyer in court and mounted an often incoherent defense, Mr. Panetti claimed that his body had been taken over by an alter ego he called Sarge Ironhorse and that demons were bent on killing him for his Christian beliefs.

In a prison interview last November, Mr. Panetti, clutching verses from Scripture, declared, “The Devil has been trying to rub me out to keep me from preaching.” He tried to strip off his prison uniform to show scars from burns that he said John F. Kennedy healed with coconut milk after the sinking of Kennedy’s torpedo boat in the Pacific in World War II.

In April, the Supreme Court narrowly reversed three other Texas death sentences as contrary to its evolving jurisprudence on capital punishment. As in those cases, Thursday’s ruling found reversible error by Texas courts and the Fifth Circuit.

In 1986, the Supreme Court ruled in Ford v. Wainwright that the Constitution barred the execution of the mentally ill. But the standard for determining competency was not laid out beyond Justice Lewis F. Powell’s concurring opinion that the Eighth Amendment’s ban on cruel and unusual punishment required that a defendant who is to be executed be able to recognize the relationship between his crime and his sentence.

The Fifth Circuit found that Mr. Panetti had a minimal understanding of the connection. But the justices said that he was so delusional that a minimal understanding was not sufficient, and that he had been denied opportunities for fully presenting his case for insanity.

The trial court that sentenced him “failed to provide the procedures to which petitioner was entitled under the Constitution,” the majority said, calling the procedures that the court did provide “so deficient that they cannot be reconciled with any reasonable interpretation of the ‘Ford rule.’ ”

The Panetti case has a long and tangled history dating from the day 15 years ago when Mr. Panetti shaved his head, donned combat fatigues and, in front of his estranged wife and their 3-year-old daughter, shot to death the wife’s parents, Joe and Amanda Alvarado, in the Hill Country town of Fredericksburg.

During the previous decade, medical records showed, Mr. Panetti had been hospitalized 14 times for schizophrenia, manic depression, hallucinations and delusions of persecution. Claiming to have seen visions of the Devil, he nailed shut the curtains of his house, buried his furniture and threatened to kill his family.

One Texas jury deadlocked on his competence to stand trial, but a second jury found him sane enough. Proclaiming himself healed by God as “a born-again April fool,” he refused further antipsychotic medication, dismissed his lawyers and won approval from the trial judge, Stephen B. Ables, to represent himself in court in 1995.

He appeared with a Tom Mix cowboy hat slung over his back, wearing purple western shirts and cowboy boots. He tried to subpoena Jesus and repeatedly ignored Judge Ables’s orders. But it was his often brutal cross-examination of his estranged wife, Sonja, forcing her to relive the murders in graphic detail, that clearly terrified the jurors, who convicted him in 90 minutes and sentenced him to death.

Afterward, Dr. F. E. Seale, a psychiatrist who treated Mr. Panetti in 1986, voiced revulsion.

“I thought to myself, ‘My God, how in the world can our legal system allow an insane man to defend himself?’ ” Dr. Seale said. “ ‘How can this be just?’ ”

    Justices Block Execution of Delusional Killer, NYT, 29.6.2007, http://www.nytimes.com/2007/06/29/washington/29execution.html?hp

Kevin Siers        North Carolina        The Charlotte Observer        28.6.2007

Editorial

Three Bad Rulings

June 26, 2007
The New York Times

The Supreme Court hit the trifecta yesterday: Three cases involving the First Amendment. Three dismaying decisions by Chief Justice John Roberts’s new conservative majority.

Chief Justice Roberts and the four others in his ascendant bloc used the next-to-last decision day of this term to reopen the political system to a new flood of special-interest money, to weaken protection of student expression and to make it harder for citizens to challenge government violations of the separation of church and state. In the process, the reconfigured court extended its noxious habit of casting aside precedents without acknowledging it — insincere judicial modesty scored by Justice Antonin Scalia in a concurring opinion.

First, campaign finance. Four years ago, a differently constituted court upheld sensible provisions of the McCain-Feingold Act designed to prevent corporations and labor unions from circumventing the ban on their spending in federal campaigns by bankrolling phony “issue ads.” These ads purport to just educate voters about a policy issue, but are really aimed at a particular candidate.

The 2003 ruling correctly found that the bogus issue ads were the functional equivalent of campaign ads and upheld the Congressional restrictions on corporate and union money. Yet the Roberts court shifted course in response to sham issue ads run on radio and TV by a group called Wisconsin Right to Life with major funding from corporations opposed to Senator Russell Feingold, the Democrat who co-authored the act.

It opened a big new loophole in time to do mischief in the 2008 elections. The exact extent of the damage is unclear. But the four dissenters were correct in warning that the court’s hazy new standard for assessing these ads is bound to invite evasion and fresh public cynicism about big money and politics.

The decision contained a lot of pious language about protecting free speech. But magnifying the voice of wealthy corporations and unions over the voice of candidates and private citizens is hardly a free speech victory. Moreover, the professed devotion to the First Amendment did not extend to allowing taxpayers to challenge White House aid to faith-based organizations as a violation of church-state separation. The controlling opinion by Justice Samuel Alito offers a cockeyed reading of precedent and flimsy distinctions between executive branch initiatives and Congressionally authorized spending to deny private citizens standing to sue. That permits the White House to escape accountability when it improperly spends tax money for religious purposes.

Nor did the court’s concern for free speech extend to actually allowing free speech in the oddball case of an Alaska student who was suspended from high school in 2002 after he unfurled a banner reading “Bong Hits 4 Jesus” while the Olympic torch passed. The ruling by Chief Justice Roberts said public officials did not violate the student’s rights by punishing him for words that promote a drug message at an off-campus event. This oblique reference to drugs hardly justifies such mangling of sound precedent and the First Amendment.

    Three Bad Rulings, NYT, 26.6.2007, http://www.nytimes.com/2007/06/26/opinion/26tue1.html

Supreme Court to Weigh Limits

on Cases Involving Medical Devices

June 26, 2007
The New York Times
By STEPHEN LABATON

WASHINGTON, June 25 — Setting the stage for a confrontation between the states and manufacturers, the Supreme Court said on Monday that it would hear an appeal raising the issue of whether the makers of medical equipment approved by the federal government may be sued under state law by patients injured by those devices.

Although the appeal will most likely turn on the Supreme Court’s interpretation of the 1976 medical devices amendments to the Food, Drug and Cosmetic Act, the case is part of a broader debate in Washington over the extent to which the Bush administration and Congress may preclude the states from imposing consumer regulations that are more stringent than the federal government’s.

Federal agencies under the control of Bush administration appointees have sought to adopt regulations covering matters as diverse as auto safety and medicine labeling to preclude active state prosecutors and trial lawyers from bringing lawsuits that would impose higher safety standards.

An array of agencies, including the Food and Drug Administration, the National Highway Traffic Safety Administration and the Consumer Product Safety Commission, have proposed or adopted rules that would make it more difficult for consumers to bring lawsuits under state laws that are more favorable to victims than are federal regulations.

Critics of the Bush administration say that the approach strips consumers of valuable state protections. Supporters say the federal effort to pre-empt the states sets uniform national standards and discourages overzealous state prosecutors.

In the case before the Supreme Court, both the Bush administration and the defendant company, Medtronic, had urged the justices to reject the appeal of a patient who was injured when a balloon catheter it made ruptured during an angioplasty in 1996.

The patient, Charles R. Riegel, and his wife, Donna, sued Medtronic for a variety of state tort law violations, including negligent design and breach of warranty. The company maintained that Mr. Riegel’s surgeon should not have used the balloon catheter because of Mr. Riegel’s condition and that the surgeon used the device in a manner inconsistent with its labeling.

Both a Federal District Court and a Federal Appeals Court in New York dismissed most of the Riegels’ claims. Those courts concluded that because the F.D.A. had approved the balloon catheter after a rigorous review and before it went to market, injured patients could not file claims against Medtronic under state law. The medical devices amendment forbids a state from adopting any requirement “which is different from, or in addition to, any requirement” in federal law.

Federal courts around the nation have taken different views of whether that provision bars state law damage claims against medical devices approved by the F.D.A. The issue has so confounded the courts that three appeals courts reviewing the same medical device made by the same company have reached two different conclusions about whether patients could bring a lawsuit.

Lawyers involved in the Medtronic case say they expect the court to hear from manufacturers and business groups in support of Medtronic, as well as from states and consumer organizations on behalf of the patient who was injured. The case, Riegel v. Medtronic, No. 06-179, is expected to be heard by the court in the fall.

A group of similar cases involving drugs is moving through the courts.

    Supreme Court to Weigh Limits on Cases Involving Medical Devices, NYT, 26.6.2007, http://www.nytimes.com/2007/06/26/business/26bizcourt.html

Student loses ruling over "Bong Hits 4 Jesus"

Mon Jun 25, 2007
11:07AM EDT
Reuters
By James Vicini

WASHINGTON (Reuters) - A high school student who was suspended for unfurling a banner saying "Bong Hits 4 Jesus" did not have his rights violated, a divided U.S. Supreme Court ruled on Monday in its first major decision on student free-speech rights in nearly 20 years.

The high court's conservative majority ruled that a high school principal in Juneau, Alaska, did not violate the student's constitutional free-speech rights by confiscating the banner and then suspending him.

Student Joseph Frederick says the banner's language was meant to be nonsensical and funny, a prank to get on television as the Winter Olympic torch relay passed by the school in January 2002.

But school officials say the phrase "bong hits" refers to smoking marijuana. Principal Deborah Morse suspended Frederick for 10 days because she said the banner advocated or promoted illegal drug use in violation of school policy.

Frederick, 18, had been standing on a public sidewalk across the street from the school when Morse grabbed his banner and crumpled it. Students had been allowed out of class to watch the event.

The majority opinion written by Chief Justice John Roberts said the court agreed with Morse that those who viewed the banner would interpret it as advocating or promoting illegal drug use, in violation of school policy.

Roberts, who was appointed to the court by President George W. Bush, said a principal may, consistent with the First Amendment, restrict student speech at a school event when it is reasonably viewed as promoting illegal drug use.

Liberal Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg dissented on the constitutional issue. Justice Breyer said he would have decided the case without reaching the constitutional issue by ruling the principal cannot be held liable for damages.

    Student loses ruling over "Bong Hits 4 Jesus", R, 25.6.2007, http://www.reuters.com/article/domesticNews/idUSWBT00720120070625

Supreme Court

Limits Students’ Speech Rights

June 25, 2007
By THE ASSOCIATED PRESS
Filed at 10:49 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court tightened limits on student speech Monday, ruling against a high school student and his 14-foot-long ''Bong Hits 4 Jesus'' banner.

Schools may prohibit student expression that can be interpreted as advocating drug use, Chief Justice John Roberts wrote for the court in a 5-4 ruling.

Joseph Frederick unfurled his homemade sign on a winter morning in 2002, as the Olympic torch made its way through Juneau, Alaska, en route to the Winter Olympics in Salt Lake City.

Frederick said the banner was a nonsensical message that he first saw on a snowboard. He intended the banner to proclaim his right to say anything at all.

His principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating for drug use.

''The message on Frederick's banner is cryptic,'' Roberts said. ''But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one.''

Morse suspended the student, prompting a federal civil rights lawsuit.

Students in public schools don't have the same rights as adults, but neither do they leave their constitutional protections at the schoolhouse gate, as the court said in a landmark speech-rights ruling from Vietnam era.

The court has limited what students can do in subsequent cases, saying they may not be disruptive or lewd or interfere with a school's basic educational mission.

This is a breaking news update. Check back soon for further information. AP's earlier story is below.

WASHINGTON (AP) -- The Supreme Court tightened limits on student speech Monday, ruling against a high school student and his 14-foot-long ''Bong Hits 4 Jesus'' banner.

Schools may prohibit student expression that can be interpreted as advocating drug use, Chief Justice John Roberts wrote for the court.

Joseph Frederick unfurled his homemade sign on a winter morning in 2002, as the Olympic torch made its way through Juneau, Alaska, en route to the Winter Olympics in Salt Lake City.

Frederick said the banner was a nonsensical message that he first saw on a snowboard. He intended the banner to proclaim his right to say anything at all.

His principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating drug use.

''The message on Frederick's banner is cryptic,'' Roberts said. ''But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one.''

    Supreme Court Limits Students’ Speech Rights, NYT, 25.6.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Bong-Hits.html

Supreme Court Bars Suit on Faith Initiative

June 25, 2007
By THE ASSOCIATED PRESS
Filed at 10:45 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court ruled Monday that ordinary taxpayers cannot challenge a White House initiative that helps religious charities get a share of federal money.

The 5-4 decision blocks a lawsuit by a group of atheists and agnostics against eight Bush administration officials including the head of the White House Office of Faith-Based and Community Initiatives.

The taxpayers' group, the Freedom From Religion Foundation Inc., objected to government conferences in which administration officials encourage religious charities to apply for federal grants.

Taxpayers in the case ''set out a parade of horribles that they claim could occur'' unless the court stopped the Bush administration initiative, wrote Justice Samuel Alito. ''Of course, none of these things has happened.''

The justices' decision revolved around a 1968 Supreme Court ruling that enabled taxpayers to challenge government programs that promote religion.

The 1968 decision involved the Elementary and Secondary Education Act, which financed teaching and instructional materials in religious schools in low-income areas.

''This case falls outside'' the narrow exception allowing such cases to proceed, Alito wrote.

In dissent, Justice David Souter said that the court should have allowed the taxpayer challenge to proceed.

The majority ''closes the door on these taxpayers because the executive branch, and not the legislative branch, caused their injury,'' wrote Souter. ''I see no basis for this distinction.''

With the White House Office of Faith-Based and Community Initiatives, President Bush says he wants to level the playing field. Religious charities and secular charities should compete for government money on an equal footing, says the president.

White House spokeswoman Emily Lawrimore called the ruling ''a substantial victory for efforts by Americans to more effectively aid our neighbors in need of help.''

She said the faith-based and community initiative can remain focused on ''strengthening America's armies of compassion.''

    Supreme Court Bars Suit on Faith Initiative, NYT, 25.6.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Faith-Based.html?hp

Business Prevails in Environmental Case

June 25, 2007
By THE ASSOCIATED PRESS
Filed at 10:32 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court sided with developers and the Bush administration Monday in a dispute with environmentalists over protecting endangered species.

The court ruled 5-4 for home builders and the Environmental Protection Agency in a case that involved the intersection of two environmental laws, the Clean Water Act and the Endangered Species Act.

Justice Samuel Alito, writing for the conservative majority, said the endangered species law takes a back seat to the clean water law when it comes to the EPA handing authority to a state to issue water pollution permits. Developers often need such permits before they can begin building.

A federal appeals court had said that EPA did not do enough to ensure that endangered species would not be harmed if the state took over the permitting.

Environmental groups, backed by the 9th U.S. Circuit Court of Appeal, said the administration position would in essence gut a key provision of the endangered species law. The act prohibits federal agency action that will jeopardize a species and calls for consultation between federal agencies.

The cases are National Association of Home Builders v. Defenders of Wildlife, 06-340, EPA v. Defenders of Wildlife, 06-549.

    Business Prevails in Environmental Case, NYT, 25.6.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Endangered-Species.html

Justices Loosen Restrictions on Election Ads

June 25, 2007
The New York Times
By THE ASSOCIATED PRESS

WASHINGTON (AP) -- The Supreme Court loosened restrictions Monday on corporate- and union-funded television ads that air close to elections, weakening a key provision of a landmark campaign finance law.

The court, split 5-4, upheld an appeals court ruling that an anti-abortion group should have been allowed to air ads during the final two months before the 2004 elections.

The case involved advertisements that Wisconsin Right to Life was prevented from broadcasting. The ads asked voters to contact the state's two senators, Democrats Russ Feingold and Herb Kohl, and urge them not to filibuster President Bush's judicial nominees.

Feingold, a co-author of the campaign finance law, was up for re-election in 2004.

The provision in question was aimed at preventing the airing of issue ads that cast candidates in positive or negative lights while stopping short of explicitly calling for their election or defeat. Sponsors of such ads have contended they are exempt from certain limits on contributions in federal elections.

Chief Justice John Roberts, joined by his conservative allies, wrote a majority opinion upholding the appeals court ruling.

The majority itself was divided in how far justices were willing to go in allowing issue ads.

Three justices, Anthony Kennedy, Antonin Scalia and Clarence Thomas, would have overruled the court's 2003 decision upholding the constitutionality of the provision.

Roberts and Justice Samuel Alito said only that the Wisconsin group's ads are not the equivalent of explicit campaign ads and are not covered by the court's 2003 decision.

    Justices Loosen Restrictions on Election Ads, NYT, 25.6.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Campaign-Finance.html?hp

8 Cases Await Rulings by Supreme Court

June 24, 2007
By THE ASSOCIATED PRESS
Filed at 4:52 a.m. ET
The New York Times

WASHINGTON (AP) -- Nearly seven months have passed since the Supreme Court heard arguments about public school integration plans. A decision, it seems, is finally at hand. Whether school districts can use race as a factor in assigning students to schools is the biggest unresolved issue among the eight remaining cases. But as the court enters what is expected to be the final week of its term, several other important topics loom. They include disputes over limits on speech, separation of church and state and executing the mentally ill.

The court's final days are being watched perhaps even more closely than usual this year because this is the first full term for Chief Justice John Roberts and the current lineup of justices.

Decisions so far in cases on abortion, discrimination and the rights of defendants have put the court on a more conservative footing with the addition of President Bush's two appointees, Roberts and Justice Samuel Alito.

''It will tell us so much more about the Roberts court when we see decisions on hot-button issues like race and religion,'' said Thomas Goldstein, a Washington lawyer who argues before the court and follows it closely.

It is typical for justices to leave some of the hardest cases to the end, writing opinions that have been the subject of lengthy negotiations and that often are accompanied by multiple dissents and concurrences.

''The court may be the least dangerous branch, but it doesn't want to be the least interesting, said Douglas Kmiec, a Pepperdine University law professor and former Republican administration official.

''Holding the most compelling matters to the end is also a function of legal difficulty, and of course, it also bolsters and reaffirms the court's importance,'' he said.

The court last tackled the topic of race and education in 2003, upholding the consideration of race in admissions to the University of Michigan law school.

Since then, however, the author of that opinion, Justice Sandra Day O'Connor, has retired. Alito took her place.

When the court heard challenges to school assignment plans in Louisville, Ky., and Seattle in December, a majority of the justices appeared inclined to strike down one or both plans.

Roberts was among the justices critical of taking race into account. He commented that the legacy of the court's landmark Brown v. Board of Education ruling in 1954 outlawing state-sponsored segregated schools should be race-blind programs.

''The purpose of the Equal Protection Clause is to ensure that people are treated as individuals rather than based on the color of their skin,'' Roberts said in December.

Justice Ruth Bader Ginsburg, one of four liberal justices, put the matter differently when she addressed a conference of judges and lawyers recently in Bolton Landing, N.Y. She suggested that the purpose of the plans is to keep schools from looking as they did before the Brown ruling and subsequent decisions requiring desegregation.

In remarks aired by the C-SPAN cable network, Ginsburg said the justices ''will determine whether the Equal Protection Clause prohibits race-conscious efforts by school districts to prevent resegregation.''

The last argument of the term in April concerned the constitutionality of a federal ban on the airing of ads that mention a candidate's name in the weeks before an election.

Prior to the McCain-Feingold campaign finance law, those ads were seen by opponents as essentially campaign ads. But they escaped federal regulation by not explicitly calling for a candidate's defeat or election.

The court previously upheld the ban. Now, it is being asked to overturn its earlier ruling or at least permit the ads in some circumstances. That could lead to a bigger role for corporations and labor unions in the 2008 campaign.

Among the more colorful pending matters is the ''Bong Hits 4 Jesus'' case, testing limits on students' speech rights.

The case grew out of the suspension of an Alaska high school student who displayed the 14-foot-long banner at a school-sanctioned event to watch the Olympic torch make its way through Juneau en route to the 2002 Winter Games in Salt Lake City.

The student said he was asserting his right to speak out. The principal interpreted the banner as advocating drug use, which the student denied.

Another First Amendment case asks whether taxpayers can go into federal court to challenge spending by the White House Office of Faith-Based and Community Initiatives.

The decision will be the Roberts court's first on separation of church and state.

The justices also have yet to decide whether a Texas death row inmate is so mentally ill as to preclude his execution.

Scott Louis Panetti knows that he killed his in-laws in front of his estranged wife and young daughter, but he believes he is on death row because he preaches the word of God, his lawyers say.

The state argued that while Panetti is mentally ill, he clearly understands he was convicted and sentenced to death for murder.

    8 Cases Await Rulings by Supreme Court, NYT, 24.6.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Final-Days.html

Justices Support Guidelines for Sentencing

June 22, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, June 21 — Defendants may find it more difficult to challenge a sentence that is within the guidelines issued by the United States Sentencing Commission, under a ruling by the Supreme Court on Thursday.

The court ruled that sentences falling within the guidelines may be presumed “reasonable” by courts reviewing the sentences on appeal. The court’s ruling took a step toward removing the uncertainty that has hung over the federal criminal justice system since 2005, when it ruled that the guidelines could be constitutional only if they were regarded as “advisory.”

But the latest decision was hardly free of ambiguity. Although the 8-to-1 vote suggested broad agreement among the justices, there were actually serious differences, expressed in concurring opinions, over how this decision fits with the court’s recent insistence that juries and not judges make the crucial findings that determine a defendant’s sentence.

In operation, the guidelines call for judges to take account of facts about the defendant and the offense that were not necessarily presented to or found by the jury.

The majority opinion was written by Justice Stephen G. Breyer, a former member of the sentencing commission and, as a Senate aide before he became a judge, an original author of the guidelines system. Justice Breyer remains a guidelines enthusiast, and two years ago, in United States v. Booker, he managed the unlikely feat of keeping the guidelines alive despite the conclusion by a majority of his colleagues that they were unconstitutional.

Writing an unusual “remedy” portion of the Booker opinion, he persuaded a bare majority of the court that the guidelines could be saved if they were deemed no longer mandatory, but merely “advisory.” The lower courts have been wrestling since then with exactly what that means, and this latest decision, Rita v. United States, No. 06-5754, began the process of explaining.

Barry Boss, a criminal defense lawyer who is co-chairman of an American Bar Association committee on sentencing, said on Thursday that the most pressing question for the defense bar was “what vitality the guidelines still have.” The court’s answer, Mr. Boss said in an interview, is that “clearly, the guidelines are here to stay.”

Although defense lawyers had hoped the court would not endorse a presumption of reasonableness on the appeal of a sentence within the guidelines, the news from the court was not all bad from the defense perspective.

For one thing, Justice Breyer said the presumption was “not binding,” and could be overcome, a point emphasized in a concurring opinion by Justices John Paul Stevens and Ruth Bader Ginsburg.

Further, while the court said appellate courts could apply a presumption of reasonableness if they chose, it did not require them to do so. Several of the most important federal appeals courts, including the Ninth Circuit in California and the Second Circuit in New York, have chosen to apply a more searching level of appellate review when defendants appeal their sentences.

Another important part of the decision was its reminder to federal district judges that they remain free, under the Booker ruling, to impose sentences that depart from the guidelines as long as they explain the sentences and base their reasoning on the purposes of the federal sentencing law. “The presumption applies only on appellate review,” Justice Breyer said.

Douglas A. Berman, a professor at the Moritz College of Law at Ohio State University and an authority on sentencing, said Thursday that this bolstered the chances that sentences below the guidelines range, when properly explained by the district judge, would be upheld on appeal. Professor Berman said district judges’ use of sentencing discretion would determine the decision’s significance.

For its next term, the court has accepted a case, Gall v. United States, No. 06-7949, on appellate review of sentences that are outside the guidelines range.

Justice David H. Souter was the lone dissenter from the decision on Thursday. He said the presumption of reasonableness undermined the Sixth Amendment right to trial by jury that the court has said it was trying to protect.

Justices Antonin Scalia and Clarence Thomas concurred, with evident reluctance, in the outcome of the case but refused to sign Justice Breyer’s opinion, which they said “reintroduced the constitutional defect that Booker purported to eliminate.” They said the court had “broken its promise” to eliminate judicial fact-finding from sentencing.

The defendant in the case, Victor A. Rita, challenged the 33-month sentence he received for a perjury conviction in a federal investigation of the sale of machine guns. The sentence was the lowest in the range provided by the guidelines, and the United States Court of Appeals for the Fourth Circuit upheld it as reasonable.

    Justices Support Guidelines for Sentencing, NYT, 22.6.2007, http://www.nytimes.com/2007/06/22/us/22scotus.html

Court Ups Standard on Investor Suits

June 21, 2007
By THE ASSOCIATED PRESS
Filed at 11:12 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court on Thursday imposed a strict standard that investors must meet to keep alive their lawsuits alleging securities fraud.

In an 8-1 decision, the justices said that courts must weigh possible innocent explanations for defendants' conduct at the very start of a securities fraud case. Doing so can lead to early dismissal of investors' lawsuits.

The ruling came in a shareholders suit against high-tech company Tellabs Inc.

The firm misled investors by engaging in a scheme to inflate Tellabs' stock price from December 2000 to June 2001, according to the lawsuit. It said the company's CEO provided false assurances of robust demand for the company's products.

A lawsuit will survive only if the facts alleged in it are ''cogent and compelling'' in pointing to an intent to deceive, wrote Ruth Bader Ginsburg. Those factual allegations must be at least as compelling as ''any opposing inference'' suggesting innocence, she added.

The Supreme Court decision comes as the corporate world pushes regulators to roll back some safeguards put in place after the accounting scandals that brought down Enron Corp. and WorldCom Inc.

The business community says the Tellabs case is the kind of meritless claim that Congress intended to prohibit when it reformed securities law 12 years ago.

Under the 1995 reforms, a securities fraud complaint must allege facts giving rise to a ''strong inference'' that defendants acted with an intent to deceive investors.

The 7th U.S. Circuit Court of Appeals had ruled against Tellabs, saying the complaint should survive if a reasonable person could infer from the allegations that defendants' conduct was intentionally deceptive.

''That one-sided approach, we hold, was erroneous,'' Ginsburg said in court.

The justices sent the case back so that the lower courts can assess whether the lawsuit should survive.

In dissent, Justice John Paul Stevens suggested the court had adopted too high a standard.

''There are times when an inference can easily be deemed strong without any need to weigh competing inferences,'' wrote Stevens.

On Monday, the court dealt another setback to investors when it sided with Wall Street investment banks that allegedly colluded to drive up the price of 900 technology stocks in the late 1990s. Shareholders subsequently lost billions when the dot-com bubble burst.

Next fall, the court will consider a case that could make it impossible for Enron shareholders to recover money from Wall Street institutions that allegedly assisted the energy company in disguising its financial problems.

------

On the Net:

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

    Court Ups Standard on Investor Suits, NYT, 21.6.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Investor-Lawsuits.html

Court Backs Sports Recruiting Limits

June 21, 2007
By THE ASSOCIATED PRESS
Filed at 11:13 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court said Thursday that athletic associations can enforce limits on recruiting high school athletes without violating coaches' free speech rights.

The high court ruled in a longstanding dispute between a Tennessee athletic association and a football powerhouse, the private Brentwood Academy near Nashville.

The school challenged a rule of the Tennessee Secondary School Athletic Association, which governs high school sports in the state. The association bars schools from contacting prospective students about their sports programs.

In a unanimous ruling, the court said that ''hard-sell tactics directed at middle school students could lead to exploitation, distort competition between high school teams and foster an environment in which athletics are prized more highly than academics.''

Games have rules, Justice John Paul Stevens said for the court. ''It is only fair that Brentwood follow them,'' Stevens said.

Brentwood argued that the restriction violated its free-speech rights, even though it voluntarily joined the association.

The dispute arose from a letter that Brentwood's football coach sent to a dozen eighth-graders in 1997, inviting them to attend spring training at Brentwood. The students already had been accepted and signed enrollment contracts for the fall.

Brentwood coach Carlton Flatt, who stepped down as coach in December after winning 10 state championships in 34 years, told the boys that equipment would be distributed and ''getting involved as soon as possible would definitely be to your advantage.'' He signed the letter, ''Your Coach.''

Stevens compared the case to one in which the court upheld a state bar association's limits on solicitations by lawyers. ''The dangers of undue influence that exist when a lawyer chases an ambulance are also present when a high school coach contacts an eighth grader,'' Stevens said.

Brentwood, like the other 350 or so public and private schools in the association, remains free to send brochures, post billboards and otherwise advertise its sports programs, he said.

The case had previously been before the Supreme Court. In 2001, the court ruled 5-4 in favor of Brentwood, saying the athletic association acted in a quasi-governmental capacity and could be sued.

A federal appeals court later ruled in favor of the school, saying the letter amounts to protected speech under the First Amendment. That ruling would prevent all high school associations from enforcing recruiting rules, lawyers for the state athletic association said.

The NCAA, the National School Boards Association and the National Federation of State High School Associations backed the Tennessee athletic association, saying broad powers are needed to protect children by enforcing recruiting rules. The Bush administration also argued in support of the association, urging the high court to reverse the lower court decision.

Brentwood Academy had support from the National Women's Law Center, which worried about holding government accountable for gender discrimination. The Association of Christian Schools International and the National Association of Independent Schools also sided with Brentwood.

The case is Tennessee Secondary School Athletic Assn. v. Brentwood Academy, 06-427.

    Court Backs Sports Recruiting Limits, NYT, 21.6.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Athletics.html

Justices Tighten Rules on Shareholder Suits

June 21, 2007
The New York Times
By THE ASSOCIATED PRESS

WASHINGTON (AP) -- The Supreme Court on Thursday imposed a strict standard that investors must meet to keep alive their lawsuits alleging securities fraud.

In an 8-1 decision, the justices said that courts must weigh possible innocent explanations for defendants' conduct at the very start of a securities fraud case. Doing so can lead to early dismissal of investors' lawsuits.

The ruling came in a shareholders suit against high-tech company Tellabs.

The firm misled investors by engaging in a scheme to inflate Tellabs' stock price from December 2000 to June 2001, according to the lawsuit. It said the company's CEO provided false assurances of robust demand for the company's products.

A lawsuit will survive only if the facts alleged in it are "cogent and compelling" in pointing to an intent to deceive, wrote Ruth Bader Ginsburg. Those factual allegations must be at least as compelling as "any opposing inference" suggesting innocence, she added.

The Supreme Court decision comes as the corporate world pushes regulators to roll back some safeguards put in place after the accounting scandals that brought down Enron Corp. and WorldCom Inc.

The business community says the Tellabs case is the kind of meritless claim that Congress intended to prohibit when it reformed securities law 12 years ago.

Under the 1995 reforms, a securities fraud complaint must allege facts giving rise to a "strong inference" that defendants acted with an intent to deceive investors.

The 7th U.S. Circuit Court of Appeals had ruled against Tellabs, saying the complaint should survive if a reasonable person could infer from the allegations that defendants' conduct was intentionally deceptive.

"That one-sided approach, we hold, was erroneous," Ginsburg said in court.

The justices sent the case back so that the lower courts can assess whether the lawsuit should survive.

On Monday, the court dealt another setback to investors when it sided with Wall Street investment banks that allegedly colluded to drive up the price of 900 technology stocks in the late 1990s. Shareholders subsequently lost billions when the dot-com bubble burst.

Next fall, the court will consider a case that could make it impossible for Enron shareholders to recover money from Wall Street institutions that allegedly assisted the energy company in disguising its financial problems.

    Justices Tighten Rules on Shareholder Suits, NYT, 21.6.2007, http://www.nytimes.com/aponline/business/ap-scotus.html

Supreme Court Memo

Precedents Begin to Fall for Roberts Court

June 21, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, June 20 — No Supreme Court nominee could be confirmed these days without paying homage to the judicial doctrine of “stare decisis,” Latin for “to stand by things decided.” Yet experienced listeners have learned to take these professions of devotion to precedent “cum grano salis,” Latin for “with a grain of salt.”

Both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. assured their Senate questioners at their confirmation hearings that they, too, respected precedent. So why were they on the majority side of a 5-to-4 decision last week declaring that a 45-year-old doctrine excusing people whose “unique circumstances” prevented them from meeting court filing deadlines was now “illegitimate”?

It was the second time the Roberts court had overturned a precedent, and the first in a decision with a divided vote. It surely will not be the last.

The fact is that the court regularly revisits and reconsiders its precedents, as Chief Justice William H. Rehnquist, the current chief justice’s former boss and mentor, once observed succinctly. “Stare decisis is not an inexorable command,” he said in a 1991 opinion that included, in a page and a half of small type, a list of 33 precedents that the court had overturned in the previous 20 years.

So the question is not whether the Roberts court will overturn more precedents, but how often, by what standard and in what terms. As to which precedents will fall next, there are several plausible candidates as the court enters the final days of its term, including the 2003 decision that upheld advertising restrictions in the McCain-Feingold campaign finance law; a 1968 decision that let taxpayers go to federal court to challenge government policies as violating the separation of church and state; and an antitrust price-fixing case from 1911. (In an 8-to-0 decision last term, the court overturned a pair of antitrust precedents from the 1940s that were noticeably at odds with modern antitrust analysis.)

Sometimes the court overrules cases without actually saying so. Some argue that this is what happened in April, when a 5-to-4 majority upheld the federal Partial-Birth Abortion Ban Act without making much effort to reconcile that ruling with a decision in 2000 that found a nearly identical Nebraska law unconstitutional.

As a technical matter, the new decision, Gonzales v. Carhart, left the earlier ruling still on the books, doing its overruling “by stealth, without having the grace to admit that is what they were doing,” in the words of Ronald Dworkin, the legal philosopher, who wrote a highly critical appraisal of the new decision in The New York Review of Books last month. “Justices Roberts and Alito had both declared their intention to respect precedent in their confirmation hearings, and no doubt they were reluctant to admit so soon how little those declarations were worth,” Professor Dworkin said from London in an e-mail message.

Abortion, of course, is a special case. The debate over whether the court should or could overturn Roe v. Wade has been going on so long and with such intensity that it tends to pre-empt any discussion of the subtleties of stare decisis.

Senator Arlen Specter, the Pennsylvania Republican and abortion-rights supporter who at the time was chairman of the Senate Judiciary Committee, pressed Chief Justice Roberts at his confirmation hearing to agree with him that Roe v. Wade was not just a precedent, but a “super-duper precedent.”

Mr. Specter’s point was that because the court in 1992 had considered whether to overturn Roe but reaffirmed it instead, the 1973 precedent had acquired an inviolate status. His implication was that if Roe was just an ordinary precedent, it was as vulnerable as any other with which a new majority became disenchanted.

The nominee obviously knew exactly what Mr. Specter was driving at, but he gave away nothing. He acknowledged the historical accuracy of the senator’s chronology, but would not follow him to the land of “super-duper” precedents.

When the court explicitly overturns precedent, it tends to offer a checklist of justifications: the precedent has eroded over time through disuse or disregard (this was the majority’s stated reason for discarding the “unique circumstances” precedents in last week’s decision, Bowles v. Russell), or it has been a source of confusion in the law, or experience has proven it “unworkable.”

But the real reason is usually that a changing court in changing times has come to see the question in a new light. In Bowers v. Hardwick in 1986, the Supreme Court dismissed as “facetious” the notion that the Constitution offered protection for gay rights. Overturning that decision 17 years later, Justice Anthony M. Kennedy declared for the majority in Lawrence v. Texas: “Bowers was not correct when it was decided, and it is not correct today.”

Still, the court will strive to provide an explanation, if only to avoid the kind of accusation that Justice Thurgood Marshall leveled at the majority when, taking advantage of two retirements, the court reversed course and by a vote of 5 to 4 made “victim impact” testimony admissible in death penalty hearings.

“Power, not reason, is the new currency of this court’s decision making,” Justice Marshall declared on the final day of the court’s 1990 term. Two hours later, he announced his own retirement, his words still hanging in the air.

    Precedents Begin to Fall for Roberts Court, NYT, 21.6.2007, http://www.nytimes.com/2007/06/21/washington/21memo.html?hp

Justices Rule for Wall Street Banks

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

WASHINGTON (AP) -- The Supreme Court on Monday dealt a setback to investors suing over their losses in the crash of technology stocks seven years ago. In a 7-1 decision, the court sided with Wall Street banks that allegedly conspired to drive up prices on 900 newly issued stocks.

The justices reversed a federal appeals court decision that would have enabled investors to pursue their case for anticompetitive practices.

The case deals with alleged industry misconduct during the dot-com bubble of the late 1990s.

The outcome of the antitrust case was vital to Wall Street because damages in antitrust cases are tripled, in contrast to penalties under the securities laws.

The question was whether conduct that is the focus of extensive federal regulation under securities laws is immune from liability under federal antitrust laws.

An antitrust action raises ''a substantial risk of injury to the securities market,'' Justice Stephen Breyer wrote. He said there is ''a serious conflict'' between applying antitrust law to the case and proper enforcement of the securities law.

In dissent, Justice Clarence Thomas said the securities laws contain language that preserves the right to bring the kind of lawsuit investors filed against the Wall Street investment banks.

In 2005, the 2nd U.S. Circuit Court of Appeals said the conduct alleged in the case is a means of ''dangerous manipulation'' and that there is no indication Congress contemplated repealing the antitrust laws to protect it.

Investors allege that the investment banks, including Credit Suisse Securities (USA) LLC, agreed to impose illegal tie-ins, or ''laddering'' arrangements. Favored customers were able to obtain highly sought-after new stock issues in exchange for promises to make subsequent purchases at escalating prices. The investment banks allegedly conspired to levy additional charges for the stock.

As a result of the conspiracy, the investors say, the average price increase on the first day of trading was more than 70 percent in 1999-2000, 8 1/2 times the level from 1981 to 1996.

Private class-action lawsuits, say plaintiffs' attorneys, provide a significant supplement to the limited resources available to the Justice Department to enforce the antitrust laws.

Lawyers for Wall Street investment banks say it is a highly technical matter where the line is drawn between legal and illegal activity in the sale of newly issued stock. It must be left to highly trained securities regulators to decide, rather than to courtroom juries in antitrust lawsuits brought by investors, the industry says.

The Supreme Court concluded that ''antitrust courts are likely to make unusually serious mistakes'' that hurt defendants. As a result, investment banks must avoid ''a wide range of joint conduct that the securities law permits or encourages.''

In other action, the court also added one case to its calendar for next term. It will consider whether an investor in a large 401k retirement plan can sue to recover losses to his individual account that are the fault of the plan's manager.

Other Wall Street institutions in the case before the Supreme Court were Bear, Stearns & Co. Inc.; Citigroup Global Markets Inc.; Comerica Inc.; Deutsche Bank Securities Inc.; Fidelity Distributors Corp.; Fidelity Brokerage Services LLC; Fidelity Investments Institutional Services Co. Inc.; Goldman, Sachs & Co.; The Goldman Sachs Group Inc.; Janus Capital Management LLC; Lehman Brothers Inc.; Merrill Lynch, Pierce, Fenner & Smith Inc.; Morgan Stanley & Co. Inc.; Robertson Stephens Inc.; Van Wagoner Capital Management Inc.; and Van Wagoner Funds Inc.

The case is Credit Suisse v. Billing, 05-1157.

------

On the Net:

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

    Justices Rule for Wall Street Banks, NYT, 18.6.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Credit-Suisse.html?hp

Supreme Court Embraces Rights for Car Passengers

June 18, 2007
The New York Times
By DAVID STOUT

WASHINGTON, June 18 — A passenger as well as a driver has the right to challenge the legality of a police officer’s decision to stop a car, the Supreme Court ruled unanimously today.

The ruling came in the case of Bruce E. Brendlin, who was a passenger in a car that was stopped by a deputy sheriff in Yuba City, Calif., on Nov. 27, 2001. The deputy soon ascertained that Mr. Brendlin was an ex-convict who was wanted for violating his parole. An ensuing search of the driver, the car and Mr. Brendlin turned up methamphetamine supplies.

Eventually, Mr. Brendlin pleaded guilty to a drug charge and drew a four-year prison sentence. But he continued to appeal on the issue of whether the evidence of drugs found on him resulted from an illegal search and should have been suppressed because of the Fourth Amendment’s protection against unreasonable search and seizure.

The California Supreme Court found that, consitutionally speaking, only the driver had been “seized” by the stop, and that therefore Mr. Brendlin had no basis for challenging the search that turned up the drugs. The State of California made that argument again when the case was heard before the United States Supreme Court on April 23.

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

The justices agreed. “When police make a traffic stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and so may challenge the stop’s constitutionality,” Justice David H. Souter wrote for the high court.

Most federal and state courts have ruled that passengers in a traffic stop are also “seized,” legally speaking, and thus may challenge the legality of the stop. But the state courts in Washington and Colorado, as well as California, had held otherwise until today.

Although today’s ruling overturns the California Supreme Court’s ruling against Mr. Brendlin, it does not necessarily end his legal troubles. Justice Souter said that it will now be up to the state courts to determine whether the drug evidence should have been suppressed.

    Supreme Court Embraces Rights for Car Passengers, NYT, 18.6.2007, http://www.nytimes.com/2007/06/18/washington/18cnd-search.html?hp

Justices Side With NYC Over Diplomats

June 14, 2007
By THE ASSOCIATED PRESS
Filed at 11:28 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court on Thursday sided with New York City in its efforts to collect property taxes from the governments of India and Mongolia.

In a 7-2 decision, the justices said U.S. courts have jurisdiction to decide the dispute. New York City is seeking $16.4 million from India and $2.1 million from Mongolia for those nations' United Nations missions.

The city is trying to collect property taxes from nations that house their employees in the same buildings where they operate diplomatic offices.

The countries have tax exemptions for the diplomatic mission section of the properties, but the city says they must pay taxes for the space that houses employees.

The 2nd U.S. Circuit Court of Appeals had upheld a federal judge's ruling in support of the city. The judge refused to dismiss the lawsuit against the missions of India and Mongolia. They had sought dismissal on sovereign immunity grounds.

The law ''does not immunize a foreign sovereign'' in such circumstances, wrote Justice Clarence Thomas.

Under the Foreign Sovereign Immunities Act, the jurisdiction of U.S. courts generally does not extend to foreign governments. But there is an exception when ''rights in immovable property'' are at issue. The Supreme Court said the exception applies in the New York City case. The lawsuit seeks to establish the validity of tax liens on the buildings.

In dissent, Justice John Paul Stevens said the case ''is a dispute over a foreign sovereign's tax liability. If Congress had intended the statute to waive sovereign immunity in tax litigation, I think it would have said so.''

The Bush administration sided with the governments of India and Mongolia, reversing a position the federal government took two decades ago. The administration now says the U.S. government was in error when it supported a tax enforcement action by a New Jersey municipality against property used by Libya's United Nations ambassador.

The case is The Permanent Mission of India v. City of New York, 06-134.

    Justices Side With NYC Over Diplomats, NYT, 14.6.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Diplomats.html

Teacher Who Talked Peace Appeals Firing

June 14, 2007
By THE ASSOCIATED PRESS
Filed at 10:43 a.m. ET
The New York Times

BLOOMINGTON, Ind. (AP) -- An elementary school teacher who says she was fired for talking to her students about peace activism has appealed her dismissal to the U.S. Supreme Court.

Deb Mayer's attorney said he wants the high court to resolve lower-court disagreements about how much free-speech protection teachers have when they speak in class.

Mayer, who now teaches in Florida, said her contract was not renewed after she spoke for five minutes about peace in January 2003, shortly before the U.S. invasion of Iraq. The Monroe County Community School Corp. said Mayer was fired because of complaints about her teaching and disciplinary style.

Mayer sued in 2004. Last year, a federal judge in Indianapolis found that her in-class comments at Clear Creek Elementary were not protected by the First Amendment because she was representing the school. The 7th Circuit Court of Appeals agreed.

Her attorney, Michael L. Schultz, said the Supreme Court received the petition on Monday and likely won't consider it until fall.

Mayer said she made the comments during a classroom discussion of a youth-magazine article about a peace march in Washington.

She said she told the children that such demonstrations were happening around the country, and that she had honked her car horn when she passed demonstrators in their town.

    Teacher Who Talked Peace Appeals Firing, NYT, 14.6.2007, http://www.nytimes.com/aponline/us/AP-Teacher-Peace-Talk.html

Convicted Murder's Appeal Dismissed

June 14, 2007
By THE ASSOCIATED PRESS
Filed at 10:54 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court dismissed a convicted murderer's appeal Thursday because he filed it two days late, even though he met a separate deadline set by a judge.

The judge mistakenly told the prisoner, Keith Bowles, that he could file court papers by February 27, 2004. Under federal rules, however, the deadline was February 24. Bowles filed on February 26.

The high court typically adheres strictly to deadlines and this case was no exception.

The 5-4 decision, the 16th this term, fell along conservative-liberal lines and also provoked a strong dissent from Justice David Souter.

Writing the opinion for the court's majority in this case, Justice Clarence Thomas said the judge's error did not alter the 14-day time limit set in federal law and legal rules. He said Congress could relax the deadline if it wishes.

Bowles was convicted of murder in Ohio for his role in a group beating of an unarmed man, who later died. He was given 15 years to life in prison. Early in 2004, a federal judge gave Bowles additional time to tell the court he intended to appeal, mistakenly noting a 17-day deadline.

The 6th U.S. Circuit Court of Appeals said Bowles' appeal was untimely.

Souter said Bowles' case cries out for an exception to the rule.

''It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch,'' Souter said.

Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Antonin Scalia joined Thomas' opinion.

Justices Stephen Breyer, Ruth Bader Ginsburg and John Paul Stevens joined Souter in dissent.

The case is Bowles v. Russell, 06-5306.

    Convicted Murder's Appeal Dismissed, NYT, 14.6.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Missed-Deadline.html

Ruling Likely to Spur Convictions in Capital Cases

June 9, 2007
The New York Times
By ADAM LIPTAK

A decision by the Supreme Court on Monday that made it easier for prosecutors to exclude people who express reservations about the death penalty from capital juries will make the panels whiter and more conviction-prone, experts in law and psychology said this week.

The jurors who remain after people with moral objections to imposing the death penalty are weeded out, studies uniformly show, are significantly more likely to vote to find defendants guilty than jurors as a whole.

It has long been the law in every state with capital punishment that only people who are prepared to apply the death penalty may serve on capital juries. Monday’s decision, which involved a juror’s equivocation about the death penalty on learning that life without parole was an option, has the potential to make capital juries even less representative.

“It could give judges the authority to exclude about half the population from service in death penalty cases,” said Samuel R. Gross, a law professor at the University of Michigan. That is because support for the death penalty drops from more than 60 percent to about half when life in prison is the alternative.

Even before Monday’s decision, a significant minority of Americans were ineligible to serve as jurors in death penalty cases. According to a poll to be released today by the Death Penalty Information Center, a nonprofit group in Washington that is critical of the death penalty as currently applied, 39 percent of Americans say they have a moral objection to the death penalty that would disqualify them from serving in a capital case. The poll’s margin of sampling error was plus or minus three percentage points.

Most of the research in this area is conducted by people and groups opposed to the death penalty. But prosecutors do not dispute the finding that capital juries are more apt to convict, arguing instead about the magnitude of the effect.

In a series of recent cases, the Supreme Court has narrowed the availability of the death penalty, barring its use on the mentally retarded and juvenile offenders, and has overturned death sentences based on flawed jury instructions, racial bias in choosing jurors and defense lawyers’ incompetence.

Some death penalty opponents found it hard to reconcile those cases with Monday’s decision on the jury selection process that lawyers call death qualification.

“We may have a line of jurisprudence that is at war with itself,” said Eric M. Freedman, a law professor at Hofstra University. “You can’t simultaneously keep expanding the bounds of death qualification and also manifest a special concern for innocence in capital cases. As a brute matter of statistics, the farther you go in death qualification, the more wrongful convictions you will get.”

Prosecutors say that death qualification is a necessary and narrowly tailored requirement that prevents only people who are unable to follow the law from serving as jurors.

“We don’t have jury nullification in this country,” said Joshua Marquis, the district attorney in Clatsop County, Ore., and a vice president of the National District Attorneys Association. “If you have jurors who cannot look at the evidence fairly given their moral and philosophical beliefs, the state is not going to receive a fair trial.”

But Mr. Marquis conceded that the process of excluding opponents of the death penalty also conferred an advantage on prosecutors.

“I won’t deny,” he said, “that a death-qualified juror is probably more likely to be willing to look at a guilty verdict. I think that the difference is negligible.”

Robert Blecker, a professor at New York Law School who supports the death penalty, agreed that “death-qualified jurors are slightly more conviction prone” than people opposed to the death penalty in all circumstances, whom he referred to as abolitionists.

“It makes sense and is consistent with human nature that abolitionists as a class are more pro-defendant in general and less willing to convict,” Professor Blecker said. But the many safeguards in the system, he said, outweigh that slight distorting effect. “On balance, the system is, as it should be, skewed to prefer sentencing to life those who really deserve to die, rather than condemning those who deserve to live.”

Jurors eligible to serve in capital cases are “demographically unique,” said Brooke Butler, who teaches psychology at the University of South Florida. Professor Butler has interviewed more than 2,000 potential jurors over the past seven years and has written several articles on the topic.

“They tend to be white,” she said. “They tend to be male. They tend to be moderately well-educated — high school or maybe a little college. They tend to be politically conservative — Republican. They tend to be Christian — Catholic or Protestant. They tend to be middle socioeconomic status — maybe $30,000 or $40,000” in annual income.

In a study to be published in Behavioral Sciences and the Law, a peer-reviewed journal, Professor Butler made an additional finding. “Death-qualified jurors,” she said, “are more likely to be prejudiced — to be racist, sexist and homophobic.”

A 2001 study in The University of Pennsylvania Journal of Constitutional Law, drawing on interviews with 1,155 capital jurors from 340 trials in 14 states, found that race played an important role in the willingness of jurors to impose death sentences.

In cases involving black defendants and white victims, for instance, the presence of five or more white men on the jury made a 40 percentage point difference in the likelihood that a death sentence would be imposed. The presence of a single black male juror had an opposite effect, reducing the likelihood of a death sentence to 43 percent from 72 percent.

On its face, the legal standard that produces capital jurors is neutral. Prosecutors who wish to exclude jurors must demonstrate that their views on the death penalty would prevent or substantially impair their ability to follow the law. Disagreement with the death penalty as a policy matter or a reluctance to impose it is not sufficient.

“They only have to say they’re willing to consider it,” Mr. Marquis said. “I realize the recent decision fine-tuned that a bit.”

Monday’s decision, Uttecht v. Brown, reversed a decision of the federal appeals court in San Francisco and injected new flexibility into the standard for excluding jurors.

The appeals court decision, written by Judge Alex Kozinski, whose views are generally conservative, would have granted a new trial to a condemned inmate in Washington State, Cal C. Brown. Judge Kozinski wrote that one potential juror at Mr. Brown’s trial was excluded only because “he did not perhaps show the kind of bloodthirsty eagerness” to impose the death penalty “that the prosecutor may have preferred.”

Justice Anthony M. Kennedy, writing for the majority in the 5-to-4 decision on Monday, said the juror, Richard Deal, “stated six times that he could consider the death penalty or follow the law” but “these responses were interspersed with more equivocal statements.” Given that, Justice Kennedy said, the trial judge was in the best position to make the judgment about whether Mr. Deal should have been excluded.

In dissent, Justice John Paul Stevens wrote that the majority had “gotten it horribly backwards” by creating the impression that “trial courts should be encouraging the inclusion of jurors who will impose the death penalty rather than only ensuring the exclusion of those who say that, in all circumstances, they cannot.”

The decision, said David R. Dow, a law professor at the University of Houston, will have lasting consequences.

“It is a dagger through the heart of any death row inmate’s claim that he was sent to death by an unfairly selected jury,” Professor Dow said.

Opponents of the death penalty have occasionally made proposals to limit the effects of death qualification. “You could have two juries,” Professor Butler said, for instance, “one to hear guilt and one to hear sentencing.”

Prosecutors resist those ideas.

“The logistics of that are almost overwhelming,” Mr. Marquis said of Professor Butler’s proposal. “The only way to do it is to seat the two juries in the same courtroom.” Mr. Marquis said that would add needless complication and expense.

Monday’s decision revived a debate about whether the effects of death qualification are an incidental consequence of the necessary requirement that jurors agree to follow the law, or a distortion of the principle that juries reflect the overall moral sentiments of the community.

Justice William H. Rehnquist, writing for the majority in a 1986 case, said the Constitution does not bar the exclusion of groups of people based on their shared attitudes from either phase of a capital trial.

“ ‘Death qualification,’ ” Justice Rehnquist wrote, “unlike the wholesale exclusion of blacks, women or Mexican-Americans from jury service, is carefully designed to serve the state’s concededly legitimate interest in obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial.”

In dissent, Justice Thurgood Marshall objected. The exclusion of jurors opposed to the death penalty, he said, “allows the state a special advantage in those prosecutions where the charges are most serious and the possible punishments the most severe.”

    Ruling Likely to Spur Convictions in Capital Cases, NYT, 9.6.2007, http://www.nytimes.com/2007/06/09/us/09death.html?hp

4 Justices Often Side With the Condemned

June 6, 2007
By THE ASSOCIATED PRESS
Filed at 3:07 p.m. ET
The New York Times

WASHINGTON (AP) -- No one on the Supreme Court publicly opposes the death penalty, but four justices often side with death row inmates who are fighting to avoid execution.

Though they are a minority on the nine-justice court, Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens win as often as they lose.

Cases involving eight death row inmates have come before the court this term. Four prisoners have won and four have lost. The most recent case was a 5-4 decision Monday to reinstate the death penalty in a rape and murder near Seattle.

In that case and the seven others, Breyer, Ginsburg, Souter and Stevens sided with the prisoner. In four cases, Justice Anthony Kennedy provided a fifth vote and, thus, a majority. In one of those four -- which the court dismissed without deciding -- Chief Justice John Roberts joined as well, leaving in place an appeals court ruling that set aside a death sentence.

The court has been implacably split on this issue, as on others. Roberts typically has been aligned with Justices Samuel Alito, Antonin Scalia and Clarence Thomas, opting to defer to the state courts that imposed and upheld death sentences.

None of the liberals has gone so far as the late Justices Thurgood Marshall and William Brennan, who called capital punishment unconstitutional, or Harry Blackmun, who said late in his tenure he never again would vote for death.

Indeed, Breyer, Ginsburg, Souter and Stevens routinely deny death row appeals. That includes one on Monday from a prisoner in Kentucky who was represented by a lawyer who did not know the prisoner's real name.

But the four justices, when joined by Kennedy and, on occasion, now-retired Justice Sandra Day O'Connor, have been at the core of important rulings limiting the application of the death penalty.

''In the late '80s and early '90s, you were a rare defendant who won a death penalty case at the Supreme Court,'' said Richard Dieter, executive director of the anti-capital punishment Death Penalty Information Center. ''Now there's a fair chance that if you can get Justice Kennedy, you'll win.''

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said Breyer, Ginsburg, Souter and Stevens typically ''take an expansive view of the constitutional limitations and are more prone to accept borderline arguments.''

Two years ago, Kennedy wrote the 5-4 decision outlawing the execution of juveniles. In 2002, Stevens wrote a 6-3 opinion that barred execution of the mentally retarded. Kennedy and O'Connor joined their four liberal colleagues in that case.

Both decisions focused on a national consensus that the majority said had formed against those types of executions.

Justice Antonin Scalia disputed the existence of such a consensus in his dissents in both cases. He noted that fewer than half the states that allow executions prohibited them for either juveniles or the mentally retarded. ''Words have no meaning if the views of less than 50 percent of death penalty states can constitute a national consensus,'' Scalia said in 2005.

On the other hand, 30 states at the time of those opinions either had no death penalty or barred the execution of both juveniles and the mentally retarded.

The group of 30 states could have satisfied the justices that they were not getting too far ahead of public opinion in those decisions, Dieter said.

In 1972, the Supreme Court struck down every state's death penalty law. Some justices believed at the time that this decision effectively would end capital punishment.

Instead, many states wrote new laws and four years later, the court reinstated the death penalty, a decision in which Stevens joined.

There have been 1,078 executions in the past 30 years, although the 53 carried out last year marked a 10-year low. At the start of 2007, there were 3,350 prisoners on death row across the United States, according to the NAACP Legal Defense and Education Fund.

Polls continue to find that more than two-thirds of people in the U.S. favor the death penalty for murderers. Yet at the same time, a recent AP/Ipsos poll that asked what method of punishment people prefer for murderers found that 52 percent said death and 46 percent said life in prison or a long prison sentence.

Questions about the administration of lethal injections, doubts about the competence of some court-appointed defense lawyers and the rise in the number of exonerations through DNA evidence of people already convicted of crimes have contributed to a drop in confidence in the criminal justice system, said Robert Weisberg, a Stanford University law professor who has represented death row inmates.

Several cases that have made it to the high court have revolved around the issue of a defendant's lawyer.

''Even if this foursome is not inclined to say anything categorical about the constitutionality of the death penalty, they are very dismayed by the quality of representation in death cases,'' Weisberg said.

In a dissent from a decision last month denying Jeffrey Landrigan a new hearing to challenge his death sentence in Arizona, Stevens wrote, ''No one, not even this court, seriously contends that counsel's investigation of possible mitigating evidence was constitutionally sufficient.''

The justices also have sparred with state and federal judges in Texas over what courts must do to be fair to defendants facing death sentences. The court has overturned three sentences from Texas this term.

Since the death penalty was reinstated, Texas has executed 393 people, more than four times as many as the next state, Virginia.

The court's division over the death penalty is captured by the stark differences between the capital cases it takes from Texas and from the 9th U.S. Circuit Court of Appeals, which encompasses California and eight other states in the West.

Three times this term, a five-justice majority reversed rulings of the San Francisco-based appeals court, saying it went too far in favor of people sentenced to death.

    4 Justices Often Side With the Condemned, NYT, 6.6.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Death-Cases.html

Ginsburg Only Woman on High Court

June 4, 2007
By THE ASSOCIATED PRESS
Filed at 1:10 p.m. ET
The New York Times

WASHINGTON (AP) -- Ruth Bader Ginsburg has no need any longer for her ''I'm Ruth, Not Sandra'' T-shirt. She could, however, use Sandra Day O'Connor's vote.

O'Connor retired from the Supreme Court last year, replaced by a man. Her departure almost certainly cost Ginsburg's side a victory in an abortion case, decided 5-4 in April, and might have been a factor in a wage discrimination lawsuit the court last week decided, also by a 5-4 vote, against a woman and in favor of her employer.

Ginsburg and O'Connor, the only women among the 110 justices in U.S. history, were not always on the same side. O'Connor, who has her own ''I'm Sandra, Not Ruth'' shirt, dissented from Ginsburg's very first opinion on the court.

Yet they often were together on issues of particular concern to women, notably abortion rights.

Twice this term, Ginsburg has written sharp dissents that were made more notable because she took the unusual and dramatic step of reading them in court. The last time she read even one dissent from the bench in a term was three years ago.

Calling the court's decision to uphold a nationwide ban on an abortion procedure ''alarming,'' Ginsburg said it ''cannot be understood as anything other than an effort to chip away at a right declared again and again by this court -- and with increasing comprehension of its centrality to women's lives.''

The majority chose not to require doctors to explain different abortion procedures and their risks, she said. ''Instead, the court shields women by denying them any choice in the matter. This way of protecting women recalls ancient notions about women's place in society and under the Constitution -- ideas that have long since been discredited,'' Ginsburg said.

Last week, the court threw out a discrimination suit by Lilly Ledbetter, a longtime Goodyear supervisor who was paid thousands of dollars a year less than her male peers. ''In our view, this court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination,'' Ginsburg said.

The court met again Monday and Ginsburg read from her unanimous opinion denying attorney's fees to a woman who sued for the right to protest in the nude on a Florida beach. Her opinion cautioned that the court took no position on First Amendment protections for artworks that involve nudity.

The 74-year-old justice has said more than once that she is lonely without O'Connor on the court, even though the retired justice maintains an office next door to Ginsburg's. In January, asked to assess how O'Connor's retirement would affect the court, Ginsburg told USA Today, ''This term may be very revealing.''

Ginsburg declined to be interviewed for this story.

Her legal writings have mainly marked Ginsburg as a justice who avoids personal attacks on her colleagues and seeks common ground, said Laura Krugman Ray, a Widener University law professor who has written about Ginsburg's opinions.

''Her voice has been one that has always tried to draw people together,'' Ray said.

The more personal tone, particularly in the abortion dissent, suggests Ginsburg may not be as comfortable working with Chief Justice John Roberts and Justice Samuel Alito as she was with the late Chief Justice William Rehnquist and O'Connor, Ray said.

The court is going through a transition, in which conservative justices more often have the upper hand and the two new justices have joined seven others who have been together since 1994.

''You wonder with the turnover whether she feels a kind of movement backward and whether that may have energized her,'' Ray said.

Ginsburg is a former women's rights lawyer who argued discrimination cases before the Supreme Court in the 1970s.

''Both cases touched a raw nerve beyond disagreeing with the majority decision. Both cases reflected a paternalistic attitude toward women in the workplace and their role in society more generally,'' said American Civil Liberties Union legal director Steven Shapiro. ''That is an issue that has been at the core of her professional life for as long as she's been a lawyer.''

Leonard Leo, who helped marshal support for the Roberts and Alito nominations, said Ginsburg's opinions in the two cases would be helpful in rallying conservative support if President Bush gets another chance to pick a justice.

''The more vituperative and incendiary it becomes, the more ammunition it provides to the conservative base,'' said Leo, the executive vice presidential of the Federalist Society, a conservative legal group. Leo said he was offering his own opinions, not speaking for the society.

Ginsburg once said that having two women justices showed that the days of ''one-at-a-time curiosities'' were over for women at the Supreme Court.

That was six-and-a-half years ago.

More recently she said of O'Connor, ''I didn't realize how much I would miss her until she was gone.''

    Ginsburg Only Woman on High Court, NYT, 4.6.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Lonely-Justice.html

Jury Selection Made Easier in Death Penalty Cases

June 4, 2007
The New York Times
By DAVID STOUT

WASHINGTON, June 4 — The Supreme Court today reinstated the death sentence imposed on a Washington State rapist and murderer, and in so doing appeared to make it easier for prosecutors to select jurors who are predisposed toward capital punishment in future cases.

The 5-to-4 ruling was against Cal Coburn Brown, who robbed, raped and tortured a woman in 1991 before leaving her to die at a motel near the Seattle-Tacoma airport, and then robbed, raped and tortured another woman in Palm Springs, Calif., two days later. The California woman survived.

The court majority held that, contrary to a ruling by the United States Court of Appeals for the Ninth Circuit, the trial judge was justified in excusing a juror who seemed deeply confused about his own role and how the state’s death penalty law was to be applied.

Appellate courts “owe deference to the trial court, which is in a superior position to determine a potential juror’s demeanor and qualifications,” Justice Anthony M. Kennedy wrote for the majority. Nor does this position contradict the principle that a defendant has the right to an impartial jury “that has not been tilted in favor of capital punishment,” he wrote. Joining Justice Kennedy were Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

In concluding that the Ninth Circuit erred, the majority ruled that the Washington State Supreme Court was correct in finding that the juror, known only as “Juror Z,” was “substantially impaired” in his ability to carry out his duties.

Justice John Paul Stevens read a dissent from the bench — an unmistakable signal of his strong feelings about the issue — in which he asserted that the majority had chosen “to defer blindly to a state court’s erroneous characterization” of what the juror actually said.

Justice Stevens said the juror in question had made it clear that “he was in no way categorically opposed” to capital punishment, and that in any event his confusion seemed to have abated by the time he was thrown off the panel.

“Today, the court has fundamentally redefined — or maybe just misunderstood — the meaning of ‘substantially impaired,’ and, in doing so, has gotten it horribly backwards,” Justice Stevens said.

By “horribly backwards,” Justice Stevens said he meant the majority’s apparent impression “that trial courts should be encouraging the inclusion of jurors who will impose the death penalty rather than only ensuring the exclusion of those who say that, in all circumstances, they cannot.” Justice Stevens was joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

The defendant killed Holly Washa, 21, after abducting her in her car and driving her to the motel. He turned himself in after raping and trying to kill the California woman. He was sentenced to life in prison for the crimes he committed in California, but a jury in King County, Wash., sentenced him in death in 1993 for the crimes he committed there.

    Jury Selection Made Easier in Death Penalty Cases, NYT, 4.6.2007, http://www.nytimes.com/2007/06/04/washington/04cnd-scotus.html?hp

Supreme Court Memo

Oral Dissents Give Ginsburg a New Voice on Court

May 31, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, May 30 — Whatever else may be said about the Supreme Court’s current term, which ends in about a month, it will be remembered as the time when Justice Ruth Bader Ginsburg found her voice, and used it.

Both in the abortion case the court decided last month and the discrimination ruling it issued on Tuesday, Justice Ginsburg read forceful dissents from the bench. In each case, she spoke not only for herself but also for three other dissenting colleagues, Justices John Paul Stevens, David H. Souter and Stephen G. Breyer.

But the words were clearly her own, and they were both passionate and pointed. In the abortion case, in which the court upheld the federal Partial-Birth Abortion Ban Act seven years after having struck down a similar state law, she noted that the court was now “differently composed than it was when we last considered a restrictive abortion regulation.” In the latest case, she summoned Congress to overturn what she called the majority’s “parsimonious reading” of the federal law against discrimination in the workplace.

To read a dissent aloud is an act of theater that justices use to convey their view that the majority is not only mistaken, but profoundly wrong. It happens just a handful of times a year. Justice Antonin Scalia has used the technique to powerful effect, as has Justice Stevens, in a decidedly more low-key manner.

The oral dissent has not been, until now, Justice Ginsburg’s style. She has gone years without delivering one, and never before in her 15 years on the court has she delivered two in one term. In her past dissents, both oral and written, she has been reluctant to breach the court’s collegial norms. “What she is saying is that this is not law, it’s politics,” Pamela S. Karlan, a Stanford law professor, said of Justice Ginsburg’s comment linking the outcome in the abortion case to the fact of the court’s changed membership. “She is accusing the other side of making political claims, not legal claims.”

The justice’s acquaintances have watched with great interest what some depict as a late-career transformation. “Her style has always been very ameliorative, very conscious of etiquette,” said Cynthia Fuchs Epstein, the sociologist and a longtime friend. “She has always been regarded as sort of a white-glove person, and she’s achieved a lot that way. Now she is seeing that basic issues she’s fought so hard for are in jeopardy, and she is less bound by what have been the conventions of the court.”

Some might say her dissents are an expression of sour grapes over being in the minority more often than not. But there may be strategic judgment, as well as frustration, behind Justice Ginsburg’s new style. She may have concluded that quiet collegiality has proved futile and that her new colleagues, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., are not open to persuasion on the issues that matter most to her.

Justice Alito, of course, took the place of Justice Sandra Day O’Connor, with whom Justice Ginsburg formed a deep emotional bond, although they differed on a variety of issues. And Chief Justice Roberts succeeded Chief Justice William H. Rehnquist, with whom Justice Ginsburg often disagreed but maintained a relationship that was at times surprisingly productive.

For example, in 1996, over Justice Scalia’s vigorous dissent, the chief justice gave Justice Ginsburg his vote in a decision holding that the Virginia Military Institute’s men-only admissions policy was unconstitutional. In 2003, they made common cause in a case that strengthened the Family and Medical Leave Act. When Justice Ginsburg criticized a Rehnquist opinion, she did so gently; today’s adversary could be tomorrow’s ally.

If there has been any such meeting of the minds between Justice Ginsburg and her new colleagues, it has not been evident. She may have concluded that her side’s interests are better served by appealing not to the court’s majority but to the public. “She’s sounding an alarm and wants people to take notice,” said Debra L. Ness, president of the National Partnership for Women and Families, an advocacy group that focuses on the workplace.

Goodwin Liu, a law professor at the University of California, Berkeley, was one of Justice Ginsburg’s law clerks when the court decided the 2000 election case, the bitterly divided Bush v. Gore decision, from which she dissented. Even during that freighted period, Professor Liu said, “I was struck by how much of an institutional citizen she was, how attuned to the wishes of her colleagues and to not giving offense.”

Professor Liu said that when he read the dissent on Tuesday, it occurred to him that in recounting the workplace travails of the plaintiff, Lilly M. Ledbetter, Justice Ginsburg was also telling a version of her own story. “Here she is, the one woman of a nine-member body, describing the get-along imperative and the desire not to make waves felt by the one woman among 16 men,” Professor Liu said. “It’s as if after 15 years on the court, she’s finally voicing some complaints of her own.”

Another of the justice’s friends, Prof. Judith Resnik of Yale Law School, noted that throughout her legal career, Justice Ginsburg has been deeply concerned about questions of access to the courts and the remedial powers of federal judges, themes she has explored in both majority and dissenting opinions. “Those of us reading not just the grand-slam cases but the quieter ones have heard her voice,” Professor Resnik said. She added, “Now that the stakes are going up, more people will be listening.”

    Oral Dissents Give Ginsburg a New Voice on Court, NYT, 31.5.2007, http://www.nytimes.com/2007/05/31/washington/31scotus.html?hp

Editorial

Injustice 5, Justice 4

May 31, 2007
The New York Times

The Supreme Court struck a blow for discrimination this week by stripping a key civil rights law of much of its potency. The majority opinion, by Justice Samuel Alito, forced an unreasonable reading on the law, and tossed aside longstanding precedents to rule in favor of an Alabama employer that had underpaid a female employee for years. The ruling is the latest indication that a court that once proudly stood up for the disadvantaged is increasingly protective of the powerful.

Lilly Ledbetter, a supervisor at the Goodyear Tire & Rubber Company in Gadsden, Ala., sued her employer for paying her less than its male supervisors. At first, her salary was in line with the men’s, but she got smaller raises, which created a significant pay gap. Late in her career, Ms. Ledbetter filed a complaint with the Equal Employment Opportunity Commission. A jury found that Goodyear violated her rights under Title VII of the Civil Rights Act of 1964.

Goodyear argued that she filed her complaint too late and, by a 5-4 margin, the Supreme Court agreed. Title VII requires employees to file within 180 days of “the alleged unlawful employment practice.” The court calculated the deadline from the day Ms. Ledbetter received her last discriminatory raise. Bizarrely, the majority insisted it did not matter that Goodyear was still paying her far less than her male counterparts when she filed her complaint.

In dissent, Justice Ruth Bader Ginsburg noted that there were strong precedents supporting Ms. Ledbetter. The Supreme Court ruled in a similar race discrimination case that each paycheck calculated on the basis of past discrimination is unlawful under Title VII. The courts of appeals have overwhelmingly agreed. So did the E.E.O.C., the agency charged with enforcing Title VII.

In addition to interpreting the statute unreasonably and ignoring the relevant precedents, the majority blinded itself to the realities of the workplace. Employees generally do not know enough about what their co-workers earn, or how pay decisions are made, to file a complaint precisely when discrimination occurs. At Goodyear, as at many companies, salaries were confidential. The court’s new rules will make it extraordinarily difficult for victims of pay discrimination to sue under Title VII. That is not how Congress intended the law to be enforced, merely how five justices would like it to be.

It is disturbing that Anthony Kennedy, the court’s swing justice, cast the deciding vote in favor of gutting a key part of the Civil Rights Act. Fortunately, Congress can amend the law to undo this damaging decision. It should do so without delay.

    Injustice 5, Justice 4, NYT, 31.5.2007, http://www.nytimes.com/2007/05/31/opinion/31thu1.html

Experts Say Decision on Pay Reorders Legal Landscape

May 30, 2007
The New York Times
By STEVEN GREENHOUSE

Yesterday’s Supreme Court ruling limiting the ability of workers to sue companies for pay discrimination will reorder the legal landscape for employees and employers, workplace experts said.

While the ruling involved charges of sex discrimination, these experts said it would have broad ramifications in cases involving discrimination because of race or national origin, narrowing the legal options of many employees.

In yesterday’s 5-to-4 decision, the Supreme Court ruled that workers generally lose their right to sue for pay discrimination unless they file charges within 180 days of a specific event, like a boss giving a worker a smaller raise because of her sex. Establishing a pattern of discrimination over several years will no longer be possible.

Some legal experts said the ruling would put pressure on workers to file discrimination claims within 180 days even when they are still seeking more conclusive evidence that they were discriminated against.

“Unless they notice it on the first paycheck or a recent paycheck, they’re going to be in trouble,” said James Brudney, a professor of labor and employment law at Ohio State University.

Before yesterday’s ruling, many courts allowed workers to sue for pay discrimination years after a supervisor made a discriminatory decision because the courts considered each new paycheck a new discriminatory act.

“The ruling is clearly a very important setback in the ability to eliminate discriminatory pay,” said Marcia Greenberger, a co-president of the National Women’s Law Center. “It puts people in a terrible bind.

“On one hand,” Ms. Greenberger continued, “it requires individuals to file a complaint within 180 days of being concerned that their pay may be discriminatory in nature. But having to file that quickly could be counterproductive because people might still be trying to make sure that there really is discrimination and because they still might be trying to work things out in a conciliatory way.”

Business groups applauded the decision. “Today’s ruling is a victory for employers because it limits how far back in time an employee may go when making a discrimination claim involving pay,” said Robin Conrad, executive vice president of the National Chamber Litigation Center, an arm of the United States Chamber of Commerce. “We commend the court for issuing a fair decision that eliminates a potential windfall against employers by employees trying to dredge up stale pay claims.”

Several lawyers who defend companies said the ruling could make workers more trigger-happy about suing.

“What it means for plaintiffs’ lawyers is their clients, if they suspect or believe that there may be a pay disparity, really need to file the charge right away in the first instance,” said Connie Bertram, a lawyer based in Washington.

The Equal Employment Opportunity Commission said that 4,905 pay discrimination claims were filed in the 2006 fiscal year under various statutes, including 2,308 based on sex, 2,038 based on race and 577 based on national origin.

Theodore M. Shaw, president of the NAACP Legal Defense and Educational Fund Inc., said yesterday’s ruling should prompt employees to “rush into court” if they suspect they might be the victim of discrimination.

“Essentially what it says is, if you don’t catch an employer red-handed at the moment of discrimination, if there’s a cumulative discriminatory impact, that discrimination is beyond the reach of the law,” Mr. Shaw said. “That seems to me to be wrong as a matter of policy and wrong as a matter of legislative intent.”

Lilly Ledbetter, the plaintiff in the Supreme Court case, said in a telephone interview that it would have been hard for her to bring charges of pay discrimination within 180 days of her supervisors’ discriminatory acts because, she said, she did not learn of them until long afterward.

Ms. Ledbetter, who worked from 1979 to 1998 for a Goodyear tire plant in Alabama, said she first faced discrimination in the early 1980s. “My department manager, when he would evaluate me, he would tell me things like, ‘If you meet me at the Ramada Inn, you can be No. 1, and if you don’t, you’re on the bottom,’ ” she said.

Ms. Ledbetter said she filed sex discrimination charges with the E.E.O.C. in the early 1980s after that manager demoted from her job as a supervisor.

Later, she heard other supervisors chatting about all the money they earned, causing her to suspect that the bosses might be discriminating against her on pay. But she said she was not sure.

Ms. Ledbetter did not sue until 1998. “I never wanted to do it,” she said. “I didn’t do it until there was just no other way.” She said she had spent years trying to work out the discrimination problems with her bosses because she wanted to be a team player. But she said the bosses ultimately forced her out, giving her an unusually arduous job.

“I’m very disappointed about the ruling,” she said. “I’m disappointed for all the females who are out there working today.”

    Experts Say Decision on Pay Reorders Legal Landscape, NYT, 30.5.2007, http://www.nytimes.com/2007/05/30/us/30pay.html

Justices’ Ruling Limits Suits on Pay Disparity

May 30, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, May 29 — The Supreme Court on Tuesday made it harder for many workers to sue their employers for discrimination in pay, insisting in a 5-to-4 decision on a tight time frame to file such cases. The dissenters said the ruling ignored workplace realities.

The decision came in a case involving a supervisor at a Goodyear Tire plant in Gadsden, Ala., the only woman among 16 men at the same management level, who was paid less than any of her colleagues, including those with less seniority. She learned that fact late in a career of nearly 20 years — too late, according to the Supreme Court’s majority.

The court held on Tuesday that employees may not bring suit under the principal federal anti-discrimination law unless they have filed a formal complaint with a federal agency within 180 days after their pay was set. The timeline applies, according to the decision, even if the effects of the initial discriminatory act were not immediately apparent to the worker and even if they continue to the present day.

From 2001 to 2006, workers brought nearly 40,000 pay discrimination cases. Many such cases are likely to be barred by the court’s interpretation of the requirement in Title VII of the Civil Rights Act of 1964 that employees make their charge within 180 days “after the alleged unlawful employment practice occurred.”

Workplace experts said the ruling would have broad ramifications and would narrow the legal options of many employees.

In an opinion by Justice Samuel A. Alito Jr., the majority rejected the view of the federal agency, the Equal Employment Opportunity Commission, that each paycheck that reflects the initial discrimination is itself a discriminatory act that resets the clock on the 180-day period, under a rule known as “paycheck accrual.”

“Current effects alone cannot breathe life into prior, uncharged discrimination,” Justice Alito said in an opinion joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Justice Thomas once headed the employment commission, the chief enforcer of workers’ rights under the statute at issue in this case, usually referred to simply as Title VII.

Under its longstanding interpretation of the statute, the commission actively supported the plaintiff, Lilly M. Ledbetter, in the lower courts. But after the Supreme Court agreed to hear the case last June, the Bush administration disavowed the agency’s position and filed a brief on the side of the employer.

In a vigorous dissenting opinion that she read from the bench, Justice Ruth Bader Ginsburg said the majority opinion “overlooks common characteristics of pay discrimination.” She said that given the secrecy in most workplaces about salaries, many employees would have no idea within 180 days that they had received a lower raise than others.

An initial disparity, even if known to the employee, might be small, Justice Ginsburg said, leading an employee, particularly a woman or a member of a minority group “trying to succeed in a nontraditional environment” to avoid “making waves.” Justice Ginsburg noted that even a small differential “will expand exponentially over an employee’s working life if raises are set as a percentage of prior pay.”

Justices John Paul Stevens, David H. Souter and Stephen G. Breyer joined the dissent.

Ms. Ledbetter’s salary was initially the same as that of her male colleagues. But over time, as she received smaller raises, a substantial disparity grew. By the time she brought suit in 1998, her salary fell short by as much as 40 percent; she was making $3,727 a month, while the lowest-paid man was making $4,286.

A jury in Federal District Court in Birmingham, Ala., awarded her more than $3 million in back pay and compensatory and punitive damages, which the trial judge reduced to $360,000. But the United States Court of Appeals for the 11th Circuit, in Atlanta, erased the verdict entirely, ruling that because Ms. Ledbetter could not show that she was the victim of intentional discrimination during the 180 days before she filed her complaint, she had not suffered an “unlawful employment practice” to which Title VII applied.

Several other federal appeals courts had accepted the employment commission’s more relaxed view of the 180-day requirement. The justices accepted Ms. Ledbetter’s appeal, Ledbetter v. Goodyear Tire and Rubber Company, No. 05-1074, to resolve the conflict.

Title VII’s prohibition of workplace discrimination applies not just to pay but also to specific actions like refusal to hire or promote, denial of a desired transfer and dismissal. Justice Ginsburg argued in her dissenting opinion that while these “singular discrete acts” are readily apparent to an employee who can then make a timely complaint, pay discrimination often presents a more ambiguous picture. She said the court should treat a pay claim as it treated a claim for a “hostile work environment” in a 2002 decision, permitting a charge to be filed “based on the cumulative effect of individual acts.”

In response, Justice Alito dismissed this as a “policy argument” with “no support in the statute.”

As with an abortion ruling last month, this decision showed the impact of Justice Alito’s presence on the court. Justice Sandra Day O’Connor, whom he succeeded, would almost certainly have voted the other way, bringing the opposite outcome.

The impact of the decision on women may be somewhat limited by the availability of another federal law against sex discrimination in the workplace, the Equal Pay Act, which does not contain the 180-day requirement. Ms. Ledbetter initially included an Equal Pay Act complaint, but did not pursue it. That law has additional procedural hurdles and a low damage cap that excludes punitive damages. It does not cover discrimination on the basis of race or Title VII’s other protected categories.

In her opinion, Justice Ginsburg invited Congress to overturn the decision, as it did 15 years ago with a series of Supreme Court rulings on civil rights. “Once again, the ball is in Congress’s court,” she said. Within hours, Senator Hillary Rodham Clinton of New York, who is seeking the Democratic nomination, announced her intention to submit such a bill.

    Justices’ Ruling Limits Suits on Pay Disparity, NYT, 30.5.2007, http://www.nytimes.com/2007/05/30/washington/30scotus.html?hp

Justices Limit Discrimination Suits

May 29, 2007
By THE ASSOCIATED PRESS
Filed at 11:02 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court on Tuesday limited workers' ability to sue employers for pay discrimination that results from decisions made years earlier.

The court, in a 5-4 ruling, said that employers would otherwise find it difficult to defend against claims ''arising from employment decisions that are long past.''

The case concerned how to apply a 180-day deadline for complaining about discriminatory pay decisions under Title VII of the federal Civil Rights Act of 1964.

Lilly Ledbetter sued Goodyear Tire & Rubber Co., claiming that after 19 years at the company's Gadsden, Ala., plant, she was making $6,000 a year less than the lowest-paid man doing the same work.

Ledbetter claimed the disparity existed for years and was primarily a result of her gender. A jury agreed, but an appeals court overturned the verdict because she had waited too long to begin her lawsuit.

The deadline set in the law means nothing if employees can reach back years to claim discrimination, the company argued to the court.

Justice Samuel Alito, writing for the court, agreed that Ledbetter's claim was untimely.

''This short deadline reflects Congress's strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation,'' Alito said.

The decision broke along ideological lines, with the court's four liberal justices dissenting.

Justice Ruth Bader Ginsburg said Congress could should correct the court's ''parsimonious reading of Title VII.''

''In our view, this court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination,'' Ginsburg said, reading her dissent from the bench.

Justice Clarence Thomas, who once led the federal Equal Employment Opportunity Commission, sided with Goodyear.

Five years ago, Thomas joined his liberal colleagues in a 5-4 decision that made it easier for victims to complain about long-term job discrimination or harassment when shabby treatment was extended over a period of months or years.

In this case, Ledbetter argued that each paycheck that was smaller than those received by similarly situated men amounted to a new discriminatory act. She didn't sue earlier, Ledbetter said, because employees are less willing to rock the boat when they are new on the job and have no reason to believe there could be such pay disparity.

The EEOC, which is responsible for investigating workplace discrimination claims, said Ledbetter's claims could go forward.

After a trial, she was initially awarded more than $3.8 million. A judge reduced the award to $360,000.

The 11th U.S. Circuit Court of Appeals overturned the verdict. The appeals court said Ledbetter mainly was complaining about decisions made by her supervisors long ago, well after the deadline for raising allegations of discrimination.

The NAACP, AARP and other civil rights groups sided with Ledbetter, saying employers would not suffer any consequences for recurring discrimination if they could rebuff allegations merely by arguing that the deadline for complaining about the first episode passed.

Goodyear denied discriminating against Ledbetter. She received periodic raises despite being ranked near the bottom of her group of workers, the company said.

The U.S. Chamber of Commerce and the National Federation of Independent Business said that if the court had ruled for the worker in this case, employers would be subject to damages for innocent decisions made years ago that would be difficult to defend because of the passage of time.

The case is Ledbetter v. Goodyear Tire & Rubber Co., 05-1074.

    Justices Limit Discrimination Suits, NYT, 29.5.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Pay-Discrimination.html

Supreme Court Memo

A Devil in the Details, but Not the Constitution

May 28, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, May 27 — When people think, if they ever do, about a Supreme Court justice’s daily routine, many undoubtedly envision a life spent contemplating the great issues: due process, equal protection and other resonant constitutional concepts.

What they probably do not imagine is time spent puzzling over whether the phrase “within 75 miles” in a 1993 federal statute means miles as the crow flies — in a straight line that disregards hill and dale — or miles as a car must actually navigate on the ground: around curves, doubling back to avoid geographic barriers, traveling real roads that rarely mark the shortest distance between two points.

The difference between the two possible definitions of “within 75 miles” usually does not matter much. But when it matters, it matters a lot, as it does to a former insurance executive from Oklahoma, Kelly Hackworth.

If the distance between two of her former employer’s offices is measured by “radius miles,” a straight line on the map, Ms. Hackworth was entitled to the protections of the Family and Medical Leave Act when she lost her job after taking time off to take care of her hospitalized mother. The law applies to companies that employ at least 50 people within 75 miles of the complaining employee’s workplace. If the distance between Ms. Hackworth’s office in Norman, Okla., and a satellite office in Lawton is measured by driving the route along existing roads, she is out of luck by six-tenths of a mile, which is what the federal appeals court in Denver ruled a few months ago.

Her appeal, now awaiting word on whether the justices will accept it for decision, would not appear to be the stuff of a Supreme Court case. But in fact, it is quite typical, more so than people realize. It therefore offers a window on the court’s ordinary life as the 2006-2007 term enters its final, and atypically frantic, month.

More than half the cases the court agrees to hear are not constitutional, but statutory, presenting questions much like the one posed by Hackworth v. Progressive Casualty Insurance Company, No. 06-1300. To whom does a statute apply? Precisely what behavior does it prohibit? How does it fit with another law on the books that seems to suggest something quite different?

The immigration bill now being fitfully knit together in Congress is a reminder that any major piece of legislation is a result of dozens of big and small compromises. Compromises often leave gaps, and as often as not, the gap itself is part of the compromise.

Many compromises went into the Family and Medical Leave Act, the product of years of Congressional consideration and debate. By the time the final bill passed, there was such a generous exemption for small business that the law covers only about 5 percent of all companies, employing about 40 percent of the work force. Companies with fewer than 50 employees are exempt altogether.

The requirement for 50 employees “within 75 miles” was intended to ensure that an employer would not be too inconvenienced by the need to reassign a worker to cover the duties of one who was out on family or medical leave.

During debates on the bill, as reflected in The Congressional Record, there were several references to a “75-mile radius,” suggesting a straight line. But the word “radius” does not appear in the final text of the statute. Ms. Hackworth’s lawyers argue that Congress should be understood as having had radius in mind nonetheless.

But the United States Court of Appeals for the 10th Circuit refused to make that leap. Congress simply “did not define a method of measuring,” the appeals court said, and “therefore left an implicit statutory gap” that the Department of Labor was authorized to fill by regulation. The department adopted a regulation in 1995 providing that the distance should be measured as “surface miles using surface transportation.” That definition was entitled to deference, the 10th Circuit concluded.

The 73 cases the court selected for argument during the current term included 41 statutory cases, 27 that raised chiefly constitutional issues and 5 other kinds that raised issues of retroactivity and jurisdiction. (These calculations are subject to interpretation; at the margins, the categories can easily overlap, as when the court is asked to interpret a statute in such a way as to avoid a potential constitutional problem.)

Statutory cases are not necessarily less challenging for the justices or less important to the country than constitutional cases; whether the Clean Air Act applies to global warming, to recall one statutory case from the current term, is a question with more impact than whether a certain type of appeal in patent cases meets the jurisdictional requirements of Article III of the Constitution, to recall another case, this time a constitutional one.

The court will probably not accept Ms. Hackworth’s case, a safe prediction when the justices accept only about 1 percent of the appeals that reach them. But on any inventory of recent statutory cases, it does not rank noticeably lower than many, including one the court decided in its last term on whether the “negligent transmission” of mail by the Postal Service includes the careless deposit of a package where someone might predictably trip over it. (It does not.)

But the mail delivery case, in which the court ruled that the Postal Service, statutorily immune from suit for “negligent transmission,” could be sued for careless delivery, had a feature that Ms. Hackworth’s case lacks. The lower courts had disagreed on whether “negligent transmission” included careless delivery, and the Supreme Court felt obliged to step in.

But no such lower-court conflict has developed over how to measure the 75 miles, although the regulation has been on the books for 12 years. Fascinating as the justices may find the issue, they are likely to take a pass.

    A Devil in the Details, but Not the Constitution, NYT, 28.5.2007, http://www.nytimes.com/2007/05/28/us/28scotus.html

Court Rules in Favor of Telecom Firms

May 21, 2007
By THE ASSOCIATED PRESS
Filed at 3:30 p.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court on Monday sided with the nation's largest local phone companies in a lawsuit by consumers alleging anticompetitive business practices.

The court ruled 7-2 that the suit lacked any specifics in accusing the companies of secretly agreeing not to compete in each other's territories for local telephone and high-speed Internet service.

It is not enough to make a bare assertion of conspiracy, Justice David Souter wrote in the majority opinion.

Souter said the complaint alleging restraint of trade ''comes up short.'' He said the consumers who filed the suit ''have not nudged their claims across the line from conceivable to plausible.''

In dissent, Justice John Paul Stevens objected to the lower court's dismissal of the case without requiring a response from the phone companies. Federal rules, previous rulings and ''sound practice mandate that the district court at least require some sort of response,'' Stevens wrote.

The case stems from changes to the telecommunications law in 1996. The local phone companies were to open their monopoly markets to competition. In return, they were given the opportunity to enter long-distance business. At the time, the four companies controlled more than 90 percent of the market for local phone service.

The defendants were Bell Atlantic Corp., BellSouth Corp., Qwest Communications International Inc., and SBC Communications Inc. Bell Atlantic is now Verizon Communications Inc. and SBC bought AT&T Inc. and the renamed company, AT&T, merged with BellSouth.

The Supreme Court decision ''embraces an important principle about protecting the freedom of firms to make unilateral decisions on what markets to enter or not enter,'' said John Thorne, senior vice president & deputy general counsel of Verizon Communications.

Consumers represented by a prominent firm of plaintiffs' attorneys sued when the companies kept to their own territories rather than competing. The consumers also alleged the local phone companies conspired to keep smaller companies from competing successfully in the larger companies' markets.

The companies said there are innocent explanations; that it is understandable each company would decide individually against devoting scarce resources to the risky enterprise of entering new markets.

The Bush administration supported the phone companies, saying the lawsuit ''fails to provide concrete notice of the alleged wrongdoing.'' Those filing such lawsuits, said the Justice Department's solicitor general, need to be able to point to allegations of particular jointly attended meetings or to involvement of alleged conspirators in joint activities.

A federal judge dismissed the case, saying the lawsuit contained no direct factual allegations that the companies had conspired.

Companies with ''similar information and economic interests will often reach the same business decisions,'' the federal court said.

The 2nd U.S. Circuit Court of Appeals sided with the consumers, concluding those filing the lawsuit had stated ''a plausible claim of conspiracy.''

The case is Bell Atlantic v. Twombly, 05-1126.

    Court Rules in Favor of Telecom Firms, NYT, 21.5.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Telecom.html

Supreme Court Rules on Education Lawsuits

May 21, 2007
The New York Times
By DAVID STOUT

WASHINGTON, May 21 — The Supreme Court ruled today that parents of children with disabilities need not hire lawyers if they want to sue public school districts over their children’s special-education needs.

In a case of interest to parents and educators across the country, the justices ruled in favor of a couple from the Cleveland suburb of Parma who were unhappy with the school district’s proposal to meet the special needs of their autistic son.

Jeff and Sandee Winkelman could not afford to continue paying a lawyer to sue the Parma City School District over the program designed for the youngest of their five children, Jacob, who was 6 when the lawsuit began about four years ago.

In general, federal law allows people to represent themselves in court. But most federal courts have barred parents of children with disabilities from appearing without a lawyer in cases filed under the Individuals with Disabilities Education Act, or IDEA, which guarantees all children a “free appropriate public education.”

A central question for the justices was whether the act confers rights only on children, or whether parents, too, have rights under the act. Justice Anthony M. Kennedy, writing for the court, said there was no doubt about the rights of the parents.

“The parents enjoy enforceable rights at the administrative stage, and it would be inconsistent with the statutory scheme to bar them from continuing to assert these rights in federal court,” Justice Kennedy wrote. “It is not a novel proposition to say that parents have a recognized legal interest in the education and upbringing of their child.”

The justices reasoned that, because the parents have their own rights under IDEA and can sue on their own behalf, the issue of whether they could sue on behalf of their children need not be addressed. As a rule, courts require minor children to be represented by lawyers in legal matters. So if the high court had held today that the Winkelman boy, but not his parents, enjoyed rights under IDEA, the parents would have needed a lawyer to pursue their case.

The Parma school district argued unsuccessfully that the parents’ rights were simply “derivative,” or based on the rights that the act confers upon children. Therefore, the district argued, the Winkelmans could not get around the rule that only a lawyer can represent another person in court.

Justices Antonin Scalia and Clarence Thomas wrote separately today to say they agreed that the Winkelmans should be able to sue over violations of their procedural rights or to recover private-school expenses, but not to seek a finding that their child’s educational program is inadequate.

“I would prefer to give Jacob the best chance with an attorney,” Mrs. Winkelman told The Associated Press after the ruling was announced. She said several lawyers have offered to represent them for nothing, but if those arrangements do not work out she and her husband will at least be able to pursue their suit on their own.

The Winkelmans objected to the school district’s plan to educate Jacob at a public school, and wanted the district to pay the $56,000 cost of enrolling the boy in a private school that specializes in autistic children. The parents spent about $30,000 on legal fees, The A.P. said. Mr. Winkelman took a second job to pay for court costs, while his wife researched court rulings.

The justices ruled today that a Federal District Court in Cleveland and the United States Court of Appeals for the Sixth Circuit had both erred in holding that the Winkelmans could not sue without a lawyer, a position that most of the federal circuits had embraced.

Solicitor General Paul D. Clement, representing the federal Department of Education, had argued that the Sixth Circuit was wrong and should be reversed. A lawyer from Mr. Clement’s office argued on the Winkelmans’ behalf.

So did a Los Angeles lawyer, Jean-Claude Andre, who handled the couple’s Supreme Court appeal without charge. “What we’re advocating here is really access to courts,” he said when the case was argued on Feb. 27.

    Supreme Court Rules on Education Lawsuits, NYT, 21.5.2007, http://www.nytimes.com/2007/05/21/washington/21cnd-scotus.html?hp

Death Row Inmate in Arizona Loses Appeal

May 14, 2007
By THE ASSOCIATED PRESS
Filed at 10:13 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court ruled against a death row inmate Monday who directed his lawyer not to present evidence that could spare him, then argued on appeal that the attorney was ineffective.

The court reversed a 9th U.S. Circuit Court of Appeals decision granting twice-convicted killer Jeffrey Landrigan a hearing on his claim that his lawyer didn't do enough to ward off the death sentence.

The appeals court should have deferred to lower court rulings against Landrigan, Justice Clarence Thomas wrote for the majority in a 5-4 decision.

Landrigan, sentenced to death in Arizona in 1990, argued to the court that he didn't get a chance to present evidence about his tormented childhood that could have changed the outcome of his sentence.

Landrigan made it clear at trial that he didn't want his lawyer to introduce the evidence.

Landrigan escaped from an Oklahoma prison in 1989, where he was serving prison terms for a 1982 murder and a 1986 prison stabbing. After a night of drinking beer in Phoenix a month later, Landrigan killed Chester Dyer by stabbing him and strangling him with an electrical cord.

At his sentencing hearing, Landrigan repeatedly interrupted his lawyer's efforts to present evidence that showed him in a more positive light. He finally told the judge that there weren't any mitigating circumstances to share.

Afterward, however, Landrigan argued that if his lawyer had explained better, he would have agreed to present evidence that he suffered because of fetal alcohol syndrome and a history of violence in his biological family. Landrigan's father had been on death row in Arkansas until he died of natural causes in 2005.

The Arizona Supreme Court, a federal district judge and a three-judge panel of the 9th Circuit all rejected Landrigan's argument. But the full appeals court reversed, saying Landrigan was entitled to a hearing on his claim that his lawyer was ineffective.

------

The case is Schriro v. Landrigan, 05-1575

    Death Row Inmate in Arizona Loses Appeal, NYT, 14.5.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Arizona-Execution.html

Alito: Conservative As Advertised

May 4, 2007
By THE ASSOCIATED PRESS
Filed at 1:21 p.m. ET
The New York Times

WASHINGTON (AP) -- In his 15 months on the Supreme Court, Justice Samuel Alito has been everything his conservative supporters expected and his liberal detractors feared.

The newest justice has been a reliable vote in favor of the death penalty, expanded police powers and restrictions on abortion.

Alito has yet to write an opinion on a major constitutional issue, not uncommon for someone so new to the court. And he has been more measured than Justices Antonin Scalia and Clarence Thomas, declining to join their call to overturn the court's landmark Roe v. Wade decision on abortion, for instance.

''He has been as advertised, not someone who wanted to dramatically change the law or had a fixed vision of the Constitution,'' said Thomas Goldstein, a lawyer who argues before the court and tracks voting trends. ''But he has moved the court a significant step to the right.''

Alito has voted with Chief Justice John Roberts, Scalia and Thomas in every case in which the court has been ideologically divided.

When they've been joined by Justice Anthony Kennedy, they've had a majority to uphold the first nationwide ban on an abortion procedure, to reinstate death sentences in California and Kansas and to give police more freedom to barge into homes and seize evidence.

Conversely, lacking Kennedy's vote, Alito has been among the dissenters in the court's first case on global warming and challenges to death sentences in Texas.

Still to come this term are major decisions that also may well fall along the same lines, involving voluntary school integration plans in Louisville, Ky., and Seattle, and corporate- and union-sponsored political advertising shortly before elections.

As the replacement for Justice Sandra Day O'Connor, who often found herself in the center of the court's ideological divide, Alito has managed to shift the court's view on some of the most contentious recurring issues before it. Roberts, no less conservative than Alito, took Chief Justice William Rehnquist's seat and has generally voted the same as his predecessor.

Alito's position in the court's biggest cases has been a source of frustration to Senate Democrats and interest groups. They could not muster the votes to block his confirmation after trying to demonstrate the depth of his conservatism when he was in the Reagan administration Justice Department and a judge on the 3rd U.S. Circuit Court of Appeals.

Sen. Charles Schumer, D-N.Y., has called the failure to stop Alito his ''biggest regret'' in the years following President Bush's re-election in 2004.

Nan Aron, president of the liberal Alliance for Justice, said she expects Alito to cast a vote striking down public school plans that use race as a factor in assigning students to schools.

''I could be wrong, I hope I'm wrong, but I don't think I'm wrong,'' Aron said. ''He was a very doctrinaire ultraconservative at the Justice Department and on the 3rd Circuit. He continues to be one on the Supreme Court.''

Not surprisingly, Alito's backers see restraint in his votes.

''Justice Alito has been a thoughtful jurist who understands his role is to be a neutral umpire and not let his policy views influence his adjudication,'' said Washington lawyer Michael Carvin, who worked with Alito at the Justice Department. ''I felt he'd be a justice who would adhere to the rule of law and thus far he's done a superb job.''

In some ways, Alito is different from the other conservatives.

Stylistically, he leaves the quips to Roberts and Scalia. Substantively, he refrains from the more frequent and categorical dissents that have marked Scalia and Thomas and their focus on originalism, giving a fair reading to the words of the Constitution as they were meant when they were written.

In the abortion case, for example, Alito asked no questions at oral argument and joined Kennedy's opinion without writing separately.

His questions during argument sessions, even at their most aggressive, are gentler than those of some of his colleagues.

In a case involving how a union may use fees from workers who are not members but are compelled to pay the equivalent of dues, Alito sounded very skeptical of the union's position.

''Why would I choose to give up the benefits of union membership and yet want to allow the union to spend my money for its political purposes?'' he asked.

Alito's dissent this week from an opinion written by Roberts in a case involving trash disposal provided the clearest evidence yet that President Bush's two appointees may agree on the major issues before the court, but don't always see eye-to-eye.

''The public-private distinction drawn by the Court is both illusory and without precedent,'' Alito wrote, clearly expressing his agreement without injecting anything personal into the matter.

Most justices change over time, concludes a new study by a group of Northwestern University law professors.

Justice David Souter, firmly entrenched in the court's liberal camp, early in his Supreme Court service was the deciding vote to uphold the first Bush administration's ''gag rule'' on abortion counseling at government-financed health clinics.

In 1992, however, Souter joined a five-member coalition that upheld a woman's right to have an abortion.

Could Alito turn out to be more like Souter or Justice Harry Blackmun, another Republican appointee who became more liberal during his time on the court?

It's not likely, suggests a recent study by Columbia Law School professor Michael Dorf.

Republican nominees who previously served in the executive branch have been ''steadfastly conservative,'' far less likely to drift left than fellow Republicans who joined the court without serving in a GOP administration.

On the current court, Alito, Roberts, Scalia and Thomas all worked in the executive branch. Republican nominees Kennedy, Souter and Stevens did not.

------

On the Net:

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

    Alito: Conservative As Advertised, NYT, 4.5.2007, http://www.nytimes.com/aponline/us/AP-Alitos-True-Colors.html

Cases Showing Court's Ideological Divide

May 4, 2007
By THE ASSOCIATED PRESS
Filed at 1:20 p.m. ET
The New York Times

Some Supreme Court cases, since Samuel Alito joined the court last year, showing a clear division between conservative and liberal justices.

--Free speech: Scales back protections for government workers who blow the whistle on official misconduct, Garcetti v. Ceballos. Majority: Chief Justice John Roberts, Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, Clarence Thomas. Dissent: Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter, John Paul Stevens.

--Death penalty-Kansas: Upholds state law that says juries should sentence a defendant to die -- rather than serve life in prison -- when the evidence for and against imposing death is equal, Kansas v. Marsh. Majority: Roberts, Alito, Kennedy, Scalia, Thomas. Dissent: Breyer, Ginsburg, Souter, Stevens.

--Police searches: Makes it easier for police to barge into homes and seize evidence without knocking or waiting, Hudson v. Michigan. Majority: Roberts, Alito, Kennedy, Scalia, Thomas. Dissent: Breyer, Ginsburg, Souter, Stevens.

--Death penalty-California: Reinstates death penalty for convicted California killer after appeals court set aside death sentence because the trial judge misled jurors. Ayers v. Belmontes. Majority: Roberts, Alito, Kennedy, Scalia, Thomas. Dissent: Breyer, Ginsburg, Souter, Stevens.

--Global warming: Rejects Bush administration claims that it has no authority to regulate emissions of greenhouse gases from new cars, Massachusetts v. EPA. Majority: Breyer, Ginsburg, Kennedy, Souter, Stevens. Dissent: Roberts, Alito, Scalia, Thomas.

--Death penalty-Texas: Throws out death sentences for three inmates on Texas death row, saying appeals courts wrongly applied court precedents and federal law, Abdul-Kabir v. Quarterman, Brewer v. Quarterman, Smith v. Texas. Majority: Breyer, Ginsburg, Kennedy, Souter, Stevens. Dissent: Roberts, Alito, Scalia, Thomas.

Cases Showing Court's Ideological Divide, NYT, 4.5.2007, http://www.nytimes.com/aponline/us/AP-Alito-Glance.html