History > 2007 > USA > Constitution, laws

Supreme Court (III)

Justices Stay Execution,

a Signal to Lower Courts

October 31, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Oct. 30 — Moments before a Mississippi prisoner was scheduled to die by lethal injection, the Supreme Court granted him a stay of execution on Tuesday evening and thus gave a nearly indisputable indication that a majority intends to block all executions until the court decides a lethal injection case from Kentucky next spring.

There were two dissenters, Justices Antonin Scalia and Samuel A. Alito Jr., but neither they nor the majority gave reasons for their positions. Because only five votes are required for a stay of execution, it is not clear whether all the remaining seven justices supported it.

The stay will remain in effect until the full court reviews an appeal filed Monday by lawyers for the inmate, Earl W. Berry, who is on death row for killing a woman 20 years ago.

While there is no schedule for that review, it will almost surely not take place until the court decides the Kentucky case, Baze v. Rees, which will be argued in January. The issue in that case is not the constitutionality of lethal injection as such, but rather a more procedural question: how judges should evaluate claims that the particular combination of drugs used to bring about death causes suffering that amounts to cruel and unusual punishment, in violation of the Eighth Amendment.

Even without a written opinion, the Supreme Court’s action on Tuesday night clarified a situation that had become increasingly confusing as state courts and the lower federal courts, without further guidance from the justices, wrestled with claims from a growing number of death-row inmates that their imminent executions should be delayed.

State and lower federal courts are likely to interpret the Supreme Court’s action as a signal that they should postpone executions in their jurisdictions. As a result, the justices will probably not have to consider any more last-minute applications from inmates while the de facto moratorium is in effect.

Of these inmates, Mr. Berry had perhaps the weakest case. He had run through many appeals in the 19 years since he was sentenced to death, but had not challenged the method of execution until recent days. His federal court lawsuit on which the justices acted was not filed until Oct. 18. The Federal District Court in Jackson, Miss., dismissed it as untimely on Oct. 24 in a ruling that the United States Court of Appeals for the Fifth Circuit affirmed last Friday.

The appeals court said that, under its own precedent, a late-filed challenge to a method of execution warranted automatic dismissal. The pending Supreme Court case was irrelevant to its determination, the appeals court said, adding that if the justices had a different view of the matter, they should say so.

In the application for a stay of execution, filed Monday afternoon, Mr. Berry’s lawyers acknowledged that the Supreme Court itself has been critical of last-minute requests from death-row inmates, “especially if the petitioner has been trying to manipulate the legal process.” But the lawyers urged the court to look beyond that issue and to consider “a balancing of the equities and hardships of the respective parties.”

In this instance, the lawyers said, Mississippi “will suffer no prejudice other than a delay if Mr. Berry’s execution is stayed,” while Mr. Berry “on the other hand, will suffer the risk of being put to death by an unconstitutional means.” They added, “It is clear that irreparable harm will result if no stay is granted.”

David P. Voisin, one of the defense lawyers, said the Supreme Court’s action was “a positive sign that as long as this issue is under consideration, the court is going to hold executions.”

Even before the court acted, executions had dropped to the lowest level in more than a decade. There have been 42 executions this year, including one last month in Texas, which the Supreme Court declined to block hours after granting review in the Kentucky case. That execution, of Michael Richard, now appears likely to be the last for months, perhaps until next summer or later if the court’s decision in Baze v. Rees results in new protocols for lethal injections.

While the de facto moratorium now in place is reminiscent of a similar period of no executions in the late 1960s and early 1970s, the resemblance is largely superficial. During the earlier period, legal challenges to the basic constitutionality of capital punishment were moving toward the Supreme Court, which in 1972 invalidated the death penalty laws that then existed. In 1976, the court allowed capital punishment to resume under reformulated statutes.

In the current cases, by contrast, the constitutionality of the death penalty is not at issue, and the inmates are not challenging the validity of their death sentences. Delays of some months in carrying out executions may seem relatively minor given the many years that most of the inmates have already spent on death row. Mr. Berry was sentenced in 1988 for the beating death of a 56-year-old woman, Mary Bounds, whom he had kidnapped as she was walking home from choir practice.

Mr. Berry, who is now 48, had two earlier appeals in which he challenged the validity of his death sentence turned down by the Supreme Court. The most recent was on Oct. 1.

In Mississippi, officials at the state prison at Parchman said they were notified of the stay 19 minutes before the scheduled execution, which was set for 6 p.m. Central time. Mr. Berry had eaten what he thought was a last meal of barbecued pork chops and had taken a shower before the call came. Chris Epps, commissioner of the state Department of Corrections, told reporters that Mr. Berry had “cried quite a bit” earlier in the day.

The department issued a statement, saying that “the agency will work within any newly established guidelines to ensure that executions are carried out in a constitutional manner.”
 

Brenda Goodman contributed reporting from Atlanta.

    Justices Stay Execution, a Signal to Lower Courts, NYT, 31.10.2007, http://www.nytimes.com/2007/10/31/washington/31execute.html?hp

Eyes on Supreme Court in Execution Case Tuesday

October 30, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Oct. 29 — By 6 p.m. Tuesday, when a Mississippi inmate is scheduled to die by lethal injection, the Supreme Court may give the clearest indication so far of whether it intends to call a halt to all such executions while a case from Kentucky that the justices accepted last month remains undecided.

The Mississippi inmate, Earl W. Berry, convicted of kidnapping and murder in 1988, has been turned down by the Mississippi Supreme Court and by the United States Court of Appeals for the Fifth Circuit. Late on Monday, the justices denied his appeal of the state court ruling, as well as the application for a stay of execution that accompanied it.

Mr. Berry’s application for a stay of the Fifth Circuit ruling, which his lawyers filed on Monday afternoon, remained pending in the evening, having come in very late in the afternoon.

In turning down the state-court appeal without any apparent dissent, the Supreme Court’s three-sentence order provided a brief explanation. The Supreme Court had no jurisdiction, the unsigned order said, because “the judgment of the Mississippi Supreme Court relies upon an adequate and independent state ground.”

The Mississippi Supreme Court ruled on Oct. 11 that Mr. Berry’s challenge to the lethal injection procedure was barred as a matter of state law because he had not presented the claim in his earlier appeals. The United States Supreme Court’s own jurisdiction is limited to deciding independent questions of federal law.

The Fifth Circuit, which sits in New Orleans, similarly dismissed Mr. Berry’s challenge to lethal injection as untimely, in a decision issued on Friday. By contrast, that decision clearly presents an issue of federal procedural law for the Supreme Court to address, whether a challenge to an execution method on the eve of a scheduled execution must be dismissed as untimely. As to whether all pending executions should now be delayed, the appeals court all but challenged the justices to state plainly whether that was the case.

Noting that Mr. Berry’s new federal-court case challenging lethal injection was not filed until Oct. 18, the appeals court said: “Well-established Fifth Circuit precedent is clear: death-sentenced inmates may not wait until execution is imminent before filing an action to enjoin a state’s method of carrying it out.”

That precedent “remains binding until the Supreme Court provides contrary guidance,” the appeals court said.

In the five weeks since the Supreme Court agreed to examine how courts should evaluate the constitutionality of lethal injection, in a case from Kentucky, Baze v. Rees, No. 07-5439, the national picture has become increasingly confused. The justices allowed one execution to proceed and granted stays in two others.

Last week, a three-judge panel of the United States Court of Appeals for the 11th Circuit, in Atlanta, granted a stay for an Alabama inmate, Daniel L. Siebert, indicating that the stay would last until the Supreme Court ruled in the Baze case. But the full 11th Circuit then vacated that decision and ordered reconsideration, meanwhile keeping the stay in place only until its own further review.

While some death penalty opponents have asserted that a de facto moratorium is now in place, others are less certain. Capital Defense Weekly, a blog that tracks appellate death-penalty litigation, describing what it called “a very fluid situation,” said Monday that a Supreme Court stay in the Mississippi case would “lend credence” to the conclusion that a moratorium is in place, while the result of a denial would likely be “a new rush of execution dates.”

Separately, the American Bar Association on Monday issued the results of a three-year study of the death penalty in eight states. The group said widespread flaws, including racial disparities and incompetent legal defense, supported the argument for a nationwide moratorium on all executions.

    Eyes on Supreme Court in Execution Case Tuesday, NYT, 30.10.2007, http://www.nytimes.com/2007/10/30/washington/30scotus.html

Court Declines Case Involving Painting

October 29, 2007
Filed at 12:51 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court on Monday refused to consider a dispute involving actress Elizabeth Taylor over ownership of a Vincent van Gogh painting. The painting is claimed by descendants of a Jewish woman who fled Nazi Germany.

The painting, worth millions, may be among the estimated 600,000 works of art that belonged to Jews and wound up in Nazi hands between 1933 and 1945.

Margarete Mauthner, a one-time owner of the van Gogh, left Germany in March 1939, having lost her livelihood and most of her property due to Nazi policies of economic coercion. Relatives of Mauthner, a noted translator and advocate of the arts, say the painting was among the property she lost to the Nazis.

In 1963 while living in London, Taylor bought the painting for about $236,000 at a Sotheby's auction from the estate of a German art collector.

Taylor's lawyers say the record shows that the painting was sold through two Jewish art dealers to a Jewish art collector, with no evidence of any Nazi coercion or participation in the transactions.

The family members say they didn't discover they had a possible claim to the painting until 2001.

Mauthner's heirs went to court to recover the artwork, but the 9th U.S. Circuit Court of Appeals in San Francisco has ruled that the federal Holocaust Victims Redress Act does not create a private right to sue. Mauthner's relatives also are trying to recover the painting under California state law, but the appeals court ruled they waited too long to act.

Van Gogh painted ''View of the Asylum'' less than a year before his suicide.

The case is Orkin v. Taylor, 07-216.

    Court Declines Case Involving Painting, NYT, 29.10.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Van-Gogh.html

Court to Hear Exxon Valdez Case

October 29, 2007
Filed at 10:05 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court on Monday stepped into the long-running battle over the $2.5 billion in punitive damages owed by Exxon Mobil Corp. for the Exxon Valdez oil spill in 1989.

Eleven millions gallons of oil spilled into Alaska's Prince William Sound when the supertanker ran aground on a reef. A federal appeals court already had cut in half the $5 billion in damages awarded by a jury in 1994.

The justices said they would consider whether the company should have to pay any punitive damages at all. If the court decides some money is due, Exxon is arguing that $2.5 billion is excessive under laws governing shipping and prior high court decisions limiting punitive damages.

The damages were, by far, the largest ever approved by federal appeals judges, the company said in its brief to the court.

The case probably will be heard in the spring. The court's last ruling on punitive damages, in February, set aside a nearly $80 million judgment against Altria Group Inc.'s Philip Morris USA. The money was awarded to the widow of a smoker in Oregon.

THIS IS A BREAKING NEWS UPDATE. Check back soon for further information. AP's earlier story is below.

WASHINGTON (AP) -- The Supreme Court on Monday stepped into the long-running battle over the $2.5 billion in punitive damages owed by Exxon Mobil Corp. for the Exxon Valdez oil spill in 1989.

    Court to Hear Exxon Valdez Case, NYT, 29.10.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Exxon-Valdez.html

Editorial

Supreme Disgrace

October 11, 2007
The New York Times
 

The Supreme Court exerts leadership over the nation’s justice system, not just through its rulings, but also by its choice of cases — the ones it agrees to hear and the ones it declines. On Tuesday, it led in exactly the wrong direction.

Somehow, the court could not muster the four votes needed to grant review in the case of an innocent German citizen of Lebanese descent who was kidnapped, detained and tortured in a secret overseas prison as part of the Bush administration’s morally, physically and legally abusive anti-terrorism program. The victim, Khaled el-Masri, was denied justice by lower federal courts, which dismissed his civil suit in a reflexive bow to a flimsy government claim that allowing the case to go forward would put national security secrets at risk.

Those rulings, Mr. Masri’s lawyers correctly argued, represented a major distortion of the state secrets doctrine, a rule created by the federal courts that was originally intended to shield specific evidence in a lawsuit filed against the government. It was never designed to dictate dismissal of an entire case before any evidence is produced.

It may well be that one or more justices sensitive to the breathtaking violation of Mr. Masri’s rights, and the evident breaking of American law, refrained from voting to accept his case as a matter of strategy. They may have feared a majority ruling by the Roberts court approving the dangerously expansive view of executive authority inherent in the Bush team’s habitual invocation of the state secrets privilege. In that case, the justices at least could have commented, or offered a dissent, as has happened when the court abdicated its responsibility to hear at least two other recent cases involving national security issues of this kind.

Mr. Masri says he was picked up while vacationing in Macedonia in late 2003 and flown to a squalid prison in Afghanistan. He says he was questioned there about ties to terrorist groups and was beaten by his captors, some of whom were Americans. At the end of May 2004, Mr. Masri was released in a remote part of Albania without having been charged with a crime. Investigations in Europe and news reports in this country have supported his version of events, and German Chancellor Angela Merkel has said that Secretary of State Condoleezza Rice acknowledged privately to her that Mr. Masri’s abduction was a mistake, an admission that aides to Ms. Rice have denied. The Masri case, in other words, is being actively discussed all over the world. The only place it cannot be discussed, it seems, is in a United States courtroom.

In effect, the Supreme Court has granted the government immunity for subjecting Mr. Masri to “extraordinary rendition,” the morally and legally unsupportable United States practice of transporting foreign nationals to be interrogated in other countries known to use torture and lacking basic legal protections. It’s hard to imagine what, at this point, needs to be kept secret, other than the ways in which the administration behaved irresponsibly, and quite possibly illegally, in the Masri case. And Mr. Masri is not the only innocent man kidnapped by American agents and subjected to abuse and torture in a foreign country. He’s just the only one whose lawsuit got this far.

This unsatisfactory outcome gives rise to new worries about the current Supreme Court’s resolve to perform its crucial oversight role — particularly with other cases related to terrorism in the pipeline and last week’s disclosure of secret 2005 Justice Department memos authorizing the use of inhumane interrogation methods that just about everyone except the Bush White House thinks of as torture. Instead of a rejection, the Masri case should have occasioned a frank revisiting of the Supreme Court’s 1953 ruling in United States v. Reynolds. That case enshrined the state secrets doctrine that this administration has repeatedly relied upon to avoid judicial scrutiny of its lawless actions.

Indeed, the Reynolds case itself is an object lesson in why courts need to apply a healthy degree of skepticism to state secrets claims. The court denied the widows of three civilians, who had died in the crash of a military aircraft, access to the official accident report, blindly accepting the government’s assertion that sharing the report would hurt national security. When the documents finally became public just a few years ago, it became clear that the government had lied. The papers contained information embarrassing to the government but nothing to warrant top secret treatment or denying American citizens honest adjudication of their lawsuit.

In refusing to consider Mr. Masri’s appeal, the Supreme Court has left an innocent person without any remedy for his wrongful imprisonment and torture. It has damaged America’s standing in the world and established the nation as Supreme Enabler of the Bush administration’s efforts to avoid accountability for its actions. These are not accomplishments to be proud of.

    Supreme Disgrace, NYT, 11.10.2007, http://www.nytimes.com/2007/10/11/opinion/11thu1.html

Supreme Court Allows Lawsuit Against H - P

October 9, 2007
By THE ASSOCIATED PRESS
Filed at 12:16 p.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court on Tuesday allowed a class action lawsuit to proceed against Hewlett-Packard Co. that alleges Compaq, now a part of HP, sold defective computers.

The Supreme Court's action lets stand a 2005 ruling by an Oklahoma state court.

The case involves a lawsuit by two Oklahoma residents, Stephen and Beverly Grider, who allege that Compaq Computer Corp. sold them a defective computer and didn't repair or replace it, as called for in the company's warranty.

The Griders sued in June 2003 and their lawyers asked the state court to certify a class of 1.7 million people who had bought similar computers. Their request was granted in 2005.

Compaq was purchased by Hewlett-Packard in 2002.

Class action suits allow numerous plaintiffs with similar claims to proceed in a single trial. Businesses usually oppose such designations given the greater damage awards that can result.

Compaq argued in court papers filed with the Supreme Court that a virtually identical lawsuit was brought in Texas in 2000. In that case, the Texas Supreme Court refused to certify a class action, ruling that Texas law shouldn't apply to out-of-state members of the class.

Nevertheless, Oklahoma's highest court not only certified the class, but said that Texas law should be applied in the case because, among other things, Compaq was headquartered in Texas.

Compaq's lawyers said that under the full faith and credit clause of the Constitution, which requires states to honor each others' laws and court rulings, Oklahoma shouldn't be able to apply Texas law when Texas' highest court has reached the opposite conclusion.

Hewlett-Packard shares rose 29 cents to $52.32 in early trading Tuesday.

    Supreme Court Allows Lawsuit Against H - P, NYT, 9.10.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Hewlett-Packard.html

Supreme Court Won’t Hear Torture Appeal

October 9, 2007
The New York Times
By DAVID STOUT

WASHINGTON, Oct. 9 — A German citizen who said he was kidnapped by the Central Intelligence Agency and tortured in a prison in Afghanistan lost his last chance to seek redress in court today when the Supreme Court declined to consider his case.

The justices’ refusal to take the case of Khaled el-Masri let stand a March 2 ruling by the United States Court of Appeals for the Fourth Circuit, in Richmond, Va. That court upheld a 2006 decision by a federal district judge, who dismissed Mr. Masri’s lawsuit on grounds that trying the case could expose state secrets.

“We recognize the gravity of our conclusions that el-Masri must be denied a judicial forum for his complaint,” Judge Robert B. King wrote in March for a unanimous three-judge panel. “The inquiry is a difficult one, for it pits the judiciary’s search for truth against the executive’s duty to maintain the nation’s security.”

The ordeal of Mr. Masri, who is of Lebanese descent, was the most extensively documented case of the C.I.A.’s controversial practice of “extraordinary rendition,” in which terrorism suspects are abducted and sent for interrogation to other countries, including some in which torture is practiced. The episode caused hard feelings between the United States and Germany, whose diplomatic ties were already frayed because of differences over the war in Iraq.

Mr. Masri contended in his suit that he was seized by local law enforcement officials while vacationing in Macedonia on New Year’s Eve 2003. At the time, he was 41 years old and an unemployed car salesman.

“They asked a lot of questions — if I have relations with Al Qaeda, Al Haramain, the Islamic Brotherhood,” Mr. Masri said in a 2005 interview with The New York Times. “I kept saying no, but they did not believe me.”

After 23 days, he said, he was turned over to C.I.A. operatives, who flew him to a secret C.I.A. prison in Kabul. There, Mr. Masri said, he was kept in a small, filthy cell and shackled, drugged and beaten while being interrogated about his supposed ties to terrorist organizations. At the end of May 2004, Mr. Masri said, he was released in a remote part of Albania without ever having been charged with a crime.

The C.I.A. has never acknowledged any role in Mr. Masri’s detention.

When the Fourth Circuit dismissed Mr. Masri’s suit, Anthony D. Romero, executive director of the American Civil Liberties Union, called the action “truly unbelievable” and “reminiscent of third-world countries.”

The Supreme Court issued no comment in declining to hear the appeal.

In May, Mr. Masri was arrested on suspicion of setting a fire in a market in a town in Bavaria that caused $675,000 in damage. His lawyer said he had had a dispute with the store, and that his action was the result of not receiving psychological counseling that he had sought. A German judge ordered him held in a psychiatric ward.

    Supreme Court Won’t Hear Torture Appeal, NYT, 9.10.2007, http://www.nytimes.com/2007/10/09/washington/09cnd-scotus.html?hp

Jury Decides Against Thomas and Knicks’ Owner

October 2, 2007
By THE ASSOCIATED PRESS
Filed at 11:55 a.m. ET
The New York Times

NEW YORK (AP) -- A jury ruled Tuesday that New York Knicks coach Isiah Thomas sexually harassed a top team executive, subjecting the married mother of three to unwanted advances and a barrage of verbal insults.

But the jury also ruled that Thomas does not have to pay punitive damages to the women, giving him a partial victory after an ugly, three-week trial.

The jury did find that Madison Square Garden committed harassment against the woman, and ruled that MSG should have to pay her punitive damages.

U.S. District Judge Gerard E. Lynch called it an ''imminently reasonable'' verdict and said the jury will be asked to return later in the day to hear brief arguments on possible punitive damages against MSG.

The harassment verdict was widely expected after the jury sent a note to the judge Monday indicating that it believed Thomas and the other defendants, Madison Square Garden and MSG Chairman James Dolan, sexually harassed plaintiff Anucha Browne Sanders. But the question of whether Thomas would have to pay punitive damages was up in the air until Tuesday.

    Jury Decides Against Thomas and Knicks’ Owner, NYT, 2.10.2007, http://www.nytimes.com/aponline/sports/AP-BKN-Knicks-Thomas-Harassment-Suit.html?hp

High Court Won't Hear Two Religion Cases

October 1, 2007
By THE ASSOCIATED PRESS
Filed at 11:22 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court opened its new term Monday refusing to get involved in two church-state disputes -- one over religious organizations paying for workers' birth-control health insurance benefits, the other over an evangelical group's plea to hold religious services at a public library.

The birth-control benefits dispute was triggered by a New York state law that forces religious-based social service agencies to subsidize contraceptives as part of prescription drug coverage they offer employees.

New York is one of 23 states that require employers offering prescription benefits to employees to cover birth control pills as well, the groups say. The state enacted the Women's Health and Wellness Act in 2002 to require health plans to cover contraception and other services aimed at women, including mammography, cervical cancer screenings and bone density exams.

Catholic Charities and other religious groups argued that New York's law violates their First Amendment right to practice their religion because it forces them to violate religious teachings that regard contraception as sinful.

''If the state can compel church entities to subsidize contraceptives in violation of their religious beliefs, it can compel them to subsidize abortions as well,'' the groups said in urging the court to take their case. ''And if it can compel church entities to subsidize abortions, it can require hospitals owned by churches to provide them.''

Other Catholic and Baptist organizations are part of the lawsuit. Seventh-Day Adventist and Orthodox Jewish groups signed onto a brief filed in support of Catholic Charities.

In the library case, the 9th U.S. Circuit Court of Appeals in San Francisco had ruled that public libraries can block religious groups like the Faith Center Church Evangelistic Ministries from worshipping in public meeting rooms.

The Contra Costa library system in the San Francisco Bay area allows groups to use its facilities for educational, cultural and community-related programs.

''Although religious worship is an important institution in any community, we disagree that anything remotely community-related must therefore be granted access to the Antioch Library meeting room,'' the appeals court concluded in a 2-1 decision.

Allowing worship services would amount to having taxpayers subsidize religious exercises, argued the Contra Costa County, Calif., Library Board, which operated the facility in Antioch, Calif.

In the dispute over making religious organizations subsidize contraceptives, the court rejected a challenge to a similar law in California.

''A church ought to be able to run its affairs and organize relationships with its employees in a way that's consistent with moral values and teachings,'' said Kevin Baine, a partner at the Williams and Connolly law firm who represents the religious organizations.

The New York law contains an exemption for churches, seminaries and other institutions with a mainly religious mission that primarily serve followers of that religion. Catholic Charities and the other groups sought the exemption, but they hire and serve people of different faiths.

New York's highest court ruled last year that the groups had to comply with the law. The 6-0 decision by the state Court of Appeals hinged on the determination that the groups are essentially social service agencies, not churches.

According to Planned Parenthood, the other states with similar laws are: Arizona, Arkansas, California, Connecticut, Delaware, Georgia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Rhode Island, Vermont, Washington and West Virginia.

The birth-control benefits case is Catholic Charities of the Diocese of Albany v. Dinallo, 06-1550. The library case is Faith Center Church v. Glover, 06-1633.

    High Court Won't Hear Two Religion Cases, NYT, 1.10.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Religious-Cases.html

Court Rejects Tobacco Case

October 1, 2007
Filed at 10:53 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court on Monday rejected a request by tobacco companies to consider making it harder for smokers to prove they were misled by the industry.

The case arose out of a class-action lawsuit on behalf of 700,000 Florida residents suffering from illness caused by their addiction to cigarettes.

In July 2006, the Florida Supreme Court dismissed a $145 billion punitive damage award against the tobacco companies for injuring smokers, saying that recognizing the huge class of victims was inappropriate.

But it upheld multimillion-dollar compensatory awards on behalf of two individual smokers. And in the part of its ruling most troubling to the industry, the Florida Supreme Court said that the findings against the companies could be used in individual suits by former members of the class.

The companies say that approach is unfair to them because the state court's conclusions were too general.

The findings were the product of ''a sprawling, year-long trial that touched upon myriad aspects of five separate defendants' conduct in designing, manufacturing and marketing cigarettes over half a century,'' the companies said in asking the U.S. Supreme Court to take the case.

It is impossible to ascertain from the jury findings what facts were concealed or by whom or how the companies acted negligently, the companies argued in court papers.

The industry says that the federal law requiring warning labels on all cigarette packs trumps the liability claims filed in state court. The companies point to a 1992 Supreme Court decision that the federally required warning labels pre-empt arguments that manufacturers failed to warn the public about the health effects of smoking or that tobacco ads neutralized the warning labels.

The 1969 Federal Cigarette Labeling and Advertising Act requires the message that smoking is dangerous to your health.

Lawyers for the two individual smokers say their clients became addicted years before the 1969 preemption, and therefore the state lawsuits are not barred.

The tobacco industry successfully challenged the class-action judgment for punitive damages and now the companies want to ''completely erase all traces'' of the 13-year-old case, lawyers for the smokers say.

The companies are Philip Morris USA Inc., a subsidiary of Altria Group Inc.; Brown & Williamson Holdings Inc.; R.J. Reynolds Tobacco Co.; Lorillard Tobacco Co.; Liggett Group LLC; and two industry groups, the Tobacco Institute Inc. and the Council for Tobacco Research U.S.A. Inc.

The case is R.J. Reynolds v. Engle, 06-1545.

------

On the Net:

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

    Court Rejects Tobacco Case, NYT, 1.10.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Tobacco.html

New Court Term Begins Monday

September 29, 2007
By THE ASSOCIATED PRESS
Filed at 1:03 p.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court is set to begin a term that could lead to enhanced rights for terrorism detainees, a ruling against part of a child pornography law and shorter prison terms for crack cocaine dealers.

Whatever happened to the court's march to the right?

The answer, it seems safe to say, is that little has changed on the bench, where Justice Anthony Kennedy remains the decisive vote between four conservatives and four liberals.

The difference with the term that begins Monday is the mix of cases that are before the justices. Instead of last term's defining cases -- abortion, race and campaign finance -- in which Kennedy's views aligned him with the conservatives, the big issues are those on which Kennedy has more often sided with the liberals.

The court has become more conservative since Sandra Day O'Connor retired in 2006 and was replaced by Justice Samuel Alito.

Looking ahead to this term's lineup of cases, ''I can't identify a significant win for conservatives,'' said Thomas Goldstein, a Washington lawyer who writes about the court and argues before it.

The justices are set to tackle an array of big issues. They include the legal rights of Guantanamo detainees, the constitutionality of lethal injections for executions, photo identification cards for voters and investors' struggle to find accountability in cases of fraud.

The court could add a blockbuster case to its calendar if the justices opt to take a Second Amendment case from Washington, D.C., that would test limits on the right to own guns.

The third year of Chief Justice John Roberts' tenure follows a contentious term that laid bare ideological divisions in a large number of cases decided by one vote. The frustrations of liberal justices bubbled up in dissents read aloud in the courtroom. Among them was one read on the final day by Justice Stephen Breyer, who said of his conservative colleagues: ''So few have so quickly changed so much.''

While there could well be many more 5-4 decisions this term, a frequent participant in cases at the high court doubts that relations among the justices will be as frayed.

''I don't think we'll have anything like that this term,'' said Carter Phillips, a lawyer with the Sidley Austin firm who has argued 54 cases before the justices. ''It's pretty clear that last year was a bruising term for the justices. They were pretty happy to get away from each other.''

Roberts, 52, suffered a health setback during the summer when he had a seizure on a dock in Maine, the second such episode in 14 years. He has resumed his public schedule and has said nothing more about his health, including whether he is taking medication to prevent another seizure.

Monday's opening session also coincides with the official release of Justice Clarence Thomas' long-awaited memoir ''My Grandfather's Son.'' The book is Thomas' look back at his life from childhood in Georgia to his bitter confirmation battle that included testimony from former employee Anita Hill that Thomas sexually harassed her.

On the court's calendar, the headline case so far involves the legal rights of Guantanamo detainees. The justices twice before have ruled that suspected terrorists held at the U.S. naval base in Cuba could pursue challenges to their indefinite confinement in U.S. civilian courts.

Each time, the Bush administration and Congress, then under Republican control, have changed the law to try to limit the detainees' rights.

''This is the most generous set of procedures ever afforded to a nation's military adversaries in the history of the world. They are, however, far short of what would be afforded a U.S. citizen caught up in the civilian justice system,'' said Brad Berenson, who served under Bush in the White House counsel's office.

Kennedy voted with the court's liberals in both earlier cases; many scholars expect him to do so again.

The Guantanamo case is the only national security matter the court has yet agreed to review. But related administration policies, including warrantless wiretapping and the claim that state secrets could be revealed if some court cases are allowed to go forward, also could make it to the high court this term.

In their first week, the justices will hear arguments involving the disparate prison terms given people convicted of crimes involving crack versus powder cocaine.

At the end of the month, the government will ask the justices to overturn an appeals court ruling that struck down a provision of the main federal law against child pornography. The lower court said the portion in question criminalizes merely talking about illegal images.

Another closely watched case is a challenge to Kentucky's lethal injection procedures. The court blocked a Texas inmate's lethal injection execution last week, indicating that the Kentucky case could produce a broad statement about a widely used method of execution.

The court also will wade into electoral politics in a few cases. The most notable involves the requirement that voters produce photo identification to cast a ballot.

The issue has a sharp partisan edge. Republicans are pushing voter ID laws as a way to reduce fraud. Democrats say those laws are intended to discourage poor, minority and older voters who tend to vote for Democrats. The case almost certainly will be decided before next year's general election.

There is no indication that any justice intends to step down before the 2008 presidential election, although there is much speculation that the next president could have several vacancies to fill.

In addition to Roberts, two other justices are in their 50s. Six are 68 or older and the senior man among them, John Paul Stevens, is 87.

As long as the current lineup holds, Kennedy, 71, will continue to be the key vote.

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On the Net:

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

    New Court Term Begins Monday, NYT, 29.9.2007, http://www.nytimes.com/aponline/us/AP-Scotus-New-Term.html

Major Cases to Be Heard by Supreme Court

September 29, 2007
By THE ASSOCIATED PRESS
Filed at 1:23 p.m. ET
The New York Times

GUANTANAMO DETAINEES: The court is being asked to determine whether detainees at the Guantanamo Bay naval base can use U.S. civilian courts to challenge their indefinite imprisonment after Congress passed and President Bush signed a law that says they cannot. (Boumediene v. Bush, 06-1195, Al-Odah v. U.S., 06-1196).

CRACK-POWDER COCAINE DISPARITY: At issue is whether a federal judge has the discretion to impose a more lenient sentence on sellers of crack cocaine, most of whom are black, departing from federal sentencing guidelines that call for significantly longer prison terms for sellers of crack than for sellers of powder cocaine. Tuesday. (Kimbrough v. U.S., 06-6330).

LETHAL INJECTIONS: Death row inmates claim that lethal injection as practiced in Kentucky violates the Constitution's ban on cruel and unusual punishment. (Baze v. Rees, 07-5439).

VOTER ID: Democrats and civil rights groups say laws requiring voters to produce photo identification in order to cast a ballot violate the Constitution. (Crawford v. Marion County Election Board, 07-21, Indiana Democratic Party v. Rokita, 07-25).

CHILD PORNOGRAPHY: The government's appeal of an appeals court ruling declaring unconstitutional a portion of the child pornography law that criminalizes an individual's promotion of child porn, whether or not he actually possesses it. The part of the law making it a crime to have child porn is not at issue. Oct. 30. (U.S. v. Williams, 06-694).

PRESIDENTIAL POWER: The Bush administration is taking the side of a Mexican national who is on death row in Texas in a case that probes the president's power to set aside a state law that conflicts with an international treaty. Oct. 10. (Medellin v. Texas, 06-984).

INVESTOR LAWSUITS: Whether third parties such as investment banks, accountants, lawyers or vendors can be found liable in shareholder lawsuits for scheming with companies accused of deceiving investors, a case that could determine the outcome of other investor lawsuits including one stemming from the Enron scandal. Oct. 9. (Stoneridge Investment v. Scientific-Atlanta, 06-43).

LOUISIANA DEATH CASE: A black man convicted of killing his wife's companion and sentenced to death by an all-white jury in Louisiana says he did not get a fair trial because the prosecutor improperly dismissed prospective black jurors and compared the defendant with O.J. Simpson, who had recently been acquitted of killing his wife and another man. (Snyder v. Louisiana, 06-10119).

GOVERNMENT BONDS: May a state tax the interest on municipal bonds from outside the state while exempting residents from tax on in-state bonds, a case with enormous implications for the municipal bond market if the court affirms a Kentucky court ruling that the practice is unconstitutional. Nov. 5. (Department of Revenue of Kentucky v. Davis, 06-666).

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Some major cases the court could decide to hear this term:

D.C. GUN BAN: Both sides want the court to take the appeal of a lower court ruling striking down Washington, D.C.'s ban on handguns as a violation of the Second Amendment. (District of Columbia v. Heller, 07-290).

EXECUTION OF CHILD RAPIST: A Louisiana man is the only person in the country on death row for rape, in this case the sexual assault of his 8-year-old stepdaughter. (Kennedy v. Louisiana, 07-343).

    Major Cases to Be Heard by Supreme Court, NYT, 29.9.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Glance.html

Texas Planning New Execution Despite Ruling

September 29, 2007
The New York Times
By RALPH BLUMENTHAL and LINDA GREENHOUSE

HOUSTON, Sept. 28 — A day after the United States Supreme Court halted an execution in Texas at the last minute, Texas officials made clear on Friday that they would nonetheless proceed with more executions in coming months, including one next week.

Though several other states are halting lethal injections until it is clear whether they are constitutional, Texas is taking a different course, risking a confrontation with the court.

“The Supreme Court’s decision to stay convicted murderer Carlton Turner’s execution will not necessarily result in an abrupt halt to Texas executions,” said Jerry Strickland, a spokesman for Attorney General Greg Abbott of Texas. “State and federal courts will continue to address each scheduled execution on a case-by-case basis.”

Shortly before midnight on Thursday, the Supreme Court stayed the execution of Mr. Turner, who had been scheduled to become the 26th Texas inmate executed this year by lethal injection in Huntsville.

Although the court gave no reason for its order, Mr. Turner, convicted of murdering his adoptive parents in 1998, had appealed to the court after it agreed Tuesday to consider the constitutionality of lethal injection, the most commonly used method of execution in the United States.

Several legal experts said the Supreme Court reprieve would be seen by most states as a signal to halt all executions until the court determined, probably some time next year, whether the current chemical formulation used for lethal injections amounts to cruel and unusual punishment barred by the Eighth Amendment.

Eleven states had halted executions for that reason. On Thursday, Alabama stayed an execution for 45 days to come up with a new formula.

“There is a momentum quality to this,” said Douglas A. Berman, a law professor at Ohio State University who has a blog, Sentencing Law and Policy. “Not only the Supreme Court granting the stay, but also the Alabama governor doing a reprieve that is likely to lead to other states with executions on the horizon waiting to see what the Supreme Court does. I’ll be surprised if many, and arguably if any states other than Texas, go through with executions this year.”

On his blog on Friday, Professor Berman predicted that there would be few if any executions in the country for the next 9 to 18 months, while the court deliberates and, later, as lower courts parse the meaning of its eventual ruling.

Texas, which has a history of confrontations with the Supreme Court over its prerogatives in criminal justice, does not appear interested in waiting. That forces lawyers for condemned prisoners to appeal each case as high as the Supreme Court.

Four more executions are scheduled in Texas over the next five months. The next inmate, who is to be executed, on Oct. 3, is Heliberto Chi, 28, a Honduran convicted of murdering the manager of a men’s clothing store in a Dallas suburb, Arlington, in a robbery in 2001.

A lawyer here who represents Hondurans in the United States, Terence O’Rourke, has said Mr. Chi’s execution would violate international law.

Mr. Chi’s lawyers are almost certain to appeal to the Supreme Court on the same grounds as Mr. Turner, also 28, used in his successful appeal. The court said this week that it would consider the legality of the injection formula used in Kentucky. Texas uses a virtually identical formula.

Andrea Keilen, executive director of the Texas Defender Service, a law firm that represents prisoners, said the message of the reprieve on Thursday was clear. “In the coming months,” Ms. Keilen said, “lethal injection could be found to be cruel and unusual punishment, and Texas should wait for that decision instead of proceeding with potentially unconstitutional executions.”

David R. Dow, a law professor at the University of Houston who handled Mr. Turner’s appeal, said it was still too early to proclaim that a de facto national moratorium was in place. If Mr. Chi’s case goes to the high court and it issues a stay, Professor Dow said, that would clearly indicate that the justices will grant such appeals until a final decision is made.

He said he expected the Texas Court of Criminal Appeals to agree eventually and begin granting the stays itself, removing the need to go to the Supreme Court. The Texas court split, 5 to 4, on Thursday in denying Mr. Turner’s appeal.

A similar de facto moratorium on executions was in place for several years in the late 1960s and early ’70s, as it became apparent that the Supreme Court was preparing to rule on the constitutionality of the death penalty. There was nothing official, but lower courts routinely delayed their cases or granted stays of execution.

The court’s eventual ruling, in Furman v. Georgia in 1972, did end capital punishment in the United States for four years, until the court approved new state death penalty laws in a series of cases in 1976.

The current challenge to the death penalty is on a much less fundamental level. Even if the Supreme Court rules in favor of the two Kentucky inmates who brought the challenge to lethal injection, the result will not be to overturn any death sentences, but rather, at the most, to require a different method to carry them out.

The stay for the Texas execution was issued two days after the court did not stop Texas from executing another inmate, Michael Richard, leading to some confusion about its intentions.

Lawyers in the case on Tuesday said their appeal had been turned down because of an unusual series of procedural problems.

Professor Dow said the computers crashed at the Texas Defender Service in Houston while lawyers were rewriting his appeal to take advantage of the high court’s unexpected interest in lethal injection.

Because of the resulting delay, the lawyers missed by 20 minutes the 5 p.m. filing deadline at the Texas Court of Criminal Appeals in Austin, where the appeal had to go first before moving to the Supreme Court.

The Texas court refused their pleas to remain open for the extra minutes. Because the lawyers missed that crucial step, Professor Dow said, the Supreme Court had to turn down the appeal, and Mr. Richard was executed.

But on Thursday, with a more carefully crafted appeal for Mr. Turner, and the Texas court’s closely split rejection, the Supreme Court called a halt to another lethal injection.
 

Ralph Blumenthal reported from Houston, and Linda Greenhouse from Washington. Maureen Balleza contributed reporting from Houston.

    Texas Planning New Execution Despite Ruling, NYT, 29.9.2007, http://www.nytimes.com/2007/09/29/us/29lethal.html?hp

Supreme Court Spares Texas Killer

September 28, 2007
By THE ASSOCIATED PRESS
Filed at 2:42 a.m. ET
The New York Times

HUNTSVILLE, Texas (AP) -- A man condemned for killing his parents avoided the nation's busiest death chamber Thursday night when he won a reprieve from the U.S. Supreme Court, which had already agreed to review another state's lethal injection procedures.

Attorneys for Carlton Turner Jr., 28, had appealed to the high court hoping that its planned review of lethal injection procedures in Kentucky, the same process used in Texas, could keep him alive.

His case is being watched as an indicator of whether executions in Texas could be halted until the court rules on the Kentucky case next year.

In a brief order, the court said it had granted his stay of execution but made no mention of its reasons for stopping the punishment. The order came less than two hours before the death warrant would have expired at midnight CDT.

''All I can say is all glory to God,'' Turner told prison officials as he was being returned to death row, in another prison about 45 miles east of Huntsville.

The order followed a decision earlier in the day by Alabama Gov. Bob Riley to stay the execution of a contract killer hours before it was to have been carried out, so the inmate could be put to death using a new lethal injection formula the governor had ordered just a day before.

Turner would have been the 27th Texas inmate to be executed this year and the second this week.

After state courts earlier Thursday refused to halt the punishment, Turner's lawyers went to the Supreme Court, which on Tuesday agreed to review an appeal from two condemned inmates in Kentucky who argued that the three-drug process used in lethal injection is unconstitutionally cruel. The same procedure is used in Texas.

''The inmate will be forced into a chemical straitjacket, unable to express the fact of his suffocation,'' the appeal in Turner's case asserted.

Turner's lawyers went early Thursday to his trial court judge with a request to withdraw the execution order. When that failed, they went to the Texas Court of Criminal Appeals, which voted 5-4 to refuse to stop the punishment. The case then went to the Supreme Court.

Turner was 19 when authorities said he shot Carlton Turner Sr., 43, and Tonya Turner, 40, several times in the head. He then bought new clothes and jewelry and continued living in the family's Irving home.

From death row last week, Turner told The Associated Press he didn't find the prospect of death frightening but was concerned about possible pain from the lethal injection.

''The only thing I worry about is when the process is starting, the suffocation and pain if the anesthesia doesn't work,'' he said.

In Alabama, Riley said he issued the 45-day stay of Tommy Arthur's execution only to allow time for the new lethal-injection procedures to be put in place. The changes are designed to make sure the inmate is unconscious when given drugs to stop the heart and lungs.

Riley said evidence is ''overwhelming'' that Arthur is guilty ''and he will be executed for his crime.'' The governor encouraged the attorney general's office to ask the Alabama Supreme Court to set another execution date ''as soon as possible.''

Assistant Attorney General Clay Crenshaw said the request would be filed with the court Friday.

Before Riley issued his stay, state officials had said they intended to execute Arthur at 6 p.m. Thursday, even though the changes Riley ordered could not be implemented by then.

They said the procedures already in place were constitutional, though Arthur's attorney, Suhana Han, contended that Riley's order to change the protocol amounted to the state conceding that its execution procedure was deficient. Han did not immediately return a phone message seeking comment Thursday.

Arthur, 65, was sentenced to death for the Feb. 1, 1982, killing of Troy Wicker, 35, of Muscle Shoals. The victim's wife, Judy Wicker, testified she had sex with Arthur and paid him $10,000 to kill her husband, who was shot in the face as he lay in bed.

Arthur was visiting with his daughter when he learned of the stay in a call from his attorney, prison system spokesman Brian Corbett said.

Like Turner, Arthur had asked the U.S. Supreme Court for a stay pending its ruling on the Kentucky case. The Alabama Supreme Court had declined to grant a stay Wednesday.

The wife of Arthur's victim was given a life sentence for her part in the murder and paroled after 10 years behind bars.

In a statement, Peter Neufeld, co-director of the Innocence Project, urged Riley to use the next 45 days to allow DNA testing on evidence from Arthur's trial.

''Gov. Riley said last week that DNA testing was only a tactic to delay this execution. It's not. Now that the execution is delayed for other reasons, DNA testing should be started immediately,'' Neufeld said.

Another lethal-injection lawsuit, filed by a convicted ax murderer on death row on Delaware's death row, had been scheduled for trial Oct. 9. A federal judge postponed the trial Wednesday, citing the pending Supreme Court case.

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Associated Press writer Garry Mitchell in Atmore, Ala., contributed to this report.

    Supreme Court Spares Texas Killer, NYT, 28.9.2007, http://www.nytimes.com/aponline/us/AP-Execution-Lethal-Injection.html

Court to Consider Lethal Injection

September 25, 2007
By THE ASSOCIATED PRESS
Filed at 12:17 p.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court on Tuesday agreed to consider the constitutionality of lethal injections in a case that could affect the way inmates are executed around the country.

The high court will hear a challenge from two inmates on death row in Kentucky -- Ralph Baze and Thomas Clyde Bowling Jr. -- who sued Kentucky in 2004, claiming lethal injection amounts to cruel and unusual punishment.

Baze has been scheduled for execution Tuesday night, but the Kentucky Supreme Court halted the proceedings earlier this month.

The U.S. Supreme Court has previously made it easier for death row inmates to contest the lethal injections used across the country for executions.

But until Tuesday, the justices had never agreed to consider the fundamental question of whether the mix of drugs used in Kentucky and elsewhere violates the Eighth Amendment's ban on cruel and unusual punishment.

All 37 states that perform lethal injections use the same three-drug cocktail, but at least 11 states suspended its use after opponents alleged it was ineffective and cruel. The three drugs consist of an anesthetic, a muscle paralyzer, and a substance to stop the heart. Death penalty foes have argued that if the condemned prisoner is not given enough anesthetic, he can suffer excruciating pain without being able to cry out.

U.S. District Judge Aleta Trauger ruled last week that Tennessee's method of lethal injection is unconstitutional and ordered the state not to execute a death row inmate. The state is still deciding whether to appeal the judge's ruling, but agreed to stop a pending execution.

A ruling from California in the case of convicted killer Michael Morales resulted in the statewide suspension of executions.

States began using lethal injection in 1978 as an alternative to the historic methods of execution: electrocution, gassing, hanging and shooting. Since the death penalty resumed in 1977, 790 of 958 executions have been by injection.

Baze and Bowling sued in 2004 and a trial was held the following spring. A state judge upheld the use of lethal injection and the Kentucky Supreme Court affirmed that decision. The appeal taken up Tuesday by the U.S. Supreme Court stems from that decision.

''This is probably one of the most important cases in decades as it relates to the death penalty,'' said David Barron, the public defender who represents Baze and Bowling.

Baze, 52, has been on death row for 14 years. He was sentenced for the 1992 shooting deaths of Powell County Sheriff Steve Bennett and Deputy Arthur Briscoe.

Bennett and Briscoe were serving warrants on Baze when he shot them. Baze has said the shootings were the result of a family dispute that got out of hand and resulted in the sheriff being called.

Bowling was sentenced to death for killing Edward and Tina Earley and shooting their 2-year-old son outside the couple's Lexington, Ky., dry-cleaning business in 1990. Bowling was scheduled to die in November 2004, but a judge stopped it after Bowling and Baze sued over the constitutionality of lethal injection.

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Associated Press writer Brett Barrouquere reported from Louisville, Ky.

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On the Net:

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

    Court to Consider Lethal Injection, NYT, 25.9.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Lethal-Injection.html

Supreme Court

to Hear Case on Voter ID Law

September 25, 2007
The New YorkTimes
By DAVID STOUT

WASHINGTON, Sept. 25 — With the 2008 presidential and Congressional elections on the horizon, the Supreme Court agreed today to consider whether voter-identification laws unfairly keep poor people and members of minority groups from going to the polls.

The justices will hear arguments from an Indiana case, in which a federal district judge and a panel of the Court of Appeals for the Seventh Circuit in January upheld a state law requiring, with certain exceptions, that someone wanting to vote in person in a primary or general election present a government-issued photo identification. Presumably, the court would rule on the case by June.

Before the law was enacted in 2005, an Indiana voter was required only to sign a book at the polling place, where a photocopy of the voter’s signature was kept on file.

Voter-identification requirements have divided Democrats and Republicans, and the courts, for years. In July, the Michigan Supreme Court upheld that state’s identification law. A month earlier, the Georgia high court threw out a challenge to that state’s identification law. But last year, the Missouri Supreme Court overturned a state voter-identification statute. Other states are considering various identification statutes.

Election-law experts had hoped that the United States Supreme Court would take the Indiana case because that state has perhaps the toughest law in the country. “The court better resolve this question before ballots start getting counted next fall,” Pamela Karlan, a Stanford University law professor, told The Associated Press.

In general, Republicans argue that identification laws reduce voter fraud, while Democrats oppose them on grounds that they lower the turnout among people who tend to vote Democratic.

Coincidentally or otherwise, the two Seventh Circuit judges who voted to uphold the Indiana law, Richard A. Posner and Diane S. Sykes, were put on the bench by Republican presidents (Ronald Reagan and President George W. Bush, respectively), while the one dissenting judge, Terence T. Evans, was elevated by President Clinton.

Writing for the majority, Judge Posner acknowledged that the Indiana law favors one party. “No doubt most people who don’t have Photo ID are low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates,” he wrote.

But the purpose of the law is to reduce voting fraud, “and voting fraud impairs the right of legitimate voters to vote by diluting their votes — dilution being recognized to be an impairment of the right to vote,” Judge Posner said. And assertions that many people will be disenfranchised, or that there is no significant voter-fraud problem in Indiana, are based on unreliable data and “may reflect nothing more than the vagaries of journalists’ and other investigators’ choice of scandals to investigate,” the judge held.

In dissent, Judge Evans wrote that the Indiana law imposed an unconstitutional burden on some eligible voters. “Let’s not beat around the bush,” he wrote. “The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.”

Arguments that the law’s purpose is to stamp out voter fraud amount to a mere “fig leaf of respectability,” Judge Evans wrote. Furthermore, he noted, the law is too extreme in view of the fact that no one in Indiana has ever been prosecuted for voter fraud. “Is it wise to use a sledgehammer to hit either a real or imaginary fly on a glass coffee table?” he asked rhetorically. “I think not.”

    Supreme Court to Hear Case on Voter ID Law, NYT, 25.9.2007, http://www.nytimes.com/2007/09/25/washington/25cnd-scotus.html?hp

Legal Battle

Resuming on Guantánamo Detainees

September 2, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Sept. 1 — The legal battle over the rights of the hundreds of men held as enemy combatants at Guantánamo Bay has lasted more than five years, including two rounds in the Supreme Court. Now, as the parties prepare for their next Supreme Court confrontation later this fall, the arguments have come full circle to where they began: over the role of the federal courts.

The Military Commissions Act of 2006, which Congress passed in its final weeks under Republican control in order to negate the Supreme Court’s most recent ruling on behalf of a Guantánamo detainee, stripped all courts of jurisdiction “to hear or consider” challenges to any alien detainee’s continued detention. In a surprising about-face the day after it concluded its term in June, the Supreme Court accepted renewed appeals on behalf of two groups of detainees and agreed to decide whether the measure is constitutional.

Lawyers for the detainees and for dozens of organizations and individuals supporting them filed their briefs late last month. Two dozen briefs poured into the court. The government’s brief and those of any supporting groups are due by Oct. 9, with the argument likely to be scheduled soon after Thanksgiving.

The Supreme Court, of course, is only one forum among several in which the fate of the Guantánamo detainees is being debated. Democrats in Congress have tried, without success so far, to restore the federal courts’ jurisdiction to hear the detainees’ challenges to their confinement. And voices within the Bush administration have urged consideration of closing the detention camp altogether.

Further, the new case, Boumediene v. Bush, No. 06-1195, presents only one of the numerous legal issues raised by the administration’s approach. A challenge to the military commissions, before which detainees who have been formally charged with crimes are due to be placed on trial, is proceeding on a separate track and is not at issue in this case.

Nonetheless, it is clear from the briefs filed so far that this case, for the coming months at least, provides the lens through which the interested world will view Guantánamo Bay.

A brief filed by 383 European parliamentarians tells the justices that the case “boils down to the simple, but crucial, question of whether the system of legal norms that purports to restrain the conduct of states vis-à-vis individuals within their power will survive the terrorist threat.” A brief filed on behalf of bar associations in the 53 countries of the British Commonwealth asserts that if Guantánamo Bay were under British rather than American control, there is no doubt that “it would be the English courts and not the executive which would be responsible for determining any issue relating to any ‘enemy’ status alleged against the detained persons.” That view of the ancient writ of habeas corpus had gelled in the English legal system by the mid-18th century.

Those filing briefs represent a fairly broad range of the political spectrum, from civil liberties and human rights groups like the American Civil Liberties Union and Amnesty International to the Cato Institute, a libertarian research organization. Cato urges the court to “begin with first principles” and to view habeas corpus in the context in which it evolved: as a judicial check on executive power and thus a core component of the separation of powers.

A petition for a writ of habeas corpus is a jurisdictional vehicle that brings a prisoner before a judge to contest the validity of his confinement. From the start, the availability of habeas corpus has been at the heart of the debate over the legal status of the Guantánamo detainees. The administration chose the Navy’s base in Cuba in the first place because it assumed that the federal courts would not view their jurisdiction as extending to a foreign country.

But the Supreme Court ruled otherwise in Rasul v. Bush in 2004, finding that the terms of the lease on the naval base gave the United States a degree of control that made the property the functional equivalent of United States territory and thus gave federal courts the jurisdiction to rule on habeas corpus petitions filed by those detained there.

The Rasul decision, a major setback for the administration, has led by incremental steps, three years later, back to the Supreme Court’s door. The detainees’ lawyers argue that Congress, by removing habeas corpus jurisdiction, and the federal appeals court here, in upholding that action by a 2-to-1 decision in February, both defied the Supreme Court’s ruling.

The Military Commissions Act, the lawyers maintain, amounted to a “suspension” of habeas corpus without meeting the conditions set by the Constitution for such a drastic action. Article I, Section 9, which consists of a list of actions that Congress is forbidden to take, says that habeas corpus “shall not be suspended” except in “cases of rebellion or invasion.” Such conditions existed in 1863, when Congress suspended the writ during the Civil War, but no one argues that they exist today.

The Supreme Court has taken a somewhat more flexible view of the “suspension clause,” ruling in two 20th century cases that there could be acceptable substitutes for habeas corpus as long as the substitutes offered remedies “commensurate” with those that prisoners could receive from a traditional writ. A central legal issue in the new case is whether an acceptable substitute in fact exists.

In July 2004, nine days after the Rasul decision, the Pentagon set up a procedure, known as a combatant status review tribunal, for determining whether a detainee had been properly classified as an enemy combatant. Detainees, who are not represented by lawyers before these tribunals, may file an appeal of the determination at the federal appeals court here. The administration has argued in earlier phases of the case that this process is an adequate substitute.

The recently filed briefs argue strenuously that the tribunals and their review process fall far short by, among other shortcomings, failing to give detainees access to the evidence needed to rebut the government’s charges. A brief filed by retired senior military officers calls the process “little more than a facade” that violates basic principles of military law.

Perhaps the most striking of all the briefs is the one filed by Senator Arlen Specter, Republican of Pennsylvania. The withdrawal of habeas corpus, he tells the justices, “is anathema to fundamental liberty interests,” and the combatant status review tribunal process is so deeply flawed that it “demands robust habeas review.”

Mr. Specter was chairman of the Judiciary Committee when the Military Commissions Act was passed. He was, in fact, one of the 65 senators who voted for it.

Legal Battle Resuming on Guantánamo Detainees, NYT, 2.9.2007, http://www.nytimes.com/2007/09/02/washington/02scotus.html