History > 2007 > USA > Constitution, laws

Supreme Court (IV)

Voter ID Law Heads to Supreme Court

December 30, 2007
Filed at 12:07 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The dispute over Indiana's voter identification law that is headed to the Supreme Court next week is as much a partisan political drama as a legal tussle.

The mainly Republican backers of the law, including the Bush administration, say state-produced photo identification is a prudent measure to cut down on vote fraud -- even though Indiana has never had a prosecution of the kind of fraud the law is supposed to prevent.

The opponents, mainly Democrats, view voter ID a modern-day poll tax that disproportionately affect poor, minority and elderly voters -- who tend to back Democrats. Yet, a federal judge found that opponents of the law were unable to produce evidence of a single Indiana resident who had been barred from voting because of the law.

The Supreme Court, which famously split 5-4 in the case that sealed the 2000 presidential election for George Bush, will take up the Indiana law on January 9, just as the 2008 presidential primaries are getting under way.

A decision should come by late June, in time to be felt in the November elections in Indiana and in Georgia, the other state with a strict photo ID requirement, as well as in a handful of other states.

The justices will be asked to decide whether the law is an impermissible attempt to discourage certain voters or a reasonable precaution among several efforts aimed at cutting down on illegal voting.

''There's more than a little bit of irony in going to the Supreme Court and asking them to rise above partisan politics in election cases,'' said Richard Hasen, an election law expert at Loyola Law School in Los Angeles.

The court's decision in the disputed 2000 election is partly responsible for the ensuing increase in election-related lawsuits and the loss of confidence by some groups in the voting system, Hasen said. Yet, the other branches of government seem more politicized than ever, leaving the court as the best option despite the 2000 election dispute, he said.

Indiana argues that demands for identification are frequent in today's society, and producing a photo ID at polling places is hardly onerous.

''In light of such widespread demands for ... government-issued photo identification, it is almost shocking that in late 2007 Indiana can be characterized as even unusual in requiring it at the polls,'' the state said in its court filing.

The Bush administration maintains states need not wait for fraud to occur to take action to prevent it. ''The state's interest in deterring voter fraud before it happens is evident from the monumental harm that can come from such fraud,'' the government said in its supporting brief.

The law's opponents counter that an ID may be just one card among many in most people's wallets, but some groups are far less likely to have them.

Homeless people wanting to vote might face the most difficulty under the law. While the state will provide a voter ID card free of charge to the poor, applicants still must have a birth certificate or other documentation to get the ID card.

''I think it's wonderful, but if you can't prove who you are, you can't get an ID,'' said Carter Wolf, executive director of Horizon House, which provides services to homeless people.

Getting a birth certification isn't always easy, Wolf said, or cheap. Sometimes it can cost $60 to $70 to get a birth certificate from other states.

''Obtaining a photo identification card under Indiana law requires documentation that is difficult, if not impossible, for many homeless individuals to provide,'' Carter Phillips, a leading Supreme Court lawyer, wrote in a supporting brief.

Even without an ID, indigent people can cast provisional ballots, then show up within 10 days at county offices and sign a form attesting to their vote.

But the Marion County Election Board, which includes Indianapolis, said just two of 34 voters who cast provisional ballots because they lacked voter ID showed up at county offices to validate their vote in the 2007 municipal election. Their signatures all matched those on file, but could not be counted because of the photo ID requirement.

Hasen said while neither side has abundant evidence to back its position the fraud argument is far less plausible than the claim that and ID requirement will reduce voter turnout.

Someone wanting to sway an election through fraud would be unlikely to get individuals to show up at the polls, pretend to be someone else and then ask them to cast a secret, unverifiable ballot, said Hasen.

But he said, ''When voting is more difficult, people tend to not vote.''

Opponents to the law argue the real potential for voter fraud lies in the filing of absentee ballots and that Indiana has made it easier to vote absentee in recent years.

The cases are Crawford v. Marion County Election Board, 07-21, and Indiana Democratic Party v. Rokita, 07-25.

    Voter ID Law Heads to Supreme Court, NYT, 30.12.2007, http://www.nytimes.com/aponline/us/AP-Voter-Identification.html

Court to Release Audio in Death Case

December 20, 2007
Filed at 12:10 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court said Thursday it will quickly release audio tapes after the Jan. 7 argument over the death penalty.

The death row cases of Kentucky inmates Ralph Baze and Thomas Clyde Bowling Jr. present the question of whether the mix of drugs and the way they are administered in executions in three dozen states violate the Constitution.

The last time the court considered a challenge to a method of execution was in 1879, when it upheld the use of a firing squad in Utah.

The immediate, same-day release of audio tapes following arguments in major cases started in the 2000 presidential election, when the justices decided appeals of the Florida recount controversy in favor of George W. Bush.

On Dec. 3, the court provided same-day audio from arguments over the rights of prisoners who have been detained by the U.S. military at Guantanamo Bay, Cuba.

The court records arguments and ordinarily releases them at the end of each term. With television cameras barred from the court and reporters prohibited from using tape recorders, the availability of audio provides the public a chance to hear the justices at work.

The case is Ralph Baze and Thomas C. Bowling, Petitioners v. John D. Rees, Commissioner, Kentucky Department of Corrections, et al., 07-5439.

------

On the Net:

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

    Court to Release Audio in Death Case, NYT, 20.12.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Audio.html

Op-Ed Contributor

Clause and Effect
 

December 16, 2007
The New York Times
By ADAM FREEDMAN

LAST month, the Supreme Court agreed to consider District of Columbia v. Heller, which struck down Washington’s strict gun ordinance as a violation of the Second Amendment’s “right to keep and bear arms.”

This will be the first time in nearly 70 years that the court has considered the Second Amendment. The outcome of the case is difficult to handicap, mainly because so little is known about the justices’ views on the lethal device at the center of the controversy: the comma. That’s right, the “small crooked point,” as Richard Mulcaster described this punctuation upstart in 1582. The official version of the Second Amendment has three of the little blighters:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The decision invalidating the district’s gun ban, written by Judge Laurence H. Silberman of the United States Court of Appeals for the District of Columbia Circuit, cites the second comma (the one after “state”) as proof that the Second Amendment does not merely protect the “collective” right of states to maintain their militias, but endows each citizen with an “individual” right to carry a gun, regardless of membership in the local militia.

How does a mere comma do that? According to the court, the second comma divides the amendment into two clauses: one “prefatory” and the other “operative.” On this reading, the bit about a well-regulated militia is just preliminary throat clearing; the framers don’t really get down to business until they start talking about “the right of the people ... shall not be infringed.”

The circuit court’s opinion is only the latest volley in a long-simmering comma war. In a 2001 Fifth Circuit case, a group of anti-gun academics submitted an amicus curiae (friend of the court) brief arguing that the “unusual” commas of the Second Amendment support the collective rights interpretation. According to these amici, the founders’ use of commas reveals that what they really meant to say was “a well-regulated militia ... shall not be infringed.”

Now that the issue is heading to the Supreme Court, the pro-gun American Civil Rights Union is firing back with its own punctuation-packing brief. Nelson Lund, a professor of law at George Mason University, argues that everything before the second comma is an “absolute phrase” and, therefore, does not modify anything in the main clause. Professor Lund states that the Second Amendment “has exactly the same meaning that it would have if the preamble had been omitted.”

Refreshing though it is to see punctuation at the center of a national debate, there could scarcely be a worse place to search for the framers’ original intent than their use of commas. In the 18th century, punctuation marks were as common as medicinal leeches and just about as scientific. Commas and other marks evolved from a variety of symbols meant to denote pauses in speaking. For centuries, punctuation was as chaotic as individual speech patterns.

The situation was even worse in the law, where a long English tradition held that punctuation marks were not actually part of statutes (and, therefore, courts could not consider punctuation when interpreting them). Not surprisingly, lawmakers took a devil-may-care approach to punctuation. Often, the whole business of punctuation was left to the discretion of scriveners, who liked to show their chops by inserting as many varied marks as possible.

Another problem with trying to find meaning in the Second Amendment’s commas is that nobody is certain how many commas it is supposed to have. The version that ended up in the National Archives has three, but that may be a fluke. Legal historians note that some states ratified a two-comma version. At least one recent law journal article refers to a four-comma version.

The best way to make sense of the Second Amendment is to take away all the commas (which, I know, means that only outlaws will have commas). Without the distracting commas, one can focus on the grammar of the sentence. Professor Lund is correct that the clause about a well-regulated militia is “absolute,” but only in the sense that it is grammatically independent of the main clause, not that it is logically unrelated. To the contrary, absolute clauses typically provide a causal or temporal context for the main clause.

The founders — most of whom were classically educated — would have recognized this rhetorical device as the “ablative absolute” of Latin prose. To take an example from Horace likely to have been familiar to them: “Caesar, being in command of the earth, I fear neither civil war nor death by violence” (ego nec tumultum nec mori per vim metuam, tenente Caesare terras). The main clause flows logically from the absolute clause: “Because Caesar commands the earth, I fear neither civil war nor death by violence.”

Likewise, when the justices finish diagramming the Second Amendment, they should end up with something that expresses a causal link, like: “Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed.” In other words, the amendment is really about protecting militias, notwithstanding the originalist arguments to the contrary.

Advocates of both gun rights and gun control are making a tactical mistake by focusing on the commas of the Second Amendment. After all, couldn’t one just as easily obsess about the founders’ odd use of capitalization? Perhaps the next amicus brief will find the true intent of the amendment by pointing out that “militia” and “state” are capitalized in the original, whereas “people” is not.

Adam Freedman, the author of “The Party of the First Part: The Curious World of Legalese,” writes the Legal Lingo column for New York Law Journal Magazine.

    Clause and Effect, NYT, 16.12.2007, http://www.nytimes.com/2007/12/16/opinion/16freedman.html

Editorial

Justice in Sentencing

December 12, 2007
The New York Times

With a pair of 7-2 rulings this week, the Supreme Court struck a blow for basic fairness and judicial independence. The court restored a vital measure of discretion to federal trial judges to impose sentences based on their assessment of a particular crime and defendant rather than being forced to adhere to overarching guidelines.

Beyond that, one of the rulings highlighted the longstanding injustice of federal guidelines and statutes imposing much longer sentences for offenses involving crack cocaine, which is most often found in impoverished communities, than for offenses involving the chemically identical powdered cocaine, which is popular among more affluent users.

The rulings provide fresh impetus for Congress to rewrite the grotesquely unfair crack cocaine laws on which the federal sentencing guidelines are partly based. Those laws are a relic of the 1980s, when it was widely but wrongly believed that the crack form of cocaine was more dangerous than the powder form. We are pleased that the United States Sentencing Commission recently called for reducing sentences for some categories of offenders and has now called for applying the change retroactively. The real work still lies with Congress, which needs to rewrite the law.

Building on a 2005 decision that held the sentencing guidelines to be advisory rather than mandatory, the new rulings affirm that the guidelines are but one factor to be considered by a trial judge in arriving at an individual sentence, and that an appeals court must have a strong reason to overturn that sentence.

In one of the cases, the justices supported a district judge in Virginia who gave a military veteran convicted of crack dealing a sentence of 15 years, rather than the 19-22 years that the guidelines recommended. The ruling described the federal crack law as “disproportionate and unjust.” Writing for the majority, Justice Ruth Bader Ginsburg stated that it would not be an abuse of a discretion for a trial judge to conclude that the crack/powder disparity resulted in a longer-than-necessary sentence for a particular defendant.

In the other case, the court found that a trial judge was within his rights to impose a light sentence on a man briefly involved in selling the drug Ecstasy while in college. In reviewing sentences, wrote Justice John Paul Stevens for the majority, appellate courts must apply a deferential abuse-of-discretion standard to trial judges’ decisions.

There is a danger that the new procedures outlined by the court could end up making federal sentences unfairly disparate across the country, undermining one of the important objectives of having sentencing guidelines in the first place. If that happens, Congress will have to address the problem. For the moment, the Supreme Court’s latest adjustment in sentencing strikes us as a positive development, one with much potential for advancing justice.

    Justice in Sentencing, NYT, 12.12.2007, http://www.nytimes.com/2007/12/12/opinion/12wed1.html

Supreme Court Says Crack Sentences Can Be Reduced

December 10, 2007
Filed at 12:03 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court on Monday said judges may impose shorter prison terms for crack cocaine crimes, enhancing judicial discretion to reduce the disparity between sentences for crack and cocaine powder.

By a 7-2 vote, the court said that a 15-year sentence given to Derrick Kimbrough, a black veteran of the 1991 war with Iraq, was acceptable, even though federal sentencing guidelines called for Kimbrough to receive 19 to 22 years.

''In making that determination, the judge may consider the disparity between the guidelines' treatment of crack and powder cocaine offenses,'' Justice Ruth Bader Ginsburg said in her majority opinion.

The decision was announced ahead of a vote scheduled for Tuesday by the U.S. Sentencing Commission, which sets the guidelines, that could cut prison time for up to an estimated 19,500 federal inmates convicted of crack crimes.

The Sentencing Commission recently changed the guidelines to reduce the disparity in prison time for the two crimes. New guidelines took effect Nov. 1 after Congress took no action to overturn the change. Tuesday's vote is whether to apply the guidelines retroactively.

In a separate sentencing case that did not involve crack cocaine, the court also said judges have discretion to impose more lenient sentences than federal guidelines recommend.

The cases are the result of a decision three years ago in which the justices ruled that judges need not strictly follow the sentencing guidelines. Instead, appellate courts would review sentences for reasonableness, although the court has since struggled to define what it meant by that term.

The guidelines were established by the Sentencing Commission, at Congress' direction, in the mid-1980s to help produce uniform punishments for similar crimes.

Justice Samuel Alito, who dissented with Justice Clarence Thomas in both cases, said that after Tuesday's decisions, ''Sentencing disparities will gradually increase.''

Kimbrough's case did not present the justices with the ultimate question of the fairness of the disparity in crack and powder cocaine sentences. Congress wrote the harsher treatment for crack into a law that sets a mandatory minimum five-year prison sentence for trafficking in 5 grams of crack cocaine or 100 times as much cocaine powder. The law also sets maximum terms.

Seventy percent of crack defendants are given the mandatory prison terms.

Kimbrough is among the remaining 30 percent who, under the guidelines, get even more time in prison because they are convicted of trafficking in more than the amount of crack that triggers the minimum sentences.

''A reviewing court could not rationally conclude that it was an abuse of discretion'' to cut four years off the guidelines-recommended sentence for Kimbrough, Ginsburg said.

In the other case, the court, also by a 7-2 vote, upheld a sentence of probation for Brian Gall for his role in a conspiracy to sell 10,000 pills of ecstasy. U.S. District Judge Robert Pratt of Des Moines, Iowa, determined that Gall had voluntarily quit selling drugs several years before he was implicated, stopped drinking, graduated from college and built a successful business. The guidelines said Gall should have been sent to prison for 30 to 37 months.

''The sentence imposed by the experienced district judge in this case was reasonable,'' Justice John Paul Stevens said in his majority opinion.

Chief Justice John Roberts and Justices Stephen Breyer, Anthony Kennedy, Antonin Scalia, David Souter, Ginsburg and Stevens formed the majority in both cases.

The cases are Kimbrough v. U.S., 06-6330, and Gall v. U.S., 06-7949.

    Supreme Court Says Crack Sentences Can Be Reduced, NYT, 10.12.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Crack-Cocaine.html?hp

Justices to Answer Detainee Rights Question

December 6, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Dec. 5 — When it comes to the rights of the detainees at Guantánamo Bay, the Supreme Court, and not the president or Congress, will have the last word.

That was the clear part of the message to emerge Wednesday from the Supreme Court argument on whether the men held as enemy combatants at the United States naval base in Cuba have been provided with constitutionally adequate means to challenge the legality of their detention.

A majority of the court appeared ready to agree that the detainees were entitled to invoke some measure of constitutional protection. Indeed, these justices seemed to treat that threshold issue as a bridge they had crossed long before they entered the courtroom.

That was the easy part of what the detainees’ lawyer, Seth P. Waxman, called “a particularly easy, straightforward case.” Less clear was what happens next, either procedurally or substantively.

The federal appeals court here ruled in February, in the decision the justices are reviewing, that because the detainees had no constitutional rights in the first place, no problem was posed by a 2006 law that stripped the federal courts of jurisdiction to hear habeas corpus petitions filed by detainees seeking to enforce those rights. The appeals court therefore did not rule on, or even examine in any detail, the procedures Congress set up to provide the detainees with limited rights to challenge their designation as enemy combatants.

Solicitor General Paul D. Clement, urging the court to uphold that ruling, argued that procedures provided by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 were better than adequate. The detainees were getting more access to judicial review, he maintained, than the writ of habeas corpus would have given foreign combatants when the Constitution was adopted.

“This is the remarkable liberalization of the writ, not some retrenchment or suspension of the writ,” Mr. Clement declared.

“Congress here has spoken,” he added. “The political branches have spoken. They have struck a balance. They’ve given these detainees better rights and access to administrative and judicial review.”

As his argument failed to gain traction, he rather remarkably began throwing pieces of it over the side. He even suggested for the first time that under the available procedures, the appeals court would be able to reach the ultimate judgment of ordering a detainee’s release. The detainees’ lawyers have argued that the statutes’ failure to authorize this remedy was a major flaw that condemned detainees to open-ended confinement no matter the outcome of their appeals.

“Certainly,” Mr. Clement said, “if this court thinks that the constitutional line essentially necessitates that the D.C. Circuit have the authority to order a release, there is no obstacle to that.”

By the end of the argument, an intense session that lasted 23 minutes beyond its allotted hour, it seemed most likely that the court would draw a road map for the appeals court to follow in expanding the procedural protections available to the detainees.

The significance of the eventual ruling, due by early summer, will lie in what features the road map contains. And that, in turn, may depend on how far Justice Anthony M. Kennedy is willing to go in joining an opinion that will in all likelihood be joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

These five were the majority in June 2006, when the court in Hamdan v. Rumsfeld invalidated the system of military commissions the Bush administration had set up to try selected detainees for war crimes. They were also in the majority in Rasul v. Bush, in 2004, in which the court ruled that, contrary to the administration’s view, federal judges had jurisdiction to hear cases filed by Guantánamo detainees.

“Aren’t you simply rearguing Rasul?” Justice Souter asked Mr. Clement at one point in a testy tone.

The new case, Boumediene v. Bush, No. 06-1195, concerns the “combatant status review tribunals” the administration has set up to validate the initial determination that a detainee is an enemy combatant. The tribunals are panels of military officers, who are not required to disclose to the detainee details of the evidence or witnesses against him. The military assigns a “personal representative” to each detainee, but defense lawyers may not participate.

Under the Detainee Treatment Act, detainees may appeal the tribunal’s decision to the United States Court of Appeals for the District of Columbia Circuit under circumscribed appellate procedures, including a presumption that the evidence before the tribunal was accurate and complete. The District of Columbia Circuit is currently considering how it will handle these appeals, including such questions as how much of the evidentiary record the government will be required to disclose on appeal.

The details of the tribunal and appeal procedures are relevant to the Supreme Court only insofar as the detainees can claim a right to due process or other constitutional rights that the federal courts historically enforce for prisoners through writs of habeas corpus. The court’s precedents permit substitutes for formal habeas corpus procedures as long as the substitutes offer the same basic protections.

During the argument on Wednesday, the justices’ focus on whether the detainees were being offered an adequate substitute appeared to assume that either a reasonable substitute or habeas corpus itself had to be provided.

Mr. Waxman, the detainees’ lawyer, listed several elements that he said were needed for an adequate substitute: “a fair notice of the fact,” “a fair opportunity to challenge them with the assistance of counsel before a neutral decision maker” and “the remedy of speedy release for somebody who is unlawfully being held in executive detention.”

These were “tried and true established procedures,” Mr. Waxman said, adding, “This court should issue a ruling saying for these people if the writ means anything, the time for experimentation is over.”

Mr. Waxman referred numerous times to the fact that the 37 detainees he represented have been held for nearly six years. After his second reference, Chief Justice John G. Roberts Jr. interjected, “Your argument wouldn’t be any different with respect to the availability of habeas if these people were held for one day, would it?”

Later, the chief justice suggested that the first few years of detention should not count because the procedures under review “weren’t available for the whole six-year period, were they?”

“No, of course not,” Mr. Clement agreed. Alluding to the lapse of time and the multiple rounds of litigation, he continued, “Congress in this area was providing unprecedented review and, of course, when you do something unprecedented, new questions will arise.”

Justice Kennedy, presumed to hold the balance in this case, was the focus of much attention by both sides. His few questions suggested that his main interest was in how far the appeals court might be able to go to remedy any flaws in the existing procedures.

    Justices to Answer Detainee Rights Question, NYT, 6.12.2007, http://www.nytimes.com/2007/12/06/washington/06scotus.html?hp

Supreme Court Weighs Maine’s Tobacco Law

November 29, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Nov. 28 — The latest battleground in the federalism wars at the Supreme Court is an unlikely one: the state of Maine, which is trying to prevent under-age consumers from buying cigarettes over the Internet.

Maine maintains that it is doing nothing more than protecting public health and carrying out the desire of Congress to curb smoking among young people. Its 2003 law requires those who sell tobacco products directly to consumers to use only those delivery services that verify the age of the recipient.

The trucking industry, supported by the federal government, warns to the contrary that the Maine statute opens the door to the very patchwork of conflicting state regulations that Congress meant to pre-empt when it deregulated motor transportation.

Two lower federal courts agreed with the industry, and found that the state law was pre-empted by the Federal Aviation Administration Authorization Act of 1994. In arguments on Wednesday, the Supreme Court appeared inclined to reach the same result.

“What if every state enacted a slightly different law?” Justice Samuel A. Alito Jr. asked Paul Stern, Maine’s deputy attorney general. “Wouldn’t you agree that there would be just the kind of patchwork regulation at the state level that this statute was intended to stop?”

If Maine, or the 38 other states that signed a brief supporting it, had allies on the Supreme Court, those justices did not make themselves known during the argument. Attacks on Maine’s position came from across the court’s spectrum, reflecting that pre-emption cases often do not follow the usual ideological lines.

Justice Stephen G. Breyer told Mr. Stern that while the state’s goal might be a worthy one, the answer was to “convince Congress to pass a law.” He continued, “It’s just that if every state does it differently, it’s going to be a nightmare.”

When Mr. Stern observed that the federal government did not regulate the shipment of tobacco products and that the state law therefore filled “a regulatory void,” Justice Antonin Scalia responded: “Well, maybe because Congress wanted the regulatory void.”

By contrast, the court appeared receptive to the arguments presented on the other side by Beth S. Brinkmann, representing the New Hampshire Motor Transport Association, the industry organization that brought the lawsuit, and by Douglas Hallward-Driemeier, an assistant to the solicitor general, who argued for the federal government that the state law was pre-empted.

Ms. Brinkmann said the state law placed an “enormous” burden on shippers like United Parcel Service and Federal Express. “It’s not flipping a switch to create a new service like this,” she said, adding that “many systems would have to be completely re-engineered to take in new data about age and addressee” to comply with the law’s requirements.

There was some indication during the argument that the impact of the state law might be somewhat more theoretical than real. In 2005, major shippers entered into a settlement with New York State under which they agreed not to deliver cigarettes directly to consumers. The voluntary agreement, referred to as an “assurance of discontinuance,” is in effect nationwide.

New York is one of five states that has a ban on the shipment of cigarettes directly to consumers; the others are Arkansas, Connecticut, Maryland and Ohio.

Several justices sounded puzzled about whether these laws, or the New York agreement with the shippers, might themselves be pre-empted. The question went unanswered.

Questions were also raised about requirements the states might impose on shippers of alcoholic beverages. Ms. Brinkmann said that given the states’ authority under the 21st Amendment to regulate alcohol, the issue was more complex constitutionally than tobacco-related regulation.

The federal law at issue was passed to put motor transportation on the same deregulated footing as the airline industry. Mr. Stern said that Congress was concerned with economic regulation, not regulation for health.

But Justice David H. Souter, clearly unpersuaded, said the issue was whether Congress “intended to permit any regulation with respect to delivery services to survive,” no matter the rationale. “Isn’t that the tough question that you’ve got to face?” he asked.

    Supreme Court Weighs Maine’s Tobacco Law, NYT, 29.11.2007, http://www.nytimes.com/2007/11/29/business/29bizcourt.html

Court Rejects Ala. Death Row Challenge

November 26, 2007
Filed at 10:26 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court on Monday refused to allow a death row inmate to try to prove his innocence through DNA testing.

Thomas Arthur, 65, was sentenced for the 1982 killing of Troy Wicker of Muscle Shoals, Ala. His execution has been set for Dec 6, but is expected to be delayed because of a pending Supreme Court case involving lethal injections.

The victim's wife, Judy Wicker, testified at Arthur's trial that she had sex with him and paid him $10,000 to kill her husband, who was shot in the face as he lay in bed. Earlier at her own trial, Wicker testified that a man burglarizing her home raped her, knocked her unconscious and then shot her husband.

In April, Arthur's lawyers sued the state claiming that the inmate was being deprived of his rights and was entitled to DNA testing of critical pieces of physical evidence, including a rape kit, bloodstained clothing and hairs aimed at showing that someone other than Arthur committed the murder.

The 11th U.S. Circuit Court of Appeals in Atlanta affirmed a federal judge's dismissal of Arthur's lawsuit, citing the authority of federal courts to dismiss such claims that are speculative or are filed too late in proceedings.

Arthur filed his claim five days before the state of Alabama moved to set an execution date.

The case is Arthur v. King, 07-397.

    Court Rejects Ala. Death Row Challenge, NYT, 26.11.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Arthur.html

Court to Consider Investor's 401(k) Suit

November 25, 2007
Filed at 7:55 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- James LaRue says he lost $150,000 when his instructions to his employer on where to invest money in his retirement plan were ignored. Now the Supreme Court will decide whether a federal pension-protection law gives LaRue the right to sue to recover his losses. Arguments in the case were scheduled for Monday.

LaRue, who used to work at a management consulting firm, is among the 42 million workers who contributed to a 401(k) retirement plan, one of 250,000 across the country. At issue in LaRue's case are the limits to lawsuits under the Employee Retirement Income Security Act. It regulates private-sector retirement plans holding over $5.5 trillion in assets, including $2 trillion in 401(k) plans.

Unlike traditional pension plans, participants in 401(k) plans do not know how much money they will receive in retirement. It depends on how well their chosen investments have performed.

ERISA was designed to safeguard pension fund money from misappropriation.

It is less clear what action an individual account holder can take against a retirement plan when the conduct at issue is less than criminal.

LaRue says that in 2000 and 2001 he requested changes in his investment allocations in mutual funds that were available to participants in his company's 401(k) plan. He says the requests were not honored.

''I wanted to sell stocks and move to cash because I thought the market would head down. I was right,'' LaRue said in a telephone interview.

LaRue sued in 2004, saying he had tried to avoid going to court and instead sought to reach a settlement with his former employers. He was unsuccessful, as it turned out.

Business groups assign a different motive to the delay in filing the second suit, saying LaRue was waiting to see how the market performed. If the value of his investment went up, he made money. If it went down, he would recover his losses in court.

    Court to Consider Investor's 401(k) Suit, NYT, 25.11.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Pension.html

Justices Will Decide if Handgun Kept at Home Is Individual Right

November 21, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Nov. 20 — The Supreme Court announced Tuesday that it would decide whether the Constitution grants individuals the right to keep guns in their homes for private use, plunging the justices headlong into a divisive and long-running debate over how to interpret the Second Amendment’s guarantee of the “right of the people to keep and bear arms.”

The court accepted a case on the District of Columbia’s 31-year-old prohibition on the ownership of handguns. In adding the case to its calendar, for argument in March with a decision most likely in June, the court not only raised the temperature of its current term but also inevitably injected the issue of gun control into the presidential campaign.

The federal appeals court here, breaking with the great majority of federal courts to have examined the issue over the decades, ruled last March that the Second Amendment right was an individual one, not tied to service in a militia, and that the District of Columbia’s categorical ban on handguns was therefore unconstitutional.

Both the District of Columbia government and the winning plaintiff, Dick Anthony Heller, a security officer, urged the justices to review the decision. Mr. Heller, who carries a gun while on duty guarding the federal building that houses the administrative offices of the federal court system, wants to be able to keep his gun at home for self-defense.

Mr. Heller was one of six plaintiffs recruited by a wealthy libertarian lawyer, Robert A. Levy, who created and financed the lawsuit for the purpose of getting a Second Amendment case before the Supreme Court. The appeals court threw out the other five plaintiffs for lack of standing; only Mr. Heller had actually applied for permission to keep a gun at home and been rejected.

The Supreme Court last looked at the Second Amendment nearly 70 years ago in United States v. Miller, a 1939 decision that suggested, without explicitly deciding, that the right should be understood in connection with service in a militia. The amendment states, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

The justices chose their own wording for what they want to decide in the new case, District of Columbia v. Heller, No. 07-290. The question they posed is whether the provisions of the statute “violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes.”

The court’s choice of words is almost never inadvertent, and its use of the phrase “state-regulated militia” was somewhat curious. The District of Columbia, of course, is not a state, and one of the arguments its lawyers are making in their appeal is that the Second Amendment simply does not apply to “legislation enacted exclusively for the District of Columbia.”

For that matter, the Supreme Court has never ruled that the Second Amendment even applies to the states, as opposed to the federal government. It has applied nearly all the other provisions of the Bill of Rights to the states, leaving the Second Amendment as the most prominent exception. The justices evidently decided that this case was not the proper vehicle for exploring that issue, because as a nonstate, the District of Columbia is not in a position to argue it one way or another.

Because none of the justices now on the court have ever confronted a Second Amendment case, any prediction about how the court will rule is little more than pure speculation.

Of the hundreds of gun regulations on the books in states and localities around the country, the district’s ordinance is generally regarded as the strictest. Chicago comes the closest to it, banning the possession of handguns acquired since 1983 and requiring re-registration of older guns every two years. New York City permits handgun ownership with a permit issued by the Police Department.

The District of Columbia ordinance not only bans ownership of handguns, but also requires other guns that may be legally kept in the home, rifles and shotguns, to be disassembled or kept under a trigger lock. The capital’s newly empowered City Council enacted the ordinance in 1976 as one of its first measures after receiving home-rule authority from Congress.

The court’s order on Tuesday indicated that it would review the handgun ban in light of the provision that permits, with restrictions, the other guns. The opposing sides in the lawsuit presented very different views of how the various provisions interact.

To the plaintiffs, the restrictions on the conditions under which rifles and shotguns may be kept means that homeowners are denied the right to possess “functional” weapons for self-defense. To the District of Columbia, the fact that these other guns are permitted shows that the ordinance is nuanced and sensitive to gun owners’ needs. It takes about one minute to disengage a trigger lock.

In any event, a Supreme Court decision that finds the district’s ordinance unconstitutional would not necessarily invalidate other, more modest restrictions, like those that permit handgun ownership for those who pass a background check and obtain a license. Since the only claim in the case is that law-abiding people have the right to keep a gun at home, the court will not have occasion to address restrictions on carrying guns.

In fact, lawyers on both sides of the case agreed Tuesday that a victory for the plaintiff in this case would amount to the opening chapter in an examination of the constitutionality of gun control rather than anything close to the final word.

“This is just the beginning,” said Alan Gura, the lead counsel for the plaintiff.

Mr. Gura said in an interview that “gun laws that make sense,” like those requiring background checks, would survive the legal attack, which he said was limited to “laws that do no good other than disarm law-abiding citizens.”

Whether the handgun ban has reduced crime in a city surrounded by less restrictive jurisdictions is a matter of heated dispute. Crime in the District of Columbia has mirrored trends in the rest of the country, dropping quite sharply during the 1990s but now experiencing some increase.

In striking down the district’s ordinance, the United States Court of Appeals for the District of Columbia Circuit said that an individual-right interpretation of the Second Amendment would still permit “reasonable regulations,” but that a flat ban was not reasonable.

Dennis A. Henigan, a lawyer at the Brady Center to Prevent Gun Violence, which advocates strict gun control, said that if the justices agree with the appeals court, an important question for future cases will be “what legal standard the court will eventually adopt for evaluating other gun regulations.”

    Justices Will Decide if Handgun Kept at Home Is Individual Right, NYT, 21.11.2007, http://www.nytimes.com/2007/11/21/us/21scotus.html?hp

Justices to Hear Gun Control Case

November 20, 2007
The New York Times
By DAVID STOUT

WASHINGTON, Nov. 20 — The Supreme Court agreed today to consider an issue that has divided politicians, constitutional scholars and ordinary citizens for decades: whether the Second Amendment to the Constitution protects an individual right to “keep and bear arms.”

The justices agreed to hear an appeal from the District of Columbia, whose gun-control law — one of the strictest in the nation — was struck down by the lower federal courts earlier this year. The case will probably be argued in the spring.

The United States Court of Appeals for the District of Columbia Circuit struck down sections of the Washington gun law that make it exceedingly difficult to legally own a handgun, that prohibit carrying guns without a license even from one room to another, and that require lawfully owned firearms to be kept unloaded.

The Second Amendment, surely one of the most disputed passages in the United States Constitution, states this, in its entirety: “A well-regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The Supreme Court has never directly addressed the basic meaning of that passage. When it last considered a Second Amendment case, in 1939, it addressed a somewhat peripheral question, holding that a sawed-off shotgun was not one of the “arms” that the Founding Fathers had in mind.

Today’s announcement that the justices would take the District of Columbia case was no surprise, given that the D.C. Circuit’s interpretation of the Second Amendment conflicts with the interpretation of nine other federal appeals courts, and differences between the circuits often steer issues to the high court.

But the argument, and the outcome, will be among the most eagerly awaited in years, with the stakes potentially very high for lawmakers and gun enthusiasts alike.

The mayor of Washington, Adrian M. Fenty, whose city was sometimes called the “murder capital” of the country at the height of the crack epidemic and the accompanying bloodshed, vowed earlier this year to seek reinstatement of the city’s gun law. “We have made the determination that this law can and should be defended, and we are willing to take our case to the highest court in the land,” he said.

    Justices to Hear Gun Control Case, NYT, 20.11.2007, http://www.nytimes.com/2007/11/20/washington/20cnd-scotus.html?hp

Justices Move Again to Postpone an Execution

November 16, 2007
The New York Times
By KIRK SEMPLE

MIAMI, Nov. 15 — The Supreme Court on Thursday blocked the execution of a Florida inmate, less than five hours before he was scheduled to die by lethal injection for killing an 11-year-old boy.

It was the fifth time in two months that the court has issued or upheld a stay of execution, strongly signaling once again that it intends to block all executions by lethal injection until it rules on the central issue in a case from Kentucky: whether the three-drug “cocktail” commonly used to execute prisoners is so likely to produce needless pain and suffering as to be unconstitutional.

The Supreme Court’s ruling capped a two-day series of seesawing court rulings in the Florida case.

On Wednesday, a federal judge in Orlando ordered a stay of the execution of the inmate, Mark D. Schwab, who had been scheduled to die at 6 p.m. Thursday for the rape and murder of his victim in 1991. The judge cited the pending lethal injection case before the Supreme Court as a reason for delaying the execution.

But that stay was vacated Thursday morning by the United States Court of Appeals for the 11th Circuit in Atlanta, which said in a written opinion that the evidence in the case did not prove that Florida’s lethal injection methods “pose an unnecessary risk of pain.”

While noting the case before the Supreme Court, the three-judge panel said it was not its “role to pre-empt” the higher court’s actions in pending cases.

“The interest of the State of Florida and the victim’s family in seeing that Schwab’s sentence is carried out without further delay is substantial,” the appellate panel wrote. Within hours, however, the Supreme Court reversed that ruling.

The Supreme Court did not give a reason for its decision, saying only in a one-paragraph order that the stay would remain in effect until it had evaluated a request by Mr. Schwab’s lawyers to review the case.

Mr. Schwab’s lead lawyer, Mark Gruber, said in an interview that he had spoken with his client by telephone after the Supreme Court’s midday decision. “He was terrified,” Mr. Gruber said, “and now he’s relieved.”

Mr. Schwab kidnapped, raped and killed Junny Rios-Martinez shortly after serving three years of an eight-year prison sentence for sexual assault. The case prompted the Florida Legislature to pass the Junny Rios-Martinez Act, which bars sex offenders from early release from prison.

    Justices Move Again to Postpone an Execution, NYT, 16.11.2007, http://www.nytimes.com/2007/11/16/washington/16florida.html

Case Touches a 2nd Amendment Nerve

November 13, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Nov. 12 — Both sides in a closely watched legal battle over the District of Columbia’s strict gun-control law are urging the Supreme Court to hear the case. If the justices agree — a step they may announce as early as Tuesday — the Roberts court is likely to find itself back on the front lines of the culture wars with an intensity unmatched even by the cases on abortion and race that defined the court’s last term.

The question is whether the Second Amendment to the Constitution protects an individual right to “keep and bear arms.” If the answer is yes, as the federal appeals court held in March, the justices must then decide what such an interpretation means for a statute that bars all possession of handguns and that requires any other guns in the home to be disassembled or secured by trigger locks.

The Supreme Court has never answered the Second Amendment question directly, and it has been nearly 70 years since the court even approached it obliquely. A decision in 1939, United States v. Miller, held that a sawed-off shotgun was not one of the “arms” to which the Second Amendment referred in its single, densely written, and oddly punctuated sentence: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Asked during his confirmation hearing what he thought that sentence meant, Chief Justice John G. Roberts Jr. responded that the Miller decision had “side-stepped the issue” and had left “very open” the question of whether the Second Amendment protects an individual right as opposed to a collective right.

A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, on which the chief justice formerly sat, ruled in March by a vote of 2 to 1 that “the right in question is individual,” not tied to membership in a state militia. On that basis, the court declared that the 31-year-old statute, one of the country’s strictest, was unconstitutional.

Gun-control advocates have long maintained that the amendment’s ambiguous opening reference to a “well regulated Militia” limited its scope to gun ownership in connection with service in a state militia. In the appeals court’s view, the clause simply highlighted one of the amendment’s “civic purposes.” Since the militias of the time included nearly all able-bodied white men, the court said, the amendment served the purpose of assuring that the citizenry would have guns at hand if called up, while also guaranteeing the right to keep arms even if the call never came.

The District of Columbia filed its Supreme Court appeal in September. The statute’s challengers, who brought their lawsuit in 2003 for the precise purpose of getting a Second Amendment case before the Supreme Court, promptly agreed that the case merited the justices’ attention.

The lawsuit was the creation of a wealthy libertarian, Robert A. Levy, senior fellow in constitutional studies at the Cato Institute, a prominent libertarian research organization. With the blessing of Cato, Mr. Levy financed the lawsuit and recruited six plaintiffs, all of whom wanted to keep handguns in their homes for self-defense. His goal was to present the constitutional issue to the Supreme Court in its most attractive form: not as a criminal appeal, as earlier Second Amendment cases, including the 1939 Supreme Court case, had been, but as an effort by law-abiding citizens to protect themselves. None asserted a desire to carry their weapons outside of their homes.

The strategy was almost too good: the appeals court threw out five of the six plaintiffs for lack of standing, on the ground that their objection to the law was merely abstract. Only one plaintiff remained: Dick Anthony Heller, a security guard at the building that houses the federal judicial system’s administrative offices, where he carries a handgun on duty. He had applied for and was denied a license to keep the gun at home. That encounter with the law was sufficiently concrete to give him standing, in the court’s view, and to allow the case, now called District of Columbia v. Heller, No. 07-290, to proceed.

The District of Columbia is not just another city, and its gun law has long been a major irritant to supporters of gun ownership around the country. The law was one of the first to be passed by the newly empowered District of Columbia in 1973, after it received home rule authority from Congress, where the gun lobby remains strong.

The District’s petition calls the case “quite literally a matter of life and death,” given the demonstrable dangers of handguns and the policy justifications for regulating them. The brief, filed by Linda Singer, the District’s attorney general, tells the justices that the appeals court made three errors.

First, it says, the Second Amendment’s text and history, properly understood, show that the amendment grants a right that “may be exercised only in connection with service in a state-regulated militia.”

Second, the brief observes that the amendment was drafted as a limitation on the authority of the federal government, not of the states, and that even if the District of Columbia is considered the equivalent of a state, “legislation limited to the District can pose no threat to the interests the Second Amendment was enacted to protect.”

Finally, the District of Columbia argues that even if gun ownership is an individual right, the handgun ban is amply justified as a “reasonable regulation” by considerations of public safety and health, as well as by the fact that the law permits ownership of other weapons.

The appeals court left the door open to “reasonable regulations,” like prohibiting the carrying of concealed weapons, or weapons in particular locations, or the ownership of guns by felons. But a flat ban on a type of weapon cannot be considered reasonable, the court said.

Even though both sides are urging the court to hear the case, it is not a given that the justices will accept the invitation. On the polarized court, that might depend on whether justices who feel strongly on either side can be confident of prevailing. It might also depend on the justices’ collective appetite for injecting themselves into a controversy the court has avoided for so long.

The only justice to have expressed such an appetite is Clarence Thomas. In 1997, he wrote a concurring opinion in a decision invalidating a federal requirement for local sheriffs to perform background checks on gun buyers. The case concerned states’ rights, not the Second Amendment, but Justice Thomas took the opportunity to issue what was, in context, a surprising invitation. “This court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment,” he said, and added: “Perhaps, at some future date, the court will have the opportunity.”

    Case Touches a 2nd Amendment Nerve, NYT, 13.10.2007, http://www.nytimes.com/2007/11/13/washington/13scotus.html

Court Rejects Request From Detainee

November 13, 2007
Filed at 10:20 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court on Tuesday refused to consider the case of a Guantanamo Bay detainee fighting U.S. plans to return him to Algeria.

Ahmed Belbacha says his life will be in danger from terrorists and that it is likely Algerian authorities will torture him if he is sent home.

The U.S. military has classified him as an enemy combatant, while saying he is eligible for transfer subject to appropriate diplomatic arrangements for another country to take him.

''Caught between domestic terror groups and a government that brutalizes suspected Islamists, Belbacha cannot safely return to Algeria,'' his lawyers wrote in asking the Supreme Court to take the case. ''His fear is such that he would prefer to endure the oppressive environment of Guantanamo until an asylum state can be found.''

Brought to Guantanamo Bay in 2002 from Pakistan, Belbacha was an accountant at the government-owned oil company Sonatrach. He says his problems began when he was recalled for a second term of military service in the Algerian army, prompting death threats against him by terrorists in Groupe Isalmique Armee, then at the height of a violent campaign for an Islamic Algeria.

Belbacha never reported for duty, but says the GIA visited his home at least twice and threatened him and his family. He left the country, traveling to France, England, Pakistan and Afghanistan before being brought to Guantanamo Bay.

Belbacha asked two lower federal courts to block his transfer, but they rejected his request.

The case is Belbacha v. Bush, 07-173.

    Court Rejects Request From Detainee, NYT, 13.11.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Belbacha.html

Court to Hear Idaho Death Case

November 5, 2007
Filed at 11:20 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court stepped into a death penalty case Monday in which a defendant says his lawyers gave him bad advice by telling him to reject a plea deal that would have spared him a death sentence.

Maxwell Alton Hoffman was convicted in connection with a revenge killing in Idaho and sentenced to death in 1989. He appealed, claiming he should be allowed to take the deal prosecutors offered anyway.

The 9th U.S. Circuit Court of Appeals agreed. The San Francisco-based appeals court said the state must either release Hoffman or again offer him a plea deal that he originally turned down -- allowing him to plead guilty in exchange for prosecutors no longer seeking the death penalty.

The state appealed to the Supreme Court. The justices said they would decide whether Hoffman is entitled to the plea deal, even though he was later convicted and sentenced in a fair trial.

Hoffman was one of three men charged with the murder of a woman who served as a police informant in a drug deal. Hoffman slit Denise Williams' throat and another man stabbed her. Both men tried to bury her beneath rocks, eventually killing her with a blow from a rock.

The other two defendants avoided the death penalty. Hoffman, however, refused to plead guilty on the advice of his attorneys, even though prosecutors told him that if he refused the plea deal they would seek the death penalty.

One of Hoffman's attorneys -- William Wellman -- told Hoffman he believed that a recent appellate court ruling out of Arizona showed that Idaho's similar death penalty scheme was unconstitutional, and that it was only a matter of time before Idaho's death penalty scheme would be overturned in court.

But Idaho's death penalty scheme wasn't immediately overturned, and on June 9, 1989, Hoffman was sentenced to death.

The appeals court said Wellman made two mistakes that warranted overturning the death sentence.

''We do not expect counsel to be prescient about the direction the law will take,'' Judge Harry Pregerson wrote for the three-judge panel. ''We nonetheless find that Wellman's representation of Hoffman during the plea bargaining stage was deficient for two reasons: first, Wellman based his advice on incomplete research, and second, Wellman recommended that his client risk much in exchange for very little.''

That error, combined with Hoffman's compliant personality, meant that he was harmed by the attorney's recommendation, the court found.

Idaho's lawyers told the Supreme Court that the 9th Circuit made it too easy for defendants to prove that their lawyers were ineffective. The decision shouldn't turn on whether the advice was right or wrong, but on whether a competent lawyer would have made the same recommendation, the state said.

The case, which will be argued early next year, is Arave v. Hoffman, 07-110.

(This version CORRECTS ADDS 5 grafs at end. SUBS 5th graf to correct that victim was a woman, add details of killing.

Court to Hear Idaho Death Case, NYT, 5.11.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Rejected-Plea.html