History > 2008 > USA > Constitution, Law > Supreme Court (I)

Mexico protests

U.S. ruling on death row case

Mon Mar 31, 2008
11:09pm EDT
Reuters

MEXICO CITY (Reuters) - Mexico protested on Monday a U.S. Supreme Court ruling rejecting the reopening of a dual-murder case against a Mexican on death row.

The court rule last week that U.S. President George W. Bush exceeded his authority when he directed Texas to comply with a World Court ruling mandating the review of the cases of Jose Medellin and 50 other Mexicans in U.S. prisons awaiting execution.

Mexico's Foreign Ministry sent a diplomatic letter to the U.S. State Department expressing its unhappiness.

"Mexico is concerned with the decision taken last March 25 by the United States' highest court," the ministry said in a statement, adding it would do everything in its power to have the World Court's ruling upheld.

The Hague court in 2004 ordered the United States to review Medellin's case, and those of the other Mexican death row inmates, on the grounds that his Vienna Convention right to talk to consular officers after his arrest had been violated.

Bush in 2005 decided to comply with the World Court's ruling.

Medellin has been on death row since 1994.
 

(Reporting by Miguel Angel Gutierrez; editing by Mohammad Zargham)

    Mexico protests U.S. ruling on death row case, R, 31.3.2008, http://www.reuters.com/article/politicsNews/idUSN3131381820080401

Justices Rule Against Bush on Death Penalty Case

March 25, 2008
By THE ASSOCIATED PRESS
Filed at 12:40 p.m. ET
The New York Times

WASHINGTON (AP) -- President Bush overstepped his authority when he ordered a Texas court to reopen the case of a Mexican on death row for rape and murder, the Supreme Court said Tuesday.

In a case that mixes presidential power, international relations and the death penalty, the court sided with Texas and rebuked Bush by a 6-3 vote.

The president was in the unusual position of siding with death row prisoner Jose Ernesto Medellin, a Mexican citizen whom police prevented from consulting with Mexican diplomats, as provided by international treaty.

An international court ruled in 2004 that the convictions of Medellin and 50 other Mexicans on death row around the United States violated the 1963 Vienna Convention, which provides that people arrested abroad should have access to their home country's consular officials. The International Court of Justice, also known as the world court, said the Mexican prisoners should have new court hearings to determine whether the violation affected their cases.

Bush, who oversaw 152 executions as Texas governor, disagreed with the decision. But he said it must be carried out by state courts because the United States had agreed to abide by the world court's rulings in such cases. The administration argued that the president's declaration is reason enough for Texas to grant Medellin a new hearing.

Chief Justice John Roberts, writing for the majority, disagreed. Roberts said the international court decision cannot be forced upon the states.

The president may not ''establish binding rules of decision that pre-empt contrary state law,'' Roberts said. Neither does the treaty, by itself, require individual states to take action, he said.

Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter dissented.

The international court judgment should be enforced, Breyer wrote. ''The nation may well break its word even though the president seeks to live up to that word,'' he said.

Justice John Paul Stevens, while agreeing with the outcome of the case, said nothing prevents Texas from giving Medellin another hearing even though it is not compelled to do so.

''Texas' duty in this respect is all the greater since it was Texas that -- by failing to provide consular notice in accordance with the Vienna Convention -- ensnared the United States in the current controversy,'' Stevens said.

Medellin was arrested a few days after the killings of Jennifer Ertman, 14, and Elizabeth Pena, 16, in Houston in June 1993. He was told he had a right to remain silent and have a lawyer present, but the police did not tell him that he could request assistance from the Mexican consulate.

Medellin, who speaks, reads and writes English, gave a written confession. He was convicted of murder in the course of a sexual assault, a capital offense in Texas. A judge sentenced him to death in October 1994.

Texas acknowledged that Medellin was not told he could ask for help from Mexican diplomats, but argued that he forfeited the right because he never raised the issue at trial or sentencing. In any case, the state said, the diplomats' intercession would not have made any difference in the outcome of the case.

State and federal courts rejected Medellin's claim when he raised it on appeal.

Then, in 2003, Mexico sued the United States in the International Court of Justice in The Hague on behalf of Medellin and 50 other Mexicans on death row in the U.S. who also had been denied access to their country's diplomats following their arrests.

Roe Wilson, a Harris County assistant district attorney who handles capital case appeals, applauded the Supreme Court decision. ''This case has been in the court system a long time based on various issues, '' said Wilson, whose office prosecuted Medellin. ''It was a heinous murder of two young girls who were only 14 and 16. It's certainly time the case be resolved and the sentence be carried out.''

Medellin, who was 18 at the time of the slayings, turned 33 earlier this month. He's now out of appeals and Wilson said her office will ask for an execution date once the Supreme Court resolves a separate case challenging lethal injections.

Donald Donovan, who argued Medellin's case to the high court, said Congress and the president could enact a law that would force Texas to comply with the World Court decision.

Mexico has no death penalty. Mexico and other opponents of capital punishment have sought to use the world court to fight for foreigners facing execution in the U.S.

Forty-four Mexican prisoners affected by the decision remain on death row around the country, including 14 in Texas. One Mexican inmate formerly facing execution now is imprisoned for life because of the Supreme Court decision outlawing capital punishment for anyone under 18 at the time the crime was committed.

Bush has since said the United States will no longer allow the World Court to judge the consular access cases because of how death penalty opponents have tried to use the international tribunal.

The case is Medellin v. Texas, 06-984.

    Justices Rule Against Bush on Death Penalty Case, NYT, 25.3.2008, http://www.nytimes.com/aponline/us/AP-Scotus-Mexican-National.html

Justices Overturn Louisiana Death Sentence

March 20, 2008
The New York Times
By DAVID STOUT

WASHINGTON — The Supreme Court on Wednesday overturned the conviction and death sentence of a Louisiana man who killed his estranged wife in a jealous rage, finding that the trial judge “committed clear error” in excluding black jurors from the trial.

By 7 to 2, the court ruled in favor of Allen Snyder, whose case came before the justices for the second time last December, two years after they had sent it back to the Louisiana Supreme Court and told that tribunal to consider whether the jury selection had been tainted by racial bias.

The Louisiana high court reaffirmed the conviction and sentence by a vote of 4 to 3, but the United States Supreme Court on Wednesday overturned that judgment, finding that, even under the wide deference that appellate courts must grant trial courts, the trial of Mr. Snyder, who is black, was tainted.

The opinion, written by Justice Samuel A. Alito Jr., found that the prosecutor’s reasoning for excluding all black jurors was highly implausible, and that the trial judge should not have accepted it.

Justice Alito homed in on the exclusion of Jeffrey Brooks, who was a student-teacher at the time of Mr. Snyder’s 1996 trial. Mr. Brooks was dismissed from the panel after initially expressing concerns that a trial would interfere with his school work. But the prosecutor declined to reconsider seating him even after it became clear that his dean would adjust his schedule to accommodate the jury service and that the trial was likely to be brief in any event.

Justice Alito wrote that the prosecutor’s explanation for dismissing Mr. Brooks — that he was worried that Mr. Brooks’s nervousness over his studies would incline him to vote against a death sentence to avoid long deliberations — was not believable.

“The implausibility of this explanation is reinforced by the prosecutor’s acceptance of white jurors who disclosed conflicting obligations that appear to have been at least as serious as Mr. Brooks’s,” Justice Alito wrote, noting that a white juror who had expressed concerns over his wife’s illness and the conduct of his independent contracting business had been seated.

The majority relied on a standard the Supreme Court articulated in a 1986 ruling, Batson v. Kentucky, which requires a prosecutor to give a “race neutral” explanation when asked about an apparent pattern of racial jury selection. In that respect, the exclusion of Mr. Brooks was improper even under the wide deference that appellate courts must give trial courts, the ruling said.

Mr. Snyder was hoping to reconcile with his wife, Mary, and became enraged when she went out with another man on the night of Aug. 15, 1995, the trial showed. Early on Aug. 16, Mr. Snyder stabbed his wife’s date, Howard Wilson, to death and wounded his estranged wife as the two sat in a car. Prosecutors charged Mr. Snyder with first-degree murder and sought the death penalty.

Justices Clarence Thomas and Antonin Scalia dissented on Wednesday, with Justice Thomas writing that, contrary to the majority’s conclusions, nothing in the record demonstrates “that the trial court clearly erred,” and therefore the Louisiana high court’s ruling should stand.

Stephen B. Bright, an Atlanta lawyer who argued before the Supreme Court on behalf of Mr. Snyder, said the ruling meant that “the Court has resoundingly told judges and prosecutors throughout the country that the practice of striking people from jury service based on their race must cease.”

“This decision tells trial judges not to allow prosecutors to strike most or all people of one race in selecting juries,” Mr. Bright said. “And it tells prosecutors that if they discriminate in selecting juries, any conviction they get may be reversed on appeal.”

    Justices Overturn Louisiana Death Sentence, NYT, 20.3.2008, http://www.nytimes.com/2008/03/20/washington/19cnd-scotus.html?hp

Supreme Court Hears Gun-Control Case

March 18, 2008
The New York Times
By DAVID STOUT

WASHINGTON — The District of Columbia’s gun-control law, long regarded as the strictest in the country, came under heavy scrutiny before the Supreme Court on Tuesday as the justices revisited the Second Amendment to the Constitution for the first time since 1939. The statute, enacted in 1976, all but completely bans the private possession of handguns, and some justices signaled that led them to find it too restrictive.

The District defended it as reasonable and prudent in light of urban crime patterns. Furthermore, a lawyer for the District argued, the much-debated Second Amendment really relates much more to the right of the people to maintain militias rather than to any individual, personal right to keep and bear arms.

But the lawyer — Walter Dellinger, a former solicitor-general of the United States — quickly encountered skepticism.

“What is so reasonable about a total ban on possession?” asked Chief Justice John G. Roberts Jr.

Several other justices also indicated by their questions that they may be unwilling to let the District’s near-total ban on pistols and revolvers stand. (Rifles and shotguns are somewhat less restrictively treated under the statute.) There were signs that these justices see some individual right to gun possession in the Second Amendment, albeit probably not one as free of restraint as some gun enthusiasts would prefer.

Mr. Dellinger insisted that the Second Amendment right “is militia-related,” and that District officials were perfectly entitled to enact their strict law about handguns in view of “the particular dangers in a densely populated urban area.” Years ago, in fact, Washington was sometimes referred to as the nation’s “murder capital” because of its violent streets, especially in areas of heavy drug use.

But Alan Gura, the lawyer for a private security guard who has sued for the right to keep his handgun at home, also came in for heavy questioning. Why, Justice Stephen G. Breyer asked him, is it unreasonable for “a city with a high crime rate to ban handguns?”

Mr. Gura insisted the District’s total ban was unreasonable, and would have been in the eyes of the Founding Fathers, because proficiency with handguns “furthers a militia purpose.” But a functioning militia was not the only public purpose that the Second Amendment was meant to advance; so was self-defense.

The amendment reads, “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.” Over the years, the meaning of those words — and even the correct placement of the commas — has been debated endlessly. Do the words confer rights on individuals or only on militias? And are the words of the Founding Fathers easily transferable from the 18th Century to the 21st?

Hardly anyone argues that any individual should have unfettered rights to keep any kind of weapon, or to carry any kind of weapon in public. In 1939, when the Supreme Court last took a direct look at the Second Amendment, it held that it did not include a right to possess sawed-off shotguns, for instance.

Justice Antonin Scalia rejected any suggestion that the opening phrase, relating to a militia, contradicts any idea of a personal right. On the contrary, he said, the two ideas together are “perfectly plausible, indeed reasonable.”

Solicitor General Paul D. Clement, arguing for the federal government, took a somewhat middle ground. In response to a question by Justice Ruth Bader Ginsburg on whether he agreed that the Second Amendment right to “keep and bear arms” in effect meant to “keep and bear some arms, but not all arms,” he replied, “Absolutely.”

The United States Court of Appeals for the District of Columbia Circuit ruled last year that the district’s law was unconstitutional in its total ban on handguns. Based upon the arguments before the Supreme Court on Tuesday, the justices appeared likely to issue a ruling that will please neither side entirely — and guarantee that the meaning of the Second Amendment will continue to be debated.

The arguments on Tuesday ranged from the semantic — like the difference between “keep” and “bear,” and whether “arms” referred to sporting guns as well as military weapons — to the historical. It was noted that in some early militias, only officers carried handguns, while the rank and file carried only shoulder weapons

And when the Founders referred to “the people,” did they mean individuals, or the citizenry collectively, or both? Not incidentally, Justice Ginsburg observed that “the people” in Colonial times generally meant only white men from the ages of 17 to 45 or so.

Justice John Paul Stevens was skeptical of Mr. Gura’s assertion that “self-defense is the heart of the Second Amendment right.” The justice noted that the term “self-defense” is not in the Amendment; perhaps the Amendment really applies to a “common defense,” he suggested.

At one point, Mr. Clement observed that, had the Founding Fathers chosen to include the phrase “for the common defense” in the Second Amendment, “this would be a different case.”

Interest in the case argued on Tuesday, District of Columbia v. Heller, No. 07-290, was extraordinary. Dozens of friend-of-the-court briefs were submitted to the justices, and some people camped overnight outside the Supreme Court building for a chance to watch the arguments.

    Supreme Court Hears Gun-Control Case, NYT, 18.3.2008, http://www.nytimes.com/2008/03/18/washington/18cnd-scotus.html?hp

    Related > http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-290.pdf

Justices to Hear F.C.C. Indecency Case

March 17, 2008
The New York Times
By DAVID STOUT

WASHINGTON — The Supreme Court agreed on Monday to hear an appeal from the Federal Communications Commission, which last June suffered a defeat at the appeals-court level on the use of vulgar words on the airwaves.

The justices agreed to hear the F.C.C.’s appeal from a ruling by the United States Court of Appeals for the Second Circuit, in New York City, which last year ruled in favor of the four television networks that filed the suit, Fox, CBS, NBC and ABC.

The Second Circuit held that, contrary to the commission’s policy under the Bush administration, the agency could not punish television stations for broadcasting “fleeting expletives,” or blurted obscenities. At the time, F.C.C. officials expressed concern that the opinion could hamper the ability of the commission to regulate any speech on television or radio.

Kevin J. Martin, the chairman of the commission, said on Monday that he was pleased that the high court would review the issue. Last June, he said he was “disappointed for American families” because of the Second Circuit ruling.

“The commission, Congress, and most importantly, parents understand that protecting our children in our greatest responsibility,” Mr. Martin said. “I continue to believe we have an obligation, then, to enforce laws restricting indecent language on television and radio when children are in the audience.”

The case that the Supreme Court accepted on Monday, Fox et a. v. Federal Communications Commission, grew out of expletives uttered by the entertainers Cher and Nicole Richie on awards shows in 2002 and 2003 and vulgarities uttered by the hard-nosed detective Andy Sipowicz on the ABC dramatic series “NYPD Blue.”

Neither cable television nor satellite programming is affected by the commission rulings that are under dispute.

Even though the four major networks would have been victorious if the Supreme Court had decided not to take the case, a spokesman for Fox said the network was still pleased that the justices would hear it. Scott Grogin, a company spokesman, said the high court’s decision to take the case will “give us the opportunity to argue that the F.C.C.’s expanded enforcement of the indecency law is unconstitutional in today’s diverse media marketplace where parents have access to a variety of tools to monitor their children’s television viewing,” The Associated Press reported.

    Justices to Hear F.C.C. Indecency Case, NYT, 17.3.2008,http://www.nytimes.com/2008/03/17/washington/17cnd-scotus.html?hp

Supreme Court Inc.

March 16, 2008
The New York Times Magazine
By JEFFREY ROSEN

I.

The headquarters of the U.S. Chamber of Commerce, located across from Lafayette Park in Washington, is a limestone structure that looks almost as majestic as the Supreme Court. The similarity is no coincidence: both buildings were designed by the same architect, Cass Gilbert. Lately, however, the affinities between the court and the chamber, a lavishly financed business-advocacy organization, seem to be more than just architectural. The Supreme Court term that ended last June was, by all measures, exceptionally good for American business. The chamber’s litigation center filed briefs in 15 cases and its side won in 13 of them — the highest percentage of victories in the center’s 30-year history. The current term, which ends this summer, has also been shaping up nicely for business interests.

I visited the chamber recently to talk with Robin Conrad, who heads the litigation effort, about her recent triumphs. Conrad, an appealing, soft-spoken woman, lives with her family on a horse farm in Maryland, where she rides with a fox-chasing club called the Howard County-Iron Bridge Hounds. Her office, playfully adorned by action figures of women like Xena the Warrior Princess and Hillary Rodham Clinton, has one of the most impressive views in Washington. “You can see the White House through the trees,” she said as we peered through a window overlooking the park. “In the old days, you could actually see people bathing in the fountain. Homeless people.”

Conrad was in an understandably cheerful mood. Though the current Supreme Court has a well-earned reputation for divisiveness, it has been surprisingly united in cases affecting business interests. Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting votes. Conrad said she was especially pleased that several of the most important decisions were written by liberal justices, speaking for liberal and conservative colleagues alike. In opinions last term, Ruth Bader Ginsburg, Stephen Breyer and David Souter each went out of his or her way to question the use of lawsuits to challenge corporate wrongdoing — a strategy championed by progressive groups like Public Citizen but routinely denounced by conservatives as “regulation by litigation.” Conrad reeled off some of her favorite moments: “Justice Ginsburg talked about how ‘private-securities fraud actions, if not adequately contained, can be employed abusively.’ Justice Breyer had a wonderful quote about how Congress was trying to ‘weed out unmeritorious securities lawsuits.’ Justice Souter talked about how the threat of litigation ‘will push cost-conscious defendants to settle.’ ”

Examples like these point to an ideological sea change on the Supreme Court. A generation ago, progressive and consumer groups petitioning the court could count on favorable majority opinions written by justices who viewed big business with skepticism — or even outright prejudice. An economic populist like William O. Douglas, the former New Deal crusader who served on the court from 1939 to 1975, once unapologetically announced that he was “ready to bend the law in favor of the environment and against the corporations.”

Today, however, there are no economic populists on the court, even on the liberal wing. And ever since John Roberts was appointed chief justice in 2005, the court has seemed only more receptive to business concerns. Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years. While the Rehnquist Court heard less than one antitrust decision a year, on average, between 1988 and 2003, the Roberts Court has heard seven in its first two terms — and all of them were decided in favor of the corporate defendants.

Business cases at the Supreme Court typically receive less attention than cases concerning issues like affirmative action, abortion or the death penalty. The disputes tend to be harder to follow: the legal arguments are more technical, the underlying stories less emotional. But these cases — which include shareholder suits, antitrust challenges to corporate mergers, patent disputes and efforts to reduce punitive-damage awards and prevent product-liability suits — are no less important. They involve billions of dollars, have huge consequences for the economy and can have a greater effect on people’s daily lives than the often symbolic battles of the culture wars. In the current Supreme Court term, the justices have already blocked a liability suit against Medtronic, the manufacturer of a heart catheter, and rejected a type of shareholder suit that includes a claim against Enron. In the coming months, the court will decide whether to reduce the largest punitive-damage award in American history, which resulted from the Exxon Valdez oil spill in 1989.

What should we make of the Supreme Court’s transformation? Throughout its history, the court has tended to issue opinions, in areas from free speech to gender equality, that reflect or consolidate a social consensus. With their pro-business jurisprudence, the justices may be capturing an emerging spirit of agreement among liberal and conservative elites about the value of free markets. Among the professional classes, many Democrats and Republicans, whatever their other disagreements, have come to share a relatively laissez-faire, technocratic vision of the economy and are suspicious of excessive regulation and reflexive efforts to vilify big business. Judges, lawyers and law professors (such as myself) drilled in cost-benefit analysis over the past three decades, are no exception. It should come as little surprise that John Roberts and Stephen Breyer, both of whom studied the economic analysis of law at Harvard, have similar instincts in business cases.

This elite consensus, however, is not necessarily shared by the country as a whole. If anything, America may be entering something of a populist moment. If you combine the groups of Americans in a recent Pew survey who lean toward some strain of economic populism — from disaffected and conservative Democrats to traditional liberals to social and big-government conservatives — at least two-thirds of all voters arguably feel sympathy for government intervention in the economy. Could it be, then, that the court is reflecting an elite consensus while contravening the sentiments of most Americans? Only history will ultimately make this clear. One thing, however, is certain already: the transformation of the court was no accident. It represents the culmination of a carefully planned, behind-the-scenes campaign over several decades to change not only the courts but also the country’s political culture.

II.

The origins of the business community’s campaign to transform the Supreme Court can be traced back precisely to Aug. 23, 1971. That was the day when Lewis F. Powell Jr., a corporate lawyer in Richmond, Va., wrote a memo to his friend Eugene B. Snydor, then the head of the education committee of the U.S. Chamber of Commerce. In the memo, Powell expressed his concern that the American economic system was “under broad attack.” He identified several aggressors: the New Left, the liberal media, rebellious students on college campuses and, most important, Ralph Nader. Earlier that year, Nader founded Public Citizen to advocate for consumer rights, bring antitrust actions when the Justice Department did not and sue federal agencies when they failed to adopt health and safety regulations.

Powell claimed that this attack on the economic system was “quite new in the history of America.” Ever since 1937, when President Franklin D. Roosevelt threatened to pack a conservative Supreme Court with more progressive justices, the court had largely deferred to federal and state economic regulations. And by the ’60s, the Supreme Court under Chief Justice Earl Warren had embraced a form of economic populism, often favoring the interests of small business over big business, even at the expense of consumers. But what Powell saw in the work of Nader and others was altogether more extreme: a radical campaign that was “broadly based and consistently pursued.”

To counter the growing influence of public-interest litigation groups like Public Citizen, Powell urged the Chamber of Commerce to begin a multifront lobbying campaign on behalf of business interests, including hiring top business lawyers to bring cases before the Supreme Court. “The judiciary,” Powell predicted, “may be the most important instrument for social, economic and political change.” Two months after he wrote the memo, Powell was appointed by Richard Nixon to the Supreme Court. And six years later, in 1977, after steadily expanding its lobbying efforts, the chamber established the National Chamber Litigation Center to file cases and briefs on behalf of business interests in federal and state courts.

Today, the Chamber of Commerce is an imposing lobbying force. To fulfill its mission of serving “the unified interests of American business,” it collects membership dues from more than three million businesses and related organizations; last year, according to the Center for Responsive Politics, the chamber spent more than $21 million lobbying the White House, Congress and regulatory agencies on legal matters. But its battle against the forces of Naderism got off to a slow start. In 1983, when Robin Conrad arrived at the chamber, the Supreme Court was handing Nader and his allies significant victories. That year, for example, the court held that President Reagan’s secretary of transportation, Andrew L. Lewis Jr., acted capriciously when he repealed a regulation, inspired by Nader’s advocacy, that required automakers to install passive restraints like air bags. In 1986, the chamber supported a challenge to the Environmental Protection Agency’s aerial surveillance of a Dow Chemical plant. The chamber’s side lost, 5-4.

But eventually, things began to change. The chamber started winning cases in part by refining its strategy. With Conrad’s help, the chamber’s Supreme Court litigation program began to offer practice moot-court arguments for lawyers scheduled to argue important cases. The chamber also began hiring the most-respected Democratic and Republican Supreme Court advocates to persuade the court to hear more business cases. Although many of the businesses that belong to the Chamber of Commerce have their own in-house lawyers, they would have the chamber file “friend of the court” briefs on their behalf. The chamber would decide which of the many cases brought to its attention were in the long-term strategic interest of American business and then hire the leading business lawyers to write supporting briefs or argue the case.

Until the mid-’80s, there wasn’t an organized group of law firms that specialized in arguing business cases before the Supreme Court. But in 1985, Rex Lee, the solicitor general under Reagan, left the government to start a Supreme Court appellate practice at the firm Sidley Austin. Lee’s goal was to offer business clients the same level of expert representation before the Supreme Court that the solicitor general’s office provides to federal agencies. Lee’s success prompted other law firms to hire former Supreme Court clerks and former members of the solicitor general’s office to start business practices. The Chamber of Commerce, for its part, began to coordinate the strategy of these lawyers in the most important business cases.

At times, the strategic calculations can be quite personal. Because Supreme Court clerks have tremendous influence in making recommendations about what cases the court should hear, Conrad told me, having well-known former clerks involved in submitting a brief can be especially important. “When Justice O’Connor was on the bench and we knew her vote was very important, we had a case where the opposition had her favorite clerk on the brief, so we retained her next-favorite clerk,” she said with a laugh. “We won.”

In our conversation, Conrad was especially enthusiastic about Maureen Mahoney, a former clerk for Chief Justice Rehnquist and one of the top Supreme Court litigators who coordinate strategy with the chamber. When Mahoney agreed in 2005 to represent an appeal by the disgraced accounting firm Arthur Andersen, which was convicted in 2002 of obstructing justice by shredding documents related to the audit of Enron, few people thought the Supreme Court would take the case. “The climate was very anti-Enron,” Mahoney told me, “and it was viewed as a doomed petition.”

Mahoney rehearsed her Supreme Court argument in a moot court sponsored by the chamber. (“She was absolutely dazzling,” Conrad recalls.) On April 27, 2005, Mahoney stood calmly before the justices and delivered one of the best oral arguments I’ve ever seen at the Supreme Court. She argued that because Arthur Andersen’s accountants had followed a standard document-destruction procedure before receiving the government’s subpoena, they couldn’t be guilty of a crime; they weren’t aware what they were doing was criminal. The Supreme Court unanimously agreed and reversed the conviction, 9-0.

The Arthur Andersen case is a good example of how significantly the Supreme Court has changed its attitude about cases involving securities fraud — and business cases more generally — from the Warren to the Roberts era. In a case in 1964, the court ruled that aggrieved investors and consumers could file private lawsuits to enforce the securities laws, even in cases in which Congress hadn’t explicitly created a right to sue. In the mid-1990s, however, Congress substantially cut back on these citizen suits, and the court today has shown little patience for them. Mahoney says she sees her victory in the Arthur Andersen case as significant because it applied the same principle in criminal cases involving corporate wrongdoing that the court had already been recognizing in civil cases: namely, “refusing to create greater damage remedies or criminal penalties than Congress has explicitly specified.” She describes the case as “a very important win for business.”

This term, the Supreme Court has continued to cut back on consumer suits. In a ruling in January, the court refused to allow a shareholder suit against the suppliers to Charter Communications, one of the country’s largest cable companies. The suppliers were alleged to have “aided and abetted” Charter’s efforts to inflate its earnings, but the court held that Charter’s investors had to show that they had relied on the deceptive acts committed by the suppliers before the suit could proceed. A week later, the court invoked the same principle when it refused to hear an appeal in a case related to Enron, in which investors are trying to recover $40 billion from Wall Street banks that they claim aided and abetted Enron’s fraud. As a result, the shareholder suit against the banks may be dead.

III.

In addition to litigating cases before the court, the Chamber of Commerce also lobbies Congress and the White House in an effort to change the composition of the court itself. (Unlike many other government officials, the justices themselves are not, of course, subject to direct corporate lobbying.) The chamber’s efforts in this area were inspired by Robert Bork’s thwarted nomination to the court in 1987. Business groups were enthusiastic about Bork — not because of his conservative social views but because of his skepticism of vigorous antitrust enforcement. “In reaction to the Bork nomination, it struck us that we didn’t even have a process in place to be a player,” Conrad said.

So the chamber set up a formal process for endorsing candidates after their nominations. The process was designed to be bipartisan; and the chamber has encouraged Democratic as well as Republican presidents to appoint justices. Nominees are evaluated solely through the prism of their views about business. “We’re very surgical in our analysis,” Conrad said.

After the election of Bill Clinton, for example, the chamber endorsed Ruth Bader Ginsburg, who in addition to her pioneering achievements as the head of the women’s rights project at the A.C.L.U. had specialized, as a law professor, in the procedural rules in complex civil cases and was comfortable with the finer points of business litigation. The chamber was especially enthusiastic about Clinton’s second nominee, Stephen Breyer, who made his name building a bipartisan consensus for airline deregulation as a special counsel on the judiciary committee; and who, as a Harvard Law professor, advocated an influential and moderate view on antitrust enforcement.

During Breyer’s confirmation hearings his sharpest critic was Ralph Nader, who testified that his pro-business rulings were “extraordinarily one-sided.” Another critic, Senator Howard Metzenbaum of Ohio, said that the fact that the chamber was the first organization to endorse Breyer indicated that “large corporations are very pleased with this nomination” and “the fact that Ralph Nader is opposed to it indicated that the average American has a reason to have some concern.” The chamber’s imprimatur helped reassure Republicans about Breyer, and he was confirmed with a vote of 87 to 9. “Frankly, we didn’t feel like we had anyone on the court since Justice Powell who truly understood business issues,” Conrad told me. “Justice Breyer came close to that.”

The Breyer and Ginsburg nominations also came at a time when liberal as well as conservative judges and academics were gravitating in increasing numbers to an economic approach to the law, originally developed at the University of Chicago. The law-and-economics movement sought to evaluate the efficiency of legal rules based on their costs and benefits for society as a whole. Although originally conservative in its orientation, the movement also attracted prominent moderate and liberal scholars and judges like Breyer, who before his nomination wrote two books on regulation, arguing that government health-and-safety spending is distorted by sensational media reports of disasters that affect relatively few citizens.

Since joining the Supreme Court, Breyer has also been an intellectual leader in antitrust and patent disputes, which often pit business against business, rather than business against consumers. In those cases, many liberal scholars sympathetic to economic analysis have applauded the court for favoring competition rather than existing competitors, innovation rather than particular innovators. “The court deserves credit for trying to rationalize a totally irrational patent system, benefiting smaller new competitors rather than existing big ones,” says Lawrence Lessig, an intellectual-property scholar at Stanford.

Clinton’s nominations of Ginsburg and Breyer may have been welcomed by the chamber, but with the election of George W. Bush, the chamber faced a dilemma. Ever since the Reagan administration, there had been a divide on the right wing of the court between pragmatic free-market conservatives, who tended to favor business interests, and ideological states-rights conservatives. In some business cases, these two strands of conservatism diverged, leading the most staunch states-rights conservatives on the court, Antonin Scalia and Clarence Thomas, to rule against business interests. Scalia and Thomas were reluctant to second-guess large punitive-damage verdicts by state juries, for example, or to hold that federally regulated cigarette manufacturers could not be sued in state court. As a result, under Conrad’s leadership, the chamber began a vigorous campaign to urge the Bush administration to appoint pro-business conservatives.

When it came time to replace Chief Justice William Rehnquist and Justice Sandra Day O’Connor, the candidate most enthusiastically supported by states-rights conservatives, Judge Michael Luttig, had a record on the Court of Appeals for the Fourth Circuit that some corporate interests feared might make him unpredictable in business cases. (“One of my constant refrains is that being conservative doesn’t necessarily mean being pro-business,” Conrad told me.) The chamber and other business groups enthusiastically supported John Roberts, who had been hired by the chamber to write briefs in two Supreme Court cases in 2001 and 2002. At the time of Roberts’s nomination, Thomas Goldstein, a prominent Supreme Court litigator, described him as “the go-to lawyer for the business community,” adding “of all the candidates, he is the one they knew best.” When Roberts was nominated, business groups lobbied senators as part of the campaign for his confirmation.

The business community was also enthusiastic about Samuel Alito, whose 15-year record as an appellate judge showed a consistent skepticism of claims against large corporations. Ted Frank of the American Enterprise Institute predicted at the time of the nomination that if Alito replaced O’Connor, he and Roberts would bring about a rise in business cases before the Supreme Court. Frank’s prediction was soon vindicated.

“There wasn’t a great deal of interest in classic business cases in the last few years of the Rehnquist Court,” Carter Phillips, a partner at Sidley Austin and a leading Supreme Court business advocate, told me. In 2004, Judge Richard Posner, a founder of the law-and-economics movement, argued that the Rehnquist Court’s emphasis on headline-grabbing constitutional cases had politicized it, and called on the court to hear more business cases. The Roberts court has unambiguously answered the call. As Phillips told me, Roberts “is more interested in those issues and understands them better than his predecessor did.”

IV.

Exactly how successful has the Chamber of Commerce been at the Supreme Court? Although the court is currently accepting less than 2 percent of the 10,000 petitions it receives each year, the Chamber of Commerce’s petitions between 2004 and 2007 were granted at a rate of 26 percent, according to Scotusblog. And persuading the Supreme Court to hear a case is more than half the battle: Richard Lazarus, a law professor at Georgetown who also represents environmental clients before the court, recently ran the numbers and found that the court reverses the lower court in 65 percent of the cases it agrees to hear; and when the petitioner is represented by the elite Supreme Court advocates routinely hired by the chamber, the success rate rises to 75 percent.

Faced with these daunting numbers, the progressive antagonists of big business are understandably feeling beleaguered and outgunned. “The fight before the court is generally not an even one,” said David Vladeck, who once worked for the Public Citizen Litigation Group and now teaches law at Georgetown. “There’s us on one side, with a brief or two, and industry on the other side, with a well-coordinated campaign of 10 or 12 briefs, with each one written by a member of the elite Supreme Court bar that address an issue in enormous depth.” He added, ruefully, “You admire their handiwork, but it’s frustrating as hell to deal with.”

To gauge the degree of the frustration, I recently paid a visit to Ralph Nader, a few weeks before he announced his most recent campaign for president of the United States. It was a surprise to find that his office, the Center for Study of Responsive Law, shares an address in a grand building with the Carnegie Institution for Science. But the office itself, reassuringly, is buried on the ground floor, where Nader received me at a conference table surrounded by file cabinets stuffed with faded back issues of Mother Jones and The Nation.

Nader was uncontrite about his 2000 run against Al Gore — which is often credited with helping George W. Bush win the presidency — and he insisted that because Clinton appointed justices like Breyer, Gore would have done the same. “Breyer hasn’t been worse than I feared, because I had real concern when he was nominated,” Nader told me. He conceded that, like Breyer, Democratic justices appointed by President John Kerry would presumably have been better on civil rights and liberties than John Roberts and Samuel Alito. Nevertheless, he disparaged Breyer as a “deregulation quasi-ideologue” who was able to weave a “tapestry of illusion” in his arguments by dealing in abstractions.

The main casualty of the 2000 run, Nader said, is that he is no longer collaborating with America’s trial lawyers. They would ordinarily be his natural allies in representing consumer interests, but they donated heavily to Gore’s campaign. After 2000, the trial lawyers “have been vitriolic,” Nader explained. He blames them for not using their money to help counteract the influence of the Chamber of Commerce and other business groups before the federal courts. In part as a result of their stinginess, he said, his colleagues at Public Citizen are underfinanced and worn down. “There were some lawyers who left Public Citizen because they got tired of losing,” he said. “Everyone is desperately trying to hold on to whatever issues are left, and then they become demoralized and discouraged.”

Thirty years after the Chamber of Commerce founded its litigation center to counteract his influence, Nader all but conceded defeat in the battle for the Supreme Court. With the decline of economic populism in Congress, the weakening of trade unions and the rise of globalization, the political climate, he lamented, was passing him by. “I recall a comment by Eugene Debs,” Nader said, looking at me intensely. “He said: The American people live in a country where they can have almost anything they want. And my regret is that it seems that they don’t want much of anything at all.”

Nader chuckled quietly and shook his head. “I say ditto.”

V.

If there is an anti-Nader — a crusading lawyer passionately devoted to the pro-business cause — it is Theodore Olson. One of the most influential Supreme Court advocates and a former solicitor general under President George W. Bush, Olson is best known for his winning argument before the Supreme Court in Bush v. Gore in 2000. But Olson has devoted most of his energies in private practice to changing the legal and political climate for American business. According to his peers in the elite Supreme Court bar, he more than anyone else is responsible for transforming the approach to one of the most important legal concerns of the American business community: punitive damages awarded to the victims of corporate negligence.

Punitive damages — money awarded by civil juries on top of any awarded for actual harm that victims have suffered — are designed to penalize especially egregious acts of corporate misconduct resulting from malice or greed, and to deter similar wrongdoing in the future. In the 19th century, courts generally demanded a clear assignment of fault in cases where victims sued for injuries caused by malfunctioning products. It was hard for plaintiffs to recover in personal-injury cases unless the corporation was obviously at fault. But in the 20th century, in liability cases involving a rapidly expanding class of potentially dangerous products like cars, drugs and medical devices, courts increasingly applied a standard of “strict liability,” which held that manufacturers should pay whether or not they were directly at fault.

The animating idea was that manufacturers were in the best position to prevent accidents by improving their products with better design and testing. They and their insurance companies (rather than society as a whole) would shoulder the costs of accidents, thus giving them an incentive to make their products safer. Encouraged by Ralph Nader’s book, “Unsafe at Any Speed,” published in 1965, courts began to see car accidents as predictable events that better car design could have prevented. In 1968, for example, a federal court held that car manufacturers could be sued for failing to make cars safe enough for drivers to survive crashes, even if the driver was at fault for the crash.

A series of well-publicized awards in the 1980s and ’90s culminated in the largest punitive damage award in American history the $5 billion levied against Exxon after the Exxon Valdez oil spill in 1989. This was hardly typical: the median punitive award actually fell to $50,000 in 2001 from $63,000 in 1992. Nevertheless, critics like Olson claimed that multimillion-dollar punitive-damage verdicts were threatening the health of the economy. They resolved to fight back on several fronts. In his first Supreme Court argument, in 1986, Olson set out the broad contours of his argument: for most of English and American history, private litigants were entitled to be compensated for whatever damages they suffered, including pain and suffering, but any public wrongs like the failure of American business to make cars safer by adopting air bags should be addressed by legislation or regulation, not by the courts.

Olson decided that his clients deserved not just a lawyer who could argue a case but a lawyer who could change the political culture. “You had to attack it in a broad-scale way in the legislatures, in the arena of public opinion and in the courts,” he told me recently. “I felt the business community had to approach this in a holistic way.” He set out, in lectures and op-ed pieces, to publicize especially egregious examples. The poster child for punitive-damage abuse, widely derided in TV and radio ads paid for by the business community, was a New Mexico grandmother who, in 1994, was awarded $2.7 million in punitive damages when she scalded herself with hot McDonald’s coffee. Consumer advocates countered that she had originally asked for $20,000 for medical expenses, which McDonald’s refused to pay, and the award appeared to have the effect of persuading McDonald’s to serve its coffee at a safer temperature. Nonetheless, the campaign to vilify plaintiffs’ lawyers has been effective enough that the American Association of Trial Lawyers recently changed its name to the fuzzier American Association for Justice.

The business community made other inroads against punitive damages. Corporations financed campaigns against pro-punitive-damage state judges who had been elected with the assistance of large contributions from plaintiffs’ lawyers. The business community also helped persuade more than 30 states to either impose caps on punitive-damage awards or direct substantial portions of the awards to be paid into special state funds. In 1996, it helped persuade the Republican Congress, led by Newt Gingrich, to pass legislation that would cap punitive-damage awards in product-liability cases in every state court in the country. But in 1996, President Clinton, with what must have been perverse pleasure, vetoed the bill on the grounds that it violated principles of federalism and states rights to which conservatives claimed to be devoted.

Thwarted by Clinton, and unable to persuade Congress to override the veto, opponents of punitive damages turned their attention back to the Supreme Court, looking for a victory they were unable to win in the political arena. Here, they were remarkably successful. As late as 1991, the court had refused to impose limits on a large punitive-damage award. But in a case in 1996, the court held for the first time that punitive-damage awards had to be proportional to the actual damage incurred by the plaintiff. The case involved a man who said he was deceived by BMW when it sold him a supposedly “new” car that was, in fact, used and had received a $300 touch-up job. The court, in a 5-4 opinion, overturned a $2 million punitive-damage award as “grossly excessive.” In 2003, the court clarified what it meant: a single-digit ratio between punitive damages and compensatory damages was likely to be acceptable.

Last year, the business community watched with anticipation as Roberts and Alito revealed their views about punitive damages. The case involved the estate of a heavy smoker who sued Philip Morris for deceitfully distributing a “poisonous and addictive substance.” A jury had awarded the estate $821,000 in compensatory damages and $79.5 million in punitive damages — a ratio of about 100 to 1. In a 5-4 opinion written by Breyer, the court held that it was unconstitutional for a jury to use punitive damages to punish a company for its conduct toward similarly affected individuals who are not party to the lawsuit.

This spring, the court will decide the Exxon Valdez punitive-damage case, which many consider the culmination of the business community’s decades-long campaign against punitive damages. In 1989, the Exxon Valdez tanker, whose captain had a history of alcoholism, ran into a reef and punctured the hull; 11 million gallons of oil leaked onto the coastline of Prince William Sound. A jury handed down a $5 billion punitive-damage award.

After the verdict, Exxon began providing money for academic research to support its claim that the award for damages was excessive. It financed some of the country’s most prominent scholars on both sides of the political spectrum, including the Nobel laureate Daniel Kahneman and Cass Sunstein, a law professor at the University of Chicago. (Sunstein says he accepted only travel grants, not research support, from Exxon; and Kahneman stresses that the financing had no influence on the substance of his work.) In a 2002 book, “Punitive Damages: How Juries Decide,” Sunstein studied hundreds of mock-jury deliberations and concluded that jurors are unpredictable and often irrational in punitive-damage cases. Jury deliberations, he found, increase the unpredictability, as well as the dollar amount of the final awards. Sunstein concluded that a system of civil fines determined by experts, rather than punitive damages determined by juries, might be more sensible. When Exxon appealed the $5 billion verdict in 2006, it was reduced by an appellate court to $2.5 billion. The reduced verdict is once again being challenged as excessive.

Walter Dellinger, the lawyer now arguing Exxon’s case before the Supreme Court, is no Republican activist. Like Sunstein, he is one of the most respected Democratic constitutional scholars, as well as a former acting solicitor general for President Clinton. Last month, in his argument before the court, Dellinger argued that because Exxon has already paid $3.4 billion in fines, cleanup costs and compensation connected with the Exxon Valdez spill, and because it didn’t act out of malice or greed in failing to monitor the alcoholic captain, additional punitive damages would serve no “public purpose.”

During the argument, Breyer noted that the $2.5 billion punitive damage award represents a less than 10-to-1 ratio between punitive damages and compensatory damages, which is in the single-digit range that the Supreme Court has considered acceptable in the past. But Breyer also seemed concerned at other points that punitive-damage awards have not been routine in maritime cases like this one, and that the award might create “a new world for the shipping industry.” Alito, who owns Exxon Mobil stock, did not participate, and because a tie would affirm the $2.5 billion punitive-damage award, the plaintiffs who are opposing Exxon need only four votes to prevail. But whether Dellinger gets five votes, a significant triumph is already behind him: he persuaded the court to take the case in the first place.
 

VI.

Ted Olson and the Chamber of Commerce aren’t only trying to persuade the Supreme Court to cut back on large punitive-damage awards; they’re also arguing that consumers injured by dangerous or defective medical devices and drugs in some cases shouldn’t be able to file product-liability suits at all. Because there is no national product-liability law that allows federal suits for personal injuries, consumers who are injured by, say, defective heart valves or artificial hips have to sue in state courts under state tort law. By asking the Supreme Court to prevent injured consumers from suing in state court, the business community, supported by the Bush administration, is trying to ensure that these consumers often have no legal remedy for their injuries. And the Supreme Court has been increasingly sympathetic to the business community’s arguments.

In a Supreme Court case Olson argued in December, he stood before the justices and argued that the manufacturers of defective medical devices — like heart valves, breast implants and defibrillators — should be immune from personal-liability suits because the federal Food and Drug Administration had approved the devices before they were marketed and the manufacturers had complied with all federal requirements. The case involved Charles Riegel, who had an angioplasty in 1996 during which the catheter used to dilate his coronary artery burst. Riegel, who needed advanced life support and emergency bypass surgery, eventually sued the manufacturer of the catheter, Medtronic. The company is colloquially referred to in the business community as “the pre-emption company” because of its practice of arguing that the Food and Drug Administration’s “premarket approval” of its products pre-empts product-liability suits in state courts.

The lawyer representing Riegel’s estate before the Supreme Court, Allison Zieve of Public Citizen, countered that Congress never intended to ban state product-liability suits when Senator Edward Kennedy sponsored a bill regulating medical devices in 1976. (Kennedy himself filed a brief in the case noting that he indeed intended no such thing.) “Lawyers think this is a close issue, but any time I talk to a nonlawyer about it, they’re shocked,” Zieve told me after the argument. “People think: of course, if somebody makes a defective product you can sue.”

It’s one thing to argue that the federal government’s “premarket approval” of food, drugs and medical devices should pre-empt clearly inconsistent state laws and regulations. After all, if states imposed safety requirements that conflicted with the federal standard, the resulting regulatory confusion would make a national (and global) market impossible. But Olson’s claim that federal regulation of medical devices and drugs should also pre-empt product-liability suits under state tort law is one of the more creative and far-reaching legal arguments of the business groups that litigate before the Supreme Court.

This type of argument arose out of the tobacco litigation of the 1980s and ’90s, which culminated in a $206 billion settlement paid by the top tobacco companies to a consortium of 46 state attorneys general in exchange for dropping tort suits against the companies. The tobacco litigation began modestly: in 1983, Rose Cipollone, a New Jersey woman dying of lung cancer, sued several of the country’s largest tobacco companies for their failure to give adequate warnings about the dangers of smoking. After spending tens of millions of dollars fighting the verdict, the companies decided to take their defense to the next level. They argued that because the federal government required cigarette companies to have warning labels, tobacco companies couldn’t be subject to tort suits in state courts. Jury verdicts, they argued, are no less a form of regulation than laws explicitly adopted by state legislatures.

In a decision in 1992, the Supreme Court endorsed part of the companies’ argument. The decision unleashed a torrent of similar “pre-emption” claims by the manufacturers of dangerous drugs, defective medical devices and cars without air bags. And after the election of President Bush in 2000, the business community’s crusade was aggressively supported by the White House. At the same time that the White House was scaling back on federal health-and-safety enforcement, it insisted that consumers should not be able to sue federally regulated industries in state court. Bush appointed as the general counsel of the Food and Drug Administration a former drug- and tobacco-company lawyer named Daniel Troy. With Troy’s support, the F.D.A. reversed its position, held for 25 years, and argued for the first time that its premarket approval of medical devices should prevent injured consumers from bringing product-liability suits in state court.

After her Supreme Court argument in the Medtronic case, Zieve told me she wasn’t sure what to expect. Until the arrival of Chief Justice Roberts, groups like Public Citizen had found that they had a better chance of winning pre-emption cases before the Supreme Court than in the lower courts. But during the first two years of the Roberts Court, the justices had decided two pre-emption cases in favor of the corporate defendants.

The trend has continued. On Feb. 21, the Supreme Court handed Zieve a crushing defeat: an 8-1 opinion immunizing the makers of defective medical devices from product-liability suits. The lone dissent was written by Ruth Bader Ginsburg, who objected that Congress could not have intended such a “radical curtailment” of state personal-injury suits when it regulated medical devices in 1976. Ginsburg, who is devoted to liberal judicial restraint, has consistently opposed efforts to second-guess punitive-damage awards or expand federal pre-emption. I called Zieve soon after the Supreme Court issued its opinion, and she sounded shocked. “It’s really unfathomable to me,” she said. “I wasn’t sure that this was a business-friendly court, but now I’m finding it harder not to view it that way.” Zieve said that, as a result of the decision, “I think the industry will keep unsafe devices on the market longer and be slower to improve products.”

In the eyes of advocates like Zieve and Public Citizen, the public is now caught in a Catch-22: at the very moment that agencies like the F.D.A. are being strongly reproved by critics — including the agency’s own internal science board — for being unwilling or unable to protect public health, the court is making it harder for people to receive compensation for the injuries that result. On rare occasions, the Roberts Court has held that the Bush administration’s deregulatory efforts circumvent the will of Congress — like the 5-4 decision last year holding that the Environmental Protection Agency acted capriciously when it adopted a rule that said it had no legal authority to regulate greenhouse gases. But by and large, the Supreme Court defers to agencies that refuse to regulate public health and safety. “The industry has a lot of money, and they can routinely hire the biggest names in the biggest firms, while we’re doing it on our own,” Zieve told me. “We don’t charge anything — we’re free. It didn’t cost $250,000 to get us to write the brief.”

VII.

The Supreme Court is unlikely to reconsider its pro-business outlook anytime soon. Nevertheless, there are several currents in American political life that run counter to the court, even if they may not be strong enough, or suitably directed, to reverse it. There are, for example, economic populists in both political parties — John Edwards Democrats and Mike Huckabee Republicans, to cite just two types — who express concern about growing economic inequality and corporate corruption, and blame unchecked corporate power for America’s escalating economic problems. These populists tend to be from the working and middle classes rather than the professional classes, and their numbers may be growing. In recent Pew surveys, 65 percent of Americans agreed that corporations make excessive profits — the highest number in 20 years. Moreover, about half the country now asserts that America is divided on economic lines into two groups — the “haves” and “have nots” — up from only 26 percent two decades ago. And the number of Americans who view themselves as “have nots” has doubled to 34 percent today from 17 percent in 1988. Responding to pressures from this demographic, a Democratic Congress — bolstered by states-rights conservatives — might well try to pass legislation to counteract the court’s recent decisions barring product-liability suits for defective medical devices.

What about the executive branch? It seems unlikely that John McCain, if he were elected president, would push back against the court: he has already pledged to appoint “judges of the character and quality of Justices Roberts and Alito,” rather than justices more devoted to states rights, like Scalia and Thomas. As for Barack Obama and Hillary Clinton, both have sounded increasingly populist notes in an effort to attract union and blue-collar supporters, ratcheting up their attacks on corporate wealth and power, singling out the drug, oil and health-insurance industries and promising to renegotiate the North American Free Trade Agreement. But despite their rhetoric, it is not clear that either candidate would actually appoint justices any more populist than Bill Clinton’s nominees. “I would be stunned to find an anti-business appointee from either of them,” Cass Sunstein, who is a constitutional adviser to Obama, told me. “There’s not a strong interest on the part of Obama or Clinton in demonizing business, and you wouldn’t expect to see that in their Supreme Court nominees.”

Still, the possibility does exist. If the economy continues to decline and blue-collar voters end up being crucial in the election, a Democratic president might appoint an economic populist to the Supreme Court as a kind of payback. Earlier this month, on the campaign trail in Ohio, Obama mentioned Earl Warren, who served as governor of California before becoming chief justice, as a model of the kind of justice he hoped to appoint. “I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through,” Obama said. He praised Warren for understanding that segregation was wrong because of the stigma it attached to blacks, rather than because of the precise nature of its sociological impact. Appointing a former politician to the court would almost certainly introduce a more populist element: the Supreme Court that in 1954 decided Brown v. Board of Education included, in addition to a former governor, three former senators, a former Securities and Exchange Commission member and two former attorneys general. (By contrast, the Roberts court is composed of nine former judges.)

Whatever happens in November, Robin Conrad says the Chamber of Commerce is prepared to lobby as hard as ever for the appointment of pro-business justices. “If we do have a Democrat president, and that president has opportunities to nominate to the court,” she said in our meeting as I glanced at her Hillary Clinton action figure, “we want to be able to express ourselves and work with that president.” Regardless of how many justices retire in the next presidential term, Conrad is confident that, having helped to transform the Supreme Court in less than 30 years, she and her colleagues can assure American business of a sympathetic hearing for decades to come.

When I told Conrad that Ralph Nader told me that lawyers were leaving Public Citizen because they were tired of losing, she achieved a look of earnest concern. “I hope if they feel they’ve lost,” she said, “they lost for a good reason — not because they’ve been overpowered or muscled by the big, bad business community, but they’ve lost because reason won.”

Conrad looked at me squarely, and then added, “I guess if Ralph Nader wants to say we did him in” — she paused to weigh her words — “so be it.”
 

Jeffrey Rosen, a law professor at George Washington University, is a frequent contributor to the magazine. He is the author, most recently, of “The Supreme Court: The Personalities and Rivalries That Defined America.”

    Supreme Court Inc., NYT Magazine, 16.3.2008, http://www.nytimes.com/2008/03/16/magazine/16supreme-t.html?ref=magazine

Right to bear arms at heart of high court case

Tue Mar 11, 2008
8:42am EDT
By James Vicini - Analysis
Reuters

WASHINGTON (Reuters) - For the first time in 70 years, the U.S. Supreme Court will take on the question of whether individual Americans have the right to keep and bear arms or whether it a collective right of the people for service in a state militia.

That question is at the heart of a long, impassioned debate about how much power the government has to keep people from owning guns and it could soon be decided by the U.S. Supreme Court in a case about one of the nation's strictest gun control laws.

Set for arguments on March 18 and with a decision expected by late June, the nation's highest court could resolve once and for all the much-disputed meaning of the Second Amendment of the U.S. Constitution.

Written 219 years ago, the amendment says, "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."

Few constitutional law issues have triggered more scholarly debate and historical research on whether the Constitution's authors intended to guarantee an individual right or a collective right tied to service in a state-regulated militia, like today's National Guard.

The arguments follow a series of mass shootings in the past year -- multiple killings on at least three college campuses, two shopping centers and one Missouri town meeting. Gun deaths average 80 a day in the United States, 34 of them homicides, according to Centers for Disease Control data, and yet the gun issue has barely registered in the U.S. presidential campaign.

If the court finds it is an individual right, gun control advocates fear it could place in jeopardy not only the ban on private handgun ownership in the U.S. capital at issue in the case, but also other laws around the country regulating and restricting private possession of firearms.

The Supreme Court's last review of the Second Amendment came in a five-page discussion in an opinion issued nearly 70 years ago that failed to definitively resolve the constitutional issue.

That could change when the justices consider whether a 32-year-old Washington, D.C., law banning private possession of handguns violates the Second Amendment rights of individuals unaffiliated with any state-regulated militia.

DIVISIVE ISSUE

Former top U.S. Justice Department officials including former Attorney General Janet Reno, law professors, linguistic experts and historians all argued the Second Amendment protects the right of people only to keep arms for militia service.

On the other side, the Bush administration, the powerful National Rifle Association, a majority of the U.S. Senate and a majority of the House of Representatives argued an individual has the right to possess arms.

The administration, under then-Attorney General John Ashcroft, reversed the position the federal government had taken for decades and said in 2001 the Second Amendment protected an individual right to possess firearms for a lawful private purpose.

Solicitor General Paul Clement, the administration's chief advocate before the Supreme Court, filed a brief with the justices that adopted many arguments made previously by legal scholars for an individual right to keep arms.

He said placement of the Second Amendment within the Bill of Rights reinforced the view that it was intended to put certain individual private activities beyond the reach of the national government.

Others disagreed, including 15 historians.

"As histories of the Revolutionary era, we are confident ... that the authors of the Second Amendment would be flabbergasted to learn that in endorsing the republican principle of a well-regulated militia, they were also precluding restrictions on such potentially dangerous property as firearms," they said.

Three professors of linguistics and English said the amendment's purpose was to preserve or perpetuate a well-regulated militia and that it used unmistakably military language.

"The term 'bear arms' is an idiom that means to serve as a soldier, do military service, fight," they said in citing the Oxford English Dictionary.

Former high-ranking U.S. military officers filed a brief that argued another interpretation -- that the amendment guarantees a blend of individual and community rights.

"The Second Amendment ensures both the individual's right to posses firearms, subject to reasonable regulation, and the constitutional goal of collective defense readiness," they said.

(Editing by Bill Trott)

    Right to bear arms at heart of high court case, R, 11.3.2008, http://www.reuters.com/article/newsOne/idUSN0722998120080311

Supreme Court Says 401(k) Participants Can Sue

February 20, 2008
By THE ASSOCIATED PRESS
Filed at 11:19 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court ruled Wednesday that individual participants in the most common type of retirement plan can sue under a pension protection law to recover their losses.

The unanimous decision has implications for 50 million workers with $2.7 trillion invested in 401(k) retirement plans.

James LaRue of Southlake, Texas, said the value of his stock market holdings plunged $150,000 when administrators at his retirement plan failed to follow his instructions to switch to safer investments.

The issue in the LaRue case was whether the Employee Retirement Income Security Act permits an individual account holder to sue plan administrators for breaching their fiduciary duties.

The language of the law refers to recovering money for the ''plan'' rather than for an individual, raising the question of whether a participant can sue solely for himself.

Justice John Paul Stevens, in his opinion for the court, said that such lawsuits are allowed. ''Fiduciary misconduct need not threaten the solvency of the entire plan to reduce benefits below the amount that participants would otherwise receive,'' Stevens said.

The decision overturned a ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Va.

Unlike people enrolled in traditional pension plans, employees in 401(k) plans, which have exploded in number in the past two decades, choose from a menu of options on where to invest their money. That puts workers squarely in the middle of decision-making about their pensions and inevitably leads to the kind of disputes LaRue has with his plan's administrators.

''Defined contribution plans dominate the retirement plan scene today,'' unlike when ERISA was enacted in the mid-1970s, Stevens said.

Many traditional pension plans guaranteeing a fixed monthly benefit have either been frozen or terminated, and 401(k) plans are the main source of retirement income, said the Air Line Pilots Association, which represents 60,000 pilots at 41 air carriers.

The Bush administration argued in support of workers. The government said the appeals court ruling barring LaRue's lawsuit would leave 401(k) participants without a meaningful remedy from any federal, state or local court when plan administrators fail to live up to their duties.

Business groups supported LaRue's employer. They argued that ERISA is aimed at encouraging employers to set up pension plans, while guarding against administrative abuses involving the plan as a whole. The law doesn't permit individual lawsuits like LaRue's, the business groups said.

Congress enacted ERISA after some widely publicized failures by companies and labor unions to pay promised pensions. Workers in class-action lawsuits have long relied on the law, most recently in the scandal-ridden collapses of companies like Enron and its 401(k) plan for workers.

The term 401(k) refers to a section of the Internal Revenue Code.

Participants in 401(k) plans do not know how much money they will receive in retirement. Employees invest a certain amount each month and how much they get back depends on how well their chosen investments have performed.

The case is LaRue v. DeWolff, 06-856.

    Supreme Court Says 401(k) Participants Can Sue, NYT, 20.2.2008, http://www.nytimes.com/aponline/us/AP-Scotus-Pension.html?ref=washington

Court Rules Against Judge Alex

February 20, 2008
Filed at 11:38 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court on Wednesday ruled against the star of the syndicated TV show ''Judge Alex,'' saying that an arbitrator must decide a fee dispute with an attorney who is claiming 12 percent of ''Judge Alex's'' earnings.

The 8-1 decision came in a lawsuit by Alex E. Ferrer, a former Florida Circuit Court judge who decides minor civil disputes as a form of TV entertainment.

Ferrer refused to pay a management fee to Arnold Preston after the two men had signed a contract that called for arbitration of any disputes.

Ferrer says Preston is not a licensed talent agent as California law requires.

Preston sought the money by starting a proceeding with the American Arbitration Association in Los Angeles. Ferrer filed a complaint with the California Labor Commissioner, seeking to invalidate the contract for the fees. Ferrer went to court when the labor commissioner said she lacked the power to block the arbitration.

At issue was the reach of the Federal Arbitration Act.

''When parties agree to arbitrate all questions arising under a contract, the FAA supersedes state laws,'' wrote Justice Ruth Bader Ginsburg.

In dissent, Justice Clarence Thomas said that the Federal Arbitration Act does not apply to proceedings in state courts.

The California Court of Appeal ruled in favor of the TV star, saying that the California Labor Commissioner must determine the issue of whether the attorney is required to have a license in order to recover the money to which he says he is entitled.

Supporting ''Judge Alex'' in the case were the Screen Actors Guild and the American Federation of Television & Radio Artists. They urged deference to California state law which regulates businessmen who procure employment for artists.

California law ''is critical to protecting vulnerable individuals in an environment where aspirants will do almost anything to 'make it big,''' the SAG and artists federation said in court papers.

Siding with Preston were the Chamber of Commerce and other business-oriented groups, which argue that determining the validity of the contract is a matter for arbitration. The court ruling in California ''undermines the core objectives'' of the Federal Arbitration Act, the chamber said.

The case is Preston v. Ferrer, 06-1463.

    Court Rules Against Judge Alex, NYT, 20.2.2008, http://www.nytimes.com/aponline/us/AP-Scotus-Judge-Alex.html?ref=washington

Justices Make It Tougher to Sue Medical Device Makers

February 20, 2008
The New York Times
By DAVID STOUT

WASHINGTON — In a case with huge implications for the health care-technology industry, the Supreme Court ruled on Wednesday that the manufacturer of a federally approved medical device cannot be sued under state law if the device causes an injury.

The 8-to-1 ruling in favor of Medtronic, the Minneapolis-based maker of cardiovascular devices, made it much more difficult for patients and their families to sue makers of medical devices that have been granted federal approval.

In 1996, a balloon catheter burst and severely injured Charles R. Riegel while he was undergoing an angioplasty. Mr. Riegel and his wife, Donna, sued the company in federal court, contending that the catheter had been designed, labeled and manufactured in a way that violated New York state law, and that those defects had caused severe and permanent injuries to Mr. Riegel.

But a federal district court and the United States Court of Appeals for the Second Circuit, in Manhattan, dismissed the Riegels’ suit on the ground that the catheter had been given premarket approval by the Food and Drug Administration, thus protecting the manufacturer from liability under state law. (The case of Riegel v. Medtronic was tried in federal court because the plaintiffs and defendant were based in different states.)

The Supreme Court upheld the lower federal courts on Wednesday, with Justice Antonin Scalia writing for the majority that Medtronic and other manufacturers were protected under the Medical Device Amendments of 1976, which in its section on pre-emption bars states from imposing on medical devices “any requirement which is different from, or in addition to, any requirement applicable under this chapter.”

But the justices’ ruling was hardly the last word on when F.D.A. approval bars patients from suing. They are already considering at least three cases involving drugs and drug-labeling.

Justice Scalia wrote that the F.D.A. spends an average of 1,200 hours reviewing each device application and grants premarket approval only if it finds there is a “reasonable assurance” of its “safety and effectiveness.”

“It may thus approve devices that present great risks if they nonetheless offer great benefits in light of available alternatives,” Justice Scalia wrote, noting that the F.D.A. approved a ventricular assist device for children with failing hearts “even though the survival rate of children using the device was less than 50 percent.”

Justice Scalia said jurors would probably not be in a position to weigh the benefits and dangers of medical devices as well as agency experts. A jury, he wrote, “sees only the cost of a more dangerous designed, and is not concerned with its benefits; the patient who reaped those benefits are not represented in court.”

The majority was apparently persuaded by Theodore B. Olson, the lawyer for Medtronics, who argued before the justices on Dec. 4 that the F.D.A. and not the courts was the right forum for imposing requirements on cutting-edge medical devices. Arguing that “nothing is perfectly safe,” Mr. Olson argued that it would harm patients and future patients to “discourage the marketing of products that might save our lives.”

Medtronic, one of the world’s largest manufacturers of cardiovascular devices, no longer makes the type of catheter used on Mr. Riegel, who died several years after the operation. As part of its defense, the company maintained that the doctor involved failed to heed a warning not to use the device on a patient who had calcified arteries, as Mr. Riegel did.

Justice Ruth Bader Ginsburg was the lone dissenter on Wednesday, asserting that the majority had adopted an unnecessary “constriction of state authority.” Justice Ginsburg said she did not believe that Congress had intended to bring about “a radical curtailment of state common-law suits seeking compensation for injuries caused by defectively designed or labeled medical devices.”

In this case, the Bush administration had taken the side of the medical-device industry, arguing argued that there would be “serious undermining of F.D.A.’s approval authority and its balancing of the risks and benefits” if juries could second-guess the agency.

Allison M. Zieve, the lawyer for Donna Riegel, expressed her disappointment to Bloomberg News. “Pretty bad for patients, pretty good for industry profits,” she said.

    Justices Make It Tougher to Sue Medical Device Makers, NYT, 20.2.2008, http://www.nytimes.com/2008/02/20/washington/20cnd-device.html?hp

Court Extends Cross-Examination Rule

February 20, 2008
Filed at 10:45 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court has decided that state courts may apply its rulings to old cases, opening the way for an imprisoned child sex abuser to challenge his conviction.

By a 7-2 vote, the court is saying the Minnesota Supreme Court wrongly concluded that it could not offer relief to Stephen Danforth. He is serving a 26-year prison sentence for sexually abusing a 6-year-old boy.

Danforth never had a chance to cross-examine his accuser. The U.S. high court ruled in 2004 that defendants must have that opportunity.

    Court Extends Cross-Examination Rule, NYT, 20.2.2008, http://www.nytimes.com/aponline/us/AP-Scotus-Witnesses.html?ref=washington

Court Invalidates Maine Tobacco Law

February 20, 2008
Filed at 11:09 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court on Wednesday invalidated parts of Maine's law barring Internet tobacco sales to minors.

In a unanimous decision, the court said Maine cannot impose a regulatory scheme on transportation companies delivering tobacco products directly to consumers. The justices said federal transportation law blocks the states from doing so.

The ruling could provide the impetus for the transportation industry to get out from under state laws regulating cigarette deliveries in the Internet age.

''Despite the importance of the public health objective, we cannot agree'' with Maine's approach, Justice Stephen Breyer wrote.

Breyer wrote that federal law ''says nothing about a public health exception'' enabling state regulation.

Federal law bars states from regulating prices, routes or services of shipping companies.

Because of Maine's regulation, companies will have to offer tobacco delivery services ''that differ significantly'' from what the market might dictate, Breyer wrote.

Thirty-one states besides Maine have cigarette delivery laws targeting the problem of underage smokers.

Maine's law requires delivery companies to intercept packages from unlicensed tobacco sellers and to verify the age of buyers, hitting delivery companies with huge additional costs, the industry says.

Maine passed the law to ensure state tax collections and to keep cigarettes out of the hands of youths under the age of 18.

The state of Maine argued that federal law does not pre-empt state regulation for public health and safety. The 1st U.S. Circuit Court of Appeals in Boston disagreed, rejecting Maine's argument that the federal law trumps state law only when it comes to traditional economic regulation of carriers.

The Bush administration sided with the delivery companies, declaring that when Congress deregulated the transportation industry, it determined that states should not step in to fill the void.

Congress deregulated truckers to put them on the same competitive footing with the deregulated airline industry.

The delivery companies are fighting Maine's law at the same time the industry's biggest players have stopped shipping cigarettes directly to consumers from illegal Internet sellers. The largest companies agreed to do so in the face of an aggressive campaign by the state of New York.

The ruling against Maine's law could enable the industry to argue that similar laws in other states are invalid. The decision could clear the way for companies to challenge the New York law and the agreements.

The case is Rowe v. New Hampshire Motor Transport Association, 06-457.

------

On the Net:

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

    Court Invalidates Maine Tobacco Law, NYT, 20.2.2008, http://www.nytimes.com/aponline/us/AP-Scotus-Cigarettes.html?ref=washington

Top court won't review Bush domestic spying case

Tue Feb 19, 2008
1:39pm EST
Reuters
By James Vicini

WASHINGTON (Reuters) - The Supreme Court on Tuesday turned down a legal challenge to the warrantless domestic spying program President George W. Bush created after the Sept. 11 attacks.

The American Civil Liberties Union had asked the justices to hear the case after a lower court ruled the ACLU and other groups and individuals that sued the government had no legal right to do so because they could not prove they had been affected by the program.

The civil liberties group also asked the nation's highest court to make clear that Bush does not have the power under the U.S. Constitution to engage in intelligence surveillance within the United States that Congress has expressly prohibited.

"It's very disturbing that the president's actions will not be reviewed by the Supreme Court," said Jameel Jaffer, director of the ACLU's National Security Project. "Allowing the executive branch to police itself flies in the face of the constitutional system of checks and balances."

Bush authorized the program to monitor international phone calls and e-mails of U.S. citizens without first obtaining a court warrant. The program's disclosure in December 2005 caused a political uproar among Democrats, some Republicans and civil liberties activists.

The administration abandoned the program about a year ago, putting it under the surveillance court that Congress created more than 30 years ago.

Steven Shapiro, the ACLU's legal director, expressed disappointment that the high court refused to review the case.

"Today's action says nothing about the case's merits and does not suggest in any way an endorsement of the lower court's decision. The court's unwillingness to act makes it even more important that Congress insist on legislative safeguards that will protect civil liberties without jeopardizing national security," he said.

The journalists, scholars, attorneys and national advocacy groups that filed the lawsuit said the illegal surveillance had disrupted their ability to communicate with sources and clients.

A U.S. appeals court based in Cincinnati dismissed the case because the plaintiffs could not state with certainty they had been wiretapped by the government's National Security Agency.

Administration lawyers opposed the appeal and said further review by the Supreme Court was unwarranted.

The Supreme Court sided with the administration and rejected the appeal without any comment.

(Reporting by James Vicini, editing by Lori Santos)

    Top court won't review Bush domestic spying case, R, 19.2.2008, http://www.reuters.com/article/politicsNews/idUSN1925683320080219

Bush Appeals to Justices on Detainees Case

February 15, 2008
The New York Times
By LINDA GREENHOUSE

WASHINGTON — The Bush administration asked the Supreme Court on Thursday to review an appeals court decision that it said had created a “serious threat to national security” by requiring the government to supply extensive evidence supporting the classification of more than 180 Guantánamo detainees as enemy combatants.

The administration asked the court to choose one of two options: either accept its appeal for expedited review, with arguments taking place in May and a decision to come in the current term, or defer action until the justices decide the case on the rights of the Guantánamo prisoners that is currently before them.

Under either option, the administration is seeking a stay of the lower court’s ruling, which it characterized as “serious legal error.”

The ruling, issued last July by a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, became final on Feb. 1 when the full appeals court rejected the administration’s request for reconsideration by a vote of 5 to 5.

On Wednesday, the appeals court granted a stay until Feb. 21 to permit the administration to seek relief in the Supreme Court.

The new case, Gates v. Bismullah, and the case already pending before the Supreme Court, Boumediene v. Bush, deal with separate but intertwined aspects of the legal system Congress has created to deal with the Guantánamo prisoners. The pending case questions whether Congress had the constitutional authority to bar the federal courts from hearing petitions for habeas corpus filed on behalf of those who are challenging their open-ended confinement.

The new case deals with the method Congress established for detainees to contest their designation, by military panels called Combatant Status Review Tribunals, as enemy combatants. These designations may be appealed to the District of Columbia Circuit. The question is what evidence the government must present to the appeals court to defend the tribunal’s conclusion.

The appeals court ruled that the government must provide “all the information” that the tribunal was “authorized to obtain and consider,” regardless of whether the tribunal actually did consider the evidence. When the government argued before the appeals court that it had not preserved evidence that it did not present to the tribunals, the judges’ response was that the government in that case was obliged to convene new tribunals.

The decision will require “an enormous outlay of government resources” and “impose extraordinary compliance burdens,” the administration told the Supreme Court on Thursday. It added that it should not have to undertake this task at this point, because the pending Boumediene case “will almost certainly directly impact this case” and might “change the scope of the government’s task.”

If the Supreme Court rules in the Boumediene case that the prisoners do have a basic right to habeas corpus, the justices must then decide whether the appeals process at issue in the new case serves as a satisfactory alternative to a formal habeas corpus proceeding. The detainees’ lawyers have argued vigorously that it does not. The answer to that question, in turn, may well depend on what the appeals process actually consists of, which is the question in the new case.

    Bush Appeals to Justices on Detainees Case, NYT, 15.2.2008, http://www.nytimes.com/2008/02/15/washington/15scotus.html

Editorial

Secrets and Rights

February 2, 2008
The New York Times
 

President Bush’s excesses in the name of fighting terrorism are legion. To avoid accountability, his administration has repeatedly sought early dismissal of lawsuits that might finally expose government misconduct, brandishing flimsy claims that going forward would put national security secrets at risk.

The courts have been far too willing to go along. In cases involving serious allegations of kidnapping, torture and unlawful domestic eavesdropping, judges have blocked plaintiffs from pursuing their claims without taking a hard look at the government’s basis for invoking the so-called state secrets privilege: its insistence that revealing certain documents or other evidence would endanger the nation’s security.

As a result, victims of serious abuse have been denied justice, fundamental rights have been violated and the constitutional system of checks and balances has been grievously undermined.

Congress — which has allowed itself to be bullied on national security issues for far too long — may now be ready to push back. The House and Senate are developing legislation that would give victims fair access to the courts and make it harder for the government to hide illegal or embarrassing conduct behind such unsupported claims.

Last week, Senator Edward Kennedy, the Massachusetts Democrat, and Arlen Specter, Republican of Pennsylvania, jointly introduced the State Secrets Protection Act. The measure would require judges to examine the actual documents or other evidence for which the state secrets privilege is invoked, rather than relying on government affidavits asserting that the evidence is too sensitive to be publicly disclosed. Senator Patrick Leahy, chairman of the Senate Judiciary Committee and an important supporter of the reform, has scheduled a hearing on the bill for Feb. 13. Representative Jerrold Nadler, Democrat of New York, expects to introduce a similar measure in the House.

Of course, legitimate secrets need to be protected, and the legislation contains safeguards to ensure that.

To allow cases to go forward, the bill gives judges the authority to order the government to provide unclassified or redacted substitutes. It also gives those making claims against the government a chance to make a preliminary case using evidence that they have gathered on their own.

In October, the Supreme Court passed up an opportunity to rein in the administration’s abuse of state secrets claims and establish new procedures for dealing with potentially sensitive evidence.

The justices declined to take up the case of Khaled el-Masri, an innocent German citizen of Lebanese descent who was kidnapped, detained and tortured in a secret overseas prison as part of the administration’s extraordinary rendition program. Lower federal courts had dismissed Mr. Masri’s civil lawsuit, reflexively bowing to the administration’s claim that proceeding would compromise national security.

Since the Supreme Court has abdicated its responsibility, Congress must now act. Too many laws have been violated, and too many Americans and others have been harmed under a phony claim of national security.

    Secrets and Rights, NYT, 2.2.2008, http://www.nytimes.com/2008/02/02/opinion/02sat1.html

Court refuses to hear Enron case

22 January 2008
AP
USA Today

WASHINGTON (AP) — The Supreme Court dealt a blow Tuesday to Enron investors who sued major investment banks to recover money lost when the Texas energy giant collapsed amid a massive accounting fraud.

By refusing to review the investors' lawsuit, the court took away what may have been their only hope of keeping the case alive.

Enron stockholders may seek to revive their case in the lower federal courts, though the 5th U.S. Circuit Court of Appeals in New Orleans has ruled against them once before.

Enron's demise wiped out thousands of jobs, more than $60 billion in market value and more than $2 billion in pension plans.

Tuesday's turndown for the Enron investors came without comment in a routine Supreme Court list of cases the justices had decided not to hear.

The chances that Enron shareholders can recover some money dimmed a week ago with the Supreme Court's decision against investors in a separate suit. It alleged that two suppliers doing business with a cable TV company engaged in securities fraud.

That suit was politically sensitive for the Bush administration because of its potential to affect the Enron case. The administration sided with the business community against investors, despite the recommendation of the Securities and Exchange Commission to side with the investors. It was left to attorneys general from 30 states to support shareholders in the case against the cable TV suppliers.

The justices ruled that the investors in Charter Communications Inc. did not have the right to sue because they did not rely on the deceptive acts of the suppliers.

The same principle could apply to the Enron case, where investors relied on Enron's glowing description of its business, but were arguably unaware of any deceptive conduct by the investment banks.

Lawyers for Enron investors say the circumstances in the two cases are not comparable.

In the Enron suit, stockholders are accusing Wall Street investment banks of colluding with the energy company to hide its losses.

To date, Enron plaintiffs have settled for $7.3 billion from several financial institutions including JPMorgan Chase & Co., Citigroup and Canadian Imperial Bank of Commerce.

Enron stockholders are seeking more than $30 billion from Merrill Lynch & Co., Credit Suisse First Boston and Barclays Bank PLC.

The investment banks, say Enron investors, schemed with the energy company, scheming with Enron by entering into partnerships and transactions that enabled the energy company to take liabilities off its books, recording revenue from the deals when it was actually incurring debt.

Now that the Supreme Court has rejected the case, "I think that the chances of succeeding on a scheme liability theory are nearly zero; the resolution of this Enron case was made clear by the decision" last week against investors in the cable TV suppliers suit, said attorney Greg Markel, who represents corporate clients in securities fraud lawsuits.

Last March, the appeals court in New Orleans reversed a decision by U.S. District Judge Melinda Harmon in Houston, who had said Enron shareholders could sue as a class.

The issue of certifying a class is a critical one. Once the courts allow huge numbers of investors to pursue a securities fraud lawsuit, the defendants almost always settle rather than exposing their corporations to potentially catastrophic liability.

The appeals court decision in the Enron case meant that shareholders and investors could not pool their resources to sue as a group. Lawyers for Enron investors estimate the class size at over 1 million shareholders.

Enron Corp., once the nation's seventh-largest company, crumbled into bankruptcy in December 2001. The failure became a symbol of the corporate scandals that rocked Wall Street early this decade.

The Enron case is University of California Regents v. Merrill Lynch, 06-1341.

    Court refuses to hear Enron case, UT, 22.1.2008, http://www.usatoday.com/news/washington/2008-01-22-court-enron_N.htm

Justices Uphold New York’s Trial Judge System

January 16, 2008
Filed at 10:35 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court unanimously upheld New York's unique system of choosing trial judges Wednesday, setting aside critics' concerns that political party bosses control the system.

''A political party has a First Amendment right to limit its membership as it wishes and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform,'' Justice Antonin Scalia wrote for the court.

In New York, primary voters elect convention delegates who choose candidates for the judgeships. Once nominated, those candidates run on the general election ballot. In practice, they frequently have no opposition.

Unsuccessful candidates for judgeships and a watchdog group filed a lawsuit challenging the system. A federal district judge and the 2nd U.S. Circuit Court of Appeals agreed that it is very difficult for candidates to get on the ballot if they don't have support of the party leaders.

In striking down the system, the two federal courts said judgeship candidates who are not the choice of the party leaders are excluded from elections by an onerous process that violates their First Amendment rights.

The high court on Wednesday reversed the lower courts.

Scalia said there is nothing unconstitutional about the process. The system's opponents ''complain not of the state law, but of the voters' (and their elected delegates') preference for the choices of the party leadership,'' Scalia said.

He said the state legislature is free to return to a primary if it wishes.

Justice John Paul Stevens chimed in with a brief opinion distinguishing between a constitutional system and wise public policy, resorting to the words of former Justice Thurgood Marshall. ''The Constitution does not prohibit legislatures from enacting stupid laws,'' Stevens said, quoting Marshall.

Critics have said the conventions are patronage-driven affairs in which allies of party leaders are rewarded with judgeships and all others are shut out.

The appeals court said that between 1990 and 2002, almost half the state's elections for Supreme Court justice -- trial judges in New York's judiciary -- were uncontested, calling them ''little more than ceremony.''

The appeals court ordered the state to dispense with the conventions and switch to primary elections until state lawmakers come up with a new plan. Many legal and civics groups have come out in favor of appointing judges in New York.

The U.S. Supreme Court previously has ruled that states can decide whether to use conventions or primaries to nominate candidates. States also can choose to have judges appointed rather than elected.

Margarita Lopez Torres became the lead plaintiff in the lawsuit after Democratic leaders in Brooklyn blocked her from getting the party's nomination for a Supreme Court judgeship. She said the leaders turned against her shortly after her election as a civil court judge when she would not hire people they recommended. Three years later, Lopez Torres said they offered her a second chance if she would hire a leader's daughter. She refused.

The state, the Democratic and Republican parties and the elections board joined to ask the high court to reverse the appeals court ruling. Former New York Mayor Ed Koch was among a diverse group of politicians and legal groups asking the court to uphold the lower court rulings.

The state Legislature adopted the nominating conventions 86 years ago. Lawmakers scrapped direct primaries for New York's Supreme Court justices because of the potentially corrupting influence of having prospective judges raising campaign money. Other judges in New York are elected through primaries.

The plaintiffs have said the current system leads to cozy relationships among judges, lawyers and politicians.
 

The case is New York Board of Elections v. Torres, 06-766.

    Justices Uphold New York’s Trial Judge System, NYT, 16.1.2008, http://www.nytimes.com/aponline/us/AP-Scotus-Judicial-Elections.html?hp

Supreme Court Upholds Curb on Investor Lawsuits

January 15, 2008
The New York Times
By DAVID STOUT

WASHINGTON — In one of the most closely watched business cases in years, the Supreme Court on Tuesday upheld protections for secondary players in securities-fraud schemes, as opposed to the primary engineers of those plots. The court ruled, 5 to 3, against plaintiffs who had sued two cable television equipment suppliers whose dealings with a cable television company had allowed the cable outfit to inflate its earnings and hide its failure to achieve its financial goals.

Although the outcome of the case, Stoneridge Investment Partners v. Scientific-Atlanta Inc., No. 06-43, hinged on terminology that might seem technical and arcane to a layman, the case is likely to be felt far beyond Wall Street, as lawyers for investors and businesses fight over who can be sued and who cannot.

The Stoneridge ruling appears to offer protection for accountants, lawyers and others who may know about corporate shenanigans but can establish that they are not directly involved in them. Defense lawyers in shareholders’ suits often complain that defendants can be forced to settle claims with little merit rather than risk prolonged and costly litigation

A key question in the case decided on Tuesday was whether Scientific-Atlanta and the other defendant, Motorola, were “primary violators” in a sham bookkeeping transaction with Charter, or if they were guilty only of “aiding and abetting” a fraud engineered by Charter.

At the request of Charter, which in mid-2000 was falling short of its cash-flow target, Scientific-Atlanta and Motorola agreed to increase their prices for the cable boxes they sold to Charter and to use the extra money to buy advertising on Charter’s cable stations. The arrangement allowed Charter to treat the advertising purchases as current revenue while listing the money spent on cable boxes as a capital expense.

In fact, four Charter executives eventually pleaded guilty to criminal charges, and Charter paid $144 million to settle a suit brought by Stoneridge on behalf of shareholders.

When the case was argued before the justices on Oct. 9, the lawyer for Scientific-Atlanta and Motorola asserted that, at worst, his clients had aided and abetted Charter’s fraud, and thus should not be liable.

Subtle or not, the difference between a primary violation and aiding and abetting was all-important in the case decided on Tuesday. The reason is that in a 1994 case, Central Bank of Denver v. First Interstate Bank, the Supreme Court ruled that laws governing securities did not provide for any liability for “aiding and abetting.”

Although Congress responded to that decision by giving the Securities and Exchange Commission the authority to bring lawsuits for aiding and abetting, it did not give private plaintiffs the authority to do so.

Any decision to give private litigants the power to sue aiders and abetters “is thus for the Congress, not for this court,” Justice Anthony M. Kennedy wrote for a majority that also included Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

The majority noted that, whatever deception was committed by the defendants, “their deceptive acts were not communicated to the investing public during the relevant times,” and that it was Charter that misled auditors and filed fraudulent financial statements.

In dissent, Justice John Paul Stevens asserted that the majority had gone way beyond the boundaries of the 1994 Central Bank ruling, largely because Scientific-Atlanta and Motorola had clearly engaged in a fraud, unlike the defendant in the 1994 case.

“What the court fails to recognize is that this case is critically different from Central Bank,” Justice Stevens wrote. He was joined in dissent by Justices David H. Souter and Ruth Bader Ginsburg. Justice Stephen G. Breyer took no part in the case, presumably because he has investments in one of the companies involved.

The majority opinion upheld a federal district court in Missouri, which had dismissed the suit, and the United States Court of Appeals for the Eighth Circuit, which had upheld the dismissal.

The Bush administration had been divided over which side to support. The S.E.C. had voted, 3 to 2, to side with the shareholders. But Treasury Secretary Henry M. Paulson Jr. opposed that position and won the support of President Bush. Some former S.E.C. members filed briefs supporting the plaintiffs, while others sided with the defendants.

    Supreme Court Upholds Curb on Investor Lawsuits, NYT, 15.1.2008, http://www.nytimes.com/2008/01/15/washington/15cnd-scotus.html

Supreme Court Hears Voter ID Case

January 9, 2008
Filed at 1:18 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court appeared reluctant Wednesday to strike down the nation's strictest requirement that voters show photo identification before being allowed to cast a ballot.

The justices heard arguments over an Indiana law, passed in 2005, that's backed by Republicans as a prudent way to deter voter fraud. Democrats and civil rights groups challenging the law as unconstitutional call it a thinly veiled effort to discourage elderly, poor and minority voters -- those most likely to lack proper ID and who tend to vote for Democrats.

''You want us to invalidate the statute because of minimal inconvenience?'' Justice Anthony Kennedy said near the end of an hour-long argument. Kennedy, often a key vote, appeared more willing than some to consider changes to the law.

More than 20 states require some form of identification at the polls. Courts have upheld voter ID laws in Arizona, Georgia and Michigan, but struck down Missouri's. Wednesday's case should be decided by late June, in time for the November elections.

Paul Smith, representing the challengers, told the justices that there is no evidence of in-person voter fraud in Indiana. He said the law is a subtle way ''to skew the outcome on election days.''

Indiana Solicitor General Thomas Fisher said the vast majority of Indiana voters easily comply with the law. ''You're talking about an infinitesimal portion of the electorate that could be burdened,'' Fisher said under sharp questioning from Justice David Souter.

Justice Samuel Alito, who appeared more sympathetic to Indiana's case, posed the question that troubled several justices.

With little evidence of fraud or of voters who have been kept from voting, Alito said, ''The problem I have is, where do you draw the line? There is nothing to quantify the extent of the problem or the extent of the burden.''

Chief Justice John Roberts, who grew up in Indiana, and Justice Antonin Scalia indicated strong support for the state law. Justice Clarence Thomas said nothing, but most often votes with his conservative colleagues.

When Smith said poor voters lacking ID have to visit the county courthouse within 10 days of an election and sign a sworn statement there to have their ballot counted, Roberts asked, ''How far away is the furthest county seat? It's not very far away in Indiana.''

The case seemed to break along familiar ideological lines, with the court's four liberal justices more critical of the state.

Justice Ruth Bader Ginsburg focused her questions on the difficulties for indigent voters who lack IDs. Why, she asked, can't the state allow those voters to sign the sworn statement on Election Day, which would eliminate the second trip to the county courthouse?

Told Indiana wants to avoid congestion at the polls, Ginsburg said the state wants to have it both ways because it argues relatively few people are affected by the law. ''If there are so few of them, I don't understand why they should be put to the burden,'' Ginsburg said.

Souter and Justice John Paul Stevens both pressed Fisher on the state's problems with voter registration rolls, which Fisher acknowledged are among the nation's worst in terms of retaining the names of the dead and those who have moved. Indianans are not required to show photo ID to register.

The state's ''policy is to have it tougher to vote than to register?'' Stevens said. ''That doesn't make sense to me.''

The justices could use the case to instruct courts on how to weigh claims of voter fraud versus those of disenfranchisement.

Justice Stephen Breyer wondered why the state doesn't just give photo IDs to newly registered voters who otherwise lack them. ''That would satisfy your anti-fraud interest much better than the way you have chosen,'' Breyer told Fisher.

The Supreme Court was bitterly divided, 5-4, in 2000 in Bush v. Gore, the case that clinched the presidential election for George W. Bush.

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

(This version CORRECTS to reflect Roberts grew up in, insted of was born in, Indiana.)

    Supreme Court Hears Voter ID Case, NYT, 9.1.2008, http://www.nytimes.com/aponline/us/AP-Scotus-Voter-ID.html

Justices Chilly to Bid

to Alter Death Penalty

January 8, 2008
The New York Times
By LINDA GREENHOUSE

WASHINGTON — With conservative justices questioning their motives and liberal justices questioning their evidence, opponents of the American manner of capital punishment made little headway Monday in their effort to persuade the Supreme Court that the Constitution requires states to change the way they carry out executions by lethal injection.

Donald B. Verrilli Jr., the lawyer for two inmates on Kentucky’s death row who are facing execution by the commonly used three-chemical protocol, conceded that theoretically his clients would have no case if the first drug, a barbiturate used for anesthesia, could be guaranteed to work perfectly by inducing deep unconsciousness.

But as a practical matter, Mr. Verrilli went on to say, systemic flaws in Kentucky’s procedures mean that there can be no such guarantee, and the state’s refusal to take reasonable steps to avoid the foreseeable risk of “torturous, excruciating pain” makes its use of the three-drug procedure unconstitutional.

It was here that Mr. Verrilli met resistance from both sides of the court, and the closely watched case appeared to founder in this gap between theory and practice.

Of the 36 states with the death penalty, all but Nebraska, which still uses only the electric chair, specify the same three-drug sequence for lethal injections. The second drug, pancuronium bromide, paralyzes the muscles with suffocating effect. The third, potassium chloride, stops the heart and brings about death, but not before causing searing pain if the anesthesia does not work as intended. The paralyzing effect of the second drug gives the inmate a peaceful appearance and, even if he is in great pain because of inadequacy of the anesthesia, renders him unable to communicate that fact.

Mr. Verrilli said the risk of pain could be eliminated if medically trained personnel, rather than the prison warden, monitored the anesthesia. When Justice Antonin Scalia objected that the American Medical Association’s ethical code prohibited doctors from participating in executions, Mr. Verrilli replied, “That’s why there is another practical alternative here, which solves that problem.” The alternative, he said, is a “single dose of barbiturate, which does not require the participation of a medically trained professional.”

Chief Justice John G. Roberts Jr. asked what the court should do “if you prevail here, and the next case is brought by someone subject to the single-drug protocol, and their claim is, ‘Look, this has never been tried.’”

Further, the chief justice said, the inmate might object that death would take longer without the third drug, and would appear less “dignified” because of muscle contractions that are suppressed by the second drug.

“You have objections that would apply even to your single-drug protocol,” Chief Justice Roberts said.

While the chief justice’s skepticism was not unexpected, Justice Stephen G. Breyer’s response to Mr. Verrilli’s argument was a surprise. Justice Breyer told Mr. Verrilli he had read scientific articles supporting the one-drug protocol that were cited in the briefs filed by the inmates and had found them confusing.

“So I’m left at sea,” he said. “I understand your contention. You claim that this is somehow more painful than some other method. But which? And what’s the evidence for that? What do I read to find it?”

“I ended up thinking, of course there is a risk of human error,” Justice Breyer continued. “There is a risk of human error generally where you’re talking about the death penalty, and this may be one extra problem, one serious additional problem. But the question here is, Can we say that there is a more serious problem here than with other execution methods?”

Often, such doubts about the quality of the evidence lead the court to send a case back to the lower courts for further factual development. Mr. Verrilli said that although the record was sufficiently clear for the justices to proceed, “it certainly would be a reasonable thing to do” to send the case back to the Kentucky courts, which rejected the challenge to the three-drug protocol without considering whether the availability of the single-drug alternative meant that inmates were being subjected to an unnecessary risk of pain.

But Justice Scalia served notice that the conservatives on the court would be disinclined to take that route. “I’m very reluctant to send it back to the trial court so we can have a nationwide cessation of all executions while the trial court finishes its work,” he said, “and then it goes to another appeal to the State Supreme Court, and ultimately — well, it could take years.”

Since September, when it agreed to hear this case, Baze v. Rees, No. 07-5439, the Supreme Court has routinely granted stays of execution to inmates challenging lethal injection. State and lower federal courts have also granted stays, leading to a de facto national moratorium that brought executions last year to the lowest level since 1994.

The Supreme Court’s actions, first in agreeing to hear the case and then in granting the stays of execution, raised expectations among some opponents of the death penalty that the justices were inclined to be sympathetic to the arguments against the three-drug protocol. But as the argument proceeded on Monday, another possibility appeared at least as likely: that the votes to hear the case had come from justices who regarded the challenge as insubstantial and wanted to dispose of it before many more state and federal courts could be tied up with similar cases.

If that was the case, then the subsequent stays of execution were simply routine, different only in context from the dozens of federal sentencing appeals that were held up pending the justices’ decisions in two cases on the federal sentencing guidelines. The justices disposed of all the sentencing cases in orders issued on Monday, their first day back at work since the two decisions were issued on Dec. 10.

Arguing for Kentucky, Roy T. Englert Jr. said the state “has excellent safeguards in place” to ensure the adequacy of the anesthesia. Any risk that the inmate will feel pain is minimal, he told the justices. The one execution that Kentucky has carried out by lethal injection did not cause any known problems.

“The record is very persuasive in your favor, I have to acknowledge,” Justice John Paul Stevens told Mr. Englert.

Justice Stevens then pressed Mr. Englert to justify the state’s use of the second drug, and Mr. Englert replied that it served to protect the inmate’s dignity. The justice was unpersuaded, remaining “terribly troubled,” he said, by the fact that the drug appeared “almost totally unnecessary” except to spare witnesses the “unpleasantness” of seeing the inmate twitch or grimace.

But perhaps sensing that there would not be five votes to eliminate the drug, Justice Stevens suggested a minimalist approach: rule that “Kentucky is doing an adequate job of administering this protocol” and save the underlying question of the protocol’s constitutionality for another day.

    Justices Chilly to Bid to Alter Death Penalty, NYT, 8.1.2008, http://www.nytimes.com/2008/01/08/us/08scotus.html

Supreme Court takes up

major death penalty case

Mon Jan 7, 2008
9:42am EST
Reuters
By James Vicini

WASHINGTON (Reuters) - The Supreme Court will hear arguments on Monday in a death penalty case being watched around the world, to decide whether the lethal injections used to execute criminals cause unacceptable pain.

The hearing on whether the three-chemical cocktail used to end the lives of death row inmates violates the constitutional ban on cruel and unusual punishment marks the first time the court has considered a specific means of execution since it upheld the use of firing squads in 1879.

Although the session will focus on that narrow issue, it has prompted a nationwide debate on capital punishment itself in one of the few democracies that still permit it.

Executions across the United States have come to a temporary halt since the court agreed in late September to decide the case, falling last year to a 13-year low of 42.

Last month, New Jersey became the first state to abolish the death penalty since the Supreme Court reinstated it in 1976, reducing the number of states with capital punishment on their books to 36.

Attorneys for two Kentucky death row inmates argued in their appeal to the Supreme Court that the current lethal injection method can cause excruciating and needless pain.

They said the evolution of execution methods in the United States, from hanging in the 19th century to electrocution and then lethal gas, reflected a continuing quest to find a more humane way of killing, but that each new method turned out to be less humane than intended.

But Kentucky and the Bush administration argued that the current procedures are intended to cause death in a painless, quick manner.

The court's ruling, expected by the end of June, could decide if the current lethal drug combination is constitutional or whether states have to come up with alternatives that pose less risk of pain and suffering.

Support for the death penalty remains strong in the United States at around 60-65 percent of the public, but has fallen significantly in recent years as DNA tests have helped exonerate 15 people convicted to die, according to the Death Penalty Information Center, an anti-capital punishment group.
 

(Reporting by James Vicini, editing by Alan Elsner and David Alexander)

    Supreme Court takes up major death penalty case, R, 7.1.2008, http://www.reuters.com/article/domesticNews/idUSN0432251620080107

Justices to Decide

if Rape of a Child Merits Death

January 5, 2008
The New York Times
By LINDA GREENHOUSE

WASHINGTON — The Supreme Court agreed on Friday to decide whether the Constitution allows the death penalty for the rape of a child.

The justices acted only three days before a scheduled argument in another important death penalty case, on the standard for judging whether chemicals used to administer lethal injections make that method of execution unconstitutionally cruel.

The new case, from Louisiana, is likely to be argued in April, meaning that during the course of its current term, the Supreme Court will be examining both the most common method of execution and a categorical question about which crimes are appropriate for the death penalty.

No one has been executed in the United States for a crime other than murder since 1964. Of some 3,300 inmates of death row today, only two are facing execution for an offense that did not involve a killing. Both are on Louisiana’s death row. The Supreme Court agreed to hear an appeal from one of them, Patrick Kennedy, who was convicted and sentenced to death in 2004 for raping his 8-year-old stepdaughter.

In 1977, as part of its wide-ranging re-examination of capital punishment, the Supreme Court prohibited the death penalty for rape. While that ruling, Coker v. Georgia, did not specifically discuss the rape of a child — the victim, although only 16, was a married woman who was raped at knifepoint — the decision has been widely understood as limiting the death penalty to the crime of murder.

In the principal opinion in the Coker case, Justice Byron R. White wrote that “we have the abiding conviction that the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life.”

But in recent years, a handful of states, responding to public outcries about sex crimes against children, have amended their death penalty statutes to make the rape of a child a capital offense. Louisiana was the first to do so, amending its death-penalty law in 1995 to apply to the rape of a child under the age of 12. The other states with similar provisions are Georgia, Montana, Oklahoma, South Carolina and Texas. Unlike Louisiana, most limit the death penalty to defendants who were previously convicted of sexual assault against a child.

The Louisiana Supreme Court rejected Mr. Kennedy’s appeal last year in a 64-page opinion that concluded that “rape of a child under the age of 12 years of age is like no other crime” and that death was not a disproportionate punishment. Taking note of the recent state laws, the court said there was “compelling” evidence of a national trend toward treating the crime as distinct from others.

The United States Supreme Court’s recent death penalty jurisprudence has paid close attention to evidence of whether contemporary society has reached a consensus on particular applications of capital punishment. The court relied on such an analysis to rule out the death penalty for mentally retarded defendants in 2002 and for juvenile killers in 2005. Louisiana is now invoking the same approach to argue that an application of the death penalty once widely deemed unconstitutional has become permissible.

Mr. Kennedy’s lawyers are arguing that any such “trend” is illusory. “By any objective measure,” their brief says, Mr. Kennedy’s sentence “is not only cruel and unusual; it is cruel and unique.”

The other inmate is Richard Davis, who was sentenced to death on Dec. 12 for sexually molesting a 5-year-old girl.

The appeal, Kennedy v. Louisiana, No. 07-343, was filed by lawyers from the Capital Appeals Project, in New Orleans; the Stanford Law School Supreme Court Litigation Clinic; and a New Orleans law firm, Adams and Reese.

Among other briefs filed at the court on Mr. Kennedy’s behalf was one from the National Association of Criminal Defense Lawyers, arguing that the Louisiana law presents “an intolerably high risk” that innocent defendants will be put to death. The reason, the group asserts, is that testimony by children, who are usually the principal witnesses in child rape cases, is often unreliable.

Another brief, from social workers and organizations working with sexual assault victims, describes the Louisiana law, with its broad definition of rape and its drastic penalty, as counterproductive and likely to lead to under reporting of offenses, especially within families.

    Justices to Decide if Rape of a Child Merits Death, NYT, 5.1.2008, http://www.nytimes.com/2008/01/05/washington/05scotus.html