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

Ed Stein

cartoon

The Rocky Mountain News

Colorado

Cagle

2.7.2008

The Nation

2,691 Decisions

July 13, 2008
The New York Times
By LINDA GREENHOUSE

WASHINGTON — Sometime during the first of my nearly 30 years reporting on the Supreme Court, a distinct visual image of a Supreme Court term took hold in my mind and never let go. The nine-month term was a mountain. My job was to climb it.

The slope was gentle when the term began, every first Monday in October; the court was busy choosing new cases and hearing arguments, but it was not yet ready to issue decisions. The upward path steepened in January and February, when grants of new cases, arguments and decisions all came at once, competing for attention. Spring brought a breather as the path flattened out again: all the arguments had been heard, and the decisions were sporadic. The steepest climb came, predictably, every June, with the final outpouring of opinions before the summer recess. And then it was over. I could look down from the mountaintop to see the term whole and clear, while off in the distance the next term loomed, another climb.

But not this year. I am retiring from The New York Times to write and teach at Yale Law School. So this time, I can survey all the mountains, stretching back to the morning in 1978 when I first walked up the court’s marble steps — mistakenly, as it turned out, because people with business at the court actually use a less majestic but more practical side entrance at ground level.

I had been a political reporter, covering state government in New York from Albany, before I received a Ford Foundation fellowship for journalists to attend Yale Law School for a year. Certainly my Yale master’s degree, the ink barely dry as I walked up those marble steps, had given me a useful grasp of legal concepts. But it could scarcely prepare me for the texture and flavor, the sheer dailiness, of life at the court. So much happened behind closed doors. What did the justices do all day, anyway? I imagined them in earnest conversation with one another, grappling with the great legal questions of the day (in 1978 affirmative action was the most pressing). I learned only gradually that it isn’t like that at all, that except for their formal gatherings around the conference table once or twice a week, the justices spend their time, when they are not on the bench, in their chambers, alone or with their law clerks. Communications among them tend to be in writing, even today, and the ethos of the place discourages one justice from intruding on another’s space, physically or verbally. Membership in one of the world’s most exclusive clubs can be isolating, a little lonely, which I think is why those justices who enjoy companionship spend a fair amount of their free time on the road, speaking at law schools and judicial conferences.

In The Times’s Albany bureau, contact with the capitol’s newsmakers was constant, and feedback from them was instantaneous — not always pleasant, but essential for understanding competing perspectives and agendas, or simply for avoiding making the same mistake twice. Compared with the frenzied drama of the New York Legislature, the quiet of the Supreme Court press room was the silence of the tomb. In place of the easy banter with politicians that had made the Albany beat so engaging, there was an almost suffocating paper flow. Before I could work my way through one list of newly filed petitions to the court, two more would arrive.

Politics, comfortingly, had presented a moving target — an interpretation that seemed wrong today could well be proven correct tomorrow. But when it came to Supreme Court decisions, it was quite possible to get it wrong, flatly and irrevocably. And if I did get it wrong, how would I know? The fact that I received no feedback from those whose activities I was covering was hardly reassuring. It just underscored how different this new environment was going to be.

And yet I came to see my Albany experience as valuable, rather than irrelevant, to my new assignment. Watching the back-and-forth between a state legislature and the Supreme Court of the United States had given me a real sense of the court as an active participant in the ceaseless American dialogue about constitutional values and priorities, not a remote oracle.

For example, the New York Legislature in the 1970s was determined to channel taxpayer money to parochial schools. A majority of the Supreme Court was equally determined to keep that from happening. Session after legislative session in Albany, I reported on efforts to get around the latest Supreme Court ruling and to do indirectly (by providing textbooks or transportation rather than classroom instruction, for instance) what the court had said could not be done directly. It was a constitutional Ping-Pong match, foreshadowing, in its way, the recent one between the court and the Bush administration over the handling of the Guantánamo detainees; a battle over principle, to be sure, but also over who would get the last word.

There was another useful lesson for me in the struggle over parochial school aid: the court’s makeup changes, and so does the law. As an associate justice, William H. Rehnquist, who wanted to cultivate a much bigger space for religion in public life, planted a few seeds in arid soil. He tended those seeds assiduously as new allies joined the court and the climate warmed, until they germinated in the form of decisions like the one in 2002, Zelman v. Simmons-Harris, which upheld Ohio’s system of taxpayer-financed vouchers for parents to use for parochial school tuition. “A program of true private choice,” Chief Justice Rehnquist said in his 5-to-4 majority opinion — having established years earlier, in less freighted contexts, that when public money passes through parents’ hands, it loses its public character and its use becomes a “private choice.”

And then something interesting happened. The voucher movement, even though its constitutional shackles had been removed, stalled almost everywhere, owing not to the intervention of federal judges but to resistance from state courts, teachers’ unions and taxpayers. An ambitious legislative campaign by voucher advocates in 2004 ended in defeat in state after state. The court can only do so much. It can lead, but the country does not necessarily follow.

In fact, it is most often the Supreme Court that is the follower. It ratifies or consolidates change rather than propelling it, although in the midst of heated debate over a major case, it can often appear otherwise. Without delving into the vast political science and legal academic literature on this point, I’m simply offering my empirical observation that the court lives in constant dialogue with other institutions, formal and informal, and that when it strays too far outside the existing political or social consensus, the result is a palpable tension both inside and outside the court.

Such periods are fascinating, and inherently unstable. The early New Deal period is a classic example. The public demanded change, and the “nine old men” stood in the way. The “court-packing” crisis ensued; President Franklin D. Roosevelt had to back down from adding new and younger justices, and change came from inside the court anyway. Some decisions protecting the rights of criminal suspects, made by Earl Warren’s court in the 1960s, placed the court to the left of the country’s center (and provided useful campaign fodder for Richard M. Nixon).

A year ago, at the end of a Supreme Court term marked by sharp ideological divisions and attacks on precedent by a newly empowered conservative majority, I thought we were entering such a period; the court appeared to be moving to the right of the public. For example, the 5-to-4 decision blocking local communities from taking modest steps to preserve the hard-won gains of public school desegregation threatened to unravel delicate arrangements in school districts around the country. That remains a highly problematic decision, but the more muted and centrist tone of the term that just ended has made me less persuaded that the court is on a collision course with mainstream public opinion.

In any event, it is often the court that eventually retreats when it finds itself out of sync with the prevailing mood. That appeared to be the case with the “federalism revolution” that Chief Justice Rehnquist began in the mid-1990s. In a series of 5-to-4 decisions, the court declared that Congress did not have the power it assumed it had to make federal statutes binding on the states. These decisions, reflecting the chief justice’s longstanding goal to re-adjust the post-New Deal federal-state balance, signaled an abrupt jurisprudential shift.

But then 9/11 happened and the national mood changed. Suddenly, the federal government looked useful, even necessary. The Supreme Court’s federalism revolution had been overtaken by events. In 2003, Chief Justice Rehnquist wrote for a 6-to-3 majority that Congress acted within its constitutional authority when it said state governments could be sued for failing to give their employees the benefits required by the Family and Medical Leave Act. It was a decision of enormous symbolic significance. Without apology or much in the way of explanation, the chief justice gave up the fight and moved on.

I admired Chief Justice Rehnquist as a strategist and tactician; he knew what he wanted and knew his limits, just as in his weekly poker game he knew when to hold ’em and when to fold ’em. Justice Antonin Scalia, who joined the court in 1986, was a flashier attention-grabber, but I never had any doubt that William Rehnquist was the brains behind the court’s ascendant conservatives. He took his role seriously, but himself less so (unlike his stuffy predecessor, Warren E. Burger, the first chief justice of my tenure). When he emerged from behind the courtroom’s velvet curtain one morning in 1995 sporting four gold stripes on each sleeve of his robe — with some of his colleagues struggling to suppress smiles — many people saw pomposity, but I saw a wry or maybe even self-mocking comment on the boredom of basic black after 23 years on the court. He had another 10 years to go.

We had nothing approaching a confidential relationship, but we did chat now and then. On the morning after the 2000 presidential election, I ran into him on the court’s plaza as he was taking his morning walk. Wasn’t it amazing, we agreed, that the outcome of the election was still in doubt.

The court I began covering in 1978 was populated by men who were, for the most part, older than my father. Thurgood Marshall, William J. Brennan Jr. and Byron R. White were historic figures. Harry A. Blackmun had only a few years earlier been propelled from obscurity when he wrote the court’s 7-to-2 majority opinion in Roe v. Wade. Nine new justices joined the court during my time there. Of the original group, only John Paul Stevens remains. Three members of the court are younger than I am.

Amid all that change, nothing touched me as much as the arrival in September 1981 of Sandra Day O’Connor. I had never heard her name before President Ronald Reagan nominated her that summer to succeed Potter Stewart. Although I covered her confirmation hearing, she remained to me basically a blank slate. That didn’t matter. The first time I looked up from the press section and saw a woman sitting on the bench, I was thrilled in a way I would never have predicted. Her presence invaded my subconscious. I had recurring dreams about her. In one, she asked me my opinion on a pending case (something no justice ever did in real life). But mostly, she just had walk-on roles in ordinary nighttime dramas, her presence signifying what it meant to me to know that there was no longer a position in the legal profession that a woman could not aspire to.

Four summers later, I was pregnant. Encountering me in a hallway, Justice O’Connor asked me when the baby was due. “Just before the first Monday in October,” I replied. Sandra Day O’Connor, mother of three, laughed. “Oh, keep your legs crossed,” she urged. “Don’t let that baby come out until the First Monday!” Some 30 minutes into the first Monday in October 1985, my daughter, Hannah, came into the world. I later learned that right before going on the bench that morning for the term’s opening session, Justice O’Connor called the court’s public information office and asked: “Has anyone heard from Linda? Did she have her baby today?”

(Years later, my daughter bluntly reminded me that today’s young women have the luxury of taking for granted the pioneering accomplishments of a Sandra Day O’Connor or Ruth Bader Ginsburg. When I observed that I was out of college before I ever met a woman who was a lawyer, the teenage Hannah regarded me with compassion. “Face it, Mom,” she said. “You’ve led a sheltered life.”)

Continuity and change, the entwined spirals of a double helix, are the court’s DNA. Continuity is anchored by the gravitational pull of precedent. Who would have believed that William Rehnquist, long a vocal critic of the Warren court’s Miranda decision, could write a majority opinion in 2000 not only reaffirming it but proclaiming that the Miranda warnings had become “part of our national culture”?

The pull of precedent is powerful but scarcely all-powerful when a shift of personnel or perspective breaks the spell, allowing the forces of change to exert their counterpull. The road from Bowers v. Hardwick, the 1986 decision that dismissed a claim of gay rights as “at best, facetious,” to Lawrence v. Texas, which 17 years later located the privacy rights of gay men and lesbians at the heart of constitutional due process, was paved, I have no doubt, by the justices’ experience of knowing gay men and women in their personal and professional lives.

But with so many important cases decided by such close margins (the two leading cases of the past term, on the rights of the Guantánamo detainees and the Second Amendment right to own a gun, were decided by votes of 5 to 4), perhaps fragility, rather than stability, best characterizes the court today, and that is a reminder of the stakes involved in any Supreme Court vacancy. The galvanizing battle over the nomination of Robert H. Bork in 1987, a conflagration at the intersection of law and politics that held the country spellbound for three months, was the most riveting public event I ever witnessed at close range. Although Judge Bork was, of course, defeated, in many ways the Bork battle has never really ended, with today’s ceaseless judicial confirmation wars being carried on by ideological combatants too young to remember the original.

President Reagan nominated Robert Bork, a well-known conservative, to the “swing” seat on the court being vacated by Justice Lewis F. Powell Jr. I knew Bob Bork. He had been a professor of mine at Yale, an urbane and witty man who bore little resemblance to the instant portrait painted by his opponents. (“In Robert Bork’s America,” Senator Edward M. Kennedy famously said in response to the nomination, “there is no room at the inn for blacks and no place in the Constitution for women, and in our America there should be no seat on the Supreme Court for Robert Bork.”) The day he was nominated, I left a message on his home answering machine. “Congratulations, and keep your sense of humor,” I said. “I think you’ll need it.”

His sense of humor failed him. As the hearings went on, he became testy and abrupt. When he said that serving on the court would be an “intellectual feast,” he was simply being honest. It would have been more politic, but less candid, to claim that he was motivated by a desire to serve the cause of justice. He and his supporters emerged from defeat filled with bitterness, persuaded that he had been dealt an unfair hand.

To the contrary, I thought then and think now that the debate had been both fair and profound. In five days on the witness stand, Judge Bork had a chance to explain himself fully, to describe and defend his view that the Constitution’s text and the intent of its 18th-century framers provided the only legitimate tools for constitutional interpretation. Through televised hearings that engaged the public to a rare degree, the debate became a national referendum on the modern course of constitutional law. Judge Bork’s constitutional vision, anchored in the past, was tested and found wanting, in contrast to the later declaration by Judge Anthony M. Kennedy, the successful nominee, that the Constitution’s framers had “made a covenant with the future.”

It has made a substantial difference during these last 21 years that Anthony Kennedy got the seat intended for Robert Bork. The invective aimed at Justice Kennedy from the right this year alone, for his majority opinions upholding the rights of the Guantánamo detainees and overturning the death penalty for child rapists — 5-to-4 decisions that would surely have found Judge Bork on the opposite side — is a measure of the lasting significance of what happened during that long-ago summer and fall.

It is also a reminder of something I learned observing the court and the country, and listening in on the vital dialogue between them. The court is in Americans’ collective hands. We shape it; it reflects us. At any given time, we may not have the Supreme Court we want. We may not have the court we need. But we have, most likely, the Supreme Court we deserve.

    2,691 Decisions, NYT, 13.7.2008, http://www.nytimes.com/2008/07/13/weekinreview/13linda.html

Sidebar

3 Defining Opinions

July 13, 2008
The New York Times
By LINDA GREENHOUSE

Planned Parenthood v. Casey (1992): The Triumph of Precedent? Reaffirmed the constitutional right to abortion by a vote of 5 to 4. Three Republican-appointed justices in the majority, Sandra Day O’Connor, Anthony M. Kennedy and David H. Souter, said that while they would not necessarily have voted with the Roe v. Wade majority 19 years earlier, they believed it would damage the court to repudiate that precedent under political pressure. “The promise of constancy, once given, binds its maker,” they said.

Bush v. Gore (2000): The Triumph of Politics? Ended the Florida recount and effectively declared George W. Bush the president-elect. “We are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards,” the unsigned opinion read. A debate continues to this day over whether the five justices in the majority were motivated by politics or by the neutral principles they invoked.

District of Columbia v. Heller (2008): The Triumph of Originalism? Held that the Second Amendment protects the right to keep a loaded gun at home for self-defense. Justice Antonin Scalia, for the 5-to-4 majority, and Justice John Paul Stevens, for the dissent, each dissected the history of the Second Amendment. They came to opposite conclusions but proceeded on the premise that original understanding of the amendment’s framers was the proper basis for the decision.

    3 Defining Opinions, NYT, 13.7.2008, http://www.nytimes.com/2008/07/13/weekinreview/13greebox.html?ref=weekinreview




 

Chris Britt

Springfield, IL -- The State Journal-Register        Cagle        4.7.2008

Eric Devericks

Seattle, WA, The Seattle Times        Cagle        5.7.2008

Corky Trinidad

The Honolulu Star-Bulletin        Cagle        3.7.2008

Editorial

A Supreme Court on the Brink

July 3, 2008
The New York Times

In some ways, the Supreme Court term that just ended seems muddled: disturbing, highly conservative rulings on subjects like voting rights and gun control, along with important defenses of basic liberties in other areas, including the rights of detainees at Guantánamo Bay, Cuba. The key to understanding the term lies in the fragility of the court’s center. Some of the most important decisions came on 5-to-4 votes — a stark reminder that the court is just one justice away from solidifying a far-right majority that would do great damage to the Constitution and the rights of ordinary Americans.

The Supreme Court abandoned its special role in protecting voting rights when it rejected a challenge to Indiana’s harshly anti-democratic voter ID law. Critics warned that the law, which bars anyone without a government-issued photo ID from voting, would disenfranchise poor people, minorities and the elderly, all of whom disproportionately lack drivers’ licenses. The critics were right. In the Indiana presidential primary, shortly after the ruling, about 12 nuns in their 80s and 90s were turned away at the polls for not having acceptable ID.

In another sharp break with its traditions, the court struck down parts of the District of Columbia’s gun-control law. After seven decades of holding that the Second Amendment’s right to bear arms is tied to raising a militia, the court reversed itself and ruled that it confers on individuals the right to keep guns in their homes for personal use. The decision will no doubt add significantly to the number of Americans killed by gun violence.

Corporations fared especially well in this term. The court reduced the punitive-damages award against Exxon Mobil for the 1989 Exxon Valdez oil spill from $2.5 billion to about $500 million, a pittance for the energy company. In the process, the court declared that in maritime cases, punitive damages should not exceed the actual damages in a case. It is a rule that foils the purposes of punitive damages: to punish and to deter bad conduct.

In the term’s most cold-hearted decision, the court endorsed Kentucky’s use of lethal injection to execute prisoners. Despite evidence that the procedure that Kentucky uses can cause excruciating pain, the court ruled that it does not violate the Eighth Amendment prohibition on cruel-and-unusual punishment. It was a squandered chance to set rules requiring that executions be carried out as humanely as possible.

There was some undeniable good news. The court came through with a critically important decision in favor of the detainees being held in Guantánamo Bay. It ruled that they have habeas corpus rights: the right to challenge their confinement before a federal judge. The decision was the court’s third rebuke to the Bush administration on Guantánamo and a major win for the Constitution and the rule of law.

In a second capital punishment case, the court ruled that the death penalty cannot be imposed for the rape of a child. Horrific as that crime is, the court wisely drew a clear line and said that capital punishment can only be imposed for crimes in which the victim’s life was taken.

The court also issued several welcome rulings in favor of workers, including employees who charged that they were retaliated against for accusing their employers of discrimination. It was a reversal from last year, when the court issued a much-criticized ruling against a woman who was discriminated against in pay, baselessly deciding that she had filed her complaint too late.

In placing these rulings in the larger context of the court after two appointments by President Bush — Chief Justice John Roberts and Justice Samuel Alito, both dedicated members of the conservative movement — it is important to note that the Guantánamo decision was 5 to 4. Anthony Kennedy, the court’s swing justice, cast the deciding vote. In other cases, like the gun-control decision, the rulings might have been more sweeping and more damaging if the conservative bloc had not needed the moderate-conservative Justice Kennedy’s vote to form a majority. One more conservative appointment would shift the balance to the far-right bloc.

If that happens, the court can be expected to push even further in a dangerous direction. It would most likely begin stripping away civil liberties, like the habeas rights vindicated in the Guantánamo case. The constitutional protection of women’s reproductive rights could be eliminated. The court might well strike down laws that protect the environment, workers’ rights and the rights of racial and religious minorities.

The court was teetering on the brink in this term. Voters should keep that firmly in mind when they go to the polls in November.

    A Supreme Court on the Brink, NYT, 3.7.2008, http://www.nytimes.com/2008/07/03/opinion/03thu1.html

Kevin Siers

North Carolina, The Charlotte Observer        Cagle        30.6.2008

News Analysis

Coming Next, Court Fights on Guns in Cities

June 27, 2008
The New York Times
By ADAM LIPTAK

WASHINGTON — The individual right to bear arms identified by the Supreme Court on Thursday will have little practical impact in most of the country, legal experts said, though Washington’s comprehensive ban on handguns used for self-defense in the home will have to be revised, and similar laws in several cities are also vulnerable.

Most state and city gun restrictions appear to be allowed under the ruling, including licensing laws, limits on the commercial sale of guns, restrictions on guns in places like schools and government buildings and prohibitions on the possession of firearms by felons and the mentally ill. “Dangerous and unusual” weapons can also be banned, although that phrase was not fully defined.

Justice Antonin Scalia, writing for the majority in the 5-to-4 decision, also suggested that bans on concealed weapons would probably pass — new locution alert — Second Amendment muster. Justice Scalia added that the court’s list of permissible restrictions was not exhaustive.

The legal battlegrounds will be cities with ordinances similar to Washington’s essentially complete ban, most notably Chicago.

“It’s really the municipalities that are the offenders,” said Robert A. Levy, a lawyer on the winning side of the case and an architect of the victorious strategy.

“There is likely to be quite a flood of litigation to try to flesh out precisely what regulations are to be permitted and which ones are not,” Mr. Levy said. “The challenges are likely to be in Chicago, New York, Philadelphia and Detroit.”

In fact, a lawsuit against Chicago’s very restrictive ordinance was filed almost immediately after the court’s decision. Four Chicago residents and two gun rights groups asked the federal district court there to strike down the ordinance.

Adrian M. Fenty, the mayor of Washington, said the city was taking steps to comply with the court’s ruling. Officials here are considering an amnesty period in which handgun owners can register them without penalty, Mr. Fenty said at a news conference.

Mr. Fenty emphasized that it remains illegal to carry handguns outside the home and that only registered guns may be kept at home. Automatic and semiautomatic weapons will generally remain illegal, he said.

In addition to Chicago, as Justice Stephen G. Breyer wrote in a dissenting opinion, several of its suburbs in Illinois, including Evanston, Morton Grove, Oak Park, Winnetka and Wilmette, ban the possession of handguns in many settings. Toledo, Ohio, bans some kinds of handguns, Justice Breyer wrote, and San Francisco would have a similar ban had it not been pre-empted by state law.

As the list of affected localities demonstrates, gun control laws of the sort most likely to be affected by Thursday’s decision are almost exclusively urban. Indeed, some 40 states pre-empt local gun regulations, indicating significant tensions between state lawmakers and municipal officials.

The status of laws that ban certain types of weapons is not clear, and that question is also very likely to generate litigation. Six states, Puerto Rico and at least 14 municipalities ban assault weapons and semiautomatic weapons, Justice Breyer wrote.

But Justice Scalia wrote that the Second Amendment’s protections apply only to weapons in common use, like rifles and pistols.

In a statement welcoming the decision, Brian Roehrkasse, a Justice Department spokesman, said the court had “appropriately recognized that the ‘carrying of dangerous and unusual weapons,’ such as machine guns, is not protected.” Mr. Roehrkasse added that the Justice Department would vigorously defend all existing federal firearms laws.

Because the case before the court arose from the District of Columbia and thus involved only federal law, the court did not resolve the important question of whether the Second Amendment’s protections apply to state and local laws.

Benna Ruth Solomon, a lawyer for the City of Chicago, said there was, at least for the time being, no doubt about the proper answer to that question.

“As we sit here today,” Ms. Solomon said, “this decision does not apply to the city of Chicago. It does not apply to the states or municipalities. The court has held that on three prior occasions. Those precedents remain good law until the Supreme Court says they do not.”

Those three decisions, from 1875, 1886 and 1894, were listed in the majority opinion. Justice Scalia seemed to cast doubt on their continuing validity in a footnote, saying that one of them “also said that the First Amendment did not apply against the states,” a view later rejected by the court.

Raymond W. Kelly, New York City’s police commissioner, said Thursday’s decision should not undermine restrictions on possessing guns in the city.

“The specifics of this case, as I understand them, were aimed at an absolute prohibition of having a weapon in your home,” Mr. Kelly said. “We have a provision in our law, in our regulations, that allow for a weapon in the home if you have a permit, a premises permit. But there’s no question about it that this decision will generate litigation throughout the country.”

Wayne LaPierre, the National Rifle Association’s chief executive officer, agreed only with the last statement. He said the city gave out gun permits capriciously, and he predicted that the practice would attract a legal battle.

“We all know how New York City handles that permit list,” Mr. LaPierre said. “If you are rich and famous, or a Wall Street executive or a celebrity or politically connected, you have no problem getting a permit. But if you are an average citizen, you are flat out of luck.”

To that point, Mr. Kelly said the permit system consisted of “common sense regulations” and was well run and fair.

Mr. LaPierre said New York would not be the immediate focus of the association’s legal strategy, which would instead center on cities with handgun bans.

Mr. Levy, the lawyer who represented the plaintiffs who challenged the gun law in Washington, said New York’s ordinance was in practice “not much different” from the one the Supreme Court struck down.

“You can have a gun in New York,” Mr. Levy said, “but you have to jump through a heck of a lot of hoops.”

Al Baker contributed reporting from New York, and Austin Bogues and Ian Urbina from Washington.

    Coming Next, Court Fights on Guns in Cities, NYT, 27.6.2008, http://www.nytimes.com/2008/06/27/washington/27guns.html?hp

Landmark Ruling Enshrines Right to Own Guns

June 27, 2008
The New York Times
By LINDA GREENHOUSE

WASHINGTON — The Supreme Court on Thursday embraced the long-disputed view that the Second Amendment protects an individual right to own a gun for personal use, ruling 5 to 4 that there is a constitutional right to keep a loaded handgun at home for self-defense.

The landmark ruling overturned the District of Columbia ban on handguns, the strictest gun-control law in the country, and appeared certain to usher in a new round of litigation over gun rights throughout the country.

The court rejected the view that the Second Amendment’s “right of the people to keep and bear arms” applied to gun ownership only in connection with service in the “well regulated militia” to which the amendment refers.

Justice Antonin Scalia’s majority opinion, his most important in his 22 years on the court, said that the justices were “aware of the problem of handgun violence in this country” and “take seriously” the arguments in favor of prohibiting handgun ownership.

“But the enshrinement of constitutional rights necessarily takes certain policy choices off the table,” he said, adding, “It is not the role of this court to pronounce the Second Amendment extinct.”

Justice Scalia’s opinion was signed by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

In a dissenting opinion, Justice John Paul Stevens took vigorous issue with Justice Scalia’s assertion that it was the Second Amendment that had enshrined the individual right to own a gun. Rather, it was “today’s law-changing decision” that bestowed the right and created “a dramatic upheaval in the law,” Justice Stevens said in a dissent joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Justice Breyer, also speaking for the others, filed a separate dissent.

Justice Scalia and Justice Stevens went head to head in debating how the 27 words in the Second Amendment should be interpreted. The majority opinion and two dissents ran 154 pages.

Justice Stevens said the majority opinion was based on “a strained and unpersuasive reading” of the text and history of the Second Amendment, which provides: “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.”

According to Justice Scalia, the “militia” reference in the first part of the amendment simply “announces the purpose for which the right was codified: to prevent elimination of the militia.” The Constitution’s framers were afraid that the new federal government would disarm the populace, as the British had tried to do, Justice Scalia said.

But he added that this “prefatory statement of purpose” should not be interpreted to limit the meaning of what is called the operative clause — “the right of the people to keep and bear arms, shall not be infringed.” Instead, Justice Scalia said, the operative clause “codified a pre-existing right” of individual gun ownership for private use.

Contesting that analysis, Justice Stevens said the Second Amendment’s structure was notable for its “omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense,” in contrast to the contemporaneous “Declarations of Rights” in Pennsylvania and Vermont that did explicitly protect those uses.

It has been nearly 70 years since the court last examined the meaning of the Second Amendment. In addition to their linguistic debate, Justices Scalia and Stevens also sparred over what the court intended in that decision, United States v. Miller.

In the opaque, unanimous five-page opinion in 1939, the court upheld a federal prosecution for transporting a sawed-off shotgun. A Federal District Court had ruled that the provision of the National Firearms Act the defendants were accused of violating was barred by the Second Amendment, but the Supreme Court disagreed and reinstated the indictment.

For decades, an overwhelming majority of courts and commentators regarded the Miller decision as having rejected the individual-right interpretation of the Second Amendment. That understanding of the “virtually unreasoned case” was mistaken, Justice Scalia said Thursday.

He said the Miller decision meant “only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”

Justice Stevens said the majority’s understanding of the Miller decision was not only “simply wrong,” but also reflected a lack of “respect for the well-settled views of all of our predecessors on the court, and for the rule of law itself.”

Despite the decision’s enormous symbolic significance, it was far from clear that it actually posed much of a threat to the most common gun regulations. Justice Scalia’s opinion applied explicitly just to “the right of law-abiding, responsible citizens to use arms in defense of hearth and home,” and it had a number of significant qualifications.

“Nothing in our opinion,” he said, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

The opinion also said prohibitions on carrying concealed weapons would be upheld and suggested somewhat less explicitly that the right to personal possession did not apply to “dangerous and unusual weapons” that are not typically used for self-defense or recreation.

The Bush administration had been concerned about the implications of the case for the federal ban on possessing machine guns.

President Bush welcomed the decision. “As a longstanding advocate of the rights of gun owners in America,” he said in a statement, “I applaud the Supreme Court’s historic decision today confirming what has always been clear in the Constitution: the Second Amendment protects an individual right to keep and bear firearms.”

The opinion did not specify the standard by which the court would evaluate gun restrictions in future cases, a question that was the subject of much debate when the case was argued in March.

Among existing gun-control laws, just Chicago comes close to the complete handgun prohibition in the District of Columbia’s 32-year-old law. The district’s appeal to the Supreme Court, filed last year after the federal appeals court here struck down the law, argued that the handgun ban was an important public safety measure in a congested, crime-ridden urban area.

On the campaign trail on Thursday, both major-party presidential candidates expressed support for the decision — more full-throated support from Senator John McCain, the presumptive Republican nominee, and a more guarded statement of support from Senator Barack Obama, his presumptive Democratic opponent.

Mr. McCain called the decision “a landmark victory for Second Amendment freedom in the United States” that “ended forever the specious argument that the Second Amendment did not confer an individual right to keep and bear arms.”

Mr. Obama, who like Mr. McCain has been on record as supporting the individual-rights view, said the ruling would “provide much-needed guidance to local jurisdictions across the country.”

He praised the decision for endorsing the individual-rights view and for describing the right as “not absolute and subject to reasonable regulations enacted by local communities to keep their streets safe.”

Unlike the court’s ruling this month on the rights of the Guantánamo detainees, this decision, District of Columbia v. Heller, No. 07-290, appeared likely to defuse, rather than inflame, the political debate. The Democratic Party platform in 2004 included a plank endorsing the individual-rights view of the Second Amendment.

The case reached the court as a result of an assumption by the Cato Institute, a libertarian organization here, that the time was right to test the prevailing interpretation of the Second Amendment. Robert A. Levy, a lawyer and senior fellow of the institute, looked for law-abiding district residents rather than criminal defendants appealing convictions, to challenge the law.

Mr. Levy, who financed the case, recruited six plaintiffs. Five were dismissed for lack of standing. But the United States Court of Appeals for the District of Columbia Circuit ruled in favor of one, Dick Anthony Heller. He is a security guard who carries a gun while on duty at a federal judicial building here and was denied a license to keep his gun at home. The court said Thursday that assuming Mr. Heller was not “disqualified from the exercise of Second Amendment rights,” the district government must issue him a license.

    Landmark Ruling Enshrines Right to Own Guns, NYT, 27.6.2008, http://www.nytimes.com/2008/06/27/washington/27scotus.html?hp

Justices Rule for Individual Gun Rights

June 27, 2008
The New York Times
By DAVID STOUT

WASHINGTON — The Supreme Court declared for the first time on Thursday that the Constitution protects an individual’s right to have a gun, not just the right of the states to maintain militias.

Justice Antonin Scalia, writing for the majority in the landmark 5-to-4 decision, said the Constitution does not allow “the absolute prohibition of handguns held and used for self-defense in the home.” In so declaring, the majority found that a gun-control law in the nation’s capital went too far by making it nearly impossible to own a handgun.

But the court held that the individual right to possess a gun “for traditionally lawful purposes, such as self-defense within the home” is not unlimited. “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” Justice Scalia wrote.

The ruling does not mean, for instance, that laws against carrying concealed weapons are to be swept aside. Furthermore, Justice Scalia wrote, “The court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

The decision upheld a federal appeals court ruling that the District of Columbia’s gun law, one of the strictest in the country, went beyond constitutional limits. Not only did the 1976 law make it practically impossible for an individual to legally possess a handgun in the district, but it also spelled out rules for the storage of rifles and shotguns. But the court did not articulate a specific standard of review for what might be a reasonable restraint on the right to possess a firearm.

The court also said on Thursday that the district law’s requirement that lawful weapons be rendered essentially inoperable, by trigger locks or disassembly, was unconstitutional because it rendered the weapons useless for self-defense.

Joining Justice Scalia were Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito Jr.

A dissent by Justice John Paul Stevens asserted that the majority “would have us believe that over 200 years ago, the framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.” Joining him were Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

The high court’s ruling was the first since 1939 to deal with the scope of the Second Amendment, and the first to so directly address the meaning of the amendment’s ambiguous, comma-laden text: “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.”

Not surprisingly, Justice Scalia and Justice Stevens differed on the clarity (or lack thereof) of the Second Amendment. “The amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second clause,” wrote Justice Scalia. “The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.”

Not at all, Justice Stevens countered, asserting that the majority “stakes its holding on a strained and unpersuasive reading of the amendment’s text.” Justice Stevens read his dissent from the bench, an unmistakable signal that he disagreed deeply with the majority.

Indeed, it was clear from the conflicting opinions of Justices Scalia and Stevens that the case had generated emotional as well as intellectual sparks at the court.

Justice Scalia devoted page after page of his opinion to the various state constitutions and to the use of language in the 18th and 19th centuries to support his view that an individual right to bear arms is embodied in the Constitution. And Justice Scalia, who clearly takes pride in his writing as well as his reasoning, used adjectives like “frivolous” and “bizarre” to describe the other side’s arguments.

Not to be outdone, Justice Stevens called the majority’s interpretation of the Second Amendment “overwrought and novel” and said it “calls to mind the parable of the six blind men and the elephant,” in which each of the sightless men had a different conception of the animal.

“Each of them, of course, has fundamentally failed to grasp the nature of the creature,” Justice Stevens wrote.

The ruling on Thursday will surely not quiet the debate about guns and violence in the United States, where deaths by firearm take a far higher toll than in many other countries, as Justice Scalia acknowledged.

“We are aware of the problem of handgun violence in this country,” he wrote, saying that he took seriously the concerns of those who believe that “prohibition of handgun ownership is a solution.”

Lawmakers in the District of Columbia and across the country may look to the decision as a blueprint for writing new legislation to satisfy the demands of constituents who say there is too much regulation of firearms now, or too little, depending on the sentiments in their regions. (Washington’s Mayor, Adrian M. Fenty, will instruct the police department to issue new handgun-registration rules within 30 days while city officials study the ruling, The Washington Post reported on its Web site.)

Nor was there any suggestion that the court’s ruling would lead to a proliferation of deadly, military-style assault weapons. Alluding to the 1939 Supreme Court decision, which held that the weapons protected under the Second Amendment were those “in common use at the time,” Justice Scalia said, “We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ ”

The White House issued a statement saying that President Bush “strongly agrees with the Supreme Court’s historic decision today that the Second Amendment protects the individual right of Americans to keep and bear arms.”

The Supreme Court ruling is likely to play out in this year’s elections, as Senator John McCain of Arizona, the presumptive Republican nominee for president, made clear. “I applaud this decision as well as the overturning of the District of Columbia’s ban on handguns and limitations on the ability to use firearms for self-defense,” Mr. McCain said in a statement, which contained a reminder that his Democratic nominee, Senator Barack Obama of Illinois, refused to join him in signing an amicus brief in support of overturning the district’s law.

Indeed, Mr. Obama’s view, expressed in a statement, was more nuanced than Mr. McCain’s. “I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures,” Mr. Obama said, predicting that the ruling would provide needed guidance for lawmakers.

The National Rifle Association and other supporters of rights to have firearms are sure to use the decision as a launch pad for lawsuits. The N.R.A. said it would file suits in San Francisco, Chicago and several Chicago suburbs challenging handgun restrictions there. “I consider this the opening salvo in a step-by-step process of providing relief for law-abiding Americans everywhere that have been deprived of this freedom,” Wayne LaPierre, executive vice president of the N.R.A., told The Associated Press.

Reaction on Capitol Hill differed sharply. Representative John A. Boehner of Ohio, the Republican minority leader in the House, applauded the ruling. “The Constitution plainly guarantees the solemn right to keep and bear arms, and the whims of politically correct bureaucrats cannot take it away,” he said in a statement.

But Senator Dianne Feinstein, Democrat of California and a former mayor of San Francisco, said she was disappointed in the ruling. “I speak as a former mayor,” she said at a session of the Senate Judiciary Committee. “I speak as somebody who has gone to homicide crime scenes.”

The last time the Supreme Court weighed a case involving the Second Amendment, in 1939, it decided a narrower question, finding that the Constitution did not protect any right to possess a specific type of firearm, the sawed-off shotgun.

By contrast, the issues in the District of Columbia case seemed much more “mainstream,” if that term can be used in reference to gun-control issues. When the justices announced on Nov. 20 that they were accepting the case of District of Columbia v. Heller, No. 07-290, they indicated that they would go to the heart of the long debate.

The question, they said, is whether the district’s restrictions on firearms “violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia but who wish to keep handguns and other firearms for private use in their homes.”

Dick Anthony Heller, a security guard who carries a handgun for his job protecting federal judiciary offices, challenged the District of Columbia’s law after his request for a license to keep his gun at home was rejected.

There have been debates about the efficacy of gun-control efforts in the capital. Those district residents who want guns — and are willing to risk punishment if caught with them without bothering to apply for permits — can get them easily enough, across the Potomac River in Virginia and in other nearby states.

Washington’s homicide rate, while high by world standards, is sharply lower than it was in the early 1990s. Last year, there were 181 homicides in Washington, down from a peak of 479 in 1991, when crack cocaine was a huge problem in some sections of the city.

Concluding his opinion, Justice Scalia wrote, “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.”

“That is perhaps debatable,” Justice Scalia wrote, “but what is not debatable is that it is not the role of this court to pronounce the Second Amendment extinct.”

When the Heller case was argued before the justices on March 18, Mr. Heller’s lawyer, Alan Gura, did not assert that the Second Amendment precluded any kind of ban related to gun possession. He said that a ban on the shipment of machine guns and sawed-off shotguns would be acceptable, and in answer to a question from the justices, so, too, might be a prohibition on guns in schools. Some of the justices signaled during arguments that they thought the District’s near-total ban on handguns went too far.

A legislature “has a great deal of leeway in regulating firearms,” Mr. Gura argued, but not to the extent of virtually banning them in homes.

The Washington law not only established high barriers to the private possession of handguns, it also required that rifles and shotguns be kept either in a disassembled state or under a trigger lock.

Walter Dellinger, the lawyer who argued for the district on March 18, asserted that “the people” and “the militia” were essentially the same, and that the Second Amendment gave people the right to bear arms only in connection with their militia service.

Solicitor General Paul D. Clement, representing the federal government, argued on behalf of the individual-rights position, which has been the Bush administration’s policy. But he said that the appeals court had also gone too far in overturning the ordinance and that the right to bear arms was always subject to “reasonable regulations.”

    Justices Rule for Individual Gun Rights, NYT, 27.6.2008, http://www.nytimes.com/2008/06/27/washington/27scotuscnd.html?hp

Supreme Court Strikes Down ‘Millionaire’s Amendment’

June 27, 2008
The New York Times
By ADAM LIPTAK

WASHINGTON — The Supreme Court on Thursday struck down a law meant to level the financial playing field when rich candidates pay for their own political campaigns.

The 5-to-4 decision, legal experts said, was significant for rejecting the rationale behind the law, known as the “millionaire’s amendment,” and for confirming the court’s continuing skepticism about the constitutionality of campaign finance regulations.

“Supporters of reasonable campaign finance regulation are now zero for three in the Roberts court,” said Richard L. Hasen, a professor at Loyola Law School in Los Angeles. “This is a signal of what is to come. What could easily fall following this case are the longstanding limits on corporate and union spending in federal elections.”

The law at issue Thursday imposed special rules in races with candidates who finance their own campaigns. Those candidates are required to disclose more information, and their opponents are allowed to raise more money.

The Supreme Court has upheld campaign finance laws meant to drive the potentially corrupting influence of large contributions out of politics. But the millionaire’s amendment, part of the 2002 McCain-Feingold campaign finance law, is based on a different rationale: that of compensating for the additional financial resources available to candidates willing to spend their own money.

The case was brought by Jack Davis, a Democrat who twice ran for the House of Representatives from western New York, spending or lending himself millions of dollars of his own money. He lost both times.

Justice Samuel A. Alito Jr., writing for the majority, said the asymmetry imposed by the law was unacceptable. “We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other,” Justice Alito wrote.

The law allows opponents of candidates for the House of Representatives who spend more than $350,000 of their own money to receive triple the usual amounts — $6,900 rather than $2,300 — from individual contributors when a complex statutory formula is met. The law also waives limits on expenditures from political parties.

The law was a response to Supreme Court rulings that forbid limits on the amount that candidates can spend on their own behalf. But Justice Alito wrote that the legislative response was unconstitutional because it “imposes an unprecedented penalty on any candidate who robustly exercises” free speech rights guaranteed by the First Amendment. Rich candidates, Justice Alito said, must “choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations.”

In the case, Davis v. Federal Election Commission, No. 07-320, Mr. Davis’s lawyer argued that the law had an ulterior motive, that of protecting incumbents against rich challengers. The court did not address that point, but the majority did express skepticism about allowing Congress to decide how to level the political landscape.

“Different candidates have different strengths,” Justice Alito wrote. “Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; others have the benefit of a well-known family name.”

“Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election,” Justice Alito continued. “The Constitution confers upon voters, not Congress, the power to choose the members of the House of Representatives.”

Justice Alito’s decision was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas.

Led by those justices, “the court is increasingly hostile to campaign finance reform,” said Richard Briffault, a law professor at Columbia. “It underscores the importance of Alito’s replacement of O’Connor.”

Justice Sandra Day O’Connor, who retired in 2006, was a co-author of the 2003 decision that upheld the major provisions of the McCain-Feingold law.

Justice John Paul Stevens, joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter, dissented, saying that both “reducing the importance of wealth as a criterion for public office and countering the perception that seats in the United States Congress are available for purchase by the wealthiest bidder” offered valid justifications for the amendment.

“The millionaire’s amendment quiets no speech at all,” Justice Stevens wrote. “On the contrary, it does no more than assist the opponent of a self-funding candidate in his attempts to make his voice heard; this amplification in no way mutes the voice of the millionaire, who remains able to speak as loud and as long as he likes in support of his campaign.”

Richard H. Pildes, a law professor at New York University, said the result in Thursday’s decision was correct. “It’s deeply dangerous for Congress to change the ground rules for individual races based on a judgment about what’s fair,” he said.

More broadly, Professor Pildes said, “the opinion is written in a way that portends an unsympathetic response to campaign finance regulations to go anywhere beyond the existing structure.”

    Supreme Court Strikes Down ‘Millionaire’s Amendment’, NYT, 27.6.2008, http://www.nytimes.com/2008/06/27/washington/27money.html

Justices Cut Damages Award in Exxon Valdez Spill

June 26, 2008
The New York Times
By ADAM LIPTAK

WASHINGTON — The Supreme Court on Wednesday reduced what had once been a $5 billion punitive damages award against ExxonMobil to about $500 million. The ruling essentially concluded a legal saga that started when the Exxon Valdez, a supertanker, dumped 11 million gallons of crude oil into the Prince William Sound in Alaska in 1989.

The decision may have broad implications for limits on punitive damages generally. Punitive damages, which are meant to punish and deter, are imposed on top of compensatory damages, which aim to make plaintiffs whole.

Justice David H. Souter, writing for the majority in the 5-to-3 decision, said a ratio between the two sorts of damages of no more than one-to-one was generally appropriate, at least in maritime cases. Since Exxon has paid about $507 million to compensate more than 32,000 Native Alaskans, landowners and commercial fishermen, Justice Souter said, it should have to pay no more than that amount in punitive damages.

That works out to $15,000 for each plaintiff for compensation and $15,000 more as punitive damages.

Justice John Paul Stevens, in a dissent, said he would have upheld the original jury award, which the federal appeals court in California had reduced to $2.5 billion.

“In light of Exxon’s decision to permit a lapsed alcoholic to command a supertanker carrying tens of millions of gallons of crude oil though the treacherous waters of Prince William Sound, thereby endangering all of the individuals who depended upon the sound for their livelihoods,” Justice Stevens wrote, “the jury could easily have given expression to its moral condemnation of Exxon’s conduct in the form of this award.”

The Exxon Valdez spill was the worst in American history, damaging 1,300 miles of shoreline, disrupting the lives and livelihoods of people in the region and killing hundreds of thousands of birds and marine animals. It occurred after the ship’s captain, Joseph J. Hazelwood, left the bridge at a crucial moment. Mr. Hazelwood, an alcoholic, had downed five double vodkas on the night of the disaster, according to witnesses.

Exxon paid more than $3.4 billion in fines, cleanup expenses and other costs. The spill still affects Alaska’s fisheries today.

The question remaining after Wednesday’s decision is whether the one-to-one ratio will apply outside of maritime cases. In the Exxon case, the court was acting as a state appellate court typically might, assessing the reasonableness of the punitive award under the common law rather than asking whether it violated constitutional due process protections.

It is not clear, then, what effect the decision will have in cases presenting the constitutional question. In 2003, in State Farm v. Campbell, the court ruled that a single-digit ratio (that is, no more than 9:1) was appropriate as a matter of due process in all but the most exceptional cases. In cases where compensatory damages are substantial, the State Farm court went on, “a lesser ratio, perhaps only equal to compensatory damages” might be warranted.

Justice Souter’s last footnote in Wednesday’s decision, Exxon Shipping v. Baker, No. 07-219, underscored the suggestion in State Farm that in cases with substantial compensatory awards “the constitutional outer limit may well be 1:1.”

The Exxon decision may also be influential in cases where state court judges are making their own common-law assessments of reasonableness. While the Supreme Court’s reasoning in a federal maritime case is not binding on them, at least some state judges will find it instructive and persuasive.

Justice Samuel A. Alito Jr. owns Exxon stock and did not participate in the case. As a consequence, the court split 4 to 4 on a separate question in the case, that of whether Exxon may be held accountable for Mr. Hazelwood’s recklessness. The effect of the even split was to leave intact the ruling of the lower court, the United States Court of Appeals for the Ninth Circuit, which said Exxon may be held responsible.

The remaining members of the court were unanimous in rejecting a third argument from Exxon, that the Clean Water Act’s penalties pre-empted the punitive award.

Three justices issued their own dissents from the majority’s ruling reducing the punitive award.

Justice John Paul Stevens wrote that imposing a broadly applicable rule is a job for Congress, not the courts. He acknowledged the problem of “large outlier awards” but said courts can address those case by case.

Justice Ruth Bader Ginsburg, also dissenting, asked a series of pointed questions. For instance: “What ratio will the court set for defendants who acted maliciously or in pursuit of financial gain?” And: “On the next opportunity, will the court rule, definitively, that 1:1 is the ceiling due process requires in all of the states, and for all federal claims?”

In his dissent, Justice Stephen G. Breyer wrote that Exxon’s conduct warranted “an exception from strict application of the majority’s numerical rule.”

Jeffrey L. Fisher, a lawyer for the plaintiffs, said there was “a great deal of sadness” among his clients. “What is painful,” Mr. Fisher said, “is that there seems to have been some disagreement between the dissenters and the majority on how reprehensible Exxon’s conduct was.”

In a statement, Rex W. Tillerson, the chairman and chief executive of ExxonMobil, said “The company cleaned up the spill and voluntarily compensated more than 11,000 Alaskans and businesses. The clean-up was declared complete by the State of Alaska and the United States Coast Guard in 1992.”

Business groups welcomed the majority’s ruling.

“The decision could have an effect far beyond federal maritime law,” Robin Conrad, executive vice president of the National Chamber Litigation Center, said in a statement. “Limiting punitive damages to no more than the amount of a compensatory award will go a long way” toward restraining unpredictable punitive damages.

Justice Souter was a little self-conscious in presenting a numerical ratio as a rule of law.

“Some will murmur that this smacks too much of policy and too little of principle,” he wrote. But, he added, “history certainly is no support for the notion that judges cannot use numbers.”

    Justices Cut Damages Award in Exxon Valdez Spill, NYT, 26.6.2008, http://www.nytimes.com/2008/06/26/washington/25cnd-punitive.html?hp

Supreme Court Rejects Death Penalty for Child Rape

June 26, 2008
The New York Times
By DAVID STOUT

WASHINGTON — The Supreme Court ruled, 5 to 4, on Wednesday that sentencing someone to death for raping a child is unconstitutional, assuming that the victim is not killed.

“The death penalty is not a proportional punishment for the rape of a child,” Justice Anthony M. Kennedy wrote for the court. He was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

The court overturned a ruling by the Louisiana Supreme Court, which had held that child rape is unique in the harm it inflicts not just upon the victim but on society and that, short of first-degree murder, no crime is more deserving of the death penalty.

Justice Kennedy, while in no way minimizing the heinous nature of child rape, wrote that executing someone for that crime, assuming that the victim was not killed, violates the Eighth Amendment’s ban on cruel and unusual punishment, which draws its meaning from “the evolving standards of decency that mark the progress of a maturing society.”

“When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint,” Justice Kennedy wrote.

The relatively small number of states that allow the death penalty for the rape of a child demonstrates a “national consensus” against it, Justice Kennedy wrote. Moreover, he wrote, sentencing someone to death for raping a child could have terrible, unintended consequences, given the years that typically go by between a crime and the execution of the defendant.

“Society’s desire to inflict death for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice,” Justice Kennedy wrote.

The dissenters were Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., generally regarded as the conservative wing of the tribunal.

Justice Alito wrote a dissent lamenting that the majority had ruled out executing someone for raping a child “no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.”

The dissenters rejected the majority’s reasoning that the small number of states allowing execution of child rapists showed a consensus against the custom. Justice Alito noted that some of those state statutes were enacted even while the constitutionality of capital punishment for crimes other than murder was in doubt — thus reflecting a strong feeling in those states that the ultimate penalty was justified for such terrible harm to a child, in the dissenters’ reasoning.

Not since 1964 has anyone been executed in the United States for a crime other than murder, and of about 3,300 inmates now on death row, only two are facing execution for an offense that did not involve a killing — and both of those inmates are in Louisiana. One is the man involved in the case the court decided, Patrick Kennedy, who was sentenced to death for the rape of his 8-year-old stepdaughter, and the other is Richard Davis, who was condemned for assaulting a 5-year-old girl.

The case decided on Wednesday, Kennedy v. Louisiana, No. 07-343, does not overturn the defendant’s conviction. Rather, it returns the case to the Louisiana courts for resentencing. In practical terms, Mr. Kennedy and Mr. Davis will both be resentenced to life in prison without the possibility of parole, according to the Capital Appeals Project, which represents indigent death row defendants in Louisiana.

The Supreme Court ruled in 1976 that capital punishment is not unconstitutional in and of itself. Kennedy v. Louisiana was the latest in a series of cases in which the justices have weighed particular applications of the ultimate penalty. In 2002, for instance, the Supreme Court barred the execution of mentally retarded defendants, and in 2005 — in a ruling written by Justice Kennedy — it banned the execution of people for crimes they committed before they were 18.

But, as Chief Justice Roberts observed when Kennedy v. Louisiana was argued on April 16: “This is quite different. It is focused on the nature of the offense.” Indeed, a theme that ran through the argument was that, while the death penalty is a punishment like no other, the rape of a child is a crime like no other.

Justice Kennedy observed on Wednesday that Patrick Kennedy’s crime “cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express” by sentencing the defendant to death.

In 1977, the Supreme Court banned death sentences for rape. But the victim in that case, Coker v. Georgia, was a young married woman, and the ruling did not specifically discuss the rape of a child. Over the past 13 years, several states have reacted to public outrage over crimes against children by amending their statutes to make the rape of a child punishable by death.

Louisiana was the first state to do so, amending its death-penalty law in 1995 to include rape of a child under the age of 12. But unlike Louisiana, the other states with similar provisions (Georgia, Montana, Oklahoma, South Carolina and Texas) generally limit the death penalty to defendants previously convicted of sex crimes against children.

Mr. Kennedy’s lawyer, Jeffrey L. Fisher, argued before the justices that it was “at odds with national values” for the state to execute his client, who had never committed such a crime before.

But Justice Scalia pressed Mr. Fisher on that assertion, noting that the recent trend has been “more and more states permitting the capital punishment” for the rape of a child.

As for the case at hand, Juliet L. Clark, an assistant district attorney from Gretna, La., countered that Mr. Kennedy, who weighs 300 pounds, had committed “a very savage rape” that caused serious injuries to his victim. And R. Ted Cruz, the Solicitor General for the State of Texas, who argued as a “friend of the court” on the side of Louisiana, said that Mr. Kennedy (like Mr. Davis, the other child-rape defendant on Louisiana’s death row) had “committed crimes that are just unspeakable.”

Not only did Mr. Kennedy rape his stepdaughter in 1998 but he took elaborate steps to try to cover up his crime, prosecutors said.

Responding to a question from Justice Ginsburg during the argument, Ms. Clark said the Louisiana child-rape law could apply regardless of the sex of the criminal or that of the victim.

Ben Cohen of the Capital Appeals Project said that, in light of the Supreme Court’s decision on Wednesday, “we can only hope that the money that Louisiana has been spending drafting and defending this anomalous and unconstitutional statute will be reallocated to efforts at treatment for victims of sexual abuse and for measures that actually reduce the risk of such abuse in our communities.”

As for the last executions for crimes other than murder, Ronald Wolfe was executed in Missouri’s gas chamber on May 8, 1964, for rape, and James Coburn died in Alabama’s electric chair on Sept. 4, 1964, for robbery, The Associated Press reported, citing data from the Death Penalty Information Center.

A specialist in criminal law and the death penalty, Professor Kyron James Huigens of the Benjamin N. Cardozo School of Law at Yeshiva University, said that Wednesday’s ruling was “a bit of a surprise coming from the Roberts court but not a surprise that Justice Kennedy was the deciding justice.”

Justice Kennedy “tends to be pretty liberal on Eighth Amendment issues,” Professor Huigens said, citing his stance three years ago against executing people who were juveniles when they committed their crimes.

    Supreme Court Rejects Death Penalty for Child Rape, NYT, 26.6.2008, http://www.nytimes.com/2008/06/26/washington/26scotuscnd.html?hp

Supreme Court Refuses Checks on Border Fence

June 24, 2008
The New York Times
By DAVID STOUT

WASHINGTON — The Supreme Court sided with the Bush administration on Monday in two cases involving national security and worries about the environment. One controversy centers on the Navy’s use of sonar off the Southern California coast, while the other concerns construction of a fence along the border between the United States and Mexico.

In the sonar case, the justices said they would review a decision by the United States Court of Appeals for the Ninth Circuit, which on Feb. 27 upheld most of a lower court ruling that banned high-powered sonar within 12 miles of the coast. Environmental groups had sued to block the use of the sonar because they feared harm to whales and dolphins.

The Bush administration has argued that the sonar training exercises, used to practice tracking of hostile submarines, are “essential to national security,” that environmentalists are exaggerating the possible harm to marine life and that, in any event, national security should take precedence over the welfare of water creatures.

“This is an issue that is essential to national security, and we welcome the Supreme Court’s decision to review this case,” Lt. Sean Robertson, a Navy spokesman, told The Associated Press. The Bush administration had asked the court to take the case.

The Natural Resources Defense Council had sued the Navy because Southern California’s coastal waters are home to dozens of species of whales, dolphins, seals and sea lions, including nine species that are federally listed as endangered or threatened. Marine biologists have said the sonar in question generates extreme pressure that can disorient and injure the creatures, disrupting their feeding and mating schedules and causing injuries. The Navy has insisted that it takes steps adequate to minimize the effects of sonic wakes.

In the border dispute, the Supreme Court refused to put brakes on the Bush administration’s full-speed-ahead approach to construction of a fence along the border between the United States and Mexico.

Without comment, the justices declined a plea by environmental groups to put checks on the administration’s power to bypass environmental reviews in building sections of the 700-mile fence. The Homeland Security Secretary, Michael Chertoff, has used the environmental-waiver authority, which was granted by Congress, several times.

Under the Secure Fence Act of 2006, the Homeland Security Department was authorized by Congress to build up to 700 miles of fence along the 2,000-mile Southwest border, where most illegal immigrants coming into the United States cross over.

Environmental groups have expressed concerns, through lawsuits and public hearings, about the damage that the fencing could cause to wildlife. Property owners, particularly along the Rio Grande, have also complained about what they see as federal intrusion on their land and access to the river.

A recent statement by Mr. Chertoff summed up his general stance: “Criminal activity at the border does not stop for endless debate or protracted litigation.” The secretary has said his department must bypass environmental regulations if it is to meet the goal set by Congress of completing at least 670 miles of fence by the end of 2008.

Opposition to the fence project intensified in April, when Mr. Chertoff issued two waivers covering 470 miles of the border from California to Texas as well as a separate 22-mile stretch in Hidalgo County, Tex., where the department plans to build fencing up to 18 feet high into a flood-control levee in a wildlife refuge.

The case that the Supreme Court refused to take up on Monday focused on a two-mile stretch of fence in the San Pedro Riparian National Conservation Area near Naco, Ariz. The stretch has since been built.

“I am extremely disappointed in the court’s decision,” Representative Bennie Thompson, Democrat of Mississippi, told the A.P. on Monday. Mr. Thompson, who heads the House Homeland Security Committee, and 13 other House Democrats had announced their support for challenges to Mr. Chertoff’s waiver authority, which were led by the Sierra Club and Defenders of Wildlife.

Mr. Thompson told the news service on Monday that he believes use of the waiver authority will only keep the Homeland Security Department from addressing “the real issue: their lack of a comprehensive border security plan.”

Randal C. Archibold contributed reporting.

    Supreme Court Refuses Checks on Border Fence, NYT, 24.6.2008, http://www.nytimes.com/2008/06/24/washington/23cnd-scotus.html?hp

Supreme Court Eases Age Bias Suits for Workers

June 20, 2008
The New York Times
By DAVID STOUT

WASHINGTON — In a ruling of potential interest for older workers across the country, the Supreme Court made it easier on Thursday for workers to contend that they are being discriminated against by their employers because of their age.

In a 7-to-1 ruling, the court ruled that it is up to the employer to show that action against a worker stems from “reasonable factors other than age.” The question in the case, one of three involving labor relations issued by the court on Thursday, was whether the burden rested on the employer or on an employee bringing a suit.

The age-bias ruling, written by Justice David H. Souter, acknowledged that “there is no denying that putting employers to the work of persuading fact-finders that their choices are reasonable makes it harder and costlier to defend” age-bias accusations and that the ruling “will sometimes affect the way employers do business with their employees.”

Nevertheless, Justice Souter wrote, the language of the Age Discrimination in Employment Act of 1967 makes it clear that Congress wanted the burden to be on the employer. When the case was argued on April 23, lawyers on the side of the workers asserted that the intent of Congress was clear, since the 1967 statute provides for “reasonable factors other than age” to protect employers from liability.

If Congress offered employers such a defense, the lawyers argued, it must be up to them to prove their case. Justice Souter essentially agreed, writing that the concerns of those who feel otherwise “have to be directed at Congress, which set the balance where it is.”

“We have to read it the way Congress wrote it,” Justice Souter wrote. Agreeing with him were Chief Justice John G. Roberts Jr. and Justices John Paul Stevens, Anthony M. Kennedy, Ruth Bader Ginsburg and Samuel A. Alito Jr. Justice Antonin Scalia concurred in the overall judgment, though not all of Justice Souter’s reasoning.

The case decided on Thursday concerned two dozen workers at an upstate New York federal research laboratory. When the federal government ordered the contractor that runs the lab, Knolls Atomic Power Laboratory, also known as KAPL Inc., to reduce its force, the contractor had its managers rate their subordinates on “performance,” “flexibility,” and “critical skills.”

Thirty-one employees were let go, and all but one were over 40, the age at which the age-discrimination law begins to apply. Most of the affected employees joined a suit contending there was no justification for using an evaluation system that had just a starkly disparate impact on older workers.

The workers prevailed in a jury trial, winning awards that ranged from $69,000 to more than $1 million, but lost before the United States Court of Appeals for the Second Circuit, in Manhattan, which concluded that that the burden of proof rested on the workers, rather than the employer, and threw out the awards. Thursday’s ruling by the high court overturned the Second Circuit and sent the case back to the lower courts.

In dissenting Thursday, Justice Clarence Thomas said that, while he thought the Second Circuit was wrong in putting the burden on workers, other elements of the case required him to support its judgment. Justice Stephen G. Breyer did not take part in the case, apparently because his private investments would have created a conflict.

The Bush administration sided with the workers on grounds that the Equal Employment Opportunity Commission has interpreted the 1967 law as putting the burden of proof on employers, not workers.

Seth P. Waxman, solicitor general in the administration of President Bill Clinton, argued on behalf of the employer. He maintained that plaintiffs should have to prove discrimination, since age, unlike race or sex, “often does correlate with reasonable employment factors.”

The other labor relations cases decided on Thursday were Chamber of Commerce of the United States v. Brown, in which the justices struck down a California law that blocked use of state money for anti-union activities, and Kentucky Retirement Systems v. E.E.O.C., in which the court ruled that Kentucky’s retirement system does not discriminate against older workers. Those decisions and the one in the age-discrimination case are at the Supreme Court site.

    Supreme Court Eases Age Bias Suits for Workers, NYT, 20.6.2008, http://www.nytimes.com/2008/06/20/washington/20scotuscnd.html?hp

Supreme Court to Rule on Bias Suit by Detainee

June 17, 2008
The New York Times
By DAVID STOUT

WASHINGTON — The Supreme Court will decide whether former Attorney General John Ashcroft and F.B.I. Director Robert S. Mueller III should have to face a lawsuit asserting that Muslims detained after the attacks of Sept. 11, 2001, were subjected to discrimination.

The case that the court accepted on Monday involves Javaid Iqbal, who was arrested in his Long Island apartment on Nov. 2, 2001, by federal agents. In his apartment, they found a magazine showing the Twin Towers in flames and papers showing that he had been in Lower Manhattan on Sept. 11, picking up a work permit from immigration services.

Until the terrorist attacks, Mr. Iqbal had been living a peaceful, apparently unremarkable life as a cable-television serviceman. He was married to an American and was known by his customers as “the cable guy” until he was swept up in federal raids, along with hundreds of other Muslim immigrants in the New York City area, and confined to a detention center in Brooklyn.

It is not entirely clear how Mr. Iqbal came to be regarded as a person of “high interest” by the federal authorities soon after the Sept. 11 attacks. One possibility, which surfaced in earlier reports about the case, was that a former employer of Mr. Iqbal told the Federal Bureau of Investigation that a friend of Mr. Iqbal had passed along a rumor that “Iqbal might have been involved and wanted for a bombing in Pakistan.”

Mr. Iqbal’s suit asserts that he was held in harsh solitary confinement for five months, beaten and verbally abused, subjected to discrimination because of his religion and ethnicity and forced to endure needless strip searches. The suit accuses Mr. Ashcroft and Mr. Mueller of conspiring to violate the prisoners’ rights.

A 2003 report by the inspector general’s office of the Justice Department found that there had been widespread abuse of inmates at the Brooklyn detention center.

A federal district judge ruled that senior government officials, including Mr. Ashcroft and Mr. Mueller, should have to answer questions under oath as the lawsuit proceeded. The United States Court of Appeals for the Second Circuit, in Manhattan, upheld most of the district judge’s ruling and refused to throw out the suit, as lawyers for the officials had requested.

“The strength of our system of constitutional rights derives from the steadfast protection of those rights in both normal and unusual times,” Judge Jon O. Newman wrote for the Second Circuit on June 14, 2007.

Lawyers for the officials argued unsuccessfully that they should not be held liable for the wrongs, if any, committed by subordinates, and that the weeks immediately following 9/11 were times of an extraordinary crisis that justified extraordinary measures.

In early 2006, the federal government agreed to pay $300,000 to settle a lawsuit brought by an Egyptian, Ehab Elmaghraby, who was among those held for months in the federal detention center in Brooklyn and deported after being cleared of links to terrorism but pleading guilty to credit card fraud.

Mr. Iqbal, too, was cleared of any terrorism charges but was deported to Pakistan after pleading guilty to possession of false documents and bogus checks. Both Mr. Elmaghraby and Mr. Iqbal maintained that they pleaded guilty only to escape abusive treatment.

    Supreme Court to Rule on Bias Suit by Detainee, NYT, 17.6.2008, http://www.nytimes.com/2008/06/17/washington/16cnd-scotus.html?hp

Justices Rule Terror Suspects Can Appeal in Civilian Courts

June 13, 2008
The New York Times
By DAVID STOUT

WASHINGTON — Foreign terrorism suspects held at the Guantánamo Bay naval base in Cuba have constitutional rights to challenge their detention there in United States courts, the Supreme Court ruled, 5 to 4, on Thursday in a historic decision on the balance between personal liberties and national security.

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Justice Anthony M. Kennedy wrote for the court.

The ruling came in the latest battle between the executive branch, Congress and the courts over how to cope with dangers to the country in the post-9/11 world. Although there have been enough rulings addressing that issue to confuse all but the most diligent scholars, this latest decision, in Boumediene v. Bush, No. 06-1195, may be studied for years to come.

In a harsh rebuke of the Bush administration, the justices rejected the administration’s argument that the individual protections provided by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 were more than adequate.

“The costs of delay can no longer be borne by those who are held in custody,” Justice Kennedy wrote, assuming the pivotal role that some court-watchers had foreseen.

The issues that were weighed in Thursday’s ruling went to the very heart of the separation-of-powers foundation of the United States Constitution. “To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this court, say ‘what the law is,’ ” Justice Kennedy wrote, citing language in the 1803 ruling in Marbury v. Madison, in which the Supreme Court articulated its power to review acts of Congress.

Joining Justice Kennedy’s opinion were Justices John Paul Stevens, Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter. Writing separately, Justice Souter said the dissenters did not sufficiently appreciate “the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years.”

The dissenters were Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas, generally considered the conservative wing on the high court.

Reflecting how the case divided the court not only on legal but, perhaps, emotional lines, Justice Scalia said that the United States was “at war with radical Islamists,” and that the ruling “will almost certainly cause more Americans to get killed.”

And Chief Justice Roberts said the majority had struck down “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.”

The immediate effects of the ruling are not clear. For instance, Cmdr. Jeffrey Gordon, a Pentagon spokesman, told The Associated Press he had no information on whether a hearing at Guantánamo for Omar Khadr, a Canadian charged with killing an American soldier in Afghanistan, would go forward next week, as planned. Nor was it initially clear what effects the ruling would have beyond Guantánamo.

The 2006 Military Commission Act stripped the federal courts of jurisdiction to hear habeas corpus petitions filed by detainees challenging the bases for their confinement. That law was upheld by the United States Court of Appeals for the District of Columbia Circuit in February 2007.

At issue were the “combatant status review tribunals,” made up of military officers, that the administration set up to validate the initial determination that a detainee deserved to be labeled an “enemy combatant.”

The military assigns a “personal representative” to each detainee, but defense lawyers may not take part. Nor are the tribunals required to disclose to the detainee details of the evidence or witnesses against him — rights that have long been enjoyed by defendants in American civilian and military courts.

Under the 2005 Detainee Treatment Act, detainees may appeal decisions of the military tribunals to the District of Columbia Circuit, but only under circumscribed procedures, which include a presumption that the evidence before the military tribunal was accurate and complete.

The ruling on Thursday focused in large part on the centuries old writ of habeas corpus (“you have the body,” in Latin), a means by which prisoners can challenge their incarceration. Noting that the Constitution provides for suspension of the writ only in times of rebellion or invasion, Justice Kennedy called it “an indispensable mechanism for monitoring the separation of powers.”

In the years-long debate over the treatment of detainees, some critics of administration policy have asserted that those held at Guantánamo have fewer rights than people accused of crimes under American civilian and military law and that they are trapped in a sort of legal limbo.

Justice Kennedy wrote that the cases involving the detainees “lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measure from September 11, 2001, to the present, is already among the longest wars in American history.”

President Bush, traveling in Rome, did not immediately react to the court’s decision. "People are reviewing the decision," Mr. Bush’s press secretary, Dana M. Perino, said. The president has said he wants to close the Guantánamo detention unit eventually.

The detainees at the center of the case decided on Thursday are not all typical of the people confined at Guantánamo. True, the majority were captured in Afghanistan or Pakistan. But the man who gave the case its title, Lakhdar Boumediene, is one of six Algerians who immigrated to Bosnia in the 1990’s and were legal residents there. They were arrested by Bosnian police within weeks of the Sept. 11 attacks on suspicion of plotting to attack the United States embassy in Sarajevo — “plucked from their homes, from their wives and children,” as their lawyer, Seth P. Waxman, a former solicitor general put it in the argument before the justices on Dec. 5.

The Supreme Court of Bosnia and Herzegovina ordered them released three months later for lack of evidence, whereupon the Bosnian police seized them and turned them over to the United States military, which sent them to Guantánamo.

Mr. Waxman argued before the United States Supreme Court that the six Algerians did not fit any authorized definition of enemy combatant, and therefore ought to be released.

The head of the New York-based Center for Constitutional Rights, which represents dozens of prisoners at Guantánamo, hailed the ruling. “The Supreme Court has finally brought an end to one of our nation’s most egregious injustices,” Vincent Warren, the organization’s executive director, told The Associated Press.

Senator Barack Obama of Illinois, the presumptive Democratic presidential nominee, has called for closing the Guantánamo detention unit. So has his Republican opponent, Senator John McCain of Arizona, but the issue of what to do with the detainees could still figure prominently in the campaign, as Mr. McCain’s remarks on Thursday signaled.

Speaking to reporters in Boston on Thursday morning, Mr. McCain said he had not had time to read the decision, but “it obviously concerns me.”

“These are unlawful combatants, they’re not American citizens, and I think that we should pay attention to Justice Roberts’s opinion in this decision,” Mr. McCain said. "But it is a decision the Supreme Court had made, and now we need to move forward."

Mr. McCain, who was held for more than five years as a prisoner of war in Vietnam, was one of the chief architects of the Military Commissions Act of 2006. He argued during the drafting of that law that it gave detainees more than adequate provisions to challenge their detention.”

Senator John Kerry of Massachusetts, the 2004 Democratic presidential nominee, applauded the ruling. “Today, the Supreme Court affirmed what almost everyone but the administration and their defenders in Congress always knew,” he said. “The Constitution and the rule of law bind all of us even in extraordinary times of war. No one is above the Constitution.”
 

Kate Zernike contributed reporting from Boston.

    Justices Rule Terror Suspects Can Appeal in Civilian Courts, NYT, 13.6.2008, http://www.nytimes.com/2008/06/13/washington/12cnd-gitmo.html?hp

Justices to Review Tobacco Award

June 10, 2008
The New York Times
By DAVID STOUT

WASHINGTON — One can assume that Jesse Williams, a simple man who served in the Army in the early 1950’s and then worked as a janitor in Portland, Ore., never dreamed his name would be uttered in the United States Supreme Court. But on Monday, the justices agreed to review, for the third time, a case involving the death of Mr. Williams, a longtime smoker, from lung cancer.

The court will consider once again the lawsuit brought by his widow, Mayola Williams, against Philip Morris Incorporated, the maker of the cigarettes that Mr. Williams smoked for decades, resisting his family’s pleas to quit because he believed — or wanted to believe — that the dangers of smoking were exaggerated.

“Williams rejected arguments to quit, because ‘he had learned from watching television that smoking did not cause lung cancer,’ ” the Oregon Supreme Court wrote on Jan. 31. “When Williams was diagnosed with lung cancer, however, he asserted that the ‘cigarette people’ had betrayed him by ‘lying’ to him.”

The United States Supreme Court will review a $79.5 million punitive-damages award against Philip Morris in the latest back-and-forth between the justices and the high court of Oregon. The last time the case was before the United States Supreme Court, the justices overturned the award by an Oregon jury on the ground that jurors might have improperly calculated the monetary figure to punish the cigarette maker, by weighing the harm the company caused to smokers other than Mr. Williams.

That ruling, on Feb. 20, 2007, sent the case back to the Oregon Supreme Court, which concluded in January that the award against Philip Morris could stand because the United States Supreme Court had acknowledged that harm to people not involved in the lawsuit could still play a role in the punitive-damages calculation “in the sense that it is relevant to showing the degree of reprehensibility of a defendant’s conduct.”

In announcing on Monday that it would look at the Williams case once again, the United States Supreme Court said it would not consider whether the amount of the judgment was constitutionally permissible. Rather, it would decide if the Oregon court’s January action was taken in defiance of the February 2007 ruling.

Jesse Williams died in 1997, six months after his illness was diagnosed following decades of a two-packs-a-day habit. His widow filed suit in 1999.

The Oregon high court refused to hear an appeal from Philip Morris. The case wound its way to the United States Supreme Court and back again to Oregon, with federal and state jurists sifting issues that included the amount of damages that were acceptable and various subtleties in the instructions to the trial jury.

In its January ruling, the Oregon high court alluded to the “extensive publicity campaign” carried on by the tobacco industry from the 1950s into the 1990s “to convince the public that doubts remained about whether smoking actually was dangerous to one’s health,” long after scientists had concluded that there were no doubts.

Court records recall that Jesse Williams became dependent on tobacco while in the Army in the early 1950s, an era when the newscaster John Cameron Swayze appeared on NBC’s evening “Camel News Caravan,” a program that featured announcements of gift cartons of Camel cigarettes going to veterans’ hospitals around the country.

    Justices to Review Tobacco Award, NYT, 10.6.2008, http://www.nytimes.com/2008/06/10/washington/10scotus.html?hp

Justices Rule Against Worker Who Lost Job

June 9, 2008
Filed at 12:06 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court on Monday made it more difficult for individual public employees to sue for workplace discrimination.

In a 6-3 decision, the justices ruled against a woman who said her job at the Oregon Department of Agriculture was eliminated because she complained about a colleague who harassed her.

Individual victims of discrimination in many instances can assert claims, but ''we have often recognized that government has significantly greater leeway in its dealings with citizen employees,'' Chief Justice John Roberts wrote for the majority.

Individual public employees typically have a variety of protections from personnel actions, but invoking the equal protection clause of the Constitution is not one of them, Roberts said.

In dissent, Justice John Paul Stevens said there is no compelling reason to carve arbitrary public employment decisions out of a well-established category of equal protection violations.

Born in India, Anup Engquist said that after she complained about a colleague who allegedly harassed her, the man and a superior eliminated her position. A jury subsequently ruled in Engquist's favor.

Nine federal appeals courts have ruled that public employee claims similar to Engquist's can go forward.

However, the 9th U.S. Circuit Court of Appeals in San Francisco ruled against Engquist. The appeals court said that her claim involved an area of law where the rights of public employees should not be as expansive as those of ordinary citizens.

The case revolves around an 8-year-old Supreme Court decision. In it, the justices ruled that a person may assert an equal protection claim as a ''class of one'' rather than on the usual grounds of discrimination against an entire group. The case eight years ago involved a couple suing village officials who allegedly demanded a 33-foot easement before providing water service, when the consistent requirement for other customers was 15 feet.

In his majority opinion, Roberts drew a distinction between Engquist's case and that of the couple seeking water service.

''There is a crucial difference'' between government acting as a regulator and government acting as manager of its internal operations, Roberts wrote.

The Bush administration weighed in against Engquist in the Supreme Court.

If Engquist were to prevail, the federal courts would have to referee run-of-the-mill decisions in the public workplace, said the Justice Department solicitor general's office. Allowing such claims would subject public employers to compensatory and punitive damage claims for petty grievances, the solicitor general's office argued.

The federal government has 2.7 million civilian employees.

The states argued that the courts must be deferential to employment decisions of co-equal branches of government. School boards say there are already a multitude of judicial remedies for workplace employment complaints.

Among Engquist's supporters in the case were the 10-million-member AFL-CIO, the 3-million-member National Education Association and the 325,000-member National Fraternal Order of Police.

The case is Engquist v. Oregon Department of Agriculture.

    Justices Rule Against Worker Who Lost Job, NYT, 9.6.2008, http://www.nytimes.com/aponline/washington/AP-Scotus-Public-Employees.html?ref=washington

Supreme Court Sides With Workers in Bias Suit

May 28, 2008
The New York Times
By THE ASSOCIATED PRESS

WASHINGTON — The Supreme Court sided Tuesday with employees who faced retaliation after complaining about race and age discrimination in rulings that drew support from conservative and liberal justices.

The court, by a 7-2 vote, said a provision of the Civil Rights Act of 1866 covers claims of retaliation that follow complaints about discrimination on the basis of race.

In a 6-3 ruling, the court likewise held that the part of the major anti-age bias law covering federal employees also protects them from retaliation after complaining about discrimination.

Neither provision contains express prohibitions against retaliation.

But Justice Stephen G. Breyer, writing for the court in a case involving a black Cracker Barrel employee who was fired, said that previous Supreme Court decisions and Congressional action make clear that retaliation is covered.

The idea that a provision of the 1866 law, known as section 1981, “encompasses retaliation claims is indeed well embedded in the law,” Justice Breyer said.

Business groups objected that the absence of an explicit prohibition on retaliation was significant and said employees should have to file suit under another law, Title VII of the Civil Rights Act of 1964. That law has a shorter deadline for filing suit and caps the amount of money that a successful plaintiff may recover.

The Bush administration was on the side of the workers.

The case grew out of the firing of a black associate manager at a Cracker Barrel restaurant in Bradley, Ill. The associate manager, Hedrick Humphries, asserted he was fired after he complained about race discrimination by other Cracker Barrel supervisors.

Mr. Humphries filed a lawsuit claiming both discrimination and retaliation. Both claims were dismissed by a federal judge and only the retaliation claim was appealed.

The United States Court of Appeals for the Seventh Circuit in Chicago said Mr. Humphries could pursue his retaliation claim under section 1981. The high court upheld the appeals court ruling.

In the age retaliation case, Justice Samuel Alito’s majority opinion concluded that a Postal Service employee could pursue her lawsuit under the Age Discrimination in Employment Act.

The law does specifically bar reprisals against private sector employees who complain about discrimination. But it is silent as to federal workers. Justice Alito said the law indeed does apply to both categories of employees.

The case involves Myrna Gomez-Perez, a postal worker in Puerto Rico who asserted she was being discriminated against because of her age. Ms. Gomez-Perez, who was then 45, said that after she filed a complaint with the Equal Opportunity Employment Commission, she suffered a “series of reprisals” from her supervisors.

She sued under the Age Discrimination in Employment Act, claiming retaliation in violation of the law.

The United States Court of Appeals for the First Circuit in Boston upheld a lower court’s dismissal. The Supreme Court reversed that ruling Tuesday.

The administration, which is backing workers in other age bias cases at the high court, said the Employment Act does not afford federal workers protection from retaliation. It said Congress could have extended protections to federal workers, but did not.

Justices Antonin Scalia and Clarence Thomas dissented. Chief Justice John Roberts joined them in the age bias case, but sided with the majority in the Cracker Barrel case.

Both decisions relied, in part, on a 2005 ruling that called retaliation another form of intentional, unlawful discrimination under Title IX, which bars sex discrimination in education. Title IX also does not explicitly talk about reprisals.

    Supreme Court Sides With Workers in Bias Suit, NYT, 28.5.2008, http://www.nytimes.com/2008/05/28/business/28bizcourt.html?hp

Court rules against would-be millennium bomber

Mon May 19, 2008
11:44am EDT
The New York Times
By James Vicini

WASHINGTON (Reuters) - The Supreme Court ruled on Monday the would-be "millennium bomber" who plotted to blow up Los Angeles International Airport was properly convicted on one of nine charges on which he was found guilty.

By an 8-1 vote, the high court upheld Ahmed Ressam's conviction on one count of carrying explosives while committing the felony crime of lying on a customs form.

Justice John Paul Stevens said for the majority that Ressam had explosives in the trunk of his car when he lied on a customs form and thus was carrying explosives during the commission of the other crime, as required by the law.

The ruling was a victory for U.S. Attorney General Michael Mukasey, who had argued before the Supreme Court that Ressam's conviction should be upheld. A federal appeals court had thrown out that one conviction.

Officials caught Ressam, an Algerian national, at the U.S.-Canada border in December 1999 with nitroglycerin in the trunk of a rented car. He told authorities he planned to blow up the Los Angeles airport on the eve of 2000.

Ressam later reached a deal with federal prosecutors to give information about other terrorism suspects in return for a shorter sentence. He eventually angered prosecutors by refusing to cooperate further after early 2003.

Ressam left Algeria in 1992 for France and in 1994 sought asylum in Canada, which was denied. However he was not deported and in 1998 he attended an al Qaeda camp in Afghanistan. He returned to Canada the next year to plan the airport attack.

The eight other counts included conspiracy to commit an international terrorist act and explosives smuggling. Those counts were not at issue in the Supreme Court's ruling.

Only Justice Stephen Breyer dissented. He said the law requires some relationship between carrying the explosives and the other crime committed by a defendant.
 

(Editing by David Wiessler)

    Court rules against would-be millennium bomber, R, 19.5.2008, http://www.reuters.com/article/domesticNews/idUSN1954040120080519

Justices Uphold Part of Child Pornography Law

May 19, 2008
Filed at 1:08 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court upheld criminal penalties Monday for promoting child pornography.

The court, in a 7-2 decision, brushed aside concerns that the law could apply to mainstream movies that depict adolescent sex, classic literature or innocent e-mails that describe pictures of grandchildren.

The ruling upheld part of a 2003 law that also prohibits possession of child porn. It replaced an earlier law against child pornography that the court struck down as unconstitutional.

The law sets a five-year mandatory prison term for promoting, or pandering, child porn. It does not require that someone actually possess child pornography. Opponents have said the law could apply to movies like ''Traffic'' or ''Titanic'' that depict adolescent sex.

But Justice Antonin Scalia, in his opinion for the court, said the law does not cover movie sex. there is no ''possibility that virtual child pornography or sex between youthful-looking adult actors might be covered by the term 'simulated sexual intercourse.''' Scalia said.

Likewise, Scalia said, First Amendment protections do not apply to ''offers to provide or requests to obtain child pornography.''

Justice David Souter, joined by Justice Ruth Bader Ginsburg, dissented. Souter said promotion of images that are not real children engaging in pornography still could be the basis for prosecution under the law. Possession of those images, on the other hand, may not be prosecuted, Souter said.

''I believe that maintaining the First Amendment protection of expression we have previously held to cover fake child pornography requires a limit to the law's criminalization of pandering proposals,'' Souter said.

The 11th U.S. Circuit of Appeals struck down the provision. The Atlanta-based court said it makes a crime out of merely talking about illegal images or possessing innocent materials that someone else might believe is pornography.

In the appeals court's view, the law could apply to an e-mail sent by a grandparent and entitled ''Good pics of kids in bed,'' showing grandchildren dressed in pajamas.

In 2002, the court struck down key provisions of a 1996 child pornography law because they called into question legitimate educational, scientific or artistic depictions of youthful sex.

Congress responded the next year with the PROTECT Act, which contains the provision under challenge in the current case.

Authorities arrested Michael Williams in an undercover operation aimed at fighting child exploitation on the Internet. A Secret Service agent engaged Williams in an Internet chat room, where they swapped non-pornographic photographs. Williams advertised himself as ''Dad of toddler has 'good' pics of her an me for swap of your toddler pics, or live cam.''

After the initial photo exchange, Williams allegedly posted seven images of actual minors engaging in sexually explicit conduct. Agents who executed a search warrant found 22 child porn images on Williams' home computer.

Williams also was convicted of possession of child pornography. That conviction, and the resulting five-year prison term, was not challenged.

The case is U.S. v. Williams, 06-694.

------

On the Net:

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

    Justices Uphold Part of Child Pornography Law, NYT, 19.5.2008, http://www.nytimes.com/2008/05/20/washington/19cnd-scotus.html?hp

Editorial

The Court Fumbles on Voting Rights

April 29, 2008
The New York Times

Democracy was the big loser in the Supreme Court on Monday. The court upheld Indiana’s voter identification law, which solves a nearly nonexistent problem by putting major barriers between voters — particularly minorities — and the ballot box. Worse, the court set out a standard that clears the way for other states to adopt rules that discourage disadvantaged groups from voting. It is a sad reversal for a court that once saw itself as a champion of voting rights.

In 2005, Indiana passed one of the nation’s toughest voter ID laws. It requires voters to present government-issued photo ID at the polls. Private college IDs, employee ID cards and utility bills are unacceptable. For people without a driver’s license — who are disproportionately poor and minority — the burden is considerable. To get acceptable ID, many people would be forced to pay fees for underlying documents, such as birth certificates.

This should not have been a hard case. The court has long recognized that the right to vote is so fundamental that a state cannot restrict it unless it can show that the harm it is seeking to prevent outweighs the harm it imposes on voters.

The Indiana law does not meet this test. The harm it imposes on voters, some of whom will no doubt be discouraged from casting ballots, is considerable. The state’s interest in the law, on the other hand, is minimal. It was supposedly passed to prevent people from impersonating others at the polls, but there is no evidence that this has ever happened in Indiana. It seems far more likely that the goal of the law’s Republican sponsors was to disenfranchise groups that lean Democratic.

Unfortunately, only three justices voted to hold the law unconstitutional. The other six fell into two groups. Three — Justices John Paul Stevens and Anthony Kennedy and Chief Justice John Roberts — signed a lead opinion that set a disturbingly low bar for what sort of interference with voting the Constitution permits. A second opinion, signed by Justices Antonin Scalia, Clarence Thomas and Samuel Alito, was worse. It argued for upholding all but the most severe and unjustified burdens on voting. Richard Hasen, a Loyola Law School professor, notes that if the court had taken this opinion’s approach in 1966, it is not clear it would have overturned the poll tax.

Hovering over Monday’s decision was a case that was not mentioned: Bush v. Gore. In 2000, the Supreme Court took seriously the claims of one individual — George W. Bush — that his equal protection rights were being denied by a state election system, and the court had no hestitation about telling the state what to do.

On “60 Minutes” on Sunday, Justice Scalia yet again told the public to “get over” that ruling. There are many good reasons to remember Bush v. Gore, and Monday’s ruling was a reminder of one of them. Seven years after it invoked the Constitution to vindicate what it saw as Mr. Bush’s right to fair election procedures, we are still waiting for the court to extend this guarantee with equal vigilance to every American.

    The Court Fumbles on Voting Rights, NYT, 29.4.2008, http://www.nytimes.com/2008/04/29/opinion/29tue1.html

Supreme Court Upholds Voter Identification Law in Indiana

April 29, 2008
The New York Times
By DAVID STOUT

WASHINGTON — The Supreme Court on Monday upheld Indiana’s voter-identification law, declaring that a requirement to produce photo identification is not unconstitutional and that the state has a “valid interest” in improving election procedures as well as deterring fraud.

In a 6-to-3 ruling in one of the most eagerly awaited election-law cases in years, the court rejected arguments that Indiana’s law imposes unjustified burdens on people who are old, poor or members of minority groups and less likely to have driver’s licenses or other acceptable forms of identification. Because Indiana’s law is considered the strictest in the country, similar laws in other states would appear to have a good chance of surviving scrutiny.

The ruling, coming just eight days before the Indiana primary and at the height of a presidential election campaign, upheld rulings by a federal district court and the United States Court of Appeals for the Seventh Circuit, which had thrown out challenges to the 2005 law.

Justice John Paul Stevens, who announced the judgment of the court and wrote an opinion in which Chief John G. Roberts Jr. and Anthony M. Kennedy joined, alluded to — and brushed aside — complaints that the law benefits Republicans and works against Democrats, whose ranks are more likely to include poor people or those in minority groups.

The justifications for the law “should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators,” Justice Stevens wrote.

Justice Stevens and the two court members who joined him found that the Democrats and civil rights groups who attacked the law, seeking a declaration that it was unconstitutional on its face, had failed to meet the heavy burden required for such a “facial challenge” to prevail.

Perhaps, they suggested, the outcome could be different in another voter-rights case, one in which a plaintiff could show that his or her rights had been violated. That was the approach suggested by the Bush administration, whose solicitor general, Paul D. Clement, urged the court to wait for a lawsuit brought by someone was actually barred by the statute from casting a ballot.

Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. concurred in the judgment of the court, but went further in rejecting the plaintiffs’ challenge. In an opinion by Justice Scalia, the three justices said, “The law should be upheld because its overall burden is minimal and justified.”

Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer dissented. Justice Souter, in an opinion joined by Justice Ginsburg, said the Indiana law, which calls for a government-issued photo identification, like a driver’s license or passport, “threatens to impose nontrivial burdens on the voting rights of tens of thousands of the state’s citizens.”

Some Democrats have complained that those who succeeded in passing the law and fought on its behalf were citing problems that did not exist, because prosecutions for impersonating a registered voter are exceedingly rare, or non-existent. The real motivation of those behind the law was to hamper Democrats, those foes of the law have argued.

“This decision is a body blow to what America stands for — equal access to the polls,” said Senator Charles E. Schumer, Democrat of New York.

When the case was argued before the Supreme Court in January, there was considerable back-and-forth over how much of a burden the Indiana law could be in an age when an overwhelming majority of people old enough to vote also possess a driver’s license or other form of photo identification.

There was also discussion over how much voter fraud really exists, with some suggestions that the reason it has apparently never been prosecuted in Indiana is because those who commit fraud are good at it.

But, as Justice Stevens noted, there have been flagrant examples of voter fraud in American history. He cited the 1868 New York City elections, in which a local tough who worked for Tammany’s William (Boss) Tweed explained why he liked voters to have whiskers: “When you’ve voted ’em with their whiskers on, you take ’em to a barber and scrape off the chin fringe. Then you vote ’em again with the side lilacs and a mustache. Then to a barber again, off comes the sides and you vote ’em a third time with the mustache. If that ain’t enough and the box can stand a few more ballots, clean off the mustache and vote ’em plain face.”

In 2004, Justice Stevens noted in a footnote, the hotly contested gubernatorial election in Washington State produced an investigation that turned up 19 “ghost voters” and at least one confirmed instance of voter fraud. And while Justice Stevens did not mention the elections in the career of Lyndon B. Johnson, biographers of the late president have suggested that he won at least one election in Texas in the 1940’s through ballot box-stuffing — and lost at least one the same way.

On the other hand, there is no dispute that some voting laws enacted decades ago, especially in the South, were not intended to prevent fraud but rather to keep blacks from voting.

Indiana usually goes Republican in presidential elections. Republicans control the State Senate, while Democrats hold a narrow advantage in the House. The governor, Mitch Daniels, is a Republican. When the 2005 law was passed, Republicans controlled both houses and were unanimously behind the law — while Democrats were unanimously opposed.

Lawyers who challenged the case cited the experience of one would-be Indiana voter, Valerie Williams, who was turned away from the polling place in November 2006 by officials who told her that a telephone bill, a Social Security letter with her address and an expired driver’s license were no longer sufficient.

“Of course, I threw a fit,” she said in a January interview with The New York Times, recalling how she cast a provisional ballot which was never counted. Ms. Williams, in her early 60’s, is black — and is a Republican.

    Supreme Court Upholds Voter Identification Law in Indiana, NYT, 29.4.2008, http://www.nytimes.com/2008/04/29/washington/28cnd-scotus.html?hp

Op-Ed Contributor

Cruel and Unusual History

April 23, 2008
The New York Times
By GILBERT KING

THE Supreme Court concluded last week, in a 7-2 ruling, that Kentucky’s three-drug method of execution by lethal injection does not violate the Eighth Amendment’s prohibition on cruel and unusual punishment. In his majority opinion, Chief Justice John Roberts cited a Supreme Court principle from a ruling in 1890 that defines cruelty as limited to punishments that “involve torture or a lingering death.”

But the court was wrong in the 19th century, an error that has infected its jurisprudence for more than 100 years. In this nation’s landmark capital punishment cases, the resultant executions were anything but free from torture and prolonged deaths.

The first of those landmark cases, the 1879 case of Wilkerson v. Utah, was cited by Justice Clarence Thomas, in his concurring opinion in the Kentucky case. The court “had no difficulty concluding that death by firing squad” did not amount to cruel and unusual punishment, Justice Thomas wrote.

Wallace Wilkerson might have begged to differ. Once the Supreme Court affirmed Utah’s right to eradicate him by rifle, Wilkerson was let into a jailyard where he declined to be blindfolded. A sheriff gave the command to fire and Wilkerson braced for the barrage. He moved just enough for the bullets to strike his arm and torso but not his heart.

“My God!” Wilkerson shrieked. “My God! They have missed!” More than 27 minutes passed as Wilkerson bled to death in front of astonished witnesses and a helpless doctor.

Just 11 years later, the Supreme Court heard the case of William Kemmler, who had been sentenced to death by electric chair in New York. The court, in affirming the state’s right to execute Kemmler, ruled that electrocution reduced substantial risks of pain or “a lingering death” when compared to executions by hanging. Kemmler, had he lived through the ensuing execution (and he nearly did), might too have disagreed.

After a thousand volts of current struck Kemmler on Aug. 6, 1890, the smell of burnt flesh permeated the room. He was still breathing. Saliva dripped from his mouth and down his beard as he gasped for air. Nauseated witnesses and a tearful sheriff fled the room as Kemmler’s coat burst into flames.

Another surge was applied, but minutes passed as the current built to a lethal voltage. Some witnesses thought Kemmler was about to regain consciousness, but eight long minutes later, he was pronounced dead.

Perhaps the most egregious case came to the court more than 50 years later. “Lucky” Willie Francis, as the press called him, was a stuttering 17-year-old from St. Martinville, La. In 1946, he walked away from the electric chair known as “Gruesome Gertie” when two executioners (an inmate and a guard) from the state penitentiary at Angola botched the wiring of the chair.

When the switch was thrown, Francis strained against the straps and began rocking and sliding in the chair, pleading with the sheriff and the executioners to halt the proceedings. “I am n-n-not dying!” he screamed. Gov. Jimmie Davis ordered Francis returned to the chair six days later.

Francis’ lawyers obtained a stay, and the case reached the Supreme Court. Justice Felix Frankfurter defined the teenager’s ordeal as an “innocent misadventure.” In the decision, Louisiana ex rel. Francis v. Resweber, the court held that “accidents happen for which no man is to blame,” and that such “an accident, with no suggestion of malevolence” did not violate the Constitution.

Fewer than 24 hours before Francis’ second scheduled execution, his lawyers tried to bring the case before the Supreme Court again. They had obtained affidavits from witnesses stating that the two executioners from Angola were, as one of the witnesses put it, “so drunk it would have been impossible for them to have known what they were doing.” Although the court rejected this last-minute appeal, it noted the “grave nature of the new allegations” and encouraged the lawyers to pursue the matter in state court first, as required by law.

Willie Francis was executed the next morning. Because his case never made it back to the Supreme Court, the ruling lingers, influencing the decisions of today’s justices. In his majority opinion last week, Chief Justice Roberts called Louisiana’s first attempt at executing Francis an “isolated mishap” that “while regrettable, does not suggest cruelty.”

Justice Clarence Thomas, writing separately, also mentioned the Francis case: “No one suggested that Louisiana was required to implement additional safeguards or alternative procedures in order to reduce the risk of a second malfunction.” In fact, Louisiana did just that. Two weeks after the botched execution of Willie Francis, its Legislature required that the operator of the electric chair “shall be a competent electrician who shall not have been previously convicted of a felony.” This law would have prohibited both executioners from participating in Francis’ failed execution.

The court’s majority opinion in the Willie Francis case acknowledged, “The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence.” Yet the Supreme Court continues to flout that standard.

In its ruling last week, the court once more ignored the consequences of its rulings for men like Wallace Wilkerson, William Kemmler and Willie Francis. The justices cited and applied Wilkerson’s and Kemmler’s cases as if their executions went off without a hitch.

And 60 years after two drunken executioners disregarded the tortured screams of a teenage boy named Willie Francis, the Supreme Court continues to do so.
 

Gilbert King is the author of “The Execution of Willie Francis: Race, Murder and the Search for Justice in the American South.”

    Cruel and Unusual History, NYT, 23.4.2008, http://www.nytimes.com/2008/04/23/opinion/23king.html

11 Death Row Appeals Turned Down

April 22, 2008
The New York Times
By DAVID STOUT

WASHINGTON — The Supreme Court on Monday turned away appeals from 11 death row prisoners in seven states, including one who killed his adoptive parents and continued to live in their home as their bodies decomposed, then cleaned up the scene so he could have a party for friends.

The justices’ orders declining to review the cases were not unexpected, given the court’s ruling last week in a Kentucky case that the state’s procedure for lethal injections did not amount to unconstitutionally cruel and unusual punishment. Barriers to executions in other states may also be lifted soon.

Three of the cases that the high court refused to take on Monday were from Georgia, and three more from Ohio. Individual cases from Mississippi, Alabama, Missouri, Arizona and Texas were also turned away.

In Texas, Carlton Turner Jr. came close to being put to death last September, then was spared when the Supreme Court said it would consider the Kentucky case, in which two killers contended that Kentucky’s procedures could cause them unconstitutionally severe pain.

Mr. Turner was 19 in 1998, when he shot Carlton Turner Sr., 43, and his wife, Tonya, 40, several times in the head in their home near Dallas, and then went on a spending spree, using one of his parents’ credit cards to buy clothes and jewelry. After that, the defendant put the bodies in the garage before entertaining his friends at the house, prosecutors said. The crime was discovered after neighbors called the police because they had not seen Mr. and Mrs. Turner for days, but had seen Carlton Jr. driving his parents’ cars.

“People got killed,” the defendant said in a September 2007 interview, according to The Associated Press. “I did it. The only thing that matters is I did what I did.” He also said his time in prison had enabled him to “understand life a lot better and see my mistakes,” and that he knew it was wrong to kill his parents.

The defendant had been a disciplinary problem as a juvenile and had various brushes with the law before slaying his parents, the A.P. reported.

Among the other prisoners whose appeals were turned away on Monday were Earl W. Berry of Mississippi and Thomas Arthur of Alabama.

Mr. Berry, 48, was convicted of abducting and killing a woman in 1987 as she was walking home from church choir practice near Houston, Miss. The defendant, who is 6-1 and weighs 255 pounds, acknowledged beating the woman to death, explaining that he had intended to rape her, then changed his mind.

Mr. Berry had several previous convictions and had appealed his murder conviction on various other grounds before contesting the lethal-injection procedure. He had already eaten what was meant to be his last meal (pork chops) when he was granted a stay last fall, because of the pending Kentucky case.

In Alabama, Mr. Arthur, 65, has been on death row for more than two decades. In 1982, when he was on a work-release program while serving a sentence for a previous murder, he killed the husband of a girlfriend. For that crime, he was tried three times.

His first conviction was overturned by the Alabama Supreme Court, which found that the trial judge had improperly admitted evidence of the earlier murder. A later conviction was also overturned, because Mr. Arthur’s statement to the police was improperly admitted into evidence after he had invoked his right to remain silent. His third conviction was sustained on appeal.

    11 Death Row Appeals Turned Down, NYT, 22.4.2008, http://www.nytimes.com/2008/04/22/washington/21cnd-scotus.html

Moratorium on Lethal Injection Is Over,

but Hardly the Challenges

April 17, 2008
The New York Times
By ADAM LIPTAK

Executions in Texas, Alabama and other Southern states with large death rows are likely to resume shortly in the wake of the Supreme Court’s decision Wednesday upholding Kentucky’s method of putting condemned prisoners to death.

But the fractured decision may actually slow executions elsewhere, legal experts said, as lawyers for death row inmates undertake fresh challenges based on its newly announced legal standards.

“The decision will have the effect of widening the divide between executing states and symbolic states, states that have the death penalty on the books but rarely carry out executions,” said Jordan M. Steiker, a law professor at the University of Texas.

George H. Kendall, a lawyer with Holland & Knight in New York who is an authority on capital litigation, said the effect of the Kentucky decision, Baze v. Rees, “is going to vary greatly.”

“I bet you by this time next week there will be execution dates in Texas and Alabama,” Mr. Kendall said. “But nothing is going to happen very quickly in California at all.”

Supporters of the death penalty welcomed the decision, though they suggested that it could have been more definitive.

“It’s true that they didn’t completely slam the door and lock it,” said Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, which advocates strong criminal penalties. “But I expect that the de facto moratorium will end this year, and in most states executions will resume.”

Opponents of the death penalty said the decision was little more than a road map for more litigation. “I think it opens the door,” said Elisabeth A. Semel, the director of the Death Penalty Clinic at the University of California, Berkeley.

Lawyers representing death row inmates said the plurality opinion presented them two challenges. One is to distinguish their state’s procedures from that used in Kentucky. The other is to overcome the high evidentiary bar Chief Justice John G. Roberts Jr. set for all challenges to methods of execution.

In that plurality opinion, the chief justice said states with lethal injection protocols “substantially similar” to that used in Kentucky would be immune from challenges under the court’s new standard, which requires death row inmates to prove not only a demonstrated risk of severe pain but also that the risk is substantial when compared with available alternatives.

“Substantially similar?” said Deborah W. Denno, a law professor at Fordham University whose work was cited by the court. “I’m not sure what that is or what that would constitute.”

Thirty-five states and the federal government use lethal injections in executions, most if not all of them relying on a combination of three chemicals: a sedative, a paralyzing agent and a drug that stops the heart. If the chemicals are administered properly, all concerned agree, they produce a humane death. If the first is administered improperly, the second and third chemicals can give rise to suffocation and intense pain.

Relatively little is known about Kentucky’s procedures for administering the chemicals, Professor Denno said, adding that other states had made public much more evidence concerning the risks involved.

Justices on the court’s left and right wings said Chief Justice Roberts’s opinion was an invitation to a fresh round of litigation.

“The question of whether a similar three-drug protocol may be used in other states remains open, and may well be answered differently in a future case on the basis of a more complete record,” Justice John Paul Stevens wrote.

Justice Clarence Thomas said that “today’s decision is sure to engender more litigation,” because “we have left the states with nothing resembling a bright-line rule.”

Professor Semel said the fractured decision, the relatively sparse information available about practices in Kentucky and the new standard announced by the court would produce fertile ground for additional litigation, particularly in states where flaws in the administration of lethal injections were documented.

“If it looks like California or it looks like Missouri or it looks like Tennessee,” she said, “then it’s not a substantially similar protocol to the one in Kentucky.”

Indeed, Professor Denno said, “attorneys are in pretty good shape for further litigation.” In particular, she said, they may be able to demand that state corrections departments provide them more information about execution procedures.

Justice Stevens urged states to consider abandoning one of the three chemicals, the paralyzing drug that would leave an unsedated inmate conscious but unable to move, breathe or cry out.

But no state has so far abandoned the three-chemical combination. And it is not clear whether Baze will make changes more or less likely.

“The court is giving different messages,” Professor Denno said. On one hand, Chief Justice Roberts suggested that emulating the Kentucky protocol might provide states a safe harbor. On the other, Justice Stevens, though concurring in the court’s judgment, said the paralyzing drug was a litigation magnet.

States that have considered moving to a simpler protocol may have been waiting, some legal experts said, until Baze was decided, so as not to prejudice Kentucky’s chances before the court.

More than 40 stays have been issued in lethal-injection cases by various courts, 17 of them since the Supreme Court agreed in September to hear Baze, according to the Death Penalty Information Center. Those stays will presumably now be dissolved.

In addition, officials in at least four states — Virginia, Texas, Florida and Oklahoma — moved on Wednesday to begin setting new execution dates after the informal moratorium of the last seven months.

But the litigation will not stop, Professor Steiker said.

“We will end up largely where we were before Baze,” he said. “It has set us on a course in which there will be continuing challenges, efforts to document botched executions and efforts to continue to explore alternative protocols.”

    Moratorium on Lethal Injection Is Over, but Hardly the Challenges, NYT, 17.4.2008, http://www.nytimes.com/2008/04/17/washington/17lethal.html?hp

Supreme Court

Allows Lethal Injection for Execution

April 16, 2008
Filed at 12:23 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court upheld the most common method of lethal injections executions Wednesday, clearing the way for states to resume executions that have been on hold for nearly 7 months.

The justices, by a 7-2 vote, turned back a constitutional challenge to the procedures in place in Kentucky, which uses three drugs to sedate, paralyze and kill inmates. Similar methods are used by roughly three dozen states.

The governor of Virginia lifted his state's moratorium on executions two hours after the high court issued its ruling.

''We ... agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment,'' Chief Justice John Roberts said in an opinion that garnered only three votes. Four other justices, however, agreed with the outcome.

Roberts' opinion did leave open subsequent challenges to lethal injection practices if a state refused to adopt an alternative method that significantly reduced the risk of severe pain.

Justices Ruth Bader Ginsburg and David Souter dissented.

Executions have been on hold since September, when the court agreed to hear the Kentucky case. There was no immediate indication when they would resume, but prosecutors in several states said they would seek new execution dates if the court ruled favorably in the Kentucky case.

Forty-two people were executed last year among more than 3,300 people on death row across the country. Another roughly two dozen executions did not go forward because of the Supreme Court's review, death penalty opponents said.

The argument against the three-drug protocol is that if the initial anesthetic does not take hold, the other two drugs can cause excruciating pain. One of those drugs, a paralytic, would render the prisoner unable to express his discomfort.

The case before the court came from Kentucky, where two death row inmates did not ask to be spared execution or death by injection. Instead, they wanted the court to order a switch to a single drug, a barbiturate, that causes no pain and can be given in a large enough dose to cause death.

At the very least, they said, the state should be required to impose tighter controls on the three-drug process to ensure that the anesthetic is given properly.

Roberts said the one-drug method, frequently used in animal euthanasia, ''has problems of its own, and has never been tried by a single state.''

Kentucky has had only one execution by lethal injection and it did not present any obvious problems, both sides in the case agreed.

But executions elsewhere, in Florida and Ohio, took much longer than usual, with strong indications that the prisoners suffered severe pain in the process. Workers had trouble inserting the IV lines that are used to deliver the drugs.

Roberts said ''a condemned prisoner cannot successfully challenge a state's method of execution merely by showing a slightly or marginally safer alternative.''

Ginsburg, in her dissent, said her colleagues should have asked Kentucky courts to consider whether the state includes adequate safeguards to ensure a prisoner is unconscious and thus unlikely to suffer severe pain.

Justice John Paul Stevens, while agreeing with the outcome, said the court's decision would not end the debate over lethal injection. ''I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself,'' Stevens said.

Stevens suggested that states could spare themselves legal costs and delays in executions by eliminating the use of the paralytic.

Ty Alper, a death penalty opponent and associate director of the Death Penalty Clinic at the University of California-Berkeley School of Law, said he expects challenges to lethal injections will continue in several states.

The Rev. Pat Delahanty, head of the Kentucky Coalition to Abolish the Death Penalty, said the ruling wasn't a surprise.

''We never expected it to do more than maybe slow down executions in Kentucky or elsewhere,'' Delahanty said. ''We're going to be facing some executions soon.''

    Supreme Court Allows Lethal Injection for Execution, NYT, 16.4.2008, http://www.nytimes.com/aponline/us/AP-Scotus-Lethal-Injection.html?hp

    Related > http://www.supremecourtus.gov/opinions/07pdf/07-5439.pdf

Supreme Court Allows Lethal Injection for Exection

April 16, 2008
Filed at 10:19 a.m. ET
By REUTERS

WASHINGTON (Reuters) - The U.S. Supreme Court Wednesday rejected a challenge to the lethal three-drug cocktail used in most U.S. executions during the past 30 years.

By a 7-2 vote, the high court rejected a challenge by two Kentucky death row inmates who argued the current lethal injection method violated the constitutional ban on cruel and unusual punishment by inflicting needless pain and suffering.

    Supreme Court Allows Lethal Injection for Exection, R, 16.4.2008, http://www.nytimes.com/reuters/washington/politics-usa-execution-court.html

Court to consider

death penalty for child rape

Sun Apr 13, 2008
7:28am EDT
Reuters
By James Vicini

WASHINGTON (Reuters) - The U.S. Supreme Court this week hears arguments about whether the death penalty can be imposed for child rape, taking up for the first time in more than 30 years whether a crime other than murder can be punished by execution.

The nation's highest court has set arguments on Wednesday on whether the death penalty for the crime of raping a child represents unconstitutionally cruel and unusual punishment.

It will be the second major death penalty case heard this year. In January, the justices considered the current lethal three-drug cocktail used in most U.S. executions.

A ruling is expected by late June on the challenge by two Kentucky death row inmates who argued the lethal injection method violated the constitutional ban on cruel and unusual punishment by inflicting needless pain and suffering.

Executions in the United States last year fell to a 13-year low of 42, and have been temporarily halted since the Supreme Court agreed in late September to decide the lethal injection case.

The Supreme Court's review of death penalty-related cases comes amid a growing nationwide debate on capital punishment itself in one of the few democracies that still permit it.

The case involved an appeal by Patrick Kennedy of Louisiana, who was convicted of raping his 8-year-old stepdaughter and sentenced to death.

Of the more than 3,300 inmates on death row in America, Kennedy and another man convicted of child rape in Louisiana are the only two who did not commit murder.

The last execution in the United States for rape occurred 44 years ago.

AGE AT ISSUE

In 1977, the Supreme Court banned executions for rape in a case in which the victim was an adult woman but left open whether child rapists can be sentenced to death.

The Louisiana law was adopted in 1995. In its current version, rape can be punished by death when the victim was under 13 years of age.

At least four other states -- Montana, Oklahoma, South Carolina and Texas -- have similar laws.

Jeffrey Fisher, a Stanford University law professor representing Kennedy, argued that the U.S. Constitution bars imposing the death penalty for rape, regardless of the victim's age.

"Society views capital punishment as excessive punishment for child rape," Fisher said, citing a national consensus and international norms.

"Today no Western nation authorizes the death penalty for any kind of rape," Fisher said, adding that it is allowed in only a handful of countries, including China, Egypt, Jordan, Nigeria and Saudi Arabia.

Juliet Clark, an assistant district attorney in Louisiana, said the death penalty represented a constitutional punishment for raping a child.

"Public outrage over the sexual violation of immature young children by predatory adults is extremely great due to the recognition that these offenders target and harm the most vulnerable members of our society," she said.

She said 14 states and the federal government authorize the death penalty for various offenses other than murder, such as treason, espionage, kidnapping and aircraft hijacking.

Nine states, led by Texas, supported Louisiana, while the American Civil Liberties Union and the NAACP Legal Defense and Educational Fund supported Kennedy.

The two rights groups said a historical consensus existed against the death penalty for rape in the United States, except for Southern states willing in the past to execute blacks, especially those convicted of raping white women and children.

Paul Butler, a law professor at George Washington University, said moderate conservative Justice Anthony Kennedy may hold the decisive vote on the court closely divided between conservatives and liberals.

Kennedy wrote the court's majority opinion in 2005 that abolished the death penalty for juveniles and he joined the majority opinion in 2002 that barred executions of mentally retarded criminals.

(Editing by Alan Elsner)

    Court to consider death penalty for child rape, R, 13.4.2008, http://www.reuters.com/article/domesticNews/idUSN1128546220080413