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

Editorial

Big Loss for Big Tobacco

December 16, 2008
The New York Times

The Supreme Court handed tobacco companies a major and well-deserved setback on Monday, saying smokers may proceed with lawsuits arguing that they were deceived by the marketing of “light” cigarettes.

The 5-to-4 ruling — with Justice Anthony Kennedy casting his swing vote with the court’s four most liberal members — could do a great deal to rein in deceptive advertising by cigarette manufacturers. It was a welcome departure for a court that has been far too deferential to business. We hope it signals that the justices are moving toward a more balanced approach to business cases.

The case was brought by Maine residents who have smoked light cigarettes made by Philip Morris, whose parent company is Altria, for more than 15 years. They argue that Philip Morris’s contention that these cigarettes deliver less tar and nicotine to smokers than regular brands was untrue.

Even though each light cigarette has less tar and nicotine than a regular cigarette, the plaintiffs say that Philip Morris knew that smokers unconsciously smoke them differently, taking larger puffs, for instance, or holding the smoke longer in their lungs to make up for the difference in the cigarettes’ strength. Because that allows them to extract the same amount of tar and nicotine as they would from regular cigarettes, the smokers argue that the company’s marketing violates the Maine Unfair Trade Practices Act’s prohibition on deceptive business practices.

Philip Morris, which denied that its marketing was inaccurate, argued that the smokers’ case had to be thrown out because state laws like Maine’s are pre-empted by federal cigarette regulations when they are applied to cigarette marketing. The pre-emption defense is based on the Constitution’s supremacy clause, which says that where there are conflicts between federal and state laws, federal laws must prevail.

The majority opinion, written by Justice John Paul Stevens, rightly said that there is no actual conflict between federal and state law. Philip Morris argued that the Federal Cigarette Labeling and Advertising Act, passed in 1965, wiped away the plaintiffs’ state deceptive-marketing claim. But as the majority pointed out, the labeling act — which requires health warnings on cigarette packages — was intended to prevent states from imposing their own rules relating to smoking and health. It does not pre-empt laws like Maine’s that create a general duty not to deceive consumers.

The ruling, which breaks with the court’s previous major decision involving cigarettes and pre-emption, clears the way for similar lawsuits against cigarette companies to proceed in other states. Important as such litigation is for deterring false cigarette advertising, the case may have broader reverberations. In recent years, the Supreme Court has issued a series of rulings — on everything from punitive damages to the criminal case against Enron’s accounting firm — that have made it harder for ordinary Americans to hold corporate wrongdoers accountable.

In these troubled economic times, as the nation is still trying to come to terms with the enormous damage done by the deregulation of the mortgage industry, the national mood is turning strongly toward greater regulation. It has often been observed that the Supreme Court has a tendency to follow the election returns, and it may have done so here. With this decision, the court might be indicating a greater appreciation that when companies do wrong, there needs to be a legal means of holding them accountable.

    Big Loss for Big Tobacco, NYT, 16.12.2008, http://www.nytimes.com/2008/12/16/opinion/16tue1.html

Suits Over ‘Light’ Cigarettes Allowed

December 15, 2008
Filed at 11:18 a.m. ET
The New York Times
By THE ASSOCIATED PRESS

WASHINGTON (AP) -- The Supreme Court on Monday handed a surprising defeat to tobacco companies counting on it to put an end to lawsuits alleging deceptive marketing of ''light'' cigarettes.

In a 5-4 split won by the court's liberals, it ruled that smokers may use state consumer protection laws to sue cigarette makers for the way they promote ''light'' and ''low tar'' brands.

The decision was at odds with recent anti-consumer rulings that limited state regulation of business in favor of federal power.

The tobacco companies argued that the lawsuits are barred by the federal cigarette labeling law, which forbids states from regulating any aspect of cigarette advertising that involves smoking and health.

Justice John Paul Stevens, however, said in his majority opinion that the labeling law does not shield the companies from state laws against deceptive practices. The decision forces tobacco companies to defend dozens of suits filed by smokers in Maine, where the case originated, and across the country.

People suing the cigarette makers still must prove that the use of 'light' and 'lowered tar' actually violate the state anti-fraud laws, but those lawsuits may go forward, Stevens said.

He was joined by the other liberal justices, Stephen Breyer, Ruth Bader Ginsburg and David Souter, as well as Justice Anthony Kennedy, whose vote often decides cases where there is an ideological division.

The conservative justices, Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas, dissented.

Thomas, writing for the dissenters, said the link between the fraud claims and smokers' health is unmistakable.

But he also said: ''The alleged misrepresentation here -- that 'light' and 'low-tar' cigarettes are not as healthy as advertised -- is actionable only because of the effect that smoking light and low-tar cigarettes had on respondents' health.''

Three Maine residents sued Altria Group Inc. and its Philip Morris USA Inc. subsidiary under the state's law against unfair marketing practices. The class-action claim represents all smokers of Marlboro Lights or Cambridge Lights cigarettes, both made by Philip Morris.

The lawsuit argues that the company knew for decades that smokers of light cigarettes compensate for the lower levels of tar and nicotine by taking longer puffs and compensating in other ways.

A federal district court threw out the lawsuit, but the 1st U.S. Circuit Court of Appeals said it could go forward.

The case is Altria Group Inc. v. Good, 07-562.

    Suits Over ‘Light’ Cigarettes Allowed, NYT, 15.12.2008, http://www.nytimes.com/aponline/2008/12/15/washington/AP-Scotus-Cigarette-Suit.html?hp

Justices Reject Appeal in Libel Suit

December 15, 2008
Filed at 10:12 a.m. ET
The New York Times
By THE ASSOCIATED PRESS

WASHINGTON (AP) -- The Supreme Court has rejected a plea by former Army scientist Steven J. Hatfill to revive his libel lawsuit against The New York Times over columns falsely implicating him in the deadly 2001 anthrax attacks.

The justices did not comment Monday in turning down Hatfill's appeal of a unanimous ruling by the 4th U.S. Circuit Court of Appeals, based in Richmond, Va. A three-judge panel affirmed a lower court's dismissal of the libel claims on the grounds that Hatfill is a public figure and failed to prove that columns written by Nicholas Kristof were malicious.

Circumstantial evidence led the FBI to suspect Hatfill was involved in the anthrax attacks that killed five people and sickened 17 just weeks after the Sept. 11 terrorist attacks. Then-Attorney General John Ashcroft publicly identified Hatfill, who worked at the Army's infectious diseases laboratory at Ft. Detrick, Md., from 1997 to 1999, as a ''person of interest'' in the investigation.

In June, the Justice Department agreed to pay Hatfill $5.8 million to settle a lawsuit claiming officials violated his privacy rights by speaking with reporters about the case.

No one has been charged in the attacks, although the government now believes another Army scientist, Bruce Ivins, was responsible. Ivins killed himself in July.

The case is Hatfill v. New York Times, 08-483.

    Justices Reject Appeal in Libel Suit, NYT, 15.12.2008, http://www.nytimes.com/aponline/2008/12/15/washington/AP-Scotus-Anthrax-Hatfill.html?hp

Editorial

Tortured Justice

December 8, 2008
The New York Times

The nation’s courts continue to grapple with the abuses committed by President Bush’s administration in the name of fighting terrorism. The extent of the damage to American liberties, and how lasting it will be, will be told in part by the outcome of two cases that are to be heard by the federal courts.

On Friday, the Supreme Court agreed to hear a case that turns on Mr. Bush’s claim that he can order people living in the United States to be detained by the military indefinitely without charges. The case involves Ali al-Marri, a citizen of Qatar who was in the United States legally. He was declared an enemy combatant in mid-2003 and has been held in a Navy brig since then.

The detention was upheld by an appeals court panel, which should be quickly and definitively reversed by the Supreme Court. This intolerable reading of the law would leave a president free to suspend the rights of anyone, including American citizens.

The other, equally notorious case is being heard on Tuesday by the United States Court of Appeals for the Second Circuit, in Manhattan. It involves Maher Arar, a Syrian-born Canadian with no ties to terrorism who became a victim of the Bush team’s lawless policy of “extraordinary rendition” — the outsourcing of interrogations to foreign governments known to torture prisoners.

Mr. Arar’s ordeal began in 2002, when he was seized by federal agents as he tried to change planes on his way home to Canada from a family vacation. After being held incommunicado in solitary confinement and subjected to harsh interrogation without proper access to a lawyer, he was “rendered” to Syria, where he was tortured. He was locked up for almost a year in a dank underground cell the size of a grave before he was finally let go.

The Canadian government later declared that it had provided erroneous information about Mr. Arar to American authorities. It apologized to him in 2007 and agreed to pay him $10 million. Last June, the Homeland Security Department’s inspector general, Richard Skinner, and its former inspector general, Clark Ervin, said at a Congressional hearing that officials may have violated federal criminal laws in sending Mr. Arar to Syria, knowing he was likely to be tortured.

Yet that same month, a three-judge federal appeals panel dismissed Mr. Arar’s civil rights lawsuit on flimsy national security grounds and, absurdly, his failure to seek court review of his rendition within the time period specified in immigration law. In essence, the 2-to-1 ruling rewarded the administration’s egregiously bad behavior in denying Mr. Arar’s initial requests to see a lawyer, and then lying to his attorney about his whereabouts, which obstructed his access to the courts.

In addition, by treating this as an immigration case, the ruling overlooked reality. The salient issue is the improper and unconstitutional tactics used by United States officials to obtain information they wrongly thought Mr. Arar possessed. That point was emphasized by Judge Robert Sack in his cogent dissenting opinion from the first appeals court ruling.

We took it as an encouraging sign when the appellate court took the rare step of scheduling Tuesday’s rehearing before its entire bench before an appeal was filed. A decision allowing Mr. Arar’s case to proceed would recognize the court’s essential role in protecting constitutional rights. It also would firmly reject the Bush administration’s seamy efforts to frustrate accountability for executive branch excesses.

The Obama administration will then have to decide whether to defend the indefensible when the case comes to trial. That will provide an interesting test of the new Justice Department’s commitment to due process.

    Tortured Justice, NYT, 8.12.2008, http://www.nytimes.com/2008/12/08/opinion/08mon1.html

Papers Offer Close-Up of Rehnquist and the Court

November 18, 2008
The New York Times
By ADAM LIPTAK and JONATHAN D. GLATER

STANFORD, Calif. — Not long after he arrived at the Supreme Court in 1972 after three years in the Nixon administration, Justice William H. Rehnquist faced stinging criticism for participating in a decision dismissing a challenge to Army surveillance of domestic political groups in the Vietnam War era.

He had voted with the majority in the 5-to-4 decision, issued that June, after giving Senate testimony as a Justice Department official defending the spying and criticizing the suit.

That summer, Justice Rehnquist struggled with whether he should publicly explain his decision to remain on the case. The materials on the surveillance suit, filled with emotion, calculation and even anguish, were released on Monday by the Hoover Institution, along with court files covering Justice Rehnquist’s first three years on the court and other materials.

The cases before the court in those years were momentous. They included Roe v. Wade, finding a constitutional right to abortion; United States v. Nixon, ordering the president to comply with a subpoena in the Watergate investigation; and Furman v. Georgia, which suspended the death penalty for, as it turned out, four years.

But Justice Rehnquist’s files contain mostly un-illuminating draft opinions and perfunctory communications between the justices. What emerges from the fragile documents is as dry as the pages themselves, the sterile, courteous notes from one justice to another — “Please join me,” voicing support for a particular opinion.

In his more than 30 years on the court, Justice Rehnquist gained a reputation for workmanlike opinions with a minimum of fuss or flash. The new files are consistent with that reputation.

But the materials on the surveillance case, Laird v. Tatum, are more interesting. They foreshadow current controversies over domestic surveillance and judicial disqualification. On Friday, the court agreed to decide a case about whether state judges must disqualify themselves from cases involving people who spent money to get them elected.

In 2004, Justice Antonin Scalia refused to disqualify himself in a case involving the energy task force of Vice President Dick Cheney after it became public that the two had gone duck hunting together.

After joining the majority in the 1972 Laird case, Justice Rehnquist at first sought advice from only two colleagues. Chief Justice Warren E. Burger argued against issuing a statement, saying it would invite more attention to the controversy and perhaps create an unwelcome precedent. Justice Byron R. White, on the other hand, encouraged Justice Rehnquist to explain himself.

In August, Justice Rehnquist wrote to Justice Potter Stewart at his farm in New Hampshire, saying he needed help sorting out the conflicting advice. Some of the criticism of his actions had been “snide,” Justice Rehnquist wrote, and “The New York Times and Washington Post tend to feature the matter at every opportunity.”

“I definitely do not want to circulate” the draft statement “to all members of the court,” Justice Rehnquist wrote to Justice Stewart, “because I think that ties each of them in too much with what is and must remain my own responsibility.”

In a handwritten note six days later, Justice Stewart was ambivalent about the wisdom of issuing a statement explaining the decision on recusal, though he called the idea “basically healthy.”

“On the other hand,” Justice Stewart said, “I am sure you are not so sanguine as to think that the memo will satisfy the N.Y. Times, Washington Post or other critics. It will probably just further irritate them, and they do have the last word.”

Justice Rehnquist did issue a statement, in the fall of 1972. It said no rule of judicial ethics prohibited his participation and that a 4-to-4 deadlock resulting in an automatic affirmance was undesirable. He said he had not worked on the case at the Justice Department, where he had been head of the Office of Legal Counsel, but only offered his views on the case in public.

In an early draft, he had said “the question is probably a fairly close one.” He deleted that passage from the published version.

But he did say in the final version that “I do not doubt that a litigant in the position of respondents would much prefer to argue his case before a court none of whose members had expressed the views that I expressed about the relationship between surveillance and First Amendment rights while serving as an assistant attorney general.”

As Justice Stewart had predicted, newspaper editorial boards did continue to question the decision to stay on the case.

The question of whether Justice Rehnquist should have disqualified himself remained a live one when President Ronald Reagan nominated him to be chief justice in 1986. Some senators cited the Laird case in voting against the nomination.

When cases arising from the Watergate investigation reached the Supreme Court, Justice Rehnquist took a different approach to disqualification.

“Because of my prior close professional association with John Mitchell in the Justice Department,” he told his colleagues in 1974, “I will not participate in the consideration or decision” of a case involving Mr. Mitchell, the former attorney general.

Although Justice Rehnquist similarly did not participate in U.S. v. Nixon, he apparently did review draft opinions in the case, leaving marks in red ink next to passages dealing with the background facts of the case and with court decisions in prior cases involving claims of executive privilege.

The papers released Monday are a small part of a collection of documents donated to the Hoover Institution at Stanford University after Chief Justice Rehnquist’s death in 2005. The Rehnquist family will release court materials covering only the years from which no justices remain alive. Justice Stevens, the court’s longest-serving member, joined the court in 1975. Additional materials, including personal correspondence and other writings, will be released next year.

As austere as Justice Rehnquist’s professional work could be, he had a playful side and was an active participant in the life of the court.

Almost immediately after he joined the court, he and several of his law clerks challenged their counterparts in Justice White’s chambers to a soccer match, by means of a two-page single-spaced memorandum on the “minimum standards for a meaningful soccer tournament.”

In 1973, he complained to the chief justice about the justices’ dining room. “Ours combines,” Justice Rehnquist wrote, “to a degree that might be thought impossible, baronial elegance with dreariness. Might there be some possibility of using the new Chippendale table?”

Chief Justice Burger’s response: “You should have seen it in 1969.”

An eighth-grader named Lori Rhodes wrote to Justice Rehnquist in 1972. She wanted to know how people became Supreme Court justices.

“It is fair to say that there does not appear to be any one single qualification or group of qualifications that a Supreme Court nominee must have,” Justice Rehnquist responded. One group that seemed to do well, he said, were “people who were serving in the executive branch of their administration, as I was at the time President Nixon appointed me.”

Also released were the future justice’s meticulous notes from law school, which he kept in handsome hardbound volumes and sometimes illustrated with proficient line drawings, and a journal he had kept off and on starting in 1947. In the journal, Justice Rehnquist made notes on what he was reading (“undoubtedly Dewey does not wish his ideas carried to logical conclusion”) and where he was hiking, recorded “poker winnings of a dollar,” and transcribed quotations from, among others, Montesquieu, Goethe and Ring Lardner.

Justice Rehnquist dissented in Roe v. Wade. His files contain newspaper and magazine clippings, some of them critical, as well as disturbing color photographs of aborted fetuses. Justice Rehnquist saved a copy of a Roman Catholic newspaper with a cover illustration of the seven justices in the majority joined by the grim reaper. “U.S. Supreme Court: Death Penalty for the Unborn,” the headline said.

    Papers Offer Close-Up of Rehnquist and the Court, NYT, 18.11.2008, http://www.nytimes.com/2008/11/18/washington/18rehnquist.html

Editorial

A Case of Religious Discrimination

November 12, 2008
The New York Times
 

Displays of the Ten Commandments have long been a lightning rod in constitutional law, and so they are again today. The Supreme Court is hearing arguments in a challenge to a city’s decision to allow the Ten Commandments to be placed in a public park, while refusing to allow a different religion’s display. The court should rule that that city’s decision violates the First Amendment prohibition on the establishment of religion.

Pleasant Grove City, Utah, has a city park, known as Pioneer Park, that includes various unattended displays. These include historical artifacts from the town, a Sept. 11 memorial, and a Ten Commandments monument that was given to the city by the Fraternal Order of Eagles, a national civic group.

A religious organization called Summum, which was founded in 1975 and is based in Salt Lake City, applied to install its own monument in the park. The monument it proposed would include the group’s Seven Principles of Creation (also called the Seven Aphorisms), which it believes were inscribed on tablets handed down from God to Moses on Mount Sinai.

Pleasant Grove City rejected Summum’s application. It told the group that it had a decades-old practice of only accepting displays that directly related to the city’s history, or that were donated by groups with longstanding ties to the community. But this was not a firm policy at the time. It was only later that the city adopted a written policy enshrining these criteria.

Summum sued, arguing that the rejection of its monument violated its right to free speech under the First Amendment. The United States Court of Appeals for the Tenth Circuit in Denver agreed. In allowing monuments in its park, the court ruled, Pleasant Grove City had no right to discriminate on the basis of the content of those monuments. The city was free to ban all unattended displays if it wanted to. But once it decided to allow such displays, the court ruled, it had no right to permit the Ten Commandments but bar the Seven Principles of Creation.

The federal appeals court reached the right result, but regrettably, it ducked the issue at the heart of the case, which turns on the Establishment Clause of the First Amendment. The real problem is that Pleasant Grove City elevated one religion, traditional Christianity, over another, Summum. The founders regarded this sort of religious preference as so odious that they included a specific provision in the First Amendment prohibiting it. The United States Court of Appeals for the Tenth Circuit has a bad record on Establishment Clause cases, which made it easier for all of the parties to treat the case as a simple speech case.

But as the American Jewish Committee, Americans United for Separation of Church and State and other groups argue in a friend-of-the-court brief, the Supreme Court should not make this mistake. It should squarely confront the religious discrimination underlying Pleasant Grove City’s rejection of Summum’s monument and make clear that the city violated the Establishment Clause.

There is no shortage of churches, synagogues and private parcels of land where the Ten Commandments could be displayed without the need to include the credos of alternative faiths. Public property like Pioneer Park must be open to all religions on an equal basis — or open to none at all.

    A Case of Religious Discrimination, NYT, 12.11.2008, http://www.nytimes.com/2008/11/12/opinion/12wed1.html

Editorial

The Court Confronts a Grievous Injury

November 7, 2008
The New York Times

For years, the Bush administration has worked with industry to try to water down the public’s protections by preventing states from enforcing rules and regulations tougher than those required by the federal government.

It has tried to apply this policy of pre-emption to rules issued by a slew of federal agencies and is now asking the Supreme Court to approve its improper ideological stand when it comes to drug safety.

On Monday, the court heard arguments in the case of a Vermont musician who lost her arm after being injected with an anti-nausea drug. There is no doubt that Diana Levine was badly injured by a drug made by Wyeth. The only question is whether the Supreme Court will uphold her right to sue the company over its failure to adequately warn of a drug’s dangers. Or will it buy the arguments of the industry and the Bush administration that companies like Wyeth should be protected from such lawsuits in state courts if the products that caused the injury met federal regulatory standards?

The administration wants approval by the Food and Drug Administration to be the final word in these cases, not state laws like Vermont’s that often require the manufacturer to meet a higher standard in warning doctors and patients about potential dangers. The court should rule in favor of Ms. Levine.

Ms. Levine went to a clinic seeking relief for a migraine headache. She received Demerol for her headache and Wyeth’s Phenergan to combat nausea, both administered by injections into the muscle, which is the preferred route of administration. When the headaches persisted, she returned for more treatment.

This time, the same medicines were administered by an intravenous “push” technique that is known to be risky — using a needle inserted into a vein. A physician’s assistant mistakenly hit an artery, with catastrophic results. Ms. Levine quickly developed gangrene; her hand and lower arm had to be amputated. She sued the physician’s assistant, the supervising physician and the clinic for malpractice and won an out-of-court settlement, as well she should have.

Then she sued Wyeth for failing to warn the clinicians to use the much safer “IV drip” technique, in which the drug is injected into a stream of liquid flowing from a hanging bag that already has been safely connected to a vein, making it highly unlikely that the drug will reach an artery. A trial court awarded her $6.7 million, and the Vermont Supreme Court upheld the verdict. Now Wyeth, supported by the Bush administration, has asked the Supreme Court to reverse the verdict on the grounds that Wyeth complied with federal regulatory requirements.

We do not buy Wyeth’s argument that it did everything it needed to, or could have done, to warn doctors about the dangers involved in the treatment Ms. Levine received. Wyeth did warn of some dangers of the drug treatment, in words approved by the F.D.A., but the state court was well within its rights to conclude that those warnings were insufficient.

And that is the greater point. When Congress revised the federal law governing the F.D.A. in 2007, drug companies wanted, but did not get, a provision shielding them from this sort of lawsuit. The drug industry and its administration allies now want the court to ignore the absence of express legal language and grant drug companies immunity based on a phony assertion that state lawsuits improperly usurp federal regulatory authority.

For the court to broadly endorse the concept of “implied pre-emption” in this case would show disrespect for the considered decisions of Congress and could foreclose injury suits involving not only drugs, but also motor vehicles, household products and other things. The ultimate effect would be to undermine consumer safety.

Far from usurping the F.D.A.’s power, litigation aimed at holding drug companies liable for problems like those in this case complement the agency’s efforts to protect the public. For many years the F.D.A. welcomed state failure-to-warn suits as reinforcing those efforts; two former commissioners, David Kessler and Donald Kennedy, made that point in a brief in the case.

Only under President Bush did the agency overrule its top staff members and try to pre-empt such suits. We hope this business-friendly Supreme Court will preserve the consumer protection that state tort actions often provide. Otherwise, the incoming president and Congress will need to pass corrective legislation.

    The Court Confronts a Grievous Injury, NYT, 7.11.2008, http://www.nytimes.com/2008/11/07/opinion/07fri1.html

Supreme Court to Review DNA Case

November 4, 2008
The New York Times
By DAVID STOUT

WASHINGTON — The Supreme Court on Monday agreed to review an Alaska rape case to determine whether a defendant has a constitutional right to have tests conducted on genetic evidence found at a crime scene.

The justices took the case involving William G. Osborne, who was convicted in state court in March 1994 of kidnapping, assault and sexual assault and sentenced to 26 years in prison, with five years suspended. Jurors concluded that he was one of two men who drove a prostitute to a remote area near the Anchorage airport in March 1993, beat her with an ax handle and shot her after forcing her to perform sex acts, then partly covered her with snow as she lay still on the ground.

The prostitute survived and implicated Mr. Osborne, as did DNA tests performed on hair and semen evidence. A second man, who identified Mr. Osborne as having been with him the night of the assault, was also convicted.

Mr. Osborne’s lawyers argue that over the years DNA testing techniques have become far more precise than they were at the time of the crime, and that new tests could establish the defendant’s innocence. Moreover, they argue, the new tests would be paid for by the defendant, so the State of Alaska has nothing to lose by permitting them.

Forty-four states and the federal government have laws that give convicts access to DNA testing of evidence, according to Mr. Osborne’s lawyers, but Alaska is among the six states that do not.

The case that the justices accepted is an appeal by the state of Alaska of an opinion by the United States Court of Appeals for the Ninth Circuit. A three-judge panel of that court ruled in April that Mr. Osborne should be allowed to obtain new DNA tests.

The Ninth Circuit judges acknowledged that Mr. Osborne ostensibly admitted his guilt to the parole authorities in 2004, but they said the defendant might have done so only because he saw an admission as his quickest way out of prison.

If the new testing shows that Mr. Osborne was indeed guilty, prosecutors should be pleased, the Ninth Circuit said. And if the testing points to his innocence, prosecutors should still be pleased, because the state’s paramount interests are in “seeking justice, not obtaining convictions at all costs,” and the tests will yield better evidence to catch and convict “the real perpetrator.”

Barry Scheck, the co-director of the Innocence Project, which assists prisoners who can be cleared through DNA testing, said: “Why would anyone be afraid to learn the truth in this case? There is no rational reason to deny DNA testing that could prove innocence or confirm guilt.”

The Innocence Project says that 223 prisoners have been exonerated through DNA testing since 1989.

    Supreme Court to Review DNA Case, NYT, 4.11.2008, http://www.nytimes.com/2008/11/04/us/04dnaweb.html?hp

Ruling on Guns Elicits Rebuke From the Right

October 21, 2008
The New York Times
By ADAM LIPTAK

WASHINGTON — Four months after the Supreme Court ruled that the Second Amendment protects an individual right to possess guns, its decision is under assault — from the right.

Two prominent federal appeals court judges say that Justice Antonin Scalia’s majority opinion in the case, District of Columbia v. Heller, is illegitimate, activist, poorly reasoned and fueled by politics rather than principle. The 5-to-4 decision in Heller struck down parts of a District of Columbia gun control law.

The judges used what in conservative legal circles are the ultimate fighting words: They said the gun ruling was a right-wing version of Roe v. Wade, the 1973 decision that identified a constitutional right to abortion. Justice Scalia has said that Roe had no basis in the Constitution and amounted to a judicial imposition of a value judgment that should have been left to state legislatures.

Comparisons of the two decisions, then, seemed calculated to sting.

“The Roe and Heller courts are guilty of the same sins,” one of the two appeals court judges, J. Harvie Wilkinson III, wrote in an article to be published in the spring in The Virginia Law Review.

Similarly, Judge Richard A. Posner, in an article in The New Republic in August, wrote that Heller’s failure to allow the political process to work out varying approaches to gun control that were suited to local conditions “was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade.”

Sharp criticism of a recent Supreme Court decision by federal appeals court judges is quite unusual, though these two judges — both Reagan appointees — are more outspoken than most.

Judge Wilkinson, who sits on the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., was recently considered for a spot on the Supreme Court. Judge Posner, of the Seventh Circuit, in Chicago, is perhaps the most influential judge not on the Supreme Court.

Not all conservatives agree with the critics, of course. Robert A. Levy, a libertarian lawyer who was a principal architect of the victorious strategy in the Heller case, rejected the comparison to Roe.

The two sides in the Heller case claimed to rely on the original meaning of the Second Amendment, based on analysis of its text in light of historical materials. The amendment says, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

The more liberal justices said the amendment protected only a collective right tied to state militias, thus allowing most gun control laws. The more conservative justices found an individual right and struck down parts of a District of Columbia gun control law.

In Judge Wilkinson’s view, the upshot of the court’s extensive historical analysis was that “both sides fought into overtime to a draw.”

Others said the quality of the combat was low. “Neither of the two main opinions in Heller would pass muster as serious historical writing,” Jack Rakove, a historian at Stanford, wrote on the blog Balkinization soon after the decision was issued.

The strong reaction from the right after Heller was preceded, with a sort of symmetry, by liberal support for an individual-rights reading of the Second Amendment. For much of the 20th century, the conventional view of the amendment had been that it only protects a collective right. (Warren E. Burger, after retiring as chief justice in 1986, called the individual rights view “one of the greatest pieces of fraud — I repeat the word ‘fraud’ — on the American public by special interest groups that I have ever seen.”)

But some prominent liberal law professors, including Laurence H. Tribe of Harvard, Akhil Reed Amar of Yale and Sanford Levinson of the University of Texas, have concluded, sometimes reluctantly, that the amendment in fact protects an individual right. Professor Levinson’s seminal 1989 article in The Yale Law Journal captured the tone of the enterprise. It was called “The Embarrassing Second Amendment.”

In an interview, Professor Levinson said, “The result in Heller is eminently respectable.” But he added that he understood why some conservatives were upset. “People say the Roe court was too interventionist,” he said. “So is the Heller court from that perspective.”

Judge Wilkinson’s basic critique is that the majority, like that in Roe, used an ambiguous text to impose its policy preference on the nation, at great cost to the democratic process and to local values. He assumed, as most experts do, that the decision would apply to the states.

“In both Roe and Heller,” Judge Wilkinson wrote, “the court claimed to find in the Constitution the authority to overrule the wishes of the people’s representatives. In both cases, the constitutional text did not clearly mandate the result, and the court had discretion to decide the case either way.”

Judge Posner built on themes in his recent book “How Judges Think,” which argued that constitutional adjudication by the Supreme Court is largely and necessarily political. The Heller decision, he wrote in The New Republic, “is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.”

Indeed, Judge Wilkinson wrote, “Some observers may be tempted to view Heller as a revenge of sorts for Roe” or “a sort of judicial tit-for-tat.” As Judge Posner put it, “The idea behind the decision” in Heller “may simply be that turnabout is fair play.”

Mr. Levy, who helped win Heller, said some conservatives wanted almost all decisions to be made by the political branches rather than the courts.

“But these are constitutional rights,” Mr. Levy, now chairman of the Cato Institute, a libertarian research group, said of the rights protected by the Second Amendment. “They are not rights consigned to the legislature.”

The analogy to Roe, he went on, is misguided. There is no reference to abortion in the Constitution.

The Second Amendment, by contrast, indisputably protects a right to keep and bear arms, though there is sharp disagreement about the scope of the right. Mr. Levy said the natural reading of the amendment, one supported by historical materials, was that it protected an individual right.

In his article, Judge Wilkinson wrote that he “readily agreed” that Roe “involved the more brazen assertion of judicial authority.” But he added that the Roe and Heller cases shared a number of common flaws, including “a failure to respect legislative judgments,” “a rejection of the principles of federalism” and “a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation.”

Judge Wilkinson saved particular scorn for a brief passage in Justice Scalia’s opinion that seemed to endorse a variety of restrictions on gun ownership. “Nothing in our opinion,” Justice Scalia wrote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by 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.”

Whatever else may be said about the Second Amendment, Judge Wilkinson wrote, those presumptions have no basis in the Constitution. “The Constitution’s text,” he wrote, “has as little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy.”

Mr. Levy, too, said he was not a fan of the passage. “I would have preferred that that not have been there,” he said. “It created more confusion than light.”

It is too soon to say much about the legacy of Heller. But Judge Wilkinson said that Heller, at a minimum, represented “the worst of missed opportunities — the chance to ground conservative jurisprudence in enduring and consistent principles of restraint.” At worst, he warned, “There is now a real risk that the Second Amendment will damage conservative judicial philosophy” as much as Roe “damaged its liberal counterpart.”

    Ruling on Guns Elicits Rebuke From the Right, NYT, 21.10.2008, http://www.nytimes.com/2008/10/21/washington/21guns.html?hp

Justices Weigh Race in North Carolina Case

October 15, 2008
The New York Times
By ADAM LIPTAK

WASHINGTON — The Supreme Court returned Tuesday to the question of how to take account of race in drawing election districts, hearing arguments in a case that is likely to resolve a question the court has left open five times: Must a minority group constitute a majority in a given district before an important protection of the federal Voting Rights Act kicks in?

Christopher G. Browning Jr., North Carolina’s solicitor general, defended the decision of officials there to violate a state law in order to create a district that included about 39 percent of the black voting-age population, saying the Voting Rights Act required the creation of the district to prevent the dilution of the minority group’s ability to elect a representative of its choice.

The fact that the district did not include a majority of black voters was a virtue, Mr. Browning said. True, he said, minority voters would be able to elect a representative of their choice only with the aid of voters from other groups. “Coalition districts help us in reaching the point where race will no longer matter,” Mr. Browning said.

Chief Justice John G. Roberts Jr. cut him off. “How can you say,” the chief justice asked, “that this brings us closer to a situation where race will not matter when it expands the number of situations in which redistricting authorities have to consider race?”

Justice Anthony M. Kennedy joined in, saying that Mr. Browning was “proposing a brave new world of coalition districts.”

Nathaniel Persily, a law professor at Columbia, said Justice Kennedy’s comments were a good guide to the case’s probable outcome, as he has been the swing vote in similar cases.

“Justice Kennedy seemed frustrated with the potential slippery slope that the state was falling down,” said Professor Persily, who attended the argument and had filed a friend-of-the-court brief in the case supporting neither party. “In race and redistricting cases in particular, and in redistricting cases in general, he has been the critical justice.”

In its decision last year, the North Carolina Supreme Court applied a strict numerical-majority requirement and rejected the district. The appeal in the case, Bartlett v. Strickland, No. 07-689, was filed by North Carolina’s attorney general, Roy Cooper, and other state officials. They said that nothing in the text of the federal law, its purpose or the court’s earlier cases mandated a numerical-majority requirement.

Several justices seemed to agree, saying or suggesting that a 50 percent requirement had the usual costs and benefits of what lawyers call “bright line rules.” They are easy to apply, but they can be arbitrary and inflexible.

The federal government, although it appeared in support of the residents of Pender County, N.C., who had successfully challenged the district in question, said a 50 percent requirement was too rigid. The underlying census data, the federal government said in its brief, can be subject to sampling errors and undercounting, and the data are in any event a historical snapshot that does not take account of changing demographics later.

“We would impose about a 2 percent cushion,” Daryl Joseffer, an assistant to the United States solicitor general, said Tuesday.

Justice Stephen G. Breyer proposed yet another number, one tied to the amount of crossover voting from whites needed to elect the minority group’s preferred candidate. “There’s a kind of natural stopping place,” he said. “When I worked out the numbers, it seemed that natural stopping place fell around 42-43 percent.”

Justice John Paul Stevens said all rigid mathematical rules had a common flaw. They assume, he said, “that the minority communities throughout the country are all alike.”

The court took no action on Tuesday in a case from West Virginia concerning campaign spending and judicial recusal. The case, Caperton v. A. T. Massey Coal Company, No. 08-22, concerns what role the federal Constitution ought to play, if any, in determining whether a State Supreme Court justice must disqualify himself from a $50 million case against a coal company after receiving more $3 million in campaign support from the company’s chief executive.

The court will again consider whether to hear the case at its private conference on Friday.

    Justices Weigh Race in North Carolina Case, NYT, 15.10.2008, http://www.nytimes.com/2008/10/15/washington/15scotus.html?hp

Editorial

The Supreme Court’s New Term

October 6, 2008
The New York Times

The Supreme Court begins its term on Monday, and the indications so far are that it could be a quiet year. There will be at least a few high-profile cases, on issues ranging from obscenity to church-state separation, but the swing vote of Justice Anthony Kennedy is likely to keep the court on a generally centrist path. The real excitement this fall is occurring on the outside — in a presidential race that could shape the court for years to come.

Historians will remember this as the Roberts Court’s fourth term, but as a practical matter it is likely to be another year of the Kennedy Court. Poised between a bloc of four liberal justices and four conservatives, Justice Kennedy — a moderate conservative — has for several years been able to decide most close cases.

This term’s docket includes Federal Communications Commission v. Fox Television Stations, a challenge by broadcasters to the F.C.C.’s policy on “fleeting expletives.” The commission, in a sharp reversal, started imposing large fines for television programming with brief profanities — like a Golden Globe awards show in which the singer Bono uttered a single offending word. A federal appeals court rightly struck down the policy, which seriously infringes on free speech. We hope the court sides with the broadcasters.

The court will also consider, in Pleasant Grove City v. Summum, whether a Utah municipality that allows a privately donated Ten Commandments monument to be displayed on public property must let another religion put up its own statue of similar size. The court should rule that the Constitution does not allow government to favor one religion over another.

The court’s conservatives have been on a campaign to close the courthouse door to people with legitimate legal claims. They have expanded a variety of doctrines to send wronged parties away empty-handed, including one known as “pre-emption.”

That issue is central to a case being argued on Monday, a challenge by Maine smokers to Philip Morris’s marketing of “light cigarettes” as safer than regular ones. The smokers say the marketing violated Maine’s consumer protection laws, but Philip Morris argues that they are pre-empted by federal law. We hope the court agrees with the Boston-based Court of Appeals for the First Circuit that the smokers’ suit can go forward.

The court is still accepting cases for the term, and it could add major ones, including a challenge to the constitutionality of the Voting Rights Act, or the case of Ali Saleh Kahlah al-Marri, which raises the question of whether the president can order someone lawfully in the United States held indefinitely as an enemy combatant.

The same day the court hears arguments in the “fleeting expletives” case next month, Nov. 4, Americans will be voting for a new president. John McCain is promising to nominate more archconservatives, which could tip the court far to the right. Barack Obama would appoint justices who are more liberal.

The election’s outcome is likely to have an enormous impact on questions like the right to abortion, the wall between church and state, and the power of the president to detain Americans. Since several justices could depart in the next four years, this could be the most important election for the court in many decades.

    The Supreme Court’s New Term, NYT, 6.10.2008, http://www.nytimes.com/2008/10/06/opinion/06mon1.html

Cases to Watch at the Supreme Court

October 5, 2008
The New York Times

Official Immunity

In Ashcroft v. Iqbal, No. 07-1015, the court will consider whether Muslim men who were rounded up and subjected to harsh treatment after the Sept. 11 attacks may sue John Ashcroft, the former attorney general, and Robert S. Mueller III, the director of the F.B.I.

Javaid Iqbal, a Pakistani living in Hicksville, N.Y., says his months-long confinement in a special prison unit in Brooklyn, during which he says he was beaten and subjected to extreme temperatures and daily body-cavity searches, was a consequence of policies set by federal officials that encouraged racial and religious discrimination.

The government argues that the federal appeals court in New York should not have let the case proceed based only on Mr. Iqbal’s assertions that the officials were aware of and condoned the abusive treatment. Mr. Iqbal pleaded guilty to using another man’s Social Security card and was deported.

In Van de Kamp v. Goldstein, No. 07-854, a man who served 24 years in prison for murder before a federal judge overturned his conviction sued two top officials in the Los Angeles County district attorney’s office, saying management failures in the office had led to the use of false testimony against him by a jailhouse informant.

Criminal Law

The court will decide whether crime lab reports may be used at trial instead of live testimony from forensic examiners. The case, Melendez-Diaz v. Massachusetts, No. 07-591, concerns the scope of the right to confront adverse witnesses guaranteed by the Sixth Amendment.

In Harbison v. Bell, No. 07-8521, the court will decide whether the federal government must provide lawyers to death row inmates seeking clemency in state proceedings. In Cone v. Bell, No. 07-1114, the court will consider whether a death row inmate has forfeited the opportunity to argue that prosecutors withheld evidence important to his defense.

And in Herring v. United States, No. 07-513, the court will take on the question of whether there is a good-faith exception to the exclusionary rule for searches based on misinformation from other police departments.
 

Immigration

Foreigners who fear they will be harmed if they are returned home can seek asylum in the United States, a federal law says, but only if they have never persecuted others. In Negusie v. Mukasey, No. 07-499, the court will consider whether Daniel Negusie, who says he was forced to mistreat prisoners in Eritrea under threat of execution, may apply for asylum because he only persecuted others under duress.
 

Other Cases

The court is also weighing whether to hear these cases:

Al-Marri v. Pucciarelli, No. 08-368, an appeal from the only person known to be held as an enemy combatant on the American mainland. The federal appeals court in Richmond, Va., ruled in July that President Bush had the legal power to order the indefinite military detentions of people residing legally in the United States, but it gave the petitioner, Ali al-Marri, the opportunity to challenge the president’s determination in court. The dissenting judges said Mr. Marri should have been prosecuted as a criminal in the civilian courts.

Northwest Austin Municipal Utility District Number One v. Mukasey, No. 08-322, a challenge to the renewal of Section 5 of the Voting Rights Act, which requires some state and local governments to get federal permission before changing election procedures.

    Cases to Watch at the Supreme Court, NYT, 5.10.2008, http://www.nytimes.com/2008/10/05/us/05scotus-box.html?ref=washington

Justices Return to Work, With Less Meaty Docket

October 5, 2008
The New York Times
By ADAM LIPTAK

WASHINGTON — Come Election Day, there will almost certainly be cursing at the Supreme Court. The justices are scheduled to hear a case that day concerning dirty words on television, and it will be hard for the advocates in the case to describe its facts without using four-letter words. The appeals court argument, which involves swearing by Cher and Paris Hilton on a prime-time awards show, would have made a sailor blush.

Another case on the docket for the new term, which starts Monday, considers whether adherents of a faith called Summum may place a monument to the “Seven Aphorisms” of their faith in a Utah park that already contains a monument devoted to the Ten Commandments.

The two cases are the most colorful of the term so far, and they involve significant but perhaps not momentous First Amendment issues. Compared with the last term, which included historic cases concerning Guantánamo Bay, the Second Amendment and execution by lethal injection, the new term is a buffet without entrees. This year’s intellectual feast — Judge Robert H. Bork’s hopeful description of the work of a Supreme Court justice — is less filling.

By happenstance or design, the court will keep a low profile in the election season. While it is always dangerous to try to identify patterns in the cases the court accepts, which are after all a subset of the cases that happen to reach it, the docket so far is consistent with Chief Justice John G. Roberts Jr.’s stated preference for modest and incremental decision making.

But there are major cases on the horizon. The court will soon decide whether to hear challenges to the recent renewal of the Voting Rights Act and to the president’s power to order the military detention of people living in the United States.

The court is working at a brisker pace than it has in recent years. It is accepting more cases and hearing them earlier in the term. In October and November, the court will hear three arguments a day, rather than the usual two, returning after lunch for the third one.

By frontloading the arguments to the beginning of the term, which generally runs from October to June, the court may be able to issue decisions more regularly and avoid the usual end-of-term barrage of significant rulings.

Still, many of the cases on the docket feel warmed over, representing opportunities to refine and flesh out relatively well-established legal doctrines rather than to break new ground. Indeed, it is sometimes hard to avoid a feeling of déjà vu. A death row inmate from Tennessee, Gary B. Cone, is before the court for a third time. So is a $79.5 million punitive damages award against Philip Morris.

Perhaps the most significant cases of the term involve pre-emption, a doctrine that can bar state-court lawsuits over products that met federal safety standards and one that has repeatedly occupied the Roberts court. The doctrine is in some tension with the Rehnquist court’s attentiveness to state’s rights, which had been known for a time as the “federalism revolution.”

“Corporate America has discovered that they would much rather be regulated by one government in Washington than by 50 state governments, or by the most aggressive of them,” said Kathleen M. Sullivan, a law professor at Stanford and a Supreme Court advocate.

The court will also return to an emerging theme of the Roberts court, which has repeatedly turned back general, or “facial,” challenges to laws in favor of more focused, or “as applied,” attacks.

“The one trend that has emerged most clearly from the first three years of the Roberts court is a certain skepticism about facial challenges,” Paul D. Clement, who was until recently the solicitor general of the United States, said at a recent briefing at the United States Chamber of Commerce. That theme will be further explored this term in a case involving environmental regulations.

Religion and Free Speech

The Ten Commandments monument, donated by a private group, is in Pleasant Grove, Utah. The city has rejected a similar gift from followers of Summum, who want to erect a monument devoted to the “Seven Aphorisms” of their faith. More a case about free speech than religion, Pleasant Grove City v. Summum, No. 07-665, will turn on whether the Ten Commandments monument is speech by the government or the monument’s donors, and on whether parks are public forums.

When Cher appeared on the Billboard Music Awards in 2002, she used a four-letter word connoting sex. The next year, on the same show, banter between Paris Hilton and Nicole Richie included that word and another obscenity. In Federal Communications Commission v. Fox Television Stations, No. 07-582, the court will decide whether the F.C.C. has the power to punish broadcasters for airing “fleeting expletives.”

Environment

Federal courts in California have issued injunctions limiting the use of sonar in Navy training exercises off Southern California on the ground that it harms marine mammals. In Winter v. Natural Resources Defense Council, No. 07-1239, the Bush administration argues that the training is vital to national security and that the courts should not interfere.

In Summers v. Earth Island Institute, No. 07-463, the court will consider who has standing to challenge environmental regulations. Winter and Summers will be argued on Wednesday, and decisions are expected by the spring.

In Entergy Corporation v. Environmental Protection Agency, No. 07-588, the court will consider whether the Clean Water Act authorizes the E.P.A. to use cost-benefit analysis.

Employment

After ruling in May that workers are protected from retaliation under two federal civil rights laws that do not explicitly provide such protection, the court will hear arguments on Wednesday in Crawford v. Nashville and Davidson County, No. 06-1595, about whether a law that does prohibit retaliation applies to people who cooperate in internal investigations.

In AT&T v. Hulteen, No. 07-543, the court will consider whether failing to give credit for pregnancy leaves in pension calculations amounts to employment discrimination.

Pre-emption

The first argument of the term will be in Altria Group v. Good, No. 07-562, on the issue of whether state consumer-fraud laws can be used to sue cigarette makers for saying their brands are low in tar and nicotine. Altria, whose Philip Morris unit makes Marlboro Lights, argues that the Federal Cigarette Labeling and Advertising Act should bar the suit because it pre-empts conflicting state laws in so many words and by implication. The solicitor general filed a brief arguing against implied pre-emption, but the brief did not address the express pre-emption argument.

Wyeth v. Levine, No. 06-1249, concerns only implied pre-emption and is perhaps the most important business case of the term. Wyeth, a drug company, seeks to overturn a Vermont jury award of more than $6 million to Diana Levine, a musician who lost much of her right arm in a medical disaster caused by the injection of a Wyeth anti-nausea drug. Wyeth argues that it cannot be sued because it had complied with federal safety standards.
 

Voting Rights

In Bartlett v. Strickland, No. 07-689, the court will decide whether a minority group must constitute a majority in an election district to claim the protection of Section 2 of the Voting Rights Act against having district lines redrawn in a way that dilutes the group’s ability to elect a representative of its choice.

    Justices Return to Work, With Less Meaty Docket, NYT, 5.10.2008, http://www.nytimes.com/2008/10/05/washington/05scotus.html?hp

Despite Ruling, Detainee Cases Facing Delays

October 5, 2008
The New York Times
By WILLIAM GLABERSON

When the Supreme Court ruled in June that detainees at Guantánamo had the right to challenge their detention in federal court, the justices said that after more than six years of legal wrangling the prisoners should have their cases heard quickly because “the costs of delay can no longer be borne by those who are held in custody.”

But nearly four months later, as the Bush administration has opened a new defense of its detention policies in federal court, none of the scores of cases brought by detainees have been resolved by any judge.

Since the Supreme Court issued its ruling, lawyers for most of the 255 detainees in Guantánamo Bay, Cuba, have pressed ahead with habeas corpus lawsuits, yet most of those cases have been delayed by battles over issues like whether some court sessions will be held in secret, whether detainees can attend and what level of proof will justify detention.

Some of the arguments made by the Justice Department appear to challenge the Supreme Court’s conclusion that the federal courts have a role in deciding the fate of the detainees. One Bush administration argument asserts that only military officials — not federal judges — have the power to decide how to conclude wartime detentions.

Officials and lawyers inside and outside of the government say the new legal confrontation suggests that the Bush administration will most likely continue its defense of the detention camp until the end of President Bush’s term and is not likely to close the camp, as administration officials have said they would like to do.

“The legal issues that are being raised by the administration are going to take longer than the remaining time of the administration” to resolve, said Vijay Padmanabhan, an assistant professor at Cardozo Law School who was until July a State Department lawyer with responsibility for detainee issues.

“It is part of a broader strategy,” Mr. Padmanabhan added, “which is not to make difficult decisions about Guantánamo and leave it to the next president.”

Detainees’ advocates say that the administration is using the legal battle to delay judicial review of its evidence, while government lawyers argue that the cases are moving rapidly considering that they are unprecedented.

A Justice Department spokesman, Erik Ablin, said the government was working toward quick hearings for detainees, but was determined to take every precaution to avoid having dangerous people released. He added that “it is certainly the government’s goal to detain enemy combatants who are deemed a threat to the United States.”

Habeas corpus suits, which have their root in centuries-old English law, are generally streamlined proceedings for prisoners to force officials to explain why they are being held. The Guantánamo cases permitted by the Supreme Court’s ruling, Boumediene v. Bush, are to review the government’s reasons for holding the men as enemy combatants.

The military’s enemy combatant hearings, which the administration says permit indefinite detention, are separate from the Pentagon’s effort to prosecute some detainees in military commission trials.

A first test of a judge’s power in a federal habeas case may come on Tuesday during arguments in a case involving 17 detainees who claim a right to immediate release. The path to court has been slow for the habeas cases, and most seem unlikely to reach resolution until well into the next president’s administration, lawyers say. In some cases, government lawyers are adding new grounds for holding the men, supplementing or replacing the accusations made during Guantánamo hearings four years ago.

Lawyers say some of the government’s arguments could create grounds for years of new appeals by the Justice Department.

Many of the hurdles to moving the cases to court have been practical ones, including an initial shortage of Justice Department lawyers and the need to develop procedures for intelligence agencies to review classified evidence.

In August, Justice Department lawyers told the United States District Court in Washington that they could not meet their own deadline for providing initial responses to the cases. “The task has proven even more difficult than originally envisioned,” said a Justice Department filing.

The new schedule called for initial responses to 50 cases a month beginning in September. As a result, challenges by some detainees would not begin to move in the courts until January, the Bush administration’s last month in office.

Mr. Ablin, the Justice Department spokesman, said accusations against detainees might need to be updated because of the “changed legal landscape” and because intelligence collection might have changed what is known about detainees.

“It would be irresponsible,” he said, “not to update the courts with additional information gained over the past several years” that proved links to terrorism.

The government is relying extensively on classified information. That is quite likely to raise defense questions about how detainees can defend themselves since they are not permitted to see much of the evidence against them — long a contentious issue in the military’s hearings at Guantánamo Bay.

“Time is on their side,” Matthew J. MacLean, a Washington lawyer for four Kuwaiti detainees, said of the government. “Every day of delay is one more day our clients are in prison without a hearing.”

The habeas case scheduled for a federal court hearing on Tuesday involves 17 Guantánamo detainees who are ethnic Uighurs, a restive Muslim minority in western China.

In a separate case that was under way before the Supreme Court ruling in June, federal appeals judges issued a decision this summer that ridiculed as inadequate the Pentagon’s secret evidence for holding one of the Uighurs, Huzaifa Parhat, a former fruit peddler who said he had gone to Afghanistan to escape China.

Since then, the Pentagon has conceded that it would “serve no useful purpose” to continue to try to prove that any of the 17 Uighurs were ever enemy combatants.

The Uighurs say they have never been enemies of the United States, though they were in Afghanistan in 2002, where they were detained. They say they would be persecuted or killed if they were returned to China. The Bush administration says it has failed to find another country willing to accept them.

On Tuesday, a federal district judge, Ricardo M. Urbina, is to hear an urgent claim by lawyers for the Uighurs, that they should be released immediately into the United States since they are no longer considered enemy combatants.

The government argues that they should be held at Guantánamo until another country can be found to accept them. In filings, the Justice Department lawyers make expansive arguments that, while Judge Urbina can hear the Uighurs’ case, he cannot order their release. The judiciary “simply has no authority” to release the Uighurs into the United States, one filing said.

The Justice Department said the government’s executive branch, not the judicial branch, has the authority to conclude military detentions, as it has in prior wars. It noted that in World War II “no court ever questioned that it was solely for the political branches — not the courts” to decide how Italian prisoners of war were handled.

P. Sabin Willett, one of the Uighurs’ lawyers, said such claims appeared to be laying the groundwork for government appeals in the event that a judge orders a detainee freed.

The first full court hearing examining the evidence in a habeas case — this one involving six detainees at the center of the Supreme Court’s June decision — is scheduled for Oct. 27. Still, hearings for the vast majority of the detainees are unscheduled.

The Supreme Court justices said in their June decision that the detainees were “entitled to a prompt” hearing, but did not specify how prompt.

Mr. Willett said that while “prompt” might be open to interpretation, “I think they meant more quickly than this.”

    Despite Ruling, Detainee Cases Facing Delays, NYT, 5.10.2008, http://www.nytimes.com/2008/10/05/us/05gitmo.html?hp

Supreme Court Won’t Revisit Death Penalty Case

October 2, 2008
The New York Times
By DAVID STOUT

WASHINGTON — The Supreme Court on Tuesday voted, 7 to 2, not to reconsider its decision last June that the death penalty is unconstitutional punishment for the rape of a child.

On the first day of its new term, the court slightly amended its June ruling, but left the basics of it alone. As a result, death penalty laws in Louisiana and five other states that allowed the execution of child rapists in instances in which the child was not killed remain void.

Justice Anthony M. Kennedy, writing on Tuesday for the five justices in the original majority, said some facts that the court was unaware of when it ruled on June 25 did not alter the court’s analysis.

The court’s announcement that it would not rehear the case, which originated in Louisiana, was not a surprise, since petitions for rehearing cases already decided by the Supreme Court are very rarely granted. But the circumstances of the case, known as Kennedy v. Louisiana, were unusual, in that the arguments and deliberations were accompanied by a factual error that surfaced only after the justices ruled.

In its 5-to-4 decision in June, the court reasoned that, because so few states allowed the execution of child rapists, there was a national consensus against applying the ultimate punishment to such criminals. Not long afterward, it was disclosed that the lawyers arguing the case, and the justices themselves, had been unaware of a 2006 amendment to the Uniform Code of Military Justice, specifically making child rape committed by service members a capital crime.

Thus, the State of Louisiana argued in urging the justices to reopen the case, the high court should review its conclusion that there was a national consensus against the execution of child rapists.

Not so, Justice Kennedy wrote on Tuesday. The 2006 change to the military-justice code merely tinkered with a statute that had authorized capital punishment for the rapes of children (and adults) all along, he wrote. Besides, he said, “authorization of the death penalty in the military sphere does not indicate that penalty is constitutional in the civilian context.”

In the Louisiana case, Patrick Kennedy was convicted and sentenced to death in 2003 for raping his 8-year-old stepdaughter. Joining Justice Kennedy in the majority ruling voiding the penalty in June were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Chief Justice John G. Roberts Jr. and Justice Antonin Scalia, who were in the minority in June, voted on Tuesday not to rehear the case. Justice Scalia called the original decision disingenuous, but suggested that nothing would have changed it. “The views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision,” Justice Scalia wrote on Tuesday.

Justices Clarence Thomas and Samuel A. Alito Jr. voted on Tuesday to rehear the case, but did not offer reasons.

    Supreme Court Won’t Revisit Death Penalty Case, NYT, 2.10.2008, http://www.nytimes.com/2008/10/02/washington/02scotus.html?hp

    Related > http://www.supremecourtus.gov/opinions/07pdf/07-343.pdf