USA > History > 2010 > Supreme Court (I)

Justices to Hear

Case of Protest at Marine Funeral

March 8, 2010
The New York Times
By ADAM LIPTAK

WASHINGTON — The Supreme Court on Monday agreed to decide whether the father of a Marine killed in Iraq may sue protesters who picketed his son’s funeral with signs that read “God Hates You” and “Thank God for Dead Soldiers.”

A federal appeals court dismissed the suit on First Amendment grounds and threw out a $5 million award against the protesters, who are members of Westboro Baptist Church in Topeka, Kan., and maintain that God hates homosexuality and that the death of soldiers in Iraq and Afghanistan is God’s way of punishing the United States for its tolerance of it.

The fallen Marine was Lance Cpl. Matthew A. Snyder, and his funeral was held in Westminster, Md., in 2006. His father, Albert Snyder, testified at trial in 2007 that the protests continued to haunt and disturb him.

“For the rest of my life,” Mr. Snyder said, “I will remember what they did to me, and it has tarnished the memory of my son’s last hour on earth.”

He added that he became angry and tearful when he thought about the protest and that the memory of it had caused him to vomit.

The protesters complied with local laws and instructions from the police about keeping their distance. They did not know the Snyders, and they had staged similar protests at other military funerals.

Mr. Snyder’s central claim is that the protesters intentionally inflicted emotional distress on him.

In 1988, the Supreme Court ruled that the First Amendment barred the Rev. Jerry Falwell from suing Hustler Magazine for intentional infliction of emotional distress. Hustler had published a parody of an advertisement suggesting that Mr. Falwell had incestuous sex in an outhouse. (Coincidentally, Mr. Falwell expressed views not wholly different from those of the funeral protesters, saying that the nation’s attitudes toward homosexuality and abortion had played a role in the Sept. 11 attacks.)

Mr. Snyder contends that the Hustler decision should not apply to suits brought by one private person against another. In libel and other cases, the Supreme Court has limited the First Amendment protection afforded to purely private speech.

A three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., unanimously ruled against Mr. Snyder, though the judges split 2-to-1 over the rationale. The majority said the messages on the protesters’ signs were protected under the First Amendment because they addressed matters of general interest.

“As utterly distasteful as these signs are,” Judge Robert B. King wrote for the majority, “they involve matters of public concern, including the issues of homosexuals in the military, the sex-abuse scandal within the Catholic Church, and the political and moral conduct of the United States and its citizens.”

The Supreme Court will consider the case, Snyder v. Phelps, No. 09-751, in the fall.

BACKGROUND CHECKS The court also agreed to decide whether a 2004 Bush administration antiterrorism initiative violated the privacy rights of scientists and engineers at the Jet Propulsion Laboratory, a research facility operated by the California Institute of Technology under a contract with NASA.

The initiative extended the background checks required for many government jobs to contract employees like those at the laboratory. The employees sued, saying that such government investigations are needlessly intrusive and violate privacy rights.

The employees, who do not have security clearances and are not involved in classified or military activities, objected to answering questions about drug use and counseling, and to signing a form authorizing the government to collect information from schools, landlords, employers and others.

The United States Court of Appeals for the Ninth Circuit, in San Francisco, ordered the background checks halted while the case went forward. The full court declined to review that decision, with several judges dissenting.

Judge Andrew J. Kleinfeld said the court’s decision was “likely to impair national security” by forbidding the government “from doing what any sensible private employer would do.”

Chief Judge Alex Kozinski urged the Supreme Court to hear the case, NASA v. Nelson, No. 09-530. He said the law in this area had turned into a turducken — a chicken stuffed into a duck that is then stuffed into a turkey.

BANKRUPTCY LAWYERS In a decision Monday, the court interpreted a 2005 bankruptcy law narrowly to avoid a First Amendment challenge. The law forbids some professionals from advising their clients “to incur more debt in contemplation of” a bankruptcy filing.

The first issue in the case was whether the law applied to lawyers, and the court, in an opinion by Justice Sonia Sotomayor, said it did. The second, harder question was whether the law violated the First Amendment in forbidding lawyers from giving some kinds of advice.

No one disputed that lawyers could be forbidden from counseling their clients to abuse the bankruptcy system by piling on debt right before filing. But there are also sensible reasons to take on additional debt in the face of possible bankruptcy.

Justice Sotomayor wrote that the law, properly read, prohibited lawyers “only from advising a debtor to incur more debt because the debtor is filing for bankruptcy, rather than for a valid purpose.”

Advice about refinancing a mortgage, buying a reliable car to get to work and paying medical bills are all outside the scope of the law, Justice Sotomayor said.

The ruling in the case, Milavetz, Gallop & Milavetz v. United States, No. 08-1119, was unanimous, though Justices Antonin Scalia and Clarence Thomas did not join in all of Justice Sotomayor’s reasoning.

    Justices to Hear Case of Protest at Marine Funeral, NYT, 9.3.2010, http://www.nytimes.com/2010/03/09/us/09scotus.html

In a Polarized Court,

Getting the Last Word

March 8, 2010
WASHINGTON
By ADAM LIPTAK

A few times a year, Supreme Court justices go out of their way to emphasize their unhappiness by reading a dissent from the bench out loud, supplementing the dry reason on the page with vivid tones of sarcasm, regret, anger and disdain. The practice is on the rise, and it is suggestive of an increasingly polarized court.

“Dissenting from the bench,” a new study to be published in Justice System Journal contends, is a sort of nuclear option that “may indicate that bargaining and accommodation have broken down irreparably.”

Yes, a new study. Academic scrutiny of almost every aspect of the Supreme Court is oppressively comprehensive, and now three sets of researchers have identified the empirical analysis of oral dissents as a new frontier.

Over the 36 years Warren E. Burger and William H. Rehnquist served as chief justices, there were on average three dissents read from the bench each term. In the first four years of the court under Chief Justice John G. Roberts Jr., the number rose by a quarter, to 3.75.

So far this term, there has been only one oral dissent, but it was a doozy. Justice John Paul Stevens spent 20 minutes in January rebutting the majority decision in Citizens United, the big campaign finance case.

That brings the total number of oral dissents in the Roberts court to 16, and all but three came from the court’s liberal wing. The exceptions were protests from Justices Antonin Scalia and Clarence Thomas over decisions in favor of prisoners at Guantánamo Bay.

There is, of course, an element of stagecraft to oral dissents. If justices are to engage in what their colleagues may view as a breach of collegiality and decorum, they want it to count.

Consider Bowers v. Hardwick, the 1986 decision that said there was nothing in the Constitution to stop states from making it a crime for gay men to have consensual sex at home. Justice Harry A. Blackmun had written a dissent, and he was thinking about summarizing it from the bench.

That sounded good to his law clerk, Pamela S. Karlan.

“The majority’s treatment is a disgrace,” she wrote in a memorandum to the justice that became public when his papers were released “and it’s well worth making clear to everyone what the case is really about.”

Ms. Karlan, now a law professor at Stanford, also had some public relations advice for her boss about the case, which was to be announced that Friday.

“I think Friday is a bad day to have the case brought down,” she wrote. “A summer Friday and Saturday are probably the least likely time for people to take notice of what the court has done. I would press, if I were you, for Monday instead.”

The announcement was indeed pushed back, and Justice Blackmun delivered a passionate dissent. It took 17 years, but the court came around to his view when it overruled Bowers in Lawrence v. Texas.

Justice Stevens has spoken up in dissent more often than any other current justice, but that is largely a testament to his longevity. He has written about 600 dissents in his almost 35 years on the court. But he has dissented from the bench just over 20 times.

In percentage terms, Justice Ruth Bader Ginsburg holds the modern record. She has read more than 10 percent of her dissents from the bench, according to the study in Justice System Journal, by William D. Blake, a graduate student in the government department at the University of Texas, and Hans J. Hacker, a political scientist at Arkansas State University.

In 2007, Justice Ginsburg called upon Congress from the bench to reverse what she called the majority’s “parsimonious reading” of an employment discrimination law in Ledbetter v. Goodyear Tire & Rubber Co. Congress did so last year.

Scholars are split about what role ideology plays in generating oral dissents. One study by Timothy R. Johnson, Ryan C. Black and Eve M. Ringsmuth in the Minnesota Law Review last year found, as one might expect, that ideological opposites are more likely to dissent from the bench. But Mr. Blake and Mr. Hacker make the case that disappointed ideological allies are the most likely oral dissenters. It is your friends, their study suggests, who drive you crazy.

There are no comprehensive records of oral dissents, and researchers reviewed audio recordings — many available on the indispensable Oyez Web site — newspaper accounts and other resources to track them down. Jill Duffy, a research librarian at the Supreme Court, and Elizabeth Lambert, a staff lawyer with a Federal District Court in New York, seem to have assembled a complete list going back to 1969 in the winter issue of the Law Library Journal.

The list shows that the Roberts court is generating lots of notable oral dissents. Here, for instance, is what Justice Stephen G. Breyer had to say from the bench when the court announced its 2007 decision sharply limiting the role race could play in school assignments: “It is not often in the law that so few have so quickly changed so much.” Those words do not appear in his written dissent.

Justice Clarence Thomas, who has not asked a question from the bench since February 2006, did read a dissent that June from a decision striking down a plan to use military commissions to try suspected terrorists.

“In 15 terms on the bench,” he said, “I have never read a dissent from the bench, but today’s decision requires that I do so.” But Justice Thomas’s memory failed him. He had dissented from the bench once before, in Stenberg v. Carhart, a 2000 abortion case.

    In a Polarized Court, Getting the Last Word, NYT, 9.3.2010, http://www.nytimes.com/2010/03/09/us/09bar.html

Supreme Court Still Divided on Guns

March 2, 2010
The New York Times
By ADAM LIPTAK

WASHINGTON — At least five justices appeared poised to expand the scope of the Second Amendment’s protection of the right to bear arms on Tuesday, judging from comments at an unusually intense Supreme Court argument.

By its conclusion, it seemed plain that the court would extend a 2008 decision that first identified an individual right to own guns to strike down Chicago’s gun control law, widely considered the most restrictive in the nation.

While such a ruling would represent an enormous symbolic victory for supporters of gun rights, its short-term practical impact would almost certainly be limited. Just how much strength the Second Amendment has in places that regulate but do not ban guns outright will be worked out in additional cases.

The new case, McDonald v. Chicago, No. 08-1521, was a sequel to the 2008 decision in District of Columbia v. Heller, which placed limits on what the federal government may do to regulate guns. The issue before the court in the new case was whether the Second Amendment also applied to state and local laws. It appeared that at least the justices in the Heller majority would say yes without reservation because they considered the rights protected in the Second Amendment as basic as those in other provisions of the Bill of Rights.

“If it’s not fundamental, then Heller is wrong,” said Justice Anthony M. Kennedy, who was in the majority in Heller.

Justice John Paul Stevens, who wrote a dissent in Heller, suggested Tuesday that important questions remain unresolved.

“I’m asking you what is the scope of the right to own a gun?” he said. “Is it just the right to have it at home, or is the right to parade around the streets with guns?”

Heller itself struck down parts of the gun control law in the District of Columbia, then the strictest in the nation. But the majority opinion, by Justice Antonin Scalia, suggested that all sorts of restrictions on gun ownership might pass Second Amendment muster.

Justice Stephen G. Breyer, who also wrote a dissent in Heller, peppered the lawyers with questions about how the court might apply the Second Amendment to the states in a limited way. The Second 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.”

Drawing on the first clause of the amendment, Justice Breyer said that a right tied to state militias might be worthy of protection, while the right to bear arms “to shoot burglars” might not be.

The lead plaintiff in the case, Otis McDonald, has said he wants to keep a handgun in his home for protection from drug gangs. Justice Breyer asked Alan Gura, a lawyer for residents of Chicago challenging its gun control law, whether the city should remain free to ban guns if it could show that hundreds of lives would be saved. Mr. Gura said no.

Justice Scalia objected to the inquiry. A constitutional right, he said, cannot be overcome because it may have negative consequences.

But Justice Scalia was less receptive to an idea that has excited constitutional scholars in recent months. “What you argue,” he told Mr. Gura, “is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence.”

Justice Scalia was referring to Mr. Gura’s assertion that the court has been making parts of the Bill of Rights applicable to the states in the wrong way.

The Second Amendment, like the rest of the Bill of Rights, originally restricted only the power of the federal government. The Supreme Court later ruled that most but not all of the protections of the Bill of Rights applied to the states under the due process clause of the 14th Amendment, one of the post-Civil War amendments.

Many judges and scholars, including Justice Scalia, have never found that methodology intellectually satisfactory. “Due process,” after all, would seem to protect only procedures and not substance. The very name given to the methodology — substantive due process — sounds like an oxymoron.

Mr. Gura, supported by scholars all along the political spectrum, argued that the court should instead rely on the 14th Amendment’s “privileges or immunities” clause, which says that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” There is evidence that the authors of the clause specifically wanted it to apply to allow freed slaves to have guns to defend themselves.

Justice Scalia was unimpressed. He said Mr. Gura should focus on winning his case rather than remaking constitutional law.

“Why do you want to undertake that burden,” Justice Scalia asked, “instead of just arguing substantive due process, which as much as I think it’s wrong, even I have acquiesced in it?”

Unless, the justice added, Mr. Gura was “bucking for a place on some law school faculty.”

James A. Feldman, a lawyer for the City of Chicago, urged the justices to treat the Second Amendment differently from its cousins because it concerns a lethal product. “Firearms, unlike anything else that is the subject of a provision of the Bill of Rights, are designed to injure and kill,” Mr. Feldman said.

Now it was the chief justice’s turn to give advice to the lawyer before him.

“All the arguments you make against” applying the Second Amendment to the states, Chief Justice John G. Roberts Jr. said, “it seems to me are arguments you should make in favor of regulation under the Second Amendment. We haven’t said anything about what the content of the Second Amendment is beyond what was said in Heller.”

    Supreme Court Still Divided on Guns, NYT, 3.3.2010, http://www.nytimes.com/2010/03/03/us/03scotus.html

Supreme Court Won’t Hear Case of Uighur Detainees

March 1, 2010
The New York Times
By ADAM LIPTAK

WASHINGTON -- The Supreme Court said on Monday that it would not decide a case involving seven Chinese Muslims detained for eight years at Guantanamo Bay that had been set for argument in April.

The seven, captured in Afghanistan in 2001, have been determined to pose no threat to the United States, but the government and the courts have not determined whether the men could be released into the United States, as they had requested. The court on Monday sent the case back to the lower courts.

With other countries having said recently that they would accept the detainees, the justices said on Monday in an unsigned three-paragraph decision that factual developments since it agreed to hear the case in October “may affect the legal issues presented.”

The case involves prisoners at Guantanamo from the largely Muslim Uighur region of western China who have been cleared of any charges against the United States. They do not want to be returned to China, where they are considered terrorists and where they fear torture or execution.

The question the court agreed to hear in October was whether a federal judge in Washington had the power to order the men released into the United States.

Judge Ricardo M. Urbina, the trial judge in the case, acknowledged that the case involves a difficult separation-of-powers question. But he said indefinite imprisonment in the circumstances was not constitutionally permissible.

“Because their detention has already crossed the constitutional threshold into infinitum and because our system of checks and balances is designed to preserve the fundamental right of liberty,” the judge wrote, “the court grants the petitioners’ motion for release into the United States.”

The United States Court of Appeals for the District of Columbia Circuit ruled that Judge Urbina did not have the power to override immigration laws and force the executive branch to release foreigners into the United States.

“An undercurrent of petitioners’ arguments is that they deserve to be released into this country after all they have endured at the hands of the United States,” Judge A. Raymond Randolph wrote for the majority of a three-judge panel. “But such sentiments, however high-minded, do not represent a legal basis for upsetting settled law and overriding the prerogatives of the political branches.”

Since then, the government has continued its efforts to relocate the men, and it had a breakthrough last month when Switzerland agreed to take two of the prisoners who had proved most difficult to place. But five Uighurs remain at Guantanamo, having rejected resettlement offers from Palau and an unidentified second country.

“No court has yet ruled in this case in light of the new facts,” the decision said, “and we decline to be the first to do so.” Instead, the justices vacated the appeals court decision and instructed that court to determine what is “necessary and appropriate for the full and prompt disposition of the case in light of the new developments.”

False starts in the court in this area are not uncommon. Last March, the Supreme Court dismissed a case it had agreed to hear about whether the president had the power to detain a Qatari student in the United States as an enemy combatant.

There, too, there were factual developments after the court agreed to hear the case: the government transferred the former student, Ali al Marri, to the criminal justice system. And there, too, the Supreme Court wiped out the lower court decision as it dismissed the case.

The central issue in the latest case, Kiyemba v. Obama, 08-1234, is likely to reach the court again soon enough, as there remain other cases in which prisoners cleared for release with nowhere to go remain at Guantánamo.

    Supreme Court Won’t Hear Case of Uighur Detainees, NYT, 2.3.2010, http://www.nytimes.com/2010/03/02/us/politics/02detain.html

Before Justices, First Amendment and Aid to Terrorists

February 23, 2010
The New York Times
By ADAM LIPTAK

WASHINGTON — The line between speech protected by the First Amendment and aid to terrorists appeared elusive at the Supreme Court on Tuesday, and the justices’ lively questioning complicated rather than clarified matters. They discussed travel to Cuba, the Communist and Nazi Parties, Tokyo Rose, treason and whether it is a crime to teach a terrorist how to play the harmonica.

Solicitor General Elena Kagan defended the law at issue in the case, which bars providing material support to terrorist organizations, as “a vital weapon in this nation’s continuing struggle against international terrorism.”

Even seemingly benign help is prohibited, Ms. Kagan said.

“Hezbollah builds bombs,” she said of the militant Islamic group. “Hezbollah also builds homes. What Congress decided was when you help Hezbollah build homes, you are also helping Hezbollah build bombs. That’s the entire theory behind the statute.”

But several justices seemed to view the case as more difficult than that, at least where the help at issue took the form of speech rather than conduct.

The law makes it a crime to provide not only aid like money and guns but also four more ambiguous sorts of help: “training,” “personnel,” “service” and “expert advice or assistance.”

David D. Cole, a lawyer for people and groups challenging the law in the case, Holder v. Humanitarian Law Project, No. 08-1498, conceded that the government might ban donations of money even if they were meant to support lawful activities like tsunami relief. Mr. Cole added that training in bomb-making might also be banned.

But pure speech about lawful activities, he said, is a different matter.

“This court has never upheld the criminal prohibition of lawful speech on issues of public concern,” he said.

Mr. Cole’s clients say they want to provide support for the legal, nonviolent activities of a Kurdish political party and a Tamil group, both of which have been designated as terrorist organizations by the State Department.

One plaintiff, Ralph D. Fertig, a retired lawyer, has said he wanted to help the Kurdish group, the Kurdistan Workers’ Party, find peaceful ways to protect the rights of Kurds in Turkey and to bring their claims to the attention of international bodies.

Ms. Kagan said Mr. Fertig was free to say anything he wanted and to lobby anybody he liked so long as he did it independently of the banned group. She also said he might meet with the Kurdish group to discuss ideas. It was even all right, she said, to become a member of the group.

But the discussions turn criminal, Ms. Kagan said, if Mr. Fertig provides some kinds of advice.

That did not seem to satisfy Justice Ruth Bader Ginsburg. “So you can communicate, but the communications are censored,” Justice Ginsburg said. “You can be a member, you can attend meetings, you can discuss things, but there is a certain point at which the discussion must stop, right?”

Ms. Kagan responded, “The discussion must stop when you go over the line into giving valuable advice, training, support to these organizations.”

Ms. Kagan gave examples of prohibited conduct. A lawyer would commit a crime, she said, by filing a friend-of-the-court brief on behalf of a terrorist group. Helping such a group petition international bodies is also a crime, she added.

Justice John Paul Stevens asked if there was an authentic risk that Mr. Fertig would be prosecuted were he to make a presentation on behalf of the Kurdish group at the United Nations. He seemed to expect a negative answer.

But Ms. Kagan would say only that the matter would involve a “prosecutorial judgment.”

Chief Justice John G. Roberts Jr. said at least one part of the law, banning expert advice, seemed vague to him. “I don’t know sitting down that I could tell,” he said, whether advice about peaceful advocacy was covered.

Justice Antonin Scalia came to the defense of radicals from another era in an apparent effort to distinguish Supreme Court precedents protecting some forms of dissent and advocacy during the cold war.

“The Communist Party was more than an organization that had some unlawful ends,” Justice Scalia said. “It was also a philosophy of extreme socialism. And many people subscribed to that philosophy. I don’t think that Hamas or any of these terrorist organizations represent such a philosophical organization.”

Justice Anthony M. Kennedy, the court’s most consistent defender of First Amendment freedoms, said, “This is a difficult case for me.”

Support of any kind, Justice Kennedy said, “will ultimately inure to the benefit of a terrorist organization, and we have a governmental interest in not allowing that.”

But Justice Sonia Sotomayor suggested that the law might sweep too broadly by making, say, harmonica instruction a crime because it involves specialized training.

Ms. Kagan did not take a position on the question. But she did allow that “there are not a whole lot of people going around trying to teach Al Qaeda how to play harmonicas.”

    Before Justices, First Amendment and Aid to Terrorists, NYT, 24.2.2010, http://www.nytimes.com/2010/02/24/us/24scotus.html
 

Right to Free Speech Collides With Fight Against Terror

February 11, 2010
The New York Times
By ADAM LIPTAK

WASHINGTON — Ralph D. Fertig, a 79-year-old civil rights lawyer, says he would like to help a militant Kurdish group in Turkey find peaceful ways to achieve its goals. But he fears prosecution under a law banning even benign assistance to groups said to engage in terrorism.

The Supreme Court will soon hear Mr. Fertig’s challenge to the law, in a case that pits First Amendment freedoms against the government’s efforts to combat terrorism. The case represents the court’s first encounter with the free speech and association rights of American citizens in the context of terrorism since the Sept. 11 attacks — and its first chance to test the constitutionality of a provision of the USA Patriot Act.

Opponents of the law, which bans providing “material support” to terrorist organizations, say it violates American values in ways that would have made Senator Joseph R. McCarthy blush during the witch hunts of the cold war.

The government defends the law, under which it has secured many of its terrorism convictions in the last decade, as an important tool that takes account of the slippery nature of the nation’s modern enemies.

The law takes a comprehensive approach to its ban on aid to terrorist groups, prohibiting not only providing cash, weapons and the like but also four more ambiguous sorts of help — “training,” “personnel,” “expert advice or assistance” and “service.”

“Congress wants these organizations to be radioactive,” Douglas N. Letter, a Justice Department lawyer, said in a 2007 appeals court argument in the case, referring to the dozens of groups that have been designated as foreign terrorist organizations by the State Department.

Mr. Letter said it would be a crime for a lawyer to file a friend-of-the-court brief on behalf of a designated organization in Mr. Fertig’s case or “to be assisting terrorist organizations in making presentations to the U.N., to television, to a newspaper.”

It would be no excuse, Mr. Letter went on, “to be saying, ‘I want to help them in a good way.’ ”

Mr. Fertig said he was saddened and mystified by the government’s approach.

“Violence? Terrorism?” he asked in an interview in his Los Angeles home. “Totally repudiate it. My mission would be to work with them on peaceful resolutions of their conflicts, to try to convince them to use nonviolent means of protest on the model of Mahatma Gandhi and Martin Luther King.”

Mr. Fertig said his commitment to nonviolence was not abstract. “I had most of my ribs broken,” he said, after his 1961 arrest in Selma, Ala., for trying to integrate the interstate bus system as a freedom rider.

He paused, correcting himself. “I believe all my ribs were broken,” he said.

Mr. Fertig is president of the Humanitarian Law Project, a nonprofit group that has a long history of mediating international conflicts and promoting human rights. He and the project, along with a doctor and several other groups, sued to strike down the material-support law in 1998.

Two years earlier, passage of the Antiterrorism and Effective Death Penalty Act had made it a crime to provide “material support” to groups the State Department had designated as “foreign terrorist organizations.” The definition of material support included “training” and “personnel.” Later versions of the law, including amendments in the USA Patriot Act, added “expert advice or assistance” and “service.”

In 1997, Secretary of State Madeleine K. Albright designated some 30 groups under the law, including Hamas, Hezbollah, the Khmer Rouge and the Kurdistan Workers’ Party. The United States says the Kurdish group, sometimes called the P.K.K., has engaged in widespread terrorist activities, including bombings and kidnappings, and “has waged a violent insurgency that has claimed over 22,000 lives.”

The litigation has bounced around in the lower courts for more than a decade as the law was amended and as it took on a central role in terrorism cases. Since 2001, the government says, it has prosecuted about 150 defendants for violating the material-support law, obtaining roughly 75 convictions.

The latest appeals court decision in Mr. Fertig’s case, in 2007, ruled that the bans on training, service and some kinds of expert advice were unconstitutionally vague. But it upheld the bans on personnel and expert advice derived from scientific or technical knowledge.

Both sides appealed to the Supreme Court, which agreed to hear the consolidated cases in October. The cases are Holder v. Humanitarian Law Project, No. 08-1498, and Humanitarian Law Project v. Holder, No. 09-89. The court will hear arguments on Feb. 23.

David D. Cole, a lawyer with the Center for Constitutional Rights, which represents Mr. Fertig and other challengers to the law, told the court that the case concerned speech protected by the First Amendment “promoting lawful, nonviolent activities,” including “human rights advocacy and peacemaking.”

Solicitor General Elena Kagan countered that the law allowed Mr. Fertig and the other challengers to say anything they liked so long as they did not direct their efforts toward or coordinate them with the designated groups.

A number of victims of McCarthy-era persecution filed a friend-of-the-court brief urging the Supreme Court to remember the lessons of history.

“I signed the brief,” said Chandler Davis, an emeritus professor of mathematics at the University of Toronto, “because I can testify to the way in which the dubious repression of dissent disrupted lives and disrupted political discourse.”

Professor Davis refused to cooperate with the House Un-American Activities Committee in 1954 and was dismissed from his position at the University of Michigan. Unable to find work in the United States, he moved to Canada. In 1991, the University of Michigan established an annual lecture series on academic freedom in honor of Professor Davis and others it had mistreated in the McCarthy era.

Mr. Fertig said the current climate was in some ways worse.

“I think it’s more dangerous than McCarthyism,” he said. “It was not illegal to help the communists or to be a communist. You might lose your job, you might lose your friends, you might be ostracized. But you’d be free. Today, the same person would be thrown in jail.”

A friend-of-the-court brief — prepared by Edwin Meese III, the former United States attorney general; John C. Yoo, a former Bush administration lawyer; and others — called the civil liberties critique of the material-support law naïve.

The law represents “a considered wartime judgment by the political branches of the optimal means to confront the unique challenges posed by terrorism,” their brief said. Allowing any sort of contributions to terrorist organizations “simply because the donor intends that they be used for ‘peaceful’ purposes directly conflicts with Congress’s determination that no quarantine can effectively isolate ‘good’ activities from the evil of terrorism.”

Mr. Fertig said he could understand an argument against donating money, given the difficulty of controlling its use. But the sweep of the material-support law goes too far, he said.

“Fear is manipulated,” Mr. Fertig said, “and the tools of the penal system are applied to inhibit people from speaking out.”

    Right to Free Speech Collides With Fight Against Terror, 11.2.2010, http://www.nytimes.com/2010/02/11/us/11law.html

Sidebar

A Mediocre Criminal, but an Unmatched Jailhouse Lawyer

February 9, 2010
The New York Times
By ADAM LIPTAK

WASHINGTON

Shon R. Hopwood was not a particularly sophisticated bank robber.

“We would walk into a bank with firearms, tell people to get down, take the money and run,” he said the other day, recalling five robberies in rural Nebraska in 1997 and 1998 that yielded some $200,000 and more than a decade in federal prison.

Mr. Hopwood spent much of that time in the prison law library, and it turned out he was better at understanding the law than breaking it. He transformed himself into something rare at the top levels of the American bar, and unheard of behind bars — an accomplished Supreme Court practitioner.

He prepared his first petition for certiorari — a request that the Supreme Court hear a case — for a fellow inmate on a prison typewriter in 2002. Since Mr. Hopwood was not a lawyer, the only name on the brief was that of the other prisoner, John Fellers.

The court received 7,209 petitions that year from prisoners and others too poor to pay the filing fee, and it agreed to hear just eight of them. One was Fellers v. United States.

“It was probably one of the best cert. petitions I have ever read,” said Seth P. Waxman, a former United States solicitor general who has argued more than 50 cases in the Supreme Court. “It was just terrific.”

Mr. Waxman agreed to take the case on without payment. But he had one condition.

“I will represent you,” Mr. Waxman recalled telling Mr. Fellers, “if we can get this guy Shon Hopwood involved.”

Mr. Fellers said sure. “It made me feel good that we had Shon there to quarterback it,” Mr. Fellers said.

The former solicitor general showed the bank robber drafts of his briefs. The two men consulted about how to frame the arguments, discussed strategy and tried to anticipate questions from the justices.

The case was about whether the police had crossed constitutional lines in questioning Mr. Fellers, who had been convicted of a drug conspiracy. Mr. Hopwood said he thought persuading Justice Sandra Day O’Connor would be crucial.

In January 2004, Mr. Waxman called Mr. Hopwood at the federal prison in Pekin, Ill. They had won a 9-to-0 victory. Justice O’Connor wrote the opinion.

The case took some more turns in the lower courts, but in the end Mr. Fellers’s sentence was reduced by four years.

No one was hurt in Mr. Hopwood’s bank robberies, but he and his accomplices “scared the hell out of the poor bank tellers,” Judge Richard G. Kopf of Federal District Court in Lincoln, Neb., said in sentencing him to prison in 1999.

The judge was skeptical about Mr. Hopwood’s vow that he would change. “We’ll know in about 13 years if you mean what you say,” Judge Kopf said.

The law library changed Mr. Hopwood’s life.

“I kind of flourished there,” he said. “I didn’t want prison to be my destiny. When your life gets tipped over and spilled out, you have to make some changes.”

He was a quick study, but he had a lot to learn.

“In 2000,” he said, “I couldn’t have named a right in the Bill of Rights.”

By 2005, the Supreme Court had granted a second petition prepared by Mr. Hopwood, vacating a lower court decision and sending the case back for a fresh look. Mr. Hopwood has also helped inmates from Indiana, Michigan and Nebraska get sentence reductions of 3 to 10 years from lower courts.

Mr. Hopwood was released from prison in the fall of 2008. Mr. Fellers was out by then, and he owned a thriving car dealership in Lincoln.

“Here,” Mr. Fellers said, presenting his jailhouse lawyer with a 1989 Mercedes in pristine condition. “Thank you for getting me back to my daughter.”

Mr. Hopwood now works for a leading printer of Supreme Court briefs, Cockle Printing in Omaha.

“What a perfect fit for me,” he said. “I basically get to help attorneys get their briefs polished and perfected.”

His boss at Cockle, Trish Billotte, said she had some misgivings about hiring Mr. Hopwood. It was hard to believe his story, for starters, and it struck her as curious that an aspiring paralegal was driving around in a Mercedes.

But she called Mr. Hopwood’s references, including the former solicitor general. “You don’t get through to Seth Waxman,” Ms. Billotte said. But she did, and Mr. Waxman confirmed the facts and offered his endorsement.

“We did take a risk, but we have no second thoughts,” Ms. Billotte said. “Zero regrets.”

Mr. Hopwood, who is 34, said he hopes to apply to law school next year. Richard Friedman, a law professor at the University of Michigan who worked with Mr. Hopwood on the briefs for a recent Supreme Court case, said that he has already talked to the admissions office there about saving a spot.

Mr. Hopwood’s personal life is looking up, too. He was married in August, and he and his wife had a son on Christmas Day.

Mr. Hopwood takes nothing lightly, Professor Friedman said. “His gratitude for the quality of his life,” the professor said, “is that of someone who has come back from a near-death experience.”

Mr. Hopwood continues to work on Supreme Court petitions. The latest one was filed in December, for a prisoner in Virginia who said his Miranda rights had been violated.

Last month, the solicitor general’s office, led by Elena Kagan, a former dean of the Harvard Law School, asked for and received an extra month to try to rebut the arguments of the paralegal from Omaha.

    A Mediocre Criminal, but an Unmatched Jailhouse Lawyer, NYT, 9.2.2010, http://www.nytimes.com/2010/02/09/us/09bar.html

Sidebar

After 34 Years, a Plainspoken Justice Gets Louder

January 26, 2010
The New York Times
By ADAM LIPTAK

WASHINGTON

The Supreme Court announced its big campaign finance decision at 10 in the morning last Thursday. By 10:30 a.m., after Justice Anthony M. Kennedy had offered a brisk summary of the majority opinion and Justice John Paul Stevens labored through a 20-minute rebuttal, a sort of twilight had settled over the courtroom.

It seemed the Stevens era was ending.

Justice Stevens, who will turn 90 in April, joined the court in 1975 and is the longest-serving justice by more than a decade. He has given signals that he intends to retire at the end of this term, and his dissent on Thursday was shot through with disappointment, frustration and uncharacteristic sarcasm.

He seemed weary, and more than once he stumbled over and mispronounced ordinary words in the lawyer’s lexicon — corruption, corporation, allegation. Sometimes he would take a second or third run at the word, sometimes not.

But there was no mistaking his basic message. “The rule announced today — that Congress must treat corporations exactly like human speakers in the political realm — represents a radical change in the law,” he said from the bench. “The court’s decision is at war with the views of generations of Americans.”

That was the plainspoken style of the last years of Justice Stevens’s tenure. In cases involving prisoners held without charge at Guantánamo Bay and the mentally retarded on death row, his version of American justice was propelled by common sense and moral clarity, and it commanded a majority. He was on the short end of the 2008 decision finding that the Second Amendment protected an individual right to bear arms, and he had mixed success in fighting what he saw as illegitimate justifications for discrimination against African-Americans, women and homosexuals.

Justice Stevens is the leader of the court’s liberal wing, and its three other members — Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor — all joined his 90-page dissent. They must have been tempted to write separately as well, as the case was bristling with issues of particular interest to all of them. Instead, they allowed the spotlight to shine solely on Justice Stevens.

There was no such solidarity among the conservatives. Though Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. all joined Justice Anthony M. Kennedy’s majority opinion on its main point, three of them added separate concurrences.

In his dissent, Justice Stevens said no principle required overruling two major campaign finance precedents. “The only relevant thing that has changed since” those two decisions, he wrote, “is the composition of this court.”

In Justice Stevens’s early years on the court, his views often seemed idiosyncratic, and he would often write separate opinions joined by no other justice. Over the years, though, he has emerged as a master tactician, and he came to use his seniority to great advantage. The senior justice in the majority has the power to assign the majority opinion, and Justice Stevens used that power with patience and skill.

This term, though, Justice Stevens has been more of a loner. Thursday’s decision, Citizens United v. Federal Election Commission, was only the 10th signed decision of the term. In the previous nine, Justice Stevens wrote separately and only for himself three times. On a fourth occasion, he was joined only by Justice Kennedy.

A theme ran through these recent opinions: that the Supreme Court had lost touch with fundamental notions of fair play. In two of the cases, Justice Stevens lashed out at the court’s failure to condemn what he called shoddy work by defense lawyers in death penalty cases.

On Wednesday, in Wood v. Allen, Justice Stevens dissented from a majority decision that said that a lawyer fresh out of law school had made a reasonable strategic choice in not pursuing evidence that his client was mentally retarded.

“A decision cannot be fairly characterized as ‘strategic’ unless it is a conscious choice between two legitimate and rational alternatives,” Justice Stevens wrote. “It must be borne of deliberation and not happenstance, inattention, or neglect.”

He made a similar point this month in a second capital case, Smith v. Spisak.

“It is difficult to convey how thoroughly egregious counsel’s closing argument was,” Justice Stevens wrote of a defense lawyer’s work. “Suffice it to say that the argument shares far more in common with a prosecutor’s closing than with a criminal defense attorney’s. Indeed, the argument was so outrageous that it would have rightly subjected a prosecutor to charges of misconduct.”

In the second case, Justice Stevens did vote to uphold the death sentence, saying that even a closing argument worthy of Clarence Darrow would not have spared the defendant.

That carefully calibrated distinction was of a piece with the view he announced in 2008 in Baze v. Rees, when he said he had come to the conclusion that the death penalty violates the Eighth Amendment. But he went on to say that his conclusion did not justify “a refusal to respect precedents that remain a part of our law.”

Thursday’s decision in the Citizens United case was more full-throated.

“The majority blazes through our precedents,” he wrote, “overruling or disavowing a body of case law” that included seven decisions.

Justice Stevens, who served in the Navy during World War II, reached back to those days to show the depth of his outrage at the majority’s conclusion that the government may not make legal distinctions based on whether a corporation or a person was doing the speaking.

“Such an assumption,” he wrote, “would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders.”

The reference to Tokyo Rose was probably lost on many of Justice Steven’s readers. But the concluding sentence of what may be his last major dissent could not have been clearer.

“While American democracy is imperfect,” he wrote, “few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics.”

    After 34 Years, a Plainspoken Justice Gets Louder, NYT, 26.1.2010, http://www.nytimes.com/2010/01/26/us/26bar.html

Editorial

The Court’s Blow to Democracy

January 22, 2010
The New York Times

With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century. Disingenuously waving the flag of the First Amendment, the court’s conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.

Congress must act immediately to limit the damage of this radical decision, which strikes at the heart of democracy.

As a result of Thursday’s ruling, corporations have been unleashed from the longstanding ban against their spending directly on political campaigns and will be free to spend as much money as they want to elect and defeat candidates. If a member of Congress tries to stand up to a wealthy special interest, its lobbyists can credibly threaten: We’ll spend whatever it takes to defeat you.

The ruling in Citizens United v. Federal Election Commission radically reverses well-established law and erodes a wall that has stood for a century between corporations and electoral politics. (The ruling also frees up labor unions to spend, though they have far less money at their disposal.)

The founders of this nation warned about the dangers of corporate influence. The Constitution they wrote mentions many things and assigns them rights and protections — the people, militias, the press, religions. But it does not mention corporations.

In 1907, as corporations reached new heights of wealth and power, Congress made its views of the relationship between corporations and campaigning clear: It banned them from contributing to candidates. At midcentury, it enacted the broader ban on spending that was repeatedly reaffirmed over the decades until it was struck down on Thursday.

This issue should never have been before the court. The justices overreached and seized on a case involving a narrower, technical question involving the broadcast of a movie that attacked Hillary Rodham Clinton during the 2008 campaign. The court elevated that case to a forum for striking down the entire ban on corporate spending and then rushed the process of hearing the case at breakneck speed. It gave lawyers a month to prepare briefs on an issue of enormous complexity, and it scheduled arguments during its vacation.

Chief Justice John Roberts Jr., no doubt aware of how sharply these actions clash with his confirmation-time vow to be judicially modest and simply “call balls and strikes,” wrote a separate opinion trying to excuse the shameless judicial overreaching.

The majority is deeply wrong on the law. Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights. It is an odd claim since companies are creations of the state that exist to make money. They are given special privileges, including different tax rates, to do just that. It was a fundamental misreading of the Constitution to say that these artificial legal constructs have the same right to spend money on politics as ordinary Americans have to speak out in support of a candidate.

The majority also makes the nonsensical claim that, unlike campaign contributions, which are still prohibited, independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” If Wall Street bankers told members of Congress that they would spend millions of dollars to defeat anyone who opposed their bailout, and then did so, it would certainly look corrupt.

After the court heard the case, Senator John McCain told reporters that he was troubled by the “extreme naïveté” some of the justices showed about the role of special-interest money in Congressional lawmaking.

In dissent, Justice John Paul Stevens warned that the ruling not only threatens democracy but “will, I fear, do damage to this institution.” History is, indeed, likely to look harshly not only on the decision but the court that delivered it. The Citizens United ruling is likely to be viewed as a shameful bookend to Bush v. Gore. With one 5-to-4 decision, the court’s conservative majority stopped valid votes from being counted to ensure the election of a conservative president. Now a similar conservative majority has distorted the political system to ensure that Republican candidates will be at an enormous advantage in future elections.

Congress and members of the public who care about fair elections and clean government need to mobilize right away, a cause President Obama has said he would join. Congress should repair the presidential public finance system and create another one for Congressional elections to help ordinary Americans contribute to campaigns. It should also enact a law requiring publicly traded corporations to get the approval of their shareholders before spending on political campaigns.

These would be important steps, but they would not be enough. The real solution lies in getting the court’s ruling overturned. The four dissenters made an eloquent case for why the decision was wrong on the law and dangerous. With one more vote, they could rescue democracy.

    The Court’s Blow to Democracy, NYT, 22.1.2010, http://www.nytimes.com/2010/01/22/opinion/22fri1.html

Justices Overturn Key Campaign Limits

January 22, 2010
The New York Times
By ADAM LIPTAK

WASHINGTON — Sweeping aside a century-old understanding and overruling two important precedents, a bitterly divided Supreme Court on Thursday ruled that the government may not ban political spending by corporations in candidate elections.

The ruling was a vindication, the majority said, of the First Amendment’s most basic free speech principle — that the government has no business regulating political speech. The dissenters said allowing corporate money to flood the political marketplace will corrupt democracy.

The 5-to-4 decision was a doctrinal earthquake but also a political and practical one. Specialists in campaign finance law said they expected the decision, which also applies to labor unions and other organizations, to reshape the way elections are conducted.

“If the First Amendment has any force,” Justice Anthony M. Kennedy wrote for the majority, which included the four members of its conservative wing, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

Justice John Paul Stevens read a long dissent from the bench. He said the majority had committed a grave error in treating corporate speech the same as that of human beings. His decision was joined by the other three members of the court’s liberal wing.

Senator Mitch McConnell, the Republican leader and a longtime opponent of broader campaign-finance restrictions, praised the Court’s decision. In a statement Thursday he called it “an important step in the direction of restoring the First Amendment rights of these groups by ruling that the Constitution protects their right to express themselves about political candidates and issues up until Election Day.”

“By previously denying this right, the government was picking winners and losers,” he said.

The case had unlikely origins. It involved a documentary called “Hillary: The Movie,” a 90-minute stew of caustic political commentary and advocacy journalism. It was produced by Citizens United, a conservative nonprofit corporation, and was released during the Democratic presidential primaries in 2008.

Citizens United lost a suit that year against the Federal Election Commission, and scuttled plans to show the film on a cable video-on-demand service and to broadcast television advertisements for it. But the film was shown in theaters in six cities, and it remains available on DVD and the Internet.

The lower court said the Bipartisan Campaign Reform Act of 2002, usually called the McCain-Feingold law, prohibited the planned broadcasts. The law bans the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations in the 30 days before a presidential primary and in the 60 days before the general election. That leaves out old technologies, like newspapers, and new ones, like YouTube.

The law, as narrowed by a 2007 Supreme Court decision, applies to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” It also requires spoken and written disclaimers in the film and advertisements for it, along with the disclosure of contributors’ names.

The lower court said the film was a prohibited electioneering communication with one purpose: “to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world and that viewers should vote against her.”

The McCain-Feingold law does contain an exception for broadcast news reports, commentaries and editorials.

When the case was first argued last March, it seemed a curiosity likely to be decided on narrow grounds. The court could have ruled that Citizens United was not the sort of group to which the McCain-Feingold law was meant to apply, or that the law did not mean to address 90-minute documentaries, or that video-on-demand technologies were not regulated by the law. Thursday’s decision rejected those alternatives.

Instead of deciding the case in June, the court set down the case for a rare re-argument in September. It now asked the parties to address the much more consequential question of whether the court should overrule a 1990 decision, Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates, along with part of McConnell v. Federal Election Commission, the 2003 decision that upheld the central provisions of the McCain-Feingold campaign finance law.

On Thursday, the court answered its own questions with a resounding yes.

    Justices Overturn Key Campaign Limits, NYT, 22.1.2010, http://www.nytimes.com/2010/01/22/us/politics/22scotus.html

    Related > http://www.nytimes.com/2010/01/22/us/politics/22scotus.html

Sidebar

Justices Better at Precedent Than Prescience

January 19, 2010
The New York Times
By ADAM LIPTAK

WASHINGTON

The Supreme Court’s main strength lies in adjudicating disputes based on things that have already happened. It is less good at predicting the future.

On Wednesday, for instance, it shut down plans to broadcast the same-sex marriage trial in San Francisco partly for fear that witnesses in the case would be harassed if their public testimony were made more public. That conclusion is known in the trade as speculation.

Consider first of all that we are talking about a trial held in open court and subject to intense press coverage. The witnesses are mostly paid experts whose views on the subject are already well known. “They’re not, after all, in the witness protection program testifying against Mafia bosses,” Eva Rodriguez wrote in The Washington Post.

Then add to the analysis that the additional coverage the court forbade was only closed-circuit transmissions to a few other federal courthouses around the country. (There had been talk of posting video on YouTube, but the idea was never approved and so was not before the Supreme Court.)

The people viewing the transmissions in the remote courthouses would have been barred from making recordings of the proceedings. Allowing the transmissions, Eugene Volokh wrote on The Volokh Conspiracy legal blog, was equivalent to “holding the trial in an extra large courtroom.”

“And most of the extra audience would be far from California,” Mr. Volokh added, “and therefore not especially likely to be able to effectively harass the witnesses in ways that turn on seeing the witness’s testimony.”

There were other grounds for the court’s 5-to-4 decision, including the majority’s sense that lower-court judges in California have twisted the procedural rules to allow video coverage, a point that resonated with Ms. Rodriguez and other commentators. But the court also grounded its ruling on a finding that opponents of same-sex marriage “have demonstrated that irreparable harm would likely result” from the transmissions.

The Supreme Court was also trying to see into the future last Monday, at arguments over when and how to require testimony from crime lab analysts.

When the court first ruled in June that prosecutors may not submit reports from such labs without accompanying testimony, the four dissenting justices warned that the decision would impose a “crushing burden” on prosecutors. Several of them repeated that point Monday.

“I don’t know except anecdotally,” Justice Stephen G. Breyer said, “but Massachusetts seems to be having huge problems.”

That depends on whom you talk to.

The chief trial counsel of the district attorney’s office in Boston, which handles about half of the state’s drug cases, told a symposium at the New England School of Law in November that “the sky is not falling.”

“Despite the dire predictions,” the prosecutor, Patrick M. Haggan, said, “defendants have not walked free. In the vast majority of cases where we have been required to produce the analyst’s live testimony, we’ve had that analyst there.”

But dire prediction sometimes seems the court’s default rhetorical mode.

Chief Justice John G. Roberts Jr., dissenting from a decision about judicial disqualification in June, said the majority opinion would “inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be.”

That overstated the decision’s likely effect, Penny J. White, a former judge who is now a law professor at the University of Tennessee wrote in The Harvard Law Review in November. She said there would be no “onslaught of judicial recusal motions,” basing her view “on my experience as a state trial and appellate judge and my interaction as a judicial educator with judges from all 50 states.”

Other predictions can turn out to be prescient or perhaps self-fulfilling.

Justice Scalia, dissenting in 2003 in Lawrence v. Texas, said the majority’s decision striking down a state law making gay sex a crime would start a march toward the legalization of same-sex marriage.

“Today’s opinion,” he wrote, “dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.”

The Lawrence decision’s reasoning was, indeed, cited by the state supreme courts of Massachusetts, California, Connecticut and Iowa in endorsing same-sex marriage.

Pamela Harris, executive director of the Supreme Court Institute at Georgetown University, said the dire dissent can be a double-edged sword.

“It makes the dissent’s case in a rhetorically effective way that can capture public attention,” she said. But “the dissenters almost necessarily end up endorsing a broad reading of a ruling they don’t like. I think you sometimes see justices refraining from writing those ‘end of the world’ dissents for just this reason.”

Poor predictions are not confined to dissents. Writing for eight justices in Clinton v. Jones, the 1997 decision allowing a sexual harassment case against President Bill Clinton to move forward, Justice John Paul Stevens confidently asserted that “it appears to us highly unlikely to occupy any substantial amount” of Mr. Clinton’s time. The aftermath of the decision dominated much of Mr. Clinton’s second term.

Justice Stevens also made a prediction in his dissent in Bush v. Gore, the 2000 decision that handed the presidency to George W. Bush.

“Although we may never know with complete certainty the identity of the winner of this year’s presidential election,” he wrote, “the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”

The prediction, too, turned out to be wrong, said Lee Epstein, who teaches law and political science at Northwestern. “Political scientists have shown,” she said, “that the court’s legitimacy didn’t suffer in the wake of the decision.”

    Justices Better at Precedent Than Prescience, NYT, 19.1.2010, http://www.nytimes.com/2010/01/19/us/19bar.html