History > 2011 > USA > Supreme Court (I)

John Darkow

The Columbia Daily Tribune

Missouri

Cagle

1 July 2011

The Bill of Rights

Doesn’t Come Cheap

December 1, 2011
The New York Times
By JEFFREY L. FISHER

Palo Alto, Calif.

ON Tuesday, the Supreme Court will hear oral arguments in Williams v. Illinois, the latest in a string of cases addressing whether the Sixth Amendment’s confrontation clause — which gives the accused in a criminal case the right “to be confronted with the witnesses against him” — applies to forensic analysts who produce reports for law enforcement. In other words, should an analyst responsible for, say, a fingerprint report have to show up at trial to face questions about the report?

A logical application of the law produces an easy answer: Yes. The court has defined a “witness against” a defendant as a person who provides information to law enforcement to aid a criminal investigation. That is exactly what forensic analysts do.

Subjecting forensic analysts to cross-examination is also good policy. According to a recent National Academy of Sciences study, forensic science is not nearly as reliable as it is perceived to be. DNA specimens, for instance, are sometimes contaminated; fingerprint, ballistics and even run-of-the-mill drug and alcohol analyses depend on human interpretation and thus are subject to error. Worse, investigations over the past decade have revealed outright incompetence and fraud in many crime labs. So it makes sense to subject the authors of lab reports to cross-examination — a procedure the court has called “the greatest legal engine ever invented for the discovery of truth.”

Despite all this, the Supreme Court has been sharply divided on the issue. In similar cases in 2009 and earlier this year, in which I represented the defendants, Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer and Samuel A. Alito Jr. accepted claims by state governments that, simply put, confrontation in this context costs too much. It is far more efficient, these justices contend, to let analysts simply mail their reports to court. Having to appear at trials pulls them away from their labs, and only occasionally proves more revealing than their written testimony. Hence, these justices maintain, “scarce state resources” are better committed elsewhere.

Given that several states have long required forensic analysts to come to court, one might think that this financial argument would not have gained much traction. Justice Antonin Scalia, in fact, called the argument a “bogeyman.” But the four dissenting justices not only accepted it but deemed it powerful enough to trump the commands of constitutional text and precedent.

The same battle lines are being drawn again in the case to be heard next week (for which I have signed a friend-of-the-court brief in support of the defendant). In Williams v. Illinois, the defendant contends that he should have been given the right to confront an analyst in the lab that generated a DNA profile from the crime scene. Yet the State of Illinois argues that the extra cost of bringing that witness into court was unnecessary, because the defendant had an opportunity to question a different analyst who compared that profile to the defendant’s and concluded that it was a match.

A friend-of-the-court brief by the Manhattan district attorney’s office pushes the state’s argument one step further, warning that a ruling in the defendant’s favor would prove so costly that it would “force prosecutors to forgo forensic DNA analysis” in future cases. Consequently, the brief continues, defendants in rape and murder cases “might well be prosecuted solely on the basis of eyewitness testimony,” which is notoriously unreliable and could lead to convictions of many “innocent individuals.”

This is an outrageous assertion. Nothing in the outcome of the Williams case, which deals only with the admissibility of evidence, will preclude prosecutors from using DNA testing to determine whether they have the right guy. Presumably, prosecutors concerned about whether they imprison (or, in some states, execute) innocent people will continue to do such testing whenever possible, no matter how much it will cost to enter the results as evidence.

But the assertion in the Manhattan district attorney’s brief reflects — in a particularly dramatic way — some prosecutors’ belief that they can bully the court into refusing to enforce a constitutional guarantee simply by arguing that such enforcement would be an administrative and financial burden.

There’s nothing new here. In the 1963 case of Gideon v. Wainwright, Alabama and several other states filed a brief urging the court to refrain from interpreting the Sixth Amendment’s guarantee of the “assistance of counsel” to require states to provide lawyers to poor defendants accused of felonies. The brief said such a rule would impose on states “an unbearably onerous financial burden to pay the fees of attorneys.”

The court, of course, was not moved. States have adapted. And the Gideon case has become a cornerstone of American jurisprudence. It’s almost impossible now to imagine how a trial could be considered fair without that basic procedural guarantee.

The court should follow this lesson in Williams and refuse to be cowed by prosecutorial bogeymen. It unquestionably costs money to deliver the fundamental demands of justice. But the price is not nearly so high as the states usually claim. And the price of failing to enforce basic procedural rights is, in the long run, much higher.

 

Jeffrey L. Fisher is an associate professor of law at Stanford.

    The Bill of Rights Doesn’t Come Cheap, NYT, 1.12.2011,
    http://www.nytimes.com/2011/12/02/opinion/forensic-analysts-should-defend-reports-in-court.html

Health Care and the States

November 22, 2011
The New York Times


In reviewing the constitutionality of health care reform, the Supreme Court said it would consider the legality of the Medicaid expansion included in the reform law. The question seems narrow, but it could have significant implications for redefining Congress’s spending power.

The only appellate court that even addressed this question, the United States Court of Appeals for the 11th Circuit, rejected the constitutional challenge. Having taken up the question, the Supreme Court should affirm that ruling. It would be a serious mistake for the court to use this case to restrict Congress’s authority by placing any additional requirements for the commitment of federal money.

The Constitution’s spending clause gives Congress the power to pay debts and “provide for the common defense and general welfare” of the country. In 1987, the Supreme Court held that when Congress provides money to a state, it has broad power to require states to meet conditions related to the money — as long as the spending serves the general welfare and meets other restrictions.

The health care reform law does just that. In expanding the number of people eligible for Medicaid and raising the minimum coverage, it requires states to pay for 10 percent of the added cost or else lose all federal financing for Medicaid. As the 11th Circuit said, Congress made clear when Medicaid was passed in 1965 that it reserved the right to change the program. It has done so many times without any court striking down any change as coercive.

The health law gives states until 2014 to decide whether they will adopt the expansion and develop new budgets to finance a program replacing Medicaid. “If states bear little of the cost of expansion,” the appeals court said, then “the idea that states are being coerced into spending money in an ever-growing program seems” overblown.

The coercion argument, which is a favorite of states’ rights proponents, rests on the premise that Congress’s power under the spending clause is by definition quite limited. That erroneous idea held sway on the Supreme Court in the 1930s before it was discredited. If it accepts the coercion argument now, the Supreme Court would basically usurp Congress’s authority to determine the nature and scope of federal spending for the general welfare.

This issue matters because a lot of major federal laws carry conditions that apply to the states and other institutions. For example, any state receiving federal funds — whether for agriculture or housing — is prohibited from discriminating on race, color or national origin under the Civil Rights Act. Likewise, any education institution that accepts federal funds cannot discriminate based on gender under Title IX of the federal education law. While some forms of discrimination are prohibited by the Constitution, these federal statutes impose additional duties of enforcement and spell out penalties for not complying.

Curbing Congress’s power to impose conditions on the disbursement of federal money would upend settled precedent. Such a move by the court would invite litigation and uncertainty that would harm all governments, federal and state.

    Health Care and the States, NYT, 22.11.2011,
    http://www.nytimes.com/2011/11/23/opinion/health-care-reform-and-the-states.html

Reneging on Justice at Guantánamo

November 19, 2011
The New York Times

In 2008, the Supreme Court ruled that Guantánamo Bay prisoners who are not American citizens have the right of habeas corpus, allowing them to challenge the legality of their detention in federal court and seek release.

The power of the ruling, however, has been eviscerated by the Court of Appeals for the District of Columbia Circuit. The appellate court’s wrongheaded rulings and analyses, which have been followed by federal district judges, have reduced to zero the number of habeas petitions granted in the past year and a half.

The Supreme Court must reject this willful disregard of its decision in Boumediene v. Bush, and it can do so by reviewing the case of Adnan Farhan Abd Al Latif, a Yemeni citizen imprisoned at Guantánamo Bay since 2002.

This month, the appeals court declassified an opinion it issued in October that reversed a Federal District Court decision ordering Mr. Latif’s release. The appellate court improperly replaced the trial court’s factual findings with its own factual judgments. It also unfairly placed the burden on Mr. Latif to rebut the presumption that the government’s main evidence was accurate: the government should bear the burden of proving by a preponderance of the evidence that his detention is warranted.

It is undisputed that Mr. Latif was in a car accident in Yemen in 1994 and sustained head injuries. In 2001, he went to Pakistan to seek free medical treatment, and eventually traveled to Kabul to find a Yemeni man who had promised to help him. He was arrested near the border between Pakistan and Afghanistan and transferred to Guantánamo Bay, where he has been imprisoned without a trial. The government contends that Mr. Latif was recruited by an Al Qaeda operative and fought with the Taliban.

The federal trial judge found that the government’s evidence did not sufficiently support its contention, that incriminating evidence was not corroborated and that Mr. Latif had a plausible alternative explanation for his travels.

The appeals court reversed that decision, arguing that the government’s intelligence report on the Latif case should have been given “a presumption of regularity” and that unless there is “clear evidence to the contrary,” trial judges must presume that this kind of report is accurate. But as the strong dissent by Judge David Tatel explains, there is no reason to make such an assumption about the report, which was “produced in the fog of war, by a clandestine method that we know almost nothing about.”

In ruling on 15 habeas cases since mid-2010, the appellate court has made the standard of review toothless, and its views have affected lower court rulings. Since July 2010, district judges have denied 10 habeas petitions in Guantánamo cases and granted none, compared with 22 habeas petitions granted and 15 denied in the two years before that.

Judge Tatel writes that it is “hard to see what is left of the Supreme Court’s command” that habeas review in federal court be “meaningful.” The appeals court has gone off on the wrong track. The justices need to reaffirm the right of prisoners in Guantánamo to seek justice in federal court and to explain firmly and clearly what that entails.

    Reneging on Justice at Guantánamo, NYT, 19.11.2011,
    http://www.nytimes.com/2011/11/20/opinion/sunday/reneging-on-justice-at-guantanamo.html

Health Reform and the Supreme Court

November 14, 2011
The New York Times

The Supreme Court’s decision to review the constitutionality of health care reform means it will be issuing a ruling in the middle of the 2012 presidential campaign. This can be a highly politicized court, and, for the public good and its own credibility, it must resist that impulse.

If the court follows its own precedents, as it should, this case should not be a close call: The reform law and a provision requiring most people to obtain health insurance or pay a penalty are clearly constitutional.

The court agreed to hear appeals from a ruling by the United States Court of Appeals for the 11th Circuit, which struck down the individual mandate to buy health insurance but left other parts of the law standing. Opponents of the law contend that Congress went beyond its authority in the reform measure. But Congress, under the commerce clause, plainly has the power to regulate the national health care market.

Almost everyone needs health care at some point, and if uninsured people are unable to pay steep medical bills they will get charity care that shifts the costs to others, whose insurance premiums go up to cover the cost of the free riders. There is no denying the health care market is interconnected and that individuals’ decisions to purchase insurance — or not — affects the whole system.

Republican-appointed judges on two appellate courts have found the insurance mandate constitutional. They have cogently pointed out that past Supreme Court decisions have upheld federal laws that were much more intrusive on personal liberty and involved activities less clearly relevant to interstate commerce. These include rulings on laws that prohibit a farmer growing wheat for his own family’s use and a woman growing marijuana for her own medicinal use. There is also no doubt that Congress has the authority to set minimum-wage rates and other laws that affect an individual’s economic decisions. As Judge Laurence Silberman of the United States Court of Appeals for the District of Columbia Circuit wrote last week in upholding the health reform law, “the right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local — or seemingly passive — their individual origins.”

In addition to reviewing the mandate, the Supreme Court will also consider three other questions: whether other parts of the law are voided if the mandate is struck down; whether a decision must be put off until 2015 when the first penalties by noncompliant individuals would be paid; and whether Congress can require states to expand Medicaid programs in 2014.

If the justices were to strike down the mandate, they would have to consider whether that provision can be eliminated without excising some or all of the rest of the law. Without the mandate, it will be difficult for health insurers to accept all applicants and charge them premiums without regard to their health status. But there is no constitutional reason to strike down those other popular insurance reforms.

The reform law’s expansion of Medicaid coverage to many individuals who are not now covered also has been challenged by the states as unconstitutional coercion because they claim to have no option but to comply. In rejecting that argument, the 11th Circuit noted that the federal government would bear most of the costs of the program’s expansion. Moreover, it found that the states had ample powers to develop alternative programs if they want to drop out of Medicaid.

All of these issues are best resolved in the political system, not the courts. The Supreme Court ought to show judicial restraint, adhere to precedent and uphold the constitutionality of health care reform.

    Health Reform and the Supreme Court, NYT, 14.11.2011,
    http://www.nytimes.com/2011/11/15/opinion/health-reform-and-the-supreme-court.html

Justices to Hear Health Care Case as Race Heats Up

November 14, 2011
The New York Times
By ADAM LIPTAK

WASHINGTON — The Supreme Court on Monday agreed to hear a challenge to the 2010 health care overhaul law, President Obama’s signature legislative achievement, setting the stage for oral arguments by March and a decision in late June as the 2012 presidential campaign enters its crucial final months.

The decision to hear the case prompted confident assertions from each side that it was sure to prevail, and gave rise to calculations about the complicated political impact of possible rulings.

The range of issues the court agreed to address amounted to a menu of possible resolutions: the justices could uphold the law, strike down just its most controversial provision or some or all of the rest of it, or duck a definitive decision entirely as premature.

Whatever the outcome, the tensions running through the case — between the 26 states challenging the law and the federal government, and between Mr. Obama and the Supreme Court led by Chief Justice John G. Roberts Jr. — are likely to give rise to both a political and constitutional blockbuster.

The court’s decision to step in had been expected, but Monday’s order answered many questions about just how the case would proceed. Indeed, it offered a road map toward a ruling that will help define the legacy of the Roberts court while focusing renewed political attention on the law that has sharply divided Republicans and Democrats.

The court scheduled five and a half hours of arguments instead of the usual one, a testament to the importance of the case, and the court’s ruling a few months later will present opportunities and challenges for the presidential contenders as well as for candidates in the battle for control of Congress.

It is hardly clear, for instance, that a Supreme Court ruling upholding the law would help only Mr. Obama, as opponents of the law might redouble their efforts to elect candidates committed to repealing it. And a decision striking down the law might allow Mr. Obama to court voters unhappy with the Supreme Court’s decisions as he did in cases like Citizens United, which allowed unlimited campaign spending from corporations and unions. Appeals from three courts had been vying for the justices’ attention, presenting an array of issues beyond the central one of whether Congress has the constitutional power to require people to purchase health insurance or face a penalty through the so-called individual mandate.

The Supreme Court agreed to hear appeals from just one decision, from the United States Court of Appeals for the 11th Circuit, in Atlanta, the only one so far striking down the mandate. The decision, from a divided three-judge panel, said the mandate overstepped Congressional authority and could not be justified by the constitutional power “to regulate commerce” or “to lay and collect taxes.”

The appeals court went no further, though, severing the mandate from the rest of the law.

On Monday, the justices agreed to decide not only whether the mandate is constitutional but also, if it is not, how much of the balance of the law, the Patient Protection and Affordable Care Act, must fall along with it.

But even the Obama administration has said that the mandate is “absolutely intertwined” with two other provisions — one forbidding insurers to turn away applicants, and the other barring them from taking account of pre-existing conditions.

In a statement issued soon after the decision, the administration reaffirmed its position that the Constitution permitted Congress to enact the mandate.

“We know the Affordable Care Act is constitutional and are confident the Supreme Court will agree,” said Dan Pfeiffer, the White House communications director.

Pam Bondi, Florida’s attorney general, said she welcomed the court’s prompt action in agreeing to review the 11th Circuit’s decision, in which her state was the lead plaintiff.

“Throughout this case,” Ms. Bondi said, “we have urged swift judicial resolution because of the unprecedented threat that the individual mandate poses to the liberty of Americans simply because they live in this country.”

Representative Nancy Pelosi of California, the House Democratic leader, said a decision upholding the law would mean that “Americans will benefit from lower health care costs and greater access to high-quality medical care.”

But leading opponents of the law said they were confident they would triumph.

“It is high time for the high court to strike down this unconstitutional, unworkable and unpopular law,” said Randy E. Barnett, a law professor at Georgetown.

The 11th Circuit did rule against Florida and the other states on one of their other central arguments, rejecting a challenge to the law’s expansion of the Medicaid program.

The Supreme Court also agreed to hear an appeal from that ruling.

The states, represented by Paul D. Clement, a former United States solicitor general, argued that Congress had exceeded its constitutional authority by expanding the eligibility and coverage thresholds that states must adopt to remain eligible to participate in Medicaid.

The problem, Mr. Clement wrote, was that “Congress did not tie its new conditions only to those additional federal funds made newly available under” the Affordable Care Act. “It instead made the new terms a condition of continued participation in Medicaid, thereby threatening each state with the loss of all federal Medicaid funds — on average, more than a billion dollars per year — unless it adopts the act’s substantial expansions of state obligations.”

The justices also said they would consider an intriguing threshold issue that could conceivably postpone any definitive ruling on the mandate until 2015.

In September, a divided three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled that it was premature to decide the case in light of the Anti-Injunction Act, a federal law that bars suits “for the purpose of restraining the assessment or collection of any tax.” The Supreme Court had interpreted the term “tax” very broadly for purposes of the law.

If the Fourth Circuit ruling is correct, individuals may not challenge the individual mandate until the first penalty is due in April 2015.

On Nov. 8, a dissenting judge on the United States Court of Appeals for the District of Columbia Circuit also endorsed that position.

The administration had initially pressed but later abandoned the argument.

In the Supreme Court, the Justice Department suggested that the court consider the issue and perhaps appoint a lawyer to present arguments in favor of it, as the court occasionally does when the parties agree on a significant issue that could alter the outcome of the eventual decision. The court did not say on Monday whether it would make such an appointment, but the prospect seems likely.

The justices will hear two hours of argument on whether Congress overstepped its constitutional authority, 90 minutes on whether the mandate may be severed from the balance of the law if Congress did go too far, and an hour each on the Medicaid and Anti-Injunction Act questions.

In all, the Supreme Court agreed to hear three appeals, two from challengers to the law and a third from the Obama administration.

The appeals involving the 26 states is known as Florida v. Department of Health and Human Services, No. 11-400. A second challenge, from a business group and two individuals, is called National Federation of Independent Business v. Sebelius, No. 11-393. The federal government’s appeal is Department of Health and Human Services v. Florida, No. 11-398.

There was no indication in Monday’s order that any of the justices had decided to disqualify themselves from the case. Such a notation is customary when justices have decided not to participate.

There have been calls for Justice Clarence Thomas to step aside, based on activities of his wife, Virginia, in groups opposed to the law. Others have said Justice Elena Kagan should not hear the case if she had any involvement in the health care lawsuits when she was United States solicitor general. But she apparently took pains to avoid working on them.

    Justices to Hear Health Care Case as Race Heats Up, NYT, 14.11.2011,
    http://www.nytimes.com/2011/11/15/us/supreme-court-to-hear-case-challenging-health-law.html

Supreme Court to Hear Case Challenging Health Law

November 14, 2011
The New York Times
By ADAM LIPTAK

WASHINGTON — The Supreme Court on Monday agreed to hear a challenge to the 2010 health care overhaul law, President Obama’s signature legislative achievement. The development set the stage for oral arguments by March and a decision in late June, in the midst of the 2012 presidential campaign.

The court’s decision to step in had been expected, but Monday’s order answered many questions about just how the case would proceed. Indeed, it offered a roadmap toward a ruling that will help define the legacy of the Supreme Court under Chief Justice John G. Roberts Jr.

The court scheduled five and half hours of argument instead of the usual one, a testament to the importance of the case, which has as its center an epic clash between the federal government and the 26 states that together filed a challenge to the law.

Appeals from three courts had been vying for the justices’ attention, presenting an array of issues beyond the central one of whether Congress has the constitutional power to require people to purchase health insurance or face a penalty through the so-called individual mandate.

The Supreme Court agreed to hear appeals from just one decision, from the United States Court of Appeals for the 11th Circuit, in Atlanta, the only one so far striking down the mandate. The decision, from a divided three-judge panel, said the mandate overstepped Congressional authority and could not be justified by the constitutional power “to regulate commerce” or “to lay and collect taxes.”

The appeals court went no further, though, severing the mandate from the rest of the law.

On Monday, the justices agreed to decide not only whether the mandate is constitutional but also, if it is not, how much of the balance of the law, the Patient Protection and Affordable Care Act, must fall along with it.

In a statement issued soon after the decision, the Obama administration restated their argument that the mandate is perfectly constitutional.

“We know the Affordable Care Act is constitutional and are confident the Supreme Court will agree,” said Dan Pfeiffer, the White House communications director.

Leading opponents of the law said they were just as confident that they would prevail.

“It is high time for the high court to strike down this unconstitutional, unworkable and unpopular law,” said Randy E. Barnett, a law professor at Georgetown.

But even the White House has said that the mandate is “absolutely intertwined” with two other provisions — one forbidding insurers to turn away applicants, and the other barring them from taking account of pre-existing conditions.

The 11th Circuit ruled for the administration on another point, rejecting a challenge to the law’s expansion of the Medicaid program. The Supreme Court also agreed to hear an appeal from that ruling.

The 26 states that filed the 11th Circuit challenge, represented by Paul D. Clement, a former United States solicitor general, argued that Congress had exceeded its constitutional authority by expanding the eligibility and coverage thresholds that states must adopt to remain eligible to participate in Medicaid.

The problem, Mr. Clement wrote, was that “Congress did not tie its new conditions only to those additional federal funds made newly available under” the Affordable Care Act. “It instead made the new terms a condition of continued participation in Medicaid, thereby threatening each State with the loss of all federal Medicaid funds — on average, more than a billion dollars per year — unless it adopts the act’s substantial expansions of state obligations.”

The justices also said they would consider an intriguing threshold issue.

In September, a divided three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled that it was premature to decide the case in light of the Anti-Injunction Act, a federal law that bars suits “for the purpose of restraining the assessment or collection of any tax.” The Supreme Court had interpreted the term “tax” very broadly for purposes of the law.

If the Fourth Circuit ruling is correct, individuals may not challenge the individual mandate until the first penalty is due in April 2015. On Tuesday, a dissenting judge on the United States Court of Appeals for the District of Columbia Circuit also endorsed that position.

The administration had initially pressed but later abandoned the argument. In the Supreme Court, the Justice Department suggested that the court consider the issue and perhaps appoint a lawyer to present arguments in favor of it, as the court occasionally does when the parties agree on a significant issue that could alter the outcome of the eventual decision.

The justices will hear two hours of argument on whether Congress overstepped its constitutional authority, 90 minutes on whether the mandate may be severed from the balance of the law if Congress did go too far, and an hour each on the Medicaid and Anti-Injunction Act questions.

The Supreme Court agreed to hear three appeals, two from challengers to the law and a third from the Obama administration. The appeals involving the 26 states is known as Florida v. Department of Health and Human Services, No. 11-400. A second challenge, from a business group and two individuals, is called National Federation of Independent Business v. Sebelius, No. 11-393.

The federal government’s appeal is Department of Health

and Human Services v. Florida, No. 11-398.

    Supreme Court to Hear Case Challenging Health Law, NYT, 14.11.2011,
    http://www.nytimes.com/2011/11/15/us/supreme-court-to-hear-case-challenging-health-law.html

Justices Weigh Judges’ Duties to Assess

Reliability of Eyewitness Testimony

November 2, 2011
The New York Times
By ADAM LIPTAK

WASHINGTON — Though studies and lower court decisions have found that eyewitness testimony can be both unusually problematic and unusually persuasive, the Supreme Court on Wednesday did not seem inclined to rule that the Constitution requires judges to view such evidence with special skepticism. Ordinary trial procedures, several justices suggested, should be adequate to address the potential unreliability of eyewitness identifications.

“I understand you have very good empirical evidence which should lead us all to wonder about the reliability of eyewitness testimony,” Justice Elena Kagan told Richard Guerriero, a lawyer for Barion Perry, a New Hampshire man convicted of theft based in part on the testimony of a woman who said she saw him from a distance late at night.

But Justice Kagan and other members of the court appeared troubled by the solution Mr. Perry proposed. He said the Constitution’s due process clause should have allowed him to seek a hearing before a judge to decide whether eyewitness evidence against him should be kept from the jury.

The court’s precedents allow such hearings when the eyewitness identification at issue was the product of a suggestive police lineup or similar official conduct. Mr. Perry said there was similarly problematic suggestiveness in how he was identified, while he was held by the police in a parking lot near stolen goods. But he conceded that the suggestiveness was the product of happenstance and not official conduct.

Most of the justices did not seem inclined to order a hearing in such circumstances, in part because of the lack of a limiting principle. Why stop with eyewitness evidence that was the product of suggestion? Why stop with eyewitness evidence at all?

Or, as Justice Antonin Scalia put it, “Why is unreliable eyewitness identification any different from unreliable anything else?”

Mr. Guerriero responded that eyewitness evidence is “probably the leading cause of miscarriages of justice” and should be treated with special care.

But Justice Kagan said the problems with such evidence may not be unique.

“Eyewitness testimony is not the only kind of testimony which people can do studies on and find that it’s more unreliable than you would think,” Justice Kagan said.

Mr. Guerriero responded that if other forms of evidence can be shown to have contributed to 75 percent of wrongful convictions, as eyewitness evidence has, they might also warrant a closer look.

Justice Ruth Bader Ginsburg also seemed skeptical about the need for a special constitutional rule.

“What about all the other safeguards that you have?” she asked. “You can ask the judge to tell the jury, ‘Be careful; eyewitness testimony is often unreliable.’ You can point that out in cross-examination.”

“You can say something about it in your summation to the jury,” she went on, adding that the rules of evidence, as opposed to the Constitution, also allow the exclusion of some kinds of unreliable evidence.

“Why aren’t all those safeguards enough?” Justice Ginsburg asked.

Justice Anthony M. Kennedy said that “you teach the jury” about how hard it is to make an accurate identification by reminding jurors of a typical experience at a restaurant.

“Has it ever happened to you that midway in the meal you say, is that our waiter?” he said a good lawyer might ask.

Justice Samuel A. Alito Jr. asked a hypothetical question about a woman raped by a masked man in the dark. Weeks later, he continued, the woman sees a photograph in a newspaper of a man arrested for a different rape and recognizes him as her assailant.

Under Mr. Perry’s theory, Justice Alito said, a judge could keep the woman from testifying. “Now, maybe that’s a good system, but that is a drastic change, is it not, from the way criminal trials are now conducted?” he asked.

The justices also mused about other forms of evidence and information, including fingerprints, DNA, crystal balls, tea leaves and information obtained through torture. But they seemed persuaded by a lawyer for the federal government, Nicole A. Saharsky, who argued in support of state prosecutors in the case.

“Taking the question of reliability away from the jury,” Ms. Saharsky said, “would be a very big change in our system.”

The primary point of excluding eyewitness identifications that were prompted by the police, said Michael A. Delaney, New Hampshire’s attorney general, was to deter police misconduct rather than to address unreliable evidence more generally.

Justice Kagan disagreed. “Well, it’s both,” she said. “The court has certainly talked about deterrence, but the court also has very substantial discussions in all of these opinions about reliability. And from the criminal defendant’s point of view, it doesn’t really much matter whether the unreliability is caused by police conduct or by something else.”

By the end of the argument in the case, Perry v. New Hampshire, No. 10-8974, it seemed unlikely that the court was leaning toward adopting the criminal defendant’s point of view.

    Justices Weigh Judges’ Duties to Assess Reliability of Eyewitness Testimony, NYT, 2.11.2011,
    http://www.nytimes.com/2011/11/03/us/supreme-court-weighs-eyewitness-reliability.html

Is Religion Above the Law?

October 17, 2011
9:00 pm
The New York Times
By STANLEY FISH

Stanley Fish on education, law and society.

The religion clause case recently argued before the Supreme Court — Hosanna-Tabor v. EEOC — centers on the “ministerial exception,” the doctrine (elaborated over the last 40 years) that exempts religious associations from complying with neutral, generally applicable laws in some, but not all, circumstances.

In 2005 Cheryl Perich, a teacher in the Hosanna-Tabor Lutheran Evangelical School, returned from an extended sick leave (she had been diagnosed with narcolepsy) to find that her services were no longer wanted. She declined to resign as requested, and after a resolution satisfactory to her was not forthcoming she filed a disability discrimination suit. The church responded by terminating her as a teacher, alleging that its reason was theological, not retaliatory. The Missouri synod, the church explained, requires its adherents to resolve disputes rather than bring suit in civil court; in failing to follow this rule, Perich had transgressed a core Lutheran belief.

The church further argued that as a “commissioned minister” Perich fell under the ministerial exception even though the bulk of her time was spent teaching secular subjects. Perich (through her attorneys) replied that her duties were not primarily religious, and that the assertion of a doctrinal violation was an afterthought devised to serve as a pretext for an act of retaliation in response to her having gone to the courts in an effort to secure her rights.

So the issues are, first, was she a minister in the sense that would bring her under the exception (in which case the state could not intervene to protect her), and, second, was the doctrine the church invoked as the reason for its action truly central to its faith? (There are other issues in play but, as we shall see, two are more than enough.)

The most perspicuous example of a ministerial exception is the Catholic church’s limitation of membership in the priesthood to males. If a university were to have a rule that only men could serve as professors, it would be vulnerable to a suit brought under the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964. The difference (or so it has been asserted) is that there is no relationship between professorial skills and gender — a woman can perform the duties of a teacher of history or chemistry as well as a man — while the tradition of an all-male priesthood is rooted in religious doctrine. So the university would be engaged in discrimination pure and simple, whereas the church’s discrimination is a function of its belief that the all-male priesthood was initiated by Christ in his choice of the apostles.

Were the state to intervene and declare the tradition of an all-male priesthood and the doctrine underlying it unconstitutional, it would be forcing the church to conform to secular norms in violation both of the free exercise clause (the right of a religion to be governed by its own tenets would be curtailed) and the establishment clause (the state would in effect have taken over the management of the church by dictating its hiring practices). (I am rehearsing, not endorsing, these arguments.)

This clear-cut example — to which both sides in Hosanna-Tabor v. EEOC refer frequently — may be the only one (and it is only clear-cut because it has behind it 2,000 years of history). For the question quickly becomes one of boundaries — how far does the ministerial exception extend? To whom does it apply? Not only are there no answers to such questions, it is not obvious who is empowered to ask them.

If the ministerial exemption is to have any bite, there must be a way of distinguishing employees central to a religious association’s core activities from employees who play only a supporting role (the example always given is janitors). But if the line marking the distinction is drawn by the state, the state is setting itself up as the arbiter of ecclesiastical organization and thus falling afoul of the establishment clause. And if the line is drawn by the religious association, the religious association is being granted the power to deprive as many of its employees as it likes of the constitutional protections supposedly afforded to every citizen. It is these equally unpalatable alternatives — this Scylla and Charybdis — that the justices find themselves between in oral argument. What a mess!

It is tempting to bypass the mess by getting rid of the ministerial exception altogether and demanding that churches, synagogues and mosques obey the law just as everyone else does. But that draconian solution would imply that we get rid of the religion clause as well; for it would amount to saying that religion isn’t special, and both sides of the clause insist that it is. The free-exercise clause tells us that that religion is especially favored and the establishment clause tells us that it is especially feared (the state should avoid entanglement with that stuff). How do you honor the claims of free exercise without bumping up against the establishment clause by allowing exceptions to laws that everyone else must follow?

The difficulty is sometimes finessed by cabining free exercise in the private sphere. Free exercise, it is said, is fine as long as its scope is limited to the expression and profession of belief; but once it crosses over into actions the state has a duty to regulate, free exercise must give way to the authority of fair and neutral laws. (This is the holding of a line of cases from Reynolds v. United States [1878] to Employment Division v. Smith [1990].)

This cutting of the joint works fine for a religion that places minimal burdens on its adherents and asks only that they attend to the personal relationship between them and their God. But what about religions that expand the area of faith to include rites the faithful must celebrate and worldly actions they are expected to perform? What about religions that refuse to recognize, and even consider impious, the distinction between the private and the public spheres? Can the state step in and say, “No, you’re wrong; that practice you’re worried about isn’t really essential to your faith; give it up so that a system of laws put in place for everyone isn’t destroyed by exceptions.” Doesn’t society, Justice Sonia Sotomayor asked at oral argument, “have a right at some point to say certain conduct is unacceptable, even if religious?”

The question is, at what point? And who gets to decide when that point has been reached? Indeed there is a question even more basic (and equally unanswerable except by fiat): who gets to say whether a “certain conduct” is religious and centrally so? A resolution of the Hosanna-Tabor case, Justice Samuel Alito observes, “depends on how central a teaching of Lutheranism” the injunction against “suing in a civil tribunal” really is. Before we can decide (he continues) whether the church’s asserted reason for terminating Perich is a pretext, we must determine whether this is in fact “a central tenet of Lutheranism.” And if we decide that it isn’t, wouldn’t we be “making a judgment about the relative importance of the Catholic doctrine that only males can be ordained as priests and the Lutheran doctrine that a Lutheran should not sue the church in civil courts?” And what authorizes the Court to do that in opposition to what the churches themselves say?

The same dilemma attends the other vexed question. How, wonders Chief Justice John Roberts, “do we decide who’s covered by the ministerial exception?” By getting to “the heart of the ministerial exception,” answers Douglas Laycock, speaking for the church. But that is simply to relocate the problem in a phrase that itself demands explication. Who’s to say where the heart is? In some churches, Justice Anthony Kennedy observes, there aren’t “full time ministers at all; they’re all ministers.” So does everyone fall under the exception and can a non-hierarchical church simply declare that none of its members can seek redress for acts of discrimination because they’re all ministers? Just before the oral argument concludes, Justice Sotomayor is still awaiting clarification: “So define minister for me again?”

She will be waiting forever. There is no way out of these puzzles, and that is exactly the conclusion Justice Stephen Breyer reaches: “I just can’t see a way … of getting out of the whole thing.” Justice Alito points to the absurdity of calling in expert witnesses to determine the truth of disputed matters of religion, but, he asks, “How are we going to avoid that? I just don’t see it.” Later he concludes that “you just cannot get away from evaluating religious issues,” which is of course exactly what the courts are not supposed to be doing.

So how will the case turn out? Clearly none of the justices wishes to pronounce as a theologian. And just as clearly none of them is happy with the prospect of a ministerial exception without defined limits. Breyer gestures in the direction of a solution that avoids the hard questions. Grant the Church the core doctrine it cites and inquire into whether Perich was given adequate notice of it. If she was, she loses; if she wasn’t, she wins. But no one will be satisfied with that maneuver, which will itself raise a host of new unanswerable questions in place of the questions supposedly avoided. All these questions were explored by John Locke at length in his “Letter Concerning Toleration” (1689), and at one point Locke gives voice to a weariness we might echo today: Would that “this business of religion were left alone.” But as long as there is a religion clause, that’s not an option.

    Is Religion Above the Law?, NYT, 17.10.2011,
    http://opinionator.blogs.nytimes.com/2011/10/17/is-religion-above-the-law/

An Appeal Gone Astray

Catches the Supreme Court’s Attention

October 4, 2011
The New York Times
By ADAM LIPTAK

WASHINGTON — Cory R. Maples, a death row inmate in Alabama, had what turned out to be the bad fortune to be represented by one of the most prominent law firms in the nation. The Supreme Court heard arguments in his case on Tuesday, and Justice Samuel A. Alito Jr. described where matters stood.

“Mr. Maples has lost his right to appeal through no fault of his own,” Justice Alito said, “through a series of very unusual and unfortunate circumstances.”

When an Alabama court sent two copies of a ruling in Mr. Maples’s case to the New York offices of the law firm, Sullivan & Cromwell, its mailroom sent them back unopened and marked “Return to Sender.” A court clerk in Alabama filed the returned envelopes and did nothing more.

Mr. Maples’s deadline to appeal the ruling came and went, and so far every court to hear his case has said, in effect, tough luck.

Mr. Maples was convicted of murdering two companions after a night of drinking, and his guilt is not in serious dispute. His main argument is that his court-appointed trial lawyers in Alabama failed to present important evidence about his background at the penalty phase of the trial.

Several justices seemed inclined to find a way to help Mr. Maples and appeared to be frustrated by the conduct of Alabama officials.

Justice Alito, for instance, pressed John C. Neiman, Alabama’s solicitor general, about why the state had opposed Mr. Maples’s efforts to have the deadline waived instead of addressing his claims on the merits.

“Why push this technical argument?” Justice Alito asked.

Mr. Neiman did not give a direct answer.

Justice Elena Kagan wondered whether the court clerk should have done more to make sure the ruling was actually received by Mr. Maples’s lawyers in New York.

“Is this what somebody would do if they actually wanted to accomplish notice, if they actually wanted the person to get that letter?” Justice Kagan asked.

“So you send off this letter,” she added, “and you get it back from the principal attorneys, and you ask yourself: ‘Huh, should I do anything now?’ What would you say?”

Mr. Neiman responded, “Your Honor, I suspect that in those circumstances I might well personally do something else.”

Justice Antonin Scalia proposed a wrinkle. “The clerk has to believe it’s an important letter,” he said.

That caveat did not trouble Justice Kagan. “Justice Scalia is right,” she said. “I am assuming that a letter disposing of a ruling in a capital case issued after 18 months when nobody knew that that letter was coming, that that’s an important letter for a death row prisoner to get.”

The ruling came in response to a filing by two lawyers from Sullivan & Cromwell, both associates, who argued that Mr. Maples’s trial lawyers had been ineffective. But the associates had left the firm by the time the state court ruled, and neither they nor the firm had informed the court or, seemingly, the firm’s own mailroom.

Mr. Maples, now represented by Gregory G. Garre of Latham & Watkins, argued that the lawyers from Sullivan & Cromwell had abandoned him and that their mistakes should therefore not be imputed to him.

At one point, Mr. Garre said, the state seemed to acknowledge that Mr. Maples’s lawyers had disappeared. When the deadline for appeals had passed, an Alabama prosecutor wrote directly to Mr. Maples in prison to tell him so, Mr. Garre said, “which would have been unethical if the state had known or believed that he was represented by counsel.”

Chief Justice John G. Roberts Jr. seemed to find that letter both significant and offensive.

“Why did he do it?” Chief Justice Roberts asked. “Just gloating that the fellow had lost? What was the point of it? He must have thought there was a problem, right?”

Mr. Neiman said only that the prosecutor knew that Mr. Maples’s lawyers from Sullivan & Cromwell had failed to file an appeal.

Mr. Maples’s case, Maples v. Thomas, No. 10-63, is complicated by the fact that a third lawyer, in Alabama, had indisputably received the crucial document.

That lawyer said in a sworn statement that he was Mr. Maples’s lawyer in name only, serving as local counsel because the New York lawyers were not licensed to practice in Alabama. He added that he had not passed the ruling along to his co-counsel or to his client.

That did not satisfy Justice Scalia. “He’s the counsel of record, right?” Justice Scalia asked. “I’m counsel of record, but I don’t even do so much as to forward notices to the guys that are doing the real work?”

    An Appeal Gone Astray Catches the Supreme Court’s Attention, NYT, 4.10.2011,
    http://www.nytimes.com/2011/10/05/us/an-appeal-gone-astray-catches-the-supreme-courts-attention.html

As Justices Get Back to Business,

Old Pro Reveals Tricks of the Trade

October 3, 2011
The New York Times
By ADAM LIPTAK

WASHINGTON — Justice John Paul Stevens was always courtly, but he could be a little terse and wary in interviews while he was on the Supreme Court. Since his retirement last year, he has shed some of that reticence, and he was in an expansive and reflective mood the other day as he greeted a visitor to his chambers.

He has come full circle, he explained, returning to the quarters first assigned to him when he joined the court in 1975. His old chambers, now occupied by Justice Elena Kagan, were perhaps a little grander, but there are worse offices in Washington than his current one, which overlooks the plaza in front of the courthouse and has a striking view of the Capitol.

In time for the start of a new term on Monday, Justice Stevens has just published an engaging and candid memoir. It is called “Five Chiefs,” for the five chief justices he has known — as a law clerk, lawyer, judge and justice. Perhaps its most surprising element is the high praise Justice Stevens has for Chief Justice John G. Roberts Jr., who was often his ideological adversary in the five terms the two men served together.

In the interview, Justice Stevens also offered behind-the-scenes glimpses of how opinions are assigned, and he criticized aspects of Brown v. Board of Education, the 1954 decision requiring the integration of public schools.

The book is not a series of puff-piece profiles. Chief Justice Warren E. Burger, who was appointed by President Richard M. Nixon and served from 1969 to 1986, gets fairly rough treatment, for instance, coming off as vain, insecure and in some ways incompetent.

Chief Justice Burger was, Justice Stevens wrote, not very careful in assigning majority opinions.

“A lot of people assumed he was making strategic assignments and that sort of thing,” Justice Stevens said. “I think he was just not as careful a scholar as he should have been, and he didn’t do a careful job keeping track of exactly how everyone voted and the reasons why.

“Burger would sometimes assign an opinion to someone who really didn’t have a majority on every issue,” Justice Stevens continued, leading to confusion, inefficiency and frustration.

Chief Justice Burger was strategic in one sense, though. Alert to the attention paid to First Amendment decisions, he would assign opinions ruling in favor of free speech to himself, hoping for good press.

“If you look through his First Amendment cases, I think you’ll find that when the First Amendment claim was upheld, he might well write it,” Justice Stevens said. “But where it was denied, Byron White would get it.” Justice Byron R. White, who served from 1962 to 1993, did indeed gain a reputation of hostility to the First Amendment.

Chief Justice William H. Rehnquist, who led the court from 1986 to 2005, gets better reviews in the book. Justice Stevens called him able and fair, if at times a little peremptory, cutting off lawyers the moment their time at the Supreme Court lectern expired. And Justice Stevens did not approve of the chief justice’s decision to add gold stripes to the sleeves of his robes, a move that struck many as frivolous or pompous or both.

Chief Justice Roberts, by contrast, combines the best qualities of his predecessors, Justice Stevens said.

“He’s generally across the board a very competent and personable guy,” Justice Stevens said. “Burger was a fine representative of the court — handsome guy, and he spoke well, and he could be very gracious. I really think John Roberts combines all those virtues — he’s very, very smart, and he’s very, very fair.

“The chief is conscious of granting more time to advocates,” Justice Stevens said of Chief Justice Roberts’s courtesy in occasionally allowing lawyers extra time to respond to the barrage of questions from the justices. “He didn’t put stripes on his robe.”

In his years on the Roberts court, Justice Stevens was the most senior justice, which meant he had the power to assign opinions when he was in the majority and the chief justice was not. He admitted to a little strategic behavior of his own.

“Basically it was who would do the best job writing it,” he said. But he was also savvy enough to know that keeping an interesting case to himself meant that he would avoid being assigned a boring and complicated one from the same batch. “I have to confess,” he said, “that now and then I would take an assignment because I wanted not to be eligible for something that I didn’t want to write.”

And then there was the important task of locking in the crucial vote of Justice Anthony M. Kennedy, the current court’s swing justice. “There were cases I think that I may have asked Tony to write,” Justice Stevens said, “because I thought if he wrote it out himself he was more sure to stick to his first vote.”

A majority is important, Justice Stevens said; unanimity less so. He said the court erred in moving too slowly in the Brown case in order to speak with one voice. The court ended up instructing the states to move toward integration with “all deliberate speed” in a 1955 sequel.

“A more decisive, prompt decision might have avoided some of the resistance that developed,” Justice Stevens said. “I don’t think the world would have come to an end if there had been members of the court who disagreed.”

Justice Stevens said he spends much of the year in Florida now, but he keeps up. “I remain very much interested in the court,” he said. “I’ve read all their opinions, which I wasn’t sure I would do.”

He added that he is not eager to serve on appeals court panels, a common practice among retired members of the court, who also include Justices Sandra Day O’Connor and David H. Souter. “David and Sandra have enjoyed it,” Justice Stevens said. “I kind of like not having to read a lot of briefs and get reversed by my former colleagues.”

    As Justices Get Back to Business, Old Pro Reveals Tricks of the Trade, NYT, 3.10.2011,
    http://www.nytimes.com/2011/10/04/us/justice-stevens-memoir-recounts-time-on-court-sidebar.html

Supreme Court Is Asked to Rule on Health Care

September 28, 2011
The New York Times
By ADAM LIPTAK

WASHINGTON — The Obama administration asked the Supreme Court on Wednesday to hear a case concerning the 2010 health care overhaul law. The development, which came unexpectedly fast, makes it all but certain that the court will soon agree to hear one or more cases involving challenges to the law, with arguments by the spring and a decision by June, in time to land in the middle of the 2012 presidential campaign.

The Justice Department said the justices should hear its appeal of a decision by a three-judge panel of the United States Court of Appeals for the 11th Circuit, in Atlanta, that struck down the centerpiece of the law by a 2-to-1 vote.

“The department has consistently and successfully defended this law in several courts of appeals, and only the 11th Circuit Court of Appeals has ruled it unconstitutional,” the Justice Department said in a statement. “We believe the question is appropriate for review by the Supreme Court.

“Throughout history, there have been similar challenges to other landmark legislation, such as the Social Security Act, the Civil Rights Act and the Voting Rights Act, and all of those challenges failed,” the statement continued. “We believe the challenges to the Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law.”

On Monday, the administration announced that it would not seek review from the full 11th Circuit. Its Supreme Court petition was not due until November.

The administration did not explain why it did not take routine litigation steps that might have slowed the progress of the challenges enough to avoid a decision in the current Supreme Court term. It did say in its brief that the 11th Circuit’s decision striking down the central piece of a comprehensive regulatory scheme created “a matter of grave national importance.”

The political calculus is complicated. A decision striking down President Obama’s signature legislative achievement only months before the election would doubtless be a blow. But a decision from a court divided along ideological lines could further energize voters already critical of last year’s 5-to-4 campaign finance decision, Citizens United.

A decision upholding the law might also both help and hurt Mr. Obama’s chances. It would represent vindication, but it could also spur some voters to redouble their efforts to elect candidates committed to repealing it.

The three federal courts of appeal that have issued decisions on the law so far have all reached different conclusions, with one upholding it, a second — the 11th Circuit— striking it down in part, and a third saying that threshold legal issues barred an immediate ruling. A fourth challenge to the law was heard last week by the United States Court of Appeals for the District of Columbia Circuit.

The views of the appeals court judges have not uniformly tracked the presumed views of the presidents who appointed them. Judge Jeffrey S. Sutton, appointed by President George W. Bush, joined the majority in a 2-to-1 decision of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, which upheld the law. Judge Frank M. Hull of the 11th Circuit was appointed by President Bill Clinton and was an author of its majority opinion.

Also on Wednesday, two sets of plaintiffs who had won on the core issue in the 11th Circuit filed their own requests for Supreme Court review.

“Time is of the essence,” wrote Paul D. Clement, a former United States solicitor general who represents 26 states that are challenging the law. “The grave constitutional questions surrounding the A.C.A. and its novel exercise of federal power will not subside until this court resolves them.”

The 11th Circuit, in a decision issued in August, ruled that a part of law requiring the purchase of insurance — the so-called individual mandate — was an unconstitutional exercise of Congressional power.

The majority decision, written by Chief Judge Joel F. Dubina and Judge Hull, said, “We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated Congressional powers.”

The United States solicitor general, Donald B. Verrilli Jr., disputed that analysis in the administration’s brief. The law, he wrote, requires most people to buy insurance “rather than rely on a combination of attempted self-insurance and the back-stop of care paid for by other market participants.” The individual mandate, he went on, “like the act as a whole, thus regulates economic conduct that substantially affects interstate commerce.”

The 11th Circuit ruled against the 26 states and the other plaintiffs on two points. It said its ruling on the individual mandate did not require “wholesale invalidation” of the law, and it upheld the law’s expansion of the Medicaid program.

The petition from the 26 states and a second one, from the National Federation of Independent Business and two individuals, sought review on the issues they had lost in the 11th Circuit. The administration’s brief and those of the plaintiffs mostly addressed different questions and talked past one another. Each side now has a chance to respond and tell the court its views about whether the issues identified by its adversaries warrant review.

But almost all of the usual signs indicate that the court will agree to hear at least one challenge to the law: a federal appeals court has struck down a major piece of federal legislation, the lower courts are divided about its constitutionality, and all sides, including the federal government itself, agree that review is warranted.

It is less clear which case the justices will agree to hear. Also pending before the justices is a petition from several individuals and the Thomas More Law Center, which describes itself as a defender of “America’s Christian heritage and moral values,” seeking review of the Sixth Circuit decision.

Nor is it clear which issues the justices will focus on. Simply agreeing to hear a case does not guarantee that the Supreme Court will decide whether Congress had the power under the Constitution’s commerce clause to enact the individual mandate, the question at the heart of the challenges.

The court could agree with some lower courts that some or all of the plaintiffs lack standing to sue or that the central issue is not yet ripe for decision. The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., for instance, ruled this month that it was premature to decide the central question, citing a federal law allowing suits only after certain taxes and penalties are due. The administration found itself in an awkward position on this question before the Supreme Court, as it had initially pressed but later abandoned the argument.

In Wednesday’s brief, Mr. Verrilli said the administration did not think it should win on the Fourth Circuit’s theory. It nonetheless suggested that the court consider the issue and perhaps appoint a lawyer to present arguments in favor of it, as the court occasionally does when the parties agree on a significant issue that could alter the outcome of the eventual decision.

    Supreme Court Is Asked to Rule on Health Care, NYT, 28.9.2011,
    http://www.nytimes.com/2011/09/29/us/justice-dept-asks-supreme-court-for-health-care-ruling.html

Davis Is Executed in Georgia

September 21, 2011
The New York Times
By KIM SEVERSON

JACKSON, Ga. — Proclaiming his innocence, Troy Davis was put to death by lethal injection on Wednesday night, his life — and the hopes of supporters worldwide — prolonged by several hours while the Supreme Court reviewed but then declined to act on a petition from his lawyers to stay the execution.

Mr. Davis, 42, who was convicted of murdering a Savannah police officer 22 years ago, entered the death chamber shortly before 11 p.m., four hours after the scheduled time. He died at 11:08.

This final chapter before his execution had become an international symbol of the battle over the death penalty and racial imbalance in the justice system.

“It harkens back to some ugly days in the history of this state,” said the Rev. Raphael Warnock of Ebenezer Baptist Church, who visited Mr. Davis on Monday.

Mr. Davis remained defiant at the end, according to reporters who witnessed his death. He looked directly at the members of the family of Mark MacPhail, the officer he was convicted of killing, and told them they had the wrong man.

“I did not personally kill your son, father, brother,” he said. “All I can ask is that you look deeper into this case so you really can finally see the truth.”

He then told his supporters and family to “keep the faith” and said to prison personnel, “May God have mercy on your souls; may God bless your souls.”

One of the witnesses, a radio reporter from WSB in Atlanta, said it appeared that the MacPhail family “seemed to get some satisfaction” from the execution.

For Mr. Davis’s family and other supporters gathered in front of the prison, the final hours were mixed with hope, tears and exhaustion. The crowd was buoyed by the Supreme Court’s involvement, but crushed when the justices issued their one-sentence refusal to consider a stay.

When the news of his death came, the family left quietly and the 500 or so supporters began to pack up and leave their position across the state highway from the prison entrance. Mr. Davis’s body was driven out of the grounds about midnight.

During the evening, a dozen supporters of the death penalty, including people who knew the MacPhail family sat quietly, separated from the Davises and their supporters by a stretch of lawn and rope barriers.

The appeal to the Supreme Court was one of several last-ditch efforts by Mr. Davis on Wednesday. Earlier in the day, an official with the National Association for the Advancement of Colored People said that the vote by the Georgia parole board to deny clemency to Mr. Davis was so close that he hoped there might be a chance to save him from execution.

The official, Edward O. DuBose, president of the Georgia chapter, said the group had “very reliable information from the board members directly that the board was split 3 to 2 on whether to grant clemency.”

“The fact that that kind of division was in the room is even more of a sign that there is a strong possibility to save Troy’s life,” he said.

The N.A.A.C.P said it had been in contact with the Department of Justice on Wednesday, in the hope that the federal government would intervene on the basis of civil rights violations, meaning irregularities in the original investigation and at the trial.

Earlier in the day, his lawyers had asked the state for another chance to spare him: a lie detector test.

But the Georgia State Board of Pardons and Parole, which on Tuesday denied Mr. Davis’s clemency after a daylong hearing on Monday, quickly responded that there would be no reconsideration of the case, and the polygraph test was abandoned.

Mr. Davis’s supporters also reached out to the prosecutor in the original case and asked him to persuade the original judge to rescind the death order. Benjamin Jealous, the president of the N.A.A.C.P, also tried to ask President Obama for a reprieve.

The Innocence Project, which has had a hand in the exoneration of 17 death-row inmates through the use of DNA testing, sent a letter to the Chatham County district attorney, Larry Chisolm, urging him to withdraw the execution warrant against Mr. Davis.

Mr. Davis was convicted of the 1989 shooting of Officer MacPhail, who was working a second job as a security guard. A homeless man called for help after a group that included Mr. Davis began to assault him, according to court testimony. When Officer MacPhail went to assist him, he was shot in the face and the heart.

Before Wednesday, Mr. Davis had walked to the brink of execution three times.

His conviction came after testimony by some witnesses who later recanted and on the scantest of physical evidence, adding fuel to those who rely on the Internet to rally against executions and to question the validity of eyewitness identification and of the court system itself.

But for the family of the slain officer and others who believed that two decades’ worth of legal appeals and Supreme Court intervention was more than enough to ensure justice, it was not an issue of race but of law.

Inside the prison, Officer MacPhail’s widow, Joan MacPhail-Harris, said calling Mr. Davis a victim was ludicrous.

“We have lived this for 22 years,” she said on Monday. “We are victims.”

She added: “We have laws in this land so that there is not chaos. We are not killing Troy because we want to.”

Mr. Davis, who refused a last meal, had been in good spirits and prayerful, said Wende Gozan Brown, a spokeswoman for Amnesty International, who visited him on Tuesday. She said he had told her his death was for all the Troy Davises who came before and after him.

“I will not stop fighting until I’ve taken my last breath,” she recounted him as saying. “Georgia is prepared to snuff out the life of an innocent man.”

The case has been a slow and convoluted exercise in legal maneuvering and death penalty politics.

The state parole board granted him a stay in 2007 as he was preparing for his final hours, saying the execution should not proceed unless its members “are convinced that there is no doubt as to the guilt of the accused.” The board has since added three new members.

In 2008, his execution was about 90 minutes away when the Supreme Court stepped in. Although the court kept Mr. Davis from execution, it later declined to hear the case.

This time around, the case catapulted into the national consciousness with record numbers of petitions — more than 630,000 — delivered to the board to stay the execution, and the list of people asking for clemency included former President Jimmy Carter, Archbishop Desmond Tutu, 51 members of Congress, entertainment figures like Cee Lo Green and even some death penalty supporters, including William S. Sessions, a former F.B.I. director.

Kim Severson reported from Jackson, and John Schwartz from New York.

    Davis Is Executed in Georgia, NYT, 21.9.2011,
    http://www.nytimes.com/2011/09/22/us/final-pleas-and-vigils-in-troy-davis-execution.html

The Misuse of Life Without Parole

September 12, 2011
The New York Times


The Supreme Court ruled last year that it is cruel and unusual punishment to sentence a juvenile to life without parole when the crime is short of homicide. In the majority opinion, Justice Anthony Kennedy noted that life without parole shares “some characteristics with death sentences that are shared by no other sentences” in altering “the offender’s life by a forfeiture that is irrevocable.”

The sentence is no less severe when applied to adults. Yet life without parole, which exists in all states (Alaska’s version is a 99-year sentence), is routinely used, including in cases where the death penalty is not in play and where even an ordinary life sentence might be too harsh.

From 1992 to 2008, the number in prison for life without parole tripled from 12,453 to 41,095, even though violent crime declined sharply all over the country during that period. That increase is also much greater than the percentage rise in offenders serving life sentences.

The American Law Institute, a group composed of judges, lawyers and legal scholars, has wisely called for restricting the use of the penalty to cases “when this sanction is the sole alternative to a death sentence.”

In capital cases, life without parole is a sound option. Public support for the death penalty, a barbarity that should be abolished in this country, plummets when life without parole is an alternative. In many states, juries are instructed that it is an option. But the use of the sentence has gone far beyond death penalty cases, even as violent crime rates have declined.

In the last decade in Georgia, one of the few states with good data on the sentence, about 60 percent of offenders sentenced to life without parole were convicted of murder. The other 40 percent were convicted of kidnapping, armed robbery, sex crimes, drug crimes and other crimes including shoplifting. Nationwide, the racial disparity in the penalty is stark. Blacks make up 56.4 percent of those serving life without parole, though they are 37.5 percent of prisoners in all state prisons.

The overuse of the sentence reflects this excessively punitive era. But as the institute’s report explains, an “ordinary” life sentence is “a punishment of tremendous magnitude” whose “true gravity should not be undervalued.” In the past 20 years, the average life term served has grown from 21 years to 29 years before parole.

Interestingly, even the institute’s approach to sentencing reflects the times. In 1962, when it last revised its Model Penal Code on sentencing, which is a blueprint for states to follow in shaping their laws, the group called for prisoners sentenced to life to be considered for parole after 1 to 10 years. Now the group calls for them to be reviewed by a judge within 15 years, with the expectation that many will “never regain their freedom.”

Still, the group’s view about the proper relationship between crime and punishment is dispassionate and correct. A fair-minded society should revisit life sentences and decide whether an offender deserves to remain in prison or be released on parole. And a fair-minded society should not sentence anyone to life without parole except as an alternative to the death penalty.

    The Misuse of Life Without Parole, NYT, 12.9.2011,
    http://www.nytimes.com/2011/09/13/opinion/the-misuse-of-life-without-parole.html

Protect Our Right to Anonymity

September 12, 2011
The New York Times
By JEFFREY ROSEN

Washington

IN November, the Supreme Court will hear arguments in a case that could redefine the scope of privacy in an age of increasingly ubiquitous surveillance technologies like GPS devices and face-recognition software.

The case, United States v. Jones, concerns a GPS device that the police, without a valid warrant, placed on the car of a suspected drug dealer in Washington, D.C. The police then tracked his movements for a month and used the information to convict him of conspiracy to sell cocaine. The question before the court is whether this violated the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures of our “persons, houses, papers, and effects.”

It’s imperative that the court says yes. Otherwise, Americans will no longer be able to expect the same degree of anonymity in public places that they have rightfully enjoyed since the founding era.

Two federal appellate courts have upheld the use of GPS devices without warrants in similar cases, on the grounds that we have no expectation of privacy when we are in public places and that tracking technology merely makes public surveillance easier and more effective.

But in a visionary opinion in August 2010, Judge Douglas H. Ginsburg, of the United States Court of Appeals for the District of Columbia Circuit, disagreed. No reasonable person, he argued, expects that his public movements will be tracked 24 hours a day, seven days a week, and therefore we do have an expectation of privacy in the “whole” of our public movements.

“Unlike one’s movements during a single journey,” Judge Ginsburg wrote, “the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil.”

Judge Ginsburg realized that ubiquitous surveillance for a month is impossible, in practice, without technological enhancements like a GPS device, and that it is therefore qualitatively different than the more limited technologically enhanced public surveillance that the Supreme Court has upheld in the past (like using a beeper to help the police follow a car for a 100-mile trip).

The Supreme Court case is an appeal of Judge Ginsburg’s decision. If the court rejects his logic and sides with those who maintain that we have no expectation of privacy in our public movements, surveillance is likely to expand, radically transforming our experience of both public and virtual spaces.

For what’s at stake in the Supreme Court case is more than just the future of GPS tracking: there’s also online surveillance. Facebook, for example, announced in June that it was implementing face-recognition technology that scans all the photos in its database and automatically suggests identifying tags that match every face with a name. (After a public outcry, Facebook said that users could opt out of the tagging system.) With the help of this kind of photo tagging, law enforcement officials could post on Facebook a photo of, say, an anonymous antiwar protester and identify him.

There is also the specter of video surveillance. In 2008, at a Google conference on the future of law and technology, Andrew McLaughlin, then the head of public policy at Google, said he expected that, within a few years, public agencies and private companies would be asking Google to post live feeds from public and private surveillance cameras all around the world. If the feeds were linked and archived, anyone with a Web browser would be able to click on a picture of anyone on any monitored street and follow his movements.

To preserve our right to some degree of anonymity in public, we can’t rely on the courts alone. Fortunately, 15 states have enacted laws imposing criminal and civil penalties for the use of electronic tracking devices in various forms and restricting their use without a warrant. And in June, Senator Ron Wyden, Democrat of Oregon, and Representative Jason Chaffetz, Republican of Utah, introduced the Geolocation Privacy and Surveillance Act, which would provide federal protection against public surveillance.

Their act would require the government to get a warrant before acquiring the geolocational information of an American citizen or legal alien; create criminal penalties for secretly using an electronic device to track someone’s movements; and prohibit commercial service providers from sharing customers’ geolocational information without their consent — a necessary restriction at a time of increasing cellphone tracking by private companies.

It’s encouraging that Democrats and Republicans in Congress are coming together to preserve the expectations of anonymity in public that Americans have long taken for granted. Soon, liberal and conservative justices on the Supreme Court will have an opportunity to meet the same challenge.

If they fail to rise to the occasion, our public life may be transformed in ways we can only begin to imagine.

 

Jeffrey Rosen, a law professor at George Washington University,
is an editor of the forthcoming book “Constitution 3.0: Freedom
and Technological Change.”

    Protect Our Right to Anonymity, NYT, 12.9.2011,
    http://www.nytimes.com/2011/09/13/opinion/protect-our-right-to-anonymity.html

Court Case Asks if ‘Big Brother’ Is Spelled GPS

September 10, 2011
The New York Times
By ADAM LIPTAK

WASHINGTON — The precedent is novel. More precisely, the precedent is a novel.

In a series of rulings on the use of satellites and cellphones to track criminal suspects, judges around the country have been citing George Orwell’s “1984” to sound an alarm. They say the Fourth Amendment’s promise of protection from government invasion of privacy is in danger of being replaced by the futuristic surveillance state Orwell described.

In April, Judge Diane P. Wood of the federal appeals court in Chicago wrote that surveillance using global positioning system devices would “make the system that George Orwell depicted in his famous novel, ‘1984,’ seem clumsy.” In a similar case last year, Chief Judge Alex Kozinski of the federal appeals court in San Francisco wrote that “1984 may have come a bit later than predicted, but it’s here at last.”

Last month, Judge Nicholas G. Garaufis of the Federal District Court in Brooklyn turned down a government request for 113 days of location data from cellphone towers, citing “Orwellian intrusion” and saying the courts must “begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine.”

The Supreme Court is about to do just that. In November, it will hear arguments in United States v. Jones, No. 10-1259, the most important Fourth Amendment case in a decade. The justices will address a question that has divided the lower courts: Do the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time?

Their answer will bring Fourth Amendment law into the digital age, addressing how its 18th-century prohibition of “unreasonable searches and seizures” applies to a world in which people’s movements are continuously recorded by devices in their cars, pockets and purses, by toll plazas and by transit systems.

The Jones case will address not only whether the placement of a space-age tracking device on the outside of a vehicle without a warrant qualifies as a search, but also whether the intensive monitoring it allows is different in kind from conventional surveillance by police officers who stake out suspects and tail their cars.

“The Jones case requires the Supreme Court to decide whether modern technology has turned law enforcement into Big Brother, able to monitor and record every move we make outside our homes,” said Susan Freiwald, a law professor at the University of San Francisco.

The case is an appeal from a unanimous decision of a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, which said last year that the government was simply seeking too much information.

“Repeated visits to a church, a gym, a bar or a bookie tell a story not told by any single visit, as does one’s not visiting any of those places in the course of a month,” wrote Judge Douglas H. Ginsburg.

He added: “A person who knows all of another’s travel can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.”

Federal appeals courts in Chicago and San Francisco, on the other hand, have allowed the police to use GPS tracking devices without a warrant. The police are already allowed to tail cars and observe their movements without warrants, those courts said, and the devices merely allow them to do so more efficiently.

Judge Richard A. Posner, writing for a unanimous three-judge panel in the Chicago case, did caution that institutionalized mass surveillance might present a different issue.

Some judges say that world is fast approaching.

“Technology has progressed to the point where a person who wishes to partake in the social, cultural and political affairs of our society has no realistic choice but to expose to others, if not to the public as a whole, a broad range of conduct and communications that would previously have been deemed unquestionably private,” Magistrate Judge James Orenstein of the Federal District Court in Brooklyn wrote last year.

The case to be heard by the Supreme Court arose from the investigation of the owner of a Washington nightclub, Antoine Jones, who was suspected of being part of a cocaine-selling operation. Apparently out of caution, given the unsettled state of the law, prosecutors obtained a warrant allowing the police to place a tracking device on Mr. Jones’s Jeep Grand Cherokee. The warrant required them to do so within 10 days and within the District of Columbia. The police did not install the device until 11 days later, and they did it in Maryland. Now contending that no warrant was required, the authorities tracked Mr. Jones’s travels for a month and used the evidence they gathered to convict him of conspiring to sell cocaine. He was sentenced to life in prison.

The main Supreme Court precedent in the area, United States v. Knotts, is almost 30 years old. It allowed the use of a much more primitive technology, a beeper that sent a signal that grew stronger as the police drew closer and so helped them follow a car over a single 100-mile trip from Minnesota to Wisconsin.

The Supreme Court ruled that no warrant was required but warned that “twenty-four hour surveillance of any citizen of the country” using “dragnet-type law enforcement practices” may violate the Fourth Amendment.

Much of the argument in the Jones case concerns what that passage meant. Did it indicate discomfort with intense and extended scrutiny of a single suspect’s every move? Or did it apply only to mass surveillance?

In the Jones case, the government argued in a brief to the Supreme Court that the Knotts case disapproved of only “widespread searches or seizures that are conducted without individualized suspicion.”

The brief added: “Law enforcement has not abused GPS technology. No evidence exists of widespread, suspicionless GPS monitoring.” On the other hand, the brief said, requiring a warrant to attach a GPS device to a suspect’s car “would seriously impede the government’s ability to investigate leads and tips on drug trafficking, terrorism and other crimes.”

A decade ago, the Supreme Court ruled that the police needed a warrant to use thermal imaging technology to measure heat emanating from a home. The sanctity of the home is at the core of what the Fourth Amendment protects, Justice Antonin Scalia explained, and the technology was not in widespread use.

In general, though, Justice Scalia observed, “it would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.”

    Court Case Asks if ‘Big Brother’ Is Spelled GPS, NYT, 10.9.2011,
    http://www.nytimes.com/2011/09/11/us/11gps.html

34 Years Later, Supreme Court Will Revisit Eyewitness IDs

August 22, 2011
The New York Times
By ADAM LIPTAK

WASHINGTON — Every year, more than 75,000 eyewitnesses identify suspects in criminal investigations. Those identifications are wrong about a third of the time, a pile of studies suggest.

Mistaken identifications lead to wrongful convictions. Of the first 250 DNA exonerations, 190 involved eyewitnesses who were wrong, as documented in “Convicting the Innocent,” a recent book by Brandon L. Garrett, a law professor at the University of Virginia.

Many of those witnesses were as certain as they were wrong. “There is absolutely no question in my mind,” said one. Another was “120 percent” sure. A third said, “That is one face I will never forget.” A fourth allowed for a glimmer of doubt: “This is the man, or it is his twin brother.”

In November, the Supreme Court will return to the question of what the Constitution has to say about the use of eyewitness evidence. The last time the court took a hard look at the question was in 1977. Since then, the scientific understanding of human memory has been transformed.

Indeed, there is no area in which social science research has done more to illuminate a legal issue. More than 2,000 studies on the topic have been published in professional journals in the past 30 years.

What they collectively show is that it is perilous to base a conviction on a witness’s identification of a stranger. Memory is not a videotape. It is fragile at best, worse under stress and subject to distortion and contamination.

The unreliability of eyewitness identification is matched by its power.

“There is almost nothing more convincing,” Justice William J. Brennan Jr. wrote in a 1981 dissent, quoting from a leading study, “than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’ ”

The American Psychological Association, in a friend-of-the-court brief in the new Supreme Court case, said “research shows that juries tend to ‘over believe’ eyewitness testimony.”

Experts in the field are pleased that the Supreme Court will again consider the place of eyewitness evidence in the criminal justice system.

“It is exciting that the court has actually taken an eyewitness ID case for the first time in many years,” Professor Garrett said, “even if it might be the wrong case on the wrong issue.” The justices are likely to rule only about which kinds of eyewitness identifications warrant a closer look from judges — just those made after the police used improperly suggestive procedures or all problematic ones?

The larger and more important question of what that closer look should involve is probably not in play in the case, Perry v. New Hampshire, No, 10-8974.

The state of the law is thus likely to remain jumbled. On the one hand, the court has said that the due process clause of the Constitution requires the exclusion of at least some eyewitness testimony on the ground that it is unreliable. On the other, judges are told to use a two-step analysis involving the weighing of multiple factors that in practice allows almost all such evidence to be presented to the jury.

Barry C. Scheck, a director of the Innocence Project at the Benjamin N. Cardozo School of Law, said that what is needed in this area is a new “legal architecture,” one in which judges play an authentic gatekeeping role.

He pointed to a pioneering report last year from a special master appointed by the New Jersey Supreme Court. The special master, Geoffrey Gaulkin, suggested that memory should be treated “as a form of trace evidence: a fragment collected at the scene of a crime, like a fingerprint or blood smear, whose integrity and reliability need to be monitored and assessed from the point of its recovery to its ultimate presentation at trial.”

There are all sorts of ways in which investigators could do a better job when they have witnesses try to identify suspects.

One is double-blind administration of line-ups, photo arrays and the like, in which neither the person conducting the exercise nor the witness knows the “correct” answer. Another is to tell the witness that the suspect may not be present at all.

Judges, too, could help matters by instructing juries about the limitations of eyewitness testimony and by letting experts testify about the nature of memory. The best solution is probably a preliminary hearing, outside the presence of the jury, to determine whether the evidence is trustworthy.

But the current Supreme Court can be wary of using the due process clause to correct flaws in the criminal justice system. In 2009, for instance, the court said that inmates have no right under the due process clause to test DNA evidence that could prove their innocence. Chief Justice John G. Roberts Jr., writing for the majority, said the matter was better handled by state legislatures.

“We are reluctant to enlist the federal judiciary in creating a new constitutional code of rules for handling DNA,” Chief Justice Roberts wrote for a five-justice majority.

The justices may have the same impulse as they consider reforms in the use of eyewitness evidence: it may be a good idea, but not every good idea is mandated by the Constitution.

    34 Years Later, Supreme Court Will Revisit Eyewitness IDs, NYT, 22.8.2011,
    http://www.nytimes.com/2011/08/23/us/23bar.html

What Does the First Amendment Protect?

July 4, 2011
8:30 pm
The New York Times
By STANLEY FISH

In the two First Amendment cases handed down last week — one about limiting sales of violent video games to children, the other about Arizona’s attempt to make public financing more attractive to candidates — the dissenting justices contend that the protection of speech is not really the issue at all.

In his dissent to Brown v. Entertainment Merchants, Justice Stephen Breyer declares that this is not a case, as the majority claims, about “depictions of violence”; rather it is a case about “protection of children.” What Breyer is doing (or attempting to do) is shift the category under which the matter of dispute is to be considered. According to Justice Antonin Scalia, writing for the majority, depictions of violence merit First Amendment protection because they are speech, not acts. Breyer replies that the video games in question are in fact acts, although they are, he acknowledges, acts “containing an expressive component.” That component, he argues, does not outweigh or render irrelevant the “significant amount of physical activity” involved in playing these games, activity in the course of which players do not merely see violent things but do violent things.

The danger Breyer wants to protect children from is not the danger of being exposed to violence, but the danger of being initiated into violence. This happens (or can happen) when game-players are required not merely to view violent acts passively, but to perform them by making a succession of choices (with a button or joystick) that decide the fate of the characters they have created.

Justice Samuel Alito, who concurs in the result because he believes the law to have been poorly drafted but disagrees with the majority’s reasoning, provides an example. Compare, he says, the reader of a novel depicting violence with a video-game player “who creates an avatar that bears his own image; who sees a realistic image of the victim … in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands.” Are these experiences the same?, Alito asks, and answers no. The difference, which Scalia labors to deny (“Certainly the books we give to children … contain no shortage of gore”), is sufficient, Alito thinks, to justify the state’s interest in regulation, even though he finds the present attempt at regulation flawed.

Breyer frames the issue precisely when he declares, “This case is ultimately less about censorship than it is about education.” Education is important in a democracy, he explains, because it gives us a means of raising “future generations committed cooperatively to making our system of government work.” The implication is that a generation immersed in violent video-games will be committed not to cooperation but to actions less helpful to the flourishing of the country.

Justice Clarence Thomas, writing another dissent disguised as a concurrence, shares Breyer’s concern that children be protected from influences that might turn them into damaged citizens. He reminds us of Noah Webster’s admonition that children’s minds be “untainted till their reasoning faculties have acquired strength and the good principles which may be planted … have taken deep root”; and he cites a 1979 opinion in which Justice Lewis F. Powell declares that “the State is entitled to adjust its legal system to account for children’s vulnerability.” Children are vulnerable, according to this theory, because they have not yet developed the ability to distance themselves from what is put before them. Interactive video games increase this vulnerability and lead not merely to the consuming of bad images, but to the possibility of becoming a bad person. This is the corruption that will follow, Alito fears, from allowing “troubled teens to experience in an extraordinarily personal and vivid way what it would be like to carry out unspeakable acts of violence.”

Breyer drives the point home: “…extremely violent games can harm children by rewarding them for being violently aggressive in play, and thereby often teaching them to be violently aggressive in life.” Violent video games, in short, are not representations that deserve First Amendment protection; they are acts with harmful consequences and children deserve to be protected from them.

Although its subject matter could not be more different, Arizona Free Enterprise v. Bennett, displays the same opposition between a libertarian concern for freedom and a consequentialist concern for the corruption that attends unregulated activity. In this case it is not a child but the political system that is in danger of corruption, and the source of corruption is not a violent game but the desire of private individuals to purchase the votes of office-holders.

That at least is the view of Justice Elena Kagan, writing in dissent: “Campaign finance reform over the last century has focused on one key question: how to prevent massive pools of private money from corrupting our political system.” In Kagan’s formulation, “private money” equals “special interests,” whereas those who “rely on public, rather than private moneys, are ‘beholden [to] no person.’” Therefore by “supplanting private cash, public financing eliminates the source of political corruption.”

No says Chief Justice John G. Roberts, writing for the majority. Arizona’s public financing scheme, he contends, is an unconstitutional restriction on free speech because it penalizes privately financed candidates for being successful. Expenditures by privately financed candidates and the groups supporting them trigger the awarding of matching funds to candidates who have accepted the limits that come along with public funding. Roberts concludes that “any increase in speech is of one kind … that of publicly financed candidates.” So even if “the matching funds provision did result in more speech … in general, it would do so at the expense of impermissibly burdening (and thus reducing) the speech of privately financed candidates.”

But that parentheses — “and thus reducing” — is a little too fast. How exactly does the fact that in response to your expenditures an opponent with fewer resources will be given additional funds reduce your speech? You can still get to spend as much as you want and to say as much as you want. What you don’t get to do is overwhelm the voices of less affluent candidates and their supporters. As Kagan points out, “what petitioners demand is essentially a right to quash others’ speech … they would prefer the field to themselves, so that they can speak free from response.” The Arizona law, she adds, can hardly be characterized as a restriction on speech..

It follows, Kagan asserts, that “public financing furthers a compelling interest” — the prevention of corruption — and does so without diminishing anyone’s speech rights. The conclusion, she believes, is inescapable “[e]xcept in this Court,” where the majority declares that the state interest in leveling the playing field “cannot justify undue burdens on political speech.” But, to make the point again, there is no burden unless being prevented from being the only speaker with a megaphone is a burden, and it is not. In the majority decision, a compelling state interest is set aside because of a restriction on speech that has not occurred.

In some exasperation, Kagan remarks, “Only one thing is missing from the Court’s response: any reasoning to support [its] conclusion.” That’s not quite right. The reasoning is contained in an assumption that is the reverse of Kagan’s: private money, rather than being the vehicle of corruption, is the vehicle of speech, and therefore you can’t have too much of it, no matter what its effects. The First Amendment, says Roberts, “embodies our choice as a Nation that, when it comes to … speech, the guiding principle is freedom—the ‘unfettered interchange of ideas’ — not whatever the State may view as fair.”

Roberts does not have to reply to Kagan’s points — he can even concede them — because in his view they are irrelevant. “When it comes to protected speech, the speaker is sovereign.” Other considerations (like corruption and fairness) may be in play, but the rights of the speaker — in this case the rights of the spender — are paramount. They are what the First Amendment protects. Kagan disagrees: “The First Amendment’s core purpose is to foster a healthy vibrant political system full of robust discussion and debate,” and the Arizona law, with its mechanism for increasing participation is, she maintains, true to that purpose.

And there you have it: a clash between the worship of freedom of speech and a concern for the quality of public life in relation to which free speech may sometimes be asked to take a back seat. It is the same clash that pits the freedom to play video games against society’s interest in fostering a generation of young adults responsive to its ideals and aspirations. We have seen this before — in the pornography cases, in the crush-video case, in the case upholding the right of an anti-gay ministry to picket the funerals of soldiers — and we shall certainly see it again.

    What Does the First Amendment Protect?, NYT, 4.7.2011,
    http://opinionator.blogs.nytimes.com/2011/07/04/what-does-the-first-amendment-protect/

It’s Perverse, but It’s Also Pretend

June 27, 2011
The New York Times
By CHERYL K. OLSON

Reston, Va.

ON Monday the Supreme Court struck down, on First Amendment grounds, California’s law barring the sale or rental of violent video games to people under 18. On a practical level, the law was vague. It was never clear which games might fall under the law, or whose job it would be to decide.

But more important, the state’s case was built on assumptions — that violent games cause children psychological or neurological harm and make them more aggressive and likely to harm other people — that are not supported by evidence. In the end, the case serves only to highlight how little we know about this medium and its effects on our children.

Many people assume that video game violence is consistently and unspeakably awful, that little Jacob spends most afternoons torturing victims to death. But these people haven’t played many video games. The state drew its examples of depravity almost exclusively from an obscure game called Postal 2, which, surveys show, is rarely played by children or young teens. The game is deliberately outrageous; you can, for example, impale a cat on your gun as a makeshift silencer. A trailer for Postal 3, said to be out later this year, encourages players to “Tase those annoying hockey moms or shoot them in the face!”

This may sound disturbing, but it’s also ridiculous. And young people know it: as one 13-year-old said during a study I conducted at Harvard, “With video games, you know it’s fake.”

In my research on middle schoolers, the most popular game series among boys was Grand Theft Auto, which allows players to commit cartoon violence with chain saws as well as do perfectly benign things like deliver pizza on a scooter.

Teenage boys may be more interested in the chain saws, but there’s no evidence that this leads to violent behavior in real life. F.B.I. data shows that youth violence continues to decline; it is now at its lowest rate in years, while bullying appears to be stable or decreasing.

This certainly does not prove that video games are harmless. The violent games most often played by young teens, like most of the Grand Theft Auto series, are rated M, for players 17 and older, for a reason and do merit parental supervision.

But despite parents’ worst fears, violence in video games may be less harmful than violence in movies or on the evening news. It does seem reasonable that virtually acting out a murder is worse than watching one. But there is no research supporting this, and one could just as easily argue that interactivity makes games less harmful: the player controls the action, and can stop playing if he feels overwhelmed or upset. And there is much better evidence to support psychological harm from exposure to violence on TV news.

In fact, such games (in moderation) may actually have some positive effects on developing minds.

As the court opinion notes, traditional fairy tales are chock-full of violence; a child experiences and learns to manage fears from the safety of Mom or Dad’s lap. Similarly, a teen can try out different identities — how it feels to be a hero, a trickster, a feared or scorned killer, or someone of a different age or sex — in the safe fantasy world of a video game.

In the end, the most harmful assumption in the California law is that we know enough about the effects of video games to recommend policy solutions. (I was one of dozens of advisers for a supporting brief filed by those who challenged the law.) Almost no studies of video games and youth have been designed with policy in mind. If we want to mitigate risks of harm to our children (or the risk that our children will harm others), we need research on the specific effects of the most commonly played violent games, and of playing violent games in social groups.

We know virtually nothing, for instance, about how youths who are already prone to violent behavior, such as those exposed to violence at home and in their neighborhoods, use these games. Do they play them differently from the way other children do? Do they react differently? And if so, how might we limit the risks involved?

We need to reframe our view of video games. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. concurred with the majority’s opinion, but with some reservations: “We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time,” Justice Alito wrote. This is excellent advice, but only if we are willing to consider that video games may have potential benefits as well as potential risks.

 

Cheryl K. Olson, a public health researcher, is a co-author of “Grand Theft Childhood: The Surprising Truth About Violent Video Games and What Parents Can Do.”

    It’s Perverse, but It’s Also Pretend, NYT, 27.6.2011,
    http://www.nytimes.com/2011/06/28/opinion/28olson.html

The First Amendment, Upside Down

June 27, 2011
The New York Times


The Supreme Court decision striking down public matching funds in Arizona’s campaign finance system is a serious setback for American democracy. The opinion written by Chief Justice John Roberts Jr. in Monday’s 5-to-4 decision shows again the conservative majority’s contempt for campaign finance laws that aim to provide some balance to the unlimited amounts of money flooding the political system.

In the Citizens United case, the court ruled that the government may not ban corporations, unions and other moneyed institutions from spending in political campaigns. The Arizona decision is a companion to that destructive landmark ruling. It takes away a vital, innovative way of ensuring that candidates who do not have unlimited bank accounts can get enough public dollars to compete effectively.

Arizona’s campaign finance law provided a set amount of money in initial public support for candidates who opted into its financing system, depending on the type of election. If a candidate faced a rival who opted out, the state would match the spending of the privately financed candidate and independent groups supporting him, up to triple the initial amount. Once that limit is reached, the publicly financed candidate receives no other public funds and is barred from using private contributions, no matter how much more the privately financed candidate spends.

Chief Justice Roberts found that this mechanism “imposes a substantial burden” on the free speech rights of candidates and independent groups because it penalized them when their spending triggered additional money for a candidate who opted into the public program. The court turns the First Amendment on its head. It denies the actual effect of the Arizona law, which is not to limit spending but to increase it with public funds. The state program expands political speech by giving all candidates, not just the wealthy, a chance to run — while allowing privately financed candidates to spend as much as they want.

Justice Elena Kagan, writing in dissent, dissects the court’s willful misunderstanding of the result. Rather than a restriction on speech, she says, the trigger mechanism is a subsidy with the opposite effect: “It subsidizes and produces more political speech.” Those challenging the law, she wrote, demanded — and have now won — the right to “quash others’ speech” so they could have “the field to themselves.” She explained that the matching funds program — unlike a lump sum grant to candidates — sensibly adjusted the amount disbursed so that it was neither too little money to attract candidates nor too large a drain on public coffers.

Arizona’s system was a response to a history of terrible corruption in the state’s politics. Rather than seeing the law as a way to control corruption, the court struck it down as a limit on the right of wealthy candidates and independent groups to speak louder than others.

The ruling left in place other public financing systems without such trigger provisions, including public financing for presidential elections. It shows, however, how little the court cares about the interest of citizens in Arizona or elsewhere in keeping their electoral politics clean.

    The First Amendment, Upside Down, NYT, 27.6.2011,
    http://www.nytimes.com/2011/06/28/opinion/28tue1.html

Justices Reject Ban on Violent Video Games for Children

June 27, 2011
The New York Times
By ADAM LIPTAK

WASHINGTON — The Supreme Court on Monday struck down on First Amendment grounds a California law that banned the sale of violent video games to children. The 7-to-2 decision was the latest in a series of rulings protecting free speech, joining ones on funeral protests, videos showing cruelty to animals and political speech by corporations.

In a second decision Monday, the last day of the term, the court also struck down an Arizona campaign finance law as a violation of the First Amendment.

Justice Antonin Scalia, writing for five justices in the majority in the video games decision, Brown v. Entertainment Merchants Association, No. 08-1448, said video games were subject to full First Amendment protection.

“Like the protected books, plays and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world),” Justice Scalia wrote. “That suffices to confer First Amendment protection.”

Depictions of violence, Justice Scalia added, have never been subject to government regulation. “Grimm’s Fairy Tales, for example, are grim indeed,” he wrote, recounting the gory plots of “Snow White,” “Cinderella” and “Hansel and Gretel.” High school reading lists and Saturday morning cartoons, too, he said, are riddled with violence.

The California law would have imposed $1,000 fines on stores that sold violent video games to anyone under 18.

It defined violent games as those “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” in a way that was “patently offensive,” appealed to minors’ “deviant or morbid interests” and lacked “serious literary, artistic, political or scientific value.”

The definitions tracked language from decisions upholding laws regulating sexual content. In 1968, in Ginsberg v. New York, the court allowed limits on the distribution to minors of sexual materials like what it called “girlie magazines” that fell well short of obscenity, which is unprotected by the First Amendment.

Justice Scalia rejected the suggestion that depictions of violence are subject to regulation as obscenity. “Because speech about violence is not obscene,” he wrote, “it is of no consequence that California’s statute mimics the New York statute regulating obscenity-for-minors that we upheld in” the Ginsberg decision.

The video game industry, with annual domestic sales of more than $10 billion, welcomed Monday’s ruling.

“Everybody wins on this decision,” John Riccitiello, chief executive of Electronic Arts, one of the largest public video game companies, said in a statement. “The court has affirmed the constitutional rights of game developers, adults keep the right to decide what’s appropriate in their houses, and store owners can sell games without fear of criminal prosecution.”

Leland Yee, a California state senator who wrote the law, said in a statement that “the Supreme Court once again put the interests of corporate America before the interests of our children,” adding: “It is simply wrong that the video game industry can be allowed to put their profit margins over the rights of parents and the well-being of children.”

The industry had viewed the court’s decision to hear the case as worrisome, given that the lower courts had been in agreement that laws regulating violent expression were unconstitutional.

The justices had, moreover, agreed to hear the case just after issuing their 8-to-1 decision last year in United States v. Stevens, striking down a federal law making it a crime to buy and sell depictions of animal cruelty like dog fighting videos.

That also suggested that at least some of the justices had viewed California’s law as problematic.

But on Monday, the majority said the Stevens decision required the court to strike down the California law. Only a few kinds of speech, like incitement, obscenity and fighting words, are beyond the protection of the First Amendment, Justice Scalia said, adding that the court would not lightly create new excluded categories.

Stevens did not involve speech directed to minors, but the majority said the California law’s goal of protecting children from seeing violence did not alter the constitutional analysis.

“No doubt a state possesses legitimate power to protect children from harm,” Justice Scalia wrote, “but that does not include a free-floating power to restrict the ideas to which children may be exposed.”

Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined the majority opinion in the case.

Justice Samuel A. Alito Jr., in a concurrence joined by Chief Justice John G. Roberts Jr., voted with the majority but did not adopt its reasoning. Justice Alito said the California law was too vague. A more carefully worded law, he wrote, might survive constitutional scrutiny.

Justice Alito said the majority opinion was too quick to dismiss differences between current video games and other media.

“The objective of one game is to rape a mother and her daughters,” he wrote. In another, “players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository.”

Soon, he added, children may play three-dimensional high-definition games wearing equipment that will allow them to “actually feel the splatting blood from the blown-off head” of a victim.

Justice Scalia acknowledged that Justice Alito had identified some disturbing images. “But disgust,” Justice Scalia wrote, “is not a valid basis for restricting expression.”

Justices Clarence Thomas and Stephen G. Breyer filed separate dissents. Justice Thomas said the drafters of the First Amendment did not understand it to protect minors’ free speech rights.

“ ‘The freedom of speech,’ as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians,” Justice Thomas wrote.

Justice Scalia, who shares with Justice Thomas a commitment to interpreting the Constitution in accord with its original meaning, parted ways with his usual ally on this point. “He cites no case, state or federal, supporting this view, and to our knowledge there is none,” Justice Scalia wrote of Justice Thomas.

Justice Breyer also dissented, saying the statute survived First Amendment scrutiny. He relied on studies that he said showed violent video games were positively associated with aggressive behavior.

“Unlike the majority,” Justice Breyer wrote, “I would find sufficient grounds in these studies and expert opinions for this court to defer to an elected legislature’s conclusion that the video games in question are particularly likely to harm children.”

 

Matt Richtel contributed reporting from San Francisco.

    Justices Reject Ban on Violent Video Games for Children, NYT, 27.6.2011,
    http://www.nytimes.com/2011/06/28/us/28scotus.html

Can Justice Be Bought?

June 15, 2011
The New York Times

Two years ago, the Supreme Court tried to bolster public trust in the nation’s justice system by disqualifying a state judge in West Virginia from a case that involved a coal company executive who had spent more than $3 million to help get the judge elected.

At a time when torrents of special interest campaign spending is threatening the appearance and reality of judicial impartiality, the ruling in Caperton v. Massey drove home the need for states to adopt more rigorous rules for recusal. The message has largely gone unheeded.

For the most part, state courts set their own recusal rules. According to New York University’s Brennan Center for Justice and Justice at Stake Campaign, so far, courts in nine states — Arizona, California, Iowa, Michigan, Missouri, New York, Oklahoma, Utah and Washington State — have made recusal mandatory when contributions by a party or attorney exceed a certain threshold amount or create a question about the judge’s impartiality.

Courts in two other states are considering similar proposals. But several other states have rejected stronger rules — or have actually weakened them.

In 2009, Nevada’s top court rejected a reform commission’s modest proposal to make recusal mandatory when a judge received contributions totaling $50,000 or more from a party or lawyer over the previous six years.

Last year, in Wisconsin — home to some of the nastiest big-money judicial races — the State Supreme Court rejected proposals to trigger recusal at $1,000 or $10,000 contribution levels. Then the court weakened the recusal standard, adopting a new rule that campaign donations or expenditures can never be the sole basis for a judge’s disqualification.

The remaining states, including epicenters of special-interest-dominated contests like Illinois and Pennsylvania, have done nothing to keep campaign cash from tainting the courtroom. The Supreme Court has ensured the money problem will get worse with its 2010 ruling allowing unlimited special interest spending in all campaigns.

Many judges wrongly view mandatory disqualification rules involving election money as a personal insult and a threat to judicial independence. The real threat to independence lies in doing nothing to protect judicial integrity in the face of obvious conflicts.

The American Bar Association should be leading the way here. In an encouraging step, the group’s president, Stephen Zack, has seen to it that the issue will be taken up at the August meeting of the association’s House of Delegates. By adding a strong recusal provision to its influential model code of judicial conduct, the bar association would provide needed guidance to state judiciaries and help goad them to do the right thing.

A good rule would have four basic elements. It should explicitly recognize that recusal may be necessary because of campaign spending by litigants or their lawyers. It should specify that the final decision about whether a judge’s impartiality can reasonably be questioned not be left to the challenged judge. It should require that decisions on recusal requests be in writing. Finally, litigants and attorneys must be required to disclose any campaign spending relating to a judge or judges hearing their case.

    Can Justice Be Bought?, NYT, 15.6.2011, http://www.nytimes.com/2011/06/16/opinion/16thu1.html

David C. Baldus, 75, Dies; Studied Race and the Law

June 14, 2011
The New York Times
By ADAM LIPTAK

David C. Baldus, whose pioneering research on race and the death penalty came within a vote of persuading the Supreme Court to make fundamental changes in the capital justice system, died on Monday at his home in Iowa City. He was 75.

The cause was complications of colon cancer, his wife, Joyce C. Carman, said.

Professor Baldus’s work was at the center of a 1987 Supreme Court decision, McCleskey v. Kemp, which ruled that even solid statistical evidence of racial disparities in the administration of the death penalty did not offend the Constitution. The 5-to-4 ruling closed off what had seemed to opponents of the death penalty a promising line of attack.

The Supreme Court had reinstated the death penalty in 1976 in Gregg v. Georgia after a four-year moratorium. Georgia and other states had in the meantime enacted provisions meant to address discrimination in capital punishment.

“It seemed to us that Gregg had indulged the assumption that race had been flushed out of the system,” said John C. Boger, who argued the McCleskey case for the defendant and who is now dean of the University of North Carolina School of Law.

Professor Baldus, a longtime faculty member at the University of Iowa College of Law, and two colleagues, Charles Pulaski and George Woodworth, set out to test that assumption. Their study examined more than 2,000 murders in Georgia, controlling for some 230 variables.

The study’s findings have often been misunderstood. They did not show that blacks were significantly more likely to be sentenced to death than whites. What the study found was that people accused of killing white victims were four times as likely to be sentenced to death as those accused of killing black victims. In other words, a death sentence often hinged not on the race of the defendant but on the race of the victim.

Professor Baldus’s work was meticulous, said Anthony G. Amsterdam, a law professor at New York University and an authority on the death penalty. “Dave had a unique genius for digging into masses of messy factual information and discovering crucial human forces at work behind the purportedly impersonal administration of criminal law,” Professor Amsterdam said.

The study was presented to the Supreme Court by lawyers for Warren McCleskey, a black man sentenced to die for killing a white police officer. “David was really the whole foundation of the case,” Dean Boger said.

But Justice Lewis F. Powell Jr., writing for the majority, said individual criminal cases cannot be decided on the basis of social science research, however sound.

“In light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants,” Justice Powell wrote, “we hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process.”

In 1991, after he retired, Justice Powell was asked whether there was any vote he would have liked to change.

“Yes,” he told his biographer, John C. Jeffries Jr. “McCleskey v. Kemp.”

Justice John Paul Stevens, who retired last year and who was one of the dissenters, wrote about the case in December in The New York Review of Books.

“That the murder of black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings,” Justice Stevens wrote.

David Christopher Baldus was born in Wheeling, W.Va., on June 23, 1935. He was educated at Dartmouth College, the University of Pittsburgh and Yale Law School. He joined the University of Iowa College of Law faculty in 1969.

Professor Baldus wrote two books, “Statistical Proof of Discrimination” and “Equal Justice and the Death Penalty.”

Professor Baldus’s first marriage ended in divorce. In addition to his wife, he is survived by a sister, Sue Gittins of Port Charlotte, Fla.; two daughters from his first marriage, Katherine Baldus and Helen Baldus, both of Brooklyn; and four stepchildren, Jeffrey Carman of Paducah, Ky., Craig Carman of Iowa City, and Kate Robinson and Glen Carman, both of Chicago.

In a 1995 speech on what he called “the death penalty dialogue between law and social science,” Professor Baldus considered what had led the Supreme Court to allow executions to proceed in the face of his study.

“Perhaps most important, in my estimation,” he said, “is that race-of-victim discrimination does not raise the same sort of moral concerns as race-of-defendant discrimination — even though, from a constitutional standpoint, discrimination on the basis of any racial aspect of the case is illegitimate.”

    David C. Baldus, 75, Dies; Studied Race and the Law, NYT, 14.6.2011,
    http://www.nytimes.com/2011/06/15/us/15baldus.html

Malign Neglect

May 21, 2011
The New York Times

Extraordinary rendition — the abduction of foreigners, often innocent ones, by American agents who sent them to countries well known for torturing prisoners — was central to President George W. Bush’s antiterrorism policy. His administration then used wildly broad claims of state secrets to thwart any accountability for this immoral practice.

President Obama has adopted the same legal tactic of using the secrecy privilege to kill lawsuits. So the only hope was that the courts would not permit these widely known abuses of power to go unchecked.

Last Monday, the Supreme Court abdicated that duty. It declined to review a case brought by five individuals who say — credibly — that they were kidnapped and tortured in overseas prisons. The question was whether people injured by illegal interrogation and detention should be allowed their day in court or summarily tossed out.

The court’s choice is a major stain on American justice. By slamming its door on these victims without explanation, it removed the essential judicial block against the executive branch’s use of claims of secrecy to cover up misconduct that shocks the conscience. It has further diminished any hope of obtaining a definitive ruling that the government’s conduct was illegal — a vital step for repairing damage and preventing future abuses.

The lead plaintiff, an Ethiopian citizen and resident of Britain named Binyam Mohamed, was arrested in Pakistan in 2002. The C.I.A. turned him over to Moroccan interrogators, who subjected him to brutal treatment that he says included cutting his penis with a scalpel and then pouring a hot, stinging liquid on the open wound.

After the trial court gave in to the secrecy argument, a three-judge panel of the Ninth Circuit Court of Appeals ruled that the case should proceed. It said the idea that the executive branch was entitled to have lawsuits shut down with a blanket claim of national security would “effectively cordon off all secret actions from judicial scrutiny, immunizing the C.I.A. and its partners from the demands and limits of the law.”

Last September, the full appeals court, ruling en banc, reversed that decision by a 6-to-5 vote. The dissenters noted that the basic facts of the plaintiffs’ renditions were already public knowledge. But the majority gave in to the pretzel logic shaped by the Bush administration that allowing the torture victims a chance to make their case in court using nonsecret evidence would risk divulging state secrets.

The Supreme Court allowed that nonsense to stand.

It is difficult to believe there are legitimate secrets regarding the plaintiffs’ ill treatment at this late date. Last year, a British court released secret files containing the assessment of British intelligence that the detention of Mr. Mohamed violated legal prohibitions against torture and cruel and degrading treatment.

The Supreme Court should have grabbed the case and used it to rein in the distorted use of the state secrets privilege, a court-created doctrine meant to shield sensitive evidence in actions against the government, not to dismiss cases before evidence is produced.

But this is not the first time the Supreme Court has abdicated its responsibility to hear cases involving national security questions of this sort. A year ago, the Supreme Court refused to consider the claims of Maher Arar, an innocent Canadian whom the Bush administration sent to Syria to be tortured. In 2007, the court could not muster the four votes needed to grant review in the case of Khaled el-Masri, a German citizen subjected to torture in a secret overseas prison.

As President Obama’s first solicitor general, Justice Elena Kagan was in on the benighted decision to use overwrought secrecy claims to stop any hearing for torture victims. She properly recused herself from voting on the case. Surely among the eight remaining judges there was at least one sensitive to the gross violation of rights, and apparently law. We wish they would have at least offered a dissent or comment to let the world know that the court’s indifference was not unanimous.

Instead, what the world sees is rendition victims blocked from American courts while architects of their torment write books bragging about their role in this legal and moral travesty. Some torture victims bounced from American courts, including Mr. Mohamed and Mr. Arar, have received money from nations with comparatively minor involvement in their ordeals.

The Supreme Court’s action ends an important legal case, but not President Obama’s duty to acknowledge what occurred, and to come up with ways to compensate torture victims and advance accountability. It is hard, right now, to be optimistic.

    Malign Neglect, NYT, 21.5.2011, http://www.nytimes.com/2011/05/22/opinion/22sun1.html

Juvenile Killers in Jail for Life Seek a Reprieve

April 20, 2011
The New York Times
By ADAM LIPTAK and LISA FAYE PETAK

CHARLESTON, Mo. — More than a decade ago, a 14-year-old boy killed his stepbrother in a scuffle that escalated from goofing around with a blowgun to an angry threat with a bow and arrow to the fatal thrust of a hunting knife.

The boy, Quantel Lotts, had spent part of the morning playing with Pokémon cards. He was in seventh grade and not yet five feet tall.

Mr. Lotts is 25 now, and he is in the maximum-security prison here, serving a sentence of life without the possibility of parole for murder.

The victim’s mother, Tammy Lotts, said she lost two children on that November day in 1999. One was a son, Michael Barton, who was 17 when he died. The other was a stepson, Mr. Lotts.

“I don’t feel he’s guilty,” she said of Mr. Lotts in the living room of her modest St. Louis apartment, growing emotional. “But if he was, he’s already done his time. He should be released. Time served. If they think that’s too easy, let somebody look over his case.”

As things stand now, though, the law gives Mr. Lotts no hope of ever getting out.

Almost a year ago, the Supreme Court ruled that sentencing juvenile offenders to life without the possibility of parole violated the Eighth Amendment’s ban on cruel and unusual punishment — but only for crimes that did not involve killings. The decision affected around 130 prisoners convicted of crimes like rape, armed robbery and kidnapping.

Now the inevitable follow-up cases have started to arrive at the Supreme Court. Last month, lawyers for two other prisoners who were 14 when they were involved in murders filed the first petitions urging the justices to extend last’s year’s decision, Graham v. Florida, to all 13- and 14-year-old offenders.

The Supreme Court has been methodically whittling away at severe sentences. It has banned the death penalty for juvenile offenders, the mentally disabled and those convicted of crimes other than murder. The Graham decision for the first time excluded a class of offenders from a punishment other than death.

This progression suggests it should not be long until the justices decide to address the question posed in the petitions. An extension of the Graham decision to all juvenile offenders would affect about 2,500 prisoners.

Mr. Lotts, a stout man with an easy manner, said he was not reconciled to his sentence. “I understand that I deserve some punishment,” he said. “But to be put here for the rest of my life with no chance, I don’t think that’s a fair sentence.”

Much of the logic of the Graham decision and the court’s 2005 decision banning the death penalty for juvenile offenders, Roper v. Simmons, would seem to apply to the new cases.

The majority opinions in both were written by Justice Anthony M. Kennedy, who said teenagers deserved more lenient treatment than adults because they are immature, impulsive, susceptible to peer pressure and able to change for the better over time. Justice Kennedy added that there was an international consensus against sentencing juveniles to life without parole, which he said had been “rejected the world over.”

One factor cuts in the opposite direction. Justice Kennedy relied on what he called a national consensus against the punishment for crimes that did not involve killings. Juvenile offenders were sentenced to life without parole for such nonhomicide crimes, he wrote, in only 12 states and even then rarely.

There does not appear to be such a consensus against life without parole sentences for juveniles who take a life. That may be why opponents of the punishment are focusing for now on killings committed by very young offenders like Mr. Lotts.

That strategy follows the one used in attacking the juvenile death penalty, which the Supreme Court eliminated in two stages, banning it for those under 16 in 1988 and those under 18 in 2005.

Kent S. Scheidegger, the legal director of the Criminal Justice Legal Foundation, a victims’ rights group, said that categorical approaches were misguided in general and particularly unjustified where murders by young offenders were involved.

“Since I think Graham is wrong,” he said, “extending it to homicides would be wrong squared.”

“Sharp cutoffs by age, where a person’s legal status changes suddenly on some birthday, are only a crude approximation of correct policy,” he added. There are around 70 prisoners serving sentences of life without parole for homicides committed when they were 14 or younger, according to a report by the Equal Justice Initiative, a nonprofit law firm in Alabama that represents poor people and prisoners.

The effort to extend the Graham decision has so far been unsuccessful in the lower courts. According to a study to be published in The New York University Review of Law and Social Change by Scott Hechinger, a fellow at the Partnership for Children’s Rights, 10 courts have decided not to apply Graham to cases involving killings committed by the defendants, and seven others have said the same thing where the defendants were accomplices to murders. Courts have reached differing results, though, where the offense was attempted murder.

All of this suggests that the question left open in Graham may only be answered by the Supreme Court. In March, lawyers with the Equal Justice Initiative asked the justices to hear the two cases raising the question.

One concerns Kuntrell Jackson, an Arkansas man who was 14 when he and two older youths tried to rob a video store in 1999. One of the other youths shot and killed a store clerk.

The second case involves Evan Miller, an Alabama prisoner who was 14 in 2003 when he and an older youth beat a 52-year-old neighbor and set fire to his home after the three had spent the evening smoking pot and playing drinking games. The neighbor died of smoke inhalation.

In Mr. Lotts’s case, too, state and federal courts in Missouri have said that his sentence is constitutional. In December, in a different case, the Missouri Supreme Court divided 4-to-3 over the constitutionality of the punishment in a case involving the killing of a St. Louis police officer.

A dissenting judge, Michael A. Wolff, wrote that “juveniles should not be sentenced to die in prison any more than they should be sent to prison to be executed.”

At the prison here, about 130 miles south of St. Louis, Mr. Lotts said he had grown up around drugs and violence, and he acknowledged that he used to have a combustible temper. But he said the years he spent living with his father and Ms. Lotts were good ones.

He and his brother Dorell were inseparable, he recalled, from Ms. Lotts’s three boys. The group was sometimes taunted because Quantel and Dorell were black and the other boys were white.

“If you wanted to fight one of us,” he said, “you had to fight all of us.”

He said he recalled very little about assaulting Michael. But he said he knew some things for sure.

“That’s my brother,” he said. “Why would I want to kill my brother? That’s not what I set out to do. That’s not what I meant to do. That’s not what I intended to do.”

Tammy Lotts said race figured in her stepson’s trial. “They said a black boy stabbed a white boy,” she said. For years, state officials prohibited her from visiting Mr. Lotts, fearing she would try to harm him. “I’m the victim’s mother,” she said, shrugging.

At the prison last week, Mr. Lotts was wearing a handsome wedding ring, and it prompted questions. Beaming, he said he had been married just a few weeks before to a woman who had written to him after hearing him interviewed. He pointed to where the ceremony had taken place, a couple of yards away, near the vending machines.

Ms. Lotts attended the wedding, but only after satisfying herself that the bride was a suitable match.

“She’s marrying my son,” Ms. Lotts explained.

    Juvenile Killers in Jail for Life Seek a Reprieve, NYT, 20.4.2011,
    http://www.nytimes.com/2011/04/21/us/21juvenile.html

Unfettered Money

April 11, 2011
The New York Times

When the Supreme Court ruled that money equals speech 35 years ago, it was responding to forces of technology and economics reshaping American politics that made it much more expensive to run a campaign. While ruling that public financing and limits on contributions are valid ways to limit donors’ undue influence, it struck down candidate, campaign and independent spending limits.

Now the court’s conservative majority is again reshaping politics, ruling that what matters most for money and speech is their “fair market” impact. The result will be closer scrutiny of public financing, while enabling even more rampant spending by wealthy candidates.

In the landmark 1976 case of Buckley v. Valeo, the court said that “virtually every means of communicating ideas in today’s mass society requires the expenditure of money,” so restricting campaign spending meant restricting political speech. The First Amendment required that political speech be unfettered, so the same was required for political spending.

But when the court ruled that money equals speech, it didn’t mean, literally, that money is speech. It meant that money enabled speech. A political contribution enabled the symbolic, or indirect, speech of the donor and the actual speech of the candidate — and may the best speech win. The focus was on enabling the speech, not the money.

That changed in 2008 when the conservative majority struck down a federal rule that had tripled the limit on campaign contributions for a candidate outspent by a rich, self-financed opponent. Justice Samuel Alito Jr. wrote that the rule diminished “the effectiveness” of the rich candidate’s spending and of his speech.

In oral argument recently, the court’s conservatives appeared ready to take their next step in restricting campaign finance reform and to strike down Arizona’s public financing mechanism called triggered matching funds. This is one of the most compelling innovations in the country. The state will match for a state-financed candidate what an opponent raises in private contributions up to triple the initial amount of state financing.

To William Maurer, the lawyer opposing the Arizona mechanism, whenever “a privately financed candidate speaks above a certain amount, the government creates real penalties for them to have engaged in unfettered political expression.” That “speaks” was not a slip, but a reinforcement of the money-equals-speech notion.

The fundamental problem, he said, is “the government turning my speech into the vehicle by which my entire political message is undercut,” because the public funds triggered are a penalty that reduces the impact of the privately financed candidate’s spending and speech. Chief Justice John Roberts Jr. made clear in the argument that he, too, sees triggered matching public funds as a limit on the privately financed candidate’s speech.

That makes no sense. Arizona’s mechanism means more candidates — not just the wealthy — will be able to run in elections. And that means more political speech, not less. But that view depends on seeing money as enabling speech, not vice versa. Money already has far too much sway everywhere in politics. If the court continues this way, the damage and corruption will be enormous.

    Unfettered Money, NYT, 11.4.2011, http://www.nytimes.com/2011/04/12/opinion/12tue1.html

$14 Million Jury Award to Ex-Inmate Is Dismissed

March 29, 2011
The New York Times
By ADAM LIPTAK

WASHINGTON — The Supreme Court on Tuesday threw out a $14 million jury award in favor of a former death row inmate who was freed after prosecutorial misconduct came to light.

The 5-to-4 decision divided along the court’s ideological fault line and prompted the first dissent read from the bench this term, from Justice Ruth Bader Ginsburg.

The former inmate, John Thompson, had sued Harry F. Connick, a former district attorney in New Orleans, saying his office had not trained prosecutors to turn over exculpatory evidence. Prosecutors in the office had failed to give Mr. Thompson’s lawyers a report showing that blood at a crime scene was not his.

Justice Clarence Thomas, writing for the majority, said that only a pattern of misconduct would warrant holding Mr. Connick accountable for what happened on his watch.

Mr. Thompson spent 18 years in prison, 14 of them on death row. “I was delivered an execution warrant in my cell seven times,” he said in a statement on Tuesday. “I was only weeks from being executed when my lawyers got the killing stopped.”

The blood evidence would have proved Mr. Thompson innocent of a 1984 armed robbery. Soon after he was convicted on that charge, prosecutors tried him for an unrelated murder. After the failure to turn over the blood evidence came to light in 1999, prosecutors dismissed the armed robbery charges. A state appeals court later reversed the murder conviction, reasoning that Mr. Thompson’s armed robbery conviction had dissuaded him from testifying in his own defense in the murder case. In 2003, Mr. Thompson was retried for the murder and found not guilty.

“The role of a prosecutor,” Justice Thomas wrote, “is to see that justice is done.”

“By their own admission,” he continued, “the prosecutors who tried Thompson’s armed robbery case failed to carry out this responsibility. But the only issue before us is whether Connick, as the policy maker for the district attorney’s office, was deliberately indifferent to the need to train the attorneys under his authority.”

The answer to that question was no, Justice Thomas wrote, given what he said was an absence of proof concerning a pattern of misconduct.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Samuel A. Alito Jr. joined Justice Thomas’s opinion.

Justice Scalia, in a concurrence joined by Justice Alito, said the misconduct in the case was the work of a single “miscreant prosecutor,” Gerry Deegan, who suppressed evidence “he believed to be exculpatory, in an effort to railroad Thompson.” No amount of training, Justice Scalia wrote, would have countered such willful wrongdoing.

In her dissent, Justice Ginsburg wrote that “no fewer than five prosecutors” were complicit in a violation of Mr. Thompson’s constitutional rights. “They kept from him, year upon year, evidence vital to his defense.”

The prosecutors’ conduct, Justice Ginsburg wrote, “was a foreseeable consequence of lax training.” Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined the dissent.

At a news conference on Tuesday, Leon A. Cannizzaro Jr., the current district attorney in New Orleans, expressed relief over not having to pay a judgment that with interest was approaching $20 million, more than his office’s annual budget. He said his office “should not be held financially responsible for the intentional, unethical and illegal acts of a rogue prosecutor.”

Mr. Thompson expressed frustration about the Supreme Court’s ruling in his case, Connick v. Thompson, No. 09-571.

“If I’d spilled hot coffee on myself, I could have sued the person who served me the coffee,” he said. “But I can’t sue the prosecutors who nearly murdered me.”


Campbell Robertson contributed reporting from New Orleans.

    $14 Million Jury Award to Ex-Inmate Is Dismissed, NYT, 29.3.2011,    http://www.nytimes.com/2011/03/30/us/30scotus.html

Justices Deny New Appeal by Convict in Georgia

March 28, 2011
The New York Times
By ADAM LIPTAK

WASHINGTON — The Supreme Court on Monday turned down what were probably the last set of appeals from Troy Davis, a death row inmate from Georgia who was convicted of murdering an off-duty police officer and whose case has attracted international attention.

In 2009, Mr. Davis obtained a new hearing from the Supreme Court by an unusual route, filing an original writ of habeas corpus with the justices rather than appealing from a lower-court ruling. The court responded by ordering a federal trial court in Georgia to consider whether new evidence clearly established Mr. Davis’s innocence. Several witnesses in the case against him had recanted, and some had implicated the prosecution’s main witness as the actual killer.

In August, the trial judge, Judge William T. Moore Jr., concluded that Mr. Davis’s evidence was “largely smoke and mirrors.” On Monday, the justices refused to review that ruling.

In other action on Monday, the court agreed to decide when schools run by churches are subject to federal antidiscrimination laws. Courts have recognized a “ministerial exception” to such laws grounded in religious freedom. That exception precludes judicial interference with relationships between churches and some employees with religious duties. But the courts have disagreed about the scope of the exception.

The case the court agreed to hear, Hosanna-Tabor Church v. Equal Employment Opportunity Commission, No. 10-553, involves a teacher at a Michigan school run by a Lutheran church who says she was discriminated against based on a disability, narcolepsy, in violation of federal law. The teacher, Cheryl Perich, taught mostly secular subjects but also taught four half-hour religion classes each week and attended chapel with her class.

A three-judge panel of the federal appeals court in Cincinnati ruled that the ministerial exception did not apply and that the suit could go forward, saying that “Perich’s primary duties were secular.” The church, in urging the Supreme Court to hear the case, said the appeals court had engaged in improper “religious second-guessing.”

    Justices Deny New Appeal by Convict in Georgia, NYT, 28.3.2011,
    http://www.nytimes.com/2011/03/29/us/29teacher.html

Indefensible Detention

March 10, 2011
The New York Times


Should a former attorney general be held personally liable for brazenly misusing the material witness statute when he was in office to hold an American man in brutal conditions on the pretext that he was a witness in a case in which he was never called to testify?

At last week’s Supreme Court argument in Ashcroft v. al-Kidd, which turns on that question, the justices’ silence suggested they are reluctant to do that — and, in addition, would prefer to avert their eyes from the misuse of the statute.

Before letting John Ashcroft, a former attorney general, off the hook and giving the Justice Department a pass to continue misusing that law, the justices should read an amicus brief in support of Abdullah al-Kidd by 31 former federal prosecutors, including former United States attorneys in New York, Illinois and California.

The brief makes clear that the argument presented to the court by the acting solicitor general, contending that Mr. Ashcroft is immune from prosecution and all but ignoring the disgraceful conduct from which he seeks immunity, is hardly Justice Department gospel.

The former prosecutors’ brief underscores why the justices should uphold the judgment of the United States Court of Appeals for the Ninth Circuit that Mr. Ashcroft forfeited immunity when he devised the strategy that led to the statute’s misuse.

It emphasizes why they should rule that the material witness statute, letting the government keep a witness from fleeing before testifying about an alleged crime by somebody else, can never be used as a pretext to hold someone for investigation or building a case against him.

Because Mr. Ashcroft chose to appeal before a full record could be developed in this case, the justices must accept as true the facts that Mr. Kidd’s complaint alleges and draw reasonable inferences about them in his favor.

The facts are that, without a claim he had broken any law and as one of four seized as part of the F.B.I.’s wider “Idaho probe,” Mr. Kidd was arrested, strip-searched, shackled and jailed for 15 days — handled like a suspect, not a witness. Against him and others, the Justice Department used the statute, Mr. Kidd’s lawyers inferred and others must as well, “to detain and investigate suspects for whom the government lacked probable cause of wrongdoing, and not to secure testimony.”

The government contends that Mr. Ashcroft didn’t have to intend to use Mr. Kidd as a witness to detain him because the then-attorney general’s motivation was irrelevant. But to the former prosecutors, it is “settled understanding” that the statute has “no other legitimate purpose” except to hold a witness for testimony.

It can’t be used to detain someone because it simply doesn’t grant that power. The Non-Detention Act says clearly: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” After Sept. 11, 2001, Mr. Ashcroft asked Congress for that authority. Congress said no — and the Justice Department’s misuse of the material witness statute was a ruse to get around that rebuff.

Despite the “settled understanding” to the contrary, the department got away with that ruse until this case. The Supreme Court should say it has no power to do so.

    Indefensible Detention, NYT, 10.3.2011, http://www.nytimes.com/2011/03/11/opinion/11fri1.html

Supreme Court Allows Suit to Force DNA Testing of Evidence

March 7, 2011
The New York Times
By ADAM LIPTAK

WASHINGTON — The Supreme Court on Monday made it easier for inmates to sue for access to DNA evidence that could prove their innocence.

The legal issue in the case was tightly focused, and quite preliminary: Was Hank Skinner, a death row inmate in Texas, entitled to sue a prosecutor there under a federal civil rights law for refusing to allow testing of DNA evidence in his case? By a 6-to-3 vote, the court said yes, rejecting a line of lower-court decisions that had said the only proper procedural route for such challenges was a petition for habeas corpus.

In her opinion for the majority, Justice Ruth Bader Ginsburg emphasized how narrowly the court was ruling. Allowing Mr. Skinner to sue, she said, is not the same thing as saying he should win his suit.

Justice Ginsburg added that a 2009 decision, District Attorney’s Office v. Osborne, had severely limited the kinds of claims that prisoners who are seeking DNA evidence can make. The Osborne decision, Justice Ginsburg wrote, “left slim room for the prisoner to show that the governing state law denies him procedural due process.”

The case that was decided on Monday, Skinner v. Switzer, No. 09-9000, arose from three killings on New Year’s Eve in 1993. Mr. Skinner contends that he was asleep on a sofa in a vodka-and-codeine haze that night when his girlfriend, Twila Busby, and her two sons were killed. Mr. Skinner says that an uncle of Ms. Busby, Robert Donnell, who has since died, was probably the killer.

Prosecutors tested some but not all of the evidence from the crime scene. Some of the test results pointed toward Mr. Skinner, who never denied that he was present, but some of the results did not. His trial lawyer, wary of what additional testing would show, did not ask for it.

In the years since Mr. Skinner was convicted, prosecutors have blocked his requests to test blood, fingernail scrapings and hair found at the scene. In their Supreme Court briefs, prosecutors accused Mr. Skinner of playing games with the system, dragging out his case and seeking to impose unacceptable burdens on government resources and the victims’ dignity. They added that testing would be pointless because “no item of evidence exists that would conclusively prove that Skinner did not commit the murder.”

In 2001, Texas enacted a law allowing post-conviction DNA testing in limited circumstances. State courts in Texas rejected Mr. Skinner’s requests under the law on the ground that he was at fault for not having sought testing earlier.

Mr. Skinner then sued in federal court under a federal civil rights law known as Section 1983, saying that the Texas law violated his right to due process. That suit was rejected in the lower federal courts on the ground that the proper vehicle for a challenge was a petition for habeas corpus.

Section 1983 suits are often more attractive to prisoners than habeas petitions because Congress and the Supreme Court have placed significant barriers in the path of inmates seeking habeas corpus.

Justice Ginsburg wrote that a Section 1983 suit was available in cases where the relief sought by the inmate would not “necessarily imply the invalidity of his conviction or sentence.” Since there was no telling whether the results of the tests Mr. Skinner sought would establish his guilt, clear him or be inconclusive, the suit was proper, she wrote.

Habeas petitions are appropriate, on the other hand, she wrote, where inmates seek “immediate or speedier release from confinement.”

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined the majority opinion.

Justice Clarence Thomas, joined by Justices Anthony M. Kennedy and Samuel A. Alito Jr., dissented. Justice Thomas predicted that the ruling on Monday would flood the courts with civil rights suits. “What prisoner would not avail himself of this additional bite at the apple?” Justice Thomas asked.

Justice Ginsburg responded that the decision was unlikely to prompt “any litigation flood or even rainfall.”

    Supreme Court Allows Suit to Force DNA Testing of Evidence, NYT, 7.3.2011, http://www.nytimes.com/2011/03/08/us/08scotus.html

Supreme Court allows military funeral anti-gay protests

WASHINGTON | Wed Mar 2, 2011
1:16pm EST
Reuters
By James Vicini

WASHINGTON (Reuters) - The Supreme Court ruled on Wednesday that members of a fundamentalist church have a free-speech right to hold anti-gay protests at military funerals to promote their view that God hates America for tolerating homosexuality.

In a case pitting free-speech versus privacy rights, the nation's highest court held that the picketing at a private funeral and even hurtful protest messages were protected by the U.S. Constitution's First Amendment.

The decision by an 8-1 vote was the latest in a long line of Supreme Court rulings that free-speech rights protected even outrageous or offensive conduct, including the burning of the American flag.

The ruling was a defeat for Albert Snyder, the father of a Marine killed in Iraq in 2006. He sued after the family's funeral service at a Roman Catholic Church in Westminster, Maryland, drew unwanted protests by members of the Westboro Baptist Church in Topeka, Kansas.

The protesters carried signs that stated, "God Hates You," "You Are Going To Hell," and "Thank God for Dead Soldiers."

Westboro Pastor Fred Phelps and other church members have protested hundreds of funerals of military members killed in Iraq or Afghanistan as part of their religious view that God is punishing America for its tolerance of gays and lesbians.

Phelps founded the church in 1955 and it has about 70 members made up mostly of his relatives.

In the court's opinion, Chief Justice John Roberts said the church's beliefs and its signs related to issues of public importance, including political and moral conduct in the United States.

Roberts said the country may not agree with the church's views, but said it cannot react to the pain the protesters inflicted by punishing the speaker.

"As a nation, we have chosen a different course -- to protect even hurtful speech on public issues to ensure that we do not stifle public debate," he said.

Roberts said the picketers peacefully displayed their signs for about 30 minutes before the funeral, sang hymns and recited Bible verses. None of the picketers entered church property or went to the cemetery and they did not yell or use profanity.

Only Justice Samuel Alito dissented from the ruling. He said the protesters could have gone to the White House, the U.S. Capitol, the Pentagon or the Supreme Court instead of disrupting the family's funeral.

'VICIOUS VERBAL ASSAULT'

"Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," Alito wrote.

Fordham University law professor Abner Greene in New York said, "The court has consistently ruled for speech interests over privacy interests. ... It's not really all that surprising."

Snyder sued in 2007 and said he had the right to bury his son in a private, dignified manner, free from unwanted disruption or harassment.

A jury awarded Snyder $10.9 million in damages for invasion of privacy and infliction of emotional distress, an amount cut by a federal judge to $5 million.

The Supreme Court ruled Snyder cannot collect any damages and overturned the jury's verdict on free-speech grounds.

The American Civil Liberties Union and more than 20 news organizations supported the church, saying free-speech rights protected even outrageous, offensive or unpopular messages.

Veterans groups, more than 40 U.S. senators and nearly all of the 50 states that now limit protests at military funerals supported Snyder.

Sarah Palin, the 2008 Republican vice presidential nominee, criticized the ruling, saying on Twitter it lacked "common sense & decency" by allowing hate messages at military funerals.

The Supreme Court case is Snyder v. Phelps, No. 09-751.

(Editing by Eric Beech)

    Supreme Court allows military funeral anti-gay protests, R, 2.3.2011, http://www.reuters.com/article/2011/03/02/us-usa-military-funerals-idUSTRE7213R320110302

Factbox: Important past Supreme Court free-speech cases

WASHINGTON | Wed Mar 2, 2011
12:13pm EST
Reuters

WASHINGTON (Reuters) - The Supreme Court ruled on Wednesday that a church has the free-speech right to hold anti-gay protests at military funerals to promote its view that God hates America for its tolerance of homosexuals.

The 8-1 ruling was a victory for the Westboro Baptist Church in Topeka, Kansas, whose members have picketed hundreds of funerals of military members killed in Iraq or Afghanistan as part of their religious belief that God is punishing America for tolerating gays and lesbians.

Chief Justice John Roberts wrote in the opinion that the United States has chosen to protect even hurtful speech on public issues to make sure public debate is not stifled. He made clear the court was not agreeing with Westboro's views.

Following are some similar previous Supreme Court free-speech cases:

PARODY OF THE REVEREND JERRY FALWELL

The Supreme Court in 1988 threw out a $200,000 award to the Reverend Jerry Falwell over a Hustler magazine parody that said his first sexual encounter occurred with his mother in an outhouse.

The court ruled that Falwell, a popular televangelist who was a leader of the conservative Christian movement, was a public figure and therefore could not collect libel damages for the infliction of emotional distress. Falwell died in 2007.

The latest decision cited the precedent from the Falwell case.

AMERICAN NAZIS WIN RIGHT TO MARCH IN JEWISH SUBURB

American Nazis won the right more than 30 years ago to march in the heavily Jewish Chicago suburb of Skokie, Illinois, which had a significant population of Holocaust survivors.

The American Civil Liberties Union had argued in favor of a Nazi group that sought a permit to march in their uniforms displaying swastikas.

The Supreme Court reversed lower-court rulings that had blocked the march. A U.S. appeals court in Chicago ultimately ruled that free-speech rights covered the march.

The civil liberties group also supported the Westboro Church on the grounds that free-speech rights protected even outrageous or offensive messages.

FLAG BURNING AS PROTECTED FREE SPEECH

The Supreme Court ruled in 1989 that burning the American flag was an act of symbolic speech protected by the First Amendment of the Constitution.

The court, by a 5-4 vote, overturned the conviction of Gregory Lee Johnson, who had burned a flag as part of a protest during the Republican Party convention in 1984 in Dallas.

"The government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable," the court said in its majority opinion.

(Reporting by James Vicini in Washington, Editing by Eric Beech)

    Factbox: Important past Supreme Court free-speech cases, R, 2.3.2011, http://www.reuters.com/article/2011/03/02/us-usa-military-funerals-factbox-idUSTRE7214RB20110302

A Right Without a Remedy

February 28, 2011
The New York Times

In a landmark case three years ago, the Supreme Court ruled that detainees at Guantánamo Bay, Cuba, who are not American citizens have “the constitutional privilege of habeas corpus.” It gives them the right to have a federal judge decide promptly whether their detention is illegal and, if so, order their release because the United States controls the place they are held. The 5-to-4 decision in what is known as the Boumediene case was a repudiation of the Bush strategy of imprisoning the detainees outside American territory so the Constitution would not apply. Or so many thought.

The United States Court of Appeals for the District of Columbia Circuit, the only circuit where detainees can challenge their detention, has dramatically restricted the Boumediene ruling. In its hands, habeas is no longer a remedy for the problem the Boumediene majority called “arbitrary and unlawful restraint.”

The sole recourse is for the Supreme Court, once again, to say what the Constitution requires judges to do in habeas cases. Fortunately, a case is at hand for the justices to do so in an appeal from the District of Columbia Circuit. In the Kiyemba case recently, five Uighur, or Chinese Muslim, detainees filed a brief with the Supreme Court in support of their petition for it to restore the power of federal trial judges to free them.

This appeal in no way threatens national security. The government has admitted that the Uighurs are not enemies, let alone enemy combatants. Refugees from China, they were mistakenly imprisoned during the Afghanistan war and sent to Guantánamo Bay in 2002. Other Uighurs accepted release to the island of Palau, 500 miles from the Philippines, but these five declined the offer because they have no connection to the island.

The appeal is about judicial power and the duty to use it. In 2008, a District of Columbia trial judge ordered the government to bring the Uighurs to his court to resolve how they should be released. The appeals court ruled that the judge lacked authority to free them in the United States because the “political branches” have “exclusive power” to decide which non-Americans can enter this country.

Judge Raymond Randolph of the District of Columbia Circuit wrote the key Kiyemba opinion. The Uighurs’ brief says, “The constant in this case is the court of appeals’ refusal to apply, or even acknowledge,” the Boumediene ruling.

Judge Randolph also wrote the opinion for the District of Columbia Circuit that the Supreme Court overturned in Boumediene. In a speech called “The Guantanamo Mess” last fall, he said that the justices were wrong to do so and all but expressed contempt for the holding. As the basis for the speech’s title, he compared the justices who reached it to characters in “The Great Gatsby.” “They were careless people,” he read. “They smashed things up ... and let other people clean up the mess they had made.”

In Kiyemba and related cases, however, it is Judge Randolph and others on the District of Columbia Circuit who are making the mess. Respected lawyers say they are subverting the Supreme Court and American justice. Of 140 challenging their detentionsin the face of this hostility, dozens who should have been freed will likely remain in prison.

Alexander Hamilton called “arbitrary imprisonments” by the executive “the favorite and most formidable instruments of tyranny.” In Boumediene, Justice Anthony Kennedy stressed that habeas is less about detainees’ rights, important as they are, than about the vital judicial power to check undue use of executive power.

The appellate court has all but nullified that view of judicial power and responsibility backed by Justice Kennedy and the court majority. The Supreme Court should remind the appellate court which one leads the federal judicial system and which has a solemn duty to follow.

    A Right Without a Remedy, NYT, 28.2.2011, http://www.nytimes.com/2011/03/01/opinion/01tue1.html

Court Weighs the Power of Congress

February 22, 2011
The New York Times
By ADAM LIPTAK

WASHINGTON — The Supreme Court heard arguments on Tuesday in a case that touched on the most pressing constitutional question of the day: just how much power does Congress have to regulate matters ordinarily left up to the states? The fate of President Obama’s health care law will turn on how that question is answered.

But based on the justices’ comments, the lurid facts of the case and the odd posture in which it reached the court, the eventual decision will probably offer only limited guidance on the health care law’s prospects.

The case heard Tuesday, Bond v. United States, No. 09-1227, arose from a domestic dispute. Carol A. Bond, a Pennsylvania woman, did not take it well when she learned that her husband was the father of her best friend’s child. She promised to make her former friend’s life “a living hell,” and she drew on her skills as a microbiologist to do so.

Ms. Bond spread harmful chemicals on her friend’s car, mailbox and doorknob. The friend suffered only a minor injury.

Such matters are usually handled by the local police and prosecutors. In Ms. Bond’s case, though, federal prosecutors charged her with using unconventional weapons in violation of the Chemical Weapons Convention of 1993, a treaty concerned with terrorists and rogue states.

At the argument, Justice Samuel A. Alito Jr. suggested that Congress had gone too far. Suppose, he said, that Ms. Bond had “decided to retaliate against her former friend by pouring a bottle of vinegar in the friend’s goldfish bowl.”

“As I read this statute, Justice Alito said, “that would be a violation of this statute, potentially punishable by life imprisonment.”

Ms. Bond’s lawyer, Paul D. Clement, said that a chemical used by his client was not much more exotic than vinegar. “There is something sort of odd about the government’s theory that says that I can buy a chemical weapon at Amazon.com,” he said.

In her appeal to the federal appeals court in Philadelphia, Ms. Bond argued that Congress did not have the constitutional power to use a chemical weapons treaty to address a matter of a sort routinely handled by state authorities. She cited the 10th Amendment, which says that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

The appeals court ruled that Ms. Bond did not have standing to raise a 10th Amendment defense. Only states, it said, can invoke the amendment.

Federal prosecutors initially embraced that line of argument, but the Justice Department abandoned it in the Supreme Court, now saying that Ms. Bond was free to try to mount a defense based on the amendment.

Since Ms. Bond and her nominal adversary agreed on the central issue in the case, the court appointed a lawyer, Stephen R. McAllister, to argue for the position the government had disowned.

The outcome of the case on the standing point did not seem in much doubt on Tuesday.

Chief Justice John G. Roberts Jr., for instance, said it would be “pretty harsh” to forbid Ms. Bond from challenging her conviction on the ground that the law under which she was convicted exceeded Congressional authority.

But the justices struggled with two other distinctions. One was how to disentangle claims that Congress had exceeded its enumerated powers in Article I of the Constitution from ones based on the 10th Amendment. The other was whether there were at least some 10th Amendment claims that could be pressed only by states.

Justice Elena Kagan suggested that the case could be decided simply on the ground that Congress had exceeded the powers listed in Article I of the Constitution.

“Are there any peculiarly 10th Amendment claims that you’re making?” she asked Mr. Clement. He replied that Ms. Bond relied “principally” on the argument that Congress had exceeded its powers but that it was possible the 10th Amendment played a role as well.

Justice Anthony M. Kennedy added that individuals had a role to play in cases that at first blush seem to implicate only a clash between federal and state sovereignty.

“Your underlying premise,” Justice Kennedy told Mr. McAllister, “is that the individual has no interest in whether or not the state has surrendered its powers to the federal government, and I just don’t think the Constitution was framed on that theory.”

    Court Weighs the Power of Congress, NYT, 22.2.2011, http://www.nytimes.com/2011/02/23/us/politics/23scotus.html

Court Upholds Law on Vaccine Suits

February 22, 2011
Filed at 3:43 p.m. EST
The New York Times
By THE ASSOCIATED PRESS


WASHINGTON (AP) — The Supreme Court closed the courthouse door Tuesday to parents who want to sue drug makers over claims that their children developed autism and other serious health problems from vaccines. The ruling was a stinging defeat for families dissatisfied with how they fared before a special no-fault vaccine court.

The court voted 6-2 against the parents of a child who sued the drug maker Wyeth in Pennsylvania state court for the health problems they say their daughter, now 19, suffered from a vaccine she received in infancy.

Justice Antonin Scalia, writing for the court, said Congress set up a special vaccine court in 1986 to handle such claims as a way to provide compensation to injured children without driving drug manufacturers from the vaccine market. The idea, he said, was to create a system that spares the drug companies the costs of defending against parents' lawsuits.

Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented. Nothing in the 1986 law "remotely suggests that Congress intended such a result," Sotomayor wrote, taking issue with Scalia.

Scalia's opinion was the latest legal setback for parents who felt they got too little from the vaccine court or failed to collect at all.

Such was the case for Robalee and Russell Bruesewitz of Pittsburgh, who filed their lawsuit after the vaccine court rejected their claims for compensation. According to the lawsuit, their daughter, Hannah, was a healthy infant until she received the diphtheria, tetanus and pertussis vaccine in April 1992. The vaccine was made by Wyeth, now owned by Pfizer, Inc.

Within hours of getting the DPT shot, the third in a series of five, the baby suffered a series of debilitating seizures. Hannah continues to suffer from residual seizure disorder, the lawsuit said.

A federal trial judge and the Philadelphia-based 3rd U.S. Circuit Court of Appeals ruled in favor of Wyeth. Indeed, state and federal appeals courts have almost always sided with the vaccine manufacturer in preventing the lawsuits from going forward.

Scalia confirmed that outcome Tuesday. He said that when a vaccine is properly prepared and is accompanied by proper directions and warnings, lawsuits over its side effects are not allowed under the 1986 law.

"Vaccine manufacturers fund from their sales an informal, efficient compensation program for vaccine injuries," Scalia said. "In exchange they avoid costly tort litigation and the occasional disproportionate jury verdict."

The American Academy of Pediatrics, representing more than 60,000 doctors, praised the decision. "Childhood vaccines are among the greatest medical breakthroughs of the last century," said Dr. Marion Burton, the group's president. "Today's Supreme Court decision protects children by strengthening our national immunization system and ensuring that vaccines will continue to prevent the spread of infectious diseases in this country."

Pfizer also applauded the decision. "We have great sympathy for the Bruesewitzes," Pfizer Executive Vice President and General Counsel Amy Schulman said, "We recognize, however, that the Vaccine Act provides for full consideration of the liability issues through the National Vaccine Injury Compensation Program. Here the Vaccine Court concluded that the petitioners failed to prove their child's condition was caused by vaccination."

But David Frederick, who represented the Bruesewitz family at the Supreme Court, said, "I'm disappointed for the families of victims of defectively designed vaccines, who now have no remedy at law for their injuries."

The vaccine court has paid out more than $1.9 billion to more than 2,500 people who claimed a connection between a vaccine and serious health problems.

The vaccine court is part of the U.S. Court of Federal Claims, which generally has jurisdiction over individuals' claims against the federal government. Under the 1986 law, the court appoints lawyers to serve four-year terms as special masters, and they hear claims of vaccine-related injuries and decide whether parents should be compensated. Those decisions can be appealed to the Court of Federal Claims and then the U.S. Court of Appeals for the Federal Circuit in Washington.

The drug companies worried that they would face a flood of lawsuits over the side effects of vaccines in the event of an unfavorable Supreme Court decision. They were especially concerned about claims from families of autistic children who say the vaccines, or mercury-based thimerosal that once was used to preserve them, are linked to autism. Numerous studies have addressed vaccines and autism and found no link, including with the preservative.

Sotomayor said the drug companies' worry "seems wholly speculative." She said that parents already face "substantial hurdles" in winning compensation.

Sotomayor instead pointed to arguments made by Frederick, the family's lawyer, when the Supreme Court heard the case in October. He said that Congress did not explicitly rule out the kind of lawsuit the Bruesewitz family filed against Wyeth, asserting that the company was slow to move ahead with a safer vaccine because it would not be as profitable. Frederick said the threat of lawsuits would motivate drug companies to introduce safer vaccines more quickly.

Justice Elena Kagan took no part in the case because she had worked on it while serving in the Justice Department.

The case is Bruesewitz v. Wyeth, 09-152.

    Court Upholds Law on Vaccine Suits, NYT, 22.2.2011, http://www.nytimes.com/aponline/2011/02/22/business/AP-US-Supreme-Court-Vaccine-Lawsuit.html

Sometimes, Justice Can Play Politics

February 12, 2011
The New York Times
By NOAH FELDMAN

Cambridge, Mass.

WHAT is it about those robes? They are only flimsy bits of wools, enlivened in a few cases by some very European lace at the collar. Yet the moment our Supreme Court justices put them on, a segment of the concerned public imagines that they have become priests consecrated to the sacred order of the Constitution.

Recently, Justice Antonin Scalia has been criticized for meeting with a group of (gulp) conservative members of Congress and accused of participating in an event organized by the conservative billionaire Charles Koch. Justice Clarence Thomas has been excoriated because his wife, Virginia, last year took a leading role in organizing Liberty Central, a Tea Party offshoot that received anonymous, First Amendment-protected donations (she has since stepped down). He also belatedly amended 13 years’ worth of disclosure reports to include details of his wife’s employment.

Justices are required to disclose their income sources and those of their spouses. But the core of the criticisms against Justices Thomas and Scalia has nothing to do with judicial ethics. The attack is driven by the imagined ideal of the cloistered monk-justice, innocent of worldly vanities, free of political connections and guided only by the gem-like flame of inward conscience.

It was not ever thus. John Marshall, undoubtedly the greatest chief justice ever, spent his first month on the court as the secretary of state of the United States. That’s right, the chief justice and the secretary of state were the same person — an arrangement permitted by the Constitution, which only prohibits members of Congress from holding other offices. Marshall’s most famous decision — Marbury v. Madison, which established the principle of judicial review — arose from Marshall’s own failure as secretary of state to deliver the obscure William Marbury his commission as justice of the peace in the waning hours of the Adams administration. No one cared.

The political activities of the justices increased over time. Charles Evans Hughes, who would later become another great chief justice, resigned from his first stint as associate justice on June 10, 1916, to run for the presidency on the Republican ticket. Although this represented a separation from his judicial role, the Republican convention had begun at the Chicago Coliseum on June 7; Hughes did not resign until the nomination was in the bag.

In 1948, Americans for Democratic Action tried to draft Justice William O. Douglas as a Democratic presidential candidate. In their political literature, they used excerpts from his Supreme Court opinions, which (his colleagues noted privately) sounded suspiciously like stump speeches. (In the end, he decided against a run.)

Equally important, in the pre-monastic age, justices often took on politically charged government responsibilities when the world needed them. Their experiences in public service not only helped the country, but informed their subsequent jurisprudence.

Justice Robert Jackson, a valued player in Franklin Delano Roosevelt’s regular poker game (and a hero to many court observers today), took a year away from the court to serve as the chief prosecutor at Nuremberg, a presidential appointment. Later, when the Supreme Court had to decide whether German detainees convicted by United States war crimes tribunals were entitled to habeas corpus rights, Jackson did not recuse himself. Instead, he wrote the opinion in Johnson v. Eisentrager, the case that formed the precedent for the extension of habeas rights to the detainees at Guantánamo Bay.

Justice Owen Roberts was chosen by Roosevelt to head the commission investigating the attack on Pearl Harbor. What he learned made him one of only three justices to defy Roosevelt and dissent from the court’s shameful decision to uphold the wartime internment of more than 100,000 Japanese-Americans who had been convicted of no crime at all.

The 1970s saw the beginning of a retreat by the justices from public engagement with national affairs. Some of this was defensive. In 1969, Justice Abe Fortas, one of Lyndon Johnson’s closest advisers on Vietnam even while on the court, had to resign after revelations that he had been on retainer to a financier under investigation for securities violations. The next year, Gerald Ford, then the House minority leader, sought unsuccessfully to impeach Douglas for taking money from a nonprofit foundation.

Yet, probably the greater reason for the justices’ growing circumspection by the early 1970s was that the Supreme Court was taking its most active role ever in running the nation’s affairs: when the court ruled against Richard Nixon in the Watergate tapes case, it effectively forced a president from office. Empowered to break a president (making one had to wait until Bush v. Gore in 2000), the justices sought to deflect attention from the obvious fact that they were political.

The disengagement from public life that followed has had real costs. Isolated justices make isolated decisions. It is difficult to imagine justices who drank regularly with presidents deciding that a lawsuit against a sitting executive could go forward while he was in office, or imagining that the suit would not take up much of the president’s time. Yet that is precisely what the court did by a 9-to-0 vote in the 1997 case of Clinton v. Jones. The court’s mistaken practical judgment opened the door to President Bill Clinton’s testimony about Monica Lewinsky and the resulting impeachment that preoccupied the government for more than two years as Osama bin Laden laid his plans.

Today, even the justices’ minimal extrajudicial activities come in for public condemnation — some of it suspiciously partisan. Does anyone seriously think Justice Thomas would become more constitutionally conservative (if that were somehow logically possible) as a result of his wife’s political activism? It is true that Justice Thomas voted to protect the anonymity of some corporate contributions in the Citizens United case. But this vote reflected his long-established principles in favor of corporate speech. The personal connection was nowhere near close enough to demand recusal, any more than a justice who values her privacy should be expected to recuse herself from a Fourth Amendment decision.

After all, Martin Ginsburg, a model of ethical rectitude until his death last year, was for many years a partner in an important corporate law firm. But surely no one believes that his career made his wife, Justice Ruth Bader Ginsburg, more positively inclined toward corporate interests on the court than she would already be as a member in good standing of America’s class of legal elites.

Justice Antonin Scalia, for his part, naturally spends time with like-minded conservatives including Representative Michele Bachmann and Charles Koch. But when the brilliant, garrulous Justice Scalia hobnobs with fellow archconservatives, he is not being influenced any more than is the brilliant, garrulous Justice Stephen Breyer when he consorts with his numerous friends and former colleagues in the liberal bastion of Cambridge, Mass.

A FEW years ago, many insisted that Justice Scalia should not sit in judgment of Vice President Dick Cheney’s claims to enjoy executive privilege, noting that the two had been on the same duck-hunting trip. Justice Scalia memorably explained that the two men had never shared the same blind. He could as easily have pointed out that before President Harry Truman nationalized the steel mills, he asked Chief Justice Fred Vinson, a poker buddy and close friend, if the court would find the action constitutional. (Vinson incorrectly said yes.)

The upshot is that the justices’ few and meager contacts with the real world do little harm and perhaps occasionally some good. Justice Anthony Kennedy makes an annual trip to Salzburg, Austria, to discuss ideas with European and other global judges and intellectuals. This contact is often invoked to explain why Justice Kennedy occasionally cites foreign law (a taboo for Justice Scalia) and why his jurisprudence has been relatively liberal on such matters as gay rights and Guantánamo.

It is absurd for conservatives to criticize the cosmopolitan forums where judges from around the world compare notes. And it is absurd for liberals to criticize the conservative justices for associating with people who share or reinforce their views. The justices are human — and the more we let them be human, the better job they will do. Let the unthinkable be said! If the medieval vestments are making people think the justices should be monks, then maybe, just maybe, we should to do away with those robes.


Noah Feldman, a professor at Harvard Law School, is the author of “Scorpions: The Battles and Triumphs of F.D.R.’s Great Supreme Court Justices.”

    Sometimes, Justice Can Play Politics, NYT, 12.2.2011, http://www.nytimes.com/2011/02/13/opinion/13feldman.html

No Argument: Thomas Keeps 5-Year Silence

February 12, 2011
The New York Times
By ADAM LIPTAK

WASHINGTON — The anniversary will probably be observed in silence.

A week from Tuesday, when the Supreme Court returns from its midwinter break and hears arguments in two criminal cases, it will have been five years since Justice Clarence Thomas has spoken during a court argument.

If he is true to form, Justice Thomas will spend the arguments as he always does: leaning back in his chair, staring at the ceiling, rubbing his eyes, whispering to Justice Stephen G. Breyer, consulting papers and looking a little irritated and a little bored. He will ask no questions.

In the past 40 years, no other justice has gone an entire term, much less five, without speaking at least once during arguments, according to Timothy R. Johnson, a professor of political science at the University of Minnesota. Justice Thomas’s epic silence on the bench is just one part of his enigmatic and contradictory persona. He is guarded in public but gregarious in private. He avoids elite universities but speaks frequently to students at regional and religious schools. In those settings, he rarely dwells on legal topics but is happy to discuss a favorite movie, like “Saving Private Ryan.”

He talks freely about the burdens of the job.

“I tend to be morose sometimes,” he told the winners of a high school essay contest in 2009. “There are some cases that will drive you to your knees.”

Justice Thomas has given various and shifting reasons for declining to participate in oral arguments, the court’s most public ceremony.

He has said, for instance, that he is self-conscious about the way he speaks. In his memoir, “My Grandfather’s Son,” he wrote that he had been teased about the dialect he grew up speaking in rural Georgia. He never asked questions in college or law school, he wrote, and he was intimidated by some fellow students.

Elsewhere, he has said that he is silent out of simple courtesy.

“If I invite you to argue your case, I should at least listen to you,” he told a bar association in Richmond, Va., in 2000.

Justice Thomas has also complained about the difficulty of getting a word in edgewise. The current court is a sort of verbal firing squad, with the justices peppering lawyers with questions almost as soon as they begin their presentations.

In the 20 years that ended in 2008, the justices asked an average of 133 questions per hourlong argument, up from about 100 in the 15 years before that.

“The post-Scalia court, from 1986 onward, has become a much more talkative bench,” Professor Johnson said. Justice Antonin Scalia alone accounted for almost a fifth of the questions in the last 20 years.

Justice Thomas has said he finds the atmosphere in the courtroom distressing. “We look like ‘Family Feud,’ ” he told the bar group.

Justice Thomas does occasionally speak from the bench, when it is his turn to announce a majority opinion. He reads from a prepared text, and his voice is a gruff rumble.

He does not take pains, as some of his colleagues do, to explain the case in conversational terms to the civilians in the courtroom. He relies instead on legal Latin and citations to subparts of statutes and regulations.

His attitude toward oral arguments contrasts sharply with that of his colleagues, who seem to find questioning the lawyers who appear before them a valuable way to sharpen the issues in the case, probe weaknesses, consider consequences, correct misunderstandings and start a conversation among the justices that will continue in their private conferences.

By the time the justices hear arguments, they have read briefs from the parties and their supporters, and most justices say it would be a waste of time to have advocates merely repeat what they have already said in writing.

“If oral argument provides nothing more than the summary of the brief in monologue, it is of very little value to the court,” Chief Justice William H. Rehnquist wrote in 1987.

Lawyers who appear before the court and scholars who study it are of mixed minds about Justice Thomas’s current silence. His views can be idiosyncratic, and some say lawyers deserve a chance to engage him before being surprised by an opinion setting out a novel and sweeping legal theory.

Others say they are just as happy not to waste valuable argument time on distinctive positions unlikely to command a majority in major cases.

Justice Thomas routinely issues sweeping concurrences and dissents addressing topics that had not come up at argument.

He asked no questions, for instance, in a 2007 case about high school students’ First Amendment rights. In a concurrence, he said he would have overturned the key precedent to rule that “the Constitution does not afford students a right to free speech in public schools.”

Neither side had advanced that position. The basis for and implications of his concurrence were not explored at the arguments, because, by asking no questions, Justice Thomas did not tip his hand.

No other justice joined Justice Thomas’s opinion. “If Justice Thomas holds a strong view of the law in a case, he should offer it,” David A. Karp, a veteran journalist and third-year law student, wrote in the Florida Law Review in 2009. “Litigants could then counter it, or try to do so. It is not enough that Justice Thomas merely attend oral argument if he does not participate in argument meaningfully.”

Justice Thomas’s last question from the bench, on Feb. 22, 2006, came in a death penalty case. He was not particularly loquacious before then, but he did speak a total of 11 times earlier in that term and the previous one.

His few questions were typically pithy and pointed. He pressed a defense lawyer, for instance, in a 2005 argument about possible race discrimination in jury selection.

“Is there anything in the record to alert us to the race of the prosecutor?” he asked. “Would it make any difference? There seemed to be some suggestion that there are stereotypes at play.”

Justice Thomas’s most famous comments also came in a case involving race.

In a 2002 argument over a Virginia law banning cross burning, his impassioned reflections changed the tone of the discussion and may well have altered the outcome of the case. He recalled “almost 100 years of lynching” in the South by the Ku Klux Klan and other groups.

“This was a reign of terror, and the cross was a symbol of that reign of terror,” he said. “It was intended to cause fear and to terrorize a population.”

The court ruled that states may make it a crime to burn a cross if the purpose is intimidation.

    No Argument: Thomas Keeps 5-Year Silence, NYT, 12.2.2011, http://www.nytimes.com/2011/02/13/us/13thomas.html

On Health Care, Justice Will Prevail

February 7, 2011
The New York Times
By LAURENCE H. TRIBE

Cambridge, Mass.

THE lawsuits challenging the individual mandate in the health care law, including one in which a federal district judge last week called the law unconstitutional, will ultimately be resolved by the Supreme Court, and pundits are already making bets on how the justices will vote.

But the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.

In this regard, the health care law is little different from Social Security. The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out. The same analysis holds here: by restricting certain economic choices of individuals, we ensure the vitality of a regulatory regime clearly within Congress’s power to establish.

The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out.

Given the clear case for the law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court. Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.

Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well. Yes, his opinion in the 5-4 decision invalidating the federal ban on possession of guns near schools is frequently cited by opponents of the health care law. But that decision in 1995 drew a bright line between commercial choices, all of which Congress has presumptive power to regulate, and conduct like gun possession that is not in itself “commercial” or “economic,” however likely it might be to set off a cascade of economic effects. The decision about how to pay for health care is a quintessentially commercial choice in itself, not merely a decision that might have economic consequences.

Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.

It would be asking a lot to expect conservative jurists to smuggle into the commerce clause an unenumerated federal “right” to opt out of the social contract. If Justice Clarence Thomas can be counted a nearly sure vote against the health care law, the only reason is that he alone has publicly and repeatedly stressed his principled disagreement with the whole line of post-1937 cases that interpret Congress’s commerce power broadly.

There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb.


Laurence H. Tribe, a professor at Harvard Law School, is the author of “The Invisible Constitution.”

    On Health Care, Justice Will Prevail, NYT, 7.2.2011, http://www.nytimes.com/2011/02/08/opinion/08tribe.html

Politics and the Court

February 4, 2011
The New York Times

When it comes to pushing the line between law and politics, Justices Antonin Scalia and Clarence Thomas each had a banner month in January.

Justice Scalia, who is sometimes called “the Justice from the Tea Party,” met behind closed doors on Capitol Hill to talk about the Constitution with a group of representatives led by Representative

Michele Bachmann of the House Tea Party Caucus.

Justice Thomas, confirming his scorn for concern about conflicts of interest and rules designed to help prevent them, acknowledged that he has failed to comply with the law for the past six years by not disclosing his wife’s income from conservative groups.

In Supreme Court opinions, they showed how their impatience for goals promoted in conservative politics is infecting their legal actions. They joined in an unusual dissent from a court decision not to take a case about the commerce clause that turned into polemic in favor of limited government. In an important privacy case, NASA v. Nelson, they insisted the court should settle a constitutional issue it didn’t need to.

Constitutional law is political. It results from choices about concerns of government that political philosophers ponder, like liberty and property. When the court deals with major issues of social policy, the law it shapes is the most inescapably political.

To buffer justices from the demands of everyday politics, however, they receive tenure for life. The framers of our Constitution envisioned law gaining authority apart from politics. They wanted justices to exercise their judgment independently — to be free from worrying about upsetting the powerful and certainly not to be cultivating powerful political interests.

A petition by Common Cause to the Justice Department questioned whether Justices Scalia and Thomas are doing the latter. It asked whether the court’s ruling a year ago in the Citizens United case, unleashing corporate money into politics, should be set aside because the justices took part in a political gathering of the conservative corporate money-raiser Charles Koch while the case was before the court.

If the answer turns out to be yes, it would be yet more evidence that the court must change its policy — or rather its nonpolicy — about recusal.

One possible reform would be to require a justice to explain, in a public statement and in detail, any decision to recuse or not. It would be even better to set up a formal review process. A group of other justices — serving in rotation or randomly chosen — could review each decision about recusal and have the power to overrule it.

In the NASA case, the two justices issued opinions on a unanimous ruling that NASA can require background checks for contract workers. Six justices (Justice Elena Kagan was recused) said the court didn’t need to decide whether there is a right to informational privacy.

Justices Scalia and Thomas, on the other hand, insisted that the Constitution doesn’t protect such a right and the court should settle the issue. The Scalia opinion is a rambling, sarcastic political tirade. The Thomas opinion is short but caustic. This is the sort of thing that gets these justices invited to gatherings like Mr. Koch’s.

About Justice Scalia, the legal historian Lucas Powe said, “He is taking political partisanship to levels not seen in over half a century.” Justice Thomas is not far behind.

Both seem to have trouble with the notion that our legal system was designed to set law apart from politics precisely because they are so closely tied.

    Politics and the Court, NYT, 4.2.2011, http://www.nytimes.com/2011/02/05/opinion/05sat1.html

Friends of the Court?

January 18, 2011
The New York Times


The Roberts court is hearing a larger share of cases about economic activities that matter to big business than the Rehnquist court before it. A recent study done by scholars for The Times documents that, compared with other Supreme Courts since 1953, this one is “significantly more likely to produce a conservative decision” in those cases.

One reason for that, beyond the court’s conservative tilt, may be that big business is increasingly bringing in big guns to argue their cases: former lawyers in the Justice Department’s Office of the Solicitor General. So far this term, former Solicitors General Gregory Garre, Theodore Olson and Seth Waxman have argued at the court for business clients.

Former solicitors general used to be more likely to become professors, judges or other kinds of public servants. Now they are more likely to build corporate practices. With the exception of Justice Elena Kagan and one other, every former solicitor general for the past 15 years leads a law firm group representing business clients.

Of the 11 cases on the court’s January list for oral arguments, the U.S. Chamber of Commerce filed briefs in seven. Last term, the chamber supported the winning side in 13 of 16 cases where it took part. As Adam Liptak reported in The Times, the group attributes those results to the quality of their advocates. The biggest victory was in the Citizens United case, argued by Mr. Olson.

At this level, quality includes intricate knowledge of the court’s rulings and the ability to shape arguments. Being a solicitor general certainly gives them that. Still, justices need to ask themselves whether they may unconsciously — and unfairly — defer to former solicitors general. When Mr. Olson recently argued before the court on a case about whether medical residents should be required to pay Social Security taxes, he slyly tweaked Justice Sonia Sotomayor and got an affectionate laugh all around.

There is a special relationship between the solicitor general’s office and the court. In addition to being the president’s chief courtroom lawyer, the solicitor general is the court’s counselor. The court regularly asks the solicitor general for guidance in cases where the government isn’t a party, with the solicitor general expected to advocate for the interests of the United States. When former solicitors general are in private practice, all of that must be put firmly aside.

On Wednesday, the court will hear arguments in a case about drug pricing, in which Lisa Blatt, a former assistant to the solicitor general, represents Astra USA, a drug maker. The company contends a health-care provider has no grounds for suing it for exceeding Medicaid price limits. Other important business cases are on the docket with former solicitors general and assistants involved. If they make their cases, they deserve to win. But they shouldn’t be given any advantage because of their former jobs.

    Friends of the Court?, NYT, 18.1.2011, http://www.nytimes.com/2011/01/19/opinion/19wed2.html