Being Neutral Is Oh So Hard to Do

In the opening paragraph of his dissent in Christian Legal Society v. Martinez (June 28, 2010) Justice Samuel Alito names the principle he finds animating the majority opinion: “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.” I have come to think he is right.

But before I say why, let me review the facts of the case.

The Christian Legal Society is an organization with chapters at a number of law schools. The purpose of the society, according to the petitioner’s brief, is to “provide opportunities for fellowship, as well as moral and spiritual guidance, for Christian lawyers,” to promote “justice religious liberty, and biblical conflict resolution” and encourage “lawyers to furnish legal services for the poor.”

Anyone can attend and participate in a C.L.S. meeting, but voting members and officers are required to “affirm their commitment to the group’s core beliefs” by signing a Statement of Faith that declares a trust in Jesus as one’s savior, and a belief in the Trinity as well as in the Bible as the inspired word of God. Those who sign the Statement of Faith are expected to live up to its precepts, and if they do not — if they do not refrain from “either participation in or advocacy of a sexually immoral lifestyle” — they disqualify themselves from C.L.S. membership. “Sexually immoral” behavior includes pre-marital sex, adultery and homosexual conduct.

And there’s the rub, at least as far as the University of California-Hastings College of the Law is concerned; for, according to its briefs, the school requires all R.S.O.’s (registered student organizations) to maintain an “all-comers” policy with regard to memberships and candidacy for group officers. In a deposition, the law school’s dean explained that “in order to be a registered student organization you have to allow all our students to be members and full participants if they want to.” (There is a dispute about just when this policy was put in place, the petitioners claiming that it was conveniently invented in the middle of the case, the law school claiming that it had been in force since 1990.)

Organizations that will not open their membership rolls to all comers can still form and have a campus presence and petition to use school facilities for meetings, but they will not be granted the benefits that come along with official recognition (which is different, Hastings is careful to point out, from positive sponsorship).

So the issue is joined: must C.L.S.’s right under the First Amendment to form an association of like-minded persons around an idea or an agenda give way — at least with respect to the privilege of R.S.O. status — to the nation’s and the university’s compelling interest in eliminating “invidious” discrimination? Or should the all-comers policy be relaxed in recognition of the right of an association to maintain the integrity of its declared purposes and beliefs?

C.L.S. argues that all “expressive associations, regardless of their beliefs, have a constitutionally protected right to control the content of their speech by excluding those who do not share their essential purposes and beliefs” (petitioner’s brief). Hastings responds that “the people of California, through their elected representatives, have barred discrimination based on various enumerated factors, including religion and sexual orientation ‘in any program . . . conducted by any postsecondary educational institution that receives . . . state financial assistance’”; and therefore the law school is precluded “from allowing any such discrimination in its publically funded R.S.O. program” (respondent’s brief).

One more complication: the case unfolds under the Supreme Court’s “limited forum” doctrine, which says (among other things) that once a state or state entity has established a forum for expressive activity, it cannot exclude from the forum speakers or groups whose viewpoints it disfavors. It may, however, impose restrictions on participation that are viewpoint-neutral, restrictions that do not flow from an official disapprobation of what is being expressed. The question, then, is does the Hastings all-comers policy involve a viewpoint-neutral restriction that only incidentally sweeps up C.L.S. in its wake, or is the policy, as Justice Alito claims, designed to discriminate against the Christian viewpoint?

Writing for the majority, Justice Ruth Bader Ginsburg aligns herself with the first prong of my question and agrees with the district court’s conclusion that the policy is “neutral and of general applicability” and “does not target or single out religious beliefs.” After all, she declares, it is “hard to imagine a more viewpoint-neutral policy than one requiring all student groups to accept all comers.”

However, here things get tricky. The reasoning that the all-comers policy does not single out religious beliefs depends on a distinction between belief and conduct, a distinction Ginsburg several times invokes, first when she says that all student organizations remain able to “express what they wish” as long as they do not “discriminate in membership,” and later when she adds that “C.L.S.’s conduct — not its Christian perspective — is . . . what stands between the group and R.S.O. status.” But the distinction between belief and conduct, the very basis of formal neutrality, is not itself neutral because it favors religions (like the Protestantism John Locke explicates in his Letter Concerning Toleration, 1689) that are centered on the personal relationship between adherents and the God they believe in, and disfavors religions that require, and regard as a non-detachable extension of belief, the performance of specific forms of behavior.

That is to say, the belief/conduct distinction, a close relative of the mind/body distinction and the private/public distinction, itself embodies a very specific viewpoint (one the government is not entitled to have or enforce) concerning just what a religious belief is, and as such it discriminates against religions that do not respect, indeed cannot respect, the belief/conduct distinction. The Statement of Faith C.L.S. members are asked to sign and the canons of conduct they are asked to observe mark it as that kind of religion, one that demands not just assent to a set of doctrines, but conformity to a code of behavior. C.L.S. members must not only believe certain things; they must comport themselves in ways dictated by their belief, and so must the organization itself if it wishes to be true to the beliefs it declares, the beliefs around which it organized in the first place.

So when Ginsburg insists that the all comers policy “aims at the act of rejecting would-be group members without reference to the reasons motivating that behavior,” she treats the act (of requiring members to affirm and adhere to C.L.S.’s doctrinal and behavioral tenets) as if it were just a disagreeable manifestation of prejudice unrelated to the group’s beliefs, as if it were distinct from the “reasons” animating the group’s existence. She appears to think that, were C.L.S.’s membership rules relaxed in deference to Hastings’ all-comers policy, the organization’s beliefs would survive intact; for it’s just an extrinsic procedural change, isn’t it?

The alternative is to view C.L.S. membership policy and the beliefs it declares as inextricable; you can’t have one without the other. And this would mean, as I have already more than suggested, that the so called viewpoint-neutral all-comers policy is not neutral at all, any more than a law that no one can sleep under bridges (a classic example) would be neutral. Only the poor and homeless would want to sleep under bridges; the “neutral” law forbidding it would obviously be directed at them. Only religions that recognize no distinction between belief and conduct would want to restrict membership to persons pledged to the performance of specific behaviors; the “neutral” all-comers requirement is obviously directed at them. The distinction on which Ginsburg relies between disapproving C.L.S.’s beliefs and disapproving its “act” won’t work. If you penalize the group for its membership policies, you are penalizing it for its beliefs.

This is Alito’s point in his dissent: “As written and enforced, the Policy targets solely those group whose beliefs are based on ‘religion’ or that disapprove of a particular kind of sexual behavior.” I would emend slightly: the policy is targeted at those religions that would be in violation of their own beliefs were they to countenance, by membership policy or any other action, particular kinds of sexual behavior. The legal doctrine to be invoked here (and Alito invokes it) is “expressive association,” the idea that certain actions a group might take are so expressive of their reasons for being that those actions are inseparable from those reasons.

Alito cites Justice Sandra Day O’Connor’s observation in Roberts v. United States Jaycees (1984) that an “association’s right to define its membership derives from the recognition that the formation of an expressive association is the creation of a voice, and the selection of members is the definition of that voice.” It follows that a regulation preventing the association from selecting its members narrowly, or withholding benefits if it does so, would amount to a silencing of the association’s voice, an infringement on its expressive rights.

This is not an argument Justice Ginsburg pays much attention to. She pretty much dismisses it by claiming that C.L.S. “faces only indirect pressure to modify its membership policies” and was not “compelled,” as groups were in other expressive association cases, “to include unwanted members with no choice to opt out.” (I guess she doesn’t think the cost of the so-called opt-out choice is worth bothering about.) Ginsburg is more interested in the limited forum doctrine, which, she asserts (citing an earlier case) gives the state the right “to make distinctions in access on the basis of . . . speaker identity”; and she cites another case to the effect that “the state may not exclude speech where its distinction is not reasonable in the light of the purposes served by the forum.”

This citation raises the question of the relationship between the exclusion of groups (or group; only C.L.S. has been targeted) with selective membership policies and the purposes of the forum. Is the exclusion reasonable? What are those purposes? Or to put the question more precisely, what purposes that an educational institution might have would require it to withhold the benefits of official recognition from a group that limited its members to those who abided by the dictates of its faith?

Ginsburg answers the question by accepting a view of education and its purposes put forward by the amicus brief of the American Civil Liberties Union: “Just as ‘Hastings does not allow its professors to host classes open only to those students with a certain status or belief,’ so the Law School may decide, reasonably in our view, ‘that the educational experience is best promoted when all participants in the forum must provide equal access to all students.’” And just what is the “educational experience” envisioned in this statement? It turns out, in Ginsburg’s view, to be the experience of an environment that encourages the “development of conflict-resolution skills, toleration, and readiness to find a common ground.”

Now that is a “reasonable” list of educational goals, but it is not the only one. Another might be an educational experience that encourages fidelity to correct behavior as defined by some religion or system of morality, an experience devoted less to the finding of common ground than to the finding of, and hewing to, truth.

I am not saying that this latter view of education’s purposes — the view held by the Christian Legal Society — should be the official view of the law school. I am saying that no view of education’s purposes, as long it is contestable (and they all are), should be the official view of the law school. Under cover of “neutrality,” Hastings, with the majority’s approval, is imposing the goals and ideology of liberal multiculturalism on the very diverse members of the law school’s community. Justice John Paul Stevens may be right on the law when he observes in a concurring opinion that “the university need not remain neutral . . . in determining which goals the [R.S.O.] program will serve and which rules are best suited to facilitate those goals,” but he and his colleagues in the majority cannot at the same time make statements like that one and claim to be speaking in the name of neutrality.

Stanley Fish, New York Times

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Full article: http://opinionator.blogs.nytimes.com/2010/07/19/being-neutral-is-oh-so-hard-to-do/

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A New Standard of Decency

Monday’s welcome Supreme Court decision, banning sentences of life without parole for juvenile criminals who do not commit murder, recognizes that children mature and should not be irrevocably punished for a childhood act short of killing. But it also recognizes that nations mature — that standards of justice and constitutional principles change over the centuries and should be reinterpreted by new generations.

Justice Anthony Kennedy, writing for a five-member majority, acknowledged that permanent life sentences for juveniles might not have been historically recognized as cruel and unusual punishment but should now be considered unconstitutional because of “evolving standards of decency.”

Justice John Paul Stevens stated the case simply and elegantly in a concurring opinion:

“Society changes,” he wrote. “Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time.”

That, of course, infuriated the strict constructionists on the court, who said the Constitution’s framers meant “cruel and unusual” to refer to torture and nothing more. Justice Clarence Thomas, writing for two other justices, said the court was overstepping its bounds by interpreting the clause to ban disproportionate punishment.

Viewing the case from that 18th-century perspective, however, means ignoring recent scientific evidence showing a fundamental difference between the minds of juveniles and adults. Justice Kennedy, expanding on his landmark 2005 decision that banned the death penalty for juveniles, noted that the brain matures through late adolescence. He said juvenile actions are less likely to be evidence of an “irretrievably depraved character.”

The subject of the case decided on Monday, Terrance Graham, whose parents were crack addicts, participated in a restaurant robbery at age 16 and in a home-invasion robbery at age 17. A Florida judge sentenced him to life in prison without parole in 2005 at a time when the state, overreacting to a rash of juvenile crime, was cracking down on what it considered teenage superpredators.

But the court was hardly ordering his release, or that of the 128 other juveniles like him around the country (mostly in Florida) who are also locked up with no chance of parole. Instead, the court simply gave these prisoners a chance to show that they have matured and been rehabilitated, that years after their crimes, they have, at least, the hope of winning their release. (Chief Justice John Roberts Jr. took a middle position, saying Mr. Graham deserved a shot at parole but declining to endorse a categorical position.)

The majority’s opinion was particularly heartening for its forthright acknowledgment that there are other sources of judicial inspiration beyond the country’s founders. The low number of juvenile criminals sentenced to life without parole for noncapital crimes demonstrates that states, judges, prosecutors and juries have reached a de facto national consensus against the practice, the opinion said.

And, braving the catcalls of nativists, Justice Kennedy also looked to international law to bolster his argument, noting that this form of sentencing had been rejected by countries the world over. Until Monday, the United States was the only country to impose such sentences on its teenagers; thanks to five justices on the court, the world now stands in unanimous agreement.

Editorial, New York Times

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Full article: http://www.nytimes.com/2010/05/18/opinion/18tue1.html

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Cross in the Desert

A badly divided Supreme Court has overturned a good ruling against a cross that sits on federal land. The opinions did not provide much guidance but, over all, are likely to encourage those who want to entangle government and religion.

In 1934, private citizens put a cross on federally owned land in what is now the Mojave National Preserve in California, to honor Americans who died in World War I. A park visitor sued in 2001, and a federal judge ruled that the cross violated the First Amendment’s establishment clause because it conveyed “a message of endorsement of religion.”

When the cross was challenged, Congress passed a law that transferred the land under it to the Veterans of Foreign Wars, who would maintain it. The same park visitor challenged the land transfer. A trial court ruled that it was invalid because it was simply an attempt by the government to keep the cross. The United States Court of Appeals for the Ninth Circuit, in San Francisco, agreed.

The Supreme Court reversed that, 5-to-4, in a splintered set of opinions by six separate justices. Justice Anthony Kennedy, in a plurality opinion for himself and two others, said that the district court had erred when it blocked the land transfer because it had failed to properly weigh the factors Congress had to take into account when it passed the law. He directed the lower court to reconsider the question. Because of the way the other justices lined up in their separate opinions, Justice Kennedy’s opinion has the force of law on this point.

Justice Kennedy wrote that the cross was “not merely a reaffirmation of Christian beliefs.” He said, it “evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies would be compounded if the fallen are forgotten.”

A cross is not a generic memorial to Americans who die in battle — something Jewish, Muslim, and atheist soldiers could attest to. Justice John Paul Stevens, in dissent, had it right when he pointed out that it is a uniquely Christian symbol with a “deeply significant meaning for those who adhere to the Christian faith.”

The establishment clause prevents the government from endorsing any particular religion. Congress violated that basic principle in this situation. It should not have been a difficult case.

Editorial, New York Times

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Full article: http://www.nytimes.com/2010/04/30/opinion/30fri3.html

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Neighbor Against Neighbor

What right does the state have to reveal your signature on a political petition?

Today the Supreme Court hears arguments in Doe v. Reed. The case is about “mandatory disclosure”—that is, whether the state of Washington may publicly release the names and addresses of citizens who signed a petition to place a referendum on domestic partnership legislation on the ballot.

The case puts at risk core constitutional values such as free speech and privacy. And given the stakes, neither the justices nor the public should be swayed by widely held assumptions about mandatory disclosure that are not in fact true.

In Washington, personal information about citizens who sign a ballot petition previously had been kept confidential and used only to verify the authenticity of signatures. But last year, after the Washington legislature passed a law granting domestic partners the same rights under state law as married couples, opponents gathered more than 122,000 signatures to put the law to a referendum. Two opponents of this referendum—online activist groups KnowThyNeighbor.org and WhoSigned.org—requested that the petitioners’ names and addresses be made public, saying they planned to post them online to encourage “uncomfortable conversations” with the signers.

Supporters of Yes on Prop. 8, foreground, stand in front of city hall during a Yes on Prop. 8 rally as their opposition No on Prop. 8 supporters stand across the street.

Washington state agreed, prompting signers fearful of reprisal to sue to stop the revelation of their personal information—and for good reason. During California’s Proposition 8 battle in 2008 (the California Marriage Protection Act), personal information about donors to Prop 8 committees was posted on the Internet. This led to death threats, physical violence, vandalism and economic reprisals.

Nevertheless, defenders of such government-forced disclosure—for petition-signers and for those who financially support political causes such as ballot-issue campaigns—believe that it is a “cost free” way to provide voters with what they allege to be important information about ballot issues and causes. Even some skeptics of other kinds of regulations of political speech share this belief.

It is, however, a belief devoid of empirical support.

In 2007, I tested these assumptions about mandatory disclosure in the context of contributions to ballot-issue campaigns. Using a sample of more than 2,000 citizens in six states (California, Colorado, Florida, Massachusetts, Ohio and Washington), I surveyed opinions about disclosure requirements in general as well as who should be forced to comply with those requirements. The results were striking.

Although individuals claim to support mandatory disclosure generally, that support turns to opposition when they consider the personal costs. More than 56% disagreed or strongly disagreed that their identity should be disclosed as a condition of giving to a ballot-issue committee. The opposition grew to more than 71% when disclosure of their personal information included their employer’s name.

Furthermore, three out of five people said they would think twice about their association with a ballot-issue committee if it meant public disclosure of their names and addresses. The reason most often given was a desire to keep their involvement anonymous. Typical responses included, “Because I do not think it is anybody’s business what I donate and who I give it to.” Individuals also expressed concerns over potential repercussions, including fear for personal safety, identity theft, invasion of privacy and loss of employment.

But what about the alleged benefits of disclosure—the value of disclosed information to voters? I examined that, too, and found that few citizens actually make use of information revealed through disclosure laws. This is not surprising, since accessing that information would require the dedication of scarce time and resources to search online databases or spreadsheets to ferret out the desired data.

Even those who supposedly access this information and make it available to the public more readily—the media, think tanks, campaign organizations, etc.—rarely use it. Examining a wide array of sources of campaign information about ballot issues in Colorado, for instance, I discovered that less than 5% of those sources included any information produced by mandatory disclosure of any kind.

This makes sense. Most disclosure data give voters little useful information in deciding how to vote. Who cares that a stranger down the street or across town gave $20, $50 or even $500 to an issue campaign or signed a petition—unless your intent is to intimidate him and others of similar views? Other more sizable backers often make their views public or are easy to figure out. We don’t need disclosure, for example, to tell us that tobacco companies oppose smoking bans and teachers unions oppose school choice. Nor do we need mandatory disclosure to educate voters about the issues; the media and interest groups provide loads of information about the substance of the issues for any voter interested in accessing it.

In short, my research reveals that forcing people to comply with disclosure rules in order to exercise their First Amendment rights means many will stay silent or uninvolved—with little or no benefit to the public. Mandatory disclosure laws don’t inform voters; they squelch speech.

Mr. Carpenter is director of strategic research at the Institute for Justice and author of “Disclosure Costs: Unintended Consequences of Campaign Finance Reform,” available at www.ij.org.

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Full article and photo: http://online.wsj.com/article/SB10001424052748703465204575208453830203396.html

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Sameness and ‘Diversity’ on Campus

Why a California dean would force a black group to admit white supremacists.

If ever you wonder why those thumping loudest for tolerance and diversity produce so much sameness, look no further than this little exchange on public television about an important case now before the Supreme Court. The dean is Leo Martinez of the University of California Hastings College of the Law. Here he is defending the school policy at issue, which requires the Christian Legal Society (CLS) to admit non-Christians and gays if it wants to be an official student group:

Question: “Would a student chapter of, say, B’nai B’rith, a Jewish Anti-Defamation League, have to admit Muslims?”

Mr. Martinez: “The short answer is ‘yes.’”

Question: “A black group would have to admit white supremacists?”

Mr. Martinez: “It would.”

Question: “Even if it means a black student organization is going to have to admit members of the Ku Klux Klan?”

Mr. Martinez: “Yes.”

Certainly there was some consternation yesterday at the Supreme Court. Justice Antonin Scalia found the idea of forcing a campus Republican club to admit Democrats “weird.” Meanwhile, Justice Sonia Sotomayor worried whether allowing CLS to set its own rules would mean more discrimination against women and minorities.

But let’s give Dean Martinez credit: He does not shy away from the logic of where his school’s policy leads. His remarks help explain two facts. The first is why a Christian student organization has found strong allies among other faith groups. These include everyone from Agudath Israel of America and the American Islamic Congress to the Catholic bishops and the Sikh American Legal Defense and Education Fund.

The larger fact is the way that Hastings-style “tolerance” and “diversity” are actually making our campuses less tolerant and less diverse. Dean Martinez helps us see why. If every college group must admit even those who are hostile to its mission and beliefs, the result is nonsense and conformity.

At first blush, Hastings looks to be another example of the “culture wars,” and where you stand on this case depends on what you believe about Christianity or traditional Christian teaching about homosexuality. Certainly Hastings tells us something about our culture wars. What it shows is how these kind of cultural skirmishes escalate into full-fledged wars when state approval or state money is involved.

Were Hastings a private institution, the same right of association now claimed by the Christian Legal Society would give the law school broader rights to set more narrow rules for students and faculty. When a handful of Orthodox Jews sued Yale in the late 1990s over the university’s insistence that they live in co-ed dormitories, for example, Yale prevailed—largely because Yale is a private university. And there was no larger religious war.

Even those of us who believe a university that prides itself on its tolerance could have shown a little more accommodation toward those Jewish students do not question Yale’s right to set rules that define the Yale experience. When government is involved, however, the stakes become higher and passions more excited. When a public university makes a decision, it’s not simply a policy dispute. It’s a public institution using your tax dollars to put a state imprimatur about who is and who is not fit for the public square.

That’s a much more serious proposition than a simple disagreement with some private organization. That public/private distinction helps explain why CLS has also found allies in the libertarian Cato Institute and Gays & Lesbians for Individual Liberty. In their own brief, this latter group stresses that it was the ability of gay Americans to form gay associations—whose membership rules they defined for themselves—that gave them a collective voice in the face of an often hostile majority.

Presumably Gays & Lesbians for Individual Liberty do not share the CLS view of human sexuality. But they understand exactly where Dean Martinez’s logic is taking us.

“[U]nder Hastings’ forced membership policy, only majority viewpoints (or those viewpoints too banal to interest the majority) are actually assured a voice in Hastings’ forum,” argues their brief. “That is a patently unreasonable way to ‘promote a diversity of viewpoints.’”

Exactly. Traditionally the American contribution to diversity has been the encouragement of thriving—and competing—private institutions and associations. Unfortunately, on American campuses today we see the opposite: an expanding government role in everything from research to how schools are accredited and how student loans are administered. One unintended consequence is that our culture wars are going to escalate as our courts are forced to take up a great many more cases like Hastings.

It may end up, of course, that Dean Martinez prevails, and we get more of his idea of tolerance and diversity. Let’s not pretend to be surprised, however, when it all comes out looking the same.

William McGurn, Wall Street Journal

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Full article: http://online.wsj.com/article/SB10001424052748704671904575194220648380284.html

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Our Fill-in-the-Blank Constitution

AS the Senate awaits the nomination of a new Supreme Court justice, a frank discussion is needed on the proper role of judges in our constitutional system. For 30 years, conservative commentators have persuaded the public that conservative judges apply the law, whereas liberal judges make up the law. According to Chief Justice John Roberts, his job is just to “call balls and strikes.” According to Justice Antonin Scalia, conservative jurists merely carry out the “original meaning” of the framers. These are appealing but wholly disingenuous descriptions of what judges — liberal or conservative — actually do.

To see why this is so, we need only look to the text of the Constitution. It defines our most fundamental rights and protections in open-ended terms: “freedom of speech,” for example, and “equal protection of the laws,” “due process of law,” “unreasonable searches and seizures,” “free exercise” of religion and “cruel and unusual punishment.” These terms are not self-defining; they did not have clear meanings even to the people who drafted them. The framers fully understood that they were leaving it to future generations to use their intelligence, judgment and experience to give concrete meaning to the expressed aspirations.

Rulings by conservative justices in the past decade make it perfectly clear that they do not “apply the law” in a neutral and detached manner. Consider, for example, their decisions holding that corporations have the same right of free speech as individuals, that commercial advertising receives robust protection under the First Amendment, that the Second Amendment prohibits the regulation of guns, that affirmative action is unconstitutional, that the equal protection clause mandated the election of George W. Bush and that the Boy Scouts have a First Amendment right to exclude gay scoutmasters.

Whatever one thinks of these decisions, it should be apparent that conservative judges do not disinterestedly call balls and strikes. Rather, fueled by their own political and ideological convictions, they make value judgments, often in an aggressively activist manner that goes well beyond anything the framers themselves envisioned. There is nothing simple, neutral, objective or restrained about such decisions. For too long, conservatives have set the terms of the debate about judges, and they have done so in a highly misleading way. Americans should see conservative constitutional jurisprudence for what it really is. And liberals must stand up for their vision of the judiciary.

So, how should judges interpret the Constitution? To answer that question, we need to consider why we give courts the power of judicial review — the power to hold laws unconstitutional — in the first place. Although the framers thought democracy to be the best system of government, they recognized that it was imperfect. One flaw that troubled them was the risk that prejudice or intolerance on the part of the majority might threaten the liberties of a minority. As James Madison observed, in a democratic society “the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended … from acts in which the government is the mere instrument of the major number of the constituents.” It was therefore essential, Madison concluded, for judges, whose life tenure insulates them from the demands of the majority, to serve as the guardians of our liberties and as “an impenetrable bulwark” against every encroachment upon our most cherished freedoms.

Conservative judges often stand this idea on its head. As the list of rulings above shows, they tend to exercise the power of judicial review to invalidate laws that disadvantage corporations, business interests, the wealthy and other powerful interests in society. They employ judicial review to protect the powerful rather than the powerless.

Liberal judges, on the other hand, have tended to exercise the power of judicial review to invalidate laws that disadvantage racial and religious minorities, political dissenters, people accused of crimes and others who are unlikely to have their interests fully and fairly considered by the majority. Liberal judges have ended racial segregation, recognized the principle of “one person, one vote,” prohibited censorship of the Pentagon Papers and upheld the right to due process, even at Guantánamo Bay. This approach to judicial review fits much more naturally with the concerns and intentions of people like Madison who forged the American constitutional system.

Should “empathy” enter into this process? In the days before he nominated Sonia Sotomayor to the Supreme Court, President Obama was criticized by conservatives for suggesting that a sense of empathy might make for a better judge.

But the president was correct. If all judges did was umpire, then judicial empathy would be irrelevant. In baseball, we wouldn’t want an umpire to say a ball was a strike just because he felt empathy for the pitcher. But once you understand that the umpire analogy is absurd, it’s evident that a sense of empathy can, in fact, help judges fulfill their responsibilities — in at least two ways.

First, empathy helps judges understand the aspirations of the framers, who were themselves determined to protect the rights of political, religious, racial and other minorities. Second, it helps judges understand the effects of the law on the real world. Think of judicial decisions that have invalidated laws prohibiting interracial marriage, granted hearings to welfare recipients before their benefits could be terminated, forbidden forced sterilization of people accused of crime, protected the rights of political dissenters and members of minority religious faiths, guaranteed a right to counsel for indigent defendants and invalidated laws denying women equal rights under the law. In each of these situations, in order to give full and proper meaning to the Constitution it was necessary and appropriate for the justices to comprehend the effect that the laws under consideration had, or could have, on the lives of real people.

Faithfully applying our Constitution’s 18th- and 19th-century text to 21st-century problems requires not only careful attention to the text, fidelity to the framers’ goals and respect for precedent, but also an awareness of the practical realities of the present. Only with such awareness can judges, in a constantly changing society, hope to keep faith with our highest law.

This does not mean judges are free to make up the law as they go along. But it does mean that constitutional law is not a mechanical exercise of just “applying the law.” Before there can be a serious national dialogue about our Constitution, our laws and the proper role of our judges, that myth must be exposed.

Geoffrey R. Stone, a professor of law at the University of Chicago, is an editor of The Supreme Court Review.

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Full article and photo: http://www.nytimes.com/2010/04/14/opinion/14stone.html

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If the Lawyer Fails

Our legal system is complex and a lot more powerful than any individual. That is why the Constitution guarantees people accused of serious crimes the right to counsel. If a lawyer turns out to be negligent, the system must do all it can to protect the individual’s rights.

The Supreme Court has a chance to reinforce that fundamental protection in the case of Albert Holland. A Florida prisoner, he did everything he could to ensure that his lawyer filed his habeas corpus petition, which would allow the federal courts to review his state-court conviction for first-degree murder and other crimes.

He continually asked about it, and emphasized the importance of meeting the deadlines. The lawyer repeatedly assured Mr. Holland that he would take care of it, and then missed the habeas deadline. Mr. Holland was given a new lawyer, who argued that due to the first lawyer’s extreme negligence, the failure should be excused under “equitable tolling,” which allows for deadlines to be excused in the broader interests of justice.

The United States Court of Appeals for the 11th Circuit rejected the argument, ruling that even gross negligence by a lawyer does not provide a basis for equitable tolling. Unless there was “bad faith, dishonesty, divided loyalty, mental impairment,” or something of that magnitude, the court said, the deadline would stand.

It is a shameful ruling. Mr. Holland’s lawyer’s conduct was not merely negligent. It was, as legal ethics professors and practitioners say in a brief, “intolerable, thoroughly unacceptable behavior.” The legal system cannot take away Mr. Holland’s right to challenge his conviction on the basis of inexcusably awful lawyering.

Underlying all of the law is the principle of “equity,” meaning rules must be interpreted in ways that advance fundamental fairness. The 11th Circuit’s decision is part of a disturbing trend. Increasingly, courts are ignoring fundamental fairness and overemphasizing rigid rules and technical legal points — in many cases, deadlines of one kind or another — in ways that undermine justice.

The Supreme Court, which hears Mr. Holland’s case on Monday, should not allow this to continue. It should reverse the 11th Circuit’s deeply unfair ruling and allow Mr. Holland’s habeas petition to be heard.

Editorial, New York Times

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Full article: http://www.nytimes.com/2010/03/01/opinion/01mon2.html

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Selective Empathy

In overturning a death sentence this week of a Korean War veteran whose lawyer failed to inform the jury about the man’s combat-related traumatic stress disorder, the Supreme Court drew cheers from veterans’ groups and death-penalty opponents. But it also raised a question:

Is selective empathy better than no empathy at all?

The veteran, George Porter Jr., was 53 years old when, after a night of drinking, he shot his former girlfriend and her new lover to death. It was 1986, and the Korean War had been over for 33 years. Mr. Porter saw heavy combat in Korea, and his life when he came home was a mess. It was evidently a mess before Korea as well: he escaped his violent and abusive family by joining the Army at the age of 17.

Sentenced to death in 1988 by a Florida judge for one of the murders, Mr. Porter filed two rounds of unsuccessful appeals in the Florida courts. He then turned to the federal courts, seeking to overturn his sentence by means of a writ of habeas corpus. His claim was that his lawyer’s failure to inform the sentencing jury about his wartime experience and its aftermath fell below the Constitution’s minimum standards for adequate representation.

“Ineffective assistance of counsel” is an exceptionally difficult claim on which to succeed. The Supreme Court has found ineffective assistance only a handful of times since it raised the bar in a 1984 case, Strickland v. Washington. That decision requires defendants to prove two elements: that the lawyer’s performance “fell below an objective standard of reasonableness” and that there was a “reasonable probability” that the outcome would have been different if not for the bad lawyering.

The second prong is a special challenge for death-sentenced defendants, who must demonstrate that an adequate lawyer would have provided the sentencing jury with enough mitigating evidence to overcome the weight of the prosecution’s “aggravating evidence.” An abundance of aggravating evidence is often the reason the prosecution is seeking the death penalty in the first place.

When the ineffective-assistance claim is made in a habeas corpus petition in federal court, the bar is even higher. Under a 1996 federal law, the defendant must show that the state court’s decision was not simply mistaken on its own terms, but that it “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” — in other words, that the state court had all but defied controlling Supreme Court precedent. The federal appeals court in Atlanta ruled that Mr. Porter was not entitled to habeas corpus because even if the Florida courts were wrong to regard his lawyer as adequate, they were not so wrong as to be unreasonably wrong.

That was the decision the Supreme Court overturned. It was “objectively unreasonable,” the justices said, to discount the possibility that a decent lawyer, presenting a convincing narrative of Mr. Porter’s military service and lingering trauma, could have persuaded the jury to spare his life. The court then provided such a narrative itself, with a vivid recitation of the battles Mr. Porter’s unit had fought “under extreme hardship and gruesome conditions.” The opinion observed that “our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.”

There were several notable features to this decision, Porter v. McCollum. The most obvious was that the 15-page opinion was unanimous and unsigned, labeled simply “per curiam,” meaning “by the court.” The court had not heard argument in the case and never formally accepted it for decision. Evidently the justices concluded that the right decision was so obvious that they could dispense with the formality of further briefing and argument.

Beyond those procedural niceties, the most notable feature of all was the sympathy that all nine justices displayed for a man who, in the fullness of his adulthood and after promising a friend that she would soon be reading about him in the newspaper, stole another friend’s gun and shot two people to death in cold blood.

Just last month, the same nine justices, also per curiam and also unanimously, sent chills down the spine of death-penalty opponents by overturning a different federal appeals court’s grant of habeas corpus to an Ohio death-row inmate who also claimed ineffective assistance of counsel. The inmate, Robert J. Van Hook, robbed and murdered a man he picked up in a gay bar. He is also a military veteran, but one whose service was terminated because of alcohol and drug abuse.

The appeals court found that his trial lawyer had conducted only a perfunctory, last-minute search for mitigating evidence, and failed to inform the jury of such “unsettling and potentially mitigating” details as the fact that Mr. Van Hook had a history of mental illness; that his parents had repeatedly beaten him; that his father tried to kill his mother several times in his presence; and that his mother was committed to a psychiatric hospital when he was a young child. Introducing this evidence “could certainly have tipped the scales in favor of his life,” the appeals court said in overturning the death sentence.

In its unsigned opinion reversing that decision, Bobby v. Van Hook, the Supreme Court parsed the evidence that was presented and concluded that the lawyer’s decision “not to seek more” fell “well within the range of professionally reasonable judgments.” The American Bar Association standards in effect at the time of trial required no more, the opinion said.

Justice Samuel A. Alito added a concurring paragraph to observe that the A.B.A. “is, after all, a private group with limited membership,” and its views should not be given “special relevance” in determining whether a lawyer’s performance meets constitutional standards.

The paragraph was not only gratuitous. It also was a chilling reminder of how the court has changed since the retirement of the justice whom Justice Alito replaced, Sandra Day O’Connor. In a 2003 majority opinion, Wiggins v. Smith, Justice O’Connor cited the bar association’s standards in concluding that a lawyer’s representation of a Maryland death-row inmate had been constitutionally deficient. William H. Rehnquist, then the chief justice, joined that opinion; only Justices Antonin Scalia and Clarence Thomas dissented.

Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men’s childhoods were — indeed, how common such childhoods were among the hundreds of death-row inmates whose appeals I have read over the years and, I have to assume, among the 3,300 people on death row today. It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate.

I don’t make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed this week on one of that number. Am I glad that a hapless 77-year-old man won’t be put to death by the State of Florida? Yes, I am. Am I concerned about a Supreme Court that dispenses empathy so selectively? Also yes.

Linda Greenhouse, New York Times

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Full article: http://opinionator.blogs.nytimes.com/2009/12/03/selective-empathy/

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The Supreme Court v. Patent Absurdity

No, you shouldn’t be able to patent a ‘method of speed dating.’

The Supreme Court last week became Exhibit A for the case that technological change is fast outpacing the ability of government to deal with it. The last time the justices tried to address broadly what kinds of innovations are entitled to patent protection was a generation ago. It showed.

During the oral argument in last week’s case, Bilski and Warsaw v. Kappos, it became clear that the justices had strong views about what intellectual property should not get special protection. They signalled that they will invalidate a category of patents that have been granted for over a decade. But they also admitted they had little idea about what kinds of innovation should be protected in an information age.

Patents provide exclusive rights for a certain time in exchange for disclosing details of inventions so that others can then use them after the patent expires. It was easier in the industrial age to recognize the inventions and discoveries that the Constitution says would “promote the Progress of Science and the useful Arts.” Today, many innovations are made using the virtual machine of the computer, which operates by changing digits, not by inventing cotton gins or improving plowshares.

Other innovations are simply better ideas. Last week’s case was whether there could be a patent for a business strategy for hedging risk in buying energy. This is what patent lawyers call a “business process,” which doesn’t involve something tangible like a new machine or drug compound.

The justices tickled themselves offering hypotheticals that they also thought wouldn’t deserve patent protection. Antonin Scalia asked if there could be a patent for “somebody who writes a book on how to win friends and influence people.” Or, “Let’s take training horses,” he said. “Don’t you think that some people, horse whisperers or others had some, you know, some insights into the best way to train horses?”

Sonia Sotomayor asked if there could be a patent for a “method of speed dating.” Stephen Breyer offered his “great wonderful, really original method of teaching antitrust law” that kept 80% of the students awake. “I could probably have reduced it to a set of steps and other teachers could have followed it.” Anthony Kennedy recalled how the development of calculus led to actuarial tables and risk formulas. “It’s difficult for me to think Congress would have wanted to give only one person the capacity to issue insurance,” he said.

The bottom line behind the judicial levity is that business-process patents deserve to be invalidated. Companies around the world are now reviewing their patent portfolios. Among the thousands of patents granted under this dubious standard is a patent on a method of applying for patents.

It wasn’t supposed to be this way. In the early 1980s, Congress created the Court of Appeals for the Federal Circuit to “strengthen a weak patent system whose inability to motivate innovation threatened to perpetuate the economic malaise of the 1970s,” according to Bruce Abramson, author of “The Secret Circuit.” This was the court that in 1998 upheld granting of patents for business processes.

Instead of creating clear rules about what innovations make sense for patents in an information age, Mr. Abramson says ambiguity “generates uncertainty among members of the public, makes inadvertent infringement more likely, and allows a patentee to file infringement suits even when he knows full well that the accused device falls outside the scope of the invention that he patented.”

One direct consequence is that “patent trolls” buy up patents so they can sue innovators. Big technology companies pool their patents to reduce lawsuits. For information technology, the costs of litigating patents may be greater than the economic benefits of patents. Real money is involved: The largest patent-case judgment is for $1.67 billion, being appealed by Abbott Labs in a case brought in the plaintiff-happy federal court in eastern Texas.

The most telling moment in the Bilski argument was when Justice Breyer asked how the balance should be struck between granting patents for methods that applied to machines as opposed to methods that apply to how information is used. “I don’t know,” he answered. “And I don’t know whether across the board or in this area or that area patent protection would do no harm or more harm than good.”

Likewise, Justice Sotomayor said she couldn’t predict the result if the court tried to clarify what can be patented and what can’t. “I have no idea what the limits of that ruling will impose in the computer world, in the biomedical world.”

Such humility is rare at the Supreme Court, but as the justices come to a decision in this case, they should remember above all that legal uncertainty about intellectual property has real costs. For now, the most innovative parts of our economy bear the burden of uncertainty, with no one knowing for sure who owns what rights to which ideas, inventions or discoveries.

L. Gordon Crovitz, Wall Street Journal

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Full article: http://online.wsj.com/article/SB10001424052748704431804574537481229336114.html

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A sentence too cruel for children

Rather than serving in the U.S. Senate for almost 20 years, or having so many other wonderful life experiences, I could have served a longer sentence in prison for some of the stupid, reckless things I did as a teenager. I am grateful to have gotten a second chance — and I believe our society should make a sustained investment in offering second chances to our youth.

When I was a teen, we rode aimlessly around town, shot things up, started fires and generally raised hell. It was only dumb luck that we never really hurt anyone. At 17, I was caught destroying federal property and was put on probation. For two years, my probation officer visited me and my friends at home, in the pool hall, at school and on the basketball court. He was a wonderful guy who listened and really cared. I did pretty well on probation. At 21, though, I got into a fight in a tough part of town and ended up in jail for hitting a police officer.

I spent only one night in jail, but that was enough. I remember thinking, “I don’t need too much more of this.”

I had a chance to turn my life around, and I took it. This term, the U.S. Supreme Court will decide whether other young people get that same chance.

On Nov. 9, the court will hold oral argument in Sullivan v. Florida and Graham v. Florida, two cases that will determine whether it is constitutional to sentence a teenager to life in prison without parole for a crime that did not involve the taking of a life. There is a simple reason the criminal justice system should treat juveniles and adults differently: Kids are a helluva lot dumber than adults. They do stupid things — as I did — and some even commit serious crimes, but youths don’t really ever think through the consequences. It’s for this reason that every state restricts children from such consequential actions as voting, serving on juries, purchasing alcohol or marrying without parental consent.

The Supreme Court recognized the differences between teenagers and adults when it held a few years ago, in Roper v. Simmons, that it was unconstitutional to impose the death penalty on defendants younger than 18. Locking up a youth for the rest of his life, with no hope for parole, is surely unconstitutional for the same reasons. The person you are at 13 or 17 is not the person you are at 30, 40 or 50. Everyone old enough to look back on his or her teenage years knows this.

Peer pressure is a huge part of youth behavior, whether one grows up in Washington, D.C., or Cody, Wyo. The guys will say, “Go get the gun. We’ll pick up just enough money for tonight.” And almost unthinkingly, you’ll do it. There is simply no way to know at the time of sentencing whether a young person will turn out “good” or “bad.” The only option is to bring him or her before a parole board — after some number of years — and give the person the chance to declare, “I’m a different person today” — and then prove it.

Parole boards can examine how youth offenders spent their time in prison. Did they read books or work in the library? Did they make furniture? Get a college degree? Those are critical questions for review.

If at that review a parole board finds out that a miscreant hasn’t changed, then keep him or her in prison. But some juvenile offenders make real efforts while they are in jail, and we should make honest adjustments for them.

We all know youths who have changed for the better. When I was a lawyer in Cody, the court sometimes appointed me to represent juvenile offenders, and parents who knew of my history often asked for help with their children. I once handled the case of an 18-year-old who stole a car and drove it to Seattle. I later hired him as chief of staff for my Senate office, and he turned out to be one of the most able of the people I put in that job.

I was lucky that the bullets I stole from a hardware store as a teenager and fired from my .22-caliber rifle never struck anyone. I was fortunate that the fires I set never hurt anyone. I heard my wake-up call and listened — and I went on to have many opportunities to serve my country and my community.

When a young person is sent “up the river,” we need to remember that all rivers can change course.

The writer, a Republican, was a U.S. senator from Wyoming from 1977 to 1996. He is among former juvenile offenders who have submitted a friend-of-the-court brief in support of the petitioners in Sullivan v. Florida and Graham v. Florida.

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Full article: http://www.washingtonpost.com/wp-dyn/content/article/2009/10/22/AR2009102203803.html

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Animal Cruelty and Free Speech

The First Amendment protects even disturbing speech, a point the Supreme Court should keep in mind on Tuesday when it hears arguments in the case of a man convicted of selling videos of dogfighting and other animal cruelty. A federal appeals court reversed his conviction, ruling that the federal law under which he was prosecuted is unconstitutional. The Supreme Court should uphold that well-reasoned decision.

Robert Stevens, who ran a business called “Dogs of Velvet and Steel,” sold videos of pit bulls engaging in dogfights and attacking other animals. He did not participate in the attacks personally, but he was charged under a federal law that makes it illegal to sell depictions of acts of animal cruelty that are themselves illegal in the state where the depiction is sold.

The United States Court of Appeals for the Third Circuit, based in Philadelphia, reversed Mr. Stevens’s conviction. The Supreme Court has created narrow exceptions to the First Amendment for a few kinds of speech, including obscenity and, more recently, child pornography. The appeals court rightly declined to create another category for depictions of animal cruelty.

Some of the material in this case is truly stomach-churning. There are people who enjoy watching animals being tortured and killed. There is also, the federal government’s brief says, a market for “crush videos,” in which women trample small animals with their bare feet or while wearing high-heel shoes, images that some viewers are said to find sexually arousing. Videos are also sold showing dogfights and hog-dogfights, in which dogs attack, and sometimes kill, pigs.

This is not the only deeply offensive speech protected by the Constitution. Nazis are allowed to march, and racists are allowed to spew racism. If legislatures have the power to disapprove certain categories of unpopular speech, a lot of expression could become illegal. The government seems to think it is enough that the harm caused by the animal-cruelty depictions outweighs their social value, but the First Amendment does not say that Congress can restrict speech if it fails a balancing test.

It is also extraordinarily difficult to carve out free-speech exceptions. Animal cruelty is often depicted in videos and on Web sites that seek to call attention to the problem of animal abuse. The law makes an exception for certain depictions that have serious political, journalistic or other value, but there is no clear way to sort through all of the covered expression to determine who should be held criminally liable and who should not.

All 50 states have laws against animal abuse. The best way to fight animal cruelty is to enforce these laws more vigorously and to increase the penalties. Anyone with an ounce of decency should be tempted to ban animal-abuse videos, but anyone with an appreciation for the First Amendment understands why we cannot.

Editorial, New York Times

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Full article: http://www.nytimes.com/2009/10/06/opinion/06tue2.html

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Other Major Cases This Term

In addition to an outsize emphasis on business cases, the new Supreme Court term, starting Monday, will feature an array of other important cases, including ones concerning the First and Second Amendments, Congressional power and criminal law.

Criminal Law

In a pair of cases from Florida, the court will consider whether the Eighth Amendment’s ban on cruel and unusual punishment forbids sentencing juvenile offenders to life in prison without the possibility of parole. In one of the cases, Sullivan v. Florida, No. 08-7621, the defendant was convicted of committing a rape at age 13; in the other, Graham v. Florida, No. 08-7412, the defendant was convicted of an armed robbery at age 16.

In 2005, the Supreme Court banned the execution of juvenile offenders on the theory that adolescents are unformed, susceptible to peer pressure and capable of change. The defendants in the new cases say that logic should also apply to sentences of life without parole.

The 2005 decision, Roper v. Simmons, drew on foreign and international law, finding that “the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” Human rights groups say the United States is also alone in sentencing young teenagers to die in prison.

A case concerning the Constitution’s confrontation clause, Briscoe v. Virginia, No. 07-11191, will test the practical implications of a major decision from June. That decision, Melendez-Diaz v. Massachusetts, held that prosecutors may not rely on crime lab reports in criminal trials unless they also make the analysts who prepared the reports available to testify.

The Melendez-Diaz decision was decided by a 5-to-4 vote, and it featured some unusual alliances. Three of the court’s more liberal justices, including Justice David H. Souter, joined Justices Antonin Scalia and Clarence Thomas, the two justices committed to applying the original meaning of the Constitution. That coalition, in an opinion written by Justice Scalia, said the Sixth Amendment’s requirement that a defendant “be confronted with the witnesses against him” required testimony from the analysts.

The dissenters predicted that the ruling would create a “crushing burden” on the justice system. The new case concerns a challenge to a Virginia law that could limit the impact of Melendez-Diaz. The law allows prosecutors to present crime lab reports without accompanying testimony but gives defendants the right to call the analysts as their own witnesses.

The case will give an early indication of whether Justice Sonia Sotomayor, the court’s newest member and a former prosecutor, will diverge from the approach that her predecessor, Justice Souter, took to criminal cases.

Congressional Power

United States v. Comstock, No. 08-1224, concerns the practice of keeping sex offenders in federal prisons locked up after they have completed their sentences on the ground that they remain “sexually dangerous.”

The appeals court in the case ruled that none of the powers granted to Congress in the Constitution authorized it to call for the civil commitment of people said to be “sexually dangerous.” The case does not involve the separate question of whether state prisoners may be held on similar grounds after they have served their sentences.

First Amendment

A cross in the Mojave National Preserve in California that was erected more than 70 years ago as a war memorial is at the center of Salazar v. Buono, No. 08-472. After a federal judge ruled that the cross violated the Constitution’s ban on government establishment of religion, Congress transferred the acre of land on which it sits to private ownership, creating what an appeals court called “a little doughnut hole of land with a cross in the midst of a vast federal preserve.”

The Supreme Court case does not directly concern the fundamental question of the constitutional status of the cross. Instead, the justices will consider whether the plaintiff, Frank Buono, had standing to object and whether the transfer arrangement fixed the constitutional problem.

The most important free-speech case of the new term is United States v. Stevens, No. 08-769. It concerns a 1999 federal law that bans commercial trafficking in “depictions of animal cruelty.” The defendant in the case, Robert J. Stevens, was sentenced to 37 months in prison for selling videos of dogfights and of dogs attacking pigs. The court has not identified a category of speech beyond the protection of the First Amendment, since it upheld a law prohibiting the distribution of child pornography in 1982.

Second Amendment

The court on Wednesday agreed to decide a question left open in last year’s big Second Amendment case, District of Columbia v. Heller, which ruled that the amendment protects an individual right that the federal government may not abridge. The question in the new case, McDonald v. City of Chicago, No. 08-1521, is whether the amendment also applies to state and local governments.

Adam Liptak, New York Times

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Full article: http://www.nytimes.com/2009/10/05/us/politics/05scotus-side.html

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New Court Term Hints at Views on Regulating Business

The Roberts court will face questions about bankruptcy, corporate compensation, patents, antitrust issues and government oversight of the financial system.

The new Supreme Court term that begins Monday will be dominated by cases concerning corporations, compensation and the financial markets that could signal the justices’ attitude toward regulatory constraints at a time of extraordinary government intervention in the economy.

The justices’ decisions will be closely watched at a time when, constitutional scholars say, Obama administration initiatives are generating fundamental questions about the structure and limits of government power that will, in short order, reach the court.

“There will be major ways in which these interventions will produce legal and constitutional issues,” said Michael W. McConnell, a former federal appeals court judge who is now director of the Stanford Constitutional Law Center.

The term will provide important hints, said Richard H. Pildes, a law professor at New York University, to “how much the worst economic crisis since the Depression is going to shape the court’s general stance toward markets and economic regulation.”

Professor Pildes pointed to two cases in particular, one concerning the constitutionality of a regulatory board created in the wake of the Enron accounting scandal, the other about what role the courts should play in setting the compensation of advisers to mutual funds.

The decisions in those cases, he said, are likely to signal whether the court has become “more receptive to regulatory constraints on the market” in the wake of the financial crisis.

The new term comes at a time of rapid change at the court. While the Rehnquist court welcomed no new justices in its final 11 years, ending with Chief Justice William H. Rehnquist’s death in 2005, there have already been three versions of the Roberts court in its first four years. And there may be more changes come summer, if talk of the retirement of Justice John Paul Stevens turns out to be correct.

The court’s newest addition, Justice Sonia Sotomayor, arrived in August, replacing Justice David H. Souter. While most Supreme Court specialists expect her to vote much as Justice Souter did, there are at least two areas in which she may veer away from his approach.

One is criminal law. The other is corporate law, a field in which the expertise she gained on the federal appeals court in New York, with its heavy business docket, will play a major role.

The Obama administration, meanwhile, took office in the middle of the last term and its lawyers made only minor adjustments in pending cases. They will be freer to chart their own course now. One result, Professor McConnell said, will be an inevitable clash, one echoing confrontations with other ambitious presidents, including Franklin D. Roosevelt and Ronald Reagan.

“Every time in American history when you see a consequential administration,” he said, “you see a heightened tension between it and the court.”

By the time the justices left for their summer break in June, a majority of the cases they had agreed to hear — 24 of 45 — concerned business issues, according to a tally by the National Chamber Litigation Center of the United States Chamber of Commerce. The corresponding numbers last year were 16 of 42.

The nature of the cases has changed, too. In recent terms, the business docket was studded with cases about employment discrimination, federal pre-emption of injury suits and the environment. With the exception of a single employment case, all of those categories are missing.

In their stead, important questions about bankruptcy, corporate compensation, patents, antitrust and government oversight of the financial system will confront the justices.

Free Enterprise Fund v. Public Company Accounting Oversight Board, No. 08-861, for instance, concerns an issue that has engaged the court since the New Deal: at what point does the lack of presidential control over independent agencies violate separation-of-powers principles?

The case arose from the last big financial crisis, the accounting scandals at Enron, Worldcom and other companies. In response, in the Sarbanes-Oxley Act of 2002, Congress created an independent board to oversee accounting firms. The board’s members are appointed and may be removed for cause by the Securities and Exchange Commission, itself an independent agency, meaning the accounting board is doubly insulated from both political pressure and presidential oversight.

The Supreme Court’s ruling in the case, said Professor Pildes, who submitted a brief supporting the board to the appeals court, could affect “how much flexibility Congress will have to design new administrative structures to avoid future financial crises.”

In Jones v. Harris Associates, No. 08-586, the Supreme Court will decide what role the courts should play in regulating the compensation paid to investment advisers for mutual funds. In affirming dismissal of the case, a unanimous three-judge panel of the United States Court of Appeals for the Seventh Circuit, in Chicago, said the issue was a variation on the much-discussed question of whether the markets could be trusted to set executive compensation.

“Publicly traded corporations use the same basic procedures as mutual funds,” Chief Judge Frank H. Easterbrook wrote for the panel. Though he dissented from the full court’s decision not to rehear the case, Judge Richard A. Posner agreed that “executive compensation in large, publicly traded firms often is excessive because of the feeble incentives of boards of directors to police compensation.”

A case re-argued in September and technically part of last year’s docket, Citizens United v. Federal Election Commission, No. 08-205, is another example of the court’s more intensive focus on the limits of government regulation of businesses. The question in the case, which centers on the documentary “Hillary: The Movie,” is whether the government may ban political speech by corporations that concerns candidates during campaign season.

Another case about free speech rights, Milavetz, Gallop & Milavetz v. United States, No. 08-1119, arises from a 2005 federal law that appears to bar lawyers from advising their clients to take on more debt if they are considering bankruptcy, a practice that can be abusive. But there are perfectly lawful reasons to take on such debt, like refinancing a mortgage to pay down credit card debt. The Justice Department is urging the court to narrow the law.

The case that has most transfixed the business community is Bilski v. Doll, No. 08-964, a patent dispute that addresses the consequential question of whether intangible business methods may be patented. A federal appeals court last year rejected Bernard L. Bilski’s attempt to patent a method of hedging risks in commodities trading, ruling that only processes tied to a particular machine or capable of transforming an object into something different can be patented.

A broad ruling could affect many aspects of the economy, notably computer software.

“Bilski seems to have the makings of a landmark decision in patent law,” said Pamela Harris, executive director of the Supreme Court Institute at Georgetown University.

Adam Liptak, New York Times

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Full article and photo: http://www.nytimes.com/2009/10/05/us/politics/05scotus.html

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Free Speech, Now that Speech Is Free

Political campaign regulations are silly in the age of YouTube.

The equivalent of the health-care debate a few years ago was the battle over the McCain-Feingold law, which was supposed to be the most important political reform in a generation. Instead, technology has already made this law outdated.

McCain-Feingold, passed in 2002, limited spending on political advocacy by corporations and unions. In the era of YouTube and Facebook, the notion that anyone or any institution can dominate political debate is quaint at best.

After last week’s Supreme Court argument, key parts of McCain-Feingold seem likely to be overturned. The justices are legal experts, not technologists, but in protecting constitutional rights, they know they are operating in a very different information environment than existed earlier in the decade.

Lively political debate is supposed to benefit everyone—with the occasional exception of incumbent officeholders who are not re-elected. But McCain-Feingold banned the broadcast or transmission by cable or satellite of “electioneering communications” paid for by corporations in the 30 days before a presidential primary or 60 days before the general election. This always raised a First Amendment issue.

David Bossie, leader of Citizens United and producer of “Hillary: The Movie.”

The issue now goes deeper: How can any regulation based on an assumption of information scarcity be justified in an era of information abundance?

The case concerns “Hillary: The Movie,” which was produced by the conservative group Citizens United, funded in part by corporations. The film was shown in a few theaters and is available on DVD, but the Federal Election Commission banned it from cable before the primaries. A judge who upheld the FEC ruling observed that the film had a political message: “Senator Clinton is unfit for office, that the U.S. would be a dangerous place in a President Hillary Clinton world and that viewers should vote against her.”

Even if the film had been aired on cable, it would have had many fewer viewers than amateur political videos for and against presidential candidates posted on YouTube, which was founded in 2005.

In defending McCain-Feingold during an earlier Supreme Court hearing on the Citizens United case, a government lawyer claimed that the FEC could also ban books paid for by corporations. Book publishers filed a legal brief objecting that they would have “to establish special segregated funds for the writing, advertisement, publication, and distribution of any book that included electoral speech.” They also tried to distinguish a book, even if delivered via a Kindle or similar device, from the electronic distribution that McCain-Feingold tried to prohibit.

Government lawyers defending the law last week backed off the book-banning claim, but then argued that pamphlets could be banned under the law. Chief Justice John Roberts said, “We don’t put our First Amendment rights in the hands of FEC bureaucrats.”

Corporations and unions have long been prohibited from making direct contributions to political campaigns. The first such law was passed in 1907 and sponsored by Sen. Ben “Pitchfork” Tillman, a South Carolina Democrat. As former FEC commissioner Hans von Spakovsky points out, Tillman was a promoter of Jim Crow laws, and the purpose of the Tillman act was to block corporations from supporting Republicans such as Teddy Roosevelt, who favored racial progress.

Whatever the arguments for blocking direct contributions by corporations and unions, McCain-Feingold goes beyond this and directly limits First Amendment speech. The Constitution doesn’t promise “equal” speech, just the freedom to speak.

Technology now makes it possible for everyone to share their views, so why shouldn’t companies and unions be able to make political arguments? Companies and their shareholders are on all sides of issues, depending on who benefits from which government policy, from health-care rules to environmental regulations to industry bailouts.

The likely demise of McCain-Feingold echoes the fate of the Fairness Doctrine. The Federal Communications Commission in 1949 required holders of broadcast licenses to present all sides of controversial topics. There were few broadcast outlets and at least arguably a risk of one-sided debates. The rule was abolished in 1987 as channels grew. With hundreds of cable channels and endless uploads of videos to the Web, it would be impossible to enforce “fairness” even if bureaucrats could track how much of which views were being expressed.

The Constitution was drafted at a time when there were few media outlets, and few people could be heard. Since then, technology has made it possible for everyone to express their views. The cost of expressing opinions continues to fall. Now that speech is no longer expensive, it’s time to return to the Founders’ intention that speech be free and that Congress not abridge anyone’s right to speak.

Gordon Crovitz, Wall Street Journal

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Full article and photo: http://online.wsj.com/article/SB10001424052970203440104574409092005823058.html

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Taking On The Book Banners

Last March, during the Supreme Court argument concerning the Federal Election Commission’s banning of a political movie, several justices were aghast. Suddenly and belatedly they saw the abyss that could swallow the First Amendment.

Justice Antonin Scalia was “a little disoriented” and Justice Samuel Alito said “that’s pretty incredible.” Chief Justice John Roberts said: “If we accept your constitutional argument, we’re establishing a precedent that you yourself say would extend to banning the book” — a hypothetical 500-page book containing one sentence that said “vote for” a particular candidate.

What shocked them, but should not have, were statements by a government lawyer who was only doing his professional duty with ruinous honesty — ruinous to his cause. He was defending the mare’s-nest of uncertainties that federal campaign finance law has made and the mess the court made in 2003 when, by affirming the constitutionality of McCain-Feingold’s further speech restrictions, it allowed Congress to regulate speech by and about people running for Congress.

The government lawyer was trying to justify the FEC’s 2008 decision that McCain-Feingold required banning “Hillary: The Movie” from video-on-demand distribution. The lawyer said, in effect:

Don’t blame me. McCain-Feingold orders people to shut up when political speech matters most. It bans “electioneering communications” (communications “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate”) paid for by corporations in the 30 days before primaries and 60 days before general elections. Corporations include not only, or primarily, the likes of GM and GE; corporations also include issue advocacy groups, from the National Rifle Association to the Sierra Club. So, yes, if a book published (as books are) by a corporation contains even a sentence of election-related advocacy, the book could — must — be banned by the federal government, and not just during the McCain-Feingold muzzle period.

Stunned, the court ordered that the case be reargued Sept. 9. On Aug. 30, a New York Times story included a delicious morsel about Fred Wertheimer, an indefatigable advocate of increased government control of the quantity, timing and content of campaign speech — speech about the composition of the government:

“In an interview, Mr. Wertheimer seemed reluctant to answer questions about the government regulation of books. Pressed, Mr. Wertheimer finally said, ‘A campaign document in the form of a book can be banned.’ “

Last Wednesday, Elena Kagan, the new solicitor general, said, in effect: Relax, the FEC has never taken enforcement action concerning a book under McCain-Feingold. Yes, but the FEC deadlocked about prosecuting George Soros under another section of federal campaign law because he did not make required reports of money spent on his promotion of his 2004 book attacking George W. Bush — money that might, or might not, have been “independent expenditures” for “express advocacy.”

On Wednesday, Chief Justice Roberts said: “We don’t put our First Amendment rights in the hands of FEC bureaucrats.” Actually, before he and Alito joined the court, it allowed Congress to put our rights into those meddlesome hands. Hans A. von Spakovsky, a former FEC commissioner, says there are 568 pages of FEC regulations, and 1,278 pages of the Federal Register have been filled with explanations and justifications of those regulations. For James Madison, 10 words sufficed: “Congress shall make no law . . . abridging the freedom of speech.”

The FEC’s ever-thickening fog of legal hairsplitting makes it impossible to draw any bright line telling Americans what political speech is and is not legal. Nevertheless, supporters of government rationing of political speech say the court should not reverse itself regarding McCain-Feingold because stare decisis — adherence to precedents — is virtuous.

Oh? The court’s finest modern moment, Brown v. Board of Education in 1954, effectively reversed Plessy v. Ferguson (1896). Yes, the court upheld McCain-Feingold just six years ago, but egregious and mischievous mistakes should be corrected before they produce torrents of bad precedents.

Defenders of McCain-Feingold say that allowing political spending by corporations will unleash too much speech. Steve Simpson of the Institute for Justice replies:

“Freeing corporate speech will lead to what more speech always leads to — a debate. Wal-Mart will support President Obama’s health-care reform, as it has done, but the National Retail Federation will oppose it, as it has done. . . . Corporations do not speak with one voice any more than individuals do.”

Regulations controlling political speech inevitably multiply and become increasingly indecipherable and unpredictable. The court should take the country up from McCain-Feingold, to Madison.

George F. Will, Washington Post

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Full article: http://www.washingtonpost.com/wp-dyn/content/article/2009/09/11/AR2009091103320.html

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States Can Investigate National Banks, Justices Rule

The Supreme Court said Monday that state attorneys general could investigate national banks for lending discrimination and other crimes, but only with a court’s help.

The justices ruled that a state attorney general could not on his own issue a subpoena against a bank that has branches in that state and others. But the court said that national banks were subject to some state laws under the National Banking Act, and that an attorney general could go to court to enforce those laws.

”What this decision today says is that states have the ability to enforce their own laws as long as they follow state due process procedures, which generally mean issuance of a subpoena which can be challenged in court,” said John Cooney, a former assistant solicitor general and deputy general counsel at the Office of Management and Budget.

The State of New York wanted the Supreme Court to overturn a federal appeals court decision that blocks states from investigating the lending practices of national banks with branches within its borders. It was supported by the other 49 states.

Eliot Spitzer, then New York’s attorney general, wanted to investigate whether minorities were being charged higher interest rates on home mortgage loans, a practice that is prohibited under various state and federal laws. But federal judges said Mr. Spitzer could not enforce state fair-lending laws against national banks or their operating subsidiaries by issuing subpoenas and bringing enforcement actions against them.

”Here, the threatened action was not the bringing of a civil suit, or the obtaining of a judicial search warrant based on probable cause, but rather the attorney general’s issuance of subpoena on his own authority,” said Justice Antonin Scalia, who wrote the opinion for the court. ”That is not the exercise of the power of law enforcement ’vested in the courts of justice,’ ” which the National Banking Act allows.

Both the Clearing House Association, which represents the banks, and the Office of the Comptroller of the Currency said the attorney general was interfering with the federal government’s supervisory powers.

The United States Court of Appeals for the Second Circuit in New York had ruled that the responsibility for such investigations rested with the Office of the Comptroller of the Currency, a part of the Treasury Department, and other federal agencies.

”Channeling state attorneys general into judicial law-enforcement proceedings (rather than allowing them to exercise ’visitorial’ oversight) would preserve a regime of exclusive administrative oversight by the comptroller while honoring in fact rather than merely in theory Congress’s decision not to pre-empt substantive state law,” Justice Scalia said.

Chief Justice John Roberts, and Justices Clarence Thomas, Samuel Alito and Anthony Kennedy dissented in part, saying they would have ruled with the federal appeals court.

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Full article: http://www.nytimes.com/2009/06/30/business/30bizcourt.html?hpw

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Justices Rule for White Firefighters in Bias Case

The Supreme Court ruled on Monday, in a case with enormous implications for workplaces across the country, that white firefighters in New Haven suffered unfair discrimination because of their race when the city scrapped the results of a promotional exam.

“The city’s action in discarding the tests violated Title VII,” the court held in a 5-to-4 decision, referring to a section of the Civil Rights Act of 1964. The majority said the city’s fundamental arguments were “blatantly contradicted by the record.”

Monday’s decision in Ricci v. DeStefano, came on the last day of the court’s term and was one of the most closely watched discrimination cases in years. The ruling is sure to be closely studied by personnel departments and their lawyers for indications of how far employers can go, and under what circumstances, in considering race in decisions on hiring and promotion.

And while the case concerned public employees, the ruling is also likely to affect private employers, since Title VII of the Civil Rights Act covers private employers as well as public ones, according to Prof. Sheila Foster of Fordham Law School. (Professor Foster teaches anti-discrimination Law and has been involved in litigating cases under the Civil Rights Act.)

The case was rooted in tests given in 2003 for promotion to lieutenant and captain. The exams yielded no black firefighters eligible for advancement, prompting the city to throw out the results and promote no one. That move, in turn, triggered a lawsuit by 18 white firefighters, one of them Hispanic, who claimed racial discrimination, or what is often termed “reverse discrimination.”

The ruling reverses a federal district court and the United States Court of Appeals for the Second Circuit, which had found in favor of the city, and sends the case back to the lower courts for further action. (Judge Sonia Sotomayor, President Obama’s nominee for the Supreme Court, had ruled in the city’s favor as a Second Circuit judge.)

The ruling on Monday, written by Justice Anthony M. Kennedy, acknowledged that the city faced a “damned if you do, damned if you don’t” situation, as Justice David H. Souter put it when the case was argued on April 22. That is, if the city had allowed the promotional exam to stand, it would have faced a lawsuit from black firefighters.

But the city’s dilemma did not justify scrapping the exam results, Justice Kennedy wrote, in a conclusion also embraced by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

“Fear of litigation alone cannot justify the city’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” the majority said.

The white firefighters had contended that the city’s action also violated their rights under the Equal Protection Clause of the 14th Amendment. But the court said it did not have to address that allegation once it found against the city under the Civil Rights Act.

Justice Ruth Bader Ginsburg wrote a dissent joined by Justices John Paul Stevens, Stephen G. Breyer and Souter, taking part in his last opinion before he retires from the court. Justice Ginsburg read her dissent from the bench, a clear signal of her deep disagreement with the majority.

“It took decades of persistent effort, advanced by Title VII litigation, to open firefighting posts to members of racial minorities,” she said. Moreover, she said, contrary to the majority’s finding, there was “substantial evidence of multiple flaws in the tests New Haven used.”

“Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow,” Justice Ginsburg observed, alluding to a report by the United States Civil Rights Commission in the early 1970’s finding racial discrimination in municipal employment even “more pervasive than in the private sector.”

The terms “disparate treatment” and “disparate impact” were crucial to the New Haven case. As originally enacted in 1964, Title VII of the Civil Rights Act held employers liable only for disparate treatment on the basis of race, color, religion, sex or national origin.

But in a 1971 case, Griggs v. Duke Power Company, the Supreme Court interpreted Title VII as prohibiting, in some cases, employer practices that were neutral on their face but discriminatory in operation. These “disparate impact” practices are to be prohibited if the employer cannot show that they arise from “business necessity.”

Notwithstanding Justice Souter’s “damned if you do, damned if you don’t” observation when the case was argued, the majority concluded on Monday that the City of New Haven “cannot meet that threshold standard” of showing that it would have been liable to a suit under the “disparate impact” principle.

Professor Foster of Fordham predicted on Monday that “this decision will change the landscape of civil rights law and casts continued doubt on the disparate impact theory of discrimination.”

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Ricci v DeStefano: http://graphics8.nytimes.com/packages/images/nytint/docs/supreme-court-opinion-ricci-v-destefano/original.pdf

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Full article: http://www.nytimes.com/2009/06/30/us/30scotus.html?hp

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High Court Eases Oversight of Arizona English Program and Rules that an Accused Has a Constitutional Right to Cross-examine Forensic Analysts

The Supreme Court ruled for Arizona officials who challenged federal court supervision of a program to educate students who aren’t proficient in English.

By a 5-4 vote, the court reversed an appeals court ruling in a 17-year-old lawsuit intended to close the gap between students in Nogales, Ariz., who are learning to speak English and native English speakers.

Justice Samuel Alito, in the majority opinion, said a federal judge in Arizona must take another look at the program to see whether Nogales now is “providing equal opportunities” to English language learners.

Justice Alito, joined by his conservative colleagues, was highly critical of rulings by both the judge and the 9th U.S. Circuit Court of Appeals in San Francisco that have kept Nogales and, more recently, the entire state under federal court supervision with regard to teaching non-native English speakers.

In 2000, a federal judge found that the state had violated the Equal Educational Opportunities Act’s requirements for appropriate instruction for English-language learners. A year later he expanded his ruling statewide and placed the state’s programs for non-English speaking students under court oversight.

Since then, the two sides have fought over what constitutes compliance with the order. Arizona has more than doubled the amount that schools receive per non-English speaking student and taken several other steps prescribed by the No Child Left Behind Act, a broader education accountability law passed by Congress in 2002.

Justice Alito said the courts need to be more flexible in evaluating the state’s actions.

Justice Stephen Breyer, in a dissent for himself and the other three liberal justices, said the lower courts were thorough and correct.

Thursday’s decision “risks denying schoolchildren the English-language instruction necessary to overcome language barriers that impede their equal participation,” Justice Breyer said in a dissent that was longer than Justice Alito’s majority opinion.

Justices Ruth Bader Ginsburg, David Souter and John Paul Stevens also dissented. Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas were in the majority.

In a separate case, the Supreme Court said criminal defendants have a constitutional right to cross-examine the forensic analysts who prepare laboratory reports on illegal drugs and other evidence used at trial.

The court on Thursday ruled 5-4 for a defendant who was convicted of cocaine trafficking, partly because of crime lab analysis.

Luis Melendez-Diaz challenged lab analysis that confirmed cocaine was in plastic bags found in the car he was riding in. Rather than accept the report, Mr. Melendez-Diaz said he should be allowed to question the lab analyst about testing methods, how the evidence was preserved and other issues.

Massachusetts courts rejected his arguments.

Justice Scalia, writing for the high court, said Mr. Melendez-Diaz has a constitutional right to confront the lab analyst.

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Horne v Flores: http://www.supremecourtus.gov/opinions/08pdf/08-289.pdf

Melendez-Diaz v Massachusetts: http://www.supremecourtus.gov/opinions/08pdf/07-591.pdf

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Full article: http://online.wsj.com/article/SB124594338044754347.html#mod=article-outset-box

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Supreme Court Sides With Arizona in Language Case

Miriam Flores, one of the parents who sued the state, with her daughter Isabella, in Nogales, Ariz.

The Supreme Court on Thursday sided with Arizona officials who said the federal government should not be supervising the state’s spending for teaching non-English-speaking students.

The 5-to-4 decision reversed a ruling by the United States Court of Appeals for the Ninth Circuit, which said the state was still violating a law that required “appropriate action” to help English language learners overcome language obstacles.

But the case, Horne v. Flores, brought by parents in Nogales 17 years ago, will go on. Justice Samuel A. Alito Jr., writing for the majority, remanded the dispute to a federal judge in Arizona for another look at whether the schools in Nogales, a small town on the Mexican border, now provide equal opportunities to English language learners.

Since 2000, when a federal district judge found that the state’s minimal spending on instruction for English language learners violated the federal Equal Educational Opportunity Act, the state has substantially changed its programs, increasing financing, reducing class sizes and moving from bilingual education to structured English immersion.

The state public instruction superintendent, Tom Horne, asked to be released from court supervision, arguing that Arizona had made such progress with its English language programs that it was no longer warranted. The Ninth Circuit acknowledged that the state had “made significant strides,” but not enough to end the supervision.

Justice Alito — joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas — said the lower courts should have been more flexible in evaluating the state’s improvements, especially since federal court decrees in institutional reform cases had the effect of “dictating state or local budget priorities.”

“Rather than applying a flexible standard that seeks to return control to state and local officials as soon as a violation of federal law has been remedied,” Justice Alito wrote, “the Court of Appeals used a heightened standard that paid insufficient attention to federalism concerns.”

Justice Alito said the appellate court also erred by looking narrowly at the schools’ compliance with the original judgment on financing, rather than looking broadly at whether their English language programs’ improvements had cured the problem.

The federal equal-education law, Justice Alito said, focused on “the quality of education programming and services provided to students, not the amount of money spent on them.”

Justice Alito sent the case back to the lower court for further consideration of four changed circumstances that could warrant releasing the state from the earlier judgment: the adoption of new teaching methods, the enactment of the No Child Left Behind law, structural and management reforms in Nogales, and increased overall education financing. He also instructed consideration of whether the case had been wrongly expanded to cover all of Arizona, not just Nogales.

In a lengthy dissent, Justice Stephen G. Breyer said the lower courts correctly focused on Arizona’s financing for English language learners because inadequate financing was the basis of Nogales’s violation of federal law.

The dissent, joined by Justices Ruth Bader Ginsburg, David H. Souter and John Paul Stevens, appended a chart showing the high failure rates of Nogales’s English language learners on state tests and emphasized the importance of ensuring their educational access.

The majority ruling “risks denying schoolchildren the English language instruction necessary to overcome language barriers that impede their equal participation,” Justice Breyer wrote.

Given that 47 million Americans do not speak English at home, he said, “I fear that the court’s decision will increase the difficulty of overcoming the barriers that threaten to divide us.”

Justice Breyer criticized the majority opinion’s outlined framework for review. “Does the court mean to say, for example, that courts must, on their own, go beyond a party’s own demands and relitigate an underlying legal violation whenever that party asks for modification of an injunction?” he wrote.

The dissent also takes issue with the majority’s statements on federalism.

“The court may mean its opinion to express an attitude, cautioning judges to take care when the enforcement of federal statutes will impose significant financial burdens upon states,” Justice Breyer wrote. “An attitude, however, is not a rule of law.”

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Full article and photo: http://www.nytimes.com/2009/06/26/education/26educ.html?ref=us

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Justices Rule Lab Analysts Must Testify on Results

Crime laboratory reports may not be used against criminal defendants at trial unless the analysts responsible for creating them give testimony and subject themselves to cross-examination, the Supreme Court ruled Thursday in a 5-to-4 decision.

The ruling was an extension of a 2004 decision that breathed new life into the Sixth Amendment’s confrontation clause, which gives a criminal defendant the right “to be confronted with the witnesses against him.”

Four dissenting justices said that scientific evidence should be treated differently than, say, statements from witnesses to a crime. They warned that the decision would subject the nation’s criminal justice system to “a crushing burden” and that it means “guilty defendants will go free, on the most technical grounds.”

The two sides differed sharply about the practical consequences of requiring testimony from crime laboratory analysts. Justice Anthony M. Kennedy, writing for the four dissenters, said Philadelphia’s 18 drug analysts will now each be required to testify in more than 69 trials next year, and Cleveland’s six drug analysts in 117 trials each.

Noting that 500 employees of the Federal Bureau of Investigation laboratory in Quantico, Va., conduct more than a million scientific tests each year, Justice Kennedy wrote, “The court’s decision means that before any of those million tests reaches a jury, at least one of the laboratory’s analysts must board a plane, find his or her way to an unfamiliar courthouse and sit there waiting to read aloud notes made months ago.”

Justice Antonin Scalia, writing for the majority, scoffed at those “back-of-the-envelope calculations.”

In any event, he added, the court is not entitled to ignore even an unwise constitutional command for reasons of convenience.

“The confrontation clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination,” Justice Scalia wrote.

“The sky will not fall after today’s decision,” he added.

But that is not how prosecutors saw it. “It’s a train wreck,” Scott Burns, the executive director of the National District Attorneys Association, said of the decision.

“To now require that criminalists in offices and labs that are already burdened and in states where budgets are already being cut back,” Mr. Burns said, “to travel to courtrooms and wait to say that cocaine is cocaine — we’re still kind of reeling from this decision.”

Mr. Burns said complying with the ruling would be particularly tough in large rural states with a single crime laboratory and in old cases where the analyst has died or moved away.

The decision came in the wake of a wave of scandals at crime laboratories that included hundreds of tainted cases in Michigan, Texas and West Virginia. William C. Thompson, a professor of criminology at the University of California, Irvine, said those scandals proved that live testimony from analysts was needed to explore potential shortcomings in laboratory reports.

“The person can be interrogated about the process, about the meaning of the document,” Professor Thompson said. “The lab report itself cannot be interrogated to establish the strengths and limitations of the analysis.”

In February, the National Academy of Sciences issued a sweeping critique of the nation’s crime labs. It concluded, for instance, that forensic scientists for law enforcement agencies “sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.”

Cross-examination of witnesses, Justice Scalia wrote, “is designed to weed out not only the fraudulent analyst, but the incompetent one as well.” He added that the Constitution would require allowing defendants to confront witnesses even if “all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Teresa.”

The case arose from the conviction of Luis E. Melendez-Diaz on cocaine trafficking charges in Massachusetts. Part of the evidence against him was a laboratory report stating that bags of white powder said to have belonged to him contained cocaine. Prosecutors submitted the report with only an analyst’s certificate.

Jeffrey L. Fisher, a law professor at Stanford who represented Mr. Melendez-Diaz, said perhaps a third of all states follow procedures that comply with Thursday’s decision. What that will mean as a practical matter remains to be seen. Criminal defense lawyers may still stipulate that crime lab reports are accurate, fearing that live testimony will only underscore their clients’ guilt. Others may insist on testimony in the hope that the analyst will be unavailable. Still others will now be able to prove that an analyst’s conclusion was mistaken or inconclusive.

“The defense bar today gains the formidable power to require the government to transport the analyst to the courtroom at the time of trial,” Justice Kennedy wrote. The decision, Melendez-Diaz v. Massachusetts, No. 07-591, featured some unusual alliances. The two justices most closely associated with a commitment to following the original meaning of the Constitution, Justices Scalia and Clarence Thomas, were joined by three members of the court’s liberal wing, Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.

In addition to Justice Kennedy, the dissenters included two members of the court’s conservative wing, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., and the remaining liberal, Justice Stephen G. Breyer.

Justice Kennedy said the majority had upended 90 years of settled law from six federal appeals courts and courts in 35 states.

“The court’s holding,” Justice Kennedy wrote, “is a windfall to defendants, one that is unjustified by a demonstrated deficiency in trials, any well-understood historical requirement, or any established constitutional precedent.”

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Full article: http://www.nytimes.com/2009/06/26/us/26lab.html?hp

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Supreme Court Rules Strip Search of 13-Year-Old Girl Unconstitutional

Vote Is 8-1; Justice Thomas Dissents

The Supreme Court rapped school officials for strip-searching a 13-year-old girl in a fruitless hunt for ibuprofen, ruling that an investigation based on almost no evidence violated the Fourth Amendment ban on “unreasonable searches and seizures.”

Savana Redding, right, and her lawyer Adam Wolf, stood outside the Supreme Court in April after the court heard her case.

The court’s 8-1 vote was a surprising victory for student rights, after its 2007 ruling that a school campaign to discourage drug abuse outweighed a teenager’s First Amendment right to mock such efforts.

The opinion, by Justice David Souter, who is retiring at the end of this term, exempted the assistant principal who ordered the search from liability, finding that it might not have been clear to him that his action was unconstitutional. But the justices left open the possibility that the school district, in Safford, Ariz., could be liable for the violation.

Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Samuel Alito, who all endorsed the 2007 decision limiting student free speech rights when it came to drug use, joined Justice Souter’s opinion, as did Justice Stephen Breyer.

Justices John Paul Stevens and Ruth Bader Ginsburg would have gone further still, upholding the federal appeals court ruling that left the assistant principal exposed to liability.

In dissent, Justice Clarence Thomas, as he has before, took the strongest position against student rights and in favor of school administrators’ authority.

The case arose after a Safford Middle School student found with several pills in her possession accused Savana Redding of having supplied her. Assistant Principal Kerry Wilson searched Savana’s backpack and, after finding nothing, had her strip-searched by two female school employees. Stripped to her underwear, Savana was forced to shake out her bra and panties so that anything hidden therein would fall out, “revealing her pelvic area” and “exposing her naked breasts in the process,” according to a lower court opinion. She was detained for an additional two hours before being sent back to class.

School authorities defended their actions as part of an aggressive campaign against controlled substances. Nearly two months earlier, they raised their guard after a pack of cigarettes and a bottle of alcohol were found in the girls’ bathroom. The classmate who implicated Savana had been found with prescription-strength ibuprofen — 400 mg per pill, twice that in over-the-counter versions such as Advil.

Savana, an honor student with no disciplinary record, called the search “the most humiliating experience” of her life. Her mother sued the school district, alleging it had violated the teenager’s Fourth Amendment right against “unreasonable searches and seizures.”

A divided federal appeals court agreed.

“Public school officials who strip searched Savana acted contrary to all reason and common sense as they trampled over her legitimate and substantial interest in privacy and security of her person,” Judge Kim Wardlaw wrote for the Ninth U.S. Circuit Court of Appeals in San Francisco.

Not only was the evidence cited by the assistant principal weak, but he should have realized that the “minimal nature of the alleged infraction” could not justify such an intrusive search, Judge Wardlaw wrote. She cited social science research about the negative effects of strip-searching children, concluding that “the overzealousness of school administrators in efforts to protect students has the tragic impact of traumatizing those they claim to serve.”

In a 1943 Supreme Court opinion, Justice Robert Jackson wrote that public schools must respect students’ constitutional rights, lest youth “discount important principles of our government as mere platitudes.” But the court also has recognized, as Justice Abe Fortas wrote in 1969, that students’ rights must be weighed against local officials’ authority “to prescribe and control conduct in the schools.”

In recent years, the court has been tilting that balance toward administrators. Two years ago, [2007] the court ruled that the schools’ interest in fighting drug abuse allowed it to suppress student speech that seemed to trivialize the issue–in that case, a banner a student unfurled outside campus reading “Bong Hits 4 Jesus.”

The Safford case initially suggested what may have been a gender divide on whether the strip search of a pubescent girl is “unreasonable” in light of the Fourth Amendment. At the Supreme Court, several male justices seemed puzzled at Savana’s humiliation over displaying her body to adult inquisitors.

“Why is this a major thing, to say, ‘Strip down to your underclothes,’ which children do when they change for gym?” Justice Stephen Breyer asked at the oral argument in April.

The court’s only woman, Justice Ruth Bader Ginsburg, interjected: Savana was not merely stripped to her underwear, but to shake her bra and panties out.

Justice Ginsburg’s perspective apparently influenced Justice Souter’s majority opinion. “The issue here is whether a 13-year-old student’s Fourth Amendment right was violated when she was subjected to a search of her bra and underpants by school officials,” his opinion begins.

“Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution,” he wrote.

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Safford Unified School District v. Redding: http://www.supremecourtus.gov/opinions/08pdf/08-479.pdf

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Full article and photo: http://online.wsj.com/article/SB124593034315253301.html

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An Unreasonable Search

In an important victory for students’ rights, the Supreme Court ruled, 8-to-1, Thursday that school officials acted unconstitutionally when they strip searched a 13-year-old girl. The majority was too willing to find that in this particular case the officials involved were immune from liability. But the decision still sends an important message to schools about the need to respect their students’ privacy when they conduct investigations.

Savana Redding, an Arizona middle-school student, was strip searched by school officials looking for prescription-strength ibuprofen. The school acted on a sketchy accusation from a fellow student, who said Ms. Redding had possessed ibuprofen pills in the past. The search — which Ms. Redding understandably regarded as humiliating — did not turn up any pills.

Ms. Redding’s mother sued, charging that the strip search violated the Fourth Amendment’s protection against unreasonable searches. In schools, the protection is reduced, but officials still must show that a search was not overly intrusive in light of its purpose and the age of the student.

Justice David Souter, writing for the majority, said the school was justified in searching Ms. Redding’s backpack and outer clothing. But a strip search is of another order of magnitude, he noted, especially when done on someone whose “adolescent vulnerability” magnifies the intrusiveness.

In this case, the court said, the school’s rationale did not justify the search. The drugs — a few ibuprofen pills — posed only a limited threat. And there was no legitimate reason to believe that Ms. Redding was hiding anything in her underwear.

The decision will no doubt, rightly, discourage schools from conducting strip searches of their students in all but the most extreme circumstances.

The court should have gone on to hold the school officials involved liable for damages. Regrettably, it ruled that the state of the law was so uncertain before this ruling that the officials should be given immunity for their actions. It sent the question of whether the school district is liable back to a lower court to resolve.

Justice John Paul Stevens, writing for himself and Justice Ruth Bader Ginsburg, noted that the standards for student searches have been clear since a 1985 Supreme Court ruling laid them out. And as he observed, it does not take a constitutional scholar to know that a strip search of a 13-year-old child is a significant invasion of constitutional rights.

Editorial, New York Times

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Full article: http://www.nytimes.com/2009/06/26/opinion/26fri2.html?_r=1&ref=opinion

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The Voting Rights Act Survives

The Supreme Court decided on Monday not to strike down Section 5 of the Voting Rights Act, a protection for the right of minorities to vote. That was very good news. The less good news is that the court, which has repeatedly upheld the constitutionality of Section 5, said it raises serious constitutional concerns. The ruling may signal that the court will be tempted in a future case to strike down this important safeguard.

Congress enacted Section 5 to clamp down on election officials who use tactics like gerrymandering and closing polling places to suppress and dilute minority votes. It requires states and local governments to “preclear” changes in voting rules with the Justice Department or a federal court to determine whether they would harm minority voting rights.

The case the court considered was brought by a Texas utility district with an elected board. The district wanted to be removed from coverage by Section 5, or alternatively, for the court to hold Section 5 to be unconstitutional, because Congress overstepped its authority in passing it. A lower court rejected both claims.

Based on the questions the justices asked at oral arguments in April — always a risky gauge — it appeared as if the court might be poised to strike down Section 5. In the end, it took a narrower approach.

By an 8-to-1 vote, it ruled that the utility district should have been allowed to bail out from the requirements of Section 5. The lower court, it said, had read the bailout provision incorrectly. In keeping with its traditional reluctance to decide constitutional questions unless it must, the court said that it would not rule on whether Section 5 is constitutional.

But Chief Justice John Roberts’s majority opinion laid the groundwork for possibly doing so in the future. It said, “We are now a very different nation” than more than 40 years ago when the Voting Rights Act was first upheld. “Whether conditions continue to justify” the act, the majority said, is “a difficult constitutional question.”

Congress answered that question in 2006 before it reauthorized the act by votes of 390 to 33 in the House and 98 to 0 in the Senate. It held extensive hearings and produced voluminous evidence that minority voters continue to face significant obstacles. The next time it considers the question, the Supreme Court should make clear that Section 5 is still needed and still constitutional.

Editorial, New York Times

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Full article: http://www.nytimes.com/2009/06/23/opinion/23tue2.html?ref=opinion

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Free-Speech Case for Debt-Ridden Age

The great Supreme Court free-speech cases of the 20th century arose from the suppression of political dissent in wartime and the struggle for civil rights in the South. These days, the court’s First Amendment docket is thinner and odder.

A recent sample: Minor celebrities, swearing. Dog fight videos. A monument to the Seven Aphorisms of the Summum religion. A banner reading “Bong Hits 4 Jesus.”

But the Supreme Court did just agree to hear a free-speech case that captures the tenor of our times. It concerns bankruptcy.

One of the plaintiffs in the case is Robert J. Milavetz, a 73-year-old lawyer from Minnesota. In the 1960s and 1970s, he represented conscientious objectors and people accused of violating obscenity laws. The new free-speech battleground, he says, is whether the government can gag lawyers seeking to help their clients arrange their financial affairs.

In 2005, Congress enacted a law that seems to bar lawyers from advising their clients to take on more debt if they are considering bankruptcy.

“Any lawyer with a First Amendment background would immediately recognize the First Amendment problems in this statute,” Mr. Milavetz said.

The law was meant to combat what it called bankruptcy abuses. It is certainly possible to abuse the bankruptcy system by piling on debt right before filing in the hope that you will not have to repay it. But ethics rules already forbid lawyers from advising their clients to break the law.

At the same time, not all new debt in the face of bankruptcy is abusive. It may be perfectly legal and prudent, for instance, to refinance a home mortgage to pay down credit card debt. It may make sense to buy a car on credit to make sure you can get to work — so you can pay back your creditors. But the law seems to forbid lawyers from suggesting or even discussing such things.

Joseph R. Prochaska, a bankruptcy lawyer in Nashville who represents creditors, said a client might get plausible advice from, say, a brother-in-law or Suze Orman on CNBC about refinancing a loan.

“You go to your lawyer for confirmation,” Mr. Prochaska continued. “As a lawyer, what do you say to that? ‘If I told you to do that, I’d be breaking the law.’?”

Experts in First Amendment law and legal ethics said the law, at least if read broadly, is deeply flawed.

“To say that a lawyer can’t advise a client to take on legal debt is clearly unconstitutional,” said Erwin Chemerinsky, the dean of the new law school at the University of California, Irvine.

Stephen Gillers, who teaches legal ethics at New York University, agreed. “Congress has no legitimate interest in denying people knowledge of their lawful alternatives,” Professor Gillers said.

In its brief urging the Supreme Court to hear the case, the government did not defend the broader and more natural reading of the law, the one that would forbid even lawful advice. Instead, it said the law contained “a term of art” with “a specialized meaning” that should allow for a more limited reading, one that applies only to abusive situations.

The law forbids advising someone “to incur more debt in contemplation of such person filing” for bankruptcy. The term of art, the government says, is the three-word phrase “in contemplation of.” You probably have to be a very good lawyer to make that phrase mean what the government says it means: “actions taken with the intent to abuse the protections of the bankruptcy system.”

In fairness, the government’s interpretation won support from a dissenting appeals court judge in the case the Supreme Court agreed to hear, from the United States Court of Appeals for the Eighth Circuit, in St. Louis, and a unanimous three-judge panel of the Fifth Circuit, in New Orleans.

To avoid holding a law unconstitutional, the Fifth Circuit said, it is sometimes a good idea to give a “restrictive meaning” to “what appear to be plain words.” That approach has a name: the doctrine of constitutional avoidance.

Mr. Milavetz’s law firm challenged the law, asking that it be struck down in all possible applications. Its briefs discuss hypothetical problems. The law prohibits advice about co-signing on a child’s student loan, one brief said, or borrowing to pay for credit counseling.

But the Supreme Court has not welcomed these kinds of sweeping challenges in recent cases, preferring more focused “as applied” cases that take issue with particular applications of laws.

The law also requires bankruptcy lawyers covered by it to publish disclosures when they advertise. The law says they must use this statement or something “substantially similar”: “We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.”

Mr. Milavetz said the language was aimed to stifle speech. “I feel the term ‘debt relief agency’ is pejorative,” he said. “It deters lawyers from advertising.”

Other lawyers welcome the requirement.

“Most consumer bankruptcy lawyers like to call themselves a ‘debt relief agency,’ ” Mr. Prochaska said. “They have buttons that say ‘Federal Debt Relief Agent.’ It’s a marketing tool.”

There are traces of history in every era’s First Amendment cases. These days, it seems, the great open question is what may be said in the face of looming financial ruin.

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See also:

FCC v. Fox: http://www.supremecourtus.gov/opinions/08pdf/07-582.pdf

Pleasant Grove City, Utah v. Summum: http://www.supremecourtus.gov/opinions/08pdf/07-665.pdf

Morse v. Frederick: http://www.supremecourtus.gov/opinions/06pdf/06-278.pdf

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Adam Liptak, New York Times

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Full article: http://www.nytimes.com/2009/06/23/us/23bar.html?hpw

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See also:

Justices to Rule on Law Banning the Depiction of Cruelty to Animals

http://www.nytimes.com/2009/04/21/us/21scotus.html

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Supreme Court Keeps Voting Rights Act Largely Intact

 

Don Zimmerman in front of Jack Stueber’s garage, the Texas polling location that prompted the Supreme Court challenge to the Voting Rights Act.

The Supreme Court dodged a constitutional showdown over voting rights by leaving intact a central provision of the 1965 Voting Rights Act.

The court’s 8-1 vote, and its opinion by Chief Justice John Roberts, was a break from recent decisions in race-tinged cases that have split its conservative majority from the liberal minority.

Instead, the court chose a narrow path in making it easier for small jurisdictions to end federal supervision of their election procedures. The decision kept intact the framework of a law designed to end the disenfranchisement of black citizens across the South — and kept the court out of a divisive social and political issue.

The challenged provision of the Voting Rights Act — Section 5 — requires state and local governments in areas that once practiced discrimination to “preclear” changes in election procedures with the Justice Department to ensure that minority voters are protected. In 2006, President George W. Bush signed a bill reauthorizing the provision for another 25 years.

Some conservatives chafed under the provision, which they contend stigmatizes regions subject to Section 5, mainly in the South but also including three boroughs of New York City and certain counties in California and New Hampshire. In a nation that has elected a black president, challengers argued that the Constitution should no longer permit intrusive federal supervision of local elections.

In the case before the court, a tiny utility district in Texas that that didn’t exist until the late 1980s and which never has been accused of discrimination, sought exemption from Section 5. If it wasn’t entitled to exemption, the district argued, Section 5 in its entirety was unconstitutional and should be struck down.

Instead, the court ruled narrowly in holding that all political subdivisions — not just those that conduct voter registration — can seek exemption from Section 5 pre-clearance if they can demonstrate a 10-year history free from racial discrimination. Lower courts had interpreted the exemption provision more strictly, meaning that most of the 12,000 units of local government covered by Section 5 could not seek exemptions.

Chief Justice John Roberts, writing for the court, said the larger issue of whether dramatic civil rights gains means the advance approval requirement is no longer necessary “is a difficult constitutional question we do not answer today.”

Justice Clarence Thomas, the court’s only black member, dissented. He wrote that Section 5 should have been struck down as exceeding congressional power over the states. 

The Supreme Court first upheld Section 5 in 1966, when it found as within Congress’ 15th Amendment power to protect the right to vote free of racial discrimination. Today, with the court’s conservative wing bolstered by the arrival of Chief Justice Roberts and Justice Samuel Alito, Section 5 opponents thought the time was ripe to reconsider the provision.

The chief justice and Justice Alito had sided with fellow conservative Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas in several decisions sharply critical of government efforts that expressly consider race in an effort to aid minorities. Those decisions sparked deeply critical dissents from the court’s four liberals.

Also Monday, the Supreme Court has upheld a federal government permit to dump waste from an Alaskan gold mine into a nearby lake, even though all its fish would be killed. By a 6-3 vote, the justices say a federal appeals court wrongly blocked the permit on environmental grounds.

Environmentalists fear that the ruling could set a precedent for how mining waste is disposed in American lakes, streams and rivers.

The Army Corps of Engineers in 2005 issued a permit for waste disposal at the proposed Kensington mine north of Juneau. Under the plan, tailings — waste left after metals are extracted from ore — would be dumped into Lower Slate Lake.

Environmentalists sued to halt the practice, saying dumping the mine tailings in the lake would kill fish. The 9th U.S. Circuit Court of Appeals in San Francisco blocked the permit, saying the dumping is barred by stringent Environmental Protection Agency requirements under the Clean Water Act of 1972.

In another case, the justices made it easier for parents of special education students to be reimbursed for the cost of private schooling for their children.

The court ruled 6-3 Monday in favor a teenage boy from Oregon whose parents sought to force their local public school district to pay the $5,200 a month it cost to send their son to a private school.

Justice John Paul Stevens said in his majority opinion that the federal Individuals with Disabilities Education Act requires a school district to pay for private special ed services if the public school doesn’t have appropriate services.

Justice Stevens said this is “regardless of whether the child previously received special-education services through the public school.”

In business cases, the court rejected a lawsuit challenging Bayer AG’s deal with Barr Pharmaceuticals Inc. to delay producing a generic version of Cipro, an antibiotic drug.

The case is the latest example of a “pay for delay” dispute that has made it way up to the high court. The Federal Trade Commission has actively opposed the agreements, which it views as anticompetitive, but the high court didn’t seek a brief from the government before rejecting the appeal.

Separate litigation on the Cipro agreements brought by drug wholesalers and retailers is still pending in a lower court. The Obama administration intends to file a brief in that case, which is in the 2nd U.S. Circuit Court of Appeals in New York.

Bayer paid $398 million to Barr and other generic drug makers in return for an agreement that they would not market a generic version of Cipro until Bayer’s patent on the drug expired. Drug purchasers and advocacy groups challenged the agreement as anticompetitive, saying it violated federal and state antitrust laws as well as state consumer protection laws.

The lawsuit was thrown out by a U.S. trial judge in New York in 2005. Last year the U.S. Court of Appeals for the Federal Circuit affirmed the rejection, agreeing that Bayer’s patent rights gave it the ability to enter into agreements limiting generic alternatives to its antibiotic.

Other cases

• The justices rejected an appeal from the credit card and banking units of Capital One Financial Corp., which has challenged efforts by Massachusetts to tax credit card revenues for the financial firm’s customers in the state. Capital One maintains it does not have a physical presence in Massachusetts and that the lack of offices or buildings shields it from state excise taxes under Supreme Court precedent. The lawsuit involves $1.76 million in tax assessments on credit card services and $159,100 for banking services for the years 1995 through 1998. The Supreme Judicial Court of Massachusetts in January 2009 upheld the ability of the state to levy the taxes.
• The high court rejected an appeal from a unit of AT&T Corp., which has been trying to stop a class-action lawsuit over cell phone termination policies at the company. AT&T has tried to get the lawsuit, filed in West Virginia state courts, transferred to a federal venue by citing the Class Action Fairness Act of 2005, which sought to make it easier for companies to get lawsuits transferred out of state courts. The case is AT&T Mobility LLC v. Shorts, 08-1156.
• The justices agreed to consider restricting certain whistleblower lawsuits claiming that local governments misused federal money. The court said it would grapple with a technical, though important, aspect of the federal False Claims Act as it relates to local governments. One section of the law prohibits whistleblower lawsuits when public disclosure of the alleged fraud occurs through a court hearing, a news report or congressional or administrative audit.
• The court will decide the constitutionality of a federal law that permits sex offenders to be kept behind bars after they complete their prison terms. The justices said they will consider the Obama administration’s appeal of a lower court ruling that invalidated the law.
• The justices will decide whether a suspect has to be told that he has a right to have a lawyer present during questioning by police. The court agreed to hear an appeal from Kevin Dwayne Powell, who was convicted of being a felon in possession of a firearm. When he was arrested, police gave Mr. Powell his Miranda warnings, including telling him he had a right to a lawyer before questioning. Mr. Powell’s lawyers objected, saying police didn’t tell him he had a right to have a lawyer during his police interrogation.

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Full article and photo: http://online.wsj.com/article/SB124567014181036773.html

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Justices Limit a Key Protection of the Voting Rights Act

Only election districts in which minorities make up at least half of the voting-age population are entitled to the protections of a part of the Voting Rights Act that seeks to ensure and preserve minority voting power, the Supreme Court ruled on Monday.

Officials in North Carolina had argued that the act required them to help maintain black influence at the voting booth by creating a district that included about 39 percent of the black voting-age population. The theory was that the law protected black voters who joined with white “crossover voters” to elect a candidate of the black voters’ choice. The court rejected that argument by a 5-to-4 vote.

Congress did not specify what percentage of minority voters in a district would call for the protections of Section 2 of the Voting Rights Act of 1965 when it later prohibited what courts have termed “vote dilution.” And the Supreme Court until now had avoided picking a number.

The district at issue in the case, which the North Carolina General Assembly created in 2003, was the consequence of an effort to preserve minority voting power notwithstanding changing demographics and legal concerns about the district’s shape. North Carolina officials settled on combining parts of two counties to create a relatively compact district that they said maintained “an adequate representation of black voters,” which was, in their view, 39 percent.

In rejecting the district, the Supreme Court effectively reduced the number of voting districts in which the Voting Rights Act will mandate that minorities play a dominant role. The bright-line 50 percent rule also makes litigation over the legality of particular districts less likely.

“The decision turns 50 percent into a magic number,” said Richard L. Hasen, who teaches election law at Loyola Law School in Los Angeles.

Richard H. Pildes, a law professor at New York University whose work the justices cited many times in the decision Monday, said that current events, including the fact that both major political parties are led by African-Americans, had complicated the legal landscape, creating “tremendous pressure on a statute that was primarily structured for an earlier era in which blacks were completely excluded from office.”

The decision resolved a question the court had left open in earlier decisions, and it touched off a sharp debate among the justices about how best to protect minority voting rights without cementing racially polarized voting.

In dissent, Justice David H. Souter — writing for himself and Justices Stephen G. Breyer, Ruth Bader Ginsburg and John Paul Stevens — said the upshot of the decision would be more racial polarization. It will require states “to pack black voters” into districts in which minorities make up the majority, Justice Souter said, “contracting the number of districts where racial minorities are having success in transcending racial divisions.”

Nonetheless, some legal experts said the impact of the decision might be relatively minor. “How many districts will not be drawn as a result of this decision?” asked Nathaniel Persily, a law professor at Columbia. “The answer is very few.”

Whatever its practical impact, the decision contained important hints about how the justices will approach the term’s more significant Voting Rights Act case: one that concerns Section 5 of the act, which requires jurisdictions with a history of racial discrimination to obtain the federal government’s permission before changing voting procedures.

Justice Anthony M. Kennedy, who wrote the controlling opinion on Monday and will almost certainly be in the majority in the next case, signaled that he was alert to the legacy of racial discrimination and in favor of only incremental steps in cutting back on the sweep of voting rights protections.

“Racial discrimination and racially polarized voting are not ancient history,” Justice Kennedy said. But the goal of the Voting Rights Act, he continued, was to “hasten the waning of racism in American politics” rather than to “entrench racial differences.”

In all, said Heather Gerken, a law professor at Yale, Justice Kennedy’s statements “bode well for the constitutionality of the Voting Rights Act” in the case to be argued in April, Northwest Austin Municipal Utility District v. Holder, No. 08-322.

The district at issue in Monday’s decision, Bartlett v. Strickland, No. 07-689, violated the North Carolina Constitution, which forbids dividing counties when drawing legislative districts. County officials sued, and state officials defended the boundaries by saying the district was required by the Voting Rights Act. The State Supreme Court ruled that only districts in which minorities made up 50 percent of voters were covered by the provision in Section 2 of the act, which protects minority voting power.

Before the 2000 census, the predecessor to the disputed district had a black voting-age population of about 56 percent. After the census, the population fell below 50 percent, and concerns were raised about the shape of the old district.

State officials decided to violate the State Constitution in order to comply with their understanding of the Voting Rights Act, which they contended would be satisfied with a relatively compact district that included parts of two counties and a black voting-age population of 39 percent.

The act itself does not answer the question of what percentage of potential minority voters is required. It requires courts to look at “the totality of the circumstances” to decide whether some groups “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”

But the Supreme Court suggested in 1986 that there may be a 50 percent threshold, and on Monday it made that suggestion into what Justice Kennedy called “an objective, numerical test” that “draws clean lines for courts and legislatures alike.

“Nothing in Section 2 grants special protection to a minority group’s right to form political coalitions,” said Justice Kennedy, who was joined by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. “There is a difference between a racial minority group’s ‘own choice’ and the choice made by a coalition.”

Justice Souter presented data to support his point that the 50 percent line was arbitrary and counterproductive. In 2004, he wrote, seven of nine North Carolina State House districts in which blacks made up the majority of the voting age population had elected black representatives. But so did 11 of 12 additional districts in which the voting age population was at least 39 percent black.

Justice Clarence Thomas, joined by Justice Antonin Scalia, voted with the majority but did not adopt Justice Kennedy’s reasoning.

Justice Thomas said Section 2 of the Voting Rights Act did not protect even districts in which minority voters represented a clear majority. So-called vote-dilution claims, he wrote, quoting his own earlier opinion, have produced “a disastrous misadventure in judicial policy making.”

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Full article: http://www.nytimes.com/2009/03/10/washington/10votes.html

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A Life Term for Rape at 13: Cruel and Unusual?

Now 33, Joe Sullivan is 20 years into a life sentence. His lawyers say he should have the chance to seek parole

In 1989, someone raped a 72-year-old woman in Pensacola, Fla. Joe Sullivan was 13 at the time, and he admitted that he and two older friends had burglarized the woman’s home earlier that day. But he denied that he had returned to commit the rape.

The victim testified that her assailant was “a colored boy” who “had kinky hair and he was quite black and he was small.” She said she “did not see him full in the face” and so would not recognize him by sight. But she recalled her attacker saying something like, “If you can’t identify me, I may not have to kill you.”

At his trial, Mr. Sullivan was made to say those words several times.

“It’s been six months,” the woman said on the witness stand. “It’s hard, but it does sound similar.”

The trial lasted a day and ended in conviction. Then Judge Nicholas Geeker, of the circuit court in Escambia County, sentenced Mr. Sullivan to life without the possibility of parole.

“I’m going to send him away for as long as I can,” Judge Geeker said.

Mr. Sullivan is 33 now, and his lawyers have asked the United States Supreme Court to consider the question of whether the Eighth Amendment’s ban on cruel and unusual punishment extends to sentencing someone who was barely a teenager to die in prison for a crime that did not involve a killing.

People can argue about whether the punishment in Mr. Sullivan’s case is cruel. There is no question that it is unusual.

According to court papers and a report from the Equal Justice Initiative, which now represents Mr. Sullivan, only eight people in the world are serving sentences of life without parole for crimes they committed when they were 13. All are in the United States.

And there are only two people in that group whose crimes did not involve a killing. Both are in Florida, and both are black.

Joe Sullivan is one; Ian Manuel, who is in prison for a 1990 robbery and attempted murder, is the other.

About 1,000 people under 15 are arrested on rape charges every year, according to Justice Department data. But none of them have been sentenced to life without parole since Mr. Sullivan was. Indeed, no 13-year-old has been sentenced to life without parole for any crime that did not involve a killing in more than 15 years.

Florida’s attorney general, Bill McCollum, waived his right to file a response to Mr. Sullivan’s petition to the Supreme Court, a sign suggesting that he considers the case insubstantial if not frivolous. Sandi Copes, a spokeswoman for Mr. McCollum’s office, declined to discuss the case.

Last month, the court indicated that it found the case more interesting than Florida does, requesting a response from the state. That probably means that at least one justice considered the case significant or difficult. But it is nothing like a guarantee that the court will agree to hear it.

On the other hand, the question of whether life without parole for juveniles is constitutional is the logical next step following the court’s 2005 decision in Roper v. Simmons, which struck down the death penalty for crimes committed by 16- and 17-year-olds. Writing for the majority in that case, Justice Anthony M. Kennedy said that even older teenagers are different from adults. They are less mature, more impulsive, more susceptible to peer pressure and more likely to change for the better over time.

Last year, in Kennedy v. Louisiana, the court issued another ruling that helps frame Mr. Sullivan’s case. That decision said crimes against individuals that did not involve killing, including the rape of a child by an adult, may not be punished by death.

In 2007, after Mr. Sullivan had served almost two decades in prison, a Florida appeals court declined to have another look at his case. The Roper decision, the appeals court said, “established only one new constitutional right, the right for a juvenile not to be given the death penalty.”

Douglas A. Berman, an authority on sentencing law at Ohio State, said it was time for the Supreme Court and the legal system to widen its relentless focus on capital cases and to look at other severe sentences as well. Cases involving the death penalty receive careful review at multiple levels, he said. Life sentences can receive almost none.

Mr. Sullivan’s trial, for instance, lasted a day. He was represented by a lawyer who made no opening statement and whose closing argument occupies about three double-spaced pages of the trial transcript. The lawyer was later suspended, and the Florida Bar’s Web site says he is “not eligible to practice in Florida.”

There was biological evidence from the rape, but it was not presented at the trial. When Mr. Sullivan’s new lawyers recently sought to conduct DNA testing on it, they were told that the state had destroyed it in 1993.

“I absolutely believe he is innocent,” Bryan A. Stevenson, the executive director of the Equal Justice Initiative, said of Mr. Sullivan. Mr. Stevenson said he believed that one of the older youths who committed the burglary with Mr. Sullivan and who testified against him was probably the actual assailant.

But the point made by Mr. Sullivan’s brief to the Supreme Court is not that he is innocent. It is not even that he should be released after 20 years in prison. It is only that he should someday be allowed to make his case to the Florida Parole Commission.

“I don’t think it’s possible to say that a 13-year-old will never change and that life without parole is an appropriate punishment,” Mr. Stevenson said.

Aside from Mr. Sullivan’s case, it seems there is only one other appeals court decision about whether young teenagers may be locked away forever for rape. It was issued 40 years ago in Kentucky, and it involved two 14-year-olds. The court struck down the part of the sentences precluding the possibility of parole.

Juveniles “are not permitted to vote, to contract, to purchase alcoholic beverages or to marry without the consent of their parents,” the court said. “It seems inconsistent that one be denied the fruits of the tree of the law, yet subjected to all of its thorns.”

 Adam Liptak, New York Times

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Full article and photo: http://www.nytimes.com/2009/02/03/us/03bar.html

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Justices Step Closer to Repeal of Evidence Ruling

In 1983, a young lawyer in the Reagan White House was hard at work on what he called in a memorandum “the campaign to amend or abolish the exclusionary rule” — the principle that evidence obtained by police misconduct cannot be used against a defendant.

The Reagan administration’s attacks on the exclusionary rule — a barrage of speeches, opinion articles, litigation and proposed legislation — never gained much traction. But now that young lawyer, John G. Roberts J., is chief justice of the United States.

This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.

Justice Samuel A. Alito Jr. joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006. In applying for a job in the Reagan Justice Department in 1985, he wrote that his interest in the law had been “motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure,” religious freedom and voting rights.

Justice Alito replaced Justice Sandra Day O’Connor, who was considered a moderate in criminal procedure cases.

“With Alito’s replacement of O’Connor,” said Craig M. Bradley, a law professor at Indiana University, “suddenly now they have four votes for sure and possibly five for the elimination of the exclusionary rule.”

The four certain votes, in the opinion of Professor Bradley and other legal scholars, are Chief Justice Roberts, Justice Alito, Justice Antonin Scalia and Justice Clarence Thomas, who is also an alumnus of the Reagan administration.

The fate of the rule seems to turn on the views of Justice Anthony M. Kennedy, who has sent mixed signals on the question. As in so many areas of the law, there are indications that the court’s liberal and conservative wings are eagerly courting him. They are also no doubt looking for the case that, with Justice Kennedy’s vote, will settle the issue once and for all.

The United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.

Other nations balance the two interests case by case or rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.

In Herring, Chief Justice Roberts seemed to be advocating those kinds of approaches. “To trigger the exclusionary rule,” he wrote, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

That price, the chief justice wrote, “is, of course, letting guilty and possibly dangerous defendants go free.”

The Herring decision can be read broadly or narrowly, and its fate in the lower courts is unclear. The conduct at issue in the case — in which an Alabama man, Bennie D. Herring, was arrested on officers’ mistaken belief that he was subject to an outstanding arrest warrant — was sloppy recordkeeping in a police database rather than a mistake by an officer on the scene. Since the misconduct at issue in Herring was, in the legal jargon, “attenuated from the arrest,” the decision may apply only to a limited number of cases.

But the balance of the opinion is studded with sweeping suggestions that all sorts of police carelessness should not require, in Chief Justice Roberts’s words, that juries be barred from “considering all the evidence.”

A broad reading of the decision by the lower courts, Professor Bradley said, means “the death of the exclusionary rule as a practical matter.”

In one of the first trial court decisions to interpret Herring, a federal judge in New Jersey took the broader view, refusing to suppress evidence obtained from computer hard drives under a search warrant based on false information supplied by a Secret Service agent. The agent had told the judge that DVDs found during an earlier search contained child pornography.

This was false: other law enforcement officials had reviewed the DVDs and had found no child pornography. The agent, who was leading the investigation, testified that he did not know of that review when he made his statement.

“This conduct,” Judge Stanley R. Chesler wrote a week after Herring was decided, “while hardly qualifying as a model of efficient, careful and cooperative law enforcement, does not rise to the level of culpability that the Supreme Court held in Herring must be apparent for the exclusionary rule to serve its deterrent purpose and outweigh the cost of suppressing evidence.”

Constitutional adjudication is not a science experiment, and it is often hard to say for sure what difference a change in personnel makes. In the case of the exclusionary rule, though, you can get pretty close.

On Jan. 9, 2006, just months after Chief Justice Roberts joined the court, the justices heard arguments in Hudson v. Michigan. The police in Detroit had violated the constitutional requirement that they knock and announce themselves before storming the home of Booker T. Hudson, and the question in the case was whether the drugs they found should be suppressed under the exclusionary rule

Justice O’Connor, in her last weeks on the court while the Senate considered Justice Alito’s nomination, was almost certainly the swing vote, and she showed her cards.

“Is there no policy protecting the homeowner a little bit and the sanctity of the home from this immediate entry?” she asked a government lawyer, her tone sharp and flinty.

David A. Moran, who argued the case for Mr. Hudson, was feeling good after the argument. “I was pretty confident that I’d won,” he said in a recent interview. “O’Connor had pretty clearly spoken on my side.”

Three months later, the court called for reargument, signaling a 4-to-4 deadlock after Justice O’Connor’s departure. Justice Alito was on the court now, and the tenor of the second argument was entirely different.

Now Justice Stephen G. Breyer, who seemed to have been at work on a majority opinion in favor of Mr. Hudson, saw a looming catastrophe. The court, Justice Breyer said, was about to “let a kind of computer virus loose in the Fourth Amendment.”

Justice Breyer had reason to be wary. When the 5-to-4 decision was announced in June, the court not only ruled that violations of the knock-and-announce rule do not require the suppression of evidence but also called into question the exclusionary rule itself.

In a law review article later that year, Mr. Moran went even further. “My 5-4 loss in Hudson v. Michigan,” he wrote, “signals the end of the Fourth Amendment as we know it.”

Justice Scalia, writing for the majority, said that much had changed since the Mapp decision in 1961. People whose rights were violated may now sue police officers, and police departments are more professional. In light of these factors, he wrote, “resort to the massive remedy of suppressing evidence of guilt is unjustified.”

Justice Scalia cited the work of a criminologist, Samuel Walker, to support his point about increased police professionalism. Professor Walker responded with an opinion article in The Los Angeles Times saying that Justice Scalia had misrepresented his work. Better police work, Professor Walker said, was a consequence of the exclusionary rule rather than a reason to do away with it.

Justice Kennedy signed the majority decision, adopting Justice Scalia’s sweeping language. Oddly, though, he also wrote separately to say that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt.”

Another important Warren Court decision on criminal procedure, Miranda v. Arizona, appears to remain secure. Miranda, as anyone with a television set knows, protected a suspect’s right to remain silent and the right to a lawyer by requiring a warning not found in the Constitution. The decision, like Mapp, was the subject of much criticism in the Reagan years.

But in a pragmatic 7-to-2 decision in 2000, the Rehnquist Court refused to revisit the issue. Miranda warnings, Chief Justice William H. Rehnquist wrote for the majority, had “become embedded in routine police practice” and had “become part of the national culture.” Justices Scalia and Thomas dissented.

Defenders of the exclusionary rule breathed a sigh of relief in November

“From the point of view of a liberal concerned about criminal procedure,” said Yale Kamisar, a law professor at the University of San Diego, “we were saved by Barack Obama in the nick of time. If ever there was a court that was establishing the foundations for overthrowing the exclusionary rule, it was this one.”

For now, said Pamela Karlan, a law professor at Stanford, “they don’t have five votes to disavow the exclusionary rule by name.”

At the same time, Professor Karlan said, “you are not going to see any dimension along which there is going to be an expansion of defendants’ rights in this court.”

Adam Liptak, New York Times

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Full article: http://www.nytimes.com/2009/01/31/washington/31scotus.html

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