The Courts's topics - tribe.net

The Poll Tax Is Back!!!!

imandrew — Thu, 01 May 2008 02:29:35 GMT

Well. Yeah.

Oh well. The 24th Amendment was a pain in the neck anyway. I mean, what the hell is wrong with a poll tax anyway? 'Charging' people to vote is no big deal, because ... um ... wait.....give me a sec to rationalize why any situation that makes someone pay as a contingency before voting is OK.

Give me a sec...

posted in The Courts - 0 replies

States rights & the 4th Amendment just took a step back

Cliff — Wed, 23 Apr 2008 20:39:20 GMT

States rights & the 4th Amendment just took a step back

http://tinyurl.com/63h9nm

posted in The Courts - 1 reply

The Verdict for the NYC cops in the shooting of 11/25/06 at the Kalua club

Cliff — Fri, 25 Apr 2008 22:18:54 GMT

The Verdict for the NYC cops in the shooting of 11/25/06 at the Kalua club

http://tinyurl.com/6lanrp

If nothing else it's an insight into how the courts often arrive at their conclusions . Make of it what you will.

posted in The Courts - 0 replies

Prosecutorial immunity under fire

Cliff — Tue, 15 Apr 2008 16:48:24 GMT

http://tinyurl.com/5xmwbq

posted in The Courts - 0 replies

Lethal Injection on trial~!!

Cliff — Thu, 03 Apr 2008 16:54:30 GMT

http://tinyurl.com/33g44y

posted in The Courts - 0 replies

The Nine -- Online conversation...

Frozenstars — Tue, 11 Dec 2007 22:37:29 GMT

"The Nine: Inside the Secret World of the Supreme Court" in conversation with Christopher Edley, Jr.

http://fora.tv/2007/10/03/Inside_the_Secret_World_of_the_Supreme_Court

posted in The Courts - 0 replies

random justice

acoustichrmny — Sat, 22 Sep 2007 07:03:04 GMT

Random Justice
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=983946
If you’re a Chinese refugee seeking asylum in the United States, what’s your best bet? First, move to San Francisco. Then try to find an immigration lawyer, prove that a dependent is counting on you, and pray for a female judge. According to a recent study by three law professors, factors like ethnicity, geography, and the gender of the judge—along with a healthy dose of luck—play a far bigger role than the merits of the case in determining whether a refugee is granted asylum in the United States. The authors analyzed hundreds of thousands of cases and found a huge geographic variance in the rates at which applicants prevailed. In 2005, for instance, the Houston field office granted asylum to only 17 percent of applicants; the Arlington, Virginia, office approved 52 percent. Between 2000 and 2005, 74 percent of Chinese refugees in San Francisco won asylum, whereas only 18 percent of their compatriots in Newark, New Jersey, did. Demographics may account for some of this variance, but they don’t explain the discrepancies that the authors found in the judgments of officials in the same buildings: At the federal immigration court in Miami, one judge granted asylum to 88 percent of Colombian applicants, yet another ruled in favor of just 5 percent. The researchers also discovered that asylum seekers with lawyers were granted refuge far more often than those without, that those with dependents had slightly better odds, and that female judges granted asylum at a substantially higher rate than their male counterparts.

—“Refugee Roulette: Disparities in Asylum Adjudication,” Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag, Stanford Law Review

posted in The Courts - 1 reply

Mandatory Alcoholics Anonymous ruled unconstitutional

cortelyou — Thu, 13 Sep 2007 00:55:33 GMT

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/09/08/BA99S1AKQ.DTL

Alcoholics Anonymous, the renowned 12-step program that directs problem drinkers to seek help from a higher power, says it's not a religion and is open to nonbelievers. But it has enough religious overtones that a parolee can't be ordered to attend its meetings as a condition of staying out of prison, a federal appeals court ruled Friday.

posted in The Courts - 2 replies

the law of parties

acoustichrmny — Thu, 16 Aug 2007 04:46:24 GMT

http://www.alternet.org/rights/59484/
---
Innocent Man Sentenced to Death Under Cruel Texas Law
By Liliana Segura, The Brooklyn Rail
Posted on August 14, 2007, Printed on August 15, 2007
http://www.alternet.org/story/59484/

Kenneth Foster's time is running out.

On Tuesday, August 7, in a six-to-three decision, the Texas Court of Criminal Appeals denied his final writ of habeas corpus, giving the legal green light for his execution. Foster, who is scheduled to die by lethal injection on August 30, is now at the mercy of the merciless Board of Pardons and Paroles. The odds are bad. Five out of seven board members must recommend clemency before Governor Rick Perry will consider it -- and in a state that has executed nearly 400 people in thirty years, clemency has only been granted twice. But Foster's supporters, who are spearheading a letter-writing campaign to the board and governor, are relying on one particularly salient detail to move their minds, if not their hearts: Foster didn't kill anyone.

Foster was convicted for the 1996 murder of Michael LaHood Jr., who was shot following a string of robberies, by a man named Mauriceo Brown. Brown admitted to the shooting and was executed by lethal injection last year. Now Foster faces the same fate. So, if Brown was the shooter, what did the 19-year-old Foster do to get a death sentence? He sat in his car, 80 feet away, unaware that a murder was taking place.

Foster was convicted under Texas's "law of parties," a twist on a felony murder statute that enables a jury to convict a defendant who was not the primary actor in a crime. This can mean sentencing someone to death even if he or she had no proven role in a murder. Texas's law states that "if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it." Defendants, the Texas courts say, can be held responsible for "failing to anticipate" that the "conspiracy" -- in Foster's case, the robberies, for which he was the getaway driver -- would lead to a murder. Foster's sentence, death row prisoner Mumia Abu-Jamal recently commented, "criminalizes presence, not actions."

In theory, the law of parties is "a well-recognized legal document," says Houston defense attorney Clifford Gunter, and most states with the death penalty on the books include a similar provision for "non-triggermen." Nevertheless, critics of the Texas law say it's an aberration -- a slippery legal statute that stands in direct violation of the 1982 Supreme Court decision in Enmund v. Florida. Still the "prevailing view," according to Gunter, Enmund held that the death penalty was unconstitutional for a defendant "who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." In Texas today, the law or parties says exactly the opposite.

Even more troubling is the law in practice. When Justice Byron White wrote the Enmund decision in 1982, he observed that the Court was not aware of a single execution of someone who did not kill or intend to kill. What a difference another quarter-century makes. Months after Enmund was decided, Texas executed its first prisoner since the reinstatement of the death penalty in 1976. In the tidal wave of capital cases that followed, numerous defendants would be sentenced to die under the law of parties.
[more if you click the link]

posted in The Courts - 6 replies

judging likeability

acoustichrmny — Fri, 24 Aug 2007 04:48:50 GMT

http://www.dmiblog.com/archives/2007/08/judging_likeability.html
The Politico recently surveyed 22 Senate Democrats who voted for Roberts' confirmation and at least seven said they were either concerned or disappointed with the chief justice's tenure. Among the Democratic Senators experiencing buyer’s remorse was Senator Kent Conrad of North Dakota who told The Politico:

"[Alito] assured me he was not an ideologue. I have increasing reason to believe that is not the case. I have questions about Roberts, too. He assured me he was a nonideologue. So, I am not prepared to say that one can reach a conclusion after this short period, but I am not encouraged by the trend."

Personal assurances, however, should not have been taken at face value. Close scrutiny of Chief Justice Roberts's and Justice Alito's respective records as nominees illustrated their hostility to civil rights, a high level of deference to executive power, and willingness to challenge settled law. Many Democrats wrongly believed that the likeable personalities of each nominee sufficiently warranted their confirmation to a lifetime seat to the country's most powerful court without adequately considering the impact they would have on the law.

In both instances, Senate Democrats, particularly those on the Judiciary Committee, had every Constitutional right to pressure the administration to nominate more moderate judges, but instead abdicated their responsibility to offer "advice and consent" to the president on his nominees. Just because the President nominates someone does not mean that that the nominee is entitled to confirmation. Additionally, Senate Democrats should have been wary of President Bush's judicial nominees since several years prior to the Roberts and Alito nominations, he was pointedly clear about his desire to appoint Justices in the mold of Justices Scalia and Thomas.

Even with their new majority in the Senate, Democrats might just experience buyer’s remorse once again with the recent nomination of Judge Leslie Southwick to the Fifth Circuit Court of Appeals, whose jurisdiction includes Texas, Mississippi and Louisiana. On the Mississippi Court of Appeals for more than a decade, Judge Southwick, has an 89 percent record of voting against workers, consumers and other victims in divided decisions. In an employment case, where a white state employee was fired for calling another co-worker "a good ole n----," he joined a 5-4 majority decision upholding a state agency’s decision to reinstate her. Judge Southwick’s court reasoned that reinstatement was justified in part because the slur "was not motivated out of racial hatred or racial animosity directed toward a particular co-worker or toward blacks in general." In a child custody case that involved a bisexual mother, Southwick joined an unnecessary concurrence condemning homosexuality.

Given Judge Southwick's troubling record, one is at a loss as to why Senator Dianne Feinstein (D-CA) recently decided to support his nomination and vote it out of the Judiciary Committtee. In her speech to the committee, Senator Feinstein cited her pleasant interactions with Southwick and the fact that he did not impress her as racist or homophobic.

I don't believe he's a racist. I don't believe I'm a racist. I believe he made a mistake. Now the question is, 'Does one ever overcome their mistakes?' I believe they do, perhaps some don't. But I believe he is a good person. I believe he is steeped in the law, and he's got 11 years of appellate experience.......I think what sometimes gets lost in our debates about judicial nominees is that they are not just a collection of prior writings or prior judicial opinions. They are, first and foremost, people. And in my conversations with Judge Southwick, I have gotten a sense of what kind of person he is, and the kind of appellate judge that I believe he will be, given that opportunity. Now can I be wrong? Sure, I can be wrong. Have I been wrong before? I don't know. But all I can do is give this my best judgment.

But prior writings and judicial opinions are every indication of what a nominee thinks and shouldn’t be dismissed lightly just because he or she is a “good person.” And on many of the issues that affect ordinary Americans living in Texas, Louisiana, and Mississippi, Southwick's record is less than inspiring.

In her floor speech, Senator Feinstein also said that Southwick was the third nominee the Administration had sent up for the same federal judgeship and that two previous nominees had been rejected. If the Administration sent up three nominees with questionable judicial records, then three nominees should have been rejected. The rejections of nominees such as Judge Terrence Boyle were based on their retrogressive judicial records. The same should have applied to Southwick.

Too bad troubling records weren’t taken into effect when many of Senator Feinstein's colleagues voted for the confirmation of Chief Justice Roberts and Justice Alito to our Supreme Court.

Recent Supreme Court decisions underscore why senators should make a nominee's record the central focus of their vote. Unfortunately, that still isn’t the case as witness Feinstein’s good feeling rationale for voting for Southwick.

If the Democrats want the Administration to stop sending them bad nominees, they’re going to have to grit their teeth and reject them based on their records, not confirm them just because they’re personally “nice” people.

posted in The Courts - 1 reply

Teacher free speech rights greatly limited

cortelyou — Tue, 15 May 2007 20:40:58 GMT

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/05/14/MNG9PPQGVV1.DTL

A public school teacher when asked by a student in class if she was going to be in any anti-war rallies replied "I honk for peace." As in honking when she sees a protest sign saying "honk if you want peace".

For this she was fired by the school principle and school district.

The court ruled recently that the firing was justified. Ruling that school teachers have greatly reduced rights to personal free speech while in class.

posted in The Courts - 2 replies

Supreme Court OKs Abortion Procedure Ban

cortelyou — Thu, 19 Apr 2007 02:26:51 GMT

http://apnews.myway.com/article/20070418/D8OJ7CL00.html

The Supreme Court's conservative majority handed anti-abortion forces a major victory Wednesday in a decision that bans a controversial abortion procedure and set the stage for further restrictions.

For the first time since the court established a woman's right to an abortion in 1973, the justices upheld a nationwide ban on a specific abortion method, labeled partial-birth abortion by its opponents.

The 5-4 decision written by Justice Anthony Kennedy said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman's constitutional right to an abortion.

The law is constitutional despite not containing an exception that would allow the procedure if needed to preserve a woman's health, Kennedy said. "The law need not give abortion doctors unfettered choice in the course of their medical practice," he wrote in the majority opinion.

posted in The Courts - 5 replies

The Supreme Court on the EPA & CO2...

Frozenstars — Mon, 02 Apr 2007 16:30:11 GMT

http://www.msnbc.msn.com/id/17911853/

posted in The Courts - 6 replies

Appeals Court Overturns D.C. Gun Ban

Cliff — Fri, 09 Mar 2007 20:00:44 GMT

Appeals Court Overturns D.C. Gun Ban
From Associated Press
March 09, 2007 1:53 PM EST

WASHINGTON - The District of Columbia's long-standing ban on handguns was overturned Friday by a federal appeals court, which rejected the city's argument that the Second Amendment right to bear arms applies only to militias, not individuals.

In a 2-1 decision, the judges held that the activities protected by the Second Amendment "are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued intermittent enrollment in the militia."

A lower-court judge told six city residents in 2004 that they did not have a constitutional right to own handguns. The plaintiffs include residents of high-crime neighborhoods who want guns for protection.

The Bush administration has endorsed individual gun-ownership rights but the Supreme Court has never settled the issue. If the dispute makes it to the high court, it would be the first case in nearly 70 years to address the Second Amendment's scope.

posted in The Courts - 2 replies

Whorton v. Bockting

Cliff — Thu, 01 Mar 2007 03:14:06 GMT

On March 8, 2004, the United States Supreme Court ruled in Crawford v. Washington, 541 US 36 (2004) that testimonial statements made by witnesses who are absent from trial are admissible only where the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the witness.

In this morning’s (2/28/07) decision by the United States Supreme Court in Whorton v. Bockting, the Justices held that the Crawford decision does not apply retro-actively to cases on federal collateral review (the State equivalent of post-conviction relief).

This decision is of immense importance to municipal court practitioners since several recent rulings by the Appellate Division in drunk driving cases have fundamentally changed the procedures that required to prove intoxication on the basis of Crawford-related issues. (e.g. State v. Berezansky, 386 N.J. Super. 84 (App. Div. 2006) (Laboratory technician must appear to testify upon defense objection to documentary lab results); State v. Renshaw, ___ N.J. Super ___ (App. Div. 2007) (Person who extracted blood samples from defendant must testify as condition of proving sample was taken in a medically acceptable manner, abrogating NJSA 2A:62A-11).

Today’s United States Supreme Court holding may limit or prevent consideration of Crawford issues in post-conviction relief applications under Rule 7:10-2 for convictions occurring prior to the new rule of law announced in Crawford

posted in The Courts - 0 replies

U.S. appeals court backs Bush, denies Gitmo detainees

feiruz_al-bnefsagia — Tue, 20 Feb 2007 17:45:44 GMT

From CNN http://www.cnn.com/2007/LAW/02/20/detainees.lawsuits.ap/index.html?eref=rss_topstories

Guantanamo Bay detainees may not challenge their detention in U.S. courts, a federal appeals court said Tuesday in a ruling upholding a key provision in President Bush's anti-terrorism law.

The U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 that civilian courts no longer have the authority to consider whether the military is illegally holding foreigners.

Barring detainees from the U.S. court system was a key provision in the Military Commissions Act, which Bush pushed through Congress last year to set up a system to prosecute terrorism suspects.

The ruling is all but certain to be appealed to the Supreme Court, which last year struck down the Bush administration's original plan for trying detainees before military commissions.

The Military Commissions Act was crafted in response to that decision and the president hailed it as a necessary tool for bringing terror suspects to justice.

Civil libertarians and leading Democrats decried the law as unconstitutional and a violation of American values. The law allows the government to indefinitely detain foreigners who have been designed as "enemy combatants" and authorizes the CIA to use aggressive but undefined interrogation tactics.

But the most criticized provision of the law was the one stripping U.S. courts of the authority to hear arguments from detainees who said they were being held illegally.

Attorneys argued that the detainees aren't covered by that provision and that the law is unconstitutional.

"The arguments are creative but not cogent. To accept them would be to defy the will of Congress," Judge A. Raymond Randolph wrote.

U.S. citizens and foreigners being held inside the country normally have the right to contest their detention before a judge. The Justice Department said foreign enemy combatants are not protected by the Constitution.

Randolph and Judge David B. Sentelle ordered that the hundreds of cases pending in the lower courts be dismissed.

Judge Judith W. Rogers dissented, saying the cases should proceed.

"District courts are well able to adjust these proceedings in light of the government's significant interests in guarding national security," Rogers wrote.

posted in The Courts - 2 replies

Foreign law and the US Constitution

Cliff — Fri, 16 Feb 2007 21:29:38 GMT

What place should foreign law play in the role of United States judicial process when interpreting Constitutional provisions?

I think there are places where it is mot merely appropriate but necessary. I’d go so far as to say that a course in comparative law of at least one other nation should be a required course for law students as an examination of some other system would facilitate understanding of ours.
Foreign law can be a requirement when interpreting treaties especially where the USA position will bear on how another nation might interpret any given provision. Occasionally USA statutory law can implicate the provisions of a treaty and there may be a valid application of foreign law there also.
The foreign sovereign immunities act permits definitely requires the courts to examine the laws of lands where suites of American s may extend. Obviously where an American claims she was deprived her lawful possession of a thing it is necessary to look at the foreign nation’s laws to determine where there was a valid claim of ownership in the first place.
Another use of foreign laws inheres when one litigant insists that invoking a certain interpretation of our laws would result in some unacceptably wrong result. If for example that same interpretation was made on the same set of facts and circumstances in some other nation - and the wrong result didn’t subsequently arise it cam inform the court that on at least one other occasion things didn’t go all to hell.
I use foreign law all the time in my work as do most other s in my field. It is old English law – the law that was out springboard when we formed our Constitution. What was going through the minds of persons – who while drafting the US Constitution – remained Englishman? What ideas and ideals did they hold regarding thing such as cruel and unusual punichment,, or being forced to bear witness against oneself, or how a religion ought to - or ought not to – play a role in governmental operations.

Foreign statutes and case-law have come creeping into out judicial system in a back door manner and tend to be increasing in application. This is a bad thing because in the USA there is no distinction between a court construing a local statute and a Constitutional provision. Where foreign law becomes more common in US courts there will arise a tendency to apply it in matters of constitutional magnitude. This is a bad thing because there are reasons we are not just another little European country and it’s substantially more than geography. It is The profound political and philosophical distinctions that separate the USA from the European nations.
There arose a line of federal cases beginning with Sheriff/Coroner Jay Printz v. United States of America, 854 F.Supp. 1503 (D.Mont.1994) appealed to the US supreme Court in Printz v. U.S., 521 U.S. 898, 117 S.Ct. 2365, (1997), running to McGee v. U.S., 863 F.Supp. 321, (S.D.Miss.,1994) and recently Koog v. U.S., 79 F.3d 452 (5th Cir.1996) in which the courts had to construe a law that in effect required that a local state officer (sheriff) was required to expend resources and labor to carry out a requirement imposed by the federal government (brady bill). It was argued that other nations such as Germany, France, Switzerland, and the EU all have such requirements as to laws of the Central Federation.
The court held fast to the Constitution and the Tenth Amendment insisting on a separation of power and influence between the fed and the individual states. The court said about Justice Bryar’s dissent in Printz: “This separation of the two spheres is one of the Constitution's structural protections of liberty. “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”” (citing to Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395
(1991)).
this Court finds that Congress cannot direct and compel local sheriffs to carry out the provisions of the Brady Bill as is done in 18 U.S.C. § 922(s)(2). See also Sheriff/Coroner Jay Printz v. United States of America, 854 F.Supp. 1503 (D.Mont.1994) interpreting the same act and reaching the same conclusion as this Court.
Further the Supreme Court said that “Justice BREYER's dissent would have us consider the benefits that other countries, and the European Union, believe they have derived from federal systems that are different from ours. We think such comparative analysis inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one. The Framers were familiar with many federal systems, from classical antiquity down to their own time; they are discussed in Nos. 18-20 of The Federalist. Some were (for the purpose here under discussion) quite similar to the modern “federal” systems that Justice BREYER favors. Madison's and Hamilton's opinion of such systems could not be clearer. The Federalist No. 20, after an extended critique of the system of government established by the Union of Utrecht for the United Netherlands, concludes:

“I make no apology for having dwelt so long on the contemplation of these federal precedents. Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. The important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity••••” Id., at 138.

Antifederalists, on the other hand, pointed specifically to Switzerland-and its then-400 years of success as a “confederate republic”-as proof that the proposed Constitution and its federal structure was unnecessary. See Patrick Henry, Speeches given before the Virginia Ratifying Convention, 4 and 5 June, 1788, reprinted in The Essential Antifederalist 123, 135-136 (W. Allen & G. Lloyd ed.1985). The fact is that our federalism is not Europe's. It is “the unique contribution of the Framers to political science and political theory.” United States v. Lopez, 514 U.S. 549, 575, 115 S.Ct. 1624, 1638, 131 L.Ed.2d 626 (1995) (KENNEDY, J., concurring) (citing Friendly, Federalism: A Forward, 86 Yale L.J. 1019 (1977)).”
(that was a rare and remarkable statement from the Supreme Court. I get shivers when I read writing like that.)

In Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, (1958), foreign laws were consulted not as the guide by which to decide how to construe US law but as a rational articulation of the court’s decision to apply its construction of US law. The court in Trop said: “The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.” The court went on to observe that other nations did in fact apply the expatriation of citizens for various reasons including crimes. But the court held that in the USA the Eighth Amendment forbade that practice.
In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002), the court found foreign law relevant in contemplating the application of the death penalty to retarded people. The Supreme Court, with Justice Stevens writing for the majority, held that executions of mentally retarded criminals were “cruel and unusual punishments” prohibited by Eighth Amendment.
At times it appears that the application of foreigh law is merely as an afterthought wherebyt the court is articulating it’s inner thoughts and taking a look around it.
At other times the Judiciary come dangerously close to using foreign law as a means to rewrite the US Constitution as was Justice Breyer attempting in Printz. As I noted Breyer wanted the Constitution to be seen as allowing the heavy hand of the Fed to force local state officers to carry out federal requirements.
Breyer is of the Living Constitutionalist position whish while invoking a rather appealing sentiment of keeping the Constitution apace with the needs and thinking of an evolving society is heading down the dangerous path of abrogating the Constitution while re-drafting it in bits and pieces through the judicial process of interpretation.
This is dangerous entirely because the moment one branch of government ( the judiciairy) assumes upon itself the poser to make different or re-write the US Constitution then the holding and the logic on Printz will be worthless.
Such an abrogation of the Bicameral system using a comparative analysis is inappropriate to the task of interpreting a Constitution quite simply because the Constitution forbids it. The courts should not conduct as though they are vested with some platonic power some super-divine wisdom that the people do not possess.
It is also wrong for the Courts to re-write the Constitution because the American people are fully capable of informing their legislators what is their will. And if the will of the people is such that the Constitution needs re-framing or amending the Constitution itself has a process by which that can occur. It is simply wrong for the courts to steal the power of the legislature and the executive and undertake to make the Constitution say things which it clearly does not.
The founding fathers did not aspire to be like the Europeans. Look at the confrontation clause. As late as 1993 France was allowing people to be sent to prison on nothing more than interrogatories (a list of questions that are answered on paper) and not by a witness. The French courts had no problem with this practice because as they said their judges could convince themselves that the answers to interrogatories were credible. There have been cases where the Courts were pressured to adopt a more lax interpretation of the Confrontation clause and the French were held up as the example to follow. Should the USA change it’s absolute requirement that an accused has an absolute right to confront the witnesses whose testimony may send him to prison or death? Should we do this on the sole theory that France does it and they say it works for them ?

France also allows lawsuits against the Executive branch but all such suits must take place in a special court that is controlled by the executive branch called the Counsel d'etat. The members of that court are all appointed by the executive.
Should we dispense with our Special Counsel and requirements that there be no conflicts of interest when the Executive is being investigated on the theory that the French are happy doing it their way?

De Tocqueville thought the French system was inherently corrupt and looked upon our system with praise. Should we change to be like the French ??

James Madison (Federalist #46) holds in contempt the European governments who are afraid to trust the people with arms. Should the US change it’s Constitution to be more like the Europeans?

In November of 2002, the Counsel of Europe approved what was called, an additional protocol to the convention on cyber crime which would make it illegal to distribute anything online which advocates, promotes or incites hatred or discrimination. A spokesman for the United States Department of Justice said, quite correctly, that this country could not be a party to such a treaty because of the First Amendment. If all of Europe thinks that such a provision does not unduly limit speech, should we reconsider?

The founding fathers didn’t make the Constitution and the Amendments so very different from what they saw in Europe for no reason at all. They found European systems to be shot through with built in corruption and unfairness.

Do you want you life or liberty to be at the mercy of a Italian French court and some witnesses whom you can never confront in court – or even know their names?

Merely because other nations do things a certain way is not reason for an American court to abrogate the Constitution on the tidy populist notion of an evolving living constitution that must be re-crafted daily to keep apace with the changes in society.

Would the framers have made it so very difficult for the Constitution to be amended if they wanted judges to redraft it on the fly?

The application of foreign laws when interpreting the US constitution is an abhorrent practice and should be eschewed.

posted in The Courts - 0 replies

Which feminist along the way forgot to read the manual?

teri — Sun, 23 Jul 2006 21:22:43 GMT

When I was a teenager I was told that being a feminist meant you believed in equality. I learned 3 years ago that this is no longer true. Today radical feminists run the show, and they've gone way past equality. I work with fathers who can't protect their children because the family courts are so biased against men. NOW and the domestic violence industry has everyone brainwashed with false statistics and anti-male propaganda. They fight the shared parenting/equal custody movement by lying to legislators (I saw it for myself.) How can anyone call themselves a feminist while denying men equal rights? I just don't get it. I'd be honored if you took a look at my blog and website. http://feminist4fathers.mensnewsdaily.com
http://www.sharedparentingworks.org

posted in The Courts - 3 replies

Sharapova loses lawsuit

cortelyou — Thu, 03 Aug 2006 19:33:27 GMT

http://news.yahoo.com/s/ap/20060802/ap_en_tv/ten_sharapova_sued_3

A federal judge ruled against tennis star Maria Sharapova on Wednesday, saying a Florida production company was entitled to market a documentary on her despite her agents' attempts to halt distribution.

U.S. District Judge Donald Middlebrooks said Byzantium Productions Inc. was lawful in its production of two films, "Anna's Army" and "Russian Women's Tennis." The documentaries did not violate trademark laws, the judge found.

---

Her agency tried to block the documentary because they claimed they "owned" all rights to her name and image. And any unauthorized use of that could hurt her value to them.

Scary idea stopped. Thankfully.

posted in The Courts - 1 reply

the new 'activist' judges

acoustichrmny — Sat, 30 Sep 2006 20:28:11 GMT

http://www.texasobserver.org/article.php?aid=2293
Another bee-you-ti-ful example of the right-wing media getting it all wrong. Here they are having the nerve to mutter in public about “activist judges” because Judge Anna Diggs Taylor has pointed out that spying without a warrant is illegal in this country—so warrantless telephone tapping is illegal in this country.

Improbably enough, the first complaint of many of these soi-disant legal scholars is that Taylor’s decision is not well written. No judicial masterpiece, they sneer. Nevertheless, warrantless spying is illegal. Did it ever occur to these literary critics that Taylor has a lay-down hand? The National Security Agency program is flat unconstitutional, and for those who insist this means Osama bin Laden wins, it’s also ridiculously easy to fix so that it is constitutional.

Conservatives in this country have been yipping in chorus for years about “activist judges,” and frankly, like fools, many of you bought into the phony political rhetoric about those terrible jurists.

Somehow, activist judges are held responsible for gay marriage, Roe v. Wade and everything else Americans disagree about, as though Americans would never disagree without their encouragement. Conservatives have been mad at the Supreme Court since it decided to desegregate the schools in 1954 and seen fit to blame the federal bench for everything that has happened since then that they don’t like.

As any liberal could have told you, the conservatives didn’t want a right-wing shift on the nation’s courts because of “social issues”—that’s just a handy political ploy. Honestly, people, haven’t you figured out what this is all about yet? Money. The conservatives are in a snit about “liberal courts” because of money.

Corporations being prosecuted for breaking the law! Tobacco companies forced to pay huge fines! Oil and chemical companies made to pay for cleanup at Superfund sites! Oh, the horror, the horror. The Wall Street Journal editorial page couldn’t stop shivering over it for years.

“This is the richest business term in recent memory,” Mark Levy, a Supreme Court litigator, told The Wall Street Journal, which has stopped quivering at last. Moving right along in the long-drawn-out battle to deny ordinary citizens access to their own courts, the justices closed down the right to allow class-action securities cases in state courts. The court also kept out of a lower-court decision preventing taxpayers from suing to stop tax breaks that states and municipalities use to lure big business, a notorious example of raging bad policy.

Meanwhile, what a nice gift from the federal bench to the insurance companies when a federal judge in Mississippi decided that hurricane insurance policies excluding water damage are “valid and enforceable.” As many of our fellow citizens had an opportunity to learn during Katrina, it’s a challenge to sit around in a class IV hurricane, trying to figure out which is wind and which is water damage. “Ooops, there goes the roof, probably wind, followed by a huge run of waves rolling over the house, could be water.”

Insurance company stocks went up across the board after the decision, while the industry kindly advised its clients to “keep you eyes wide open when buying new homeowners’ insurance.”

Congratulations to the Katrina survivors who were hanging on by their fingernails.

Money, money, money is the motif of the “New Activist” federal judges, but they have also been busy, busy limiting congressional authority and individual rights. As People for the American Way notes, federal appellate courts—effectively the court of last resort for most Americans—are working on: questioning the constitutionality of the Endangered Species Act, overturning the National Labor Relations Board rulings against anti-union discrimination and other unfair labor practices by employers, allowing the Bush administration to keep secret the records of the Cheney energy task force and rewriting by court order a state law on First Amendment activity.

Other Bush appellate judges have ruled to deny protection to workers who file claims of race and disability discrimination, made it harder to protect the environment, and issued other decisions that will affect our lives and liberties for decades.

Activist judges, indeed.

Molly Ivins is a nationally syndicated columnist. Her most recent book with Lou Dubose is Bushwhacked: Life in George W. Bush’s America (Random House).

posted in The Courts - 3 replies

how appealing web log

acoustichrmny — Tue, 03 Oct 2006 22:52:26 GMT

http://howappealing.law.com/index.html

posted in The Courts - 0 replies

for supreme court's new term: rise of a new centrist

acoustichrmny — Tue, 03 Oct 2006 21:33:24 GMT

For Supreme Court's new term: rise of a new centrist
Key abortion and racial cases could signal whether Justice Kennedy shifts court to the right or maintains precedents.

By Warren Richey | Staff writer of The Christian Science Monitor
WASHINGTON

Abortion regulations and race-based public school enrollment plans are among major national issues at the US Supreme Court this year in a term that offers the first real insight into the constitutional vision of the high court under Chief Justice John Roberts.

Constitutional scholars and other analysts are watching closely to see if respect for legal precedent - the principle of stare decisis - emerges as a defining approach, or whether the Roberts court will seek to build on the conservative agenda of the Rehnquist court, with sweeping rulings that erode or erase liberal precedents.

A major factor in the direction of the court, whose 2006-2007 term begins Monday, is Justice Anthony Kennedy, who is emerging as a primary centrist power on the court following the retirement of Justice Sandra Day O'Connor. Analysts say he may provide the swing vote in several key cases.

"The absence of Justice O'Connor will be one of the most fundamental changes the court has seen," former acting solicitor general and Duke Law School Professor Walter Dellinger told reporters in a recent preterm briefing.

"It is difficult to overstate the significance of that shift," said former solicitor general and Pepperdine Law School Dean Kenneth Starr, in the same briefing. "All eyes will be on Kennedy."

Justice Kennedy's new judicial clout will be on full display in both the race and abortion cases. Similar cases were decided by 5-4 majorities in recent years with Justice O'Connor joining the court's four liberal justices. In contrast, Kennedy dissented in both cases.

Last term was a year of historic transition for the court with the passing of Chief Justice William Rehnquist and the retirement of O'Connor. It marked the arrival of Mr. Roberts as chief justice and Samuel Alito as an associate justice.

The change in the high court's roster is expected to swing the balance of power to the right, possibly overturning legal precedents on a range of hot-button issues, including both the abortion and race cases, analysts say.

Although it is not clear how Roberts and Justice Alito will vote in these cases, many analysts suggest they are likely to align with the court's conservative wing and that Kennedy will be in position to provide the decisive fifth vote.
Partial-birth abortion is key case

At issue in the abortion case is the constitutionality of the federal Partial-Birth Abortion Act of 2003. The law was passed by the Republican-controlled Congress in open defiance of an earlier Supreme Court ruling that so-called partial-birth abortions could not be banned by states unless lawmakers provided an exception in cases where a woman's health might be threatened by the unavailability of the banned procedure.

Congress swept aside the court-imposed requirement by declaring in its law that there were no circumstances when a partial-birth abortion might be medically necessary. If no circumstances exist, lawmakers concluded, there is no need for a health exception. That Congressional finding disregards the testimony of some medical experts who say the procedure can be necessary in certain cases.

One key issue in the case is whether the high court should defer to Congress on what is medically necessary or set the standard itself.

Three district courts and three federal appeals courts have struck down the 2003 statute, ruling that it is unconstitutional because it fails to provide a health exception as required by the Supreme Court.

Despite universal defeat in the lower courts, supporters of the law hope that O'Connor's retirement and Alito's arrival may have tipped the balance of power on the issue.

In 2000, the Supreme Court struck down a Nebraska law nearly identical to the federal law by a 5-4 vote. Justice Kennedy wrote one of the most impassioned dissents of his 18 years on the court. "The majority views the procedures from the perspective of the abortionist, rather than from the perspective of a society shocked when confronted with a new method of ending human life," he wrote. He stressed in his dissent that he opposed "the decision, the reasoning, and the judgment."
Will Kennedy stick to precedent?

With the possibility of the court divided 4-4 on the issue, Kennedy may wield the decisive vote. If he sticks to the analysis in his dissent in the Nebraska case, court watchers say the law will be upheld. If he adheres to his strongly held belief in stare decisis - affirming precedent even when a justice disagrees with it - the federal law will be struck down.

But Kennedy's dissent in the Nebraska case suggests another possibility. In 1992, Kennedy helped author a major abortion decision, Planned Parenthood v. Casey, which reaffirmed the central holding in Roe v. Wade that established a woman's right to choose to have an abortion. Part of Kennedy's contribution to the Casey decision was a guarantee that the states could regulate abortion procedures provided the regulations didn't create a substantial obstacle to obtaining an abortion. In his dissent in the Nebraska partial-birth abortion case, Kennedy complained that the five-justice majority swept aside the guarantee he apparently wrote into the Casey opinion.

Now, six years later, Kennedy could uphold the 2003 federal law under the theory that the same leeway guaranteed to state lawmakers in the 1992 Casey decision also exists for federal lawmakers. In effect, he would be applying stare decisis to his interpretation of Casey - an interpretation that would undercut the Nebraska ruling as being an unfaithful application of the 1992 Casey precedent. One complicating factor to this scenario, however, is Justice Antonin Scalia's insistence that the Casey abortion precedent (and Roe) must be overruled.

That's not the only complication. A federal abortion regulation runs counter to Kennedy's view of states' rights and federalism. Medical care is generally an area left to state regulation, not federal micromanaging. And some analysts question whether Congress has the power under the Commerce Clause to impose a national ban on a medical procedure that many states wish to retain.

The court will hear arguments on the partial-birth abortion issue on Nov. 8.

Kennedy may cast the deciding vote in the other potential megacase of the term. It involves race-based enrollment plans that seek to maintain integrated public schools in Seattle and Louisville.

The programs are aimed at balancing the racial composition of public schools by excluding whites and admitting blacks to white-majority schools and excluding blacks and admitting whites to black-majority schools.

Parents who want their children to attend their neighborhood school sued, claiming the programs violate the equal protection clause of the 14th Amendment by using race to determine who can and who cannot attend certain schools.

The same 5-4 split that some analysts say may decide the partial-birth abortion case could also determine the school race cases. In 2003, the court upheld an affirmative action plan at the University of Michigan Law School. The justices split 4-4 on the issue, with O'Connor casting the deciding fifth vote.

Now Kennedy, who dissented in the Michigan case, could reverse or limit that 2003 holding by casting the deciding vote in the Seattle and Louisville cases.

The court's new term also includes a case examining the scope of government regulation to fight global warming, and a legal issue of keen interest to the business community - whether large punitive damage awards violate the Constitution's due process requirements.
Key issues for the Supreme Court's new term

Abortion: Is the federal Partial-Birth Abortion Act of 2003 unconstitutional because it lacks an exception in instances where the procedure is deemed medically necessary to protect a woman's health? Or should the courts defer to Congress's determination that the procedure is never necessary?

Race: Do race-based student enrollment plans in public schools in Seattle and Louisville violate the constitutional requirement of equal protection? Or are they justifiable efforts to achieve a better mix of black and white students in certain schools?

Federal regulation: Can the Environmental Protection Agency be forced by a group of environmentalists and certain states to regulate greenhouse gases emitted from motor vehicles and shown to contribute to global warming?

Punitive damages: Does a jury verdict ordering the Philip Morris tobacco company to pay $79.5 million in punitive damages to the widow of a former chain smoker violate constitutional guarantees of due process?

Free speech: Do unions have a First Amendment right to spend fees collected from nonunion members on partisan political campaigns when the nonmembers have not given their consent?

Criminal law: Should a 2004 landmark Supreme Court decision barring the introduction as evidence of out-of-court "testimonial" statements be applied retroactively in cases where defendants were not given an opportunity to cross-examine those witnesses?

Criminal law: Should another 2004 major Supreme Court decision be applied retroactively in cases where judges used evidence never presented to a jury to enhance a convicted criminal's sentence?

Federalism: Do state governments or the federal government have power to regulate state-chartered companies (like mortgage firms) that are subsidiaries of national banks?

Full HTML version of this story which may include photos, graphics, and related links

posted in The Courts - 0 replies

gonzales warns judges

acoustichrmny — Sat, 30 Sep 2006 20:19:30 GMT

Gonzales Cautions Judges on Interfering
By Michael J. Sniffen
The Associated Press

Friday 29 September 2006

Washington - Attorney General Alberto Gonzales, who is defending President Bush's anti-terrorism tactics in multiple court battles, said Friday that federal judges should not substitute their personal views for the president's judgments in wartime.

He said the Constitution makes the president commander in chief and the Supreme Court has long recognized the president's pre-eminent role in foreign affairs. "The Constitution, by contrast, provides the courts with relatively few tools to superintend military and foreign policy decisions, especially during wartime," the attorney general told a conference on the judiciary at Georgetown University Law Center.

"Judges must resist the temptation to supplement those tools based on their own personal views about the wisdom of the policies under review," Gonzales said.

And he said the independence of federal judges, who are appointed for life, "has never meant, and should never mean, that judges or their decisions should be immune" from public criticism.

"Respectfully, when courts issue decisions that overturn long-standing traditions or policies without proper support in text or precedent, they cannot - and should not - be shielded from criticism," Gonzales said. "A proper sense of judicial humility requires judges to keep in mind the institutional limitations of the judiciary and the duties expressly assigned by the Constitution to the more politically accountable branches."

His audience included legal scholars and judges, including Justice Clarence Thomas, one of the Bush administration's most reliable supporters on the Supreme Court.

The attorney general did not refer to any specific case or decision but only to wartime, military and foreign affairs cases in general.

Gonzales has sent Justice Department lawyers into federal courts from coast to coast defending Bush's detention of terrorist suspects at Guantanamo Bay, Cuba, his plans to try some of them before military tribunals and his use of the National Security Agency to wiretap Americans without court warrants when they communicate with suspected terrorists abroad.

Over administration objections, the Supreme Court ordered that detainees could challenge aspects of their imprisonment in federal courts and overturned Bush's plans for military tribunals, forcing Bush to ask Congress to approve a new version of the panels.

A handful of federal district judges either ordered an end to the warrantless wiretapping or agreed to hear court challenges to it. Opponents of the plan argue the NSA program violates the Foreign Intelligence Surveillance Act's requirement that the government get a warrant from a court that meets in secret before wiretapping Americans to gain intelligence information.

The administration contends that despite the statute's language, the president has inherent authority from the Constitution to order such eavesdropping without court permission. Justice lawyers also have argued that the challenges to the NSA program should be thrown out of court because trials would expose state secrets. Most of the judges' rulings and proceedings have been stayed pending appeal.

Gonzales also said he thought more states should move away from having judges stand in partisan elections to keep their seats. Gonzales himself as a Texas Supreme Court justice "had to raise enough money to run print ads and place television spots around the state in order to retain my seat." In such contested elections, "most of the contributions come from lawyers and law firms, many of whom have had, or will have, cases before the court," Gonzales said. "The appearance of a conflict of interest is difficult to dismiss."

He noted favorably that some states have adopted other ways of picking judges, including merit selection and appointment with simple up-or-down retention elections rather than contested campaigns. With polls showing many voters think judges can be swayed by campaign contributions, Gonzales said, "If Americans come to believe that judges are simply politicians, or their decisions can be purchased for a price, state judicial systems will be undermined."

posted in The Courts - 0 replies

conservatives and the courts

acoustichrmny — Wed, 23 Aug 2006 15:42:28 GMT

Conservatives and the Courts
by Sheldon Richman, August 23, 2006
http://www.fff.org/comment/com0608g.asp
It is always amusing to watch conservatives react to court decisions they don’t like. They were firmly in character last week when Federal District Judge Anna Diggs Taylor ruled that the Bush administration broke the law and violated the Constitution when it began wiretapping, without warrants, international phone calls between Americans and “suspected terrorists.”

She’s a Carter appointee, they said. She’s a liberal. What did you expect?

It doesn’t take much to see that this is not a refutation of Judge Taylor’s ruling. It is misdirection. Constitutional scholar Robert Levy of the libertarian Cato Institute also thinks the wiretapping is illegal and unconstitutional. He points out that it is well-established law that the president’s power is most circumscribed in areas where Congress has expressly spoken. Well, Congress has spoken on the matter of warrantless wiretaps. The Foreign Intelligence Surveillance Act (FISA) declares them illegal, with only two exceptions: during the 15 days after a declaration of war and for 72 hours in an emergency. Over the years the special FISA court has been most accommodating of presidents’ requests for warrants. President Bush had many opportunities after 9/11 to ask Congress to change the law, but he didn’t. Now he claims that the authorization of force in Iraq contained an implied change. But no such congressional intent can be shown. Neither do any “inherent war powers” permit a president to defy an outright congressional ban. Congress too has war-related powers under the Constitution.

Levy can’t be dismissed as a Carterite or a “liberal.” So those labels do nothing to rebut Judge Taylor’s ruling, weakly argued as it may be. Invalidation of the National Security Agency’s intrusive program is well grounded in established legal principle. (Her ruling is being appealed.)

Conservatives still don’t get the constitutional game. (Not that so-called liberals are much better.) In that game you put your money down and you take your chances. You know going in you can lose. Judge Taylor did not break into a courthouse, steal a judge’s robe, and begin issuing rulings. President Jimmy Carter didn’t break into the White House and start appointing judges. (Some people still believe that George W. Bush essentially did that.) They got into office by constitutional means. Conservatives just don’t like the results. They might like to take “their” Constitution and go home, except it’s not their Constitution. As a political document, it’s up for interpretation, and Judge Taylor has been constitutionally empowered to interpret it.

Conservatives pride themselves on being “strict constructionists,” the keepers of the one true interpretation of the Constitution. But this claim rests on a weak foundation. There is no one true interpretation. The historian Merrill Jensen noted that Alexander Hamilton, a staunch nationalist, and Thomas Jefferson, a staunch decentralist, looked at the same Constitution and saw two contradictory things. Each saw a plan of government consistent with his own predilections.

These days conservatives oppose implied congressional powers while seeing implied presidential powers everywhere (as long as they like the president). I smell an agenda.

What are they to make of James Madison, one of the architects of the Constitution? He told the public that Congress’s powers are “few and defined.” But during debate over the Bill of Rights he told his fellow congressmen “it was impossible to confine a government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutiae” (emphasis added).

He had a point. A Constitution can’t list everything the government may do. But the alternative, as Madison acknowledged, is to look for implied powers. How do you contain that process?

The only way conservatives could hope to contain it to their exact liking would be to make Rush Limbaugh, Mark Levin, or Ann Coulter the absolute dictator. Heaven help us.

Sheldon Richman is senior fellow at The Future of Freedom Foundation, author of Tethered Citizens: Time to Repeal the Welfare State, and editor of The Freeman magazine. Visit his blog “Free Association” at www.sheldonrichman.com. Send him email.

posted in The Courts - 1 reply

Judge Halts NSA Snooping

call_me_coffee — Thu, 17 Aug 2006 21:04:41 GMT

http://www.wired.com/news/politics/0,71610-0.html?tw=wn_index_3

The Bush administration's warrantless eavesdropping on Amercians' telephone and internet communications is unconstitutional and must stop immediately, a federal judge ruled Thursday.

The ruling is the first court order barring the National Security Agency's ambitious domestic surveillance activities, which have spurred a string of lawsuits against the government and telecommunications companies around the country. It also marks a serious blow to the administration's sweeping interpretation of executive authority under the Constitution, a stance that's riled politicians and legal scholars alike.

Detroit U.S. District Court judge Anna Diggs Taylor, presiding over an ACLU challenge to the so-called "Terrorist Surveillance Program", rejected(.pdf) the government's assertion that the state secrets privilege prevents any review of the NSA surveillance.

In the past, the privilege has allowed the government to put an immediate stop to judicial proceedings that it says might reveal top national security secrets.

But in this case, "the court is persuaded that Plaintiffs are able to establish a prima facie case based solely on Defendants' public admissions" regarding the NSA's warrantless wiretapping of Americans.

The wiretapping "violates the Separation of Powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the Foreign Intelligence Surveillance Act and Title III (of the Constitution)," according to Taylor's injunction.

"Today’s ruling is a landmark victory against the abuse of power that has become the hallmark of the Bush administration," said ACLU Director Anthony D. Romero in a written statement. "Government spying on innocent Americans without any kind of warrant and without Congressional approval runs counter to the very foundations of our democracy."

The administration publicly confirmed a December report in The New York Times that revealed the National Security Agency is wiretapping Americans' overseas phone calls to or from phone numbers or people the government suspects might be connected to terrorism. President Bush later dubbed the operation the "Terrorist Surveillance Program."

The NSA is not seeking or obtaining court authorization for the wiretaps, shunting aside the requirements in the 1978 Foreign Intelligence Surveillance Act, which Congress enacted in the wake of Cold War-era domestic surveillance abuses.

Key to Taylor's ruling was the ACLU's argument that its plaintiffs, including attorneys and journalists, like NSA chronicler James Bamford, have suffered real and concrete harm as a result of the program's very existence.

"Plaintiffs' declarations state undisputedly that they are stifled in their ability to vigorously conduct research, interact with sources, talk with clients and, in the case of the attorney Plaintiffs, uphold their oath of providing effective and ethical representation of their clients."

Taylor largely followed the logic of a June 20 ruling by San Francisco District Court Judge Vaughn Walker, who allowed a lawsuit to continue against AT&T for its alleged participation in the NSA surveillance despite the government's national security arguments. That decision is being appealed both by the government and AT&T to the U.S. 9th Circuit Court of Appeals.

(Disclosure: Wired News has filed a motion to intervene in the San Francisco case, asking the court to make public evidence, filed under seal, of AT&T's alleged wiretapping activities.)

It's unclear what the immediate effect of Taylor's decision will be, but the administration is likely to ask for a stay of the injunction pending an appeal to the U.S. 6th Circuit Court of Appeals.

Taylor's permanent injunction also covers "any other persons or entities in active concert or participation with the program," which likely includes several of the nation's largest telecommunications companies, including AT&T. AT&T spokesman Walt Sharp declined to say if the telecom giant would obey the order. "We don't comment on matters of national security," he said.

The Justice Department said it's still evaluating the decision.

posted in The Courts - 5 replies

HIV Conviction Upheld...

Frozenstars — Sat, 05 Aug 2006 00:54:24 GMT

http://www.cnn.com/2006/LAW/08/04/HIV.charges.ap/index.html

posted in The Courts - 0 replies

the 'kennedy court'

acoustichrmny — Mon, 24 Jul 2006 16:18:34 GMT

This article can be found on the web at
http://www.thenation.com/doc/20060731/cole
The 'Kennedy Court'

by DAVID COLE

[from the July 31, 2006 issue]

The Supreme Court's 2005-06 term--the first to feature the newly confirmed Chief Justice, John Roberts Jr., and Justice Samuel Alito--began with a whimper and ended with a bang. The term's early months saw the Court issuing an unusually high number of unanimous opinions, even in such potentially controversial areas as abortion and gay rights, as the Court sought to decide cases extremely narrowly and thereby avoid controversy. But by the end of the term, controversy was front and center, as the Court divided sharply on its most significant cases, culminating in the stunning 5-to-3 decision, the last day of the term, declaring George W. Bush's military tribunals illegal.

In Hamdan v. Rumsfeld, the most important case of the term, the Court showed itself willing to do what neither Republicans nor Democrats in Congress have been able to do: Stand up to the President in the "war on terror." The Court's decision reaffirmed, as Justice John Paul Stevens put it, that "the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction." The Court's capitalization of the "Rule of Law" underscored its effort to enforce the concept of legality on an Administration that has long since adopted the view that the law can impose little or no constraint on the President during wartime--whether it be the international laws of war, criminal prohibitions on torture and warrantless wiretapping of Americans, or the Uniform Code of Military Justice, a statute that establishes the rules for military trials.

But as much as Hamdan deserved celebration for rejecting the President's vision of unchecked power in the post-9/11 world, the term also showed just how close the country is to a system of government that has no meaningful checks and balances. Bush's two new appointees generally proved themselves reliable conservatives--if not exactly in the mold of Justices Scalia and Thomas, which Bush said he was striving for, at least very close. Justices Roberts, Alito, Scalia and Thomas proved a reliable four votes for conservative results, while Justices Stevens, Souter, Ginsburg and Breyer continued to be a fairly reliable four votes for moderate to liberal outcomes. (Long gone are the days of Justices William Brennan and Thurgood Marshall.)

That leaves Justice Anthony Kennedy smack dab in the middle, with the ability to cast the decisive vote in many of the Court's most contentious disputes. Before the term began, it was an open question whether Kennedy would be persuaded to join the conservative bloc by the less acerbic and more politic conservative voices of Roberts and Alito, or whether he would maintain a swing-vote presence in the center, a position he shared with Justice Sandra Day O'Connor until her retirement. Thus far, he has remained in the middle. Justice Kennedy sometimes voted with the conservative bloc, including in a case upholding a Kansas death penalty statute, but went his own way on such significant issues as the military tribunals, the reach of the Clean Water Act, the exclusionary rule, gerrymandering and the Voting Rights Act.

Kennedy's influence is perhaps best illustrated by the Court's review of the gerrymandered redistricting of Texas engineered by Tom DeLay. On the issue of whether the redistricting violated equal protection because it was too partisan, Kennedy joined the conservative bloc to rule that there was no constitutional violation. But on the separate question of whether one part of the redistricting contravened the Voting Rights Act by diluting Latino voting strength, Kennedy sided with the liberal bloc to find that a violation had occurred. As Kennedy went, so went the Court.

Where Kennedy sided with the conservatives, he often wrote separately to moderate the result. In Hudson v. Michigan the majority ruled that the prosecution can use evidence obtained illegally when police violate the constitutional requirement that they "knock and announce" before entering a home to execute a search warrant. In its decision the conservative bloc displayed open hostility toward the "exclusionary rule" generally, but Kennedy concurred to specify that he supported the rule in general but simply did not think it justified for knock-and-announce violations. Similarly, in Rapanos v. United States the conservative bloc voted to restrict radically the reach of the Clean Water Act over "wetlands," but Justice Kennedy effectively saved the act, writing separately to say that while he agreed that the lower court had used the wrong standard, the act extends to any land with a "significant nexus" to a navigable body of water, and courts should generally defer to the environmental regulators on that judgment.

Kennedy's vote was also crucial in Hamdan. That case involved a challenge by Salim Hamdan, Osama bin Laden's bodyguard and driver, to the military tribunals Bush had created by executive order in November 2001 for trying foreign nationals accused of terrorism and war crimes. Under the rules set forth by the President, defendants could be tried, convicted and sentenced to death on the basis of hearsay evidence, testimony obtained through coercive methods or secret evidence that neither the defendant nor his civilian lawyer had any opportunity to confront. In addition, the Defense Secretary or his designate, instead of the presiding judge, was empowered to intervene in ongoing trials and decide issues.

After the Court agreed to hear the case, Congress passed a statute that appeared designed to strip the Court of its jurisdiction. But five members of the Court were undeterred. They ruled that the statute did not apply to pending cases and went on to decide that the President's military tribunals violated military law and the Geneva Conventions. The Court ruled that the Uniform Code of Military Justice requires that military tribunal procedures not vary from those of the courts-martial we use to try our own soldiers, unless court-martial procedures would be "impracticable"--and that the Administration had made no such showing.

More important, the Court declared that Congress had required the tribunals to adhere to the laws of war, and that the tribunals violated one such law in particular, Common Article 3 of the Geneva Conventions. Common Article 3 requires that detainees in conflicts "not of an international character" be tried by "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." The Administration had insisted that this rule did not apply to the conflict with Al Qaeda, because it was an "international" conflict. But in its most significant holding, the Court rejected that interpretation, ruling that the reference to conflicts "not of an international character" was intended to cover all conflicts not between sovereign nations, literally not inter-national. Since Al Qaeda is not a nation, our conflict with it is "not of an international character," and the conflict is therefore covered by Common Article 3. On July 11 the Administration acknowledged that the Court's ruling means that the Geneva Conventions govern its treatment of Al Qaeda detainees, but in typical fashion it insisted that this would require no change in its practices or policies.

In fact, the Court's Geneva Conventions ruling is significant for three reasons. First, it means that were Congress to enact a statute "overturning" Hamdan by authorizing the very procedures the Court found unauthorized, it would be sanctioning a violation of the laws of war. Second, Common Article 3 also bars any "humiliating and degrading treatment" of detainees, and any violation of Common Article 3 is a felony under the War Crimes Act. Thus, even though torture was not directly at issue in Hamdan, the decision in effect authoritatively bars any inhumane treatment of detainees--which would include most of what the CIA and Army interrogators have routinely been inflicting on Al Qaeda suspects. Third, and most important, the decision proclaims that the "war on terror" is not a law-free zone open to whatever rules ingenious White House lawyers can devise under cover of secrecy but must be subject to the international standards that govern all wars. In short, it refutes American exceptionalism.

All of this would not have been possible without Justice Kennedy's vote. But the voting alignment in Hamdan and many other important cases this term only illustrates how close the Court is to veering off in an extreme rightward direction. Its two oldest members are Justice Stevens, at 86, and Justice Ginsburg, at 73. If either retires while a Republican President is in office, the Court will likely be reliably conservative for several decades at least. On issues such as affirmative action, gay rights, states' rights, abortion, workers' rights, separation of powers and equal protection of the laws, the Court could become a rubber stamp for right-wing policies and an obstacle to progressive legislative reform--much as it was until midway through the New Deal. Perhaps never before has the power to appoint the next Justice been so potentially determinative of the course of constitutional law.

Meanwhile, the division on the Court will undoubtedly continue next year. The Court has already agreed to take up cases involving so-called "partial birth" abortion laws and efforts to maintain racial balance in public schools. On both issues Justice Kennedy has previously sided with conservatives. While he was in the majority that refused to overrule Roe v. Wade in Planned Parenthood v. Casey, he dissented passionately from the Court's application of Casey to strike down a "partial birth" abortion statute in 2000. And he has been an outspoken critic of affirmative action, voting to declare it unconstitutional in the University of Michigan's affirmative action cases just three years ago. This time next year, in other words, we may not be celebrating.

posted in The Courts - 0 replies

Lebanese American perspective

Mon, 17 Jul 2006 18:57:13 GMT

As an American of Lebanese descent, I am truly disgusted by the way my government is handling the current situation in Lebanon. We are a nation that preached democracy yet we do not have any real mediators on the ground. American weapons are now being used to kills innocent civilians in my country of origin.

This problem did not just start yesterday. This has been ongoing for many years. If the Palestinian issue is not dealt with, we cannot solve these ongoing conflicts.

There are thousands of Palestinian refugees in Lebanon because Israel kicked them out when it became a state in 1948. Ever since that happened, the conflict in the Middle East has deepened.

There are many Lebanese as well as Palestinian prisoners in Israeli jails. Israel on a daily basis for years now (and it is recorded in the UN) violates international law by flying over Lebanese sovereign airspace. http://www0.un.org/apps/news/story.asp?NewsID=11870&Cr=lebanon&Cr1=

It is not about the two Israeli soldiers. Israel has had a five year plan to bomb on Lebanon. Israel knows that Lebanon’s highest tourist season is July and August yet they still bombed the only airport in the country and cut off any possible aid to the civilian population. Lebanon is the size of the state of Maryland, it only has one airport. When a country is blockaded by air and sea, it creates a HUMANITARIAN CRISIS.

As a Lebanese American Christian, I am very frustrated. I have lots of family members in Lebanon that I cannot get a hold of. Israel is not only targeting Hezbollah, they are targeting Lebanese civilian infrastructure. The electricity is down as well as the phone lines. This is a disaster.

Lebanon is a democratic and sovereign nation that is under attack. The last time I spoke to my family, they said they could not get any food because they country is shut down. Now I cannot get a hold of them. Why should they have to pay the price for the acts of a few?

Lebanese Christians and Muslims alike DO NOT agree with Hezbollah actions, but, at the same time, the civilian population does not support the disproportionate Israeli aggression against its innocent people and country.

posted in The Courts - 1 reply

US Guantanamo tribunals 'illegal'

call_me_coffee — Thu, 29 Jun 2006 16:47:10 GMT

http://news.bbc.co.uk/2/hi/americas/5129904.stm

The US Supreme Court has ruled that the Bush administration does not have the authority to try terrorism suspects by military tribunal.

In a landmark decision, justices upheld the challenge by Osama Bin Laden's ex-driver to his trial at Guantanamo.

The court's ruling that the proceedings violated Geneva Conventions is seen as a major blow to the administration.

President George W Bush said he would respect the decision but also protect the American people from "killers".

The Cuba-based facility currently holds about 460 inmates, mostly without charge, whom the US suspects of links to al-Qaeda or the Taleban.

Profound implications

Saddam Hussein's ex-driver, Salim Ahmed Hamdan, is one of 10 Guantanamo inmates facing a military tribunal.

We conclude that the military commission convened to try Hamdan lacks power to proceed
Court ruling

He launched the proceedings demanding to be tried by a civilian tribunal or court martial, where the prosecution would face more obstacles.

In its ruling, the court said: "We conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate" agreements on prisoners of war, as well as US military rules.

The ruling does not demand the release of prisoners held at Guantanamo but gives the administration an opportunity to come up with another way of trying those held.

The BBC's Nick Miles in Washington says the implications of the decision are profound, as the tribunals already in place will now be ended and 60 others planned will not go ahead.

Five of the nine justices of the US Supreme Court supported the ruling. Three voted against.

Chief Justice John Roberts did not vote because he had judged the case at an earlier stage before joining the Supreme Court.

One of the dissenters, Justice Clarence Thomas, took the unusual step of reading part of his opinion from the bench, saying the decision would "sorely hamper the president's ability to confront and defeat a new and deadly enemy".

Salim Ahmed Hamdan
Hamdan was a driver for Osama Bin Laden

President Bush said he would "look seriously" at the case, adding: "As I understand it the ruling won't cause killers to be put out on the street."

Mr Hamdan had success in his first legal outing, in the US District Court in Washington, which ruled that he could not face a military trial unless he had previously been found not to be a prisoner of war under the Geneva Convention.

He claims POW status, but like all camp prisoners, he is denied this and is instead designated an "unlawful combatant" by the Bush administration.

However, an appeal court reversed this decision and said Mr Bush had the authority to order the trials.

posted in The Courts - 5 replies

2005-6 scotus term recap

acoustichrmny — Sun, 02 Jul 2006 22:27:14 GMT

Roberts Is at Court's Helm, but He Isn't Yet in Control
By Linda Greenhouse
The New York Times

Sunday 02 July 2006

Washington - As the dust settled on a consequential Supreme Court term, the first in 11 years with a change in membership and the first in two decades with a new chief justice, one question that lingered was whether it was now the Roberts court, in fact as well as in name.

The answer: not yet.

Chief Justice John G. Roberts Jr. was clearly in charge, presiding over the court with grace, wit and meticulous preparation. But he was not in control.

In the court's most significant nonunanimous cases, Chief Justice Roberts was in dissent almost as often as he was in the majority. His goal of inspiring the court to speak softly and unanimously seemed a distant aspiration as important cases failed to produce majority opinions and members of the court, including occasionally the chief justice himself, gave voice to their frustration and pique with colleagues who did not see things their way.

The term's closing weeks were particularly ragged. The court issued no decision in a major patent case that had drawn intense interest from the business community, announcing two months after the argument, over the dissents of three justices, that the case had been "improvidently granted" - they should not have agreed to decide it - in the first place.

So if it wasn't yet the Roberts court, what exactly was it?

Perhaps it was the Kennedy court, based on the frequency with which Justice Anthony M. Kennedy cast the deciding vote in important cases.

Or perhaps it was more accurately seen as the Stevens court, reflecting the ability of John Paul Stevens, the senior associate justice in tenure as well as in age, to deliver a majority in the case for which the term will go down in history, the decision on military commissions that rejected the Bush administration's view of open-ended presidential authority.

Chief Justice Roberts did not participate in that case because he had ruled on it a year earlier as an appeals court judge. Based on his vote to uphold the administration's position then, he almost certainly would have joined Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., the newest member of the court, in dissent.

If none of these labels - Roberts court, Kennedy court, Stevens court - seem to fit precisely, it is probably because what the Supreme Court really was in its 2005-6 term was a court in transition.

For the justices, it was a time of testing, of battles joined and battles, for the moment, postponed.

The term's early period of unanimity, during which cases on such contentious subjects as abortion and federalism were dispatched quickly, with narrowly phrased opinions, reflected agreement not on the underlying legal principles but rather on the desirability of moving on without getting bogged down in a fruitless search for common ground. This was especially so in the term's early months, when Justice Sandra Day O'Connor was still sitting but was counting the days until a new justice could take her place.

Once Justice O'Connor retired in late January, after Justice Alito's confirmation, and as the court moved into the heart of the term, some of the court's early inhibitions seemed to fall away. Yet when its most conservative members reached out aggressively to test the boundaries of consensus in the term's major environmental case, Justice Kennedy unexpectedly pushed back and left them well short of their goal.

In that case, Chief Justice Roberts along with Justices Alito, Scalia and Thomas tried to cut back on federal regulators' expansive view of their authority under the Clean Water Act to define wetlands.

Justice Kennedy also deserted the conservatives in a redistricting case from Texas when he found a violation of the Voting Rights Act in the dismantling of a Congressional district that had previously had a Mexican-American majority. The action of the Republican-led Texas Legislature had deprived the Latinos of the ability to elect the candidate of their choice, Justice Kennedy said, leaving Chief Justice Roberts to complain in dissent, "It is a sordid business, this divvying us up by race."

Nonetheless, there was little doubt that in its transition, the court was becoming more conservative. A statistical analysis by Jason Harrow on the Scotusblog Web site showed that Justice Alito voted with the conservative justices 15 percent more often than Justice O'Connor had.

A separate analysis, by the Supreme Court Institute at Georgetown University Law Center, showed that Justice Alito and Chief Justice Roberts had the highest agreement rate of any two justices in the court's nonunanimous cases, 88 percent, slightly higher than the agreement rate between Justice O'Connor and Justice David H. Souter in the first half of the term, 87.5 percent.

Chief Justice Roberts agreed with Justice Scalia in 77.5 percent of the nonunanimous cases and with Justice Stevens, arguably the court's most liberal member, only 35 percent of the time. The least agreement between any pair of justices was between Justices Alito and Stevens, 23.1 percent.

The court decided 69 cases with signed opinions in the term that began on Oct. 3 and ended on June 29. Nearly half were decided without dissent, a greater number than usual, although not dramatically so. Sixteen cases were decided by five-justice majorities, either 5 to 4 or 5 to 3, a proportion very close to the 10-year average.

One measure of the court's shift to the right is in dissenting votes. In the previous term, the justice who dissented least often was Stephen G. Breyer, who dissented in 10 of the term's 74 decisions. But this term, he had the second-highest number of dissents, 16; Justice Stevens had the most, 19. Justice Thomas and Justices Ruth Bader Ginsburg and Souter were also frequent dissenters. Of those who served the full term, Chief Justice Roberts had the fewest dissents, seven. Justice Kennedy had the second fewest, with nine.

Chief Justice Roberts's dissents, while few, came in some important cases. In addition to dissenting from the Voting Rights Act portion of the Texas redistricting decision, he also dissented from a decision reopening a 20-year-old death penalty case on the basis of new evidence; a federalism case, in which the majority found the states not immune from private bankruptcy suits; and a ruling that invalidated the personal assertion of authority by John Ashcroft, the former attorney general, to penalize doctors in Oregon who follow that state's Death With Dignity Act and prescribe lethal doses of medication for terminally ill patients who request it.

The court's next term, which begins Oct. 2, looms as a major test of the justices' fortitude and ability to work together, with cases challenging precedents on abortion and affirmative action already on the docket.

With the court having indicated in Hamdan v. Rumsfeld, the military commission case, that lawsuits now pending in the lower courts on behalf of dozens of detainees at Guantánamo Bay, Cuba, are still alive, the justices are likely to have further opportunities to address the profound issues of presidential power and judicial authority that these cases raise. This time, the chief justice will not need to stay silent, and the country that is just getting to know him will hear his voice.

Following are summaries of the term's major rulings.

Presidential Power

The court repudiated the Bush administration's plan to use military commissions to try Guantánamo detainees, ruling 5 to 3 that the commissions were unauthorized by statute and violated a provision of the Geneva Conventions.

The majority opinion in Hamdan v. Rumsfeld, No. 05-184, by Justice Stevens, set minimum procedural protections that any future commissions, even those authorized by Congress, would have to provide. Justices Kennedy, Souter, Ginsburg and Breyer joined the opinion. Justices Scalia, Thomas and Alito dissented. Chief Justice Roberts, who had voted as an appeals court judge to uphold the commissions, did not participate.

Elections

A splintered decision rejected a challenge to the Republican-driven mid-decade redistricting of Texas's Congressional map, finding that it was not an impermissible partisan gerrymander. Justice Kennedy wrote the opinion in League of United Latin American Citizens v. Perry, No. 05-204. Agreeing with the judgment on the gerrymander challenge were Chief Justice Roberts and Justices Alito, Scalia and Thomas. Justices Stevens and Breyer dissented. Justices Souter and Ginsburg expressed no view on the issue, making the vote 5 to 2 to 2.

In the same case, the court ruled that the dismantling of a district in southwestern Texas with a Latino majority, an action the State Legislature had taken to shore up the faltering prospects of the Republican incumbent, violated the Voting Rights Act. On this question, Justice Kennedy spoke for a 5-to-4 majority that included Justices Stevens, Souter, Ginsburg and Breyer.

The court voted 6 to 3 to strike down Vermont's campaign finance law, which both limited the amount that candidates could spend on their own campaigns and placed the country's lowest ceilings on contributions to candidates from individuals and political parties.

The fragmented majority did not offer a unified approach to contribution limits, leaving the court's path in this area uncertain. Justice Breyer wrote the controlling opinion in the case, Randall v. Sorrell, No. 04-1528, joined by Chief Justice Roberts and Justice Alito. Justices Kennedy, Thomas and Scalia joined the judgment.

Criminal Law

In Georgia v. Randolph, No. 04-1067, the court held that when the police lack a search warrant, they cannot enter a home if one occupant objects, even if another occupant gives permission. The vote was 5 to 3, with Justice Alito not participating. In his majority opinion, Justice Souter said the decision comported with "widely shared social expectations" about privacy in the home. Chief Justice Roberts filed his first dissenting opinion in this case. Justices Scalia and Thomas also voted in dissent.

The court ruled that evidence the police find when they search a home to execute a search warrant can be admitted in court despite an officer's failure to observe the constitutional requirement to "knock and announce" before entering. Justice Scalia, writing for the 5-to-4 majority, said the ordinary rule against admitting unconstitutionally obtained evidence should not apply in this circumstance - nor, he implied, in many other circumstances currently governed by the "exclusionary rule."

This case, Hudson v. Michigan, No. 04-1360, was argued for a second time after Justice Alito joined the court; his vote with the majority determined the outcome. The others in the majority were Chief Justice Roberts and Justices Thomas and Kennedy.

The court was unanimous in ruling that inmates facing execution by lethal injection can invoke a federal civil rights law to challenge the state's choice of drugs and the manner in which they are administered. The decision, Hill v. McDonough, No. 05-8794, opened the door to lawsuits that would be prohibited by tight restrictions on petitions for habeas corpus. Justice Kennedy wrote the opinion.

The court ruled 5 to 3 that new evidence in a Tennessee murder case, including DNA evidence, sufficiently undermined the prosecution's theory of the case to require a new federal court hearing for the man who was convicted and sentenced to death for the crime 21 years ago.

The case, House v. Bell, No. 04-8990, was the first in which the court factored the results of modern DNA testing into consideration of whether a prisoner might qualify for a chance at habeas corpus that would otherwise be prohibited by procedural obstacles. Justice Kennedy wrote for the majority. Chief Justice Roberts dissented, along with Justices Scalia and Thomas. Justice Alito did not participate.

The court ruled 6 to 3 that foreign criminal defendants who have not been notified of their right under an international treaty to contact one of their country's diplomats are not entitled to special accommodation from courts in the United States. The decision, Sanchez-Llamas v. Oregon, No. 04-10566, rejected claims brought under the Vienna Convention on Consular Relations by foreign citizens convicted in Oregon and Virginia. Chief Justice Roberts wrote for the majority. Justices Breyer, Stevens and Souter dissented.

In a unanimous opinion, the court ordered a new trial for an inmate on South Carolina's death row on the ground that an evidentiary rule used in that state's courts had prevented the inmate from putting on a complete defense. Justice Alito, writing his first opinion for the court, said the rule was irrational and arbitrary. The case was Holmes v. South Carolina, No. 04-1327.

The court was deeply split on a basic question of death penalty law: the validity of the death penalty statute in Kansas under which a death sentence is automatic if the jury finds that the mitigating evidence and aggravating evidence are of equal weight. Voting 5 to 4 in an opinion by Justice Thomas, the court upheld the law, which the State Supreme Court had declared unconstitutional. Justice Alito's vote, following a reargument after he joined the court, made the difference. Justices Souter, Stevens, Ginsburg and Breyer dissented in the case, Kansas v. Marsh, No. 04-1170.

The court considered defendants' rights to cross-examine the state's witnesses, a right protected by the Confrontation Clause of the Sixth Amendment, in a pair of cases that were decided in a single opinion by Justice Scalia.

In the first part of the opinion in Davis v. Washington, No. 05-5224, the court was unanimous in ruling that a crime victim's emergency telephone call to 911 can be introduced as evidence at trial, even if the victim is not present for cross-examination, because a call to 911 does not produce the kind of "testimonial statement" to which the Confrontation Clause is addressed.

The court then went on to hold, by a vote of 8 to 1, with Justice Thomas dissenting, that a crime victim's statement to police officers who arrive at a scene should be considered "testimonial" if the police are investigating the crime rather than providing emergency assistance. Such a statement should therefore be banned from the trial if the person who gave it is not available for cross-examination, Justice Scalia said.

In another Sixth Amendment case, on the right to the assistance of counsel, the court ruled 5 to 4 that defendants who are wrongly deprived of the right to hire a lawyer of their choice are entitled to have a conviction overturned without the need to show that the first-choice lawyer would have achieved a better result. Justice Scalia wrote the opinion in the case, United States v. Gonzalez-Lopez, No. 05-352, joined by Justices Stevens, Souter, Ginsburg and Breyer.

Government Authority

The court ruled 6 to 3 that John Ashcroft, the former attorney general, acted without legal authority when he declared that doctors in Oregon who followed the procedures of that state's Death With Dignity Act to help patients commit suicide would lose their federal prescription rights and thus forfeit, as a practical matter, their ability to practice medicine.

No statute authorized the attorney general to take such action unilaterally contrary to "the background principles of our federal system," Justice Kennedy said in the majority opinion. The decision, Gonzales v. Oregon, No. 04-623, was a rebuff of the Bush administration, which had embraced Mr. Ashcroft's personal fight against assisted suicide and carried on the case after he left the government.

Chief Justice Roberts joined a dissenting opinion written by Justice Scalia. Justice Thomas also dissented. Justice Alito was not yet on the court when the case was decided, with Justice O'Connor in the majority, on January 17.

A pair of decisions on the question of state immunity from suit, also issued in January, before Justice Alito joined the court, gave strong indications that the Rehnquist court's federalism battles were far from over.

The court was unanimous in permitting a disabled Georgia prison inmate's lawsuit against the state to go forward under the Americans With Disabilities Act. But the unanimity was achieved only because the court limited the decision, Goodman v. Georgia, No. 04-1203, to little more than the statement of a truism: that Congress has the power to make the states liable to lawsuit when they violate the Constitution.

In this case, the inmate claimed that his mistreatment had been so egregious as to violate not only the disabilities law, but also the Constitution. Justice Scalia's opinion said that to this extent, the lawsuit could proceed.

In the second decision, the court split 5 to 4 in ruling that states are not immune from private lawsuits brought under federal bankruptcy law. Justice O'Connor joined the majority opinion by Justice Stevens in this case, Central Virginia Community College v. Katz, No. 04-885. The dissenters were Chief Justice Roberts and Justices Scalia, Kennedy and Thomas, who wrote the dissenting opinion supporting state immunity.

The court ruled that as a matter of constitutional due process, the government must take reasonable steps to make sure that homeowners have been notified before it sells a house for nonpayment of taxes. Chief Justice Roberts wrote for the 5-to-3 majority in this case, Jones v. Flowers, No. 04-1477. Justices Thomas, Scalia and Kennedy dissented, and Justice Alito did not participate.

The justices ruled 7 to 1 that the Postal Service may be sued by people who trip over packages that letter carriers have carelessly left in their path. The majority opinion by Justice Kennedy in this case, Dolan v. United States Postal Service, No. 04-848, was based on an interpretation of the Federal Tort Claims Act, not on the Constitution. Justice Thomas dissented, and Justice Alito did not participate.

Environment

A fractured decision in the term's major environmental case, defining federal jurisdiction over wetlands in the Clean Water Act, did not produce a majority opinion but did retain the ability of the government to continue enforcing the 1972 statute vigorously.

The court split 4 to 1 to 4 in the case, Rapanos v. United States, No. 04-1034, with Justice Kennedy in the middle. One group of four - Justices Scalia, Thomas and Alito, and Chief Justice Roberts - denounced federal regulators' open-ended approach to wetlands as "beyond parody" and would have redefined the term to land adjacent to open water and actually wet most of the time.

The other foursome, Justices Stevens, Souter, Ginsburg and Breyer, would have deferred to the longstanding judgment of the Army Corps of Engineers that a "wetland" can often appear dry and can be miles from a body of water, as long as it sometimes performs a filtering or runoff-control function. Justice Kennedy voted with the first group to send the case back to a lower court, but he proposed a standard much closer to that of the Stevens group.

In a second case under the Clean Water Act, the court ruled unanimously that operators of hydroelectric dams must meet a state's water quality requirements to qualify for a federal license. Justice Souter wrote the opinion in this case, S. D. Warren Company v. Maine Board of Environmental Protection, No. 04-1527.

Religion

In a significant application of the Religious Freedom Restoration Act, the court ruled 8 to 0 that a small religious sect based in Brazil has the right to import a hallucinogenic tea that the federal government had wanted to seize as a banned narcotic.

The tea, known as hoasca, is central to the sect's rituals, Chief Justice Roberts noted in his opinion for the court. He said the government had not met the religious freedom act's demanding standard for applying a generally applicable law - federal narcotics law, in this instance - in a way that impinges on religious observance. Justice Alito did not participate in the case, Gonzales v. O Centro Espírita Beneficente União do Vegetal, No. 04-1084.

Education

Voting 8 to 0, the court upheld a federal law that requires universities to forfeit all federal financing if any part of the university does not provide military recruiters with the same access to students as it provides other potential employers.

The law, known as the Solomon Amendment, was challenged by a coalition of law schools that objected to the military's exclusion of openly gay men and women. The law schools argued that their First Amendment rights to free speech and association had been violated by the requirement that they open their doors to military recruiters.

Writing for the court in this case, Rumsfeld v. Forum for Academic and Institutional Rights, No. 04-1152, Chief Justice Roberts said the speech in question was that of the government, not of the law schools, which he noted remained free to criticize the military and to express their views on its policies. Justice Alito did not participate.

The court ruled 6 to 2 that parents who disagree with a public school system's special-education plan for their children have the legal burden of proving that the plan will fail to provide the "appropriate" education that a federal law guarantees to children with disabilities. Justice O'Connor wrote the decision in the case, Schaffer v. Weast, No. 04-698. Chief Justice Roberts did not participate, and Justice Alito was not yet on the court.

Separately, the court ruled 6 to 3 that parents who prevail at a special-education hearing are not entitled to reimbursement for the cost of hiring expert witnesses. Justice Alito wrote this opinion, Arlington Central School District v. Murphy, No. 05-18. Justices Souter, Breyer and Stevens dissented.

Employees' Rights

The court gave employees substantially enhanced protection against retaliation for complaining about discrimination on the job. Justice Breyer wrote the opinion in the case, Burlington Northern & Santa Fe Railway Company v. White, No. 05-259, which interpreted the anti-retaliation provision of the Civil Rights Act of 1964.

The court defined retaliation broadly as any "materially adverse" employment action that "might have dissuaded a reasonable worker" from making the complaint. Eight justices joined the majority opinion, and Justice Alito filed a separate concurring opinion.

Addressing the free-speech rights of government workers, the court ruled 5 to 4 that the Constitution does not protect public employees against retaliation for what they say in the course of performing their assigned duties.

Justice Kennedy's majority opinion in this case, Garcetti v. Ceballos, No. 04-473, drew a distinction between public employees' official speech, which he said supervisors were entitled to control, and their speech as citizens contributing to "civic discourse," for which they retained constitutional protection. The dissenters were Justices Stevens, Souter, Breyer and Ginsburg.

Abortion

The justices papered over, at least for this term, their fundamental differences on abortion, ruling narrowly and unanimously in a case from New Hampshire on access to abortion for teenagers facing medical emergencies. In an opinion by Justice O'Connor, her last before leaving the bench, the court reaffirmed that a medical-emergency exception was constitutionally required in a law that placed obstacles, like a parental-notice requirement and a waiting period, in the path of teenagers seeking abortions.

The more difficult question in the case, Ayotte v. Planned Parenthood of Northern New England, No. 04-1144, was that of what to do about New Hampshire's failure to include such an exception in its parental notice law. The justices sent the case back to the federal appeals court in Boston, which had banned enforcement of the law in its entirety, even for teenagers not facing a medical emergency.

That "most blunt remedy" would be justified, Justice O'Connor said, only if it was clear that New Hampshire's legislature, which enacted the law in 2003, would have preferred no law at all to one with the necessary health exception. Otherwise, she said, the appeals court should come up with a more limited remedy for the constitutional problem.

Patents

Indicating new interest in intellectual property law, the justices considered several patent cases but failed to offer much guidance in this burgeoning legal area.

The court handed a limited victory to eBay in its patent dispute with MercExchange, which successfully sued eBay for patent infringement on the method behind the online auction company's "Buy It Now" feature. The United States Court of Appeals for the Federal Circuit, which has sole jurisdiction over patent appeals, then granted an injunction against eBay's use of the technology, under the view that an injunction should automatically follow a finding of infringement.

In a unanimous opinion by Justice Thomas, the justices instructed the appeals court to make a case-by-case determination rather than apply an automatic injunction rule. But the opinion, eBay v. MercExchange, No. 05-130, left it unclear what presumptions and factors should go into that determination, and it was evident that the justices themselves had not agreed on a standard.

posted in The Courts - 0 replies