-Caveat Lector-
Begin forwarded message:
From: [EMAIL PROTECTED]
Date: September 30, 2007 8:53:00 PM PDT
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED]
Subject: (2) Supreme Court Says, "Listen Up, Liberals: It's PAYBACK
Time!"
Justices Begin Work on
a Polarizing New Docket
By LINDA GREENHOUSE
New York Times, October 1, 2007
http://www.nytimes.com/2007/10/01/washington/01scotus.html?
_r=1&ref=us&pagewanted=print&oref=slogin
WASHINGTON, Sept. 30 — The Supreme Court has so many polarizing
cases on the docket for its new term that the deep ideological
divisions that characterized the last term are all but certain to
remain on display after justices reconvene on Monday.
The conservative majority under Chief Justice John G. Roberts Jr.
drove the court to the right in a series of high-profile rulings
during the term that ended in June. That performance, as well as a
series of books and articles by and about justices, has placed the
court in an unusually bright spotlight as the new term opens.
The conservative bloc will not necessarily prevail in every
important case. For example, the Bush administration is clearly on
the defensive as the court prepares to hear a third-round challenge
to policies governing those held as enemy combatants at Guantánamo
Bay, Cuba.
But the conservative justices clearly have the upper hand in the
all-important task of shaping the court’s docket, a process that in
effect shapes the country’s immediate legal agenda.
They demonstrated their power last week in accepting 19 new cases,
an unusually large number, including an employer’s appeal in a
racial discrimination case that could provide a vehicle for
limiting remedies available under one of the country’s oldest civil
rights laws.
At issue in the latest Guantánamo case is whether Congress properly
stripped the federal courts of jurisdiction to hear challenges
brought by detainees. The justices had seemed willing to steer
clear of the issue in April, when they declined to hear appeals
from two groups of detainees.
But the day after the term ended, they reversed course and agreed
to hear the cases, an action without modern precedent. Because the
reconsideration required the votes of five justices, instead of the
four ordinarily needed to grant a case, the development strongly
suggested that a majority of the court retains concerns about the
current regime for determining and challenging the detainees’
designation as enemy combatants. The Bush administration lost two
earlier rounds at the court, in 2004 and 2006.
Among the new cases the justices granted last week was a challenge
to a state law requiring voters to provide photo identification in
order to cast a ballot, an issue that has divided legislators and
judges along party lines throughout the country. Republicans
generally stress the importance of preventing voter fraud, while
Democrats view these increasingly popular measures as creating
unwarranted barriers to voter access. Although the justices granted
the case at the request of the Indiana Democratic Party and the
American Civil Liberties Union, the action could well prove to be
an example of “watch out what you wish for” if the result is to
uphold the statute at issue and to encourage other states to follow
Indiana’s lead.
The justices also took up a highly visible death penalty case, a
challenge to the particular lethal injection method that is used in
most states. While the validity of capital punishment, or even of
lethal injection, is not at stake, the case will require the
justices to take a position on the current meaning of the Eighth
Amendment prohibition on cruel and unusual punishment. It is far
from clear whether a majority of the justices will read the
Constitution as mandating one chemical formulation versus another.
The discrimination case the justices granted on Tuesday, which has
attracted almost no notice, could nonetheless produce an important
shift in the court’s approach to interpreting statutes. The
question is whether a law that bars racial discrimination in
business dealings, including employment, also prohibits retaliation
against those who complain about discrimination.
Ordinarily, the court grants cases only to resolve conflicting
interpretations in the lower courts. But in this instance, every
federal appeals court to consider the issue has agreed that the
statute does apply to retaliation. For the court to grant a case in
the absence of a lower-court conflict — as it did in the case
decided in June that invalidated voluntary integration plans in two
public school systems — is often an indication that the case was
added to the docket as a vehicle for advancing a particular agenda.
The federal law at issue in the new case was originally part of the
Reconstruction-era Civil Rights Act of 1866. Known now as Section
1981, it does not mention “retaliation.” Neither do most other anti-
discrimination laws. In the past, that has been no barrier to the
court in finding that protection against retaliation is inherently
part of protection against discrimination.
But support on the court for an approach that goes beyond the
margins of the constitutional text has been shrinking. Two years
ago, the court ruled 5 to 4 that Title IX, a law that bars sex
discrimination in schools, also covers retaliation. Justice Sandra
Day O’Connor wrote the majority opinion. It is likely that her
successor, Justice Samuel A. Alito Jr., would have been among the
dissenters.
Given that the new case, CBOCS West Inc. v. Humphries, No. 06-1431,
does not meet the court’s most important criterion for review, it
is likely that a new majority granted it in order to cut off the
retaliation claim and perhaps also to issue a broader ruling
against finding rights that are not spelled out in statutes.
Here are details of other important cases for the new term.
Detainees
A year ago, in response to the court’s most recent ruling in favor
of a Guantánamo detainee, the Republican-controlled Congress passed
the Military Commissions Act, providing that “no court, justice, or
judge shall have jurisdiction” to consider a detainee’s petition
for a writ of habeas corpus. Senator Arlen Specter, the
Pennsylvania Republican who was then chairman of the Judiciary
Committee, voted for the measure, but has filed a brief telling the
justices he believes it is unconstitutional.
The Constitution authorizes Congress to suspend the “privilege” of
habeas corpus only at times of “rebellion or invasion.” Under
Supreme Court precedents, a suspension at other times may
nonetheless be permissible as long as adequate alternate procedures
exist for challenging a conviction or sentence. So the question in
these cases, Boumediene v. Bush, No. 06-1195, and Al Odah v. United
States, No. 06-1196, is whether the justices will deem the limited
procedures available to the detainees to be adequate.
Voting Rights
Challengers to Indiana’s two-year-old voter identification law,
which requires current government-issued photo ID, call it the
“most onerous” such law in the country. Voters lacking the proper
identification have 10 days to obtain it in order for their
provisional ballots to be counted.
A federal appeals court upheld the law, finding that it would
prevent fraud while not keeping many people from the polls. The
plaintiffs maintain that the poor and elderly would face a
disproportionate burden.
The underlying question is how the justices will evaluate the
competing interests of preventing fraud and protecting access. The
cases are Crawford v. Marion County Election Board, No. 07-21, and
Indiana Democratic Party v. Rokita, No. 07-25.
Criminal Law
The lethal injection case, Baze v. Rees, No. 07-5439, challenges
the use of the most common three-drug lethal injection “cocktail,”
which is conceded to place some inmates at risk of severe pain. The
Kentucky Supreme Court concluded that the risk was not substantial
enough to make the particular combination unconstitutional.
The question for the justices is what standard courts should use in
evaluating the evidence from which to draw a conclusion on
constitutionality, especially in light of evidence that pain can be
avoided through a different combination of drugs and attention to a
reliable level of anesthesia.
The court will also hear two more cases that address the question
of judicial discretion in federal criminal sentencing.
The question in Gall v. United States, No. 06-7949, is the
justification a judge must provide in issuing a sentence that
differs substantially from the one called for by the federal
sentencing guidelines. Kimbrough v. United States, No. 06-6330,
addresses judicial discretion to mitigate the sentences required
for offenses involving crack cocaine.
Federalism
The Texas courts have refused to accept a directive from President
Bush to bypass procedural obstacles and grant a new hearing to a
Mexican <"illegal alien"> death-row inmate, after a 2004 World
Court decision that the inmate’s rights under an international
treaty were violated when he was not given the chance to meet with
Mexican officials. The case, Medellín v. Texas, No. 06-984,
presents unusual issues of state-federal relations.
....
The Supreme Court will take up a new test of presidential authority
at its private Conference on April 20, in the case of Medellin v.
Texas (06-984). The case involves the attempt by President Bush to
have Texas state courts abide by a ruling of the World Court that
the United States, and some of its states, have violated the Vienna
Convention on the right of foreign nationals arrested and
prosecuted for crime in the U.S. to meet with a diplomat from their
home country.
http://www4.law.cornell.edu/supct/cert/06-984.html
José Ernesto Medellín, a Mexican citizen, was convicted of capital
murder in Texas for his role in the rape and murder of two teenage
girls in Houston. The murders took place on June 24, 1993.
Medellín confessed to them. He was convicted on September 16,
1994, and sentenced to death on October 11, 1994.
On April 29, 1997, the Mexican consulate first learned of the
proceedings against Medellín when he wrote them from death row.
Once notified, the Mexican consulate began to assist him. Article
36 of the Vienna Convention on Consular Relations, 21 U.S.T. 77
(Apr. 24, 1963), to which the United States and Mexico are parties,
provides that when authorities accuse a foreign national of a crime
they must inform him of his right to contact his nation’s
consulate. Alleging that the United States had violated the Vienna
Convention rights of Medellín and 51 other Mexican nationals on
death row, Mexico brought a legal action, Case Concerning Avena and
Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (March 31)
( “Avena”), against the United States in the International Court of
Justice ( “ICJ”). Medellín v. Dretke, 544 U.S. at 663.
Medellín challenged his conviction by filing a habeas corpus
petition in Texas state court, claiming for the first time that
Texas had violated his Vienna Convention rights. On January 22,
2001, the trial court denied his petition, finding that the Vienna
Convention does not grant privately enforceable rights to
individuals. On October 3, 2001, the Texas Court of Criminal
Appeals adopted the trial court’s findings and denied Medellín’s
petition. Medellín then unsuccessfully sought a writ of habeas
corpus in federal court on Vienna Convention (and other) grounds.
Meanwhile, the ICJ decided in Avena that the United States had
violated the Vienna Convention rights of Medellín and others by
failing to notify them of their right to contact the Mexican
consulate. The ICJ directed the United States to reconsider the
criminal cases of the wronged individuals to determine whether
these violations caused actual harm.
President Bush declared in a statement attached as an exhibit to
the United States amicus brief in this case that the United States
would implement the Avena decision by “having State courts give
effect to the decision in accordance with general principles…”
Because foreign nationals constitute MORE THAN 10% of the prison
population in California, New York, and Arizona, the issues raised
by Medellín’s case likely will recur.
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