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Supreme Court 2007-08 Term Winding Down in June (Justice Ginsburg has cancer)

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Supreme Court 2007-08 Term Winding Down in June (Justice Ginsburg has cancer)

Old 06-09-08, 03:58 PM
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Supreme Court 2007-08 Term Winding Down in June (Justice Ginsburg has cancer)

Supreme Court term ends this month. Should be no retirements announced since it is an election year. However, there are some major cases yet to be decided. There have been some threads already devoted for some of these.

http://ap.google.com/article/ALeqM5g...rv8ywD916NJP01

Supreme Court: 22 cases remain undecided
AP

Highlights of some high-profile Supreme Court cases, among the 22 that remain to be decided before the court begins its summer recess scheduled in late June:

- Rights of detainees at the Guantanamo Bay naval prison, some of whom have been held more than six years without charges. The detainees want to be able to seek their release in front of a U.S. civilian judge. The government says the detainees have no rights under the Constitution and that the process for classifying them as enemy combatants contains sufficient opportunity to make their case in court. Boumediene/Al-Odah v. Bush

- Gun rights, and the fate of a handgun ban in Washington, D.C. The court is undertaking the first comprehensive review of Second Amendment rights in U.S. history, and will decide whether individuals have a right to own guns, or whether that right is linked to service in a militia. D.C. v. Heller

- Death penalty for raping a child. A man on death row for raping his 8-year-old stepdaughter is challenging a Louisiana law allowing the death penalty for the crime, even when it does not include the death of the victim. The last execution for a crime that did not also include murder was more than 40 years ago and the court outlawed the death penalty for raping an adult woman in 1977. Kennedy v. Louisiana

- Punitive damages in the Exxon Valdez oil spill. Exxon Mobil Corp. is fighting a $2.5 billion judgment for the environmental disaster in Alaska 19 years ago that ensued after the supertanker ran aground on a reef. Exxon v. Baker

- Rights of Americans detained in Iraq. At issue is whether the U.S. military should be allowed to turn over two foreign-born U.S. citizens to the Iraqi government for criminal proceedings. Munaf v. Geren, Geren v. Omar
It's June Madness, baby!
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Old 06-09-08, 04:01 PM
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Interesting article by Edward Lazarus on how the Court hasn't quite followed the ideological 5-4 pattern so far that we saw last year.

http://writ.news.findlaw.com/lazarus/20080606.html

The Supreme Court’s Term So Far: An Unusual Degree of Agreement, With Liberals Joining “Conservative” Rulings and Vice-Versa
By EDWARD LAZARUS
Friday, Jun. 6, 2008

Although the Supreme Court has yet to decide some of the most important pending cases before it, it is not too soon to say that this has been a surprising term. Based on last term’s record, most prognosticators (including me, I must confess) thought that this term would see another spate of hard-fought 5-4 decisions in which the Court split along its well-established ideological divide, with Justice Anthony Kennedy playing the role of swing justice, delivering victory to one side or the other. Instead, the Court has achieved a significantly higher degree of consensus in many cases that were good candidates for 5-4 battles – with some liberal justices joining “conservative” decisions and some conservative justices joining in “liberal” ones.

In this column, I’ll examine some of the cases that might have been 5-4, but were not, and also consider explanations for why the Court has been able to achieve more consensus than many expected.

A Spate of Recent Cases Illustrates the Court’s Ability to Avoid 5-4 Splits

The last couple of weeks have seen at least four new examples of this phenomenon. In two separate decisions, one 7-2 and the other 6-3, the Supreme Court decided that both Section 1981 and the Age Discrimination in Employment Act (ADEA) prohibit retaliation against employees who complain of discrimination, even though neither statute specifically states that it prohibits such retaliation. (The ADEA decision was Gomez-Perez v. Potter; the Section 1981 decision was CBOCS v. Humphries). Despite these liberal results, Justice Samuel Alito joined both of these decisions and even authored the decision interpreting the ADEA. Chief Justice John Roberts also joined the decision interpreting Section 1981.

Even more recently, a mixed-bag coalition of liberals and conservatives joined together to reverse two criminal convictions by giving the federal money laundering statute a relatively narrow construction, in United States v. Santosand Cuellar v. United States. Although the Court divided 5-4 in one of these two cases, the other decision was unanimous and, no less important, the Justices, in these cases, did not break down along ideological lines, nor did they depend on Justice Kennedy as the tie-breaker.

On the flip side of the ideological coin, earlier in the term the Court issued several “conservative rulings” in which liberal justices joined. For example, the Court upheld the controversial three-drug cocktail for carrying out the death penalty by a 7-2 vote in Baze v. Rees and, by a 6-3 tally, upheld Indiana’s stringent voter ID law, requiring voters to present a government photo ID on election day before casting a ballot, in Crawford v. Marion County Election Bd. A seven-justice majority also voted to uphold the latest Congressional attempt to restrict child pornography (after having repeatedly struck down previous attempts), in United States v. Williams. Meanwhile, some decidedly pro-business decisions have been decided by even more lopsided margins.

Is the Court’s New Ability to More Frequently Avoid 5-4 Splits and Ideological Divides Simply the Result of Its Current Set of Cases?

As Linda Greenhouse commented in a recent New York Times article astutely reporting the stark contrasts with last term, “[S]omething is happening, clearly.” Very true. But it is very hard to know exactly what is happening and what to make of it.

I begin with a strong caveat: It is highly artificial and not especially illuminating to look at the work of the Court on a term-by-term basis. The Justices don’t magically transform themselves over the summer recess between terms. In general, change within the Court comes, if at all, either through retirement or gradually over the course of years.

How any particular term shapes up is powerfully influenced by the kinds of cases that happen to come up for review during that particular term. Some terms, like the last one, are crammed full of ideologically-charged cases – abortion and racial preferences, for example – which highlight the ideological divisions on the Court. Other terms, like the current one, are filled with cases that either carry less ideological freight or, for idiosyncratic reasons, create coalitions encompassing some pretty strange bedfellows.

Justices’ Interpretive Preferences May Combine with the Mix of a Term’s Cases to Produce Votes that Do Not Seem To Track Justices’ Typical Ideology

Sometimes, for example, the emphasis that Scalia and Thomas put on the “plain language” of statutes drives them to “liberal” results. For example, in United States v. Santon this approach led to their votes for overturning a criminal conviction on the ground that the word “proceeds” in the federal money laundering statute should be read as limited to the “profits” of a corrupt business and not to its gross receipts (as the prosecution had alleged).

By the same token, Justice Stephen Breyer’s predilection to defer to the judgments of federal administrative agencies often leads him to “conservative” pro-business outcomes. For instance, Breyer was in the majority in the recent pre-emption cases in which the Court has prohibited lawsuits based on state consumer protection laws in certain situations where a federal agency has already placed its imprimatur on the safety of the product at issue.

One way to sum up this phenomenon is to say that justices coming at problems from very different perspectives can sometimes reach the same bottom line in a case despite their ideological differences. And that, if a given term happens to have an unusually high number of these cases, the basic dynamics of the Court, which is still divided into two very distinct ideological wings, can be obscured.

A Shared Interest in Consensus on the Part of Both Conservative and Liberal Justices May Also Be at Work

At the same time, however, it seems fair to say that at least one other phenomenon is at work within the current Court that is driving a surprising degree of consensus. For the moment, at least, some members of the conservative wing (Roberts especially) and some members of the liberal wing (Stevens especially) seem to have a shared interest in handing down compromise decisions that can garner more than the usual narrow five-Justice majorities.

For Chief Justice Roberts (and Alito too, one suspects), the issue is one of being true to his word. To great fanfare, Roberts claimed a profound commitment to bringing greater consensus to the Court as well as to giving a high degree of respect to precedent. Last term, this goal eluded him and, frankly, given Roberts’ own role in some of the divisive cases, some suspected that he lacked the courage of his professed convictions. This term, however, his commitment to a more collegial, unified Court has re-emerged.

But achieving greater consensus necessarily entails compromising with the Court’s liberal wing in order to limit the scope of conservative decision. Reflecting this stubborn fact, a lot of the “consensus” decisions the Roberts Court has produced, especially in controversial areas of law, have been extremely narrow -- indeed, almost case-specific. So it is, to cite but one example, that the Court okayed the three-drug lethal injection cocktail in Baze v. Rees, but left the door open to new challenges based on the possibility that more evidence of problems with the protocol for the cocktail’s administration, and/or how it is followed in particular states, could be submitted.

Respecting precedent also sometimes has the effect of driving Roberts and Alito into the arms of the liberals, as happened in the cases raising the issue of whether Section 1981 and the ADEA outlaw retaliation. In all likelihood, neither justice would have reached these results in the absence of past decisions pointing the way.

At least some of the liberals, for their part, seem willing in at least some contexts to give Roberts the greater consensus he seeks, in exchange for narrowing the scope of conservative victories. Pragmatically speaking, if the liberals are going to lose (which, on this Court, they often are), why not lose on the narrowest possible ground, even if the price is going along for the ride? The alternative may very well be to lose much more broadly, 5-4.

In this sense, at least some of the surprises of the term have sprung from a marriage of convenience. Yet as with many such marriages, one has to wonder -- especially with an election coming up that could result in dramatic change on the Court -- how long it is destined to last.
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Old 06-09-08, 04:04 PM
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I'll also take this opportunity to recommend a great book I read last month.

The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom by Robert Levy & William Melor.

It's a relatively easy read that non-lawyers should be able to follow.

While I would have a picked a few alternate cases for the top-12 (although top-12 isn't quite accurate - it's actually the worst and a dishonorable mention in 12 areas of law), I certainly agree with most of their picks, and all 12 were at least wrongly decided. Granted, most of you would probably strongly agree with half of the cases and the rest of you the other half.

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Old 06-09-08, 06:35 PM
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I was promised by liberal fear mongers that my right to an abortion would be gone before Bush left office!

Why is the government staying out of my vagina!!!!
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Old 06-10-08, 11:08 AM
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Originally Posted by Red Dog
While I would have a picked a few alternate cases for the top-12 (although top-12 isn't quite accurate - it's actually the worst and a dishonorable mention in 12 areas of law), I certainly agree with most of their picks, and all 12 were at least wrongly decided. Granted, most of you would probably strongly agree with half of the cases and the rest of you the other half.
So what you're saying is that we're all wrong and you're right? Very nice. Somebody outta write a law to prevent people like you from being so pompous.
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Old 06-10-08, 11:13 AM
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Originally Posted by Thor Simpson
Why is the government staying out of my vagina!!!!
The Bureau of Printing and Engraving got lost down there in early March. I'm surprised you didn't notice.
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Old 06-10-08, 12:23 PM
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Originally Posted by Mordred
So what you're saying is that we're all wrong and you're right? Very nice. Somebody outta write a law to prevent people like you from being so pompous.
Red's only right about legal matters. Try to keep up.
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Old 06-10-08, 09:42 PM
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Originally Posted by Mordred
So what you're saying is that we're all wrong and you're right? Very nice. Somebody outta write a law to prevent people like you from being so pompous.

I've been around this forum long enough to know I'm right, particularly on this subject, and that most are wrong.

But read the book, comment, and lets discuss.
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Old 06-10-08, 10:33 PM
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Originally Posted by Mordred
So what you're saying is that we're all wrong and you're right? Very nice. Somebody outta write a law to prevent people like you from being so pompous.
There are those of us who are right and get perceived as being pompous. I'm not naming names, but...

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Old 06-12-08, 09:50 AM
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Justices: Gitmo detainees can challenge detention in U.S. courts

WASHINGTON (CNN) -- Suspected terrorists and foreign fighters held by the U.S. military at Guantanamo Bay, Cuba, have the right to challenge their detention in federal court, the Supreme Court ruled Thursday.

The decision marked another legal blow to the Bush administration's war on terrorism policies.

In a 5-4 ruling, the justices said the U.S. military lacks the legal autonomy to prosecute as many as 300 prisoners.

At issue were the rights of the detainees to contest their imprisonment as well as the rules established to try them in military tribunals.

A congressional law passed in 2006 would limit court jurisdiction to hear such challenges.

It is a legal question the justices have tackled three times since 2004, including Thursday's ruling.

Each time the high court ruled against the government's claim that it has the authority to hold people it labels "enemy combatants."
http://www.cnn.com/2008/US/06/12/scotus/index.html
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Old 06-12-08, 10:00 AM
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I'm a bit surprised. I'm assuming this is the typical 5-4 split. I wasn't sure which way Kennedy would swing on this one.

Here is the initial SCOTUSBLOG story:

Court gives detainees habeas rights
Thursday, June 12th, 2008 10:08 am | Lyle Denniston |

In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights. If Congress wishes to suspend habeas, it must do so only as the Constitution allows — when the country faces rebellion or invasion.

The Court stressed that it was not ruling that the detainees are entitled to be released — that is, entitled to have writs issued to end their confinement. That issue, it said, is left to the District Court judges who will be hearing the challenges. The Court also said that “we do not address whether the President has authority to detain” individuals during the war on terrorism, and hold them at the U.S. Naval base in Cuba; that, too, it said, is to be considered first by the District judges.

The Court also declared that detainees do not have to go through the special civilian court review process that Congress created in 2005, since that is not an adequate substitute for habeas rights. The Court refused to interpret the Detainee Treatment Act — as the Bush Administration had suggested — to include enough legal protection to make it an adequate replacement for habeas. Congress, it concluded, unconstitutionally suspended the writ in enacting that Act.

In a second ruling on habeas, the Court decided unanimously that U.S. citizens held by U.S. military forces in Iraq have a right to file habeas cases, because it does extend to them, but it went on to rule that federal judges do not have any authority to bar the transfer of those individuals to Iraqi authorites to face prosecution or punishment for crimes committed in that country in violation of Iraqi laws.

Opinion here:
http://www.scotusblog.com/wp/wp-cont...06/06-1195.pdf

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Old 06-12-08, 10:28 AM
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Originally Posted by Red Dog
I'm a bit surprised. I'm assuming this is the typical 5-4 split. I wasn't sure which way Kennedy would swing on this one.

Here is the initial SCOTUSBLOG story:

Opinion here:
http://www.scotusblog.com/wp/wp-cont...06/06-1195.pdf
So, what does this mean to the frightened American wanting these detaines to not "have the same rights as Americans"?
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Old 06-12-08, 10:32 AM
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I don't know what it means to the frightened American but it could mean the end of Gitmo. I've only briefly skimmed the headnotes of the opinion but it seems that US sovreignty over Gitmo played a big role in this decision.
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Old 06-12-08, 10:37 AM
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The decision, while helping the local economy of the legal profession for a short time, probably means a greater outflow of dollars from the U.S. as we pay other countries to house the prisoners from Gitmo.
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Old 06-12-08, 10:41 AM
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Originally Posted by X
The decision, while helping the local economy of the legal profession for a short time, probably means a greater outflow of dollars from the U.S. as we pay other countries to house the prisoners from Gitmo.
Why do you assume it will cost more than operating Gitmo?

At any rate, this is one of those financial costs of waging war that the country will be paying for many years.
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Old 06-12-08, 11:11 AM
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Originally Posted by Red Dog
I'm a bit surprised. I'm assuming this is the typical 5-4 split. I wasn't sure which way Kennedy would swing on this one.
Looks that way:

KENNEDY, J., delivered the opinion of the Court, in which STEVENS,
SOUTER, GINSBURG, and BREYER, JJ., joined. SOUTER, J., filed a concurring
opinion, in which GINSBURG and BREYER, JJ., joined. ROBERTS,
C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO,
JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS,
C. J., and THOMAS and ALITO, JJ., joined.
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Old 06-12-08, 11:14 AM
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No, this will end us holding prisoners.

Change of venue for the prison. That will make people feel better if they don't have to hear about it, and the others can still speak out against double secret probabtion prisons, etc. win/win.
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Old 06-12-08, 12:07 PM
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Originally Posted by kvrdave
No, this will end us holding prisoners.

Change of venue for the prison. That will make people feel better if they don't have to hear about it, and the others can still speak out against double secret probabtion prisons, etc. win/win.


RedDog, what basis are Scalia and Thomas using for their dissent?
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Old 06-12-08, 01:39 PM
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Originally Posted by mosquitobite


RedDog, what basis are Scalia and Thomas using for their dissent?
Originally Posted by Justice Scalia
My problem with today’s opinion is more fundamental still: The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires.
Personally, I think that whenever the U.S. government is detaining someone, the right of habeas should apply.
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Old 06-12-08, 01:58 PM
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Originally Posted by JasonF
Personally, I think that whenever the U.S. government is detaining someone, the right of habeas should apply.
I tend to agree with that principle, but I don't think I could make the case legally. That is the only part that surprises me a bit.
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Old 06-12-08, 02:00 PM
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Originally Posted by JasonF
Personally, I think that whenever the U.S. government is detaining someone, the right of habeas should apply.
Does that include when the U.S. military is detaining someone?
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Old 06-12-08, 02:31 PM
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Originally Posted by X
Does that include when the U.S. military is detaining someone?
Perhaps it would depend on if war was actually declared?
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Old 06-12-08, 02:37 PM
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Looks like Scalia is disagreeing with what constitutes "abroad;" the issue I alluded to before.
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Old 06-12-08, 02:38 PM
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Originally Posted by JasonF
Personally, I think that whenever the U.S. government is detaining someone, the right of habeas should apply.

I assume you don't mean that for traditional battlefield captured POWs.
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Old 06-12-08, 02:41 PM
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Originally Posted by mosquitobite
Perhaps it would depend on if war was actually declared?
I don't know.
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