SCOTUS In Review

The Following Are Summaries of this SCOTUS 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.

Bravo! The Supremes found their intestinal fortitude and their integrity just long enough to smash the smash and grab that Dubya has done in direct violation of the Constitution. But they left the door open for congress to capitulate and give Bush and his gang broad powers that violate the principles in the Constitution, if not the Constitution itself. It is imperative that we watch these rectal suppositories and keep them from giving away our liberties and violating the principles embodied in our supreme law of the land.
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 this case, and in terms of the focus, the Supremes took the low road and chickened out, defaulting to their ideologies rather than principled application of the law and justice... As usual, they forgot that the Preamble requires them to administer justice as well as the technical letter of the law.

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.

Okay, so they did a half-right thing. The overall decision was a sellout of principle.

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.

Again, the politics and underlying ideology have revealed themselves in this decision as well. While I agree with the conclusion that the Vermont law violated the First Amendment (as well as several other Amendments), I think they missed an opportunity to set a clearly constitutional path in regard to campaign finance.

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.

So, our privacy is somewhat preserved and a warrant is required for law enforcement officers, even if there is conflicting issues of permission. This decision requires law enforcement to cross their Ts and dot their Is before executing a search... A lesson that is necessary not only to preserve our rights, but also in order to assure a proper prosecution and conviction of felons... to wit I refer you to the OJ Simpson case where the police screwed the pooch and OJ walked away because of the lack of proper procedure.

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.

Here the Supremes screwed the pooch. This decision is inconsistent with the Constitution and is therefore repugnant to it. In the case above this one the Supremes required safeguards against police mistakes and failure to follow procedure, but allow for such mistakes and failures to count against us in the case where constitutional principles and constitutionally prescribed procedures were not observed. This, my firends, is inconsistent as hell.

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.

While I am pleased with this decision because it makes implementation of the death penalty a bit more difficult, and I oppose the death penalty on religious and moral grounds, I cannot follow the logic of this decision. Death is death, no matter how it occurs. The use of a drug to cause death is a lot more humane than hanging, electric chair or gas chamber methods. Even the use of a drug that might cause some pain and, perhaps convulsions, is more humane than two of those tried and true methods. One has to question whether or not the Supremes have laid another foundation for challenging the death penalty at-large... A case that I applaud on moral grounds.

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.

Given the number of cases that have proven convicted persons innocent of crimes due to DNA, I do not see how SCOTUS could have arrived at any decision but the one where new evidence must be reviewed. However, that ideology is once again revealed in that the ultra-conservatives on the bench dissented. One has to wonder whether their minds are attached to other anatomical body parts.

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.

Okay, is it me, or does anyone else see this apporach as restricting the rights of foreigners, which may backfire for US citizens in the future, and opening the door for tremendous abuses of power by various law enforcement authorities, especially the feds?

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.

Again, one has to wonder if the question of the death penalty is up in the air, especially in light of the next reported decision:

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.

Given the role that Alito played, one can see that ideology issue raised once again. But the Court is being inconsistent and unclear.

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.

Okay, but shouldn't a defendant have the right to cross examine the persons operating the equipment, the quality and technology of the recording, and the legitimacy of the recording given the technology that is routinely available to most of us to dub, edit and re-mix recordings? I think the Supremes stepped in it this time as well.

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.

While I agree with the decision, I can only point out that this logic is inconsistent with the previously reported decision. I think the inconsistency demonstrated by the Supremes is indicative of an ideological struggle occurring on the SCOTUS bench... We will have to watch for more manifestations of this struggle.

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.

Bravo! The right to a competent attorney, as first decided in Gideon (et al), is preserved.

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.

This was clearly a matter of state's rights and legitimate division of authority as prescribed and protected by the Constitution. Ashcroft was an ass and his judgments were always questionable in my view... not the Alberto "Nut Case" Gonzalez has demonstrated much better judgment. The overreaching of the fed was dealt a blow that was well-deserved.

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.

The Supremes took a CYA approach with an out. We'll have to watch for further developments because this case also will have impact upon those sitting in prisons that have diminished cognitive and mental functioning, especially in terms of the death penalty.

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.

Imagine the ultra-conservatives dissenting in favor of a pro-bug business, pro-government view of this matter. But O'Connor's swing vote still counted us in the picture... you know, the PEOPLE that are supposed to be served by the government.

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.

Well, that ought to put a crimp in the style of those governmental bodies that would seek to sweep the dirt under the rug in tax foreclosures. Having done a bit of research in this area, I know there are some ethical issues that remain to be litigated.

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.

Straight-forward black letter law... except that it whittles away at the doctrine of sovereignty... but so did the idea of making the USPS a quasi-private/quasi-governmental agency.

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.

There has been a slow, gradual, but very consistent erosion of the teeth of the laws that protect our wetlands. I witnessed this in New Hampshire, a state where the environment gets a lot of attention and protection in comparison to many other states. But wetlands are an essential part of not only wildlife habitat, but also in purifying and protecting our clean water aquifers.

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.

Given that Maine has some of the best wilderness in our nation, and the clean water requirements there has been under pressure due to the need for industrial operations and jobs, as well as the history of various paper and wood product mills polluting the waters, this is a good ruling.

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.

How do I become a member of that religion? Odd that the Supremes would make this ruling in light of their apparent opposition to the medicinal use of marijuana... So I guess that anyone suffering from a terminal illness and using marijuana to alleviate discomfort ought to form a new religious organization and obtain the protections of the First Amendment.

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.

Nothing in this decision precludes the school from distributing information, protesting or otherwise dissuading its students from attending recruitment functions. I would suggest that these schools objecting to military recruiting on campus put up big signs next to the recruting area/event that indicates the institution's displeasure at the requirement for recruiting on campus. Additionally, since the institution has the right to designate where these activities may occur on campus, one might expect to find a lot of military recruiters located in the janitorial closet in the lower regions of the basement in the least used buildings on campus.

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.

Essentially the court just put a financial burden back on the handicapped student and the family to prove that the IEP proposed is inadequate. This opens the door to all kinds of litigation... all the while the kid needing the special services will be getting screwed. This calls for congressional intervention to tidy up PL 94-142 (et seq) and related education statues to force a compromise.

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.

The burden on the student and the family just got bigger.

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.

While this is a good decision, some past decisions at the federal level have substantially reduced the protections offered to employees by the ADA and other laws against discrimination. Most notably is the Westinghouse case that forces an employee to perform unlawful or discriminatory actions and then file the complaint. Failure to do so results in the lack of legal standing. Go figure.

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.

This decision skates on thin ice. While I can appreciate the dividing line drawn by Justice Kennedy, it does leave a lot of room for power abuses and malfeasance.

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.

Even though I am personally opposed to abortion, I do not think the courts have any business in these decisions. Roe v. Wade was correct in that regard. So, I would advocate that the courts--and congress--abstain from getting involved in these cases beyond preserving the right to make individual medical decisions absent of governmental interference, as set forth in Roe. A person's conscience and sense of values are their own to exercise freely. That is not only an essential part of the freedom guaranteed by the Constitution, but also provided for by God.

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.

This is an area of law that is going to litigious in nature for many decades, especially given the broad, vague and sweeping garbage legalese that congress has added to patent, copyright and other IP provisions.

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.

This is not a case that has a broad impact on most of us, but it is just the beginning of IP issues that will be presented to the Supremes.