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In a Case of Religious Dress,
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Partial Birth Abortion Ban Act unconstitutional
Supreme Court Strikes Down
Texas Abortion Restrictions
JUNE 27, 2016
The New York Times
By ADAM LIPTAK
WASHINGTON — The Supreme Court on Monday struck down parts of a restrictive
Texas law that could have reduced the number of abortion clinics in the state to
about 10 from what was once a high of roughly 40.
The 5-to-3 decision was the court’s most sweeping statement on abortion rights
since Planned Parenthood v. Casey in 1992. It applied a skeptical and exacting
version of that decision’s “undue burden” standard to find that the restrictions
in Texas went too far.
The decision on Monday means that similar restrictions in other states are most
likely also unconstitutional, and it imperils many other kinds of restrictions
Justice Stephen G. Breyer wrote the majority opinion, joined by Justices Anthony
M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Chief Justice
John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr.
The decision concerned two parts of a Texas law that imposed strict requirements
on abortion providers. It was passed by the Republican-dominated Texas
Legislature and signed into law in July 2013 by Rick Perry, the governor at the
One part of the law requires all clinics in the state to meet the standards for
ambulatory surgical centers, including regulations concerning buildings,
equipment and staffing. The other requires doctors performing abortions to have
admitting privileges at a nearby hospital.
“We conclude,” Justice Breyer wrote, “that neither of these provisions offers
medical benefits sufficient to justify the burdens upon access that each
imposes. Each places a substantial obstacle in the path of women seeking a
previability abortion, each constitutes an undue burden on abortion access, and
each violates the federal Constitution.”
Last June, the United States Court of Appeals for the Fifth Circuit, in New
Orleans, largely upheld the contested provisions of the Texas law, saying it had
to accept lawmakers’ assertions about the health benefits of abortion
restrictions. The appeals court ruled that the law, with minor exceptions, did
not place an undue burden on the right to abortion.
Justice Breyer said the appeals court’s approach was at odds with the proper
application of the undue-burden standard. The Casey decision, he said, “requires
that courts consider the burdens a law imposes on abortion access together with
the benefits those laws confer.”
In dissent, Justice Thomas said the majority opinion “reimagines the
undue-burden standard,” creating a “benefits-and-burdens balancing test.” He
said courts should resolve conflicting positions by deferring to legislatures.
“Today’s opinion,” Justice Thomas wrote, “does resemble Casey in one respect:
After disregarding significant aspects of the court’s prior jurisprudence, the
majority applies the undue-burden standard in a way that will surely mystify
lower courts for years to come.”
The majority opinion considered whether the claimed benefits of the restrictions
outweighed the burdens they placed on a constitutional right. Justice Breyer
wrote that there was no evidence that the admitting-privileges requirement
“would have helped even one woman obtain better treatment.”
At the same time, he wrote, there was good evidence that the
admitting-privileges requirement caused the number of abortion clinics in Texas
to drop from 40 to 20.
In a second dissent, Justice Alito, joined by Chief Justice Roberts and Justice
Thomas, said the causal link between the law and the closures was unproven.
Withdrawal of state funds, a decline in the demand for abortions and doctors’
retirements may have played a role, Justice Alito wrote.
Justice Breyer wrote that the requirement that abortion clinics meet the
demanding and elaborate standards for ambulatory surgical centers also did more
harm than good.
“Abortions taking place in an abortion facility are safe — indeed, safer than
numerous procedures that take place outside hospitals and to which Texas does
not apply its surgical-center requirements,” he wrote, reviewing the evidence.
“Nationwide, childbirth is 14 times more likely than abortion to result in
death, but Texas law allows a midwife to oversee childbirth in the patient’s own
In dissent, Justice Alito said there was good reason to think that the
restrictions were meant to and did protect women. “The law was one of many
enacted by states in the wake of the Kermit Gosnell scandal, in which a
physician who ran an abortion clinic in Philadelphia was convicted for the first
degree murder of three infants who were born alive and for the manslaughter of a
patient,” Justice Alito wrote.
Justice Breyer acknowledged that “Gosnell’s behavior was terribly wrong.”
“But,” he added, “there is no reason to believe that an extra layer of
regulation would have affected that behavior.”
The clinics challenging the law said it has already caused about half of the
state’s 41 abortion clinics to close. If the contested provisions had taken full
effect, they said, the number of clinics would again be cut in half.
The remaining Texas clinics would have been clustered in four metropolitan
areas: Austin, Dallas-Fort Worth, Houston and San Antonio. “None is located west
or south of San Antonio, a vast geographic area that is larger than California,”
a brief for the clinics said. An appeals court did allow a partial exemption for
a clinic in McAllen, the brief added, but “imposed limitations on the clinic’s
operational capacity that would severely restrict its ability to provide
Justice Breyer, announcing the majority opinion in the hushed Supreme Court
chamber, said that the requirements in the Texas statute “are not consistent
with the constitutional standard set forth in Casey,” and were, therefore, both
Justice Alito responded with an extended dissent from the bench, a sign of deep
disagreement. “We are supposed to be a neutral court of law,” he said, outlining
what he conceded were “dry and technical” points of legal doctrine he argued
should have precluded the petitioners from presenting the challenge in the first
place. “There is no justification for treating abortion cases differently from
Julie Hirschfeld Davis contributed reporting.
Follow The New York Times’s politics and Washington coverage on Facebook and
Twitter, and sign up for the First Draft politics newsletter.
Supreme Court Strikes Down Texas Abortion Restrictions,
June 27, 2016,
Decide Marriage Rights
JAN. 16, 2015
The New York
By ADAM LIPTAK
The Supreme Court on Friday agreed to decide whether all 50 states must allow
gay and lesbian couples to marry, positioning it to resolve one of the great
civil rights questions in a generation before its current term ends in June.
The decision came just months after the justices ducked the issue, refusing in
October to hear appeals from rulings allowing same-sex marriage in five states.
That decision, which was considered a major surprise, delivered a tacit victory
for gay rights, immediately expanding the number of states with same-sex
marriage to 24, along with the District of Columbia, up from 19.
Largely as a consequence of the Supreme Court’s decision not to act, the number
of states allowing same-sex marriage has since grown to 36, and more than 70
percent of Americans live in places where gay couples can marry.
The cases the Supreme Court agreed to hear on Friday were brought by some 15
same-sex couples in four states. The plaintiffs said they have a fundamental
right to marry and to be treated as opposite-sex couples are, adding that bans
they challenged demeaned their dignity, imposed countless practical difficulties
and inflicted particular harm on their children.
The pace of change on same-sex marriage, in both popular opinion and in the
courts, has no parallel in the nation’s history.
Gay rights advocates hailed the court’s move on Friday as one of the final steps
in a decades-long journey toward equal treatment, and they expressed confidence
they would prevail.
“We are finally within sight of the day when same-sex couples across the country
will be able to share equally in the joys, protections and responsibilities of
marriage,” said Jon W. Davidson, the legal director of Lambda Legal.
Supporters of traditional marriage said the Supreme Court now has a chance to
return the issue to voters and legislators.
“Lower court judges have robbed millions of people of their voice and vote on
society’s most fundamental relationship — marriage,” said Tony Perkins, the
president of the Family Research Council, a conservative policy and lobbying
group. “There is nothing in the Constitution that empowers the courts to silence
the people and impose a nationwide redefinition of marriage.”
The Supreme Court’s lack of action in October and its last three major gay
rights rulings suggest that the court will rule in favor of same-sex marriage.
But the court also has a history of caution in this area.
It agreed once before to hear a constitutional challenge to a same-sex marriage
ban, in 2012 in a case called Hollingsworth v. Perry that involved California’s
Proposition 8. At the time, nine states and the District of Columbia allowed
same-sex couples to marry.
When the court’s ruling arrived in June 2013, the justices ducked, with a
majority saying that the case was not properly before them, and none of them
expressing a view on the ultimate question of whether the Constitution requires
states to allow same-sex marriage.
But a second decision the same day, in United States v. Windsor, provided the
movement for same-sex marriage with what turned out to be a powerful tailwind.
The decision struck down the part of the Defense of Marriage Act that barred
federal benefits for same-sex couples married in states that allowed such
The Windsor decision was based partly on federalism grounds, with Justice
Anthony M. Kennedy’s majority opinion stressing that state decisions on how to
treat marriages deserved respect. But lower courts focused on other parts of his
opinion, ones that emphasized the dignity of gay relationships and the harm that
families of gay couples suffered from bans on same-sex marriage. In a remarkable
and largely unbroken line of more than 40 decisions, state and federal courts
relied on the Windsor decision to rule in favor of same-sex marriage.
The most important exception was a decision in November from a divided
three-judge panel of the United States Court of Appeals for the Sixth Circuit,
in Cincinnati. Writing for the majority, Judge Jeffrey S. Sutton said that
voters and legislators, not judges, should decide the issue.
That decision created a split among the federal appeals courts, a criterion that
the Supreme Court often looks to in deciding whether to hear a case. That
criterion had been missing in October.
The Sixth Circuit’s decision upheld bans on same-sex marriage in Kentucky,
Michigan, Ohio and Tennessee. The Supreme Court agreed to hear petitions seeking
review from plaintiffs challenging those bans in each state.
The court said it will hear two and a half hours of argument, probably in the
last week of April. The first 90 minutes will be devoted to the question of
whether the Constitution requires states “to license a marriage between two
people of the same sex.”
The last hour will concern a question that will be moot if the answer to the
first one is yes: whether states must “recognize a marriage between two people
of the same sex when their marriage was lawfully licensed and performed out of
The court consolidated the four petitions, not all of which had addressed both
Two cases — Obergefell v. Hodges, No. 14-556, from Ohio, and Tanco v. Haslam,
No. 14-562, from Tennessee — challenged state laws barring the recognition of
same-sex marriages performed elsewhere.
“Ohio does not contest the validity of their out-of-state marriages,” the
plaintiffs seeking to overturn the ban wrote in their brief seeking Supreme
Court review. “It simply refuses to recognize them.”
State officials in Ohio had urged the justices to hear the case. “The present
status quo is unsustainable,” they said. “The country deserves a nationwide
answer to the question — one way or the other.”
Gov. Bill Haslam of Tennessee, a Republican, took a different approach from
those of officials in the other states whose cases the Supreme Court agreed to
decide. He did what litigants who have won in the lower court typically do: He
urged the justices to decline to hear the case.
The Michigan case, DeBoer v. Snyder, No. 14-571, was brought by April DeBoer and
Jayne Rowse, two nurses. They sued to challenge the state’s ban on same-sex
In urging the Supreme Court to hear their case, they asked the justices to do
away with “the significant legal burdens and detriments imposed by denying
marriage to same-sex couples, as well as the dignity and emotional well-being of
the couples and any children they may have.”
Gov. Rick Snyder, a Republican, joined the plaintiffs in urging the Supreme
Court to hear the case.
The Kentucky case, Bourke v. Beshear, No. 14-574, was brought by two sets of
plaintiffs. The first group included four same-sex couples who had married in
other states and who sought recognition of their unions. The second group, two
couples, sought the right to marry in Kentucky.
In his response to the petition in the Supreme Court, Gov. Steven L. Beshear, a
Democrat, said he had a duty to enforce the state’s laws. But he agreed that the
Supreme Court should settle the matter and “resolve the issues creating the
legal chaos that has resulted since Windsor.”
A version of this article appears in print on January 17, 2015, on page A1 of
the New York edition with the headline: Justices to Decide Marriage Rights for
Set to Decide Marriage Rights for Gay Couples Nationwide,
JAN 15, 2015,
and the Second Amendment
The New York Times
Supreme Court struck down a ban on handguns by the District of Columbia in 2008,
ruling that there is a constitutional right to keep a loaded handgun at home for
self-defense, the decision was enormously controversial in the legal world. But
the court’s conclusion has generally been accepted in the real world because the
ruling was in tune with popular opinion — favoring Americans’ rights to own guns
but also control of gun ownership.
The text of the Second Amendment creates no right to private possession of guns,
but Justice Antonin Scalia found one in legal history for himself and the other
four conservatives. He said the right is not outmoded even “in a society where
our standing army is the pride of our Nation, where well-trained police forces
provide personal security, and where gun violence is a serious problem.”
It is not just liberals who have lambasted the ruling, but some prominent
conservatives like Judge J. Harvie Wilkinson III of the United States Court of
Appeals for the Fourth Circuit. The majority, he wrote, “read an ambiguous
constitutional provision as creating a substantive right that the Court had
never acknowledged in the more than two hundred years since the amendment’s
enactment. The majority then used that same right to strike down a law passed by
elected officials acting, rightly or wrongly, to preserve the safety of the
citizenry.” He said the court undermined “conservative jurisprudence.”
In the real world, however, criticism has abated in part because the majority
opinion was strikingly respectful of commonplace gun regulations. “Like most
rights,” Justice Scalia said, “the right secured by the Second Amendment is not
And: “nothing in our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and qualifications on the
commercial sale of arms. We also recognize another important limitation on the
right to keep and carry arms” —“prohibiting the carrying of ‘dangerous and
unusual weapons.’ ”
Justice Scalia does not say how federal courts should evaluate such regulations
and the Supreme Court may need to return to this issue soon, to resolve a
substantial disagreement that has arisen in federal appeals courts.
Does the court’s 4-year-old ruling imply “a right to carry a loaded gun outside
the home”? That is what the Seventh Circuit appellate court concluded last week
in striking down an Illinois law that prohibited most people from carrying a
loaded weapon in public.
Or does the Supreme Court’s ruling on handguns support the view that public
interest in safety outweighs an individual’s interest in self-defense because
gun rights are more limited outside the home? That is what the Second Circuit
found last month in upholding a New York State law limiting handgun possession
in public to people who can show a threat to their own safety.
Where “gun violence is a serious problem,” as Justice Scalia said it is in the
United States, the courts must be very cautious about extending the individual
right to own a gun. The justice’s opinion made that clear.
Read related editorials on gun control:
rethinking guns and legislation
Personal Guns and the Second Amendment,
The Human Cost
of the Second Amendment
September 26, 2012
A Gathering of Opinion From Around the Web
By THERESA BROWN
Wisconsin, Aurora, Virginia Tech, Columbine. We all know these
place names and what happened there. By the time this column appears, there may
well be a new locale to add to the list. Such is the state of enabled and
murderous mayhem in the United States.
With the hope of presenting the issue of guns in America in a novel way, I'm
going to look at it from an unusual vantage point: the eyes of a nurse. By that
I mean looking at guns in America in terms of the suffering they cause, because
to really understand the human cost of guns in the United States we need to
focus on gun-related pain and death.
Every day 80 Americans die from gunshots and an additional 120 are wounded,
according to a 2006 article in The Journal of Policy Analysis and Management.
Those 80 Americans left their homes in the morning and went to work, or to
school, or to a movie, or for a walk in their own neighborhood, and never
returned. Whether they were dead on arrival or died later on in the hospital, 80
people's normal day ended on a slab in the morgue, and there's nothing any of us
can do to get those people back.
In a way that few others do, I became aware early on that nurses deal with death
on a daily basis. The first unretouched dead bodies I ever saw were the two
cadavers we studied in anatomy lab. One man, one woman, both donated their
bodies for dissection, and I learned amazing things from them: the sponginess of
lung tissue, the surprising lightness of a human heart, the fabulous intricacy
of veins, arteries, tendons and nerves that keep all of us moving and alive.
I also learned something I thought I already knew: death is scary. I expected my
focus in the lab to be on acquiring knowledge, and it was, but my feelings about
these cadavers intruded also. I had nightmares. The sound of bones being sawed
and snapped was excruciating the day our teaching assistant broke the ribs of
one of them to extract a heart. Some days the smell was so overwhelming I wanted
to run from the lab. Death is the only part of life that is really final, and I
learned about the awesomeness of finality during my 12 weeks with those two very
Of course, in hospitals, death and suffering are what nurses and doctors
struggle against. Our job is to restore people to health and wholeness, or at
the very least, to keep them alive. That's an obvious aim on the oncology floor
where I work, but nowhere is the medical goal of maintaining life more
immediately urgent than in trauma centers and intensive-care units. In those
wards, patients often arrive teetering on the border between life and death, and
the medical teams that receive them have fleeting moments in which to act.
The focus on preserving life and alleviating suffering, so evident in the
hospital, contrasts strikingly with its stubborn disregard when applied to lives
ended by Americans lawfully armed as if going into combat. The deaths from guns
are as disturbing, and as final, as the cadavers I studied in anatomy lab, but
the talk we hear from the gun lobby is about freedom and rights, not life and
Gun advocates say that guns don't kill people, people kill people. The truth,
though, is that people with guns kill people, often very efficiently, as we saw
so clearly and so often this summer. And while there can be no argument that the
right to bear arms is written into the Constitution, we cannot keep pretending
that this right is somehow without limit, even as we place reasonable limits on
arguably more valuable rights like the freedom of speech and due process.
No one argues that it should be legal to shout "fire" in a crowded theater; we
accept this limit on our right to speak freely because of its obvious real-world
consequences. Likewise, we need to stop talking about gun rights in America as
if they have no wrenching real-world effects when every day 80 Americans, their
friends, families and loved ones, learn they obviously and tragically do.
Many victims never stand a chance against a dangerously armed assailant, and
there's scant evidence that being armed themselves would help. Those bodies skip
the hospital and go straight to the morgue. The lucky ones, the survivors - the
120 wounded per day - get hustled to trauma centers and then intensive care
units to, if possible, be healed. Many of them never fully recover.
A trauma nurse I know told me she always looked at people's shoes when they lay
on gurneys in the emergency department. It struck her that life had still been
normal when that patient put them on in the morning. Whether they laced up
Nikes, pulled on snow boots or slid feet into stiletto heels, the shoes became a
relic of the ordinariness of the patient's life, before it turned savage.
So I have a request for proponents of unlimited access to guns. Spend some time
in a trauma center and see the victims of gun violence - the lucky survivors -
as they come in bloody and terrified. Understand that our country's blind
embrace of gun rights made this violent tableau possible, and that it's playing
out each day in hospitals and morgues all over the country.
Before leaving, make sure to look at the patients' shoes. Remember that at the
start of the day, before being attacked by a person with a gun, that patient
lying on a stretcher writhing helplessly in pain was still whole.
Theresa Brown is an oncology nurse and the author
of "Critical Care: A New Nurse Faces Death, Life,
and Everything in
The Human Cost of the Second Amendment,
Embarrassed by Bad Laws
The New York Times
A year ago,
few people outside the world of state legislatures had heard of the American
Legislative Exchange Council, a four-decade-old organization run by right-wing
activists and financed by business leaders. The group writes prototypes of state
laws to promote corporate and conservative interests and spreads them from one
state capital to another.
The council, known as ALEC, has since become better known, with news
organizations alerting the public to the damage it has caused: voter ID laws
that marginalize minorities and the elderly, antiunion bills that hurt the
middle class and the dismantling of protective environmental regulations.
Now it’s clear that ALEC, along with the National Rifle Association, also played
a big role in the passage of the “Stand Your Ground” self-defense laws around
the country. The original statute, passed in Florida in 2005, was a factor in
the local police’s failure to arrest the shooter of a Florida teenager named
Trayvon Martin immediately after his killing in February.
That was apparently the last straw for several prominent corporations that had
been financial supporters of ALEC. In recent weeks, McDonald’s, Wendy’s, Intuit,
Mars, Kraft Foods, Coca-Cola and PepsiCo have stopped supporting the group,
responding to pressure from activists and consumers who have formed a
grass-roots counterweight to corporate treasuries. That pressure is likely to
continue as long as state lawmakers are more responsive to the needs of big
donors than the public interest.
The N.R.A. pushed Florida’s Stand Your Ground law through the State Legislature
over the objections of law enforcement groups, and it was signed by Gov. Jeb
Bush. It allows people to attack a perceived assailant if they believe they are
in imminent danger, without having to retreat. John Timoney, formerly the Miami
police chief, recently called the law a “recipe for disaster,” and he said that
he and other police chiefs had correctly predicted it would lead to more violent
road-rage incidents and drug killings. Indeed, “justifiable homicides” in
Florida have tripled since 2005.
Nonetheless, ALEC — which counts the N.R.A. as a longtime and generous member —
quickly picked up on the Florida law and made it one of its priorities,
distributing it to legislators across the country. Seven years later, 24 other
states now have similar laws, thanks to ALEC’s reach, and similar bills have
been introduced in several other states, including New York.
The corporations abandoning ALEC aren’t explicitly citing the Stand Your Ground
statutes as the reason for their decision. But many joined the group for
narrower reasons, like fighting taxes on soda or snacks, and clearly have little
interest in voter ID requirements or the N.R.A.’s vision of a society where
anyone can fire a concealed weapon at the slightest hint of a threat.
In a statement issued on Wednesday, ALEC bemoaned the opposition it is facing
and claimed it is only interested in job creation, government accountability and
pro-business policies. It makes no mention of its role in pushing a law that
police departments believe is increasing gun violence and deaths. That’s
probably because big business is beginning to realize the Stand Your Ground laws
Embarrassed by Bad Laws, NYT, 16.4.2012,
Religion Above the Law?
The New York Times
By STANLEY FISH
Stanley Fish on education, law and society.
religion clause case recently argued before the Supreme Court — Hosanna-Tabor v.
EEOC — centers on the “ministerial exception,” the doctrine (elaborated over the
last 40 years) that exempts religious associations from complying with neutral,
generally applicable laws in some, but not all, circumstances.
In 2005 Cheryl Perich, a teacher in the Hosanna-Tabor Lutheran Evangelical
School, returned from an extended sick leave (she had been diagnosed with
narcolepsy) to find that her services were no longer wanted. She declined to
resign as requested, and after a resolution satisfactory to her was not
forthcoming she filed a disability discrimination suit. The church responded by
terminating her as a teacher, alleging that its reason was theological, not
retaliatory. The Missouri synod, the church explained, requires its adherents to
resolve disputes rather than bring suit in civil court; in failing to follow
this rule, Perich had transgressed a core Lutheran belief.
The church further argued that as a “commissioned minister” Perich fell under
the ministerial exception even though the bulk of her time was spent teaching
secular subjects. Perich (through her attorneys) replied that her duties were
not primarily religious, and that the assertion of a doctrinal violation was an
afterthought devised to serve as a pretext for an act of retaliation in response
to her having gone to the courts in an effort to secure her rights.
So the issues are, first, was she a minister in the sense that would bring her
under the exception (in which case the state could not intervene to protect
her), and, second, was the doctrine the church invoked as the reason for its
action truly central to its faith? (There are other issues in play but, as we
shall see, two are more than enough.)
The most perspicuous example of a ministerial exception is the Catholic church’s
limitation of membership in the priesthood to males. If a university were to
have a rule that only men could serve as professors, it would be vulnerable to a
suit brought under the anti-discrimination provisions of Title VII of the Civil
Rights Act of 1964. The difference (or so it has been asserted) is that there is
no relationship between professorial skills and gender — a woman can perform the
duties of a teacher of history or chemistry as well as a man — while the
tradition of an all-male priesthood is rooted in religious doctrine. So the
university would be engaged in discrimination pure and simple, whereas the
church’s discrimination is a function of its belief that the all-male priesthood
was initiated by Christ in his choice of the apostles.
Were the state to intervene and declare the tradition of an all-male priesthood
and the doctrine underlying it unconstitutional, it would be forcing the church
to conform to secular norms in violation both of the free exercise clause (the
right of a religion to be governed by its own tenets would be curtailed) and the
establishment clause (the state would in effect have taken over the management
of the church by dictating its hiring practices). (I am rehearsing, not
endorsing, these arguments.)
This clear-cut example — to which both sides in Hosanna-Tabor v. EEOC refer
frequently — may be the only one (and it is only clear-cut because it has behind
it 2,000 years of history). For the question quickly becomes one of boundaries —
how far does the ministerial exception extend? To whom does it apply? Not only
are there no answers to such questions, it is not obvious who is empowered to
If the ministerial exemption is to have any bite, there must be a way of
distinguishing employees central to a religious association’s core activities
from employees who play only a supporting role (the example always given is
janitors). But if the line marking the distinction is drawn by the state, the
state is setting itself up as the arbiter of ecclesiastical organization and
thus falling afoul of the establishment clause. And if the line is drawn by the
religious association, the religious association is being granted the power to
deprive as many of its employees as it likes of the constitutional protections
supposedly afforded to every citizen. It is these equally unpalatable
alternatives — this Scylla and Charybdis — that the justices find themselves
between in oral argument. What a mess!
It is tempting to bypass the mess by getting rid of the ministerial exception
altogether and demanding that churches, synagogues and mosques obey the law just
as everyone else does. But that draconian solution would imply that we get rid
of the religion clause as well; for it would amount to saying that religion
isn’t special, and both sides of the clause insist that it is. The free-exercise
clause tells us that that religion is especially favored and the establishment
clause tells us that it is especially feared (the state should avoid
entanglement with that stuff). How do you honor the claims of free exercise
without bumping up against the establishment clause by allowing exceptions to
laws that everyone else must follow?
The difficulty is sometimes finessed by cabining free exercise in the private
sphere. Free exercise, it is said, is fine as long as its scope is limited to
the expression and profession of belief; but once it crosses over into actions
the state has a duty to regulate, free exercise must give way to the authority
of fair and neutral laws. (This is the holding of a line of cases from Reynolds
v. United States  to Employment Division v. Smith .)
This cutting of the joint works fine for a religion that places minimal burdens
on its adherents and asks only that they attend to the personal relationship
between them and their God. But what about religions that expand the area of
faith to include rites the faithful must celebrate and worldly actions they are
expected to perform? What about religions that refuse to recognize, and even
consider impious, the distinction between the private and the public spheres?
Can the state step in and say, “No, you’re wrong; that practice you’re worried
about isn’t really essential to your faith; give it up so that a system of laws
put in place for everyone isn’t destroyed by exceptions.” Doesn’t society,
Justice Sonia Sotomayor asked at oral argument, “have a right at some point to
say certain conduct is unacceptable, even if religious?”
The question is, at what point? And who gets to decide when that point has been
reached? Indeed there is a question even more basic (and equally unanswerable
except by fiat): who gets to say whether a “certain conduct” is religious and
centrally so? A resolution of the Hosanna-Tabor case, Justice Samuel Alito
observes, “depends on how central a teaching of Lutheranism” the injunction
against “suing in a civil tribunal” really is. Before we can decide (he
continues) whether the church’s asserted reason for terminating Perich is a
pretext, we must determine whether this is in fact “a central tenet of
Lutheranism.” And if we decide that it isn’t, wouldn’t we be “making a judgment
about the relative importance of the Catholic doctrine that only males can be
ordained as priests and the Lutheran doctrine that a Lutheran should not sue the
church in civil courts?” And what authorizes the Court to do that in opposition
to what the churches themselves say?
The same dilemma attends the other vexed question. How, wonders Chief Justice
John Roberts, “do we decide who’s covered by the ministerial exception?” By
getting to “the heart of the ministerial exception,” answers Douglas Laycock,
speaking for the church. But that is simply to relocate the problem in a phrase
that itself demands explication. Who’s to say where the heart is? In some
churches, Justice Anthony Kennedy observes, there aren’t “full time ministers at
all; they’re all ministers.” So does everyone fall under the exception and can a
non-hierarchical church simply declare that none of its members can seek redress
for acts of discrimination because they’re all ministers? Just before the oral
argument concludes, Justice Sotomayor is still awaiting clarification: “So
define minister for me again?”
She will be waiting forever. There is no way out of these puzzles, and that is
exactly the conclusion Justice Stephen Breyer reaches: “I just can’t see a way …
of getting out of the whole thing.” Justice Alito points to the absurdity of
calling in expert witnesses to determine the truth of disputed matters of
religion, but, he asks, “How are we going to avoid that? I just don’t see it.”
Later he concludes that “you just cannot get away from evaluating religious
issues,” which is of course exactly what the courts are not supposed to be
So how will the case turn out? Clearly none of the justices wishes to pronounce
as a theologian. And just as clearly none of them is happy with the prospect of
a ministerial exception without defined limits. Breyer gestures in the direction
of a solution that avoids the hard questions. Grant the Church the core doctrine
it cites and inquire into whether Perich was given adequate notice of it. If she
was, she loses; if she wasn’t, she wins. But no one will be satisfied with that
maneuver, which will itself raise a host of new unanswerable questions in place
of the questions supposedly avoided. All these questions were explored by John
Locke at length in his “Letter Concerning Toleration” (1689), and at one point
Locke gives voice to a weariness we might echo today: Would that “this business
of religion were left alone.” But as long as there is a religion clause, that’s
not an option.
Is Religion Above the Law?, NYT, 17.10.2011,
Davis Is Executed in Georgia
September 21, 2011
The New York Times
By KIM SEVERSON
JACKSON, Ga. — Proclaiming his innocence, Troy Davis was put
to death by lethal injection on Wednesday night, his life — and the hopes of
supporters worldwide — prolonged by several hours while the Supreme Court
reviewed but then declined to act on a petition from his lawyers to stay the
Mr. Davis, 42, who was convicted of murdering a Savannah police officer 22 years
ago, entered the death chamber shortly before 11 p.m., four hours after the
scheduled time. He died at 11:08.
This final chapter before his execution had become an international symbol of
the battle over the death penalty and racial imbalance in the justice system.
“It harkens back to some ugly days in the history of this state,” said the Rev.
Raphael Warnock of Ebenezer Baptist Church, who visited Mr. Davis on Monday.
Mr. Davis remained defiant at the end, according to reporters who witnessed his
death. He looked directly at the members of the family of Mark MacPhail, the
officer he was convicted of killing, and told them they had the wrong man.
“I did not personally kill your son, father, brother,” he said. “All I can ask
is that you look deeper into this case so you really can finally see the truth.”
He then told his supporters and family to “keep the faith” and said to prison
personnel, “May God have mercy on your souls; may God bless your souls.”
One of the witnesses, a radio reporter from WSB in Atlanta, said it appeared
that the MacPhail family “seemed to get some satisfaction” from the execution.
For Mr. Davis’s family and other supporters gathered in front of the prison, the
final hours were mixed with hope, tears and exhaustion. The crowd was buoyed by
the Supreme Court’s involvement, but crushed when the justices issued their
one-sentence refusal to consider a stay.
When the news of his death came, the family left quietly and the 500 or so
supporters began to pack up and leave their position across the state highway
from the prison entrance. Mr. Davis’s body was driven out of the grounds about
During the evening, a dozen supporters of the death penalty, including people
who knew the MacPhail family sat quietly, separated from the Davises and their
supporters by a stretch of lawn and rope barriers.
The appeal to the Supreme Court was one of several last-ditch efforts by Mr.
Davis on Wednesday. Earlier in the day, an official with the National
Association for the Advancement of Colored People said that the vote by the
Georgia parole board to deny clemency to Mr. Davis was so close that he hoped
there might be a chance to save him from execution.
The official, Edward O. DuBose, president of the Georgia chapter, said the group
had “very reliable information from the board members directly that the board
was split 3 to 2 on whether to grant clemency.”
“The fact that that kind of division was in the room is even more of a sign that
there is a strong possibility to save Troy’s life,” he said.
The N.A.A.C.P said it had been in contact with the Department of Justice on
Wednesday, in the hope that the federal government would intervene on the basis
of civil rights violations, meaning irregularities in the original investigation
and at the trial.
Earlier in the day, his lawyers had asked the state for another chance to spare
him: a lie detector test.
But the Georgia State Board of Pardons and Parole, which on Tuesday denied Mr.
Davis’s clemency after a daylong hearing on Monday, quickly responded that there
would be no reconsideration of the case, and the polygraph test was abandoned.
Mr. Davis’s supporters also reached out to the prosecutor in the original case
and asked him to persuade the original judge to rescind the death order.
Benjamin Jealous, the president of the N.A.A.C.P, also tried to ask President
Obama for a reprieve.
The Innocence Project, which has had a hand in the exoneration of 17 death-row
inmates through the use of DNA testing, sent a letter to the Chatham County
district attorney, Larry Chisolm, urging him to withdraw the execution warrant
against Mr. Davis.
Mr. Davis was convicted of the 1989 shooting of Officer MacPhail, who was
working a second job as a security guard. A homeless man called for help after a
group that included Mr. Davis began to assault him, according to court
testimony. When Officer MacPhail went to assist him, he was shot in the face and
Before Wednesday, Mr. Davis had walked to the brink of execution three times.
His conviction came after testimony by some witnesses who later recanted and on
the scantest of physical evidence, adding fuel to those who rely on the Internet
to rally against executions and to question the validity of eyewitness
identification and of the court system itself.
But for the family of the slain officer and others who believed that two
decades’ worth of legal appeals and Supreme Court intervention was more than
enough to ensure justice, it was not an issue of race but of law.
Inside the prison, Officer MacPhail’s widow, Joan MacPhail-Harris, said calling
Mr. Davis a victim was ludicrous.
“We have lived this for 22 years,” she said on Monday. “We are victims.”
She added: “We have laws in this land so that there is not chaos. We are not
killing Troy because we want to.”
Mr. Davis, who refused a last meal, had been in good spirits and prayerful, said
Wende Gozan Brown, a spokeswoman for Amnesty International, who visited him on
Tuesday. She said he had told her his death was for all the Troy Davises who
came before and after him.
“I will not stop fighting until I’ve taken my last breath,” she recounted him as
saying. “Georgia is prepared to snuff out the life of an innocent man.”
The case has been a slow and convoluted exercise in legal maneuvering and death
The state parole board granted him a stay in 2007 as he was preparing for his
final hours, saying the execution should not proceed unless its members “are
convinced that there is no doubt as to the guilt of the accused.” The board has
since added three new members.
In 2008, his execution was about 90 minutes away when the Supreme Court stepped
in. Although the court kept Mr. Davis from execution, it later declined to hear
This time around, the case catapulted into the national consciousness with
record numbers of petitions — more than 630,000 — delivered to the board to stay
the execution, and the list of people asking for clemency included former
President Jimmy Carter, Archbishop Desmond Tutu, 51 members of Congress,
entertainment figures like Cee Lo Green and even some death penalty supporters,
including William S. Sessions, a former F.B.I. director.
Kim Severson reported from Jackson,
and John Schwartz from New York.
Davis Is Executed in
The First Amendment, Upside Down
June 27, 2011
The New York Times
The Supreme Court decision striking down public matching funds in Arizona’s
campaign finance system is a serious setback for American democracy. The opinion
written by Chief Justice John Roberts Jr. in Monday’s 5-to-4 decision shows
again the conservative majority’s contempt for campaign finance laws that aim to
provide some balance to the unlimited amounts of money flooding the political
In the Citizens United case, the court ruled that the government may not ban
corporations, unions and other moneyed institutions from spending in political
campaigns. The Arizona decision is a companion to that destructive landmark
ruling. It takes away a vital, innovative way of ensuring that candidates who do
not have unlimited bank accounts can get enough public dollars to compete
Arizona’s campaign finance law provided a set amount of money in initial public
support for candidates who opted into its financing system, depending on the
type of election. If a candidate faced a rival who opted out, the state would
match the spending of the privately financed candidate and independent groups
supporting him, up to triple the initial amount. Once that limit is reached, the
publicly financed candidate receives no other public funds and is barred from
using private contributions, no matter how much more the privately financed
Chief Justice Roberts found that this mechanism “imposes a substantial burden”
on the free speech rights of candidates and independent groups because it
penalized them when their spending triggered additional money for a candidate
who opted into the public program. The court turns the First Amendment on its
head. It denies the actual effect of the Arizona law, which is not to limit
spending but to increase it with public funds. The state program expands
political speech by giving all candidates, not just the wealthy, a chance to run
— while allowing privately financed candidates to spend as much as they want.
Justice Elena Kagan, writing in dissent, dissects the court’s willful
misunderstanding of the result. Rather than a restriction on speech, she says,
the trigger mechanism is a subsidy with the opposite effect: “It subsidizes and
produces more political speech.” Those challenging the law, she wrote, demanded
— and have now won — the right to “quash others’ speech” so they could have “the
field to themselves.” She explained that the matching funds program — unlike a
lump sum grant to candidates — sensibly adjusted the amount disbursed so that it
was neither too little money to attract candidates nor too large a drain on
Arizona’s system was a response to a history of terrible corruption in the
state’s politics. Rather than seeing the law as a way to control corruption, the
court struck it down as a limit on the right of wealthy candidates and
independent groups to speak louder than others.
The ruling left in place other public financing systems without such trigger
provisions, including public financing for presidential elections. It shows,
however, how little the court cares about the interest of citizens in Arizona or
elsewhere in keeping their electoral politics clean.
The First Amendment,
Court Allows Suit
to Force DNA Testing of Evidence
The New York Times
By ADAM LIPTAK
— The Supreme Court on Monday made it easier for inmates to sue for access to
DNA evidence that could prove their innocence.
The legal issue in the case was tightly focused, and quite preliminary: Was Hank
Skinner, a death row inmate in Texas, entitled to sue a prosecutor there under a
federal civil rights law for refusing to allow testing of DNA evidence in his
case? By a 6-to-3 vote, the court said yes, rejecting a line of lower-court
decisions that had said the only proper procedural route for such challenges was
a petition for habeas corpus.
In her opinion for the majority, Justice Ruth Bader Ginsburg emphasized how
narrowly the court was ruling. Allowing Mr. Skinner to sue, she said, is not the
same thing as saying he should win his suit.
Justice Ginsburg added that a 2009 decision, District Attorney’s Office v.
Osborne, had severely limited the kinds of claims that prisoners who are seeking
DNA evidence can make. The Osborne decision, Justice Ginsburg wrote, “left slim
room for the prisoner to show that the governing state law denies him procedural
The case that was decided on Monday, Skinner v. Switzer, No. 09-9000, arose from
three killings on New Year’s Eve in 1993. Mr. Skinner contends that he was
asleep on a sofa in a vodka-and-codeine haze that night when his girlfriend,
Twila Busby, and her two sons were killed. Mr. Skinner says that an uncle of Ms.
Busby, Robert Donnell, who has since died, was probably the killer.
Prosecutors tested some but not all of the evidence from the crime scene. Some
of the test results pointed toward Mr. Skinner, who never denied that he was
present, but some of the results did not. His trial lawyer, wary of what
additional testing would show, did not ask for it.
In the years since Mr. Skinner was convicted, prosecutors have blocked his
requests to test blood, fingernail scrapings and hair found at the scene. In
their Supreme Court briefs, prosecutors accused Mr. Skinner of playing games
with the system, dragging out his case and seeking to impose unacceptable
burdens on government resources and the victims’ dignity. They added that
testing would be pointless because “no item of evidence exists that would
conclusively prove that Skinner did not commit the murder.”
In 2001, Texas enacted a law allowing post-conviction DNA testing in limited
circumstances. State courts in Texas rejected Mr. Skinner’s requests under the
law on the ground that he was at fault for not having sought testing earlier.
Mr. Skinner then sued in federal court under a federal civil rights law known as
Section 1983, saying that the Texas law violated his right to due process. That
suit was rejected in the lower federal courts on the ground that the proper
vehicle for a challenge was a petition for habeas corpus.
Section 1983 suits are often more attractive to prisoners than habeas petitions
because Congress and the Supreme Court have placed significant barriers in the
path of inmates seeking habeas corpus.
Justice Ginsburg wrote that a Section 1983 suit was available in cases where the
relief sought by the inmate would not “necessarily imply the invalidity of his
conviction or sentence.” Since there was no telling whether the results of the
tests Mr. Skinner sought would establish his guilt, clear him or be
inconclusive, the suit was proper, she wrote.
Habeas petitions are appropriate, on the other hand, she wrote, where inmates
seek “immediate or speedier release from confinement.”
Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Stephen G.
Breyer, Sonia Sotomayor and Elena Kagan joined the majority opinion.
Justice Clarence Thomas, joined by Justices Anthony M. Kennedy and Samuel A.
Alito Jr., dissented. Justice Thomas predicted that the ruling on Monday would
flood the courts with civil rights suits. “What prisoner would not avail himself
of this additional bite at the apple?” Justice Thomas asked.
Justice Ginsburg responded that the decision was unlikely to prompt “any
litigation flood or even rainfall.”
Supreme Court Allows Suit to Force DNA Testing of
Evidence, NYT, 7.3.2011,
military funeral anti-gay protests
| Wed Mar 2, 2011
By James Vicini
(Reuters) - The Supreme Court ruled on Wednesday that members of a
fundamentalist church have a free-speech right to hold anti-gay protests at
military funerals to promote their view that God hates America for tolerating
In a case pitting free-speech versus privacy rights, the nation's highest court
held that the picketing at a private funeral and even hurtful protest messages
were protected by the U.S. Constitution's First Amendment.
The decision by an 8-1 vote was the latest in a long line of Supreme Court
rulings that free-speech rights protected even outrageous or offensive conduct,
including the burning of the American flag.
The ruling was a defeat for Albert Snyder, the father of a Marine killed in Iraq
in 2006. He sued after the family's funeral service at a Roman Catholic Church
in Westminster, Maryland, drew unwanted protests by members of the Westboro
Baptist Church in Topeka, Kansas.
The protesters carried signs that stated, "God Hates You," "You Are Going To
Hell," and "Thank God for Dead Soldiers."
Westboro Pastor Fred Phelps and other church members have protested hundreds of
funerals of military members killed in Iraq or Afghanistan as part of their
religious view that God is punishing America for its tolerance of gays and
Phelps founded the church in 1955 and it has about 70 members made up mostly of
In the court's opinion, Chief Justice John Roberts said the church's beliefs and
its signs related to issues of public importance, including political and moral
conduct in the United States.
Roberts said the country may not agree with the church's views, but said it
cannot react to the pain the protesters inflicted by punishing the speaker.
"As a nation, we have chosen a different course -- to protect even hurtful
speech on public issues to ensure that we do not stifle public debate," he said.
Roberts said the picketers peacefully displayed their signs for about 30 minutes
before the funeral, sang hymns and recited Bible verses. None of the picketers
entered church property or went to the cemetery and they did not yell or use
Only Justice Samuel Alito dissented from the ruling. He said the protesters
could have gone to the White House, the U.S. Capitol, the Pentagon or the
Supreme Court instead of disrupting the family's funeral.
"Our profound national commitment to free and open debate is not a license for
the vicious verbal assault that occurred in this case," Alito wrote.
Fordham University law professor Abner Greene in New York said, "The court has
consistently ruled for speech interests over privacy interests. ... It's not
really all that surprising."
Snyder sued in 2007 and said he had the right to bury his son in a private,
dignified manner, free from unwanted disruption or harassment.
A jury awarded Snyder $10.9 million in damages for invasion of privacy and
infliction of emotional distress, an amount cut by a federal judge to $5
The Supreme Court ruled Snyder cannot collect any damages and overturned the
jury's verdict on free-speech grounds.
The American Civil Liberties Union and more than 20 news organizations supported
the church, saying free-speech rights protected even outrageous, offensive or
Veterans groups, more than 40 U.S. senators and nearly all of the 50 states that
now limit protests at military funerals supported Snyder.
Sarah Palin, the 2008 Republican vice presidential nominee, criticized the
ruling, saying on Twitter it lacked "common sense & decency" by allowing hate
messages at military funerals.
The Supreme Court case is Snyder v. Phelps, No. 09-751.
Supreme Court allows military funeral anti-gay protests,
and the Court
The New York Times
comes to pushing the line between law and politics, Justices Antonin Scalia and
Clarence Thomas each had a banner month in January.
Scalia, who is sometimes called “the Justice from the Tea Party,” met behind
closed doors on Capitol Hill to talk about the Constitution with a group of
representatives led by Representative
Bachmann of the House Tea Party Caucus.
Justice Thomas, confirming his scorn for concern about conflicts of interest and
rules designed to help prevent them, acknowledged that he has failed to comply
with the law for the past six years by not disclosing his wife’s income from
In Supreme Court opinions, they showed how their impatience for goals promoted
in conservative politics is infecting their legal actions. They joined in an
unusual dissent from a court decision not to take a case about the commerce
clause that turned into polemic in favor of limited government. In an important
privacy case, NASA v. Nelson, they insisted the court should settle a
constitutional issue it didn’t need to.
Constitutional law is political. It results from choices about concerns of
government that political philosophers ponder, like liberty and property. When
the court deals with major issues of social policy, the law it shapes is the
most inescapably political.
To buffer justices from the demands of everyday politics, however, they receive
tenure for life. The framers of our Constitution envisioned law gaining
authority apart from politics. They wanted justices to exercise their judgment
independently — to be free from worrying about upsetting the powerful and
certainly not to be cultivating powerful political interests.
A petition by Common Cause to the Justice Department questioned whether Justices
Scalia and Thomas are doing the latter. It asked whether the court’s ruling a
year ago in the Citizens United case, unleashing corporate money into politics,
should be set aside because the justices took part in a political gathering of
the conservative corporate money-raiser Charles Koch while the case was before
If the answer turns out to be yes, it would be yet more evidence that the court
must change its policy — or rather its nonpolicy — about recusal.
One possible reform would be to require a justice to explain, in a public
statement and in detail, any decision to recuse or not. It would be even better
to set up a formal review process. A group of other justices — serving in
rotation or randomly chosen — could review each decision about recusal and have
the power to overrule it.
In the NASA case, the two justices issued opinions on a unanimous ruling that
NASA can require background checks for contract workers. Six justices (Justice
Elena Kagan was recused) said the court didn’t need to decide whether there is a
right to informational privacy.
Justices Scalia and Thomas, on the other hand, insisted that the Constitution
doesn’t protect such a right and the court should settle the issue. The Scalia
opinion is a rambling, sarcastic political tirade. The Thomas opinion is short
but caustic. This is the sort of thing that gets these justices invited to
gatherings like Mr. Koch’s.
About Justice Scalia, the legal historian Lucas Powe said, “He is taking
political partisanship to levels not seen in over half a century.” Justice
Thomas is not far behind.
Both seem to have trouble with the notion that our legal system was designed to
set law apart from politics precisely because they are so closely tied.
Politics and the Court, NYT, 4.2.2011,
Va. to Ask Supreme Court
to Rule on Health Law
February 3, 2011
The New York Times
By KEVIN SACK
Virginia’s attorney general announced on Thursday that he hoped to bypass an
initial appellate review by asking the United States Supreme Court to consider
the constitutionality of the Obama health care law on an expedited basis.
Only rarely does the Supreme Court grant such hearings, and it has already
rejected a similar request in another legal challenge to the health care act.
But the commonwealth’s attorney general, Kenneth T. Cuccinelli II, said the
legal and governmental confusion sown by conflicting lower-court opinions
demanded a rapid resolution.
“Currently, state governments and private businesses are being forced to expend
enormous amounts of resources to prepare to implement a law that, in the end,
may be declared unconstitutional,” Mr. Cuccinelli said in a statement.
In December, Mr. Cuccinelli became the first plaintiff to win a challenge to the
health care act, when Judge Henry E. Hudson of Federal District Court in
Richmond, Va., struck down a provision that requires most Americans to obtain
insurance. The judge ruled that the insurance requirement exceeded Congress’s
authority under the Constitution to regulate interstate commerce.
Two other federal judges, including another in Virginia, had previously upheld
the law. Then on Monday, Judge Roger Vinson of Federal District Court in
Pensacola, Fla., joined Judge Hudson in striking down the insurance mandate. But
unlike Judge Hudson, Judge Vinson invalidated the entire law.
The law, enacted last year by a Democratic Congress and signed in March by
President Obama, aims to cover 32 million uninsured Americans by ending insurer
discrimination against those with pre-existing health conditions and by
providing government subsidies to make coverage affordable.
The Justice Department, which is defending the Obama administration in the
health litigation, has already filed a notice of appeal of Judge Hudson’s ruling
in the Court of Appeals for the Fourth Circuit in Richmond. Because of the
geographic distribution of the four lower court rulings, three different courts
of appeal are likely to hear the cases on their way to the Supreme Court.
Tracy Schmaler, a spokeswoman for the Justice Department, said the agency
continued “to believe this case should follow the ordinary course” so that legal
arguments could be fully developed before being presented to the Supreme Court.
She pointed out that the insurance mandate does not take effect until 2014 and
that the Fourth Circuit has already expedited its schedule by setting oral
arguments for May.
The Justice Department also is considering whether to seek a stay of the Florida
decision in order to clarify confusion about whether the health care act remains
in effect in the 26 states that are plaintiffs in the case.
Mr. Cuccinelli said he recognized that an expedited Supreme Court review would
be exceptional. But he said that this case and the others challenging the
constitutionality of the Patient Protection and Affordable Care Act, as the law
is known, were “truly exceptional in their own right.”
In November, the Supreme Curt refused to review another challenge to the health
care act that had been dismissed by a California judge on grounds that the
plaintiffs did not have standing to sue.
Va. to Ask Supreme Court
to Rule on Health Law, NYT, 3.2.2011,
Important past Supreme Court
| Wed Mar 2, 2011
(Reuters) - The Supreme Court ruled on Wednesday that a church has the
free-speech right to hold anti-gay protests at military funerals to promote its
view that God hates America for its tolerance of homosexuals.
The 8-1 ruling was a victory for the Westboro Baptist Church in Topeka, Kansas,
whose members have picketed hundreds of funerals of military members killed in
Iraq or Afghanistan as part of their religious belief that God is punishing
America for tolerating gays and lesbians.
Chief Justice John Roberts wrote in the opinion that the United States has
chosen to protect even hurtful speech on public issues to make sure public
debate is not stifled. He made clear the court was not agreeing with Westboro's
Following are some similar previous Supreme Court free-speech cases:
THE REVEREND JERRY FALWELL
The Supreme Court in 1988 threw out a $200,000 award to the Reverend Jerry
Falwell over a Hustler magazine parody that said his first sexual encounter
occurred with his mother in an outhouse.
The court ruled that Falwell, a popular televangelist who was a leader of the
conservative Christian movement, was a public figure and therefore could not
collect libel damages for the infliction of emotional distress. Falwell died in
The latest decision cited the precedent from the Falwell case.
NAZIS WIN RIGHT TO MARCH IN JEWISH SUBURB
American Nazis won the right more than 30 years ago to march in the heavily
Jewish Chicago suburb of Skokie, Illinois, which had a significant population of
The American Civil Liberties Union had argued in favor of a Nazi group that
sought a permit to march in their uniforms displaying swastikas.
The Supreme Court reversed lower-court rulings that had blocked the march. A
U.S. appeals court in Chicago ultimately ruled that free-speech rights covered
The civil liberties group also supported the Westboro Church on the grounds that
free-speech rights protected even outrageous or offensive messages.
BURNING AS PROTECTED FREE SPEECH
The Supreme Court ruled in 1989 that burning the American flag was an act of
symbolic speech protected by the First Amendment of the Constitution.
The court, by a 5-4 vote, overturned the conviction of Gregory Lee Johnson, who
had burned a flag as part of a protest during the Republican Party convention in
1984 in Dallas.
"The government may not prohibit the expression of an idea simply because
society finds the idea itself offensive or disagreeable," the court said in its
James Vicini in Washington,
Editing by Eric Beech)
Factbox: Important past Supreme Court free-speech cases,
That Health Law Violates Constitution
The New York Times
By KEVIN SACK
federal judge ruled on Monday that it was unconstitutional for Congress to enact
a health care law that required Americans to obtain commercial insurance,
evening the score at 2 to 2 in the lower courts as conflicting opinions begin
their path to the Supreme Court.
But unlike a Virginia judge in December, Judge Roger Vinson of Federal District
Court in Pensacola, Fla., concluded that the insurance requirement was so
“inextricably bound” to other provisions of the Affordable Care Act that its
unconstitutionality required the invalidation of the entire law.
“The act, like a defectively designed watch, needs to be redesigned and
reconstructed by the watchmaker,” Judge Vinson wrote.
The judge declined to immediately enjoin, or suspend, the law pending appeals, a
process that could last two years. But he wrote that the federal government
should adhere to his declaratory judgment as the functional equivalent of an
injunction. That left confusion about how the ruling might be interpreted in the
26 states that are parties to the legal challenge.
The insurance mandate does not take effect until 2014. But many new regulations
are already operating, like requirements that insurers cover children with
pre-existing health conditions and eliminate lifetime caps on benefits. States
are also preparing for a major expansion of Medicaid eligibility and the
introduction of health insurance exchanges in 2014.
David B. Rivkin Jr., a lawyer for the states, said the ruling relieved the
plaintiff states of any obligation to comply with the health law. “With regard
to all parties to this lawsuit, the statute is dead,” Mr. Rivkin said.
But White House officials declared that the opinion should not deter the
continuing rollout of the law. “Implementation would continue apace,” a senior
administration official said. “This is not the last word by any means.”
At the same time, Stephanie Cutter, an assistant to the president, noted in a
post on the White House blog that the ruling had struck down the entire law. She
called it “a plain case of judicial overreaching,” and added, “The judge’s
decision puts all of the new benefits, cost savings and patient protections that
were included in the law at risk.”
The Justice Department, which represents the Obama administration in the
litigation, said it was exploring options to clarify the uncertainty, including
requesting a stay of the decision, either from Judge Vinson or from the United
States Court of Appeals for the Eleventh Circuit.
On Capitol Hill, Republicans sent out a stream of e-mails praising the ruling,
while Senator Richard J. Durbin, Democrat of Illinois, said he would convene a
Judiciary Committee hearing on Wednesday to examine the constitutionality of the
In his 78-page opinion, Judge Vinson held that the insurance requirement
exceeded the regulatory powers granted to Congress under the Commerce Clause of
the Constitution. He wrote that the provision could not be rescued by an
associated clause in Article I that gives Congress broad authority to make laws
“necessary and proper” to carrying out its designated responsibilities.
“If Congress can penalize a passive individual for failing to engage in
commerce, the enumeration of powers in the Constitution would have been in
vain,” the judge asserted.
In a silver lining for the Obama administration, Judge Vinson rejected a second
claim that the new law violated state sovereignty by requiring states to pay for
a fractional share of the planned Medicaid expansion.
The judge’s ruling came in the most prominent of more than 20 legal challenges
to the sweeping health law, which was signed last March by President Obama.
The plaintiffs include governors and attorneys general from 26 states, all but
one of them Republicans, as well as the National Federation of Independent
Business, which represents small companies. Officials from six states joined the
lawsuit in January after shifts in party control brought by November’s
The ruling by Judge Vinson, a senior judge who was appointed by President Ronald
Reagan, solidified the divide in the health litigation among judges named by
Republicans and those named by Democrats.
In December, Judge Henry E. Hudson of Federal District Court in Richmond, Va.,
who was appointed by President George W. Bush, became the first to invalidate
the insurance mandate. Two other federal judges named by President Bill Clinton,
a Democrat, have upheld the law.
Judge Vinson’s opinion hangs on a series of Supreme Court decisions that have
defined the limits of the Commerce Clause by granting Congress authority to
regulate “activities that substantially affect interstate commerce.”
The plaintiffs characterized the insurance requirement as an unprecedented
effort to regulate inactivity because citizens would be assessed an income tax
penalty for failing to buy a product.
Justice Department lawyers responded that a choice not to obtain health
insurance was itself an active decision that, taken in the aggregate, shifted
the cost of caring for the uninsured to hospitals, governments and privately
In his decision, Judge Vinson wrote, “It would be a radical departure from
existing case law to hold that Congress can regulate inactivity under the
Commerce Clause.” If Congress has such power, he continued, “it is not
hyperbolizing to suggest that Congress could do almost anything it wanted.”
The Pensacola case is now likely to head to the Eleventh Circuit in Atlanta,
considered one of the country’s most conservative appellate benches. The
Richmond case is already with another conservative court, the United States
Court of Appeals for the Fourth Circuit in Richmond, which has set oral
arguments for May.
That court will consider diametrically opposed rulings from courthouses situated
116 miles apart, as it was a judge in Lynchburg, Va., Norman K. Moon, who issued
one of the two decisions upholding the law. Meanwhile, the United States Court
of Appeals for the Sixth Circuit in Cincinnati is already receiving briefs on
the other decision backing the law, which was delivered by Judge George C. Steeh
Judge Vinson’s ruling further arms Republicans in Congress who are waging a
fierce campaign against the health care act. The new Republican majority in the
House voted this year to repeal the law, a largely symbolic measure that is
given no chance in the Democratic-controlled Senate.
The Obama administration argues that without the insurance mandate consumers
might simply wait until they are sick to enroll, undercutting the actuarial
soundness of risk pooling and leading to an industry “death spiral.”
But the mandate’s legal and political problems have prompted a few Democratic
senators to join Republicans in exploring alternatives that would encourage
citizens to buy insurance without requiring it.
For instance, people could be given a narrow window to enroll, and those who
miss the deadline would face lengthy waiting periods for coverage.
Alternately, those who apply late and are eligible for government tax credits
under the law coverage could be penalized through a reduction of their
Sheryl Gay Stolberg contributed reporting.
Federal Judge Rules That Health Law Violates Constitution,
Drowning in Campaign Cash
October 30, 2010
The New York Times
Shrill political attacks have saturated the airwaves for months, but behind
them is the real problem of this demoralizing election: the dark flow of
dollars, often secretly provided by donors with very special interests.
The amount is staggering: Nearly $4 billion is likely to be spent once the final
figures are in, according to the Center for Responsive Politics, far more than
in the 2006 midterms, which cost $2.85 billion. It could even eclipse the $4.14
billion spent in the 2004 presidential campaign.
Much of this is a direct creation of the Supreme Court under Chief Justice John
G. Roberts Jr., which has cut away nearly all campaign finance restrictions.
The court’s 2007 decision in Wisconsin Right-to-Life gave corporations and
unions the right to run advocacy ads in the last 60 days of a campaign — as long
as they did not expressly advocate the election or defeat of a specific
candidate. This year’s Citizens United decision effectively ended even that last
restriction, and pulled away all limits on corporate spending in campaigns.
Building on those decisions, political operatives — mainly Republicans — decided
they could collect unlimited amounts of money through independent, tax- exempt
organizations known as 501(c) groups, without revealing the source of the
By offering anonymity and no limits, these groups (with gauzily apolitical
names, like American Future Fund and American Action Network) have been able to
raise and spend extraordinary sums. In the 2006 midterms, outside groups not
affiliated with political parties spent $51.6 million; so far this year, such
groups have spent $280 million. About 60 percent of that spending is from
undisclosed donors, most of which has benefited Republicans. Democratic
candidates raised huge amounts, but the sources for most of it were disclosed.
Combining both traditional and outside money, Republicans have slightly
outraised Democrats, $1.64 billion to $1.59 billion, but there is more to be
While large secret donations have been legalized, it is not clear that the
501(c) groups spending the money on barrages of attack ads are playing by the
last, threadbare rules. The tax code requires that these groups not be
“primarily engaged” in political advocacy, but neither the Internal Revenue
Service nor the Federal Election Commission has made any apparent effort to
investigate what other purpose they might have. Some groups have suggested they
would begin nonpolitical activities — after the election.
What is clear is that the new world of unlimited spending, both open and secret,
confers huge benefits on wealthy individuals, corporations and unions. In a
striking example, reported by ABC News last week, Terry Forcht, a prominent
Kentucky banker and nursing home executive, helped pay for a series of attack
ads against Attorney General Jack Conway, the Democratic Senate candidate. Mr.
Conway is prosecuting one of Mr. Forcht’s nursing homes for allegedly covering
up sexual abuse.
Mr. Forcht has directly raised at least $21,000 for Mr. Conway’s Republican
opponent, Rand Paul. He serves as the banker for American Crossroads, the
shadowy group of nonprofits organized by Karl Rove that has spent nearly $30
million to defeat Democrats and more than $1 million to defeat Mr. Conway.
This year, of course, is just batting practice for 2012. Congress still has time
to act. The first step is to pass the Disclose Act, which would require the
identification of large campaign donors. The second is to create a public
financing system for Congressional candidates that provides extra money to those
who rely on small donations.
Voters say — again and again — that they want to break the hold of special
interests and end pay-to-play politics. And politicians promise — again and
again — that they will. Four billion dollars and one particularly ugly campaign
later, there can be no more excuses.
Drowning in Campaign
Cash, NYT, 30.10.2010,
October 28, 2010
The New York Times
Two years ago, when a splintered Supreme Court approved lethal injection as a
means of execution in Baze v. Rees, Justice John Paul Stevens made a prophecy.
Instead of ending the controversy, he said, the ruling would raise questions
“about the justification for the death penalty itself.” Since then, evidence has
continued to mount, showing the huge injustice of the death penalty — and the
particular barbarism of this form of execution.
In the case of Jeffrey Landrigan, convicted of murder and executed by Arizona on
Tuesday, the system failed him at almost every level, most disturbingly at the
Supreme Court. In a 5-to-4 vote, the court’s conservative majority allowed the
execution to proceed based on a stark misrepresentation.
Of the 35 states that allow the death penalty, all now execute by lethal
injection. Most use a sequence of drugs that is supposed to provide a painless
death, but when it is administered incorrectly it causes agony that amounts to
torture. Veterinarians say the method doesn’t meet the standard for euthanizing
Arizona’s plan for Mr. Landrigan’s execution was thrown off by a shortage of
sodium thiopental, one of three drugs used in standard lethal injections. The
only maker approved by the Food and Drug Administration hasn’t been able to get
a critical ingredient for almost a year. The state obtained the drug from a
When Mr. Landrigan tried to ascertain its effectiveness for sedating him so he
wouldn’t feel the pain of the other drugs, Arizona refused to divulge the
information. After the state defied four orders from a federal district judge to
produce it, the judge stayed the execution.
When the case got to the Supreme Court, the majority overturned the stay, saying
there was “no evidence in the record to suggest that the drug obtained from a
foreign source is unsafe.” There was no evidence — either way — because Arizona
defied orders to provide it.
The court’s whitewash highlights the arbitrariness of Mr. Landrigan’s execution.
Cheryl Hendrix, the retired Arizona judge who presided over his trial, recently
said, “Mr. Landrigan would not have been sentenced to death” if she had been
given the medical evidence of the defendant’s brain damage and other factors.
Mr. Landrigan’s inept trial lawyer didn’t submit the evidence.
She no longer had the power to alter his fate, but, in an affidavit for the
Arizona Board of Executive Clemency, Ms. Hendrix supported his plea to have his
death sentence commuted to life. “Since the courts have not corrected this
injustice,” she stated, “I am compelled to submit this declaration on Mr.
Landrigan’s behalf.” The Supreme Court should have upheld the stay of execution
and forced the state to deliver the information called for. It failed,
No Justification, NYT,
Woman on Death Row
Runs Out of Appeals
September 21, 2010
The New York Times
By ERIK ECKHOLM
“She is clearly the head of this serpent,” the judge said of
Teresa Lewis in 2003 when he sentenced her to death by lethal injection,
describing her as the mastermind of the cold-blooded murders of her husband and
his son as they slept in rural Virginia.
Late on Tuesday, the Supreme Court denied her last-ditch appeal for a stay, and
Ms. Lewis, now 41, is scheduled to die on Thursday night at 9. Her case has
drawn unusual attention, not only because she would be the first woman executed
in the United States since 2005, and the first in Virginia since 1912, but also
because of widely publicized concerns about the fairness of her sentence. Ms.
Lewis waited this week in her prison cell, reportedly soothed by intense
Her lawyers say her original defense against the death penalty was bungled. They
also cite new evidence suggesting that Ms. Lewis — whose I.Q. of 72 is described
by psychologists as borderline retarded — was manipulated by her
co-conspirators, who were out to share in savings and life insurance worth
hundreds of thousands of dollars. Her partners in the crimes, two young men who
fired the guns, received sentences of life without parole in what her lawyers
call a “gross disparity” in punishment.
On Tuesday, blocking her only other chance for a reprieve, Gov. Bob McDonnell
said for the second time that he would not grant clemency for what he called her
Ms. Lewis’s guilt is not at issue. By her own admission, she plotted with the
men to shoot her husband, Julian C. Lewis Jr., 51, and his son, Charles J.
Lewis, 25, a reservist about to be deployed abroad.
Ms. Lewis, then 33, met her co-defendants, Matthew J. Shallenberger, who was 21,
and his trailer-mate, Rodney L. Fuller, 20, in a line at Wal-Mart and, according
to court records, they quickly started meeting and hatching murder plans. She
became particularly attached to Mr. Shallenberger, showering him with gifts, but
she had sex with both men and also encouraged her 16-year-old daughter to have
sex with Mr. Fuller, the records say.
Ms. Lewis withdrew $1,200 and gave it to the two men to buy two shotguns and
another weapon. The night of the murders, she admitted, she left a trailer door
unlocked. Later, she stood by as the intruders blasted the victims with repeated
shotgun blasts. As her husband lay dying, court records say, she took out his
wallet and split the $300 she found with Mr. Shallenberger. She waited at least
45 minutes to call 911.
Her husband was moaning “baby, baby, baby” when a sheriff’s deputy arrived and
he said, “My wife knows who done this to me,” before he died, the records
After initially claiming innocence, Ms. Lewis confessed and led police to the
gunmen. In 2003, she was sentenced by Judge Charles J. Strauss of Pittsylvania
Circuit Court, who concluded that Ms. Lewis had directed the scheme, enticing
the killers with sex and promises of money and showing the “depravity of mind”
that would justify a death sentence. In separate proceedings, the same judge
gave life sentences to the gunmen.
Ms. Lewis’s lawyers later unearthed what they called compelling evidence that it
was Mr. Shallenberger who did the enticing, including his own statements that he
devised the murder plan and a prison letter to a girlfriend in which he said he
“got her to fall in love with me so she would give me the insurance money.” Mr.
Shallenberger killed himself in prison in 2006.
But prosecutors, in fighting subsequent appeals, said that before and after the
crimes, Ms. Lewis had engaged in concerted actions to obtain money from her
husband’s account and then from insurance, showing that she was far more capable
than her lawyers now assert.
None of the evidence suggesting Mr. Shallenberger’s dominant role has been
presented in court, but it was provided to Mr. McDonnell in a plea for clemency,
along with details of her limited intellect, her diagnosis of “dependent
personality disorder” and her addiction to pain pills.
When he first turned down the appeal on Friday, Mr. McDonnell noted that appeals
courts have upheld her sentence and that “no medical professional has concluded
that Teresa Lewis meets the medical or statutory definition of mentally
Her lawyers argued in their petition to the Supreme Court that the case should
be reopened because her original defense lawyer failed to explore whether her
low intelligence and her psychiatric vulnerability would have left her able to
plan the scheme. State prosecutors disagreed.
Opponents of the death penalty, and others who feel Ms. Lewis’s sentence is
unjust, plan to hold vigils on Thursday, including one outside the Greensville
Correctional Center in Jarratt, Va., where the execution is to take place.
“She said she is leaving it in the hands of Jesus,” her lead defense lawyer,
James E. Rocap III, of Steptoe & Johnson in Washington, said on Tuesday, before
she heard of the 7-to-2 decision by the Supreme Court not to consider her case.
Woman on Death Row
Runs Out of Appeals, NYT, 21.9.2010,
Justices Say Gun Rights Apply Locally
The New York Times
June 28, 2010
By THE ASSOCIATED PRESS
WASHINGTON (AP) -- The Supreme Court held Monday that the
Constitution's Second Amendment restrains government's ability to significantly
limit "the right to keep and bear arms," advancing a recent trend by the John
Roberts-led bench to embrace gun rights.
By a narrow, 5-4 vote, the justices signaled, however, that less severe
restrictions could survive legal challenges.
Writing for the court in a case involving restrictive laws in Chicago and one of
its suburbs, Justice Samuel Alito said that the Second Amendment right "applies
equally to the federal government and the states."
The court was split along familiar ideological lines, with five
conservative-moderate justices in favor of gun rights and four liberals opposed.
Chief Justice Roberts voted with the majority.
Two years ago, the court declared that the Second Amendment protects an
individual's right to possess guns, at least for purposes of self-defense in the
That ruling applied only to federal laws. It struck down a ban on handguns and a
trigger lock requirement for other guns in the District of Columbia, a federal
city with a unique legal standing. At the same time, the court was careful not
to cast doubt on other regulations of firearms here.
Gun rights proponents almost immediately filed a federal lawsuit challenging gun
control laws in Chicago and its suburb of Oak Park, Ill, where handguns have
been banned for nearly 30 years. The Brady Center to Prevent Gun Violence says
those laws appear to be the last two remaining outright bans.
Lower federal courts upheld the two laws, noting that judges on those benches
were bound by Supreme Court precedent and that it would be up to the high court
justices to ultimately rule on the true reach of the Second Amendment.
The Supreme Court already has said that most of the guarantees in the Bill of
Rights serve as a check on state and local, as well as federal, laws.
Monday's decision did not explicitly strike down the Chicago area laws, ordering
a federal appeals court to reconsider its ruling. But it left little doubt that
they would eventually fall.
Still, Alito noted that the declaration that the Second Amendment is fully
binding on states and cities "limits (but by no means eliminates) their ability
to devise solutions to social problems that suit local needs and values."
Justices Say Gun Rights
Apply Locally, NYT, 28.6.2010,
Rolling Back a Law Born of Enron
June 24, 2010
The New York Times
By FLOYD NORRIS
The timing is exquisite. First the Supreme Court of the United States
provided a significant legal victory to the mastermind behind one of the
greatest corporate frauds in American history. Next the court may throw out the
law that Congress passed to reform corporate America — a law inspired by that
The end of a Supreme Court term is often the most interesting. The cases that
produced the biggest arguments are delayed until the last minute — and that
minute is upon us.
The term ends next week. It is expected that the final rulings will appear on
Monday. It is then that the court will decide whether to throw out the
If it does, it will use the same basic argument it used Thursday. It will blame
Congress for writing bad laws.
And that will clear the way for Congress, if it has the will, to swiftly rescue
corporate reform and assure that future crooked corporate and government
officials cannot take advantage of the rulings.
In one case decided Thursday, Jeffrey K. Skilling, the former chief executive of
the Enron fraud, persuaded the Supreme Court that the concept of committing
fraud through depriving an employer of “honest services” was not adequately
defined in the law.
If the executive took a bribe or a kickback, then that is illegal under the law,
the justices concluded. But if he did something else equally outrageous, the law
is too vague and is therefore unconstitutional.
For Mr. Skilling, the victory is only partial and could prove fleeting. The
justices refused to order a new trial for him. There were other legal theories
advanced by the government in charging Mr. Skilling with conspiracy to commit
fraud, and the lower courts will now hear arguments over whether the verdict was
amply justified by evidence supporting the other theories.
The high court was equally kind to another disgraced corporate executive. Using
the Skilling case as a precedent, it threw into doubt the conviction of Conrad
M. Black, the newspaper baron who controlled The Daily and Sunday Telegraph of
London and The Chicago Sun-Times. The lower courts will consider whether other
prosecution arguments can still justify the verdict.
The decision expected next week is nominally about the Public Company Accounting
Oversight Board and concerns an obscure constitutional clause regarding
presidential powers. But it could lead to the entire Sarbanes-Oxley Act being
The Sarbanes-Oxley Act was passed by Congress in 2002. The Enron scandal — in
which it turned out that one of the largest companies in America had ridden
roughshod over, under and through accounting rules to report billions in profits
when it had no hope of paying its debts — got that effort started. The final
push came when the WorldCom scandal broke.
Accounting firms had largely escaped any real regulation before, and the law
created the board to inspect and regulate the firms. Board reports have forced
major firms to change practices, and the board is generally viewed as having
done a good job.
Under the law, the five members of the board are appointed by the Securities and
Exchange Commission but are legally not government employees. The board is
financed by fees paid by publicly listed companies, and its budget is subject to
approval by the S.E.C.
The argument before the court is that under the Constitution, Congress should
have allowed the president — or someone he directly appoints and can remove at
will — to make the appointments. That argument could well appeal to some
justices, particularly Samuel A. Alito Jr., who has supported stronger executive
By itself, that dispute over appointment powers might not be too important. But
in passing the Sarbanes-Oxley Act, Congress did not put in a severability clause
— a normal part of many laws saying that if part of the law is unconstitutional,
the rest can stand on its own. So that has raised the prospect that the entire
law would fall at the same time.
Out would go requirements for audits of corporate financial controls and for
corporate executives to certify that their financial statements were accurate,
among other things.
Just what Congress might do if that happened has become a subject of some
speculation. Some corporate officials fear that in the current climate, Congress
could enact new and tougher regulations. “It is conceivable that the re-proposed
legislation would become a Christmas tree on which every ornament of corporate
reform and governance will be hung,” said Susan Hackett, the general counsel of
a trade group for corporate lawyers, the Association of Corporate Counsel.
But there are also signs that Congress is in no such mood. The financial reform
bill that is expected to be passed seems likely to repeal the requirement for
audited financial controls for most public companies, leaving it effective only
for those with revenue above $75 million.
It also appears likely to grant corporate boards one of their greatest desires,
by blocking planned S.E.C. rules aimed at permitting dissident shareholders from
putting director candidates on the ballots sent to shareholders by the company.
Instead, it would allow no such nominations unless the dissident owned at least
5 percent of the stock, a very high level.
In 2007, some of the same senators now supporting that provision, including
Christopher J. Dodd, the Banking Committee chairman, argued that a 5 percent
figure would gut any such rule.
It is interesting to consider why the court thinks it is Congress’s fault that
it must rule as it did. The legal concepts at stake were largely based on
judicial opinions beginning in the 1940s. The court blocked those opinions in
1987, saying that the law did not justify the “honest services” doctrine and
inviting Congress to fix that.
Congress did just that in 1988. But now the justices say Congress did not define
the doctrine very well. So it looked at the pre-1987 rulings and decided that
they amply established that bribery and kickbacks were covered. But there was
not enough consensus on other ways of violating that doctrine, like simple
thievery. So Mr. Black and Mr. Skilling may walk. If Congress is unhappy, it can
pass a better law.
If ever there was a corporate executive who viewed shareholders as inconvenient
pests, it was Mr. Black. Eventually, after those shareholders complained over
and over, a board committee advised by Richard C. Breeden, a former S.E.C.
chairman, concluded that Mr. Black and his colleagues had been running a
“corporate kleptocracy.” Facts the committee set out led to the Mr. Black’s
Mr. Black explained his concept of corporate governance in a 2002 e-mail message
when he was under criticism from shareholders for excessive personal spending of
“I’m not prepared to re-enact the French Revolutionary renunciation of the
rights of nobility. We have to find a balance between an unfair taxation on the
company and a reasonable treatment of the founder-builders-managers. We are
proprietors, after all, beleaguered though we may be.”
Thanks to the Supreme Court, he may soon feel less beleaguered. Next week, all
of corporate America may feel the same way.
Rolling Back a Law Born
of Enron, NYT, 24.6.2010,
A Bruise on the First Amendment
June 21, 2010
The New York Times
Forty-three years ago, when the nation lived in fear of Communist
sympathizers and saboteurs, the Supreme Court said that even the need for
national defense could not reduce the First Amendment rights of those
associating with American Communists.
On Monday, in the first case since the Sept. 11, 2001, attacks to test free
speech against the demands of national security in the age of terrorism, the
ideals of an earlier time were eroded and free speech lost. By preserving an
extremely vague prohibition on aiding and associating with terrorist groups, the
court reduced the First Amendment rights of American citizens.
The case was not about sending money to terrorist organizations or serving as
their liaison, activities that are clearly and properly illegal. And it did not
stop people from simply saying they support the goals of groups like Hamas or Al
Qaeda, as long as they are not actually working with those groups. But it could
have a serious impact on lawyers, journalists or academics who represent or
study terrorist groups.
The case arose after an American human rights group, the Humanitarian Law
Project, challenged the law prohibiting “material support” to terror groups,
which was defined in the 2001 Patriot Act to include “expert advice or
assistance.” The law project wanted to provide advice to two terrorist groups on
how to peacefully resolve their disputes and work with the United Nations. The
two groups — the Liberation Tigers of Tamil Eelam and the Kurdistan Workers’
Party — have violent histories and their presence on the State Department’s
official list of terrorist groups is not in dispute.
But though the law project was actually trying to reduce the violence of the two
groups, the court’s opinion, written by Chief Justice John Roberts Jr. on behalf
of five other justices, said that did not matter and ruled the project’s efforts
illegal. Even peaceful assistance to a terror group can further terrorism, the
chief justice wrote, in part by lending them legitimacy and allowing them to
pretend to be negotiating while plotting violence.
In a powerful dissent, Justice Stephen Breyer, also speaking for Justices Ruth
Bader Ginsburg and Sonia Sotomayor, swept away those arguments. If providing
legitimacy to a terror group was really a crime, he wrote, then it should also
be a crime to independently legitimize a terror group through speech, which it
is not. Never before, he said, had the court criminalized a form of speech on
these kinds of grounds, noting with particular derision the notion that peaceful
assistance buys negotiating time for an opponent to achieve bad ends.
The court at least clarified that acts had to be coordinated with terror groups
to be illegal, but many forms of assistance may still be a criminal act,
including filing a brief against the government in a terror-group lawsuit.
Academic researchers doing field work in conflict zones could be arrested for
meeting with terror groups and discussing their research, as could journalists
who write about the activities and motivations of these groups, or the
journalists’ sources. The F.B.I. has questioned people it suspected as being
sources for a New York Times article about terrorism, and threatened to arrest
them for providing material support.
There remains a reasonable way of resolving these disputes. Justice Breyer
proposed a standard that would criminalize this kind of speech or association
“only when the defendant knows or intends that those activities will assist the
organization’s unlawful terrorist actions.” Because he was unable to persuade a
majority on the court, Congress needs to enact this standard into law.
A Bruise on the First
Amendment, NYT, 21.6.2010,
Court’s Blow to Democracy
The New York Times
single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to
the robber-baron era of the 19th century. Disingenuously waving the flag of the
First Amendment, the court’s conservative majority has paved the way for
corporations to use their vast treasuries to overwhelm elections and intimidate
elected officials into doing their bidding.
Congress must act immediately to limit the damage of this radical decision,
which strikes at the heart of democracy.
As a result of Thursday’s ruling, corporations have been unleashed from the
longstanding ban against their spending directly on political campaigns and will
be free to spend as much money as they want to elect and defeat candidates. If a
member of Congress tries to stand up to a wealthy special interest, its
lobbyists can credibly threaten: We’ll spend whatever it takes to defeat you.
The ruling in Citizens United v. Federal Election Commission radically reverses
well-established law and erodes a wall that has stood for a century between
corporations and electoral politics. (The ruling also frees up labor unions to
spend, though they have far less money at their disposal.)
The founders of this nation warned about the dangers of corporate influence. The
Constitution they wrote mentions many things and assigns them rights and
protections — the people, militias, the press, religions. But it does not
In 1907, as corporations reached new heights of wealth and power, Congress made
its views of the relationship between corporations and campaigning clear: It
banned them from contributing to candidates. At midcentury, it enacted the
broader ban on spending that was repeatedly reaffirmed over the decades until it
was struck down on Thursday.
This issue should never have been before the court. The justices overreached and
seized on a case involving a narrower, technical question involving the
broadcast of a movie that attacked Hillary Rodham Clinton during the 2008
campaign. The court elevated that case to a forum for striking down the entire
ban on corporate spending and then rushed the process of hearing the case at
breakneck speed. It gave lawyers a month to prepare briefs on an issue of
enormous complexity, and it scheduled arguments during its vacation.
Chief Justice John Roberts Jr., no doubt aware of how sharply these actions
clash with his confirmation-time vow to be judicially modest and simply “call
balls and strikes,” wrote a separate opinion trying to excuse the shameless
The majority is deeply wrong on the law. Most wrongheaded of all is its
insistence that corporations are just like people and entitled to the same First
Amendment rights. It is an odd claim since companies are creations of the state
that exist to make money. They are given special privileges, including different
tax rates, to do just that. It was a fundamental misreading of the Constitution
to say that these artificial legal constructs have the same right to spend money
on politics as ordinary Americans have to speak out in support of a candidate.
The majority also makes the nonsensical claim that, unlike campaign
contributions, which are still prohibited, independent expenditures by
corporations “do not give rise to corruption or the appearance of corruption.”
If Wall Street bankers told members of Congress that they would spend millions
of dollars to defeat anyone who opposed their bailout, and then did so, it would
certainly look corrupt.
After the court heard the case, Senator John McCain told reporters that he was
troubled by the “extreme naïveté” some of the justices showed about the role of
special-interest money in Congressional lawmaking.
In dissent, Justice John Paul Stevens warned that the ruling not only threatens
democracy but “will, I fear, do damage to this institution.” History is, indeed,
likely to look harshly not only on the decision but the court that delivered it.
The Citizens United ruling is likely to be viewed as a shameful bookend to Bush
v. Gore. With one 5-to-4 decision, the court’s conservative majority stopped
valid votes from being counted to ensure the election of a conservative
president. Now a similar conservative majority has distorted the political
system to ensure that Republican candidates will be at an enormous advantage in
Congress and members of the public who care about fair elections and clean
government need to mobilize right away, a cause President Obama has said he
would join. Congress should repair the presidential public finance system and
create another one for Congressional elections to help ordinary Americans
contribute to campaigns. It should also enact a law requiring publicly traded
corporations to get the approval of their shareholders before spending on
These would be important steps, but they would not be enough. The real solution
lies in getting the court’s ruling overturned. The four dissenters made an
eloquent case for why the decision was wrong on the law and dangerous. With one
more vote, they could rescue democracy.
The Court’s Blow to Democracy, NYT, 22.1.2010,
Is to Be Executed on Tuesday
November 10, 2009
The New York Times
By DAVID STOUT
WASHINGTON — The Supreme Court on Monday declined to block the execution of
John A. Muhammad, the sniper who terrorized the Washington area seven years ago.
The step cleared the way for Mr. Muhammad to be put to death on Tuesday unless
Gov. Tim Kaine of Virginia intervenes.
The court did not comment in refusing to hear Mr. Muhammad’s appeal, but three
justices objected to the relative haste accompanying the execution.
Justice John Paul Stevens complained that “under our normal practice,” Mr.
Muhammad’s petition for the court to take his case would have been discussed at
the justices’ conference scheduled for Nov. 24. But because Virginia scheduled
the execution for Tuesday, the judicial process was rushed, Justice Stevens said
in a statement joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.
Justice Stevens wrote that, having reviewed Mr. Muhammad’s argument, he did not
disagree with the majority’s decision to decline the case. Nevertheless, he
said, because the court declined to stay the execution, “we have allowed
Virginia to truncate our deliberative process on a matter — involving a death
row inmate — that demands the most careful attention.”
The United States Court of Appeals for the Fourth Circuit, in Richmond, Va.,
upheld the death sentence three months ago. In rejecting Mr. Muhammad’s appeal,
that federal panel said it was “unable to find reversible error in the
conclusions of the state and district courts.”
Unless Mr. Kaine stops the execution, Mr. Muhammad, 48, will be given a lethal
injection on Tuesday night for the killing of Dean H. Meyers, an engineer who
was shot in the head at a gas station in Manassas, Va.
Mr. Meyers was one of 10 people killed in Maryland, Virginia and Washington over
three weeks in October 2002. Mr. Muhammad’s accomplice, Lee B. Malvo, who was 17
at the time, was sentenced to life in prison without parole. The two are also
suspected of fatal shootings in Alabama, Arizona and Louisiana.
Mr. Kaine has promised to review Mr. Muhammad’s request but has signaled that he
is not inclined to intervene.
The governor has said he is personally opposed to the death penalty, but he has
allowed a number of executions to take place since he took office in 2006.
Virginia has the nation’s second-busiest death chamber, behind Texas.
The jurors who convicted Mr. Muhammad in November 2003 cited the defendant’s
apparent lack of remorse in deciding to impose the death penalty.
D.C. Sniper Is to Be
Executed on Tuesday, NYT, 10.11.2009,
September 27, 2009
The New York Times
By ALAN M. DERSHOWITZ
LOUIS D. BRANDEIS
By Melvin I. Urofsky
Illustrated. 953 pp. Pantheon Books. $40
The popular parlor game of ranking our presidents hasn’t caught on for
Supreme Court justices, perhaps because there are too many of them (Sonia
Sotomayor is the 111th justice) or because Americans have so little knowledge of
what they actually do. But if justices were to be ranked, three names would
appear on the top of most lists: Chief Justice John Marshall, Justice Oliver
Wendell Holmes and Justice Louis D. Brandeis. Similarly, if practicing lawyers
were to be ranked, nearly every list would include John Adams, Daniel Webster,
Abraham Lincoln, Clarence Darrow and Brandeis.
Notably, the only person on both lists is Brandeis. He would also be included on
a list of America’s most important social reformers and innovators, having
developed savings bank life insurance and new ways of practicing law. He was the
co-author of what may well be the single most influential law review article in
history — on the right to privacy. And he was the most significant American in
helping to establish the state of Israel. All in all, this son of Czech-Jewish
immigrants, who grew up in Louisville, Ky., may well qualify as the greatest
legal personage in American history.
Melvin I. Urofsky — the author of this monumental, authoritative and
appreciative biography of the man Franklin D. Roosevelt called “Isaiah” — would
surely agree. A professor of law and public policy at Virginia Commonwealth
University, Urofsky has devoted much of his career to documenting the personal
and professional life of the great lawyer and justice. In “Louis D. Brandeis: A
Life,” he demonstrates, deploying a Brandeisian array of factual material, why
Brandeis still matters, nearly 70 years after his death. The First Amendment’s
right of free expression, the Fourth Amendment’s right to privacy and the due
process clause’s focus on personal liberty (rather than property) all owe their
current vitality to the creative genius of Justice Brandeis, whose dissenting
opinions have become the law of the land.
Today, Brandeis is seen by liberals as their patron saint because of his views
on speech, privacy, liberty and social welfare, yet conservatives claim him as
well, because of his commitment to judicial restraint. In many ways he defies
labeling. He demonstrated through his judicial decisions that a living
constitution, responsive to changing needs, is not incompatible with a modest
view of the role of judges. He rejected judicial activism in favor of allowing
legislatures — the voice of the people — to expand rights and extend protections
to the most vulnerable. He said of the Supreme Court that “the most important
thing we do is not doing.”
This was, of course, easier to say in his day, when legislatures, for the most
part, were more progressive than courts. He led the Supreme Court in upholding
progressive (some called it radical) legislative innovations in the areas of
labor law, protection of women and fairness to the poor. But unlike many of
today’s justices, who employ artificial jurisprudential constructs to further
(and disguise) their political or religious ideologies, Brandeis was a judge who
placed principle over politics, and who often voted to uphold legislation he
personally despised, like the “big government” aspects of the New Deal. For the
most part, however, the laws he upheld were of the sort he, as “the people’s
attorney,” helped to design and defend.
Indeed, he developed the legal technique — called “the Brandeis brief” — that
was used by progressive lawyers to support legislation in the face of
constitutional challenges, especially those based on the property rights of
corporations. The Brandeis brief, which has become commonplace today, not only
presents the court with an analysis of legal precedents but also marshals
current factual material — statistics, scientific experiments, governmental
records — to demonstrate that the legislature had a reasonable basis for its
actions. It is difficult to overstate the revolutionary consequences of this
tactic. Before the introduction of the Brandeis brief, the law was seen by
conservatives as a formal series of rules representing eternal verities,
unchangeable by new circumstances. Brandeis presented a direct challenge to the
old regime by demanding that the law be responsive to new realities, based on
Urofsky acknowledges that Brandeis did not invent out of whole cloth his
fact-based approach to the law. Oliver Wendell Holmes, in particular, had argued
that the life of the law was “experience” rather than “logic.” And experience
is, of course, fact based.
Brandeis was also the heir of Jefferson and Madison, who saw freedom of
expression as the foundation of democracy. But unlike Holmes, Jefferson and
Madison, Brandeis was a great legal practitioner who knew how to turn theory
into practice. He created enduring structures that lawyers could use to
implement the ideas propounded by Jefferson, Madison and Holmes.
The impact he had on the practice of law when he himself practiced it,
lucratively and effectively for over 35 years, was probably as great as the
impact he had as a justice of the Supreme Court. He is one of the handful of
justices — along with Thurgood Marshall, Benjamin Cardozo, William Howard Taft,
Earl Warren and Arthur Goldberg — who would have been remembered by history even
if he had never been elevated to the high court. (Today’s court has no one with
Brandeis’s experience as a practicing lawyer — and it shows.) Remarkably, it was
his innovative work as an attorney that, along with his religion, almost kept
him from being confirmed by the Senate when President Woodrow Wilson nominated
him to the court in 1916. Urofsky believes that his religion played less of a
role than his radical approach to the law, but it is impossible to separate the
two, because the bigotry of the day associated his alleged radicalism with his
One of Urofsky’s most fascinating revelations deals with Brandeis’s conversion
from a Christmas-celebrating secular American of Jewish heritage to a committed
Zionist and Jew. According to Urofsky, there was no single “aha” moment of
revelation. Rather, Brandeis was convinced that Zionism was an outgrowth of his
progressive values. The idea of Jews’ having a homeland, based on social justice
and Jewish prophetic principles, seemed entirely natural to him. He poured his
heart, soul, fortune and considerable energies into persuading American Jews,
who were generally unsympathetic to European Zionism, that one could be a
patriotic American while at the same time advocating a Jewish homeland for the
oppressed Jews of Europe. His most important contribution to Israel’s
establishment was in turning Zionism from a theory alien to many American Jews
into a pragmatic program to rid the Holy Land of disease, to increase its
agricultural production and to make it feasible for European Jews to live in
peace with their Arab neighbors. There are many who believe that without
Brandeis’s advocacy, the United States would not have supported the
establishment of Israel.
Although this is an admiring biography, it is far from hagiographic. Urofsky
presents the warts, few as there were. Brandeis’s approach to the practice of
law in which he sometimes served as “counsel to the situation” — representing
both parties to a dispute in an effort to achieve a just result — raised
legitimate questions, as did his payments to his acolyte Felix Frankfurter when
Brandeis was a justice and Frankfurter a Harvard Law professor who was promoting
causes dear to both of them. But on balance, Urofsky’s Brandeis brief in support
of “Isaiah’s” important place in the annals of the law and history is
Alan M. Dershowitz’s most recent book is
“The Case for Moral Clarity: Israel,
Hamas and Gaza.”
The Practice, NYT,
12 and in Prison
July 28, 2009
The New York Times
The Supreme Court sent an important message when it ruled in Roper v. Simmons
in 2005 that children under the age of 18 when their crimes were committed were
not eligible for the death penalty. Justice Anthony Kennedy drew on compassion,
common sense and the science of the youthful brain when he wrote that it was
morally wrong to equate the offenses of emotionally undeveloped adolescents with
the offenses of fully formed adults.
The states have followed this logic in death penalty cases. But they have
continued to mete out barbaric treatment — including life sentences — to
children whose cases should rightly be handled through the juvenile courts.
Congress can help to correct these practices by amending the Juvenile Justice
and Delinquency Prevention Act of 1974, which is up for Congressional
reauthorization this year. To get a share of delinquency prevention money, the
law requires the states and localities to meet minimum federal protections for
youths in the justice system. These protections are intended to keep as many
youths as possible out of adult jails and prisons, and to segregate those that
are sent to those places from the adult criminal population.
The case for tougher legislative action is laid out in an alarming new study of
children 13 and under in the adult criminal justice system, the lead author of
which is the juvenile justice scholar, Michele Deitch, of the Lyndon B. Johnson
School of Public Affairs at the University of Texas at Austin. According to the
study, every state allows juveniles to be tried as adults, and more than 20
states permit preadolescent children as young as 7 to be tried in adult courts.
This is terrible public policy. Children who are convicted and sentenced as
adults are much more likely to become violent offenders — and to return to an
adult jail later on — than children tried in the juvenile justice system.
Despite these well-known risks, policy makers across the country do not have
reliable data on just how many children are being shunted into the adult system
by state statutes or prosecutors, who have the discretion to file cases in the
But there is reasonably reliable data showing juvenile court judges send about
80 children ages 13 and under into the adult courts each year. These statistics
explode the myth that those children have committed especially heinous acts.
The data suggest, for example, that children 13 and under who commit crimes like
burglary and theft are just as likely to be sent to adult courts as children who
commit serious acts of violence against people. As has been shown in previous
studies, minority defendants are more likely to get adult treatment than their
white counterparts who commit comparable offenses.
The study’s authors rightly call on lawmakers to enact laws that discourage
harsh sentencing for preadolescent children and that enable them to be
transferred back into the juvenile system. Beyond that, Congress should amend
the juvenile justice act to require the states to simply end these inhumane
practices to be eligible for federal juvenile justice funds.
12 and in Prison, NYT,
The Day Obscenity Became Art
July 21, 2009
The New York Times
By FRED KAPLAN
TODAY is the 50th anniversary of the court ruling that overturned America’s
obscenity laws, setting off an explosion of free speech — and also, in
retrospect, splashing cold water on the idea, much discussed during Sonia
Sotomayor’s Supreme Court confirmation hearings, that judges are “umpires”
rather than agents of social change.
The historic case began on May 15, 1959, when Barney Rosset, the publisher of
Grove Press, sued the Post Office for confiscating copies of the uncensored
version of D. H. Lawrence’s 1928 novel “Lady Chatterley’s Lover,” which had long
been banned for its graphic sex scenes.
Most lawyers of the time would have advised Mr. Rosset that he had a weak case.
Back in 1873, Anthony Comstock, the former postal inspector who founded the New
York Society for the Suppression of Vice, had persuaded Congress to pass a law
outlawing obscenity, which state and federal courts came to define over the
decades as works that “community standards” would regard as “lustful,” “lewd,”
“lascivious” or “prurient.”
As recently as 1957, the Supreme Court had ruled in Roth v. United States — a
case involving a bookseller who sent erotic literature through the mail — that
the First Amendment’s guarantees of free speech did not apply to obscenity. The
case against “Lady Chatterley’s Lover” seemed cut and dry; whatever the book’s
literary merits, it met the legal definition of obscenity.
However, Mr. Rosset hired a lawyer named Charles Rembar, whom he’d met playing
tennis in the Hamptons. Rembar had never argued a case in court but was an
adviser to several writers, including his cousin Norman Mailer. (When Mailer
wrote “The Naked and the Dead,” his career-sparking World War II novel, Rembar
advised him to avoid legal controversy by spelling his characters’ most common
utterance “fug.” The trick worked.)
Looking over the Roth decision, Rembar spotted a loophole. The opinion, written
by Justice William J. Brennan, noted that the First Amendment’s purpose was “to
assure unfettered interchange of ideas” and that “all ideas having even the
slightest redeeming social importance — unorthodox ideas, controversial ideas,
even ideas hateful to the prevailing climate of opinion — have the full
protection of the guarantees.” But, Brennan went on, “implicit in the history of
the First Amendment is the rejection of obscenity as utterly without redeeming
Rembar mulled over a question that Brennan apparently hadn’t considered: What if
a book met the standards of obscenity yet also presented ideas of “redeeming
social importance”? By Brennan’s logic, wouldn’t it qualify for the First
Amendment’s protection after all?
On a sheet of paper, Rembar drew two slightly overlapping circles. He labeled
one circle “Material appealing to prurient interests.” He labeled the other
“Material utterly without social importance.” By Brennan’s reasoning, only
material that fell inside both circles — that was both prurient and worthless —
should be denied the privileges of free speech.
This was the argument that Rembar made before Judge Frederick van Pelt Bryan of
the United States District Court for the Southern District of New York. With the
assistance of several literary critics’ testimony, he presented “Lady
Chatterley” as a novel of ideas that inveighed against sex without love, the
mechanization of industrial life and morbid hypocrisy.
The United States attorney representing the Post Office, S. Hazard Gillespie
Jr., thought Rembar had misread the law, and he recited a clause of the Roth
ruling that Rembar had omitted. Justice Brennan had written that controversial
ideas “have the full protection” of the First Amendment — “unless,” Gillespie
underlined, these ideas were “excludable because they encroach upon the limited
area of more important interests.” One of those interests, surely, was keeping
obscenity under wraps. Hence Rembar’s argument was irrelevant.
This was, however, just the rebuttal Rembar was hoping for. He pointed out a
footnote in which Brennan elaborated on what kind of “more important interests”
were “excludable.” All of them involved actions — peddling, picketing, parading
without a license, playing loud music from a truck. The First Amendment didn’t
protect any of that. But none of Brennan’s examples involved writing —
expression unattached to conduct. Pure expression could be forbidden, Rembar
argued, only if it was “utterly without social importance.”
On July 21, 1959, Judge Bryan ruled in favor of Grove Press and ordered the Post
Office to lift all restrictions on sending copies of “Lady Chatterley’s Lover”
through the mail. This, in effect, marked the end of the Post Office’s authority
— which, until then, it held absolutely — to declare a work of literature
“obscene” or to impound copies of those works or prosecute their publishers.
This wasn’t exactly the end of obscenity as a criminal category. Into the
mid-1960s, Barney Rosset would wage battles in various state courts over William
Burroughs’s “Naked Lunch” and Henry Miller’s “Tropic of Cancer,” other Grove
novels now widely regarded as classics. But the “Chatterley” case established
the principle that allowed free speech its total victory.
The Post Office did appeal Judge Bryan’s verdict; a panel of four judges upheld
it unanimously. The government’s lawyers decided not to appeal further to the
Supreme Court. They knew that they would lose — that the justices who, just two
years earlier, had excluded this sort of literature from constitutional
protection would now change their minds. They knew that Rembar’s creative view
of Justice Brennan’s opinion — a view that Brennan had not explicitly considered
when he wrote it — was logically unassailable.
The case also made clear that laws are more complex than strike zones or foul
lines, which is why the analogy between judges and umpires is so misleading.
The distinction is sharpened by another argument Rembar made during the “Lady
Chatterley” trial. “A novel, no matter how much devoted to the act of sex,” he
said, “can hardly add to the constant sexual prodding with which our environment
assails us.” In the mass media of the day, with its appeals to a booming youth
market, movies and advertisements were often “calculated to produce sexual
thoughts and reactions,” to the point where “we live in a sea of sexual
In short, “community standards” were radically changing. The proof was that,
after the ban on “Lady Chatterley” was lifted, the book reached the No. 2 slot
on The New York Times best-seller list (topped only by Leon Uris’s “Exodus”)
and, within a year, sold two million copies.
For many decades, the courts upheld racial segregation; then, suddenly, they
didn’t. For many decades, the courts let the Post Office decide which books
people could read; then, suddenly, they didn’t. In both cases, and many others
that could be cited, the laws hadn’t changed; society did. And the courts
Fred Kaplan is a columnist for Slate
and the author of “1959: The Year
The Day Obscenity Became
Art, NYT, 21.7.2009,
for a Debt-Ridden Age
June 23, 2009
The New York Times
By ADAM LIPTAK
The great Supreme Court free-speech cases of the 20th century arose from the
suppression of political dissent in wartime and the struggle for civil rights in
the South. These days, the court’s First Amendment docket is thinner and odder.
A recent sample: Minor celebrities swearing. Dog fight videos. A monument to the
Seven Aphorisms of the Summum religion. A banner reading “Bong Hits 4 Jesus.”
But the Supreme Court did just agree to hear a free-speech case that captures
the tenor of our times. It concerns bankruptcy.
One of the plaintiffs in the case is Robert J. Milavetz, a 73-year-old lawyer
from Minnesota. In the 1960s and 1970s, he represented conscientious objectors
and people accused of violating obscenity laws. The new free-speech
battleground, he says, is whether the government can gag lawyers seeking to help
their clients arrange their financial affairs.
In 2005, Congress enacted a law that seems to bar lawyers from advising their
clients to take on more debt if they are considering bankruptcy.
“Any lawyer with a First Amendment background would immediately recognize the
First Amendment problems in this statute,” Mr. Milavetz said.
The law was meant to combat what it called bankruptcy abuses. It is certainly
possible to abuse the bankruptcy system by piling on debt right before filing in
the hope that you will not have to repay it. But ethics rules already forbid
lawyers from advising their clients to break the law.
At the same time, not all new debt in the face of bankruptcy is abusive. It may
be perfectly legal and prudent, for instance, to refinance a home mortgage to
pay down credit card debt. It may make sense to buy a car on credit to make sure
you can get to work — so you can pay back your creditors. But the law seems to
forbid lawyers from suggesting or even discussing such things.
Joseph R. Prochaska, a bankruptcy lawyer in Nashville who represents creditors,
said a client might get plausible advice from, say, a brother-in-law or from
Suze Orman on CNBC about refinancing a loan.
“You go to your lawyer for confirmation,” Mr. Prochaska continued. “As a lawyer,
what do you say to that — if I told you to do that, I’d be breaking the law.”
Experts in First Amendment law and legal ethics said the law, at least if read
broadly, is deeply flawed.
“To say that a lawyer can’t advise a client to take on legal debt is clearly
unconstitutional,” said Erwin Chemerinsky, the dean of the new law school at the
University of California, Irvine.
Stephen Gillers, who teaches legal ethics at New York University, agreed.
“Congress has no legitimate interest in denying people knowledge of their lawful
alternatives,” Professor Gillers said.
In its brief urging the Supreme Court to hear the case, the government did not
defend the broader and more natural reading of the law, the one that would
forbid even lawful advice. Instead, it said the law contained “a term of art”
with “a specialized meaning” that should allow for a more limited reading, one
that applies only to abusive situations.
The law forbids advising someone “to incur more debt in contemplation of such
person filing” for bankruptcy. The term of art, the government says, is the
three-word phrase “in contemplation of.” You probably have to be a very good
lawyer to make that phrase mean what the government says it means: “actions
taken with the intent to abuse the protections of the bankruptcy system.”
In fairness, the government’s interpretation won support from a dissenting
appeals court judge in the case the Supreme Court agreed to hear, from the
United States Court of Appeals for the Eighth Circuit, in St. Louis, and from a
unanimous three-judge panel of the Fifth Circuit, in New Orleans.
To avoid holding a law unconstitutional, the Fifth Circuit said, it is sometimes
a good idea to give a “restrictive meaning” to “what appear to be plain words.”
That approach has a name: the doctrine of constitutional avoidance.
Mr. Milavetz’s firm challenged the law, asking that it be struck down in all
possible applications. Its briefs discuss hypothetical problems. The law
prohibits advice about co-signing on a child’s student loan, one brief said, or
borrowing to pay for credit counseling.
But the Supreme Court has not welcomed these kinds of sweeping challenges in
recent cases, preferring more focused “as applied” cases that take issue with
particular applications of laws.
The law also requires bankruptcy lawyers covered by it to publish disclosures
when they advertise. The law says they must use this statement or something
“substantially similar”: “We are a debt relief agency. We help people file for
bankruptcy relief under the Bankruptcy Code.”
Mr. Milavetz said the language was aimed to stifle speech. “I feel the term
‘debt relief agency’ is pejorative,” he said. “It deters lawyers from
Other lawyers welcome the requirement.
“Most consumer bankruptcy lawyers like to call themselves a ‘debt relief
agency,’ ” Mr. Prochaska said. “They have buttons that say ‘Federal Debt Relief
Agent.’ It’s a marketing tool.”
There are traces of history in every era’s First Amendment cases. These days, it
seems, the great open question is what may be said in the face of looming
Free-Speech Case for a
Debt-Ridden Age, NYT, 23.6.2009,
Inmate Right to DNA Tests
June 19, 2009
The New York Times
By ADAM LIPTAK
WASHINGTON — Prisoners have no constitutional right to DNA testing that might
prove their innocence, the Supreme Court ruled on Thursday in a 5-to-4 decision.
The court divided along familiar ideological lines, with the majority
emphasizing that 46 states already have laws that allow at least some prisoners
to gain access to DNA evidence.
“To suddenly constitutionalize this area,” Chief Justice John G. Roberts Jr.
wrote for the majority, “would short-circuit what looks to be a prompt and
considered legislative response.”
The case before the court concerned Alaska, which has no DNA testing law.
Prosecutors there have conceded that such testing could categorically establish
the guilt or innocence of William G. Osborne, who was convicted in 1994 of
kidnapping and sexually assaulting a prostitute in Anchorage.
In a dissent, Justice John Paul Stevens said the Constitution’s due process
clause required allowing Mr. Osborne to have access to DNA evidence in his case.
“For reasons the state has been unable or unwilling to articulate,” Justice
Stevens wrote, “it refuses to allow Osborne to test the evidence at his own
expense and to thereby ascertain the truth once and for all.”
Chief Justice Roberts acknowledged the “unparalleled ability” of DNA testing
“both to exonerate the wrongly convicted and to identify the guilty.” Such
testing has played a role in 240 exonerations, according to the Innocence
Project at Cardozo Law School, which represents Mr. Osborne. In 103 of those
cases, the testing also identified the actual perpetrator.
Peter Neufeld, a director of the project, said Thursday’s decision would have
“It’s unquestionable that some people in some states who are factually innocent
will not get DNA testing and will languish in prison,” Mr. Neufeld said. “Some
of them will die in prison.”
Only four states — Alabama, Alaska, Massachusetts and Oklahoma — do not have
laws in place specifically dealing with postconviction DNA testing, and Alabama
recently enacted one limited to death row inmates that will become effective
Many states that do allow postconviction testing impose conditions on who may
seek it. Prosecutors often fight hard to deny access to DNA evidence even in
states that nominally allow it, saying the prisoner in question had not met the
Some laws, for instance, do not allow prisoners who have confessed to seek DNA
evidence, though false confessions have been common among exonerated inmates.
Other states allow testing only if it was unavailable at the time of trial.
Mr. Neufeld said the logic of Thursday’s decision might allow constitutional
challenges to some of those laws.
In the case from Alaska, District Attorney’s Office v. Osborne, No. 08-6, Mr.
Osborne sought to test biological evidence on a condom found at the crime scene,
a snowbank near Anchorage International Airport. The victim was raped, beaten
with an ax handle, shot in the head and left for dead. But the bullet only
grazed her head, and she survived.
Rudimentary DNA testing on the condom in preparation for trial excluded two
other suspects and included Mr. Osborne among those who might have committed the
crime. The kind of testing used at the time, Chief Justice Roberts wrote,
“generally cannot narrow the perpetrator down to less than 5 percent of the
Mr. Osborne’s trial lawyer decided not to pursue a second kind of DNA testing
that was more discriminating. The lawyer said she feared that the results might
further incriminate her client. After his conviction, Mr. Osborne sued state
officials in federal court seeking access to the DNA evidence for a third kind
of yet-more-discriminating testing.
There was other significant evidence of Mr. Osborne’s guilt, and he confessed to
the Alaska Board of Parole, which released him after 14 years. He later said he
had lied to the parole board in the hope of quicker release. Mr. Osborne has
since been convicted of a home invasion.
Last year, the United States Court of Appeals for the Ninth Circuit, in San
Francisco, ordered prosecutors in Alaska to turn over the DNA evidence, saying
the most sophisticated form of testing had not been available at the time of the
trial, that Mr. Osborne would bear its cost and that the results could provide a
conclusive answer about his guilt or innocence.
Justice Samuel A. Alito Jr., in a part of his concurrence joined by Justices
Anthony M. Kennedy and Clarence Thomas, was skeptical of all of the appeals
Allowing Mr. Osborne to forgo testing at trial and then request it from prison,
Justice Alito wrote, “would allow prisoners to play games with the criminal
“After conviction,” Justice Alito added, “with nothing to lose, the defendant
could demand DNA testing in the hope that some happy accident — for example,
degradation or contamination of the evidence — would provide the basis for
seeking postconviction relief.”
Justice Alito acknowledged that the testing Mr. Osborne now seeks was more
advanced than the kind his lawyer failed to pursue.
“But his counsel did not decline” the less discriminating testing “because she
thought it was not good enough,” Justice Alito wrote. “She declined because she
thought it was too good.”
States would incur significant costs, Justice Alito added, were prisoners “given
a never-before-recognized constitutional right to rummage through the state’s
genetic-evidence locker.” And even the most sophisticated DNA testing, he said,
“often fails to provide absolute proof of anything.”
Although it has no DNA testing law, Alaska does have general procedures through
which prisoners can try to gain access to evidence that might prove their
innocence. The justices disagreed about how effective those procedures have
Chief Justice Roberts, whose majority opinion was joined by Justices Kennedy,
Thomas, Alito and Antonin Scalia, wrote that he saw “nothing inadequate” about
But Justice Stevens said no prisoner had ever obtained DNA evidence for testing
in Alaska. He said Mr. Osborne “was rebuffed at every turn” by the state,
creating “grave doubts about the adequacy of the procedural protections” in
Justices Ruth Bader Ginsburg and Stephen G. Breyer joined all of Justice
Stevens’s opinion and Justice David H. Souter part of it.
Justice Souter issued a dissent saying that officials in Alaska had
“demonstrated a combination of inattentiveness and intransigence” that add up to
“procedural unfairness that violates the due process clause.”
But Chief Justice Roberts concluded that the issue of when to allow DNA testing
was best handled by the states.
“The question,” he wrote, “ is whether further change will primarily be made by
legislative revision and judicial interpretation of the existing system, or
whether the federal judiciary must leap ahead — revising (or even discarding)
the system by creating a new constitutional right and taking over responsibility
for refining it.”
Justices Reject Inmate
Right to DNA Tests, NYT, 19.6.2009,
Open Way to Supreme Court Review
June 17, 2009
The New York Times
By JOHN SCHWARTZ
A year ago, the United States Supreme Court issued a landmark decision
establishing the constitutional right of Americans to own guns. But the justices
did not explain what the practical effect of that ruling would be on city and
state gun laws.
Could a city still ban handguns? The justices said the District of Columbia
could not, but only because it is a special federal district. The question of
the constitutionality of existing city and state gun laws was left unanswered.
That left a large vacuum for the lower courts to fill. Supporters of gun rights
filed a flurry of lawsuits to strike down local gun restrictions, and now
federal appeals courts have begun weighing in on this divisive issue, using very
One court this month upheld Chicago’s ban on automatic weapons and concealed
handguns, while in April a California court disagreed on the constitutional
The differing opinions mean that the whole issue of city and state gun laws will
probably head back to the Supreme Court for clarification, leading many legal
experts to predict a further expansion of gun rights.
The new cases are fallout from last year’s Supreme Court case, District of
Columbia v. Heller, which struck down parts of Washington’s gun control
ordinance, the strictest in the country, and stated for the first time that the
Second Amendment gives individuals a right to keep and bear arms for personal
use. But the court declined to say whether the Second Amendment in general
applies to state and local governments.
In January, the United States Court of Appeals for the Second Circuit, in New
York, in a ruling joined by Judge Sonia Sotomayor, declined to apply the Second
Amendment to a New York law that banned the martial arts device known as chukka
sticks. The ban was allowed to stay in place.
Then in April, a three-judge panel of the Ninth Circuit, in San Francisco, ruled
that the Second Amendment did apply to the states, even though it allowed a
California county to ban guns on government property like state fairgrounds.
That case, Nordyke v. King, is being considered for a rehearing by the full
Those two conflicting cases set the stage for two other cases that were heard as
one in the Seventh Circuit in Chicago, testing that city’s handgun ban. On June
2, a three-judge panel of the court, led by Chief Judge Frank H. Easterbrook, a
well-known conservative, ruled that there was no basis for the court to apply
the Second Amendment to the states. Such a decision, Judge Easterbrook wrote,
should be made only by the Supreme Court, not at the appellate level.
The right of states to make their own decisions on such matters, Judge
Easterbrook wrote, “is an older and more deeply rooted tradition than is a right
to carry any particular kind of weapon.”
The lawyers for the plaintiffs, including the National Rifle Association, have
asked the Supreme Court to take up the Chicago cases.
A split among the federal appeals circuits, especially on constitutional issues,
invites Supreme Court action, said Adam Winkler, a law professor at the
University of California, Los Angeles.
“Californians, Hawaiians and Oregonians have a Second Amendment right to bear
arms, but New Yorkers, Illinoisans, and Wisconsinites don’t,” Professor Winkler
said. “The Supreme Court will want to correct this sooner rather than later.”
The process of applying amendments of the Bill of Rights to the states, known as
incorporation, began after the Civil War but had its heyday in the activist
Supreme Court of the Earl Warren era. Much of the Bill of Rights, including the
First Amendment’s freedom of speech and some rights of criminal defendants, have
been applied to the states, but other elements have not, including the Seventh
Amendment right to a civil jury trial and the Second Amendment.
Incorporation fell out of favor after the 1960s, but a new generation of largely
liberal scholars of law and history have brought it back into the intellectual
mainstream, said Akhil Reed Amar, a law professor at Yale University, who
supports the process.
“The precedents are now supportive of incorporation of nearly every provision of
the Bill of Rights,” Professor Amar said. “Now what’s odd is that the Second
Amendment doesn’t apply to the states.”
Sanford Levinson, a law professor at the University of Texas, said he would be
surprised if the Supreme Court accepted these gun cases, because some of the
conservative justices on the court had scoffed at incorporation arguments in the
past and might not want to set a precedent.
Professor Amar, however, argued that the justices would not only take up the
case but would also ultimately vote for incorporation of the Second Amendment.
Even if the Second Amendment becomes the controlling law of every state and
town, constitutional scholars say it is still unlikely that gun laws would be
overturned wholesale. The Supreme Court’s Heller decision last year, notes
Nelson Lund, a law professor at George Mason University, “clearly indicates that
governments will still have wide latitude to regulate firearms.”
Even the Ninth Circuit in California, while applying the Second Amendment to the
states, still upheld the gun ordinance that gave rise to the lawsuit.
Eugene Volokh, a law professor at the University of California, Los Angeles,
said the view of the Ninth Circuit reflected what polls have said was, by and
large, the view of the American people.
“There is a right to bear arms,” Professor Volokh said, “but it’s not absolute.”
Gun Rulings Open Way to
Supreme Court Review, NYT, 17.6.2009,
Death Penalty Disgrace
June 1, 2009
The New York Times
By BOB BARR
THERE is no abuse of government power more egregious than executing an
innocent man. But that is exactly what may happen if the United States Supreme
Court fails to intervene on behalf of Troy Davis.
Mr. Davis is facing execution for the 1989 murder of an off-duty police officer
in Savannah, Ga., even though seven of the nine witnesses have recanted their
testimony against him. Many of these witnesses now say they were pressured into
testifying falsely against him by police officers who were understandably eager
to convict someone for killing a comrade. No court has ever heard the evidence
of Mr. Davis’s innocence.
After the United States Court of Appeals for the 11th Circuit barred Mr. Davis
from raising his claims of innocence, his attorneys last month petitioned the
Supreme Court for an original writ of habeas corpus. This would be an
extraordinary procedure — provided for by the Constitution but granted only a
handful of times since 1900. However, absent this, Mr. Davis faces an
extraordinary and obviously final injustice.
This threat of injustice has come about because the lower courts have misread
the Anti-Terrorism and Effective Death Penalty Act of 1996, a law I helped write
when I was in Congress. As a member of the House Judiciary Committee in the
1990s, I wanted to stop the unfounded and abusive delays in capital cases that
tend to undermine our criminal justice system.
With the effective death penalty act, Congress limited the number of habeas
corpus petitions that a defendant could file, and set a time after which those
petitions could no longer be filed. But nothing in the statute should have left
the courts with the impression that they were barred from hearing claims of
actual innocence like Troy Davis’s.
It would seem in everyone’s interest to find out as best we can what really
happened that night 20 years ago in a dim parking lot where Officer Mark
MacPhail was shot dead. With no murder weapon, surveillance videotape or DNA
evidence left behind, the jury that judged Mr. Davis had to weigh the
conflicting testimony of several eyewitnesses to sift out the gunman from the
onlookers who had nothing to do with the heinous crime.
A litany of affidavits from prosecution witnesses now tell of an investigation
that was focused not on scrutinizing all suspects, but on building a case
against Mr. Davis. One witness, for instance, has said she testified against Mr.
Davis because she was on parole and was afraid the police would send her back to
prison if she did not cooperate.
So far, the federal courts have said it is enough that the state courts reviewed
the affidavits of the witnesses who recanted their testimony. This reasoning is
misplaced in a capital case. Reading an affidavit is a far cry from seeing a
witness testify in open court.
Because Mr. Davis’s claim of innocence has never been heard in a court, the
Supreme Court should remand his case to a federal district court and order an
evidentiary hearing. (I was among those who signed an amicus brief in support of
Mr. Davis.) Only a hearing where witnesses are subject to cross-examination will
put this case to rest.
Although the Supreme Court issued a stay of execution last fall, the court
declined to review the case itself, and its intervention still has not provided
an opportunity for Mr. Davis to have a hearing on new evidence. This has become
a matter of no small urgency: Georgia could set an execution date at any time.
I am a firm believer in the death penalty, but I am an equally firm believer in
the rights and protections guaranteed by the Constitution. To execute Troy Davis
without having a court hear the evidence of his innocence would be
unconscionable and unconstitutional.
Bob Barr served in the House of Representatives
from 1995 to 2003
and was the
United States attorney
for the Northern District of Georgia
from 1986 to 1990.
Death Penalty Disgrace,
The New Justice
May 27, 2009
The New York Times
President Obama seems to have made an inspired choice in picking Judge Sonia
Sotomayor for the Supreme Court. She has an impressive judicial record, a
stellar academic background and a compelling life story. Judge Sotomayor would
also be a trailblazing figure in the mold of Thurgood Marshall, becoming the
first member of the nation’s large and growing but still under-represented
Hispanic population to serve on the court.
Based on what we know now, the Senate should confirm her so she can join the
court when it begins its new term in October.
It’s impossible not to be moved by Judge Sotomayor’s story — born in the Bronx
to Puerto Rican parents and brought up in a city housing project. She was found
to have diabetes as a child, and her father, a factory worker, died when she was
9, leaving her mother, a nurse, to raise her and her brother. Judge Sotomayor
attended Princeton, from which she graduated summa cum laude, and Yale Law
School, where she was an editor of the law review.
Her legal experience is impressive and wide-ranging. She spent five years as a
prosecutor in the Manhattan district attorney’s office and was a partner in a
commercial litigation firm. She has been a federal judge for 16 years, serving
on both a district court, where she presided over trials, and an appellate
court. As a member of the New York-based United States Court of Appeals for the
Second Circuit, she is known for being smart, extraordinarily well prepared and
In her rulings, Judge Sotomayor has repeatedly displayed the empathy Mr. Obama
has said he is looking for in a justice. She has listened attentively to, and
often ruled in favor of, people who have been discriminated against, defendants
and other groups that are increasingly getting short shrift in the federal
courts. She has shown little patience for the sort of procedural bars that
conservative judges have been using to close the courthouse door on people whose
rights have been violated.
Conservative activists have already begun trying to paint Judge Sotomayor as a
liberal ideologue, but her carefully reasoned, fact-based decisions indicate
otherwise. In many ways, her approach to the law is similar to that of Justice
David Souter, whose seat she would take.
The Senate will have to carefully scrutinize Judge Sotomayor’s record on and off
the bench, as it must for anyone seeking to join the court. If no big surprises
turn up, it is not clear that Senate Republicans will expend much effort trying
to block this nomination. Apart from her qualifications, they may decide that in
light of their desire to win over Latino voters — and their low chance of
winning a confirmation battle, given the Democrats’ big Senate majority — it is
not worth the fight.
If Judge Sotomayor joins the court, it will be a special point of pride for
Hispanic-Americans — as it was for Jews, blacks and women before them to see one
of their own take a seat on the highest tribunal in the land. It will also bring
the paltry number of female justices back to two. And as Democratic Party
strategists have no doubt calculated, the selection could give Mr. Obama and his
party a boost with a key voting group.
Judge Sotomayor, though, is more than just a distinguished member of two
underrepresented groups. She is an accomplished lawyer and judge, who could
become an extraordinary Supreme Court justice.
The New Justice, NYT,
July 13, 2008
The New York Times
By LINDA GREENHOUSE
WASHINGTON — Sometime during the first of my nearly 30 years
reporting on the Supreme Court, a distinct visual image of a Supreme Court term
took hold in my mind and never let go. The nine-month term was a mountain. My
job was to climb it.
The slope was gentle when the term began, every first Monday in October; the
court was busy choosing new cases and hearing arguments, but it was not yet
ready to issue decisions. The upward path steepened in January and February,
when grants of new cases, arguments and decisions all came at once, competing
for attention. Spring brought a breather as the path flattened out again: all
the arguments had been heard, and the decisions were sporadic. The steepest
climb came, predictably, every June, with the final outpouring of opinions
before the summer recess. And then it was over. I could look down from the
mountaintop to see the term whole and clear, while off in the distance the next
term loomed, another climb.
But not this year. I am retiring from The New York Times to write and teach at
Yale Law School. So this time, I can survey all the mountains, stretching back
to the morning in 1978 when I first walked up the court’s marble steps —
mistakenly, as it turned out, because people with business at the court actually
use a less majestic but more practical side entrance at ground level.
I had been a political reporter, covering state government in New York from
Albany, before I received a Ford Foundation fellowship for journalists to attend
Yale Law School for a year. Certainly my Yale master’s degree, the ink barely
dry as I walked up those marble steps, had given me a useful grasp of legal
concepts. But it could scarcely prepare me for the texture and flavor, the sheer
dailiness, of life at the court. So much happened behind closed doors. What did
the justices do all day, anyway? I imagined them in earnest conversation with
one another, grappling with the great legal questions of the day (in 1978
affirmative action was the most pressing). I learned only gradually that it
isn’t like that at all, that except for their formal gatherings around the
conference table once or twice a week, the justices spend their time, when they
are not on the bench, in their chambers, alone or with their law clerks.
Communications among them tend to be in writing, even today, and the ethos of
the place discourages one justice from intruding on another’s space, physically
or verbally. Membership in one of the world’s most exclusive clubs can be
isolating, a little lonely, which I think is why those justices who enjoy
companionship spend a fair amount of their free time on the road, speaking at
law schools and judicial conferences.
In The Times’s Albany bureau, contact with the capitol’s newsmakers was
constant, and feedback from them was instantaneous — not always pleasant, but
essential for understanding competing perspectives and agendas, or simply for
avoiding making the same mistake twice. Compared with the frenzied drama of the
New York Legislature, the quiet of the Supreme Court press room was the silence
of the tomb. In place of the easy banter with politicians that had made the
Albany beat so engaging, there was an almost suffocating paper flow. Before I
could work my way through one list of newly filed petitions to the court, two
more would arrive.
Politics, comfortingly, had presented a moving target — an interpretation that
seemed wrong today could well be proven correct tomorrow. But when it came to
Supreme Court decisions, it was quite possible to get it wrong, flatly and
irrevocably. And if I did get it wrong, how would I know? The fact that I
received no feedback from those whose activities I was covering was hardly
reassuring. It just underscored how different this new environment was going to
And yet I came to see my Albany experience as valuable, rather than irrelevant,
to my new assignment. Watching the back-and-forth between a state legislature
and the Supreme Court of the United States had given me a real sense of the
court as an active participant in the ceaseless American dialogue about
constitutional values and priorities, not a remote oracle.
For example, the New York Legislature in the 1970s was determined to channel
taxpayer money to parochial schools. A majority of the Supreme Court was equally
determined to keep that from happening. Session after legislative session in
Albany, I reported on efforts to get around the latest Supreme Court ruling and
to do indirectly (by providing textbooks or transportation rather than classroom
instruction, for instance) what the court had said could not be done directly.
It was a constitutional Ping-Pong match, foreshadowing, in its way, the recent
one between the court and the Bush administration over the handling of the
Guantánamo detainees; a battle over principle, to be sure, but also over who
would get the last word.
There was another useful lesson for me in the struggle over parochial school
aid: the court’s makeup changes, and so does the law. As an associate justice,
William H. Rehnquist, who wanted to cultivate a much bigger space for religion
in public life, planted a few seeds in arid soil. He tended those seeds
assiduously as new allies joined the court and the climate warmed, until they
germinated in the form of decisions like the one in 2002, Zelman v.
Simmons-Harris, which upheld Ohio’s system of taxpayer-financed vouchers for
parents to use for parochial school tuition. “A program of true private choice,”
Chief Justice Rehnquist said in his 5-to-4 majority opinion — having established
years earlier, in less freighted contexts, that when public money passes through
parents’ hands, it loses its public character and its use becomes a “private
And then something interesting happened. The voucher movement, even though its
constitutional shackles had been removed, stalled almost everywhere, owing not
to the intervention of federal judges but to resistance from state courts,
teachers’ unions and taxpayers. An ambitious legislative campaign by voucher
advocates in 2004 ended in defeat in state after state. The court can only do so
much. It can lead, but the country does not necessarily follow.
In fact, it is most often the Supreme Court that is the follower. It ratifies or
consolidates change rather than propelling it, although in the midst of heated
debate over a major case, it can often appear otherwise. Without delving into
the vast political science and legal academic literature on this point, I’m
simply offering my empirical observation that the court lives in constant
dialogue with other institutions, formal and informal, and that when it strays
too far outside the existing political or social consensus, the result is a
palpable tension both inside and outside the court.
Such periods are fascinating, and inherently unstable. The early New Deal period
is a classic example. The public demanded change, and the “nine old men” stood
in the way. The “court-packing” crisis ensued; President Franklin D. Roosevelt
had to back down from adding new and younger justices, and change came from
inside the court anyway. Some decisions protecting the rights of criminal
suspects, made by Earl Warren’s court in the 1960s, placed the court to the left
of the country’s center (and provided useful campaign fodder for Richard M.
A year ago, at the end of a Supreme Court term marked by sharp ideological
divisions and attacks on precedent by a newly empowered conservative majority, I
thought we were entering such a period; the court appeared to be moving to the
right of the public. For example, the 5-to-4 decision blocking local communities
from taking modest steps to preserve the hard-won gains of public school
desegregation threatened to unravel delicate arrangements in school districts
around the country. That remains a highly problematic decision, but the more
muted and centrist tone of the term that just ended has made me less persuaded
that the court is on a collision course with mainstream public opinion.
In any event, it is often the court that eventually retreats when it finds
itself out of sync with the prevailing mood. That appeared to be the case with
the “federalism revolution” that Chief Justice Rehnquist began in the mid-1990s.
In a series of 5-to-4 decisions, the court declared that Congress did not have
the power it assumed it had to make federal statutes binding on the states.
These decisions, reflecting the chief justice’s longstanding goal to re-adjust
the post-New Deal federal-state balance, signaled an abrupt jurisprudential
But then 9/11 happened and the national mood changed. Suddenly, the federal
government looked useful, even necessary. The Supreme Court’s federalism
revolution had been overtaken by events. In 2003, Chief Justice Rehnquist wrote
for a 6-to-3 majority that Congress acted within its constitutional authority
when it said state governments could be sued for failing to give their employees
the benefits required by the Family and Medical Leave Act. It was a decision of
enormous symbolic significance. Without apology or much in the way of
explanation, the chief justice gave up the fight and moved on.
I admired Chief Justice Rehnquist as a strategist and tactician; he knew what he
wanted and knew his limits, just as in his weekly poker game he knew when to
hold ’em and when to fold ’em. Justice Antonin Scalia, who joined the court in
1986, was a flashier attention-grabber, but I never had any doubt that William
Rehnquist was the brains behind the court’s ascendant conservatives. He took his
role seriously, but himself less so (unlike his stuffy predecessor, Warren E.
Burger, the first chief justice of my tenure). When he emerged from behind the
courtroom’s velvet curtain one morning in 1995 sporting four gold stripes on
each sleeve of his robe — with some of his colleagues struggling to suppress
smiles — many people saw pomposity, but I saw a wry or maybe even self-mocking
comment on the boredom of basic black after 23 years on the court. He had
another 10 years to go.
We had nothing approaching a confidential relationship, but we did chat now and
then. On the morning after the 2000 presidential election, I ran into him on the
court’s plaza as he was taking his morning walk. Wasn’t it amazing, we agreed,
that the outcome of the election was still in doubt.
The court I began covering in 1978 was populated by men who were, for the most
part, older than my father. Thurgood Marshall, William J. Brennan Jr. and Byron
R. White were historic figures. Harry A. Blackmun had only a few years earlier
been propelled from obscurity when he wrote the court’s 7-to-2 majority opinion
in Roe v. Wade. Nine new justices joined the court during my time there. Of the
original group, only John Paul Stevens remains. Three members of the court are
younger than I am.
Amid all that change, nothing touched me as much as the arrival in September
1981 of Sandra Day O’Connor. I had never heard her name before President Ronald
Reagan nominated her that summer to succeed Potter Stewart. Although I covered
her confirmation hearing, she remained to me basically a blank slate. That
didn’t matter. The first time I looked up from the press section and saw a woman
sitting on the bench, I was thrilled in a way I would never have predicted. Her
presence invaded my subconscious. I had recurring dreams about her. In one, she
asked me my opinion on a pending case (something no justice ever did in real
life). But mostly, she just had walk-on roles in ordinary nighttime dramas, her
presence signifying what it meant to me to know that there was no longer a
position in the legal profession that a woman could not aspire to.
Four summers later, I was pregnant. Encountering me in a hallway, Justice
O’Connor asked me when the baby was due. “Just before the first Monday in
October,” I replied. Sandra Day O’Connor, mother of three, laughed. “Oh, keep
your legs crossed,” she urged. “Don’t let that baby come out until the First
Monday!” Some 30 minutes into the first Monday in October 1985, my daughter,
Hannah, came into the world. I later learned that right before going on the
bench that morning for the term’s opening session, Justice O’Connor called the
court’s public information office and asked: “Has anyone heard from Linda? Did
she have her baby today?”
(Years later, my daughter bluntly reminded me that today’s young women have the
luxury of taking for granted the pioneering accomplishments of a Sandra Day
O’Connor or Ruth Bader Ginsburg. When I observed that I was out of college
before I ever met a woman who was a lawyer, the teenage Hannah regarded me with
compassion. “Face it, Mom,” she said. “You’ve led a sheltered life.”)
Continuity and change, the entwined spirals of a double helix, are the court’s
DNA. Continuity is anchored by the gravitational pull of precedent. Who would
have believed that William Rehnquist, long a vocal critic of the Warren court’s
Miranda decision, could write a majority opinion in 2000 not only reaffirming it
but proclaiming that the Miranda warnings had become “part of our national
The pull of precedent is powerful but scarcely all-powerful when a shift of
personnel or perspective breaks the spell, allowing the forces of change to
exert their counterpull. The road from Bowers v. Hardwick, the 1986 decision
that dismissed a claim of gay rights as “at best, facetious,” to Lawrence v.
Texas, which 17 years later located the privacy rights of gay men and lesbians
at the heart of constitutional due process, was paved, I have no doubt, by the
justices’ experience of knowing gay men and women in their personal and
But with so many important cases decided by such close margins (the two leading
cases of the past term, on the rights of the Guantánamo detainees and the Second
Amendment right to own a gun, were decided by votes of 5 to 4), perhaps
fragility, rather than stability, best characterizes the court today, and that
is a reminder of the stakes involved in any Supreme Court vacancy. The
galvanizing battle over the nomination of Robert H. Bork in 1987, a
conflagration at the intersection of law and politics that held the country
spellbound for three months, was the most riveting public event I ever witnessed
at close range. Although Judge Bork was, of course, defeated, in many ways the
Bork battle has never really ended, with today’s ceaseless judicial confirmation
wars being carried on by ideological combatants too young to remember the
President Reagan nominated Robert Bork, a well-known conservative, to the
“swing” seat on the court being vacated by Justice Lewis F. Powell Jr. I knew
Bob Bork. He had been a professor of mine at Yale, an urbane and witty man who
bore little resemblance to the instant portrait painted by his opponents. (“In
Robert Bork’s America,” Senator Edward M. Kennedy famously said in response to
the nomination, “there is no room at the inn for blacks and no place in the
Constitution for women, and in our America there should be no seat on the
Supreme Court for Robert Bork.”) The day he was nominated, I left a message on
his home answering machine. “Congratulations, and keep your sense of humor,” I
said. “I think you’ll need it.”
His sense of humor failed him. As the hearings went on, he became testy and
abrupt. When he said that serving on the court would be an “intellectual feast,”
he was simply being honest. It would have been more politic, but less candid, to
claim that he was motivated by a desire to serve the cause of justice. He and
his supporters emerged from defeat filled with bitterness, persuaded that he had
been dealt an unfair hand.
To the contrary, I thought then and think now that the debate had been both fair
and profound. In five days on the witness stand, Judge Bork had a chance to
explain himself fully, to describe and defend his view that the Constitution’s
text and the intent of its 18th-century framers provided the only legitimate
tools for constitutional interpretation. Through televised hearings that engaged
the public to a rare degree, the debate became a national referendum on the
modern course of constitutional law. Judge Bork’s constitutional vision,
anchored in the past, was tested and found wanting, in contrast to the later
declaration by Judge Anthony M. Kennedy, the successful nominee, that the
Constitution’s framers had “made a covenant with the future.”
It has made a substantial difference during these last 21 years that Anthony
Kennedy got the seat intended for Robert Bork. The invective aimed at Justice
Kennedy from the right this year alone, for his majority opinions upholding the
rights of the Guantánamo detainees and overturning the death penalty for child
rapists — 5-to-4 decisions that would surely have found Judge Bork on the
opposite side — is a measure of the lasting significance of what happened during
that long-ago summer and fall.
It is also a reminder of something I learned observing the court and the
country, and listening in on the vital dialogue between them. The court is in
Americans’ collective hands. We shape it; it reflects us. At any given time, we
may not have the Supreme Court we want. We may not have the court we need. But
we have, most likely, the Supreme Court we deserve.
2,691 Decisions, NYT,
3 Defining Opinions
July 13, 2008
The New York Times
By LINDA GREENHOUSE
Planned Parenthood v. Casey (1992): The Triumph of Precedent?
Reaffirmed the constitutional right to abortion by a vote of 5 to 4. Three
Republican-appointed justices in the majority, Sandra Day O’Connor, Anthony M.
Kennedy and David H. Souter, said that while they would not necessarily have
voted with the Roe v. Wade majority 19 years earlier, they believed it would
damage the court to repudiate that precedent under political pressure. “The
promise of constancy, once given, binds its maker,” they said.
Bush v. Gore (2000): The Triumph of Politics? Ended the Florida recount and
effectively declared George W. Bush the president-elect. “We are presented with
a situation where a state court with the power to assure uniformity has ordered
a statewide recount with minimal procedural safeguards,” the unsigned opinion
read. A debate continues to this day over whether the five justices in the
majority were motivated by politics or by the neutral principles they invoked.
District of Columbia v. Heller (2008): The Triumph of Originalism? Held that the
Second Amendment protects the right to keep a loaded gun at home for
self-defense. Justice Antonin Scalia, for the 5-to-4 majority, and Justice John
Paul Stevens, for the dissent, each dissected the history of the Second
Amendment. They came to opposite conclusions but proceeded on the premise that
original understanding of the amendment’s framers was the proper basis for the
3 Defining Opinions,
Rule for Individual Gun Rights
The New York Times
By DAVID STOUT
— The Supreme Court declared for the first time on Thursday that the
Constitution protects an individual’s right to have a gun, not just the right of
the states to maintain militias.
Justice Antonin Scalia, writing for the majority in the landmark 5-to-4
decision, said the Constitution does not allow “the absolute prohibition of
handguns held and used for self-defense in the home.” In so declaring, the
majority found that a gun-control law in the nation’s capital went too far by
making it nearly impossible to own a handgun.
But the court held that the individual right to possess a gun “for traditionally
lawful purposes, such as self-defense within the home” is not unlimited. “It is
not a right to keep and carry any weapon whatsoever in any manner whatsoever and
for whatever purpose,” Justice Scalia wrote.
The ruling does not mean, for instance, that laws against carrying concealed
weapons are to be swept aside. Furthermore, Justice Scalia wrote, “The court’s
opinion should not be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and government
buildings, or laws imposing conditions and qualifications on the commercial sale
The decision upheld a federal appeals court ruling that the District of
Columbia’s gun law, one of the strictest in the country, went beyond
constitutional limits. Not only did the 1976 law make it practically impossible
for an individual to legally possess a handgun in the district, but it also
spelled out rules for the storage of rifles and shotguns. But the court did not
articulate a specific standard of review for what might be a reasonable
restraint on the right to possess a firearm.
The court also said on Thursday that the district law’s requirement that lawful
weapons be rendered essentially inoperable, by trigger locks or disassembly, was
unconstitutional because it rendered the weapons useless for self-defense.
Joining Justice Scalia were Chief Justice John G. Roberts Jr. and Justices
Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito Jr.
A dissent by Justice John Paul Stevens asserted that the majority “would have us
believe that over 200 years ago, the framers made a choice to limit the tools
available to elected officials wishing to regulate civilian uses of weapons.”
Joining him were Justices David H. Souter, Ruth Bader Ginsburg and Stephen G.
The high court’s ruling was the first since 1939 to deal with the scope of the
Second Amendment, and the first to so directly address the meaning of the
amendment’s ambiguous, comma-laden text: “A well regulated Militia, being
necessary to the security of a free State, the right of the people to keep and
bear Arms, shall not be infringed.”
Not surprisingly, Justice Scalia and Justice Stevens differed on the clarity (or
lack thereof) of the Second Amendment. “The amendment’s prefatory clause
announces a purpose, but does not limit or expand the scope of the second
clause,” wrote Justice Scalia. “The operative clause’s text and history
demonstrate that it connotes an individual right to keep and bear arms.”
Not at all, Justice Stevens countered, asserting that the majority “stakes its
holding on a strained and unpersuasive reading of the amendment’s text.” Justice
Stevens read his dissent from the bench, an unmistakable signal that he
disagreed deeply with the majority.
Indeed, it was clear from the conflicting opinions of Justices Scalia and
Stevens that the case had generated emotional as well as intellectual sparks at
Justice Scalia devoted page after page of his opinion to the various state
constitutions and to the use of language in the 18th and 19th centuries to
support his view that an individual right to bear arms is embodied in the
Constitution. And Justice Scalia, who clearly takes pride in his writing as well
as his reasoning, used adjectives like “frivolous” and “bizarre” to describe the
other side’s arguments.
Not to be outdone, Justice Stevens called the majority’s interpretation of the
Second Amendment “overwrought and novel” and said it “calls to mind the parable
of the six blind men and the elephant,” in which each of the sightless men had a
different conception of the animal.
“Each of them, of course, has fundamentally failed to grasp the nature of the
creature,” Justice Stevens wrote.
The ruling on Thursday will surely not quiet the debate about guns and violence
in the United States, where deaths by firearm take a far higher toll than in
many other countries, as Justice Scalia acknowledged.
“We are aware of the problem of handgun violence in this country,” he wrote,
saying that he took seriously the concerns of those who believe that
“prohibition of handgun ownership is a solution.”
Lawmakers in the District of Columbia and across the country may look to the
decision as a blueprint for writing new legislation to satisfy the demands of
constituents who say there is too much regulation of firearms now, or too
little, depending on the sentiments in their regions. (Washington’s Mayor,
Adrian M. Fenty, will instruct the police department to issue new
handgun-registration rules within 30 days while city officials study the ruling,
The Washington Post reported on its Web site.)
Nor was there any suggestion that the court’s ruling would lead to a
proliferation of deadly, military-style assault weapons. Alluding to the 1939
Supreme Court decision, which held that the weapons protected under the Second
Amendment were those “in common use at the time,” Justice Scalia said, “We think
that limitation is fairly supported by the historical tradition of prohibiting
the carrying of ‘dangerous and unusual weapons.’ ”
The White House issued a statement saying that President Bush “strongly agrees
with the Supreme Court’s historic decision today that the Second Amendment
protects the individual right of Americans to keep and bear arms.”
The Supreme Court ruling is likely to play out in this year’s elections, as
Senator John McCain of Arizona, the presumptive Republican nominee for
president, made clear. “I applaud this decision as well as the overturning of
the District of Columbia’s ban on handguns and limitations on the ability to use
firearms for self-defense,” Mr. McCain said in a statement, which contained a
reminder that his Democratic nominee, Senator Barack Obama of Illinois, refused
to join him in signing an amicus brief in support of overturning the district’s
Indeed, Mr. Obama’s view, expressed in a statement, was more nuanced than Mr.
McCain’s. “I have always believed that the Second Amendment protects the right
of individuals to bear arms, but I also identify with the need for crime-ravaged
communities to save their children from the violence that plagues our streets
through common-sense, effective safety measures,” Mr. Obama said, predicting
that the ruling would provide needed guidance for lawmakers.
The National Rifle Association and other supporters of rights to have firearms
are sure to use the decision as a launch pad for lawsuits. The N.R.A. said it
would file suits in San Francisco, Chicago and several Chicago suburbs
challenging handgun restrictions there. “I consider this the opening salvo in a
step-by-step process of providing relief for law-abiding Americans everywhere
that have been deprived of this freedom,” Wayne LaPierre, executive vice
president of the N.R.A., told The Associated Press.
Reaction on Capitol Hill differed sharply. Representative John A. Boehner of
Ohio, the Republican minority leader in the House, applauded the ruling. “The
Constitution plainly guarantees the solemn right to keep and bear arms, and the
whims of politically correct bureaucrats cannot take it away,” he said in a
But Senator Dianne Feinstein, Democrat of California and a former mayor of San
Francisco, said she was disappointed in the ruling. “I speak as a former mayor,”
she said at a session of the Senate Judiciary Committee. “I speak as somebody
who has gone to homicide crime scenes.”
The last time the Supreme Court weighed a case involving the Second Amendment,
in 1939, it decided a narrower question, finding that the Constitution did not
protect any right to possess a specific type of firearm, the sawed-off shotgun.
By contrast, the issues in the District of Columbia case seemed much more
“mainstream,” if that term can be used in reference to gun-control issues. When
the justices announced on Nov. 20 that they were accepting the case of District
of Columbia v. Heller, No. 07-290, they indicated that they would go to the
heart of the long debate.
The question, they said, is whether the district’s restrictions on firearms
“violate the Second Amendment rights of individuals who are not affiliated with
any state-regulated militia but who wish to keep handguns and other firearms for
private use in their homes.”
Dick Anthony Heller, a security guard who carries a handgun for his job
protecting federal judiciary offices, challenged the District of Columbia’s law
after his request for a license to keep his gun at home was rejected.
There have been debates about the efficacy of gun-control efforts in the
capital. Those district residents who want guns — and are willing to risk
punishment if caught with them without bothering to apply for permits — can get
them easily enough, across the Potomac River in Virginia and in other nearby
Washington’s homicide rate, while high by world standards, is sharply lower than
it was in the early 1990s. Last year, there were 181 homicides in Washington,
down from a peak of 479 in 1991, when crack cocaine was a huge problem in some
sections of the city.
Concluding his opinion, Justice Scalia wrote, “Undoubtedly some think that the
Second Amendment is outmoded in a society where our standing army is the pride
of our nation, where well-trained police forces provide personal security, and
where gun violence is a serious problem.”
“That is perhaps debatable,” Justice Scalia wrote, “but what is not debatable is
that it is not the role of this court to pronounce the Second Amendment
When the Heller case was argued before the justices on March 18, Mr. Heller’s
lawyer, Alan Gura, did not assert that the Second Amendment precluded any kind
of ban related to gun possession. He said that a ban on the shipment of machine
guns and sawed-off shotguns would be acceptable, and in answer to a question
from the justices, so, too, might be a prohibition on guns in schools. Some of
the justices signaled during arguments that they thought the District’s
near-total ban on handguns went too far.
A legislature “has a great deal of leeway in regulating firearms,” Mr. Gura
argued, but not to the extent of virtually banning them in homes.
The Washington law not only established high barriers to the private possession
of handguns, it also required that rifles and shotguns be kept either in a
disassembled state or under a trigger lock.
Walter Dellinger, the lawyer who argued for the district on March 18, asserted
that “the people” and “the militia” were essentially the same, and that the
Second Amendment gave people the right to bear arms only in connection with
their militia service.
Solicitor General Paul D. Clement, representing the federal government, argued
on behalf of the individual-rights position, which has been the Bush
administration’s policy. But he said that the appeals court had also gone too
far in overturning the ordinance and that the right to bear arms was always
subject to “reasonable regulations.”
Justices Rule for Individual Gun Rights, NYT, 27.6.2008,
The New York Times
Court exerts leadership over the nation’s justice system, not just through its
rulings, but also by its choice of cases — the ones it agrees to hear and the
ones it declines. On Tuesday, it led in exactly the wrong direction.
Somehow, the court could not muster the four votes needed to grant review in the
case of an innocent German citizen of Lebanese descent who was kidnapped,
detained and tortured in a secret overseas prison as part of the Bush
administration’s morally, physically and legally abusive anti-terrorism program.
The victim, Khaled el-Masri, was denied justice by lower federal courts, which
dismissed his civil suit in a reflexive bow to a flimsy government claim that
allowing the case to go forward would put national security secrets at risk.
Those rulings, Mr. Masri’s lawyers correctly argued, represented a major
distortion of the state secrets doctrine, a rule created by the federal courts
that was originally intended to shield specific evidence in a lawsuit filed
against the government. It was never designed to dictate dismissal of an entire
case before any evidence is produced.
It may well be that one or more justices sensitive to the breathtaking violation
of Mr. Masri’s rights, and the evident breaking of American law, refrained from
voting to accept his case as a matter of strategy. They may have feared a
majority ruling by the Roberts court approving the dangerously expansive view of
executive authority inherent in the Bush team’s habitual invocation of the state
secrets privilege. In that case, the justices at least could have commented, or
offered a dissent, as has happened when the court abdicated its responsibility
to hear at least two other recent cases involving national security issues of
Mr. Masri says he was picked up while vacationing in Macedonia in late 2003 and
flown to a squalid prison in Afghanistan. He says he was questioned there about
ties to terrorist groups and was beaten by his captors, some of whom were
Americans. At the end of May 2004, Mr. Masri was released in a remote part of
Albania without having been charged with a crime. Investigations in Europe and
news reports in this country have supported his version of events, and German
Chancellor Angela Merkel has said that Secretary of State Condoleezza Rice
acknowledged privately to her that Mr. Masri’s abduction was a mistake, an
admission that aides to Ms. Rice have denied. The Masri case, in other words, is
being actively discussed all over the world. The only place it cannot be
discussed, it seems, is in a United States courtroom.
In effect, the Supreme Court has granted the government immunity for subjecting
Mr. Masri to “extraordinary rendition,” the morally and legally unsupportable
United States practice of transporting foreign nationals to be interrogated in
other countries known to use torture and lacking basic legal protections. It’s
hard to imagine what, at this point, needs to be kept secret, other than the
ways in which the administration behaved irresponsibly, and quite possibly
illegally, in the Masri case. And Mr. Masri is not the only innocent man
kidnapped by American agents and subjected to abuse and torture in a foreign
country. He’s just the only one whose lawsuit got this far.
This unsatisfactory outcome gives rise to new worries about the current Supreme
Court’s resolve to perform its crucial oversight role — particularly with other
cases related to terrorism in the pipeline and last week’s disclosure of secret
2005 Justice Department memos authorizing the use of inhumane interrogation
methods that just about everyone except the Bush White House thinks of as
torture. Instead of a rejection, the Masri case should have occasioned a frank
revisiting of the Supreme Court’s 1953 ruling in United States v. Reynolds. That
case enshrined the state secrets doctrine that this administration has
repeatedly relied upon to avoid judicial scrutiny of its lawless actions.
Indeed, the Reynolds case itself is an object lesson in why courts need to apply
a healthy degree of skepticism to state secrets claims. The court denied the
widows of three civilians, who had died in the crash of a military aircraft,
access to the official accident report, blindly accepting the government’s
assertion that sharing the report would hurt national security. When the
documents finally became public just a few years ago, it became clear that the
government had lied. The papers contained information embarrassing to the
government but nothing to warrant top secret treatment or denying American
citizens honest adjudication of their lawsuit.
In refusing to consider Mr. Masri’s appeal, the Supreme Court has left an
innocent person without any remedy for his wrongful imprisonment and torture. It
has damaged America’s standing in the world and established the nation as
Supreme Enabler of the Bush administration’s efforts to avoid accountability for
its actions. These are not accomplishments to be proud of.
Supreme Disgrace, NYT, 11.10.2007,
Halt to Executions Indefinitely
The New York Times
By RALPH BLUMENTHAL
Oct. 2 — Signaling an indefinite halt to executions in Texas, the state’s
highest criminal appeals court late Tuesday stayed the lethal injection of a
28-year-old Honduran man who was scheduled to be put to death Wednesday.
The reprieve by the Texas Court of Criminal Appeals was granted a week after the
United States Supreme Court agreed to consider whether a form of lethal
injection constituted cruel and unusual punishment barred under the Eighth
Amendment. On Thursday, the Supreme Court stepped in to halt a planned execution
in Texas at the last minute, and though many legal experts interpreted that as a
signal for all states to wait for a final ruling on lethal injection before any
further executions, Texas officials said they planned to move ahead with more.
As a result, Tuesday’s ruling by the Texas court was seen as a sign that judges
in the nation’s leading death penalty state were taking guidance from the
Supreme Court and putting off imminent executions.
The Texas court order gave state authorities up to 30 days to explain in legal
papers why the execution of the inmate, Heliberto Chi, should proceed. With
responses then certain from defense lawyers, the effect of the order was to put
off the execution for months, lawyers said.
Mr. Chi was convicted of killing the manager of a men’s store in Arlington in
Other executions, including four more scheduled in the next five months, were
also likely to be stayed, said David R. Dow of the Texas Defender Service, a
nonprofit law clinic that worked on Mr. Chi’s appeal.
“Until the Court of Criminal Appeals addresses the questions raised in this case
there will be no more executions in Texas,” predicted Mr. Dow, a law professor
at the University of Houston.
Acting less than a week after it rejected another inmate’s appeal 5 to 4, the
appeals court justices provided no breakdown of the vote and did not give any
reasoning for their decision. But they directed the state’s director of criminal
justice, Nathaniel Quarterman, not to execute Mr. Chi and gave Mr. Quarterman
and Tim Curry, the district attorney of Tarrant County, where the crime had been
committed, up to 30 days to respond to claims by Mr. Chi’s lawyers that the
formulation and administration of chemicals used for lethal injections did not
quickly and painlessly kill but paralyzed the condemned inmates while they
Earlier Tuesday, the Texas Board of Pardons and Paroles voted 4 to 3 against
recommending a stay for Mr. Chi. A request for a 30-day reprieve was also
pending with Gov. Rick Perry.
Had the appeals court not halted the execution, Mr. Chi’s lawyers would have
taken the case to the United States Supreme Court, which last Thursday stayed
the execution for another Texas inmate, Carlton Turner Jr.
Bryan Stevenson, director of the Equal Justice Initiative in Montgomery, Ala.,
and a law professor at New York University, said the Supreme Court’s ruling was
a sign that while it was reviewing the legality of lethal injection in a
Kentucky case, “it was at least unseemly for states to be carrying out
Deborah Denno, a professor at Fordham Law School, called the latest stay in
Texas significant. “I do think Texas is reaching a turning point,” Ms. Denno
said. “It’s not unusual throughout the country, but it is unusual in Texas. And
not uncommonly when people are talking about the death penalty, there’s Texas
and everywhere else, because Texas seems to be in its own death penalty world.”
But Diane Clements, president of Justice For All, a victims’ advocacy group in
Texas, said the Supreme Court and the Texas appeals court gave no reasons for
their rulings, “so we’re left here with no direction.”
The delays spelled more suffering for victims’ families, Ms. Clements said. “I’m
sure family of that stayed-execution victim is on a roller coaster ride,” she
said. “If there’s anything certain about the death penalty for families, it’s
that it is very uncertain.”
Texas Ruling Signals Halt to Executions Indefinitely, NYT,
2 Patriot Act Provisions Ruled Unlawful
September 27, 2007
By THE ASSOCIATED PRESS
Filed at 6:34 a.m. ET
The New York Times
PORTLAND, Ore. (AP) -- Two provisions of the USA Patriot Act are
unconstitutional because they allow secret wiretapping and searches without a
showing of probable cause, a federal judge ruled Wednesday.
U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance
Act, as amended by the Patriot Act, ''now permits the executive branch of
government to conduct surveillance and searches of American citizens without
satisfying the probable cause requirements of the Fourth Amendment.''
Portland attorney Brandon Mayfield sought the ruling in a lawsuit against the
federal government after he was mistakenly linked by the FBI to the Madrid train
bombings that killed 191 people in 2004.
The federal government apologized and settled part of the lawsuit for $2 million
after admitting a fingerprint was misread. But as part of the settlement,
Mayfield retained the right to challenge parts of the Patriot Act, which greatly
expanded the authority of law enforcers to investigate suspected acts of
Mayfield claimed that secret searches of his house and office under the Foreign
Intelligence Surveillance Act violated the Fourth Amendment's guarantee against
unreasonable search and seizure. Aiken agreed with Mayfield, repeatedly
criticizing the government.
''For over 200 years, this Nation has adhered to the rule of law -- with
unparalleled success. A shift to a Nation based on extra-constitutional
authority is prohibited, as well as ill-advised,'' she wrote.
By asking her to dismiss Mayfield's lawsuit, the judge said, the U.S. attorney
general's office was ''asking this court to, in essence, amend the Bill of
Rights, by giving it an interpretation that would deprive it of any real
meaning. This court declines to do so.''
Elden Rosenthal, an attorney for Mayfield, issued a statement on his behalf
praising the judge, saying she ''has upheld both the tradition of judicial
independence, and our nation's most cherished principle of the right to be
secure in one's own home.''
Justice Department spokesman Peter Carr said the agency was reviewing the
decision, and he declined to comment further.
The ruling probably won't have any immediate affect on enforcement under the
Patriot Act, according to legal experts who predicted the government would
''But it's an important first step,'' said Jameel Jaffer, director of the
American Civil Liberties Union's national security project.
Jaffer noted that the Patriot Act carries dozens of provisions and that several
have been challenged -- but that this is one of the first major rulings on
Fourth Amendment rights.
''This is as clear a violation of the Fourth Amendment as you'll ever find,''
Garrett Epps, a constitutional law expert at the University of Oregon, said the
ruling adds to the poor record that the Bush administration has piled up in
defending the Patriot Act.
''It's embarrassing,'' Epps said. ''It represents another judicial repudiation
of this administration's terrorist surveillance policies.''
A federal judge in New York this month handed the ACLU a victory in a challenge
to the Patriot Act on behalf of an Internet service provider that was issued a
''national security letter'' demanding customer phone and computer records. The
judge in that case ruled the FBI must justify to a court the need for secrecy
for more than a brief and reasonable period of time.
Mayfield, a Muslim convert, was taken into custody on May 6, 2004, because of a
fingerprint found on a detonator at the scene of the Madrid bombing. The FBI
said the print matched Mayfield's. He was released about two weeks later, and
the FBI admitted it had erred in saying the fingerprints were his and later
apologized to him.
Before his arrest, the FBI put Mayfield under 24-hour surveillance, listened to
his phone calls and surreptitiously searched his home and law office.
The Mayfield case has been an embarrassment for the federal government. Last
year, the Justice Department's internal watchdog faulted the FBI for sloppy work
in mistakenly linking Mayfield to the Madrid bombings. That report said federal
prosecutors and FBI agents had made inaccurate and ambiguous statements to a
federal judge to get arrest and criminal search warrants against Mayfield.
Congress passed the Patriot Act with little debate shortly after the Sept. 11,
2001, attacks to help counter terrorist activities. It gave federal law
enforcers the authority to search telephone and e-mail communications and
expanded the Treasury Department's regulation of financial transactions
involving foreign nationals. The law was renewed in 2005.
In early August, the Bush administration persuaded lawmakers to expand the
government's power to listen in on any foreign communication it deemed of
interest without a court order, even if an American was a party. The expanded
surveillance authority expires early next year. As Congress takes a closer look
at the law, many Democrats want to rein in language that many consider overly
2 Patriot Act Provisions
Ruled Unlawful, NYT, 27.9.2007,
Limits Schools on Race
Filed at 11:15 p.m. ET
The New York Times
By THE ASSOCIATED PRESS
(AP) -- The Supreme Court on Thursday rejected school assignment plans that take
account of students' race in two major public school districts. The decisions
could imperil similar plans nationwide. The Court also blocked the execution of
a Texas killer whose lawyers argued that he should not be put to death because
he is mentally ill.
Today is probably the Court's last session until October.
The school rulings in cases affecting schools in Louisville, Ky., and Seattle
leave public school systems with a limited arsenal to maintain racial diversity.
The court split, 5-4, with Chief Justice John Roberts announcing the court's
judgment. Justice Stephen Breyer wrote a dissent that was joined by the court's
other three liberals.
Justice Anthony Kennedy wrote a concurring opinion in which he said race may be
a component of school district plans designed to achieve diversity.
He agreed with Roberts that the plans in Louisville and Seattle went too far. He
said, however, that to the extent that Roberts' opinion could be interpreted as
foreclosing the use of race in any circumstance, ''I disagree with that
The two school systems in Thursday's decisions employ slightly different methods
of taking students' race into account when determining which school they would
In the case involving the mentally ill killer in Texas, the court ruled 5-4 in
the case of Scott Louis Panetti, who shot his in-laws to death 15 years ago in
front of his wife and young daughter.
The convicted murderer says that he suffers from a severe documented illness
that is the source of gross delusions. ''This argument, we hold, should have
been considered,'' said Justice Anthony Kennedy, who wrote the majority opinion.
Panetti's lawyers wanted the court to determine that people who cannot
understand the connection between their crime and punishment because of mental
illness may not be executed.
The Eighth Amendment of the Constitution bars ''the execution of a person who is
so lacking in rational understanding that he cannot comprehend that he is being
put to death because of the crime he was convicted of committing,'' they said in
In a third case, the Court abandoned a 96-year-old ban on manufacturers and
retailers setting price floors for products.
In a 5-4 decision, the court said that agreements on minimum prices are legal if
they promote competition.
The ruling means that accusations of minimum pricing pacts will be evaluated
case by case.
The Supreme Court declared in 1911 that minimum pricing agreements violate
federal antitrust law.
Supreme Court Limits Schools on Race, NYT, 28.6.2007,
for Gun Rights
Helps Sway Judiciary
May 6, 2007
The New York Times
By ADAM LIPTAK
for the first time in the nation’s history, a federal appeals court struck down
a gun control law on Second Amendment grounds. Only a few decades ago, the
decision would have been unimaginable.
There used to be an almost complete scholarly and judicial consensus that the
Second Amendment protects only a collective right of the states to maintain
militias. That consensus no longer exists — thanks largely to the work over the
last 20 years of several leading liberal law professors, who have come to
embrace the view that the Second Amendment protects an individual right to own
In those two decades, breakneck speed by the standards of constitutional law,
they have helped to reshape the debate over gun rights in the United States.
Their work culminated in the March decision, Parker v. District of Columbia, and
it will doubtless play a major role should the case reach the United States
Laurence H. Tribe, a law professor at Harvard, said he had come to believe that
the Second Amendment protected an individual right.
“My conclusion came as something of a surprise to me, and an unwelcome
surprise,” Professor Tribe said. “I have always supported as a matter of policy
very comprehensive gun control.”
The first two editions of Professor Tribe’s influential treatise on
constitutional law, in 1978 and 1988, endorsed the collective rights view. The
latest, published in 2000, sets out his current interpretation.
Several other leading liberal constitutional scholars, notably Akhil Reed Amar
at Yale and Sanford Levinson at the University of Texas, are in broad agreement
favoring an individual rights interpretation. Their work has in a remarkably
short time upended the conventional understanding of the Second Amendment, and
it set the stage for the Parker decision.
The earlier consensus, the law professors said in interviews, reflected received
wisdom and political preferences rather than a serious consideration of the
amendment’s text, history and place in the structure of the Constitution. “The
standard liberal position,” Professor Levinson said, “is that the Second
Amendment is basically just read out of the Constitution.”
The Second Amendment says, “A well regulated militia, being necessary to the
security of a free state, the right of the people to keep and bear arms, shall
not be infringed.” (Some transcriptions of the amendment omit the last comma.)
If only as a matter of consistency, Professor Levinson continued, liberals who
favor expansive interpretations of other amendments in the Bill of Rights, like
those protecting free speech and the rights of criminal defendants, should also
embrace a broad reading of the Second Amendment. And just as the First
Amendment’s protection of the right to free speech is not absolute, the
professors say, the Second Amendment’s protection of the right to keep and bear
arms may be limited by the government, though only for good reason.
The individual rights view is far from universally accepted. “The overwhelming
weight of scholarly opinion supports the near-unanimous view of the federal
courts that the constitutional right to be armed is linked to an organized
militia,” said Dennis A. Henigan, director of the legal action project of the
Brady Center to Prevent Gun Violence. “The exceptions attract attention
precisely because they are so rare and unexpected.”
Scholars who agree with gun opponents and support the collective rights view say
the professors on the other side may have been motivated more by a desire to be
provocative than by simple intellectual honesty.
“Contrarian positions get play,” Carl T. Bogus, a law professor at Roger
Williams University, wrote in a 2000 study of Second Amendment scholarship.
“Liberal professors supporting gun control draw yawns.”
If the full United States Court of Appeals for the District of Columbia Circuit
does not step in and reverse the 2-to-1 panel decision striking down a law that
forbids residents to keep handguns in their homes, the question of the meaning
of the Second Amendment is almost certainly headed to the Supreme Court. The
answer there is far from certain.
That too is a change. In 1992, Warren E. Burger, a former chief justice of the
United States appointed by President Richard M. Nixon, expressed the prevailing
“The Second Amendment doesn’t guarantee the right to have firearms at all,” Mr.
Burger said in a speech. In a 1991 interview, Mr. Burger called the individual
rights view “one of the greatest pieces of fraud — I repeat the word ‘fraud’ —
on the American public by special interest groups that I have ever seen in my
Even as he spoke, though, the ground was shifting underneath him. In 1989, in
what most authorities say was the beginning of the modern era of mainstream
Second Amendment scholarship, Professor Levinson published an article in The
Yale Law Journal called “The Embarrassing Second Amendment.”
“The Levinson piece was very much a turning point,” said Mr. Henigan of the
Brady Center. “He was a well-respected scholar, and he was associated with a
liberal point of view politically.”
In an interview, Professor Levinson described himself as “an A.C.L.U.-type who
has not ever even thought of owning a gun.”
Robert A. Levy, a senior fellow at the Cato Institute, a libertarian group that
supports gun rights, and a lawyer for the plaintiffs in the Parker case, said
four factors accounted for the success of the suit. The first, Mr. Levy said,
was “the shift in scholarship toward an individual rights view, particularly
He also cited empirical research questioning whether gun control laws cut down
on crime; a 2001 decision from the federal appeals court in New Orleans that
embraced the individual rights view even as it allowed a gun prosecution to go
forward; and the Bush administration’s reversal of a longstanding Justice
Department position under administrations of both political parties favoring the
collective rights view.
Filing suit in the District of Columbia was a conscious decision, too, Mr. Levy
said. The gun law there is one of the most restrictive in the nation, and
questions about the applicability of the Second Amendment to state laws were
avoided because the district is governed by federal law.
“We wanted to proceed very much like the N.A.A.C.P.,” Mr. Levy said, referring
to that group’s methodical litigation strategy intended to do away with
Professor Bogus, a supporter of the collective rights view, said the Parker
decision represented a milestone in that strategy. “This is the story of an
enormously successful and dogged campaign to change the conventional view of the
right to bear arms,” he said.
The text of the amendment is not a model of clarity, and arguments over its
meaning tend to be concerned with whether the first part of the sentence limits
the second. The history of its drafting and contemporary meaning provide support
for both sides as well.
The Supreme Court has not decided a Second Amendment case since 1939. That
ruling was, as Judge Stephen Reinhardt, a liberal judge on the federal appeals
court in San Francisco acknowledged in 2002, “somewhat cryptic,” again allowing
both sides to argue that Supreme Court precedent aided their interpretation of
Still, nine federal appeals courts around the nation have adopted the collective
rights view, opposing the notion that the amendment protects individual gun
rights. The only exceptions are the Fifth Circuit, in New Orleans, and the
District of Columbia Circuit. The Second Circuit, in New York, has not addressed
Linda Singer, the District of Columbia’s attorney general, said the debate over
the meaning of the amendment was not only an academic one.
“It’s truly a life-or-death question for us,” she said. “It’s not theoretical.
We all remember very well when D.C. had the highest murder rate in the country,
and we won’t go back there.”
The decision in Parker has been stayed while the full appeals court decides
whether to rehear the case.
Should the case reach the Supreme Court, Professor Tribe said, “there’s a really
quite decent chance that it will be affirmed.”
A Liberal Case for Gun Rights Helps Sway Judiciary, NYT,
Throws Out 3 Death Sentences
April 25, 2007
By THE ASSOCIATED PRESS
Filed at 11:19 a.m. ET
The New York Times
WASHINGTON (AP) -- The Supreme Court threw out death sentences for three
Texas killers Wednesday because of problems with instructions given jurors who
were deciding between life in prison and death.
In the case of LaRoyce Lathair Smith, the court set aside the death penalty for
the second time. It also reversed death sentences for Brent Ray Brewer and Jalil
The cases all stem from jury instructions that Texas hasn't used since 1991.
Under those rules, courts have found that jurors were not allowed to give
sufficient weight to factors that might cause them to impose a life sentence
instead of death.
The three 5-4 rulings had the same lineup of justices, with Stephen Breyer, Ruth
Bader Ginsburg, Anthony Kennedy, David Souter and John Paul Stevens forming the
''When the jury is not permitted to give meaningful effect or a 'reasoned moral
response' to a defendant's mitigating evidence...the sentencing process is
fatally flawed,'' Stevens wrote in Abdul-Kabir's case
Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and
Clarence Thomas dissented.
Roberts took aim at his colleagues in the majority in dissents he wrote in the
Abdul-Kabir and Brewer cases. The court should have deferred to lower court
rulings against the defendants because there was no clearly established federal
law that judges could have followed to grant relief.
''Whatever the law may be today, the Court's ruling that 'twas always so -- and
that state courts were 'objectively unreasonable' not to know it -- is utterly
revisionist,'' Roberts said.
Smith was sentenced to die for the murder of Jennifer Soto, a former coworker at
a Taco Bell who was stabbed and shot in a failed robbery.
In 2004, the justices overturned Smith's sentence because jurors were not
allowed to consider sufficiently the abuse and neglect that Smith had suffered
as a child.
The Texas Court of Criminal Appeals reinstated the death penalty, however,
saying any errors involving the jury instructions were harmless.
Abdul-Kabir, also known as Ted Calvin Cole, was convicted in 1988 of using a dog
leash to strangle Raymond Richardson, 66, during a $20 robbery at his San Angelo
home. Abdul-Kabir's lawyers contend the jury that condemned him had no way to
take into account the mistreatment and abandonment that contributed to his
violent adult behavior.
The same sentencing problems applied to Brewer, convicted of fatally stabbing
66-year-old Robert Laminack, who was attacked in 1990 outside his Amarillo
flooring business and robbed of $140. Brewer was abused as a child and suffered
from mental illness, factors his jurors weren't allowed to consider, according
to his petition.
The 5th U.S. Circuit Court of Appeals had upheld the death penalty for Brewer
Forty-seven inmates on Texas' death row were sentenced under the rules that the
state abandoned in 1991.
The cases are Smith v. Texas, 05-11304,
Brewer v. Quarterman, 05-11287,
Abdul-Kabir v. Quarterman, 05-11284.
Supreme Court Throws Out
3 Death Sentences, NYT, 25.4.2007,
Ban on Abortion Procedure
Filed at 1:00 p.m. ET
The New York Times
By THE ASSOCIATED PRESS
(AP) -- The Supreme Court upheld the nationwide ban on a controversial abortion
procedure Wednesday, handing abortion opponents the long-awaited victory they
expected from a more conservative bench.
The 5-4 ruling 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 opponents of the act ''have not demonstrated that the Act would be
unconstitutional in a large fraction of relevant cases,'' Justice Anthony
Kennedy wrote in the majority opinion.
The administration had defended the law as drawing a bright line between
abortion and infanticide.
Reacting to the ruling, Bush said that it affirms the progress his
administration has made to uphold the ''sanctity of life.''
''I am pleased that the Supreme Court has upheld a law that prohibits the
abhorrent procedure of partial birth abortion,'' he said. ''Today's decision
affirms that the Constitution does not stand in the way of the people's
representatives enacting laws reflecting the compassion and humanity of
The decision pitted the court's conservatives against its liberals, with
President Bush's two appointees, Chief Justice John Roberts and Justice Samuel
Alito, siding with the majority.
Justices Clarence Thomas and Antonin Scalia also were in the majority.
It was the first time the court banned a specific procedure in a case over how
-- not whether -- to perform an abortion.
Abortion rights groups as well as the leading association of obstetricians and
gynecologists have said the procedure sometimes is the safest for a woman. They
also said that such a ruling could threaten most abortions after 12 weeks of
pregnancy, although government lawyers and others who favor the ban said there
are alternate, more widely used procedures that remain legal.
The outcome is likely to spur efforts at the state level to place more
restrictions on abortions.
''I applaud the Court for its ruling today, and my hope is that it sets the
stage for further progress in the fight to ensure our nation's laws respect the
sanctity of unborn human life,'' said Rep. John Boehner of Ohio, Republican
leader in the House of Representatives.
Said Eve Gartner of the Planned Parenthood Federation of America: ''This ruling
flies in the face of 30 years of Supreme Court precedent and the best interest
of women's health and safety. ... This ruling tells women that politicians, not
doctors, will make their health care decisions for them.'' She had argued that
point before the justices.
More than 1 million abortions are performed in the United States each year,
according to recent statistics. Nearly 90 percent of those occur in the first 12
weeks of pregnancy, and are not affected by Wednesday's ruling.
Six federal courts have said the law that was in focus Wednesday is an
impermissible restriction on a woman's constitutional right to an abortion.
The law bans a method of ending a pregnancy, rather than limiting when an
abortion can be performed.
''Today's decision is alarming,'' Justice Ruth Bader Ginsburg wrote in dissent.
She said the ruling ''refuses to take ... seriously'' previous Supreme Court
decisions on abortion.
Ginsburg said the latest decision ''tolerates, indeed applauds, federal
intervention to ban nationwide a procedure found necessary and proper in certain
cases by the American College of Obstetricians and Gynecologists.''
Ginsburg said that for the first time since the court established a woman's
right to an abortion in 1973, ''the court blesses a prohibition with no
exception safeguarding a woman's health.''
She was joined by Justices Stephen Breyer, David Souter and John Paul Stevens.
The procedure at issue involves partially removing the fetus intact from a
woman's uterus, then crushing or cutting its skull to complete the abortion.
Abortion opponents say the law will not reduce the number of abortions performed
because an alternate method -- dismembering the fetus in the uterus -- is
available and, indeed, much more common.
In 2000, the court with key differences in its membership struck down a state
ban on partial-birth abortions. Writing for a 5-4 majority at that time, Justice
Breyer said the law imposed an undue burden on a woman's right to make an
The Republican-controlled Congress responded in 2003 by passing a federal law
that asserted the procedure is gruesome, inhumane and never medically necessary
to preserve a woman's health. That statement was designed to overcome the health
exception to restrictions that the court has demanded in abortion cases.
But federal judges in California, Nebraska and New York said the law was
unconstitutional, and three appellate courts agreed. The Supreme Court accepted
appeals from California and Nebraska, setting up Wednesday's ruling.
Kennedy's dissent in 2000 was so strong that few court watchers expected him to
take a different view of the current case.
Kennedy acknowledged continuing disagreement about the procedure within the
medical community. In the past, courts have cited that uncertainty as a reason
to allow the disputed procedure.
But Kennedy said, ''The law need not give abortion doctors unfettered choice in
the course of their medical practice.''
He said the more common abortion method, involving dismemberment, is beyond the
reach of the federal ban.
While the court upheld the law against a broad attack on its constitutionality,
Kennedy said the court could entertain a challenge in which a doctor found it
necessary to perform the banned procedure on a patient suffering certain medical
Doctors most often refer to the procedure as a dilation and extraction or an
intact dilation and evacuation abortion.
The law allows the procedure to be performed when a woman's life is in jeopardy.
The cases are Gonzales v. Carhart, 05-380, and Gonzales v. Planned Parenthood,
Supreme Court Upholds Ban on Abortion Procedure,
http://www.nytimes.com/aponline/us/AP-Scotus-Abortion.html - broken link
Supreme Court Rejects
Request to Reinsert Feeding Tube
March 24, 2005
The New York Times
By ABBY GOODNOUGH
and MARIA NEWMAN
LEARWATER, Fla., March 23 - The Supreme Court today turned down a request by
Terri Schiavo's parents for an emergency order to restore the Florida woman's
feeding tube, and a few hours later a Florida judge turned down a request by
Gov. Jeb Bush to intervene in the case.
The two decisions leave the parents, Robert and Mary Schindler, with little hope
to keep alive their daughter, who suffered serious brain damage when she
collapsed 15 years ago.
The tube was removed on Friday, on the order of the state judge, George W.
Greer, and the parents' efforts to have it reinserted attracted the attention of
Congress and President Bush, who rushed through special legislation to help
In a one-sentence notice, the Supreme Court said the matter had been presented
to Justice Anthony M. Kennedy, and referred by him to the full court. But it
offered no explanation as to why it was denied. The justices seldom elaborate
when they turn down cases decided by lower courts.
A few hours later, Judge Greer, of Pinellas-Pasco Circuit Court in Florida,
ruled against new efforts by Gov. Bush and Florida's social services agency to
intervene in the case to have further examinations done on Ms. Schiavo. The
governor said Wednesday that a doctor who had seen videotapes of Ms. Schiavo and
visited with her for 90 minutes, but had not performed a physical exam, had
concluded that she might not be in a persistent vegetative state, as other
doctors have testified to the courts.
It is unclear what the Schindlers plan to do next, as they did not immediately
comment on today's two critical decisions. In one of the last pending legal
matters, a hearing is scheduled for 6 p.m. today in federal court in Tampa to
hear an amended version of a lawsuit filed by David Gibbs, a lawyer for the
parents, which contends that Ms. Schiavo's civil rights were denied by the state
George Felos, the lawyer for Ms. Schiavo's husband, Michael, told reporters
earlier today that "the new claims raised are even more insubstantial than the
"It saddens me greatly that we have to run to court to get court orders to
protect Terri Schiavo from the abuse of the state of Florida," Mr. Felos said.
The Schindlers have been locked in a legal battle for eight years with their
son-in-law, who has said Ms. Schiavo told him she did not want to be kept alive
by artificial means.
Just after midnight on Monday, Congress passed a law that Mr. Bush signed an
hour later that transferred the case from state to federal courts.
But in short order, their efforts failed to sway a federal district judge in
Florida, a three-judge panel of a federal appeals court in Atlanta and the full
appeals court, all of whom declined to order the reinsertion of the tube.
Today's Supreme Court decision seems to have exhausted the legislative efforts
Mr. Felos said he was "grateful" for the Supreme Court decision.
"It should become obvious to everyone and every observer that the entire
judicial system of the United States, the state courts in the state of Florida,
the entire federal judiciary, has said, this case must end, this case is over,"
Mr. Felos told reporters. "Mrs. Schiavo's legal rights have been ruled on again
and again and again. The courts have consistently found that she did not want to
remain alive artificially.
"Her wishes should be carried out," he said. "And in that spirit, I hope that
the parents do not keep pursing fruitless legal options to the end. I think
their time would be better served in reflection."
A White House spokesman, Dana M. Perino, said that President Bush was told of
the Supreme Court's decision while vacationing at his ranch in Crawford, Tex.,
The Associated Press said.
"The president looked at all options before signing the legislation last
weekend," Ms. Perino said. "He felt that the legislation passed by Congress was
the best course of action. Terri Schiavo's case is extraordinary and sad.
"As the president said yesterday, he believes that in a case such as this, the
legislative branch and the executive branch should err on the side of life," Ms.
The Senate majority leader, Bill Frist of Tennessee, who led efforts to pass the
Congressional action, reacted in a statement to the Supreme Court decision.
"I'm saddened by the decision of the court to reject Terri Schiavo's case for
life despite a compelling case for reexamination of the medical evidence," the
senator said. "It is a sad day for her loving family and for their innocent and
And House Majority Leader Tom DeLay of Texas, who also led efforts to help the
Schindlers, said in a a joint statement issued with F. James Sensenbrenner Jr.
of Wisconsin, the chairman of the House Judiciary Committee, that they felt
"sadness and disappointment" about the Supreme Court decision.
"Sadly, Mrs. Schiavo will not receive a new and full review of her case as the
legislation required," they said, adding they "strongly believe that the court
erred in reaching its conclusion and that once again they have chosen to ignore
the clear intent of Congress."
They urged "Governor Bush and the Florida legislature to continue examining all
options to save Terri's life."On Wednesday, the Florida Senate rejected a
measure that would have blocked doctors from withdrawing life support from
patients who had not issued written instructions.
As word of the Supreme Court decision spread through the crowd of supporters
outside the hospice in Pinellas Park where Ms. Schiavo resides, there was a
sadness and anger about Ms. Schiavo's deteriorating condition.
"Yesterday, the legislative options closed," the Rev. Pat Mahoney of the
National Clergy Council said to the crowd through a megaphone. "Today the legal
options closed. Gov. Bush is now the only practical hope here for Terri Schiavo.
We plead with Gov. Bush and the D.C.F. to intercede. Let us pray right now for
Mr. Felos told reporters that Mr. Schiavo has been with his wife throughout
these last few days since her feeding tube was removed.
"Terri is peaceful," he said about Ms. Schiavo's condition. "She's resting
comfortably. She's dying. She's in her death process. She's being attended to by
a team of wonderful and compassionate professional health care workers at
hospice who are well-trained to see that her physical needs are met and she be
able to die with dignity and with peace."
Late Wednesday afternoon, state lawyers appeared before Judge Greer and asked to
intervene in the case.
Judge Greer did not rule on their request immediately, but he granted a request
from Ms. Schiavo's husband to bar the state's Department of Children and
Families from removing her from the hospice where she has gone six days without
her feeding tube and from providing her with nutrition or hydration.
Mr. Felos said he had heard "credible" rumors that state officials planned to
send doctors to the hospice to give Ms. Schiavo intravenous fluids. Judge Greer
also directed state sheriffs to take whatever actions were necessary to enforce
The hearing in Judge Greer's court came at the end of day in which Ms. Schiavo's
parents suffered several setbacks in their efforts to force doctors to reinsert
the tube, which had provided food and water to her for 15 years.
First, a three-judge panel of the United States Court of Appeals for the 11th
Circuit upheld a lower-court ruling that rejected a resumption of feeding. That
decision was upheld in the afternoon by the full appellate court on a 10-to-2
Speaking Wednesday from Tallahassee before Judge Greer's hearing, Governor Bush
indicated the state might indeed try to take custody of Ms. Schiavo, which the
law would allow it to do under certain circumstances.
He said a new review by Dr. William P. Cheshire, a neurologist in Jacksonville,
suggested that Ms. Schiavo had been misdiagnosed as being in a "persistent
vegetative state," meaning she cannot think, emote or remember.
Dr. Cheshire, who visited Ms. Schiavo in her hospice room for an hour and a half
on March 1 and reviewed videotapes of her made by her parents, said that instead
she appeared to be minimally conscious.
"This new information raises serious concerns and warrants immediate action,"
Mr. Bush said. "If there's any uncertainty, we should err on the side of
Dr. Cheshire is the director of a laboratory at the Mayo Clinic branch in
Jacksonville that deals with unconscious reflexes like digestion, and the
director of biotech ethics at the Center for Bioethics and Human Dignity, a
nonprofit group founded by "more than a dozen leading Christian bioethicists,"
in the words of its Web site. The clinic said in a statement that the state had
invited Dr. Cheshire to offer his opinion. Other doctors who have examined Ms.
Schiavo for the Florida courts have declared her to be irredeemably brain
Abby Goodnough reported from Clearwater
for this article
and Maria Newman from
Adam Liptak contributed reporting from New York.
Supreme Court Rejects
Request to Reinsert Feeding Tube,
Supreme Court Strikes Down
Texas Law Banning Sodomy
June 26, 2003
The New York Times
By JOEL BRINKLEY
WASHINGTON, June 26 — The Supreme Court struck down a Texas law today
that forbids homosexual sex, and reversed its own ruling in a similar Georgia
case 17 years ago, thus invalidating antisodomy laws in the states that still
Justice Anthony M. Kennedy, writing for the majority in the 6-to-3 Texas
decision, said that gay people "are entitled to respect for their private
lives," adding that "the state cannot demean their existence or control their
destiny by making their private sexual conduct a crime."
Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G.
Breyer agreed with Justice Kennedy. Justice Sandra Day O'Connor sided with the
majority in its decision, but in a separate opinion disagreed with some of
Justice Kennedy's reasoning.
Justice Antonin Scalia wrote the dissent and took the unusual step of reading it
aloud from the bench this morning, saying "the court has largely signed on to
the so-called homosexual agenda," while adding that he personally has "nothing
against homosexuals." Joining Justice Scalia's dissent were Chief Justice
William H. Rehnquist and Justice Clarence Thomas.
Justice Scalia said he believed the ruling paved the way for homosexual
marriages. "This reasoning leaves on shaky, pretty shaky, grounds state laws
limiting marriage to opposite-sex couples," he wrote.
The court's actions today would also seem to overturn any law forbidding sodomy,
no matter whether it deals with homosexual or heterosexual activity.
The case, Lawrence v. Texas, No. 02-102, was an appeal of a ruling by the Texas
Court of Appeals, which had upheld the law barring "deviate sexual intercourse."
The plaintiffs, John G. Lawrence and Tyron Garner of Houston, were arrested in
1998 after police officers, responding to a false report of a disturbance,
discovered them having sex in Mr. Lawrence's apartment. Mr. Lawrence and Mr.
Garner were jailed overnight and fined $200 each after pleading no contest to
In its ruling today in the Texas case and its revisiting of the 1986 Georgia
case, the Supreme Court made a sharp turn.
In 1986, the justices upheld an antisodomy law in Georgia, prompting protests
from gay rights advocates and civil liberties groups. But in the 17 years since,
the social climate in the United States has changed, broadening public
perceptions of gays and softening the legal and social sanctions that once
confronted gay people. Until 1961, all 50 states banned sodomy. By 1968, that
number had dwindled to 24 states, and by today's ruling, it stood at 13.
Even though the court upheld the Georgia antisodomy statute — which had
applied to heterosexual as well as homosexual conduct — a Georgia court
later voided it. But the justices' ruling on the legal principle behind the
Georgia statute continued to stand, so today the court, voting 5 to 4, issued a
new ruling overturning its 1986 decision in the Georgia case.
Of the three current justices who were on the court when it initially ruled in
the Georgia case, in 1986, Justices Rehnquist and O'Connor voted to uphold the
Georgia law in 1986 and Justice Stevens voted to strike it down.
The Lambda Legal Defense and Education Fund, which works on behalf of gay rights
advocates and related groups, brought the appeal of the Texas ruling to the
court, arguing that it violated equal protection and due process laws. It
described sexual intimacy in the home as an aspect of the "liberty" protected by
the Constitutional guarantee of due process.
Today's ruling "will be a powerful tool for gay people in all 50 states where we
continue fighting to be treated equally," the Lambda fund's legal director, Ruth
Harlow, said. "For decades, these laws have been a major roadblock to equality.
They've labeled the entire gay community as criminals and second-class citizens.
Today, the Supreme Court ended that once and for all."
Some lawyers for the plaintiffs wept in the courtroom as the court made public
its decision today. Several legal and medical groups had joined gay rights and
human rights groups in their challenge to the Texas law.
But traditional-values conservatives reacted angrily to the court's actions,
particularly regarding the prospect that they could open the legal door to gay
"If there's no rational basis for prohibiting same-sex sodomy by consenting
adults, then state laws prohibiting prostitution, adultery, bigamy, and incest
are at risk," Jan LaRue, chief counsel for Concerned Women for America, a
conservative group, said. "No doubt, homosexual activists will try to bootstrap
this decision into a mandate for same-sex marriage. Any attempt to equate sexual
perversion with the institution that is the very foundation of society is as
baseless as this ruling."
Nonetheless, today's ruling was not surprising, given the tone of the justices'
questions during oral arguments before the court on March 26, when it appeared
that a majority of the court was even then ready to overturn the Texas law.
Most of the remaining states with antisodomy laws forbid anal or oral sex among
consenting adults no matter their sex or relationship. Texas is one of only four
states whose law distinguished between heterosexual and homosexual consensual
In the March arguments, the plaintiffs' lawyer, Paul M. Smith, chose to argue
that while the concept of gay rights as such did not have deep historical roots,
a libertarian spirit of personal privacy did reach back to the country's
"So you really have a tradition of respect for the privacy of couples in their
home, going back to the founding," Mr. Smith said. He noted that three-quarters
of the states had repealed their criminal sodomy laws for everyone, "based on a
recognition that it's not consistent with our basic American values about the
relationship between the individual and the state."
Justice Scalia retorted, "Suppose that all the states had laws against flagpole
sitting at one time" and subsequently repealed them. "Does that make flagpole
sitting a fundamental right?"
The district attorney for Harris County, Tex., Charles A. Rosenthal Jr., argued
that "Texas has the right to set moral standards and can set bright-line moral
standards for its people." He asked the court "not to disenfranchise 23 million
Texans who ought to have the right to participate in questions having to do with
But in the ruling today, Justice Sandra Day O'Connor wrote, "A law branding one
class of persons as criminal solely based on the state's moral disapproval of
that class and the conduct associated with that class runs contrary to the
values of the Constitution and the Equal Protection Clause, under any standard
Supreme Court Strikes Down Texas Law Banning
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