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History > 2009 > USA > Supreme Court (II)




New Execution Method

Is Used in Ohio


December 9, 2009
The New York Times


Ohio prison officials executed a death row inmate, Kenneth Biros, Tuesday with a one-drug intravenous lethal injection, a method never before used on a human.

The new method, which involved a large dose of anesthesia, akin to how animals are euthanized, has been hailed by most experts as painless and an improvement over the three-drug cocktail used in most states, but it is unlikely to settle the debate over the death penalty.

While praising the shift to a single drug, death penalty opponents argue that Ohio’s new method, and specifically its backup plan of using intra-muscular injection, has not been properly vetted by legal and medical experts and that since it has never been tried out on humans before, it is the equivalent of human experimentation.

But the United States Supreme Court refused to intervene on Tuesday morning, and the procedure went largely as planned.

Mr. Biros, 51, died at 11:47 a.m., holding a white scarf. The scarf, which symbolizes a blessing, was given to Mr. Biros by two Buddhist spiritual advisers that Mr. Biros had consulted in recent weeks.

Ohio became the first state to adopt the one-drug method after prison officials postponed an execution in September. During that execution attempt, they could not find a usable vein to inject three chemicals in the inmate, Romell Broom, 53, who was convicted of the 1984 abduction, rape and murder of a 14-year-old girl.

Mr. Biros was convicted of killing Tami Engstrom, 22, near Warren, in northeastern Ohio, in 1991 after offering to drive her home from a bar, then scattered her body parts in Ohio and Pennsylvania. He acknowledged killing her but said it was done during a drunken rage.

Ms. Engstrom’s mother, brother and sister attended the execution, as did one of Mr. Biros’s lawyers, John Parker, and two of Mr. Biros’s friends.

As Ms. Engstrom’s family members entered the prison Tuesday, a reporter asked if they were ready. “We’ve been ready for 18 years,” one of the Engstroms said, according to The Columbus Dispatch.

Shortly before the execution, Mr. Biros gave his personal belongings — seven CDs, an address book, a portable CD player, a rosary and a notebook — to his siblings.

It was the second trip to the holding cell for Mr. Biros, who spent a day and night there in March 2007 as his lawyers scrambled to halt his execution. The Supreme Court intervened that time because of challenges over the use of the three-drug cocktail.

Opponents of the death penalty have long argued that using a single drug is more humane than the three-drug cocktail, which involves a short-acting barbiturate to render the inmate unconscious, followed by a paralytic and then a chemical to stop the heart.

Still, death penalty opponents criticized the state for not allowing more time for closer scrutiny of the new protocol.

“The key is due process,” said Richard C. Dieter, executive director of the Death Penalty Information Center in Washington. He said that, for example, when New York introduced the electric chair in 1890, the case went to the Supreme Court, which decided that the punishment might be more humane than hanging.

“The court held that death row prisoner received due process because the New York Legislature had considered the punishment method carefully,” he added. “In this case, however, everyone has taken the Ohio Department of Corrections at their word, without an adversarial debate.”

Deborah W. Denno, a Fordham University law professor who is an expert on the death penalty and lethal injection, added that she believed the constitutionality of the new state protocol could be challenged if it is found not to be “substantially similar” to the three-drug method used by the state of Kentucky, which the court approved last year.

A federal judge in Ohio disagreed, however, and on Monday he denied a request from Mr. Biros to delay his execution until lawyers could conduct a review of the new protocol.

The judge, Gregory L. Frost of United States District Court, said that Mr. Biros had not demonstrated “at this juncture” that the new protocol is unconstitutional.

But the judge also said “It does not foreclose the possibility that additional evidence will indeed prove that the problems with Ohio’s policies and practice rise to a constitutional error.”

On Monday night, Mr. Biros’s lawyers filed an emergency request with the Supreme Court asking for his execution to be stopped.

Tim Sweeney, one of Mr. Biros’s lawyers, said that while the shift to a single-drug cocktail was a positive development, many concerns remained.

The state still relies on unqualified executioners who may not know how to find a usable vein, and the new protocol does not clearly set a limit on how long prison officials will keep sticking the patient with a needle if veins are collapsed before they transition to the backup plan, he said. The drug used in the backup plan has demonstrated side effects — nausea, vomiting, severe disorientation — which may make the experience more painful than prison officials realize, he added.

Mr. Biros was moved to the holding area for death row inmates about 15 feet from the death chamber at the Southern Ohio Correctional Facility in Lucasville on Monday morning, prison officials said.

In the afternoon, he had a snack of peanut butter and jelly sandwiches. At night, he was to be served a meal of cheese pizza, onion rings, fried mushrooms, Doritos chips, French onion dip, blueberry ice cream, cherry pie and Dr Pepper soda, they said.

On Tuesday, Mr. Biros received communion and seemed calm as he awaited his fate, prison officials said.

    New Execution Method Is Used in Ohio, NYT, 9.12.2009, http://www.nytimes.com/2009/12/09/us/09ohio.html






Linda Greenhouse on the Supreme Court and the law.

Selective Empathy


December 3, 2009, 9:11 pm
The New York Times


In overturning a death sentence this week of a Korean War veteran whose lawyer failed to inform the jury about the man’s combat-related traumatic stress disorder, the Supreme Court drew cheers from veterans’ groups and death-penalty opponents. But it also raised a question:

Is selective empathy better than no empathy at all?

Related Series
Home Fires: Writing by Veterans »

The veteran, George Porter Jr., was 53 years old when, after a night of drinking, he shot his former girlfriend and her new lover to death. It was 1986, and the Korean War had been over for 33 years. Mr. Porter saw heavy combat in Korea, and his life when he came home was a mess. It was evidently a mess before Korea as well: he escaped his violent and abusive family by joining the Army at the age of 17.

Sentenced to death in 1988 by a Florida judge for one of the murders, Mr. Porter filed two rounds of unsuccessful appeals in the Florida courts. He then turned to the federal courts, seeking to overturn his sentence by means of a writ of habeas corpus. His claim was that his lawyer’s failure to inform the sentencing jury about his wartime experience and its aftermath fell below the Constitution’s minimum standards for adequate representation.

“Ineffective assistance of counsel” is an exceptionally difficult claim on which to succeed. The Supreme Court has found ineffective assistance only a handful of times since it raised the bar in a 1984 case, Strickland v. Washington. That decision requires defendants to prove two elements: that the lawyer’s performance “fell below an objective standard of reasonableness” and that there was a “reasonable probability” that the outcome would have been different if not for the bad lawyering.

The second prong is a special challenge for death-sentenced defendants, who must demonstrate that an adequate lawyer would have provided the sentencing jury with enough mitigating evidence to overcome the weight of the prosecution’s “aggravating evidence.” An abundance of aggravating evidence is often the reason the prosecution is seeking the death penalty in the first place.

When the ineffective-assistance claim is made in a habeas corpus petition in federal court, the bar is even higher. Under a 1996 federal law, the defendant must show that the state court’s decision was not simply mistaken on its own terms, but that it “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” — in other words, that the state court had all but defied controlling Supreme Court precedent. The federal appeals court in Atlanta ruled that Mr. Porter was not entitled to habeas corpus because even if the Florida courts were wrong to regard his lawyer as adequate, they were not so wrong as to be unreasonably wrong.

That was the decision the Supreme Court overturned. It was “objectively unreasonable,” the justices said, to discount the possibility that a decent lawyer, presenting a convincing narrative of Mr. Porter’s military service and lingering trauma, could have persuaded the jury to spare his life. The court then provided such a narrative itself, with a vivid recitation of the battles Mr. Porter’s unit had fought “under extreme hardship and gruesome conditions.” The opinion observed that “our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.”

There were several notable features to this decision, Porter v. McCollum. The most obvious was that the 15-page opinion was unanimous and unsigned, labeled simply “per curiam,” meaning “by the court.” The court had not heard argument in the case and never formally accepted it for decision. Evidently the justices concluded that the right decision was so obvious that they could dispense with the formality of further briefing and argument.

Beyond those procedural niceties, the most notable feature of all was the sympathy that all nine justices displayed for a man who, in the fullness of his adulthood and after promising a friend that she would soon be reading about him in the newspaper, stole another friend’s gun and shot two people to death in cold blood.

Just last month, the same nine justices, also per curiam and also unanimously, sent chills down the spine of death-penalty opponents by overturning a different federal appeals court’s grant of habeas corpus to an Ohio death-row inmate who also claimed ineffective assistance of counsel. The inmate, Robert J. Van Hook, robbed and murdered a man he picked up in a gay bar. He is also a military veteran, but one whose service was terminated because of alcohol and drug abuse.

The appeals court found that his trial lawyer had conducted only a perfunctory, last-minute search for mitigating evidence, and failed to inform the jury of such “unsettling and potentially mitigating” details as the fact that Mr. Van Hook had a history of mental illness; that his parents had repeatedly beaten him; that his father tried to kill his mother several times in his presence; and that his mother was committed to a psychiatric hospital when he was a young child. Introducing this evidence “could certainly have tipped the scales in favor of his life,” the appeals court said in overturning the death sentence.

In its unsigned opinion reversing that decision, Bobby v. Van Hook, the Supreme Court parsed the evidence that was presented and concluded that the lawyer’s decision “not to seek more” fell “well within the range of professionally reasonable judgments.” The American Bar Association standards in effect at the time of trial required no more, the opinion said.

Justice Samuel A. Alito added a concurring paragraph to observe that the A.B.A. “is, after all, a private group with limited membership,” and its views should not be given “special relevance” in determining whether a lawyer’s performance meets constitutional standards.

The paragraph was not only gratuitous. It also was a chilling reminder of how the court has changed since the retirement of the justice whom Justice Alito replaced, Sandra Day O’Connor. In a 2003 majority opinion, Wiggins v. Smith, Justice O’Connor cited the bar association’s standards in concluding that a lawyer’s representation of a Maryland death-row inmate had been constitutionally deficient. William H. Rehnquist, then the chief justice, joined that opinion; only Justices Antonin Scalia and Clarence Thomas dissented.

Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men’s childhoods were — indeed, how common such childhoods were among the hundreds of death-row inmates whose appeals I have read over the years and, I have to assume, among the 3,300 people on death row today. It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate.

I don’t make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed this week on one of that number. Am I glad that a hapless 77-year-old man won’t be put to death by the State of Florida? Yes, I am. Am I concerned about a Supreme Court that dispenses empathy so selectively? Also yes.

    Selective Empathy, NYT, 3.12.2009, http://opinionator.blogs.nytimes.com/2009/12/03/selective-empathy/






Inmate With Low I.Q. Nears Execution in Texas


December 4, 2009
The New York Times


HOUSTON — A 44-year-man whose lawyers claim he is mentally retarded is scheduled to be executed Thursday evening in Huntsville, Tex., unless the United States Supreme Court agrees to hear his case.

The man, Bobby Wayne Woods, whose I.Q. hovers around the level of a mildly retarded person’s, was convicted of the brutal killing of an 11-year-old girl in 1997 and sentenced to death.

The debate over whether he should be executed reflects the gray area left by the Supreme Court in 2002, when it ruled the mentally impaired were not eligible for the death penalty but left it up to state courts to interpret which inmates qualified as impaired.

Mr. Woods’s lawyers argue that his intelligence scores are low enough that he should be spared because of the Supreme Court ban in Atkins v. Virginia. But several courts have rejected that claim.

Maurie Levin, a University of Texas law professor who represents Mr. Woods, said in a pleading that “his I.Q. hovers around 70, the magical cutoff point for determining whether someone is mentally retarded.”

“He’s transparently childlike and simple,” she said. “It’s a travesty.”

In its 2002 ruling, the Supreme Court said that to demonstrate that someone is mentally retarded, one must prove that the person has had low I.Q. scores and a lack of fundamental skills from a young age. The court said a score on intelligence tests of “around 70” indicated mental retardation.

But that standard has been applied unevenly by state courts, according to a study by Cornell law professors. Some state courts in Mississippi, Alabama and Texas have held that inmates with scores as low as 66 are not impaired, while an inmate in California with a score of 84 was declared mentally retarded.

Courts in Texas repeatedly rejected Mr. Wood’s claims of mental impairment, although the state’s highest criminal court last year halted his execution to allow more hearings on the matter. That reprieve was lifted in October and this week, the Texas Board of Pardons and Paroles voted unanimously to reject a clemency request.

As a child, Mr. Woods struggled in school and eventually dropped out in the seventh grade. He was barely literate and had to copy words from a spelling list to write the simple notes he sent his family.

His intelligence was tested twice in grade school, and he received scores of 80 and 78, but defense lawyers argued that those scores should be adjusted downward to account for the age of the tests. As an adult, he was tested just before his trial and scored 70. A second test done in prison in 2002 showed him with an I.Q. of 68.

Mr. Woods, 44, was convicted of killing his former girlfriend’s daughter in April 1997. A jury determined he had abducted the 11-year old girl, Sarah Patterson, along with her brother, Cody, from the family’s home in Granbury, Tex., about 35 miles southwest of Fort Worth. The girl was raped before her throat was slit. The boy was severely beaten and left for dead near a cemetery, but he survived.

The outcry in Hood County over the crime was so intense the trial was moved 125 away miles, to Llano County, where a jury voted to condemn Mr. Woods to death. At the trial, Cody Patterson identified Mr. Woods as the man who had kidnapped them and killed his sister. Genetic traces on the murder weapon were also linked to Mr. Woods.

Mr. Woods initially told the police he had killed the girl by accident — he said he was holding a knife to her throat to keep her quiet when she started to struggle and jerk. Later, he said, the confession had been coerced and he blamed the murder on a cousin, who hanged himself in the weeks after the abductions. Prosecutors claimed there was no evidence of a second man at the scene.

The prosecution also submitted Sarah’s diary to the jury, in which she professed hatred for Mr. Woods. Evidence was presented that the girl had been molested and had contracted a sexually transmitted disease that Mr. Woods also had.

The children’s mother, Schwanna Patterson, had kicked Mr. Woods out of her home just days before her children were attacked. She was convicted in 1998 of injury to her children though neglect, because, prosecutors said, she did nothing to stop the kidnapping. She served eight years in prison.

The question of Mr. Woods’s intelligence and whether he was mentally impaired did not come up during the trial.

The application of the Atkins rule varies widely from state to state. North Carolina courts, for instance, heard 21 Atkins claims and ruled in the inmate’s favor 17 times. Alabama courts heard 26 claims and ruled for the inmate three times.

    Inmate With Low I.Q. Nears Execution in Texas, NYT, 4.11.2009, http://www.nytimes.com/2009/12/04/us/04execute.html






Supreme Court Overturns Decision on Detainee Photos


December 1, 2009
The New York Times


WASHINGTON — The Supreme Court on Monday vacated a lower court ruling that would have required the government to release photographs showing the abuse of prisoners in Iraq and Afghanistan.

The decision was three sentences long and unsigned, and it followed the enactment of a law in October allowing the secretary of defense to block the pictures’ release. The Supreme Court sent the case back to the lower court, the United States Court of Appeals for the Second Circuit, in New York, for further consideration in light of the new law.

The case was brought by the American Civil Liberties Union under the Freedom of Information Act, which makes disclosure of information in the hands of the executive branch mandatory unless an exemption applies. The Second Circuit ordered the photos released last year, and the Justice Department initially recommended against an appeal to the Supreme Court.

But President Obama overruled his lawyers, saying his national security advisers had persuaded him that releasing the photos would inflame anti-American sentiment abroad and endanger American troops. Some of the pictures, according to a government brief, showed “soldiers pointing pistols or rifles at the heads of hooded and handcuffed detainees,” a soldier who appears to be striking a detainee with the butt of a rifle, and a soldier holding a broom “as if sticking its end” into a prisoner’s rectum.

In the Second Circuit, the government relied on an exemption to the freedom of information law that applies to “information compiled for law enforcement purposes” that “could reasonably be expected to endanger the life or physical safety of any individual.”

Judge John Gleeson, writing for a unanimous three-judge panel of the Second Circuit last year, said the exemption required a specific anticipated danger. The exemption “may be flexible, but it is not vacuous,” Judge Gleeson wrote. Referring to “a population the size of two nations and two international expeditionary forces combined,” he said, is insufficient.

The government’s reading, the judge added, would create “an alternative secrecy mechanism far broader than the government’s classification system.”

The Supreme Court’s summary order in the case, Department of Defense v. A.C.L.U., No. 09-160, did not address whether that ruling was correct. It merely said the new law required reconsideration of the case.

The law applies to photographs taken from Sept. 11, 2001, to Jan. 22, 2009, showing “the treatment of individuals engaged, captured or detained after Sept. 11, 2001, by the armed forces of the United States in operations outside of the United States,” so long as the secretary of defense certifies that disclosure “would endanger citizens of the United States, members of the United States armed forces or employees of the United States government deployed outside of the United States.”

Robert M. Gates, the secretary of defense, signed the required certification on Nov. 13.

Human rights groups and news organizations, including The New York Times, urged the Supreme Court to refuse to hear the case.

The court’s brief order indicated that Justice Sonia Sotomayor, who until recently was a judge on the Second Circuit, did not participate in Monday’s decision. Judge Sotomayor was not a member of the appeals court panel that ordered the photos released.

The A.C.L.U. issued a statement saying it would continue to fight for disclosure of the pictures.

“We continue to believe that the photos should be released, and we intend to press that case in the lower court,” said Steven R. Shapiro, the group’s legal director. “No democracy has ever been made stronger by suppressing evidence of its own misconduct.”

    Supreme Court Overturns Decision on Detainee Photos, NYT, 1.12.2009, http://www.nytimes.com/2009/12/01/us/politics/01scotus.html






Justices Say Capital Cases Must Weigh War Trauma


December 1, 2009
The New York Times


WASHINGTON — A death penalty lawyer’s failure to present evidence of the trauma his client suffered in combat in the Korean War requires a new sentencing hearing, the Supreme Court ruled unanimously on Monday.

The decision makes clear that lawyers for clients facing the death penalty must present evidence of post-traumatic stress disorder resulting from military service if it is available.

The unsigned 15-page decision displayed unusual solicitude for a death-row inmate, noting that “our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines.”

The defendant, George Porter Jr., was convicted in 1987 of murdering his former girlfriend, Evelyn Williams, and her boyfriend, Walter Burrows, in Melbourne, Fla., the previous year. Mr. Porter represented himself for part of his trial and then decided to plead guilty.

He turned to a court-appointed lawyer, Sam Bardwell, to represent him in the sentencing hearing. Mr. Bardwell, who had never represented a defendant in a capital sentencing proceeding, did not interview any of his client’s relatives and did not obtain any school, medical or military service records. He presented only one witness, Mr. Porter’s ex-wife.

Mr. Bardwell’s investigation, Monday’s decision said, was not “even cursory.” Mr. Bardwell has explained that his client had been fatalistic and uncooperative. He did not respond to a message seeking comment on Monday.

Mr. Bardwell’s conduct “did not reflect reasonable professional judgment,” the decision said. “Had Porter’s counsel been effective, the judge and jury would have learned,” among other things, “about Porter’s heroic military service in two of the most critical — and horrific — battles of the Korean War.”

At a 1995 state-court hearing on whether Mr. Porter was entitled to a new sentencing, his company commander testified about the “ horrifying experiences” Mr. Porter had endured, including a “fierce hand-to-hand fight with the Chinese” and a two-day battle in which his company suffered casualties of more than 50 percent.

“After his discharge,” the decision said, Mr. Porter “suffered dreadful nightmares and would attempt to climb his bedroom walls with knives at night.”

Florida state courts turned down Mr. Porter’s request for a new sentencing hearing. The state trial judge relied heavily on the fact that Mr. Porter had been absent without leave in both Korea and the United States, saying that reduced the value of Mr. Porter’s military service to “inconsequential proportions.”

A federal trial judge granted Mr. Porter a new sentencing hearing in 2007, but the United States Court of Appeals for the Eleventh Circuit, in Atlanta, reversed that decision, saying it would defer to the state rulings.

That was a mistake, the Supreme Court ruled on Monday in Porter v. McCollum, No. 08-10537. The Florida Supreme Court had “unreasonably discounted the evidence of Porter’s childhood abuse and military service,” the decision said.

“The relevance of Porter’s extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions,” the decision said, “but also that the jury might find mitigating the intense stress and emotional toll that combat took on Porter.”

    Justices Say Capital Cases Must Weigh War Trauma, NYT, 1.12.2009, http://www.nytimes.com/2009/12/01/us/01penalty.html






30 Years After Murder, Is His Appeal Too Late?


November 17, 2009
The New York Times


WASHINGTON — The Supreme Court agreed Monday to decide whether it is too late for an Alabama man to argue that the murder that sent him to death row was not a capital crime when he committed it.

The inmate, Billy Joe Magwood, shot and killed Sheriff Neil Grantham in 1979 in front of the Coffee County jail. At the time, Alabama law imposed two requirements before the state’s judges could sentence defendants to death: the commission of one of 14 listed offenses and the existence of certain “aggravating circumstances.”

The murder of a peace officer like a sheriff was a listed offense. But Mr. Magwood’s crime did not satisfy the second requirement. The question before the Supreme Court is whether he took too long to raise the argument that he could not have lawfully been sentenced to death.

Although Mr. Magwood’s lawyers challenged his sentence on other grounds over the years, it was not until 1997 that they raised the question of whether his was a capital crime under Alabama law. In the meantime, a federal judge, acting on other grounds, ordered Mr. Magwood resentenced in 1985. He was again sentenced to death the next year.

A 1996 federal law, the Antiterrorism and Effective Death Penalty Act, imposes strict limits on successive federal habeas corpus petitions. Under the law, a petition challenging Mr. Magwood’s original death sentence might well be barred, given his earlier challenges. But Mr. Magwood argues that he is challenging his 1986 resentencing for the first time.

A unanimous three-judge panel of the United States Court of Appeals for the 11th Circuit, in Atlanta, ruled in January that since Mr. Magwood could have challenged his original sentence on the grounds he now asserts, he cannot raise them now.

In urging the Supreme Court not to hear the case, Magwood v. Culliver, No. 09-158, Attorney General Troy King of Alabama said Mr. Magwood’s argument “unquestionably could have been, but was not, raised during his first round of litigation 20-plus years earlier.”

There appears to be little dispute that a literal reading of the law in effect at the time of the murder did not allow Mr. Magwood to be sentenced to death.

In a 1981 decision in another case, the Alabama Supreme Court acknowledged that “a literal and technical reading of the statute” would forbid the death penalty in circumstances like Mr. Magwood’s. But the court called that result “completely illogical” and “an anomaly in Alabama’s death penalty statute” that could not have been intended by the State Legislature.

The parties in Mr. Magwood’s case disagree about the significance and retroactive applicability of that decision, which was issued two years after his crime.

Mr. Magwood also asked the United States Supreme Court to decide whether his trial lawyers — one a childhood friend of Sheriff Grantham — had been ineffective in failing to raise the argument that their client was ineligible for the death penalty. The Supreme Court declined to hear that part of the appeal, confining itself to the question of whether Mr. Magwood’s new lawyers had raised the point too late.

    30 Years After Murder, Is His Appeal Too Late?, NYT, 17.11.2009, http://www.nytimes.com/2009/11/17/us/17scotus.html






D.C. Sniper Is to Be Executed on Tuesday


November 10, 2009
The New York Times


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, http://www.nytimes.com/2009/11/10/us/10sniper.html







Imprisoning a Child for Life


November 9, 2009
The New York Times


The United States could be the only nation in the world where a 13-year-old child can be sentenced to life in prison without possibility of parole, even for crimes that do not include murder. This grim distinction should trouble Americans deeply, as should all of the barbaric sentencing policies for children that this country embraces but that most of the world has abandoned.

The Supreme Court must keep the international standard in mind when it hears arguments on Monday in Graham v. Florida and Sullivan v. Florida. The petitioners in both argue that sentencing children to life without the possibility of parole for a nonhomicide violates the Eighth Amendment prohibition against cruel and unusual punishment.

The court came down on the right side of this issue in 2005 when it ruled that children who commit crimes before the age of 18 should not be subject to the death penalty. The decision correctly pointed out that juveniles were less culpable because they lacked maturity, were vulnerable to peer pressure and had personalities that were still being formed.

Writing for the majority, Justice Anthony Kennedy said the practice of executing 16- and 17-year-olds violated the Eighth Amendment, conflicted with “evolving standards of decency” and isolated the United States from the rest of the world.

The Roper decision took scores of juveniles off death row. It also threw a spotlight onto state policies under which young juveniles were increasingly being tried in adult courts and sentenced to adult jails, often for nonviolent crimes.

The practice is even more troubling because it is arbitrary. Children who commit nonviolent crimes like theft and burglary are just as likely to be shipped off to adult courts as children who commit serious violent crimes. And the process is racially freighted, with black and Latino children more likely to be sent to adult courts than white children who commit comparable crimes.

The rush to try more and more children as adults began in the 1980s when the country was gripped by hysteria about an adolescent crime wave that never materialized. Joe Sullivan, the petitioner in Sullivan v. Florida, was sentenced to life without parole in 1989 — when he was just 13 — after a questionable sexual battery conviction. His two older accomplices testified against the younger, mentally impaired boy. They received short sentences, one of them as a juvenile.

The case of Terrance Graham has similar contours. A learning disabled child — born to crack-addicted parents — Mr. Graham was on probation in connection with a burglary committed when he was 16 when he participated in a home invasion. He, too, had older accomplices. He was never convicted of the actual crime but was given life without parole for violating the conditions of his probation.

These were two very troubled children in need of adult supervision and perhaps even time behind bars. But it is insupportable to conclude, as the courts did, that children who committed crimes when they were so young were beyond rehabilitation. The laws under which they were convicted violate current human rights standards and the Constitution.

    Imprisoning a Child for Life, NYT, 9.11.2009, http://www.nytimes.com/2009/11/09/opinion/09mon1.html






Justices to Decide on U.S. Release of Detainees


October 21, 2009
The New York Times


WASHINGTON — The Supreme Court on Tuesday agreed to decide whether federal courts have the power to order prisoners held at Guantánamo Bay to be released into the United States.

The court’s decision to hear the case adds a further complication to the Obama administration’s efforts to close the prison at the naval base in Guantánamo Bay, Cuba. A measure in Congress that would allow detainees to be admitted to the United States just to face trial had to overcome strong resistance before winning final passage on Tuesday. The administration has met with only fitful success in persuading foreign allies to accept prisoners cleared for release.

The Supreme Court is unlikely to hear arguments in the case before late February, a month after the administration’s deadline of Jan. 22 for closing the prison, though there have been recent signals that the deadline may not be met.

The case concerns 13 men from the largely Muslim Uighur region of western China who continue to be held although the government has determined that they pose no threat to the United States.

Last October, a federal judge here ordered the men released into the care of supporters in the United States, initially in the Washington area. But a federal appeals court reversed that ruling in February, saying that judges do not have the power to override immigration laws and force the executive branch to release foreigners into the United States.

That appeals court ruling has tied the hands of judges considering challenges from other prisoners at Guantánamo Bay. According to the Justice Department, trial judges have granted petitions for writs of habeas corpus from 30 Guantánamo prisoners. Of that group, 10 have been transferred to foreign countries. None have been admitted to the United States.

The case presents the next logical legal question in the series of detainee cases that have reached the Supreme Court. Last year, in Boumediene v. Bush, the court ruled that federal judges have jurisdiction to hear habeas corpus claims from prisoners held at Guantánamo.

Lawyers for the Uighur prisoners say the Boumediene ruling would be an empty one if it did not imply giving judges the power to order prisoners to be released into the United States if they cannot be returned to their home countries or settled elsewhere.

A Justice Department spokesman, Dean Boyd, said the administration had been working diligently to release or try prisoners held at Guantánamo.

“This administration remains as committed to closing the detention facility at Guantánamo Bay, which has served as a prime recruiting tool for Al Qaeda and strained our alliances overseas, as it was on the day the president signed the executive order” to close the prison, Mr. Boyd said in a statement, adding that nine detainees had been transferred to foreign countries since President Obama took office in addition to those ordered released by the courts.

Sabin Willett, a lawyer for the Uighur detainees, said in a statement that the Supreme Court’s decision to hear the case demonstrated that courts also have an important role to play.

“We hope this will result in a ruling that confirms that the writ of habeas corpus guarantees to the innocent not just a judge’s learned essay but something meaningful — his release,” Mr. Willett said.

The appeal from the Uighurs has been pending in the Supreme Court since April, and it is not clear why the court acted on it now. The Obama administration has sent four of the Uighur prisoners to Bermuda, and Palau has said that it will accept most of the rest. But at least one prisoner apparently has nowhere to go.

The Uighur prisoners have said they fear they will be tortured or executed if they are returned to China, where they are viewed as terrorists.

The new case, Kiyemba v. Obama, 08-1234, may turn out to be moot if the administration is successful in settling all of the Uighur prisoners abroad. Even if that happens, however, other cases presenting the central issue in the case are likely to follow so long as prisoners cleared for release with nowhere to go remain at Guantánamo.

The new case pits a fundamental judicial function, that of policing unlawful imprisonment through writs of habeas corpus, against one entrusted to the political branches, that of enacting and enforcing immigration laws.

In ordering the Uighur prisoners released, Judge Ricardo M. Urbina acknowledged that this conflict creates a difficult separation-of-powers question.

But Judge Urbina said that time weighed in favor of the Uighurs in the constitutional balance. “Because their detention has already crossed the constitutional threshold into infinitum and because our system of checks and balances is designed to preserve the fundamental right of liberty,” the judge wrote, “the court grants the petitioners’ motion for release into the United States.”

The appeals court ruled that Judge Urbina had overstepped his constitutional authority.

“An undercurrent of petitioners’ arguments is that they deserve to be released into this country after all they have endured at the hands of the United States,” Judge A. Raymond Randolph wrote for the majority of a three-judge panel. “But such sentiments, however high-minded, do not represent a legal basis for upsetting settled law and overriding the prerogatives of the political branches.”

In urging the Supreme Court not to hear the new case, the Justice Department said the Uighurs were “free to leave Guantánamo Bay to go to any country that is willing to accept them, and in the meantime, they are housed in facilities separate from those for enemy combatants under the least restrictive conditions practicable.”

But, the Justice Department’s brief continued, “there is a fundamental difference between ordering the release of a detained alien to permit him to return home or to another country and ordering that the alien be brought to and released in the United States without regard to immigration laws.”

Lawyers for the Uighurs, who were captured in Afghanistan or Pakistan after the Sept. 11 attacks, argued that the appeals court’s ruling rendered the writ of habeas corpus an empty gesture. It made courts “powerless to relieve unlawful imprisonment,” the Uighurs’ brief argued, “even where the executive brought the prisoners to our threshold, imprisons them there without legal justification, and — as seven years have so poignantly proved — there is nowhere else to go.”

    Justices to Decide on U.S. Release of Detainees, NYT, 21.10.2009, http://www.nytimes.com/2009/10/21/us/21scotus.html






Court Hears Free-Speech Case on Dogfight Videos


October 7, 2009
The New York Times


WASHINGTON — Justice Samuel A. Alito Jr. wanted to know if Congress could ban a “Human Sacrifice Channel” on cable television.

Justice Ruth Bader Ginsburg asked about videos of cockfighting.

“What about hunting with a bow and arrow out of season?” Justice John Paul Stevens asked.

“What if I am an aficionado of bullfights,” Justice Antonin Scalia wondered, “and I think, contrary to the animal cruelty people, they ennoble both beast and man?”

And Justice Stephen G. Breyer asked about “stuffing geese for pâté de foie gras.”

The rapid-fire inquiries came in an exceptionally lively Supreme Court argument on Tuesday in the most important free speech case this term.

The case concerns the constitutionality of a 1999 federal law that bans commercial trafficking in “depictions of animal cruelty.” The number and variety of questions suggested that most of the justices thought the law was written too broadly and thus ran afoul of the First Amendment.

In defending the 1999 law, Neal K. Katyal, a deputy solicitor general, cautioned the justices against pursuing an “endless stream of fanciful hypotheticals.”

Mr. Katyal reminded the justices that the case before them concerned videos of dogfights and that the law itself was mainly prompted by so-called crush videos, which cater to a sexual fetish. Those videos show women in high heels stepping on small animals.

But the 1999 law by its terms applies to audio and video depictions of all sorts of activities in which “a living animal is intentionally maimed, mutilated, tortured, wounded or killed” if that conduct was illegal where the depiction was sold.

The case before the court, United States v. Stevens, No. 08-769, arose from the conviction of a Virginia man for selling videos of dogfights. The man, Robert J. Stevens, was sentenced to 37 months in prison. The federal appeals court in Philadelphia last year overturned Mr. Stevens’s conviction and struck down the law on First Amendment grounds.

Patricia A. Millett, a lawyer for Mr. Stevens, urged the justices to follow suit, saying the law could not be rendered constitutional by narrowing it through judicial interpretation.

“There is interpreting and then there is alchemy,” Ms. Millett said, “ and I think this statute requires alchemy.”

The law does exempt materials with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”

But several justices indicated a discomfort with the vagueness of that standard and with entrusting the question of a work’s “serious value” to prosecutors and juries.

“Could you tell me what the difference is between these videos and David Roma’s documentary on pit bulls?” Justice Sonia Sotomayor asked Mr. Katyal, referring to “Off the Chain,” an exposé of dogfighting. “David Roma’s documentary had much, much more footage on the actual animal cruelty than the films at issue here.”

Mr. Katyal responded that “the line will sometimes be difficult to draw.”

Justice Scalia said the law violates the First Amendment by treating speech condemning depictions of animals fighting more favorably than speech celebrating the fighting. Mr. Stevens’s “message is that getting animals to fight is fun,” Justice Scalia said.

The hypothetical Human Sacrifice Channel came up late in the argument. Justice Alito described how it would work.

“Suppose that it is legally taking place someplace in the world,” he said. “I mean, people here would probably love to see it. Live, pay per view, you know, on the Human Sacrifice Channel.”

Ms. Millett haltingly said that Congress could not ban such a channel solely on the ground that it was offensive.

Mr. Katyal, to the apparent surprise of some of the justices, agreed, saying the First Amendment would not permit a law banning such a channel unless it could be shown that the depictions made the sacrifices more likely. The distastefulness of the depictions alone would not justify the ban.

The justices did not seem inclined to expand categories of speech outside the protection of the First Amendment, notably obscenity and child pornography, to encompass violent images unrelated to sex.

In child pornography, Justice Ginsburg said, “the very taking of the picture is the offense — that’s the abuse of the child.” In dogfighting, by contrast, she continued, “the abuse of the dog and the promotion of the fight is separate from the filming of it.”

Ms. Millett agreed. “If you throw away every dogfighting video in the country tomorrow,” Ms. Millett said, “dogfighting will continue.”

Justice Breyer suggested that Congress would be able to draft a more carefully tailored law focusing on crush videos and the kinds of animal cruelty that are illegal in all of the states.

“Why not do a simpler thing?” Justice Breyer asked. “Ask Congress to write a statute that actually aims at those frightful things it was trying to prohibit.”

“I am not giving Congress advice,” he added, “though I seem to be.”

    Court Hears Free-Speech Case on Dogfight Videos, NYT, 7.10.2009, http://www.nytimes.com/2009/10/07/us/07scotus.html







The Constitution and the Cross


October 7, 2009
The New York Times

When the Supreme Court takes up a religion case, it often prompts overheated charges: There is a war against Christianity under way; or civil liberties groups are trying to turn this into a secular nation. The court is scheduled to hear arguments on Wednesday in a case that raises none of these issues — even though Americans may well be treated to another round of scare stories.

The narrow question is whether a large cross that has been placed on federal land violates the establishment clause of the First Amendment, the founders’ direction that there must be a wall of separation between church and state. The court should rule that it does.

The Veterans of Foreign Wars erected a cross in 1934 in San Bernardino County, Calif. — in what is now the Mojave National Preserve — to honor America’s war dead. Since then, the cross has been replaced several times, most recently around 1998. Its religious significance is clear, but the National Park Service has not allowed other religions to add symbols. In 1999, the park service denied a request by an individual to place a Buddhist memorial in the area. The cross has also been the site of Easter sunrise services for more than 70 years.

Frank Buono, a former assistant superintendent of the preserve who said that he still visits regularly, sued to challenge the display’s constitutionality.

The case comes to the Supreme Court in an unusual form. When a Federal District Court ruled that the cross violated the establishment clause, Congress transferred the property under it to a veterans’ group in exchange for other property. In a second round of litigation, a Federal District Court ruled that the land transfer continued the constitutional violation. The United States Court of Appeals for the Ninth Circuit, in San Francisco, affirmed.

The Supreme Court will first consider whether Mr. Buono has standing to challenge the cross. The cross’s supporters argue that he has not really been injured and, therefore, should not be able to sue. But as someone who was in contact with the cross and was offended by its presence, he was injured. More precisely, though, in this case, Mr. Buono has won a court injunction against the cross, and Congress’s land transfer interferes with his injunction. He has a right to challenge the transfer.

On the merits, the appeals court was right that the cross must come down. By allowing a Christian cross, and not symbols of other faiths, on federal land, the government was favoring one religion over others. Also, Congress has designated the cross as a national memorial, which means that it continues to have official government endorsement.

The land transfer was mere window-dressing. Bypassing normal procedures for disposing of government land, Congress gave the land to an entity it understood would keep up the cross, and it provided that the land would be returned if it was not used as a memorial.

Religious symbolism of this kind on government land is, by its very nature, exclusionary. Allowing only a cross to stand over the memorial sends a message to Jews, Muslims, Buddhists and others that their sacrifices, and their family members’ sacrifices, are not appreciated or mourned.

It also sends a message that state and church are intertwined. A single cross does not, by itself, mean America has an established religion, but if the Supreme Court stops caring that the government is promoting a particular religion, we will be down the path toward having one.

    The Constitution and the Cross, NYT, 7.10.2009, http://www.nytimes.com/2009/10/07/opinion/07wed1.html







The Supreme Court Returns


October 5, 2009
The New York Times

The Supreme Court starts its new session this week with cases on its docket that could reshape the law in campaign finance, gun control and sentencing for juvenile crimes, and with the first new Democratically appointed justice in 15 years. That newest member, Justice Sonia Sotomayor, has been getting a lot of attention, but Justice Anthony Kennedy is likely to continue to wield the real power, on the most controversial issues.

Among the most anticipated cases so far are two that raise the question of whether it is constitutional to sentence juvenile offenders to life without parole. One of the defendants was just 13 when he raped an elderly woman in her home — an appalling and brutal crime, but one that did not involve homicide. We should not be giving up on a person for an act committed at 13. A few years ago, the court ruled that the death penalty for juvenile offenders amounted to cruel and unusual punishment. It should extend that reasoning to these cases.

The court has also agreed to hear the case of a man prosecuted for selling videos of dogfights, in which he was not involved. A federal appeals court ruled that his conviction violated the First Amendment. Animal abuse videos are truly loathsome, but the right approach is to criminalize animal cruelty, as all 50 states do, and not to infringe on free speech.

Following on a major case from last year in which the court struck down parts of the District of Columbia’s gun control law, the justices have decided to consider whether state and local gun control laws can also be challenged under the Second Amendment. The court should not use the case to prevent states and localities from enacting reasonable restrictions on guns.

The court will hear a First Amendment challenge to a cross that stands on land in California that once belonged to the federal government. The government gave the land to a private group to get around a court order that the cross violated the prohibition on state support for religion. The court should rule that despite the land transfer, the cross is unconstitutional.

The docket is heavy with business cases. One asks whether a way of hedging financial risk can be patented. Patents should be limited to more physical creations.

The most important business case, however, is one the court heard last month. In Citizens United v. F.E.C., the court could wipe out a longstanding ban on corporate spending on federal elections, which would allow big business to swamp democracy. We hope the court will avoid such recklessness, and rule narrowly.

The Citizens United argument marked Justice Sotomayor’s debut and she asked several questions that cut to the heart of the matter. A new justice always changes the dynamic of the court, but in ideologically charged cases, Justice Sotomayor’s positions are likely to be similar to those of Justice David Souter, whom she replaced.

That means the court is likely to remain divided between four moderate-liberals and a very conservative bloc of four, with the moderate conservative Justice Kennedy providing the swing vote. Barring any new changes in the Supreme Court’s composition, or any sudden changes of heart among the sitting justices, the law on many issues is likely to be, as it has been for several years now, what Justice Kennedy says it is.

    The Supreme Court Returns, NYT, 5.10.2009, http://www.nytimes.com/2009/10/05/opinion/05mon1.html






Op-Ed Contributor

Down the Memory Hole


October 2, 2009



WHEN Justice John Paul Stevens retires from the Supreme Court, probably at the conclusion of the new term that begins on Monday, an era will end, but a window will open.

That is because Justice Stevens is the last remaining member of the court to have served with Justice Potter Stewart, an Eisenhower appointee who retired in 1981. When Justice Stewart gave his papers to Yale, his alma mater, he stipulated that the files from his 23-year Supreme Court tenure would become available only when none of his fellow justices remained on the bench. Whether Justice Stewart’s papers are particularly illuminating remains to be seen; even Paul Gewirtz, the Potter Stewart professor of constitutional law at Yale Law School, has no idea what is in them. But many active players in Supreme Court affairs — or at least active followers of the court during that consequential mid-century period — are still around, and it is reasonable to suppose that more than a few will make their way to the Sterling Memorial Library here to see for themselves.

Unless life expectancy expands significantly during the next half-century, that will not be the case by the time the papers of the court’s most recent retiree, David H. Souter, open to the public. Justice Souter announced in late summer that he had given his papers to the New Hampshire Historical Society in Concord, where they will remain closed for 50 years.

Given David Souter’s well-known penchant for privacy (he once said that television cameras would enter the Supreme Court only by rolling over his dead body), his decision is perhaps not surprising. But it is too bad. He served on the court for 19 years, a period that included most of William H. Rehnquist’s tenure as chief justice and the consolidation of conservative power under Chief Justice John G. Roberts Jr. No one who argued a case, brought a case or even read a case during those years — unless it’s one of today’s law students, swinging by Concord during an Elderhostel trip to New England to see the changing leaves — is likely to be examining Justice Souter’s files in 2059.

(One exception might be Savana Redding, the middle-school student whom school officials strip-searched on a quest for concealed Advil. In June, Justice Souter wrote the court’s majority opinion declaring that the search, which turned up nothing, was unconstitutional. Ms. Redding will be 70, the age that Justice Souter is now, when she can view the case file.)

Recognizing that my own chance of ever seeing Justice Souter’s files is less than slim, I tried to persuade myself that I didn’t really care. (I had already had my fun with Supreme Court files, writing a book in 2005 based on Justice Harry A. Blackmun’s papers.) But then I thought of all the Supreme Court mysteries I would like to solve with the help of the memos and drafts that I assume this longtime diary keeper would have preserved. In the interests of space, I will mention just one of these mysteries, from the court’s last term.

It is the surprising outcome of the big Voting Rights Act case, in which the court had undertaken to decide whether Congress exceeded its authority in renewing the requirement for some states and jurisdictions, mostly in the South, to obtain federal approval before making any change to a voting procedure, however minor. This “preclearance” provision, Section 5 of the act, was the key to the law’s effectiveness over three decades in expanding and preserving minority voting rights.

The court’s opinion, by Chief Justice Roberts, ducked the constitutional issue on the ground that the small Texas sewer district that brought the case might be entitled to “bail out” of the law and so might have nothing to complain about. This was an implausible outcome, to put it mildly, because the statute’s text actually made the sewer district and other small jurisdictions like it ineligible to escape the law’s provisions.

Chief Justice Roberts has won praise in some quarters for a statesmanlike, “minimalist” solution to a hot-button constitutional problem. I have strong doubts as to whether the praise is deserved. My belief is that he would have gone as far in the direction of declaring Section 5 unconstitutional as he could have and still hold a majority.

The court surely did not accept this case for argument (as opposed to simply affirming the law’s constitutionality, as the Bush administration had urged) in order to decide whether the Northwest Austin Municipal Utility District No. 1 was entitled to bail out. I suspect that a member of the once-eager majority, perhaps Justice Anthony M. Kennedy, got cold feet, and that one or more of the liberal justices, maybe even Justice Souter, brokered a deal that allowed the court to extricate itself from a tight spot. My evidence for this theory? Along with evidence for any other theory, it will be locked in a vault in Concord, N.H.


Linda Greenhouse, a former Supreme Court correspondent for The Times who teaches at Yale Law School, will begin a regular column on the law later this fall at nytimes.com/opinion.

    Down the Memory Hole, NYT, 2.10.2009, http://www.nytimes.com/2009/10/02/opinion/02greenhouse.html






Justices Will Weigh Challenges to Gun Laws


October 1, 2009
The New York Times


WASHINGTON — The Supreme Court announced on Wednesday that it would decide whether state and local gun control laws may be challenged under the Second Amendment.

The court also agreed to hear nine other cases from among those that had piled up over its summer break, including one concerning the constitutionality of an antiterrorism law that is a favorite tool of federal prosecutors.

The Second Amendment case, McDonald v. Chicago, No. 08-1521, addresses a question that was left open last year when the court decided that the Second Amendment protects an individual right to own firearms rather than a collective right tied to state militias.

Last year’s decision, District of Columbia v. Heller, concerned only federal laws and struck down parts of the gun control law in the District of Columbia, a federal enclave. The court ruled that the law violated the Second Amendment by barring law-abiding people from keeping guns in their homes for self-defense.

The new case was brought by residents of Chicago who say their city’s handgun ban is identical to the one struck down in Heller.

Several Supreme Court decisions, all more than a century old, have said that the Second Amendment does not apply to the states.

In June, the United States Court of Appeals for the Seventh Circuit, in Chicago, affirmed the dismissal of the new case, saying it was up to the Supreme Court to overrule its own precedents if it wished to do so. Chief Judge Frank H. Easterbrook, writing for a unanimous three-judge panel of the appeals court, added that it was not certain whether and how the Supreme Court might apply the Second Amendment to the states.

The Supreme Court has ruled that most but not all of the protections of the Bill of Rights apply to the states, thanks to the due process clause of the 14th Amendment, one of the post-Civil War amendments. (Exceptions include the Fifth Amendment’s requirement of indictment by a grand jury and Eighth Amendment’s ban on excessive bail.)

Most legal scholars expect the court to apply the Second Amendment to the states. But many of them are urging the court to take an unusual route to that result. Rather than continuing to rely on the 14th Amendment’s due process clause, the court should, these scholars say, look to the amendment’s “privileges or immunities” clause, which says that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

There is some evidence that the amendment’s writers specifically wanted the clause to apply to allow freed slaves to have guns to defend themselves. Scholars on the right and left believe, moreover, that the clause could play a role in protecting rights not specifically mentioned in the Constitution.

A decision that the Second Amendment applies to the states would not answer most questions about what kinds of gun laws are vulnerable to challenges under the Second Amendment. In the Heller decision, Justice Antonin Scalia seemed to identify quite a few kinds of laws that are presumptively constitutional.

“Nothing in our opinion,” Justice Scalia wrote, “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.”

The antiterrorism law at issue in a second case the court agreed to hear, Holder v. Humanitarian Law Project, No. 08-1498, makes it a crime to provide various kinds of “material support” to organizations the government says have engaged in terrorist activities. The United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that the law’s bans on providing “training,” “service” and some kinds of “expert advice and assistance” were unconstitutionally vague.

The case was brought by people and organizations who sought to provide support for what they said were lawful and nonviolent activities of a Kurdish political party and a Tamil group. The two organizations, the Kurdistan Workers’ Party and the Liberation Tigers of Tamil Eelam, have been designated as foreign terrorist organizations by the State Department.

In its brief asking the Supreme Court to hear the case, the government said the appeals court’s decision frustrated “a vital part of the nation’s effort to fight international terrorism.” The brief added that the federal government had charged approximately 120 defendants with violations of the material-support law since 2001 and had obtained about 60 convictions under it.

The law’s challengers filed a separate appeal to the Supreme Court, objecting to another aspect of the appeals court’s ruling, this one upholding bans on providing support consisting of “personnel” or of expert advice derived from scientific or technical knowledge. The Supreme Court consolidated that appeal, Humanitarian Law Project v. Holder, No. 09-89, with the government’s appeal.

“The material support law resurrects guilt by association and makes it a crime for a human rights group in the U.S. to provide human rights training,” David D. Cole, a lawyer for the challengers, said in a statement.

Robert Chesney, a law professor at the University of Texas, said the case was “extraordinarily important.” The material-support law not only provides federal prosecutors with an important tool, he said, but it may also provide the government with a basis for bringing cases in civilian courts against prisoners detained at Guantánamo Bay.

    Justices Will Weigh Challenges to Gun Laws, NYT, 1.10.2009, http://www.nytimes.com/2009/10/01/us/01scotus.html






A Free Speech Battle Arises From Videos of Fighting Dogs


September 19, 2009
The New York Times


WASHINGTON — The next great First Amendment battle in the Supreme Court concerns, of all things, dogfight videos.

The ones at issue in the case are old and grainy, and they feature commentary from the defendant, Robert J. Stevens, an author and small-time film producer. Mr. Stevens calls himself an educator, and his subject is the history and status of pit bulls.

“For centuries,” Mr. Stevens exclaimed on one videotape, “the American pit bull terrier has reigned supreme as the gladiator of the pit!”

Mr. Stevens, 69, had nothing to do with the dogfights themselves. But he did compile and sell tapes showing them, and that was enough to earn him a 37-month sentence under a 1999 federal law that bans trafficking in “depictions of animal cruelty.”

The Supreme Court will hear his case, which has divided animal rights groups and free-speech advocates, on Oct. 6. The central issue is whether the court should for the first time in a generation designate a category of expression as so vile that it deserves no protection under the First Amendment. The last time the court did that was in 1982; the subject was child pornography.

Dogfighting and other forms of cruelty to animals are illegal in all 50 states. The 1999 law was aimed solely at depictions of such conduct. A federal appeals court last year struck down the law on First Amendment grounds and overturned Mr. Stevens’s conviction.

The law has an odd history. It was enacted in large part to address what a House report called “a very specific sexual fetish.” There are people, it seems, who enjoy watching videos of small animals being crushed.

“Much of the material featured women inflicting the torture with their bare feet or while wearing high-heeled shoes,” according to the report. “In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter.”

When President Bill Clinton signed the bill, he expressed reservations prompted by the First Amendment and instructed the Justice Department to limit prosecutions to “wanton cruelty to animals designed to appeal to a prurient interest in sex.”

But the Justice Department in the Bush administration pursued at least three prosecutions for the sale of dogfighting videos.

There is little dispute that crush videos are profoundly disturbing. The two dogfighting videos Mr. Stevens was prosecuted for selling present a harder question.

There was conflicting testimony at Mr. Stevens’s trial about the nature and social worth of the videos. Defense experts said the films had educational and historical value, noting that much of the footage came from Japan, where dogfighting is legal. A veterinarian who testified for the prosecution disputed that and said the videos depicted terrible suffering, including scenes of dogs that were “bitten, ripped and torn” and “screaming in pain.”

There is certainly biting in the dogfighting videos, but the fights are not bloody. In their Supreme Court brief, Mr. Stevens’s lawyers denied that any of the dogs in the videos were “ripped and torn,” and they counted “at most, 25 seconds containing yelps” in the more than two hours of footage on the tapes.

The third video at issue in the case, “Catch Dogs and Country Living,” shows pit bulls being trained to attack hogs and then hunting wild boar. The encounters are gory and brutal. Mr. Stevens participated in the hunting and filmed parts of the third video, which bears some resemblance to nature documentaries.

The law applies to audio and video recordings of “conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed.” It does not matter whether the conduct was legal when and where it occurred so long as it would have been illegal where the recording was sold.

That means it may be a crime for an American to sell a video of a bullfight that took place in Spain, where bullfighting is legal. And because all hunting is illegal in Washington, a literal reading of the statute would make the sale of hunting videos illegal here. The law contains an exception for materials with “serious religious, political, scientific, educational, journalistic, historical or artistic value.”

That exception may well protect journalism, scholarship and animal rights advocacy about subjects like factory farming, pharmaceutical testing, circuses and the slaughter of baby seals. But the determination of whether particular materials have “serious value” is, in the first instance at least, made by prosecutors.

News organizations, including The New York Times, filed a brief supporting Mr. Stevens. The 1999 law, the brief said, “imperils the media’s ability to report on issues related to animals.”

In a brief supporting the government, the Humane Society of the United States said that “gruesome depictions of animal mutilation targeted” by the law “simply do not merit the dignity of full First Amendment protection.”

When federal agents raided Mr. Stevens’s home in rural Virginia in 2003, he had no idea, his lawyers and family say, that he was breaking the law.

But there are hints in the videotapes that Mr. Stevens at least knew that people participating in dogfighting in the United States were doing something illegal.

“Because I’m not going to show any participants or spectators, I have to cut a lot of it,” Mr. Stevens, who has a folksy manner and looks a little like the actor Bill Murray, said on one of the videos. “I only show certain action clips I think you’ll enjoy.” Mr. Stevens did not try to hide the identities of those involved in the Japanese dogfights or in the video of dogs attacking hogs.

There is a crucial difference, Mr. Stevens’s lawyers told the Supreme Court, between illegal conduct and depictions of that conduct.

“While acts of animal cruelty have long been outlawed,” the brief for Mr. Stevens said, “there have never been any laws against speech depicting the killing or wounding of animals from the time of the First Amendment’s adoption through the intervening two centuries.”

State and local governments occasionally try to ban depictions of violence against people, notably in videogames. But those laws are routinely struck down, and the Supreme Court has never ruled that speech about nonsexual violence is beyond the protection of the First Amendment.

Mr. Stevens’s sentence was 14 months longer, the brief noted, than that of Michael Vick, the football star who actually participated in a dogfighting venture.

Through his lawyers, Mr. Stevens declined to be interviewed. He has said he never had his own dogs participate in dogfights.

Mr. Stevens’s son, Michael, said his father was guilty of nothing more than a longtime fascination with the affection, loyalty and passion of pit bulls. “You couldn’t treat a dog any better,” the younger Mr. Stevens said, “than my father treats pit bull dogs.”

    A Free Speech Battle Arises From Videos of Fighting Dogs, NYT, 19.9.2009, http://www.nytimes.com/2009/09/19/us/19scotus.html







A Threat to Fair Elections


September 8, 2009
The New York Times


The Supreme Court may be about to radically change politics by striking down the longstanding rule that says corporations cannot spend directly on federal elections. If the floodgates open, money from big business could overwhelm the electoral process, as well as the making of laws on issues like tax policy and bank regulation.

The court, which is scheduled to hear arguments on this issue on Wednesday, is rushing to decide a monumental question at breakneck speed and seems willing to throw established precedents and judicial modesty out the window.

Corporations and unions have been prohibited from spending their money on federal campaigns since 1947, and corporate contributions have been barred since 1907. States have barred corporate expenditures since the late 1800s. These laws are very much needed today. In the 2008 election cycle, Fortune 100 companies alone had combined revenues of $13.1 trillion and profits of $605 billion. That dwarfs the $1.5 billion that Federal Election Commission-registered political parties spent during the same election period, or the $1.2 billion spent by federal political action committees.

The Supreme Court has repeatedly upheld the limitations on corporate campaign expenditures. In 1990, in Austin v. Michigan Chamber of Commerce, and again in 2003, in McConnell v. Federal Election Commission, it made clear that Congress was acting within its authority and that the restrictions are consistent with the First Amendment.

In late June, the court directed the parties to address whether Austin and McConnell should be overruled. It gave the parties in Citizens United v. Federal Election Commission a month to write legal briefs on a question of extraordinary complexity and importance, and it scheduled arguments during the court’s vacation.

All of this is disturbing on many levels. Normally, the court tries not to decide cases on constitutional grounds if they can be resolved more simply. Here the court is reaching out to decide a constitutional issue that could change the direction of American democracy.

The court usually shows great respect for its own precedents, a point Chief Justice John Roberts made at his confirmation hearings. Now the court appears ready, without any particular need, to overturn important precedents and decades of federal and state law.

The scheduling is enormously troubling. There is no rush to address the constitutionality of the corporate expenditures limit. But the court is racing to do that in a poorly chosen case with no factual record on the critical question, making careful deliberation impossible.

Most disturbing, though, is the substance of what the court seems poised to do. If corporations are allowed to spend from their own treasuries on elections — rather than through political action committees, which take contributions from company employees — it would usher in an unprecedented age of special-interest politics.

Corporations would have an enormous say in who wins federal elections. They would be able to use this influence to obtain subsidies, stimulus money and tax loopholes and to undo protections for investors, workers and consumers. It would take an extraordinarily brave member of Congress to stand up to agents of big business who then could say, quite credibly, that they would spend whatever it takes in the next election to defeat him or her.

The conservative majority on the court likes to present itself as deferential to the elected branches of government and as minimalists about the role of judges. Chief Justice Roberts promised the Senate that if confirmed he would remember that it’s his “job to call balls and strikes and not to pitch or bat.”

If the court races to overturn federal and state laws, and its well-established precedents, to free up corporations to drown elections in money, it will be swinging for the fences. The American public will be the losers.

    A Threat to Fair Elections, NYT, 8.9.2009, http://www.nytimes.com/2009/09/08/opinion/08tue1.html






Justice Stevens Slows His Hiring at High Court


September 2, 2009
Filed at 3:02 a.m. ET
The New York Times


WASHINGTON (AP) -- Supreme Court Justice John Paul Stevens has hired fewer law clerks than usual, generating speculation that the leader of the court's liberals will retire next year.

If Stevens does step down, he would give President Barack Obama his second high court opening in two years. Obama chose Justice Sonia Sotomayor for the court when Justice David Souter announced his retirement in May.

Souter's failure to hire clerks was the first signal that he was contemplating leaving the court.

Stevens, 89, joined the court in 1975 and is the second-oldest justice in the court's history, after Oliver Wendell Holmes. He is the seventh-longest-serving justice, with more than 33 years and eight months on the court.

In response to a question from The Associated Press, Stevens confirmed through a court spokeswoman Tuesday that he has hired only one clerk for the term that begins in October 2010. He is among several justices who typically have hired all four clerks for the following year by now. Information about this advance hiring is not released by the court but is regularly published by some legal blogs.

Stevens did not say whether he plans to hire his full allotment of clerks or whether he will leave the court at the conclusion of the term that begins next month. Retired justices are allowed to hire one clerk.

Former law clerks said the justice has for years hired all his clerks at once, usually in June or July of the year preceding their appointment. ''I'd be surprised if he hired one but not four,'' said Columbia University law professor Jamal Greene, who worked for Stevens in 2006 and 2007.

But as to what that might mean, Greene said, ''Frankly, your guess is as good as mine.''

But one former clerk, University of Oklahoma law professor Joseph Thai, said he takes it as a sign that Stevens is likely to retire soon.

''It seems to indicate that he probably won't go beyond the current term,'' Thai said, cautioning that Stevens has said nothing to him about leaving.

Thai said Stevens could retire with his legacy secure and with little to gain from staying on a conservative-leaning court led by Chief Justice John Roberts.

''The other thing he could do by retiring sooner is achieve a sort of secondary legacy, by allowing President Obama to choose an ideologically compatible successor,'' Thai said.

When it comes to retirement, justices have their own ''don't ask, don't tell'' policy. Other than the occasional reporter, whose question typically is ignored, no one even bothers to ask justices when they will quit. That goes for their law clerks and even other justices.

So reading between the lines becomes more important. Souter often was the last justice to hire clerks, but when he hadn't even interviewed candidates by mid-April, the prospect that he might retire loomed ever larger.

Artemus Ward, who co-wrote a book on law clerks called ''Sorcerers' Apprentices,'' said predicting retirements by looking at changes in when justices hire clerks often is futile. But Ward acknowledged that Souter's recent example has caused him to think about Stevens' possible departure in a new light.

Still, he said other factors might cause Stevens to stay on.

Justice Ruth Bader Ginsburg had surgery this year for early-stage pancreatic cancer. While Ginsburg has been her usual energetic self, including frequent speaking engagements and a teaching stint in Europe this summer, long-term survival rates for pancreatic cancer are low.

Ginsburg, 76, has said she intends to serve into her early 80s, and she has hired her clerks for the court term that begins in October 2010.

Justices are reluctant to retire in bunches, mainly because they want the nine-member court as close to full strength as possible. If Ginsburg's health were to deteriorate, Stevens probably would stay, Ward said, because ''protecting the institution takes precedence over personal departure decisions.''

Stevens also is nearing two longevity records. When he joined the court, he replaced the longest-serving justice, William O. Douglas, and would need to serve until mid-July 2012 to top that service record. He would surpass Holmes as the oldest sitting justice if he were to remain on the court until Feb. 24, 2011.

Fordham Law School professor Abner Greene, a Stevens clerk in 1987 and 1988, said Stevens could step down next year having attained several milestones -- his 90th birthday, 40 years as a judge and 35 on the Supreme Court.

But like other former employees, Greene said he has no idea what Stevens is planning.

    Justice Stevens Slows His Hiring at High Court, NYT, 2.9.2009, http://www.nytimes.com/aponline/2009/09/02/us/politics/AP-US-Supreme-Court-Stevens.html






Supreme Court to Revisit ‘Hillary’ Documentary


August 30, 2009
The New York Times


WASHINGTON — The Supreme Court will cut short its summer break in early September to hear a new argument in a momentous case that could transform the way political campaigns are conducted.

The case, which arises from a minor political documentary called “Hillary: The Movie,” seemed an oddity when it was first argued in March. Just six months later, it has turned into a juggernaut with the potential to shatter a century-long understanding about the government’s ability to bar corporations from spending money to support political candidates.

The case has also deepened a profound split among liberals, dividing those who view government regulation of political speech as an affront to the First Amendment from those who believe that unlimited corporate campaign spending is a threat to democracy.

At issue is whether the court should overrule a 1990 decision, Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates. Re-arguments in the Supreme Court are rare, and the justices’ decision to call for one here may have been prompted by lingering questions about just how far campaign finance laws, including McCain-Feingold, may go in regulating campaign spending by corporations.

The argument, scheduled for Sept. 9, comes at a crucial historical moment, as corporations today almost certainly have more to gain or fear from government action than at any time since the New Deal.

The court’s order calling for re-argument, issued in June, has generated more than 40 friend-of-the-court briefs. As a group, they depict an array of strange bedfellows and uneasy alliances as they debate whether corporations should be free to spend millions of dollars to support the candidates of their choice.

The American Civil Liberties Union and its usual allies are on opposite sides, with the civil rights group fighting shoulder to shoulder with the National Rifle Association to support the corporation that made the film.

To the dismay of many of his liberal friends and clients, Floyd Abrams, the celebrated First Amendment lawyer, is representing Senator Mitch McConnell of Kentucky, the Republican leader, a longtime foe of campaign finance laws.

“Criminalizing a movie about Hillary Clinton is a constitutional desecration,” Mr. Abrams said.

Most of the rest of the liberal establishment is on the other side, saying that allowing corporate money to flood the airwaves would pollute and corrupt political discourse.

“This is rough business,” said Fred Wertheimer, a veteran advocate of tighter campaign regulations. “We’re not dealing with campaign finance laws. We’re dealing with the essence of power in America.”

The case involves “Hillary: The Movie,” a mix of advocacy journalism and political commentary that is a relentlessly negative look at Mrs. Clinton’s character and career. The documentary was made by a conservative advocacy group called Citizens United, which lost a lawsuit against the Federal Election Commission seeking permission to distribute it on a video-on-demand service. The film is available on the Internet and on DVD. The issue was that the McCain-Feingold law bans corporate money being used for electioneering.

A lower court agreed with the F.E.C.’s position, saying that the sole purpose of the documentary was “to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world and that viewers should vote against her.”

At the first Supreme Court argument in March, a government lawyer, answering a hypothetical question, said the government could also make it a crime to distribute books advocating the election or defeat of political candidates so long as they were paid for by corporations and not their political action committees.

That position seemed to astound several of the more conservative justices, and there were gasps in the courtroom.

“That’s pretty incredible,” said Justice Samuel A. Alito Jr.

The discussion of book banning may have helped prompt the request for re-argument. In addition, some of the broader issues implicated by the case were only glancingly discussed in the first round of briefs, and some justices may have felt reluctant to take a major step without fuller consideration.

The question of what Congress may do to regulate books is a hypothetical one: the relevant law, the Bipartisan Campaign Reform Act of 2002, more commonly called McCain-Feingold, applies only to broadcast, satellite or cable transmissions. That leaves out old technologies, like newspapers and books, and new ones, like the Internet. But the constitutional principles involved, some of the justices suggested, ought to apply regardless of the medium.

In an interview, Mr. Wertheimer seemed reluctant to answer questions about the government regulation of books. Pressed, Mr. Wertheimer finally said, “A campaign document in the form of a book can be banned.”

The McCain-Feingold law does contain an exception for broadcast news reports, commentaries and editorials. But a brief supporting Citizens United filed in January by the Reporters Committee for Freedom of the Press questioned whether the government should be making decisions about what is and is not news.

“ ‘Hillary: The Movie,’ ” the brief said, “does not differ, in any relevant respect, from the critiques of presidential candidates produced throughout the entirety of American history.”

In a measure of the importance of that group’s support, Theodore B. Olson, who represents Citizens United, referred twice to the brief at the argument in March. (He stumbled both times, though, calling the group the “Reporters Committee for Freedom of Speech” and the “Reporters Committee for the Right to Life.”)

After the argument, Mr. Wertheimer pushed hard to persuade the group to alter its stance.

“He e-mailed, he memo-ed, he advocated, he called a couple of people who were donors, and he cost us some money,” said Lucy Dalglish, the executive director of the committee.

But the group filed a second brief supporting Citizens United in July. “I got fair treatment,” Mr. Wertheimer said, “and they basically disagreed with my position.”

The disagreement echoes one within the civil rights community, said Burt Neuborne, the legal director of the Brennan Center for Justice at New York University School of Law and a former official of the A.C.L.U.

Mr. Neuborne said he disagreed with the A.C.L.U.’s longstanding position that regulation of corporate campaign spending may violate the First Amendment. The A.C.L.U.’s position was the product of “a huge fight” within the group, he said, adding that “it never was more than a 60-40 split on the board.”

The Brennan Center filed a brief supporting the government in the case, Citizens United v. Federal Election Commission, No. 08-205, while the A.C.L.U. filed one supporting Citizens United.

Mr. Neuborne and four other former A.C.L.U. officials took a middle ground, urging the court to rule narrowly to protect the documentary without making a major constitutional statement.

Indeed, it would not be hard for the court to rule in favor of Citizens United on narrow grounds. The court could say the film was not the sort of “electioneering communication” that McCain-Feingold, which mostly concerned television advertisements, was meant to address. It could say that communications that people had to seek out might be treated differently from uninvited advertisements. Or it could say that Citizens United was not the sort of corporation that can be regulated.

But the request for re-argument suggests that the court is on the verge of bolder action.

    Supreme Court to Revisit ‘Hillary’ Documentary, NYT, 30.8.2009, http://www.nytimes.com/2009/08/30/us/30scotus.html







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 adult courts.

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, 28.7.2009, http://www.nytimes.com/2009/07/28/opinion/28tue1.html?hpw







9/11 Case Could Bring Broad Shift on Civil Suits


July 21, 2009
The New York Times



The most consequential decision of the Supreme Court’s last term got only a little attention when it landed in May. And what attention it got was for the wrong reason.

But the lower courts have certainly understood the significance of the decision, Ashcroft v. Iqbal, which makes it much easier for judges to dismiss civil lawsuits right after they are filed. They have cited it more than 500 times in just the last two months.

“Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts,” said Thomas C. Goldstein, an appellate lawyer with Akin Gump Strauss Hauer & Feld in Washington.

On its face, the Iqbal decision concerned the aftermath of the Sept. 11 attacks. The court ruled that a Muslim man swept up on immigration charges could not sue two Bush administration officials for what he said was the terrible abuse he suffered in detention.

But something much deeper and broader was going on in the decision, something that may unsettle how civil litigation is conducted in the United States. Justice Ruth Bader Ginsburg, who dissented from the decision, told a group of federal judges last month that the ruling was both important and dangerous. “In my view,” Justice Ginsburg said, “the court’s majority messed up the federal rules” governing civil litigation.

For more than half a century, it has been clear that all a plaintiff had to do to start a lawsuit was to file what the rules call “a short and plain statement of the claim” in a document called a complaint. Having filed such a bare-bones complaint, plaintiffs were entitled to force defendants to open their files and submit to questioning under oath.

This approach, particularly when coupled with the American requirement that each side pay its own lawyers no matter who wins, gave plaintiffs settlement leverage. Just by filing a lawsuit, a plaintiff could subject a defendant to great cost and inconvenience in the pre-trial fact-finding process called discovery.

Mark Herrmann, a corporate defense lawyer with Jones Day in Chicago, said the Iqbal decision will allow for the dismissal of cases that would otherwise have subjected defendants to millions of dollars in discovery costs. On the other hand, information about wrongdoing is often secret. Plaintiffs claiming they were the victims of employment discrimination, a defective product, an antitrust conspiracy or a policy of harsh treatment in detention may not know exactly who harmed them and how before filing suit. But plaintiffs can learn valuable information during discovery.

The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible.

“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”

Note those words: Plausible. Common sense.

The old world was mechanical. A lawsuit that mouthed the required words was off and running. As the Supreme Court said in 1957 in Conley v. Gibson, a lawsuit should be allowed to go forward “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Things started to change two years ago, when the Supreme Court found a complaint in an antitrust suit implausible.

In the new world, after Iqbal, a lawsuit has to satisfy a skeptical judicial gatekeeper.

“It obviously licenses highly subjective judgments,” said Stephen B. Burbank, an authority on civil procedure at the University of Pennsylvania Law School. “This is a blank check for federal judges to get rid of cases they disfavor.”

Courts applying Iqbal have been busy. A federal judge in Connecticut dismissed a disability discrimination suit this month, saying that Iqbal required her to treat the plaintiff’s assertions as implausible. A few days later, the federal appeals court in New York dismissed a breach of contract and securities fraud suit after concluding that its account of the defendants’ asserted wrongdoing was too speculative.

The judge hearing the claims of the falsely accused Duke lacrosse players has asked for briefing on whether their lawsuit against Durham, N.C., can pass muster under Iqbal. But the judge considering a case against John C. Yoo, the former Bush administration lawyer, said it could move forward despite Iqbal because the suit contained specific allegations about Mr. Yoo’s conduct in justifying the use of harsh interrogation methods.

In the Iqbal case itself, Javaid Iqbal, a Pakistani Muslim who was working as a cable television installer on Long Island, said he was subjected to intrusive searches and vicious beatings after being arrested on identity fraud charges two months after the Sept. 11 attacks.

Justice Kennedy said Mr. Iqbal’s suit against two officials had not cleared the plausibility bar. All Mr. Iqbal’s complaint plausibly suggested, Justice Kennedy wrote, “is that the nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available.”

Justice David H. Souter, said the majority had adopted a crabbed view of plausibility and had in the process upended the civil litigation system.

In his dissent in Iqbal, Justice Souter wrote that judges should accept the accusations in a complaint as true “no matter how skeptical the court may be.”

“The sole exception to this rule,” Justice Souter continued, “lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel.”

But that is no longer the law. Under the Iqbal decision, federal judges will now decide at the very start of a litigation whether the plaintiff’s accusations ring true, and they will close the courthouse door if they do not.

    9/11 Case Could Bring Broad Shift on Civil Suits, NYT, 21.7.2009, http://www.nytimes.com/2009/07/21/us/21bar.html?hp






Op-Ed Contributor

The Day Obscenity Became Art


July 21, 2009
The New York Times


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 social importance.”

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 provocation.”

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 responded accordingly.


Fred Kaplan is a columnist for Slate and the author of “1959: The Year Everything Changed.”

    The Day Obscenity Became Art, NYT, 21.7.2009, http://www.nytimes.com/2009/07/21/opinion/21kaplan.html






News Analysis

The Roberts Court, Tipped by Kennedy


July 1, 2009
The New York Times


WASHINGTON — Chief Justice John G. Roberts Jr. emerged as a canny strategist at the Supreme Court this term, laying the groundwork for bold changes that could take the court to the right even as the recent elections moved the nation to the left.

The court took mainly incremental steps in major cases concerning voting rights, employment discrimination, criminal procedure and campaign finance. But the chief justice’s fingerprints were on all of them, and he left clues that the court is only one decision away from fundamental change in many areas of the law.

Whether he will succeed depends on Justice Anthony M. Kennedy, the court’s swing vote. And there is reason to think that the chief justice has found a reliable ally when it counts.

“In the important cases, Kennedy ends up on the right,” said Thomas C. Goldstein, a student of the court and the founder of Scotusblog, which has compiled comprehensive statistics on the current term. The two justices agreed 86 percent of the time.

If Judge Sonia Sotomayor is confirmed by the Senate, she will succeed Justice David H. Souter, a liberal who spent almost two decades on the court. Her record on the federal appeals court in New York suggests that her views are largely in sync with those of Justice Souter, though there is some evidence that she will turn out to be more conservative in criminal cases.

The arrival of a neophyte justice coupled with Chief Justice Roberts’s increasing mastery of the judicial machinery foreshadow a widening gap between the Democratic-led political branches and the Supreme Court. Indeed, the court appears poised to move to the right in the Obama era.

Chief Justice Roberts has certainly been planting seeds in this term’s decisions. If his reasoning takes root in future cases, the law will move in a conservative direction on questions as varied as what kinds of evidence may be used against criminal defendants and the role the government may play in combating race discrimination.

The two newest justices, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush, agreed 92 percent of time, the highest rate for any pair of justices. But Justice Alito often wrote concurring opinions to underscore or try to extend conservative rulings, especially in criminal cases. He may well now be the court’s most conservative member.

“Alito is staking out some room to the right of the chief justice,” said Pamela Harris, the executive director of the Supreme Court Institute at Georgetown University Law Center, “and you would have thought there is no such room.”

Labels like “conservative” and “liberal” are, of course, imperfect. Political scientists often say judges are liberal to the extent they tend to vote in favor of, say, criminal defendants, environmental groups, people suing over injuries and plaintiffs claiming discrimination.

Decisions protecting individual rights may be said to be liberal, too, but many political liberals would reject that characterization where the First Amendment rights of rich campaign contributors or the Second Amendment rights of gun owners are at issue.

At the Supreme Court, though, voting alignments are so predictable that “liberal” and “conservative” are as much shorthand as principle. They refer to two groups, of four justices each, who generally vote the same way.

The court was remarkably polarized in the 74 signed decisions it issued this term, dividing 5-to-4 or 6-to-3 in almost half of them, up from roughly a third in the three previous years. The court reversed lower courts about three-quarters of the time, up from two-thirds in the last term.

Justice Kennedy was in the majority 92 percent of the time and in all but 5 of the 23 decisions in which the justices split 5-to-4. Those decisions were, moreover, often divided in the expected way: in 16, all four members of the court’s liberal wing were on one side and all four of its conservatives were on the other.

And in between them was Justice Kennedy, the most powerful jurist in America. He joined the liberals 5 times and the conservatives 11. That was a significant shift to the right: in the previous term, Justice Kennedy voted four times each with the liberals and the conservatives in cases divided along the traditional ideological fault line.

Justice Kennedy swung right in the cases that really mattered. The only major case in which he joined the court’s liberal wing — Justices Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer — was Caperton v. A.T. Massey Coal Company. The decision required the chief justice of the West Virginia Supreme Court to disqualify himself from a case involving a coal executive who had spent $3 million to elect him.

If there were surprises, they came from Justices Antonin Scalia and Clarence Thomas.

“For all the talk about Scalia and Thomas being the most conservative justices on the court, they are the justices most likely in play,” said Jeffrey L. Fisher, a law professor at Stanford who has argued several important criminal cases before the court.

Justices Scalia and Thomas are apt to follow what they understand to be the original meaning of the Constitution, even when the consequences might not align with their policy preferences. In Melendez-Diaz v. Massachusetts, for instance, Justices Scalia and Thomas joined three members of the court’s liberal wing to say that the Constitution’s confrontation clause requires crime laboratory analysts to appear at trial rather than submit written reports.

The current chief justice clerked for Chief Justice William H. Rehnquist, a famous strategist, and he seems to have learned some tactics from his old boss.

The most important case of the term, for instance, seemed likely to be Northwest Austin Municipal Utility District v. Holder, which concerned the constitutionality of a major provision of the Voting Rights Act of 1965. Judging from the questions at argument, Chief Justice Roberts appeared prepared to strike it down.

The law, reauthorized by Congress in 2006, used old data to decide which state and local governments had to obtain federal permission before making even minor changes to their voting procedures. Some officials, mostly in the South, bristled at what they said was the stigma, burden and federal intrusion that came with being covered by the law.

Instead of addressing that broad question, Chief Justice Roberts wrote a narrow decision for an eight-justice majority that allowed the Texas municipal water district that had brought the challenge to try to escape from coverage under the law while leaving the law itself intact.

In the process, though, he wrote that much has changed since the civil rights era and suggested that the law would not survive constitutional scrutiny. He all but invited a further challenge, and many voting rights specialists say that Congress must act soon to change the law if it is to survive another encounter with the Roberts court.

What accounted for the incrementalism? A likely explanation is that the chief justice did not yet have Justice Kennedy’s unqualified support and was biding his time until he did.

Something similar seemed to be going on in Herring v. United States, which cut back on but did not eliminate the exclusionary rule. The rule requires the suppression of some evidence obtained by police misconduct.

The majority opinion in Herring, by Chief Justice Roberts, said that an unlawful arrest based on incorrect information in a police database did not require suppression of drugs and a gun. The police error, the chief justice wrote, was “isolated negligence attenuated from the arrest.”

The balance of the opinion suggested that Chief Justice Roberts might be willing to excuse other kinds of police misconduct as well, and specialists in criminal law said they suspected the limiting principle was added to placate Justice Kennedy, who in a 2006 concurrence expressed support for the exclusionary rule even as he joined a majority opinion that harshly criticized it.

Even the court’s failure to decide a case could seem portentous.

In scheduling Citizens United v. Federal Election Commission for re-argument in September, Chief Justice Roberts appeared to be setting the stage for an overhaul of the law governing campaign spending by corporations.

The case involves a polemical documentary about Hillary Rodham Clinton that the F.E.C. said was an “electioneering communication” that could not be broadcast during the Democratic primaries this year because a corporation had financed it.

The Supreme Court could have ruled in favor of the group that made the film on a variety of narrow grounds. Instead, it asked for fresh briefing on the validity of laws limiting corporate campaign spending.

In two of the term’s most important cases, Justice Kennedy was the on-off switch in determining the meaning of the Constitution’s due process clause.

In District Attorney’s Office v. Osborne, Justice Kennedy was not prepared to find that due process requires allowing inmates to have access to DNA evidence that might prove their innocence, and so there is no such right in the Constitution.

In the Caperton decision, he said litigants’ due process rights required a state supreme court justice to step aside from a case involving an important supporter, and now that has become a constitutional principle.

The court’s liberals would have interpreted the due process clause to require both kinds of rights, the court’s conservatives neither. The Constitution, it turns out, means what Justice Kennedy says it means.

    The Roberts Court, Tipped by Kennedy, NYT, 1.7.2009, http://www.nytimes.com/2009/07/01/us/01scotus.html?hp