History > 2009 > USA > Supreme Court (II)
New Execution Method
Is Used in Ohio
December 9, 2009
The New York Times
By IAN URBINA
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
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
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
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
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
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
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,
Linda Greenhouse on the Supreme Court and the law.
December 3, 2009, 9:11 pm
The New York Times
By LINDA GREENHOUSE
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?
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
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,
Inmate With Low I.Q. Nears Execution in Texas
December 4, 2009
The New York Times
By JAMES C. McKINLEY Jr.
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
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
Inmate With Low I.Q.
Nears Execution in Texas, NYT, 4.11.2009,
Supreme Court Overturns Decision on Detainee Photos
December 1, 2009
The New York Times
By ADAM LIPTAK
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
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,
Justices Say Capital Cases Must Weigh War Trauma
December 1, 2009
The New York Times
By ADAM LIPTAK
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
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
“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
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,
30 Years After Murder, Is His Appeal Too Late?
November 17, 2009
The New York Times
By ADAM LIPTAK
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
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
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
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,
D.C. Sniper Is to Be Executed on Tuesday
November 10, 2009
The New York Times
By DAVID STOUT
WASHINGTON — The Supreme Court on Monday declined to block the execution of
John A. Muhammad, the sniper who terrorized the Washington area seven years ago.
The step cleared the way for Mr. Muhammad to be put to death on Tuesday unless
Gov. Tim Kaine of Virginia intervenes.
The court did not comment in refusing to hear Mr. Muhammad’s appeal, but three
justices objected to the relative haste accompanying the execution.
Justice John Paul Stevens complained that “under our normal practice,” Mr.
Muhammad’s petition for the court to take his case would have been discussed at
the justices’ conference scheduled for Nov. 24. But because Virginia scheduled
the execution for Tuesday, the judicial process was rushed, Justice Stevens said
in a statement joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.
Justice Stevens wrote that, having reviewed Mr. Muhammad’s argument, he did not
disagree with the majority’s decision to decline the case. Nevertheless, he
said, because the court declined to stay the execution, “we have allowed
Virginia to truncate our deliberative process on a matter — involving a death
row inmate — that demands the most careful attention.”
The United States Court of Appeals for the Fourth Circuit, in Richmond, Va.,
upheld the death sentence three months ago. In rejecting Mr. Muhammad’s appeal,
that federal panel said it was “unable to find reversible error in the
conclusions of the state and district courts.”
Unless Mr. Kaine stops the execution, Mr. Muhammad, 48, will be given a lethal
injection on Tuesday night for the killing of Dean H. Meyers, an engineer who
was shot in the head at a gas station in Manassas, Va.
Mr. Meyers was one of 10 people killed in Maryland, Virginia and Washington over
three weeks in October 2002. Mr. Muhammad’s accomplice, Lee B. Malvo, who was 17
at the time, was sentenced to life in prison without parole. The two are also
suspected of fatal shootings in Alabama, Arizona and Louisiana.
Mr. Kaine has promised to review Mr. Muhammad’s request but has signaled that he
is not inclined to intervene.
The governor has said he is personally opposed to the death penalty, but he has
allowed a number of executions to take place since he took office in 2006.
Virginia has the nation’s second-busiest death chamber, behind Texas.
The jurors who convicted Mr. Muhammad in November 2003 cited the defendant’s
apparent lack of remorse in deciding to impose the death penalty.
D.C. Sniper Is to Be
Executed on Tuesday, NYT, 10.11.2009,
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
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
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,
Justices to Decide on U.S. Release of Detainees
October 21, 2009
The New York Times
By ADAM LIPTAK
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
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
The appeals court ruled that Judge Urbina had overstepped his constitutional
“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
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
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,
Court Hears Free-Speech Case on Dogfight Videos
October 7, 2009
The New York Times
By ADAM LIPTAK
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
“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
And Justice Stephen G. Breyer asked about “stuffing geese for pâté de foie
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
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
“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
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,
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,
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
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,
Down the Memory Hole
October 2, 2009
By LINDA GREENHOUSE
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
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
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,
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,
Justices Will Weigh Challenges to Gun Laws
October 1, 2009
The New York Times
By ADAM LIPTAK
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,
A Free Speech Battle Arises From Videos of Fighting Dogs
September 19, 2009
The New York Times
By ADAM LIPTAK
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
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
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
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
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
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,
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
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
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,
Justice Stevens Slows His Hiring at High Court
September 2, 2009
Filed at 3:02 a.m. ET
The New York Times
By THE ASSOCIATED PRESS
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
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
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
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
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,
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
Justice Stevens Slows
His Hiring at High Court, NYT, 2.9.2009,
Supreme Court to Revisit ‘Hillary’ Documentary
August 30, 2009
The New York Times
By ADAM LIPTAK
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
“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
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
After the argument, Mr. Wertheimer pushed hard to persuade the group to alter
“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
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
Supreme Court to Revisit
‘Hillary’ Documentary, NYT, 30.8.2009,
12 and in Prison
July 28, 2009
The New York Times
The Supreme Court sent an important message when it ruled in Roper v. Simmons
in 2005 that children under the age of 18 when their crimes were committed were
not eligible for the death penalty. Justice Anthony Kennedy drew on compassion,
common sense and the science of the youthful brain when he wrote that it was
morally wrong to equate the offenses of emotionally undeveloped adolescents with
the offenses of fully formed adults.
The states have followed this logic in death penalty cases. But they have
continued to mete out barbaric treatment — including life sentences — to
children whose cases should rightly be handled through the juvenile courts.
Congress can help to correct these practices by amending the Juvenile Justice
and Delinquency Prevention Act of 1974, which is up for Congressional
reauthorization this year. To get a share of delinquency prevention money, the
law requires the states and localities to meet minimum federal protections for
youths in the justice system. These protections are intended to keep as many
youths as possible out of adult jails and prisons, and to segregate those that
are sent to those places from the adult criminal population.
The case for tougher legislative action is laid out in an alarming new study of
children 13 and under in the adult criminal justice system, the lead author of
which is the juvenile justice scholar, Michele Deitch, of the Lyndon B. Johnson
School of Public Affairs at the University of Texas at Austin. According to the
study, every state allows juveniles to be tried as adults, and more than 20
states permit preadolescent children as young as 7 to be tried in adult courts.
This is terrible public policy. Children who are convicted and sentenced as
adults are much more likely to become violent offenders — and to return to an
adult jail later on — than children tried in the juvenile justice system.
Despite these well-known risks, policy makers across the country do not have
reliable data on just how many children are being shunted into the adult system
by state statutes or prosecutors, who have the discretion to file cases in the
But there is reasonably reliable data showing juvenile court judges send about
80 children ages 13 and under into the adult courts each year. These statistics
explode the myth that those children have committed especially heinous acts.
The data suggest, for example, that children 13 and under who commit crimes like
burglary and theft are just as likely to be sent to adult courts as children who
commit serious acts of violence against people. As has been shown in previous
studies, minority defendants are more likely to get adult treatment than their
white counterparts who commit comparable offenses.
The study’s authors rightly call on lawmakers to enact laws that discourage
harsh sentencing for preadolescent children and that enable them to be
transferred back into the juvenile system. Beyond that, Congress should amend
the juvenile justice act to require the states to simply end these inhumane
practices to be eligible for federal juvenile justice funds.
12 and in Prison, NYT,
9/11 Case Could Bring Broad Shift on Civil Suits
July 21, 2009
The New York Times
By ADAM LIPTAK
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
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
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
“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,
The Day Obscenity Became Art
July 21, 2009
The New York Times
By FRED KAPLAN
TODAY is the 50th anniversary of the court ruling that overturned America’s
obscenity laws, setting off an explosion of free speech — and also, in
retrospect, splashing cold water on the idea, much discussed during Sonia
Sotomayor’s Supreme Court confirmation hearings, that judges are “umpires”
rather than agents of social change.
The historic case began on May 15, 1959, when Barney Rosset, the publisher of
Grove Press, sued the Post Office for confiscating copies of the uncensored
version of D. H. Lawrence’s 1928 novel “Lady Chatterley’s Lover,” which had long
been banned for its graphic sex scenes.
Most lawyers of the time would have advised Mr. Rosset that he had a weak case.
Back in 1873, Anthony Comstock, the former postal inspector who founded the New
York Society for the Suppression of Vice, had persuaded Congress to pass a law
outlawing obscenity, which state and federal courts came to define over the
decades as works that “community standards” would regard as “lustful,” “lewd,”
“lascivious” or “prurient.”
As recently as 1957, the Supreme Court had ruled in Roth v. United States — a
case involving a bookseller who sent erotic literature through the mail — that
the First Amendment’s guarantees of free speech did not apply to obscenity. The
case against “Lady Chatterley’s Lover” seemed cut and dry; whatever the book’s
literary merits, it met the legal definition of obscenity.
However, Mr. Rosset hired a lawyer named Charles Rembar, whom he’d met playing
tennis in the Hamptons. Rembar had never argued a case in court but was an
adviser to several writers, including his cousin Norman Mailer. (When Mailer
wrote “The Naked and the Dead,” his career-sparking World War II novel, Rembar
advised him to avoid legal controversy by spelling his characters’ most common
utterance “fug.” The trick worked.)
Looking over the Roth decision, Rembar spotted a loophole. The opinion, written
by Justice William J. Brennan, noted that the First Amendment’s purpose was “to
assure unfettered interchange of ideas” and that “all ideas having even the
slightest redeeming social importance — unorthodox ideas, controversial ideas,
even ideas hateful to the prevailing climate of opinion — have the full
protection of the guarantees.” But, Brennan went on, “implicit in the history of
the First Amendment is the rejection of obscenity as utterly without redeeming
Rembar mulled over a question that Brennan apparently hadn’t considered: What if
a book met the standards of obscenity yet also presented ideas of “redeeming
social importance”? By Brennan’s logic, wouldn’t it qualify for the First
Amendment’s protection after all?
On a sheet of paper, Rembar drew two slightly overlapping circles. He labeled
one circle “Material appealing to prurient interests.” He labeled the other
“Material utterly without social importance.” By Brennan’s reasoning, only
material that fell inside both circles — that was both prurient and worthless —
should be denied the privileges of free speech.
This was the argument that Rembar made before Judge Frederick van Pelt Bryan of
the United States District Court for the Southern District of New York. With the
assistance of several literary critics’ testimony, he presented “Lady
Chatterley” as a novel of ideas that inveighed against sex without love, the
mechanization of industrial life and morbid hypocrisy.
The United States attorney representing the Post Office, S. Hazard Gillespie
Jr., thought Rembar had misread the law, and he recited a clause of the Roth
ruling that Rembar had omitted. Justice Brennan had written that controversial
ideas “have the full protection” of the First Amendment — “unless,” Gillespie
underlined, these ideas were “excludable because they encroach upon the limited
area of more important interests.” One of those interests, surely, was keeping
obscenity under wraps. Hence Rembar’s argument was irrelevant.
This was, however, just the rebuttal Rembar was hoping for. He pointed out a
footnote in which Brennan elaborated on what kind of “more important interests”
were “excludable.” All of them involved actions — peddling, picketing, parading
without a license, playing loud music from a truck. The First Amendment didn’t
protect any of that. But none of Brennan’s examples involved writing —
expression unattached to conduct. Pure expression could be forbidden, Rembar
argued, only if it was “utterly without social importance.”
On July 21, 1959, Judge Bryan ruled in favor of Grove Press and ordered the Post
Office to lift all restrictions on sending copies of “Lady Chatterley’s Lover”
through the mail. This, in effect, marked the end of the Post Office’s authority
— which, until then, it held absolutely — to declare a work of literature
“obscene” or to impound copies of those works or prosecute their publishers.
This wasn’t exactly the end of obscenity as a criminal category. Into the
mid-1960s, Barney Rosset would wage battles in various state courts over William
Burroughs’s “Naked Lunch” and Henry Miller’s “Tropic of Cancer,” other Grove
novels now widely regarded as classics. But the “Chatterley” case established
the principle that allowed free speech its total victory.
The Post Office did appeal Judge Bryan’s verdict; a panel of four judges upheld
it unanimously. The government’s lawyers decided not to appeal further to the
Supreme Court. They knew that they would lose — that the justices who, just two
years earlier, had excluded this sort of literature from constitutional
protection would now change their minds. They knew that Rembar’s creative view
of Justice Brennan’s opinion — a view that Brennan had not explicitly considered
when he wrote it — was logically unassailable.
The case also made clear that laws are more complex than strike zones or foul
lines, which is why the analogy between judges and umpires is so misleading.
The distinction is sharpened by another argument Rembar made during the “Lady
Chatterley” trial. “A novel, no matter how much devoted to the act of sex,” he
said, “can hardly add to the constant sexual prodding with which our environment
assails us.” In the mass media of the day, with its appeals to a booming youth
market, movies and advertisements were often “calculated to produce sexual
thoughts and reactions,” to the point where “we live in a sea of sexual
In short, “community standards” were radically changing. The proof was that,
after the ban on “Lady Chatterley” was lifted, the book reached the No. 2 slot
on The New York Times best-seller list (topped only by Leon Uris’s “Exodus”)
and, within a year, sold two million copies.
For many decades, the courts upheld racial segregation; then, suddenly, they
didn’t. For many decades, the courts let the Post Office decide which books
people could read; then, suddenly, they didn’t. In both cases, and many others
that could be cited, the laws hadn’t changed; society did. And the courts
Fred Kaplan is a columnist for Slate and the author of “1959: The Year
The Day Obscenity Became
Art, NYT, 21.7.2009,
The Roberts Court, Tipped by Kennedy
July 1, 2009
The New York Times
By ADAM LIPTAK
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
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
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
“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
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,