Anglonautes > Vocapedia > 2000s - 2010s - 2020s > English words - vocabulary - dictionary - encyclopedia > USA > Constitution, Supreme court, Law, Justice > Justices > U.S. Supreme court > Votes, Orders, Opinions, Decisions, Rulings

WASHINGTON — The Supreme Court on Monday struck down parts of a restrictive Texas law that could have reduced the number of abortion clinics in the state to about 10 from what was once a high of roughly 40.

The 5-to-3 decision was the court’s most sweeping statement on abortion rights since Planned Parenthood v. Casey in 1992. It applied a skeptical and exacting version of that decision’s “undue burden” standard to find that the restrictions in Texas went too far.

The decision on Monday means that similar restrictions in other states are most likely also unconstitutional, and it imperils many other kinds of restrictions on abortion.

Justice Stephen G. Breyer wrote the majority opinion, joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. dissented.

The decision concerned two parts of a Texas law that imposed strict requirements on abortion providers. It was passed by the Republican-dominated Texas Legislature and signed into law in July 2013 by Rick Perry, the governor at the time.

One part of the law requires all clinics in the state to meet the standards for ambulatory surgical centers, including regulations concerning buildings, equipment and staffing. The other requires doctors performing abortions to have admitting privileges at a nearby hospital.

“We conclude,” Justice Breyer wrote, “that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.”

Last June, the United States Court of Appeals for the Fifth Circuit, in New Orleans, largely upheld the contested provisions of the Texas law, saying it had to accept lawmakers’ assertions about the health benefits of abortion restrictions. The appeals court ruled that the law, with minor exceptions, did not place an undue burden on the right to abortion.

Justice Breyer said the appeals court’s approach was at odds with the proper application of the undue-burden standard. The Casey decision, he said, “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”

In dissent, Justice Thomas said the majority opinion “reimagines the undue-burden standard,” creating a “benefits-and-burdens balancing test.” He said courts should resolve conflicting positions by deferring to legislatures.

“Today’s opinion,” Justice Thomas wrote, “does resemble Casey in one respect: After disregarding significant aspects of the court’s prior jurisprudence, the majority applies the undue-burden standard in a way that will surely mystify lower courts for years to come.”

The majority opinion considered whether the claimed benefits of the restrictions outweighed the burdens they placed on a constitutional right. Justice Breyer wrote that there was no evidence that the admitting-privileges requirement “would have helped even one woman obtain better treatment.”

At the same time, he wrote, there was good evidence that the admitting-privileges requirement caused the number of abortion clinics in Texas to drop from 40 to 20.

In a second dissent, Justice Alito, joined by Chief Justice Roberts and Justice Thomas, said the causal link between the law and the closures was unproven. Withdrawal of state funds, a decline in the demand for abortions and doctors’ retirements may have played a role, Justice Alito wrote.

Justice Breyer wrote that the requirement that abortion clinics meet the demanding and elaborate standards for ambulatory surgical centers also did more harm than good.

“Abortions taking place in an abortion facility are safe — indeed, safer than numerous procedures that take place outside hospitals and to which Texas does not apply its surgical-center requirements,” he wrote, reviewing the evidence. “Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient’s own home.”

In dissent, Justice Alito said there was good reason to think that the restrictions were meant to and did protect women. “The law was one of many enacted by states in the wake of the Kermit Gosnell scandal, in which a physician who ran an abortion clinic in Philadelphia was convicted for the first degree murder of three infants who were born alive and for the manslaughter of a patient,” Justice Alito wrote.

Justice Breyer acknowledged that “Gosnell’s behavior was terribly wrong.”

“But,” he added, “there is no reason to believe that an extra layer of regulation would have affected that behavior.”

The clinics challenging the law said it has already caused about half of the state’s 41 abortion clinics to close. If the contested provisions had taken full effect, they said, the number of clinics would again be cut in half.

The remaining Texas clinics would have been clustered in four metropolitan areas: Austin, Dallas-Fort Worth, Houston and San Antonio. “None is located west or south of San Antonio, a vast geographic area that is larger than California,” a brief for the clinics said. An appeals court did allow a partial exemption for a clinic in McAllen, the brief added, but “imposed limitations on the clinic’s operational capacity that would severely restrict its ability to provide abortions.”

Justice Breyer, announcing the majority opinion in the hushed Supreme Court chamber, said that the requirements in the Texas statute “are not consistent with the constitutional standard set forth in Casey,” and were, therefore, both unconstitutional.

Justice Alito responded with an extended dissent from the bench, a sign of deep disagreement. “We are supposed to be a neutral court of law,” he said, outlining what he conceded were “dry and technical” points of legal doctrine he argued should have precluded the petitioners from presenting the challenge in the first place. “There is no justification for treating abortion cases differently from other cases.”

Julie Hirschfeld Davis contributed reporting.

Follow The New York Times’s politics and Washington coverage on Facebook and Twitter, and sign up for the First Draft politics newsletter.

Supreme Court Strikes Down Texas Abortion Restrictions,
NYT,
June 27, 2016,
https://www.nytimes.com/2016/06/28/
us/supreme-court-texas-abortion.html

Supreme Court

Set to Decide Marriage Rights

for Gay Couples Nationwide

JAN. 16, 2015

The New York Times

By ADAM LIPTAK

WASHINGTON — The Supreme Court on Friday agreed to decide whether all 50 states must allow gay and lesbian couples to marry, positioning it to resolve one of the great civil rights questions in a generation before its current term ends in June.

The decision came just months after the justices ducked the issue, refusing in October to hear appeals from rulings allowing same-sex marriage in five states. That decision, which was considered a major surprise, delivered a tacit victory for gay rights, immediately expanding the number of states with same-sex marriage to 24, along with the District of Columbia, up from 19.

Largely as a consequence of the Supreme Court’s decision not to act, the number of states allowing same-sex marriage has since grown to 36, and more than 70 percent of Americans live in places where gay couples can marry.

The cases the Supreme Court agreed to hear on Friday were brought by some 15 same-sex couples in four states. The plaintiffs said they have a fundamental right to marry and to be treated as opposite-sex couples are, adding that bans they challenged demeaned their dignity, imposed countless practical difficulties and inflicted particular harm on their children.

The pace of change on same-sex marriage, in both popular opinion and in the courts, has no parallel in the nation’s history.

Gay rights advocates hailed the court’s move on Friday as one of the final steps in a decades-long journey toward equal treatment, and they expressed confidence they would prevail.

“We are finally within sight of the day when same-sex couples across the country will be able to share equally in the joys, protections and responsibilities of marriage,” said Jon W. Davidson, the legal director of Lambda Legal.

Supporters of traditional marriage said the Supreme Court now has a chance to return the issue to voters and legislators.

“Lower court judges have robbed millions of people of their voice and vote on society’s most fundamental relationship — marriage,” said Tony Perkins, the president of the Family Research Council, a conservative policy and lobbying group. “There is nothing in the Constitution that empowers the courts to silence the people and impose a nationwide redefinition of marriage.”

The Supreme Court’s lack of action in October and its last three major gay rights rulings suggest that the court will rule in favor of same-sex marriage. But the court also has a history of caution in this area.

It agreed once before to hear a constitutional challenge to a same-sex marriage ban, in 2012 in a case called Hollingsworth v. Perry that involved California’s Proposition 8. At the time, nine states and the District of Columbia allowed same-sex couples to marry.

When the court’s ruling arrived in June 2013, the justices ducked, with a majority saying that the case was not properly before them, and none of them expressing a view on the ultimate question of whether the Constitution requires states to allow same-sex marriage.

But a second decision the same day, in United States v. Windsor, provided the movement for same-sex marriage with what turned out to be a powerful tailwind. The decision struck down the part of the Defense of Marriage Act that barred federal benefits for same-sex couples married in states that allowed such unions.

The Windsor decision was based partly on federalism grounds, with Justice Anthony M. Kennedy’s majority opinion stressing that state decisions on how to treat marriages deserved respect. But lower courts focused on other parts of his opinion, ones that emphasized the dignity of gay relationships and the harm that families of gay couples suffered from bans on same-sex marriage. In a remarkable and largely unbroken line of more than 40 decisions, state and federal courts relied on the Windsor decision to rule in favor of same-sex marriage.

The most important exception was a decision in November from a divided three-judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati. Writing for the majority, Judge Jeffrey S. Sutton said that voters and legislators, not judges, should decide the issue.

That decision created a split among the federal appeals courts, a criterion that the Supreme Court often looks to in deciding whether to hear a case. That criterion had been missing in October.

The Sixth Circuit’s decision upheld bans on same-sex marriage in Kentucky, Michigan, Ohio and Tennessee. The Supreme Court agreed to hear petitions seeking review from plaintiffs challenging those bans in each state.

The court said it will hear two and a half hours of argument, probably in the last week of April. The first 90 minutes will be devoted to the question of whether the Constitution requires states “to license a marriage between two people of the same sex.”

The last hour will concern a question that will be moot if the answer to the first one is yes: whether states must “recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.”

The court consolidated the four petitions, not all of which had addressed both questions.

Two cases — Obergefell v. Hodges, No. 14-556, from Ohio, and Tanco v. Haslam, No. 14-562, from Tennessee — challenged state laws barring the recognition of same-sex marriages performed elsewhere.

“Ohio does not contest the validity of their out-of-state marriages,” the plaintiffs seeking to overturn the ban wrote in their brief seeking Supreme Court review. “It simply refuses to recognize them.”

State officials in Ohio had urged the justices to hear the case. “The present status quo is unsustainable,” they said. “The country deserves a nationwide answer to the question — one way or the other.”

Gov. Bill Haslam of Tennessee, a Republican, took a different approach from those of officials in the other states whose cases the Supreme Court agreed to decide. He did what litigants who have won in the lower court typically do: He urged the justices to decline to hear the case.

The Michigan case, DeBoer v. Snyder, No. 14-571, was brought by April DeBoer and Jayne Rowse, two nurses. They sued to challenge the state’s ban on same-sex marriage.

In urging the Supreme Court to hear their case, they asked the justices to do away with “the significant legal burdens and detriments imposed by denying marriage to same-sex couples, as well as the dignity and emotional well-being of the couples and any children they may have.”

Gov. Rick Snyder, a Republican, joined the plaintiffs in urging the Supreme Court to hear the case.

The Kentucky case, Bourke v. Beshear, No. 14-574, was brought by two sets of plaintiffs. The first group included four same-sex couples who had married in other states and who sought recognition of their unions. The second group, two couples, sought the right to marry in Kentucky.

In his response to the petition in the Supreme Court, Gov. Steven L. Beshear, a Democrat, said he had a duty to enforce the state’s laws. But he agreed that the Supreme Court should settle the matter and “resolve the issues creating the legal chaos that has resulted since Windsor.”

A version of this article appears in print

on January 17, 2015,

on page A1 of the New York edition

with the headline:

Justices to Decide Marriage Rights for Gay Couples.

Supreme Court Set to Decide Marriage Rights for Gay Couples Nationwide,
NYT,
JAN 15, 2015,
http://www.nytimes.com/2015/01/17/
us/supreme-court-to-decide-whether-gays-nationwide-can-marry.html

Personal Guns

and the Second Amendment

December 17, 2012

The New York Times

When the Supreme Court struck down a ban on handguns by the District of Columbia in 2008, ruling that there is a constitutional right to keep a loaded handgun at home for self-defense, the decision was enormously controversial in the legal world. But the court’s conclusion has generally been accepted in the real world because the ruling was in tune with popular opinion — favoring Americans’ rights to own guns but also control of gun ownership.

The text of the Second Amendment creates no right to private possession of guns, but Justice Antonin Scalia found one in legal history for himself and the other four conservatives. He said the right is not outmoded even “in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.”

It is not just liberals who have lambasted the ruling, but some prominent conservatives like Judge J. Harvie Wilkinson III of the United States Court of Appeals for the Fourth Circuit. The majority, he wrote, “read an ambiguous constitutional provision as creating a substantive right that the Court had never acknowledged in the more than two hundred years since the amendment’s enactment. The majority then used that same right to strike down a law passed by elected officials acting, rightly or wrongly, to preserve the safety of the citizenry.” He said the court undermined “conservative jurisprudence.”

In the real world, however, criticism has abated in part because the majority opinion was strikingly respectful of commonplace gun regulations. “Like most rights,” Justice Scalia said, “the right secured by the Second Amendment is not unlimited.”

And: “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms” —“prohibiting the carrying of ‘dangerous and unusual weapons.’ ”

Justice Scalia does not say how federal courts should evaluate such regulations and the Supreme Court may need to return to this issue soon, to resolve a substantial disagreement that has arisen in federal appeals courts.

Does the court’s 4-year-old ruling imply “a right to carry a loaded gun outside the home”? That is what the Seventh Circuit appellate court concluded last week in striking down an Illinois law that prohibited most people from carrying a loaded weapon in public.

Or does the Supreme Court’s ruling on handguns support the view that public interest in safety outweighs an individual’s interest in self-defense because gun rights are more limited outside the home? That is what the Second Circuit found last month in upholding a New York State law limiting handgun possession in public to people who can show a threat to their own safety.

Where “gun violence is a serious problem,” as Justice Scalia said it is in the United States, the courts must be very cautious about extending the individual right to own a gun. The justice’s opinion made that clear.

Read related editorials on gun control:

rethinking guns and legislation abroad.

Personal Guns and the Second Amendment,
NYT,
17.12.2012,
http://www.nytimes.com/2012/12/18/
opinion/the-gun-challenge-second-amendment.html

The Human Cost

of the Second Amendment

September 26, 2012

8:30 pm

Opinionator -

A Gathering of Opinion From Around the Web

By THERESA BROWN

Wisconsin, Aurora, Virginia Tech, Columbine. We all know these place names and what happened there. By the time this column appears, there may well be a new locale to add to the list. Such is the state of enabled and murderous mayhem in the United States.

With the hope of presenting the issue of guns in America in a novel way, I'm going to look at it from an unusual vantage point: the eyes of a nurse. By that I mean looking at guns in America in terms of the suffering they cause, because to really understand the human cost of guns in the United States we need to focus on gun-related pain and death.

Every day 80 Americans die from gunshots and an additional 120 are wounded, according to a 2006 article in The Journal of Policy Analysis and Management. Those 80 Americans left their homes in the morning and went to work, or to school, or to a movie, or for a walk in their own neighborhood, and never returned. Whether they were dead on arrival or died later on in the hospital, 80 people's normal day ended on a slab in the morgue, and there's nothing any of us can do to get those people back.

In a way that few others do, I became aware early on that nurses deal with death on a daily basis. The first unretouched dead bodies I ever saw were the two cadavers we studied in anatomy lab. One man, one woman, both donated their bodies for dissection, and I learned amazing things from them: the sponginess of lung tissue, the surprising lightness of a human heart, the fabulous intricacy of veins, arteries, tendons and nerves that keep all of us moving and alive.

I also learned something I thought I already knew: death is scary. I expected my focus in the lab to be on acquiring knowledge, and it was, but my feelings about these cadavers intruded also. I had nightmares. The sound of bones being sawed and snapped was excruciating the day our teaching assistant broke the ribs of one of them to extract a heart. Some days the smell was so overwhelming I wanted to run from the lab. Death is the only part of life that is really final, and I learned about the awesomeness of finality during my 12 weeks with those two very dead people.

Of course, in hospitals, death and suffering are what nurses and doctors struggle against. Our job is to restore people to health and wholeness, or at the very least, to keep them alive. That's an obvious aim on the oncology floor where I work, but nowhere is the medical goal of maintaining life more immediately urgent than in trauma centers and intensive-care units. In those wards, patients often arrive teetering on the border between life and death, and the medical teams that receive them have fleeting moments in which to act.

The focus on preserving life and alleviating suffering, so evident in the hospital, contrasts strikingly with its stubborn disregard when applied to lives ended by Americans lawfully armed as if going into combat. The deaths from guns are as disturbing, and as final, as the cadavers I studied in anatomy lab, but the talk we hear from the gun lobby is about freedom and rights, not life and death.

Gun advocates say that guns don't kill people, people kill people. The truth, though, is that people with guns kill people, often very efficiently, as we saw so clearly and so often this summer. And while there can be no argument that the right to bear arms is written into the Constitution, we cannot keep pretending that this right is somehow without limit, even as we place reasonable limits on arguably more valuable rights like the freedom of speech and due process.

No one argues that it should be legal to shout "fire" in a crowded theater; we accept this limit on our right to speak freely because of its obvious real-world consequences. Likewise, we need to stop talking about gun rights in America as if they have no wrenching real-world effects when every day 80 Americans, their friends, families and loved ones, learn they obviously and tragically do.

Many victims never stand a chance against a dangerously armed assailant, and there's scant evidence that being armed themselves would help. Those bodies skip the hospital and go straight to the morgue. The lucky ones, the survivors - the 120 wounded per day - get hustled to trauma centers and then intensive care units to, if possible, be healed. Many of them never fully recover.

A trauma nurse I know told me she always looked at people's shoes when they lay on gurneys in the emergency department. It struck her that life had still been normal when that patient put them on in the morning. Whether they laced up Nikes, pulled on snow boots or slid feet into stiletto heels, the shoes became a relic of the ordinariness of the patient's life, before it turned savage.

So I have a request for proponents of unlimited access to guns. Spend some time in a trauma center and see the victims of gun violence - the lucky survivors - as they come in bloody and terrified. Understand that our country's blind embrace of gun rights made this violent tableau possible, and that it's playing out each day in hospitals and morgues all over the country.

Before leaving, make sure to look at the patients' shoes. Remember that at the start of the day, before being attacked by a person with a gun, that patient lying on a stretcher writhing helplessly in pain was still whole.

Theresa Brown is an oncology nurse and the author

of "Critical Care: A New Nurse Faces Death, Life,

and Everything in Between."

The Human Cost of the Second Amendment,
NYT,
26.9.2012,
http://opinionator.blogs.nytimes.com/2012/09/26/
the-human-cost-of-the-second-amendment/

Embarrassed by Bad Laws

April 16, 2012

The New York Times

A year ago, few people outside the world of state legislatures had heard of the American Legislative Exchange Council, a four-decade-old organization run by right-wing activists and financed by business leaders. The group writes prototypes of state laws to promote corporate and conservative interests and spreads them from one state capital to another.

The council, known as ALEC, has since become better known, with news organizations alerting the public to the damage it has caused: voter ID laws that marginalize minorities and the elderly, antiunion bills that hurt the middle class and the dismantling of protective environmental regulations.

Now it’s clear that ALEC, along with the National Rifle Association, also played a big role in the passage of the “Stand Your Ground” self-defense laws around the country. The original statute, passed in Florida in 2005, was a factor in the local police’s failure to arrest the shooter of a Florida teenager named Trayvon Martin immediately after his killing in February.

That was apparently the last straw for several prominent corporations that had been financial supporters of ALEC. In recent weeks, McDonald’s, Wendy’s, Intuit, Mars, Kraft Foods, Coca-Cola and PepsiCo have stopped supporting the group, responding to pressure from activists and consumers who have formed a grass-roots counterweight to corporate treasuries. That pressure is likely to continue as long as state lawmakers are more responsive to the needs of big donors than the public interest.

The N.R.A. pushed Florida’s Stand Your Ground law through the State Legislature over the objections of law enforcement groups, and it was signed by Gov. Jeb Bush. It allows people to attack a perceived assailant if they believe they are in imminent danger, without having to retreat. John Timoney, formerly the Miami police chief, recently called the law a “recipe for disaster,” and he said that he and other police chiefs had correctly predicted it would lead to more violent road-rage incidents and drug killings. Indeed, “justifiable homicides” in Florida have tripled since 2005.

Nonetheless, ALEC — which counts the N.R.A. as a longtime and generous member — quickly picked up on the Florida law and made it one of its priorities, distributing it to legislators across the country. Seven years later, 24 other states now have similar laws, thanks to ALEC’s reach, and similar bills have been introduced in several other states, including New York.

The corporations abandoning ALEC aren’t explicitly citing the Stand Your Ground statutes as the reason for their decision. But many joined the group for narrower reasons, like fighting taxes on soda or snacks, and clearly have little interest in voter ID requirements or the N.R.A.’s vision of a society where anyone can fire a concealed weapon at the slightest hint of a threat.

In a statement issued on Wednesday, ALEC bemoaned the opposition it is facing and claimed it is only interested in job creation, government accountability and pro-business policies. It makes no mention of its role in pushing a law that police departments believe is increasing gun violence and deaths. That’s probably because big business is beginning to realize the Stand Your Ground laws are indefensible.

Embarrassed by Bad Laws, NYT, 16.4.2012,
https://www.nytimes.com/2012/04/17/
opinion/embarrassed-by-bad-laws.html

Is Religion Above the Law?

October 17, 2011
9:00 pm
The New York Times
By STANLEY FISH

Stanley Fish on education, law and society.

The religion clause case recently argued before the Supreme Court — Hosanna-Tabor v. EEOC — centers on the “ministerial exception,” the doctrine (elaborated over the last 40 years) that exempts religious associations from complying with neutral, generally applicable laws in some, but not all, circumstances.

In 2005 Cheryl Perich, a teacher in the Hosanna-Tabor Lutheran Evangelical School, returned from an extended sick leave (she had been diagnosed with narcolepsy) to find that her services were no longer wanted. She declined to resign as requested, and after a resolution satisfactory to her was not forthcoming she filed a disability discrimination suit. The church responded by terminating her as a teacher, alleging that its reason was theological, not retaliatory. The Missouri synod, the church explained, requires its adherents to resolve disputes rather than bring suit in civil court; in failing to follow this rule, Perich had transgressed a core Lutheran belief.

The church further argued that as a “commissioned minister” Perich fell under the ministerial exception even though the bulk of her time was spent teaching secular subjects. Perich (through her attorneys) replied that her duties were not primarily religious, and that the assertion of a doctrinal violation was an afterthought devised to serve as a pretext for an act of retaliation in response to her having gone to the courts in an effort to secure her rights.

So the issues are, first, was she a minister in the sense that would bring her under the exception (in which case the state could not intervene to protect her), and, second, was the doctrine the church invoked as the reason for its action truly central to its faith? (There are other issues in play but, as we shall see, two are more than enough.)

The most perspicuous example of a ministerial exception is the Catholic church’s limitation of membership in the priesthood to males. If a university were to have a rule that only men could serve as professors, it would be vulnerable to a suit brought under the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964. The difference (or so it has been asserted) is that there is no relationship between professorial skills and gender — a woman can perform the duties of a teacher of history or chemistry as well as a man — while the tradition of an all-male priesthood is rooted in religious doctrine. So the university would be engaged in discrimination pure and simple, whereas the church’s discrimination is a function of its belief that the all-male priesthood was initiated by Christ in his choice of the apostles.

Were the state to intervene and declare the tradition of an all-male priesthood and the doctrine underlying it unconstitutional, it would be forcing the church to conform to secular norms in violation both of the free exercise clause (the right of a religion to be governed by its own tenets would be curtailed) and the establishment clause (the state would in effect have taken over the management of the church by dictating its hiring practices). (I am rehearsing, not endorsing, these arguments.)

This clear-cut example — to which both sides in Hosanna-Tabor v. EEOC refer frequently — may be the only one (and it is only clear-cut because it has behind it 2,000 years of history). For the question quickly becomes one of boundaries — how far does the ministerial exception extend? To whom does it apply? Not only are there no answers to such questions, it is not obvious who is empowered to ask them.

If the ministerial exemption is to have any bite, there must be a way of distinguishing employees central to a religious association’s core activities from employees who play only a supporting role (the example always given is janitors). But if the line marking the distinction is drawn by the state, the state is setting itself up as the arbiter of ecclesiastical organization and thus falling afoul of the establishment clause. And if the line is drawn by the religious association, the religious association is being granted the power to deprive as many of its employees as it likes of the constitutional protections supposedly afforded to every citizen. It is these equally unpalatable alternatives — this Scylla and Charybdis — that the justices find themselves between in oral argument. What a mess!

It is tempting to bypass the mess by getting rid of the ministerial exception altogether and demanding that churches, synagogues and mosques obey the law just as everyone else does. But that draconian solution would imply that we get rid of the religion clause as well; for it would amount to saying that religion isn’t special, and both sides of the clause insist that it is. The free-exercise clause tells us that that religion is especially favored and the establishment clause tells us that it is especially feared (the state should avoid entanglement with that stuff). How do you honor the claims of free exercise without bumping up against the establishment clause by allowing exceptions to laws that everyone else must follow?

The difficulty is sometimes finessed by cabining free exercise in the private sphere. Free exercise, it is said, is fine as long as its scope is limited to the expression and profession of belief; but once it crosses over into actions the state has a duty to regulate, free exercise must give way to the authority of fair and neutral laws. (This is the holding of a line of cases from Reynolds v. United States [1878] to Employment Division v. Smith [1990].)

This cutting of the joint works fine for a religion that places minimal burdens on its adherents and asks only that they attend to the personal relationship between them and their God. But what about religions that expand the area of faith to include rites the faithful must celebrate and worldly actions they are expected to perform? What about religions that refuse to recognize, and even consider impious, the distinction between the private and the public spheres? Can the state step in and say, “No, you’re wrong; that practice you’re worried about isn’t really essential to your faith; give it up so that a system of laws put in place for everyone isn’t destroyed by exceptions.” Doesn’t society, Justice Sonia Sotomayor asked at oral argument, “have a right at some point to say certain conduct is unacceptable, even if religious?”

The question is, at what point? And who gets to decide when that point has been reached? Indeed there is a question even more basic (and equally unanswerable except by fiat): who gets to say whether a “certain conduct” is religious and centrally so? A resolution of the Hosanna-Tabor case, Justice Samuel Alito observes, “depends on how central a teaching of Lutheranism” the injunction against “suing in a civil tribunal” really is. Before we can decide (he continues) whether the church’s asserted reason for terminating Perich is a pretext, we must determine whether this is in fact “a central tenet of Lutheranism.” And if we decide that it isn’t, wouldn’t we be “making a judgment about the relative importance of the Catholic doctrine that only males can be ordained as priests and the Lutheran doctrine that a Lutheran should not sue the church in civil courts?” And what authorizes the Court to do that in opposition to what the churches themselves say?

The same dilemma attends the other vexed question. How, wonders Chief Justice John Roberts, “do we decide who’s covered by the ministerial exception?” By getting to “the heart of the ministerial exception,” answers Douglas Laycock, speaking for the church. But that is simply to relocate the problem in a phrase that itself demands explication. Who’s to say where the heart is? In some churches, Justice Anthony Kennedy observes, there aren’t “full time ministers at all; they’re all ministers.” So does everyone fall under the exception and can a non-hierarchical church simply declare that none of its members can seek redress for acts of discrimination because they’re all ministers? Just before the oral argument concludes, Justice Sotomayor is still awaiting clarification: “So define minister for me again?”

She will be waiting forever. There is no way out of these puzzles, and that is exactly the conclusion Justice Stephen Breyer reaches: “I just can’t see a way … of getting out of the whole thing.” Justice Alito points to the absurdity of calling in expert witnesses to determine the truth of disputed matters of religion, but, he asks, “How are we going to avoid that? I just don’t see it.” Later he concludes that “you just cannot get away from evaluating religious issues,” which is of course exactly what the courts are not supposed to be doing.

So how will the case turn out? Clearly none of the justices wishes to pronounce as a theologian. And just as clearly none of them is happy with the prospect of a ministerial exception without defined limits. Breyer gestures in the direction of a solution that avoids the hard questions. Grant the Church the core doctrine it cites and inquire into whether Perich was given adequate notice of it. If she was, she loses; if she wasn’t, she wins. But no one will be satisfied with that maneuver, which will itself raise a host of new unanswerable questions in place of the questions supposedly avoided. All these questions were explored by John Locke at length in his “Letter Concerning Toleration” (1689), and at one point Locke gives voice to a weariness we might echo today: Would that “this business of religion were left alone.” But as long as there is a religion clause, that’s not an option.

Is Religion Above the Law?, NYT, 17.10.2011,
http://opinionator.blogs.nytimes.com/2011/10/17/is-religion-above-the-law/

The First Amendment, Upside Down

June 27, 2011

The New York Times

The Supreme Court decision striking down public matching funds in Arizona’s campaign finance system is a serious setback for American democracy. The opinion written by Chief Justice John Roberts Jr. in Monday’s 5-to-4 decision shows again the conservative majority’s contempt for campaign finance laws that aim to provide some balance to the unlimited amounts of money flooding the political system.

In the Citizens United case, the court ruled that the government may not ban corporations, unions and other moneyed institutions from spending in political campaigns. The Arizona decision is a companion to that destructive landmark ruling. It takes away a vital, innovative way of ensuring that candidates who do not have unlimited bank accounts can get enough public dollars to compete effectively.

Arizona’s campaign finance law provided a set amount of money in initial public support for candidates who opted into its financing system, depending on the type of election. If a candidate faced a rival who opted out, the state would match the spending of the privately financed candidate and independent groups supporting him, up to triple the initial amount. Once that limit is reached, the publicly financed candidate receives no other public funds and is barred from using private contributions, no matter how much more the privately financed candidate spends.

Chief Justice Roberts found that this mechanism “imposes a substantial burden” on the free speech rights of candidates and independent groups because it penalized them when their spending triggered additional money for a candidate who opted into the public program. The court turns the First Amendment on its head. It denies the actual effect of the Arizona law, which is not to limit spending but to increase it with public funds. The state program expands political speech by giving all candidates, not just the wealthy, a chance to run — while allowing privately financed candidates to spend as much as they want.

Justice Elena Kagan, writing in dissent, dissects the court’s willful misunderstanding of the result. Rather than a restriction on speech, she says, the trigger mechanism is a subsidy with the opposite effect: “It subsidizes and produces more political speech.” Those challenging the law, she wrote, demanded — and have now won — the right to “quash others’ speech” so they could have “the field to themselves.” She explained that the matching funds program — unlike a lump sum grant to candidates — sensibly adjusted the amount disbursed so that it was neither too little money to attract candidates nor too large a drain on public coffers.

Arizona’s system was a response to a history of terrible corruption in the state’s politics. Rather than seeing the law as a way to control corruption, the court struck it down as a limit on the right of wealthy candidates and independent groups to speak louder than others.

The ruling left in place other public financing systems without such trigger provisions, including public financing for presidential elections. It shows, however, how little the court cares about the interest of citizens in Arizona or elsewhere in keeping their electoral politics clean.

The First Amendment, Upside Down,
NYT,
27.6.2011,
http://www.nytimes.com/2011/06/28/opinion/28tue1.html

Supreme Court Allows Suit

to Force DNA Testing of Evidence

March 7, 2011
The New York Times
By ADAM LIPTAK

WASHINGTON — The Supreme Court on Monday made it easier for inmates to sue for access to DNA evidence that could prove their innocence.

The legal issue in the case was tightly focused, and quite preliminary: Was Hank Skinner, a death row inmate in Texas, entitled to sue a prosecutor there under a federal civil rights law for refusing to allow testing of DNA evidence in his case? By a 6-to-3 vote, the court said yes, rejecting a line of lower-court decisions that had said the only proper procedural route for such challenges was a petition for habeas corpus.

In her opinion for the majority, Justice Ruth Bader Ginsburg emphasized how narrowly the court was ruling. Allowing Mr. Skinner to sue, she said, is not the same thing as saying he should win his suit.

Justice Ginsburg added that a 2009 decision, District Attorney’s Office v. Osborne, had severely limited the kinds of claims that prisoners who are seeking DNA evidence can make. The Osborne decision, Justice Ginsburg wrote, “left slim room for the prisoner to show that the governing state law denies him procedural due process.”

The case that was decided on Monday, Skinner v. Switzer, No. 09-9000, arose from three killings on New Year’s Eve in 1993. Mr. Skinner contends that he was asleep on a sofa in a vodka-and-codeine haze that night when his girlfriend, Twila Busby, and her two sons were killed. Mr. Skinner says that an uncle of Ms. Busby, Robert Donnell, who has since died, was probably the killer.

Prosecutors tested some but not all of the evidence from the crime scene. Some of the test results pointed toward Mr. Skinner, who never denied that he was present, but some of the results did not. His trial lawyer, wary of what additional testing would show, did not ask for it.

In the years since Mr. Skinner was convicted, prosecutors have blocked his requests to test blood, fingernail scrapings and hair found at the scene. In their Supreme Court briefs, prosecutors accused Mr. Skinner of playing games with the system, dragging out his case and seeking to impose unacceptable burdens on government resources and the victims’ dignity. They added that testing would be pointless because “no item of evidence exists that would conclusively prove that Skinner did not commit the murder.”

In 2001, Texas enacted a law allowing post-conviction DNA testing in limited circumstances. State courts in Texas rejected Mr. Skinner’s requests under the law on the ground that he was at fault for not having sought testing earlier.

Mr. Skinner then sued in federal court under a federal civil rights law known as Section 1983, saying that the Texas law violated his right to due process. That suit was rejected in the lower federal courts on the ground that the proper vehicle for a challenge was a petition for habeas corpus.

Section 1983 suits are often more attractive to prisoners than habeas petitions because Congress and the Supreme Court have placed significant barriers in the path of inmates seeking habeas corpus.

Justice Ginsburg wrote that a Section 1983 suit was available in cases where the relief sought by the inmate would not “necessarily imply the invalidity of his conviction or sentence.” Since there was no telling whether the results of the tests Mr. Skinner sought would establish his guilt, clear him or be inconclusive, the suit was proper, she wrote.

Habeas petitions are appropriate, on the other hand, she wrote, where inmates seek “immediate or speedier release from confinement.”

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined the majority opinion.

Justice Clarence Thomas, joined by Justices Anthony M. Kennedy and Samuel A. Alito Jr., dissented. Justice Thomas predicted that the ruling on Monday would flood the courts with civil rights suits. “What prisoner would not avail himself of this additional bite at the apple?” Justice Thomas asked.

Justice Ginsburg responded that the decision was unlikely to prompt “any litigation flood or even rainfall.”

Supreme Court Allows Suit to Force DNA Testing of Evidence, NYT, 7.3.2011,
http://www.nytimes.com/2011/03/08/us/08scotus.html

Supreme Court allows

military funeral anti-gay protests

WASHINGTON | Wed Mar 2, 2011
1:16pm EST
Reuters
By James Vicini

WASHINGTON (Reuters) - The Supreme Court ruled on Wednesday that members of a fundamentalist church have a free-speech right to hold anti-gay protests at military funerals to promote their view that God hates America for tolerating homosexuality.

In a case pitting free-speech versus privacy rights, the nation's highest court held that the picketing at a private funeral and even hurtful protest messages were protected by the U.S. Constitution's First Amendment.

The decision by an 8-1 vote was the latest in a long line of Supreme Court rulings that free-speech rights protected even outrageous or offensive conduct, including the burning of the American flag.

The ruling was a defeat for Albert Snyder, the father of a Marine killed in Iraq in 2006. He sued after the family's funeral service at a Roman Catholic Church in Westminster, Maryland, drew unwanted protests by members of the Westboro Baptist Church in Topeka, Kansas.

The protesters carried signs that stated, "God Hates You," "You Are Going To Hell," and "Thank God for Dead Soldiers."

Westboro Pastor Fred Phelps and other church members have protested hundreds of funerals of military members killed in Iraq or Afghanistan as part of their religious view that God is punishing America for its tolerance of gays and lesbians.

Phelps founded the church in 1955 and it has about 70 members made up mostly of his relatives.

In the court's opinion, Chief Justice John Roberts said the church's beliefs and its signs related to issues of public importance, including political and moral conduct in the United States.

Roberts said the country may not agree with the church's views, but said it cannot react to the pain the protesters inflicted by punishing the speaker.

"As a nation, we have chosen a different course -- to protect even hurtful speech on public issues to ensure that we do not stifle public debate," he said.

Roberts said the picketers peacefully displayed their signs for about 30 minutes before the funeral, sang hymns and recited Bible verses. None of the picketers entered church property or went to the cemetery and they did not yell or use profanity.

Only Justice Samuel Alito dissented from the ruling. He said the protesters could have gone to the White House, the U.S. Capitol, the Pentagon or the Supreme Court instead of disrupting the family's funeral.

'VICIOUS VERBAL ASSAULT'

"Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," Alito wrote.

Fordham University law professor Abner Greene in New York said, "The court has consistently ruled for speech interests over privacy interests. ... It's not really all that surprising."

Snyder sued in 2007 and said he had the right to bury his son in a private, dignified manner, free from unwanted disruption or harassment.

A jury awarded Snyder $10.9 million in damages for invasion of privacy and infliction of emotional distress, an amount cut by a federal judge to $5 million.

The Supreme Court ruled Snyder cannot collect any damages and overturned the jury's verdict on free-speech grounds.

The American Civil Liberties Union and more than 20 news organizations supported the church, saying free-speech rights protected even outrageous, offensive or unpopular messages.

Veterans groups, more than 40 U.S. senators and nearly all of the 50 states that now limit protests at military funerals supported Snyder.

Sarah Palin, the 2008 Republican vice presidential nominee, criticized the ruling, saying on Twitter it lacked "common sense & decency" by allowing hate messages at military funerals.

The Supreme Court case is Snyder v. Phelps, No. 09-751.

(Editing by Eric Beech)

    Supreme Court allows military funeral anti-gay protests, R, 2.3.2011,
    http://www.reuters.com/article/2011/03/02/
    us-usa-military-funerals-idUSTRE7213R320110302

Politics and the Court

February 4, 2011

The New York Times

When it comes to pushing the line between law and politics, Justices Antonin Scalia and Clarence Thomas each had a banner month in January.

Justice Scalia, who is sometimes called “the Justice from the Tea Party,” met behind closed doors on Capitol Hill to talk about the Constitution with a group of representatives led by Representative

Michele Bachmann of the House Tea Party Caucus.

Justice Thomas, confirming his scorn for concern about conflicts of interest and rules designed to help prevent them, acknowledged that he has failed to comply with the law for the past six years by not disclosing his wife’s income from conservative groups.

In Supreme Court opinions, they showed how their impatience for goals promoted in conservative politics is infecting their legal actions. They joined in an unusual dissent from a court decision not to take a case about the commerce clause that turned into polemic in favor of limited government. In an important privacy case, NASA v. Nelson, they insisted the court should settle a constitutional issue it didn’t need to.

Constitutional law is political. It results from choices about concerns of government that political philosophers ponder, like liberty and property. When the court deals with major issues of social policy, the law it shapes is the most inescapably political.

To buffer justices from the demands of everyday politics, however, they receive tenure for life. The framers of our Constitution envisioned law gaining authority apart from politics. They wanted justices to exercise their judgment independently — to be free from worrying about upsetting the powerful and certainly not to be cultivating powerful political interests.

A petition by Common Cause to the Justice Department questioned whether Justices Scalia and Thomas are doing the latter. It asked whether the court’s ruling a year ago in the Citizens United case, unleashing corporate money into politics, should be set aside because the justices took part in a political gathering of the conservative corporate money-raiser Charles Koch while the case was before the court.

If the answer turns out to be yes, it would be yet more evidence that the court must change its policy — or rather its nonpolicy — about recusal.

One possible reform would be to require a justice to explain, in a public statement and in detail, any decision to recuse or not. It would be even better to set up a formal review process. A group of other justices — serving in rotation or randomly chosen — could review each decision about recusal and have the power to overrule it.

In the NASA case, the two justices issued opinions on a unanimous ruling that NASA can require background checks for contract workers. Six justices (Justice Elena Kagan was recused) said the court didn’t need to decide whether there is a right to informational privacy.

Justices Scalia and Thomas, on the other hand, insisted that the Constitution doesn’t protect such a right and the court should settle the issue. The Scalia opinion is a rambling, sarcastic political tirade. The Thomas opinion is short but caustic. This is the sort of thing that gets these justices invited to gatherings like Mr. Koch’s.

About Justice Scalia, the legal historian Lucas Powe said, “He is taking political partisanship to levels not seen in over half a century.” Justice Thomas is not far behind.

Both seem to have trouble with the notion that our legal system was designed to set law apart from politics precisely because they are so closely tied.

Politics and the Court, NYT, 4.2.2011,
http://www.nytimes.com/2011/02/05/opinion/05sat1.html

Va. to Ask Supreme Court

to Rule on Health Law

February 3, 2011
The New York Times
By KEVIN SACK

Virginia’s attorney general announced on Thursday that he hoped to bypass an initial appellate review by asking the United States Supreme Court to consider the constitutionality of the Obama health care law on an expedited basis.

Only rarely does the Supreme Court grant such hearings, and it has already rejected a similar request in another legal challenge to the health care act. But the commonwealth’s attorney general, Kenneth T. Cuccinelli II, said the legal and governmental confusion sown by conflicting lower-court opinions demanded a rapid resolution.

“Currently, state governments and private businesses are being forced to expend enormous amounts of resources to prepare to implement a law that, in the end, may be declared unconstitutional,” Mr. Cuccinelli said in a statement.

In December, Mr. Cuccinelli became the first plaintiff to win a challenge to the health care act, when Judge Henry E. Hudson of Federal District Court in Richmond, Va., struck down a provision that requires most Americans to obtain insurance. The judge ruled that the insurance requirement exceeded Congress’s authority under the Constitution to regulate interstate commerce.

Two other federal judges, including another in Virginia, had previously upheld the law. Then on Monday, Judge Roger Vinson of Federal District Court in Pensacola, Fla., joined Judge Hudson in striking down the insurance mandate. But unlike Judge Hudson, Judge Vinson invalidated the entire law.

The law, enacted last year by a Democratic Congress and signed in March by President Obama, aims to cover 32 million uninsured Americans by ending insurer discrimination against those with pre-existing health conditions and by providing government subsidies to make coverage affordable.

The Justice Department, which is defending the Obama administration in the health litigation, has already filed a notice of appeal of Judge Hudson’s ruling in the Court of Appeals for the Fourth Circuit in Richmond. Because of the geographic distribution of the four lower court rulings, three different courts of appeal are likely to hear the cases on their way to the Supreme Court.

Tracy Schmaler, a spokeswoman for the Justice Department, said the agency continued “to believe this case should follow the ordinary course” so that legal arguments could be fully developed before being presented to the Supreme Court. She pointed out that the insurance mandate does not take effect until 2014 and that the Fourth Circuit has already expedited its schedule by setting oral arguments for May.

The Justice Department also is considering whether to seek a stay of the Florida decision in order to clarify confusion about whether the health care act remains in effect in the 26 states that are plaintiffs in the case.

Mr. Cuccinelli said he recognized that an expedited Supreme Court review would be exceptional. But he said that this case and the others challenging the constitutionality of the Patient Protection and Affordable Care Act, as the law is known, were “truly exceptional in their own right.”

In November, the Supreme Curt refused to review another challenge to the health care act that had been dismissed by a California judge on grounds that the plaintiffs did not have standing to sue.

Va. to Ask Supreme Court to Rule on Health Law, NYT, 3.2.2011,
http://www.nytimes.com/2011/02/04/health/policy/04virginia.html

Factbox:

Important past Supreme Court

free-speech cases

WASHINGTON | Wed Mar 2, 2011
12:13pm EST
Reuters

WASHINGTON (Reuters) - The Supreme Court ruled on Wednesday that a church has the free-speech right to hold anti-gay protests at military funerals to promote its view that God hates America for its tolerance of homosexuals.

The 8-1 ruling was a victory for the Westboro Baptist Church in Topeka, Kansas, whose members have picketed hundreds of funerals of military members killed in Iraq or Afghanistan as part of their religious belief that God is punishing America for tolerating gays and lesbians.

Chief Justice John Roberts wrote in the opinion that the United States has chosen to protect even hurtful speech on public issues to make sure public debate is not stifled. He made clear the court was not agreeing with Westboro's views.

Following are some similar previous Supreme Court free-speech cases:

PARODY OF THE REVEREND JERRY FALWELL

The Supreme Court in 1988 threw out a $200,000 award to the Reverend Jerry Falwell over a Hustler magazine parody that said his first sexual encounter occurred with his mother in an outhouse.

The court ruled that Falwell, a popular televangelist who was a leader of the conservative Christian movement, was a public figure and therefore could not collect libel damages for the infliction of emotional distress. Falwell died in 2007.

The latest decision cited the precedent from the Falwell case.

AMERICAN NAZIS WIN RIGHT TO MARCH IN JEWISH SUBURB

American Nazis won the right more than 30 years ago to march in the heavily Jewish Chicago suburb of Skokie, Illinois, which had a significant population of Holocaust survivors.

The American Civil Liberties Union had argued in favor of a Nazi group that sought a permit to march in their uniforms displaying swastikas.

The Supreme Court reversed lower-court rulings that had blocked the march. A U.S. appeals court in Chicago ultimately ruled that free-speech rights covered the march.

The civil liberties group also supported the Westboro Church on the grounds that free-speech rights protected even outrageous or offensive messages.

FLAG BURNING AS PROTECTED FREE SPEECH

The Supreme Court ruled in 1989 that burning the American flag was an act of symbolic speech protected by the First Amendment of the Constitution.

The court, by a 5-4 vote, overturned the conviction of Gregory Lee Johnson, who had burned a flag as part of a protest during the Republican Party convention in 1984 in Dallas.

"The government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable," the court said in its majority opinion.

(Reporting by James Vicini in Washington,

Editing by Eric Beech)

    Factbox: Important past Supreme Court free-speech cases,
    R, 2.3.2011,
    http://www.reuters.com/article/2011/03/02/
    us-usa-military-funerals-factbox-idUSTRE7214RB20110302

Federal Judge Rules

That Health Law Violates Constitution

January 31, 2011
The New York Times
By KEVIN SACK

A second federal judge ruled on Monday that it was unconstitutional for Congress to enact a health care law that required Americans to obtain commercial insurance, evening the score at 2 to 2 in the lower courts as conflicting opinions begin their path to the Supreme Court.

But unlike a Virginia judge in December, Judge Roger Vinson of Federal District Court in Pensacola, Fla., concluded that the insurance requirement was so “inextricably bound” to other provisions of the Affordable Care Act that its unconstitutionality required the invalidation of the entire law.

“The act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker,” Judge Vinson wrote.

The judge declined to immediately enjoin, or suspend, the law pending appeals, a process that could last two years. But he wrote that the federal government should adhere to his declaratory judgment as the functional equivalent of an injunction. That left confusion about how the ruling might be interpreted in the 26 states that are parties to the legal challenge.

The insurance mandate does not take effect until 2014. But many new regulations are already operating, like requirements that insurers cover children with pre-existing health conditions and eliminate lifetime caps on benefits. States are also preparing for a major expansion of Medicaid eligibility and the introduction of health insurance exchanges in 2014.

David B. Rivkin Jr., a lawyer for the states, said the ruling relieved the plaintiff states of any obligation to comply with the health law. “With regard to all parties to this lawsuit, the statute is dead,” Mr. Rivkin said.

But White House officials declared that the opinion should not deter the continuing rollout of the law. “Implementation would continue apace,” a senior administration official said. “This is not the last word by any means.”

At the same time, Stephanie Cutter, an assistant to the president, noted in a post on the White House blog that the ruling had struck down the entire law. She called it “a plain case of judicial overreaching,” and added, “The judge’s decision puts all of the new benefits, cost savings and patient protections that were included in the law at risk.”

The Justice Department, which represents the Obama administration in the litigation, said it was exploring options to clarify the uncertainty, including requesting a stay of the decision, either from Judge Vinson or from the United States Court of Appeals for the Eleventh Circuit.

On Capitol Hill, Republicans sent out a stream of e-mails praising the ruling, while Senator Richard J. Durbin, Democrat of Illinois, said he would convene a Judiciary Committee hearing on Wednesday to examine the constitutionality of the law.

In his 78-page opinion, Judge Vinson held that the insurance requirement exceeded the regulatory powers granted to Congress under the Commerce Clause of the Constitution. He wrote that the provision could not be rescued by an associated clause in Article I that gives Congress broad authority to make laws “necessary and proper” to carrying out its designated responsibilities.

“If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain,” the judge asserted.

In a silver lining for the Obama administration, Judge Vinson rejected a second claim that the new law violated state sovereignty by requiring states to pay for a fractional share of the planned Medicaid expansion.

The judge’s ruling came in the most prominent of more than 20 legal challenges to the sweeping health law, which was signed last March by President Obama.

The plaintiffs include governors and attorneys general from 26 states, all but one of them Republicans, as well as the National Federation of Independent Business, which represents small companies. Officials from six states joined the lawsuit in January after shifts in party control brought by November’s elections.

The ruling by Judge Vinson, a senior judge who was appointed by President Ronald Reagan, solidified the divide in the health litigation among judges named by Republicans and those named by Democrats.

In December, Judge Henry E. Hudson of Federal District Court in Richmond, Va., who was appointed by President George W. Bush, became the first to invalidate the insurance mandate. Two other federal judges named by President Bill Clinton, a Democrat, have upheld the law.

Judge Vinson’s opinion hangs on a series of Supreme Court decisions that have defined the limits of the Commerce Clause by granting Congress authority to regulate “activities that substantially affect interstate commerce.”

The plaintiffs characterized the insurance requirement as an unprecedented effort to regulate inactivity because citizens would be assessed an income tax penalty for failing to buy a product.

Justice Department lawyers responded that a choice not to obtain health insurance was itself an active decision that, taken in the aggregate, shifted the cost of caring for the uninsured to hospitals, governments and privately insured individuals.

In his decision, Judge Vinson wrote, “It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause.” If Congress has such power, he continued, “it is not hyperbolizing to suggest that Congress could do almost anything it wanted.”

The Pensacola case is now likely to head to the Eleventh Circuit in Atlanta, considered one of the country’s most conservative appellate benches. The Richmond case is already with another conservative court, the United States Court of Appeals for the Fourth Circuit in Richmond, which has set oral arguments for May.

That court will consider diametrically opposed rulings from courthouses situated 116 miles apart, as it was a judge in Lynchburg, Va., Norman K. Moon, who issued one of the two decisions upholding the law. Meanwhile, the United States Court of Appeals for the Sixth Circuit in Cincinnati is already receiving briefs on the other decision backing the law, which was delivered by Judge George C. Steeh in Detroit.

Judge Vinson’s ruling further arms Republicans in Congress who are waging a fierce campaign against the health care act. The new Republican majority in the House voted this year to repeal the law, a largely symbolic measure that is given no chance in the Democratic-controlled Senate.

The Obama administration argues that without the insurance mandate consumers might simply wait until they are sick to enroll, undercutting the actuarial soundness of risk pooling and leading to an industry “death spiral.”

But the mandate’s legal and political problems have prompted a few Democratic senators to join Republicans in exploring alternatives that would encourage citizens to buy insurance without requiring it.

For instance, people could be given a narrow window to enroll, and those who miss the deadline would face lengthy waiting periods for coverage.

Alternately, those who apply late and are eligible for government tax credits under the law coverage could be penalized through a reduction of their subsidies.

Sheryl Gay Stolberg contributed reporting.

Federal Judge Rules That Health Law Violates Constitution,
NYT,
31.1.2011,
http://www.nytimes.com/2011/02/01/us/01ruling.html

Drowning in Campaign Cash

October 30, 2010
The New York Times

Shrill political attacks have saturated the airwaves for months, but behind them is the real problem of this demoralizing election: the dark flow of dollars, often secretly provided by donors with very special interests.

The amount is staggering: Nearly $4 billion is likely to be spent once the final figures are in, according to the Center for Responsive Politics, far more than in the 2006 midterms, which cost $2.85 billion. It could even eclipse the $4.14 billion spent in the 2004 presidential campaign.

Much of this is a direct creation of the Supreme Court under Chief Justice John G. Roberts Jr., which has cut away nearly all campaign finance restrictions.

The court’s 2007 decision in Wisconsin Right-to-Life gave corporations and unions the right to run advocacy ads in the last 60 days of a campaign — as long as they did not expressly advocate the election or defeat of a specific candidate. This year’s Citizens United decision effectively ended even that last restriction, and pulled away all limits on corporate spending in campaigns.

Building on those decisions, political operatives — mainly Republicans — decided they could collect unlimited amounts of money through independent, tax- exempt organizations known as 501(c) groups, without revealing the source of the donations.

By offering anonymity and no limits, these groups (with gauzily apolitical names, like American Future Fund and American Action Network) have been able to raise and spend extraordinary sums. In the 2006 midterms, outside groups not affiliated with political parties spent $51.6 million; so far this year, such groups have spent $280 million. About 60 percent of that spending is from undisclosed donors, most of which has benefited Republicans. Democratic candidates raised huge amounts, but the sources for most of it were disclosed.

Combining both traditional and outside money, Republicans have slightly outraised Democrats, $1.64 billion to $1.59 billion, but there is more to be tallied.

While large secret donations have been legalized, it is not clear that the 501(c) groups spending the money on barrages of attack ads are playing by the last, threadbare rules. The tax code requires that these groups not be “primarily engaged” in political advocacy, but neither the Internal Revenue Service nor the Federal Election Commission has made any apparent effort to investigate what other purpose they might have. Some groups have suggested they would begin nonpolitical activities — after the election.

What is clear is that the new world of unlimited spending, both open and secret, confers huge benefits on wealthy individuals, corporations and unions. In a striking example, reported by ABC News last week, Terry Forcht, a prominent Kentucky banker and nursing home executive, helped pay for a series of attack ads against Attorney General Jack Conway, the Democratic Senate candidate. Mr. Conway is prosecuting one of Mr. Forcht’s nursing homes for allegedly covering up sexual abuse.

Mr. Forcht has directly raised at least $21,000 for Mr. Conway’s Republican opponent, Rand Paul. He serves as the banker for American Crossroads, the shadowy group of nonprofits organized by Karl Rove that has spent nearly $30 million to defeat Democrats and more than $1 million to defeat Mr. Conway.

This year, of course, is just batting practice for 2012. Congress still has time to act. The first step is to pass the Disclose Act, which would require the identification of large campaign donors. The second is to create a public financing system for Congressional candidates that provides extra money to those who rely on small donations.

Voters say — again and again — that they want to break the hold of special interests and end pay-to-play politics. And politicians promise — again and again — that they will. Four billion dollars and one particularly ugly campaign later, there can be no more excuses.

Drowning in Campaign Cash, NYT, 30.10.2010,
http://www.nytimes.com/2010/10/31/opinion/31sun1.html

No Justification

October 28, 2010
The New York Times

Two years ago, when a splintered Supreme Court approved lethal injection as a means of execution in Baze v. Rees, Justice John Paul Stevens made a prophecy. Instead of ending the controversy, he said, the ruling would raise questions “about the justification for the death penalty itself.” Since then, evidence has continued to mount, showing the huge injustice of the death penalty — and the particular barbarism of this form of execution.

In the case of Jeffrey Landrigan, convicted of murder and executed by Arizona on Tuesday, the system failed him at almost every level, most disturbingly at the Supreme Court. In a 5-to-4 vote, the court’s conservative majority allowed the execution to proceed based on a stark misrepresentation.

Of the 35 states that allow the death penalty, all now execute by lethal injection. Most use a sequence of drugs that is supposed to provide a painless death, but when it is administered incorrectly it causes agony that amounts to torture. Veterinarians say the method doesn’t meet the standard for euthanizing animals.

Arizona’s plan for Mr. Landrigan’s execution was thrown off by a shortage of sodium thiopental, one of three drugs used in standard lethal injections. The only maker approved by the Food and Drug Administration hasn’t been able to get a critical ingredient for almost a year. The state obtained the drug from a foreign maker.

When Mr. Landrigan tried to ascertain its effectiveness for sedating him so he wouldn’t feel the pain of the other drugs, Arizona refused to divulge the information. After the state defied four orders from a federal district judge to produce it, the judge stayed the execution.

When the case got to the Supreme Court, the majority overturned the stay, saying there was “no evidence in the record to suggest that the drug obtained from a foreign source is unsafe.” There was no evidence — either way — because Arizona defied orders to provide it.

The court’s whitewash highlights the arbitrariness of Mr. Landrigan’s execution. Cheryl Hendrix, the retired Arizona judge who presided over his trial, recently said, “Mr. Landrigan would not have been sentenced to death” if she had been given the medical evidence of the defendant’s brain damage and other factors. Mr. Landrigan’s inept trial lawyer didn’t submit the evidence.

She no longer had the power to alter his fate, but, in an affidavit for the Arizona Board of Executive Clemency, Ms. Hendrix supported his plea to have his death sentence commuted to life. “Since the courts have not corrected this injustice,” she stated, “I am compelled to submit this declaration on Mr. Landrigan’s behalf.” The Supreme Court should have upheld the stay of execution and forced the state to deliver the information called for. It failed, shamefully.

No Justification, NYT, 28.10.2010,
http://www.nytimes.com/2010/10/29/opinion/29fri1.html

Justices Say Gun Rights Apply Locally

The New York Times
June 28, 2010
By THE ASSOCIATED PRESS

WASHINGTON (AP) -- The Supreme Court held Monday that the Constitution's Second Amendment restrains government's ability to significantly limit "the right to keep and bear arms," advancing a recent trend by the John Roberts-led bench to embrace gun rights.

By a narrow, 5-4 vote, the justices signaled, however, that less severe restrictions could survive legal challenges.

Writing for the court in a case involving restrictive laws in Chicago and one of its suburbs, Justice Samuel Alito said that the Second Amendment right "applies equally to the federal government and the states."

The court was split along familiar ideological lines, with five conservative-moderate justices in favor of gun rights and four liberals opposed. Chief Justice Roberts voted with the majority.

Two years ago, the court declared that the Second Amendment protects an individual's right to possess guns, at least for purposes of self-defense in the home.

That ruling applied only to federal laws. It struck down a ban on handguns and a trigger lock requirement for other guns in the District of Columbia, a federal city with a unique legal standing. At the same time, the court was careful not to cast doubt on other regulations of firearms here.

Gun rights proponents almost immediately filed a federal lawsuit challenging gun control laws in Chicago and its suburb of Oak Park, Ill, where handguns have been banned for nearly 30 years. The Brady Center to Prevent Gun Violence says those laws appear to be the last two remaining outright bans.

Lower federal courts upheld the two laws, noting that judges on those benches were bound by Supreme Court precedent and that it would be up to the high court justices to ultimately rule on the true reach of the Second Amendment.

The Supreme Court already has said that most of the guarantees in the Bill of Rights serve as a check on state and local, as well as federal, laws.

Monday's decision did not explicitly strike down the Chicago area laws, ordering a federal appeals court to reconsider its ruling. But it left little doubt that they would eventually fall.

Still, Alito noted that the declaration that the Second Amendment is fully binding on states and cities "limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values."

Justices Say Gun Rights Apply Locally, NYT, 28.6.2010,
http://www.nytimes.com/aponline/2010/06/28/us/AP-US-SupremeCourt-Guns.html

Rolling Back a Law Born of Enron

June 24, 2010
The New York Times
By FLOYD NORRIS

The timing is exquisite. First the Supreme Court of the United States provided a significant legal victory to the mastermind behind one of the greatest corporate frauds in American history. Next the court may throw out the law that Congress passed to reform corporate America — a law inspired by that very fraud.

The end of a Supreme Court term is often the most interesting. The cases that produced the biggest arguments are delayed until the last minute — and that minute is upon us.

The term ends next week. It is expected that the final rulings will appear on Monday. It is then that the court will decide whether to throw out the Sarbanes-Oxley Act.

If it does, it will use the same basic argument it used Thursday. It will blame Congress for writing bad laws.

And that will clear the way for Congress, if it has the will, to swiftly rescue corporate reform and assure that future crooked corporate and government officials cannot take advantage of the rulings.

In one case decided Thursday, Jeffrey K. Skilling, the former chief executive of the Enron fraud, persuaded the Supreme Court that the concept of committing fraud through depriving an employer of “honest services” was not adequately defined in the law.

If the executive took a bribe or a kickback, then that is illegal under the law, the justices concluded. But if he did something else equally outrageous, the law is too vague and is therefore unconstitutional.

For Mr. Skilling, the victory is only partial and could prove fleeting. The justices refused to order a new trial for him. There were other legal theories advanced by the government in charging Mr. Skilling with conspiracy to commit fraud, and the lower courts will now hear arguments over whether the verdict was amply justified by evidence supporting the other theories.

The high court was equally kind to another disgraced corporate executive. Using the Skilling case as a precedent, it threw into doubt the conviction of Conrad M. Black, the newspaper baron who controlled The Daily and Sunday Telegraph of London and The Chicago Sun-Times. The lower courts will consider whether other prosecution arguments can still justify the verdict.

The decision expected next week is nominally about the Public Company Accounting Oversight Board and concerns an obscure constitutional clause regarding presidential powers. But it could lead to the entire Sarbanes-Oxley Act being thrown out.

The Sarbanes-Oxley Act was passed by Congress in 2002. The Enron scandal — in which it turned out that one of the largest companies in America had ridden roughshod over, under and through accounting rules to report billions in profits when it had no hope of paying its debts — got that effort started. The final push came when the WorldCom scandal broke.

Accounting firms had largely escaped any real regulation before, and the law created the board to inspect and regulate the firms. Board reports have forced major firms to change practices, and the board is generally viewed as having done a good job.

Under the law, the five members of the board are appointed by the Securities and Exchange Commission but are legally not government employees. The board is financed by fees paid by publicly listed companies, and its budget is subject to approval by the S.E.C.

The argument before the court is that under the Constitution, Congress should have allowed the president — or someone he directly appoints and can remove at will — to make the appointments. That argument could well appeal to some justices, particularly Samuel A. Alito Jr., who has supported stronger executive power.

By itself, that dispute over appointment powers might not be too important. But in passing the Sarbanes-Oxley Act, Congress did not put in a severability clause — a normal part of many laws saying that if part of the law is unconstitutional, the rest can stand on its own. So that has raised the prospect that the entire law would fall at the same time.

Out would go requirements for audits of corporate financial controls and for corporate executives to certify that their financial statements were accurate, among other things.

Just what Congress might do if that happened has become a subject of some speculation. Some corporate officials fear that in the current climate, Congress could enact new and tougher regulations. “It is conceivable that the re-proposed legislation would become a Christmas tree on which every ornament of corporate reform and governance will be hung,” said Susan Hackett, the general counsel of a trade group for corporate lawyers, the Association of Corporate Counsel.

But there are also signs that Congress is in no such mood. The financial reform bill that is expected to be passed seems likely to repeal the requirement for audited financial controls for most public companies, leaving it effective only for those with revenue above $75 million.

It also appears likely to grant corporate boards one of their greatest desires, by blocking planned S.E.C. rules aimed at permitting dissident shareholders from putting director candidates on the ballots sent to shareholders by the company. Instead, it would allow no such nominations unless the dissident owned at least 5 percent of the stock, a very high level.

In 2007, some of the same senators now supporting that provision, including Christopher J. Dodd, the Banking Committee chairman, argued that a 5 percent figure would gut any such rule.

It is interesting to consider why the court thinks it is Congress’s fault that it must rule as it did. The legal concepts at stake were largely based on judicial opinions beginning in the 1940s. The court blocked those opinions in 1987, saying that the law did not justify the “honest services” doctrine and inviting Congress to fix that.

Congress did just that in 1988. But now the justices say Congress did not define the doctrine very well. So it looked at the pre-1987 rulings and decided that they amply established that bribery and kickbacks were covered. But there was not enough consensus on other ways of violating that doctrine, like simple thievery. So Mr. Black and Mr. Skilling may walk. If Congress is unhappy, it can pass a better law.

If ever there was a corporate executive who viewed shareholders as inconvenient pests, it was Mr. Black. Eventually, after those shareholders complained over and over, a board committee advised by Richard C. Breeden, a former S.E.C. chairman, concluded that Mr. Black and his colleagues had been running a “corporate kleptocracy.” Facts the committee set out led to the Mr. Black’s conviction.

Mr. Black explained his concept of corporate governance in a 2002 e-mail message when he was under criticism from shareholders for excessive personal spending of corporate money:

“I’m not prepared to re-enact the French Revolutionary renunciation of the rights of nobility. We have to find a balance between an unfair taxation on the company and a reasonable treatment of the founder-builders-managers. We are proprietors, after all, beleaguered though we may be.”

Thanks to the Supreme Court, he may soon feel less beleaguered. Next week, all of corporate America may feel the same way.

Rolling Back a Law Born of Enron, NYT, 24.6.2010,
http://www.nytimes.com/2010/06/25/business/25norris.html

A Bruise on the First Amendment

June 21, 2010
The New York Times

Forty-three years ago, when the nation lived in fear of Communist sympathizers and saboteurs, the Supreme Court said that even the need for national defense could not reduce the First Amendment rights of those associating with American Communists.

On Monday, in the first case since the Sept. 11, 2001, attacks to test free speech against the demands of national security in the age of terrorism, the ideals of an earlier time were eroded and free speech lost. By preserving an extremely vague prohibition on aiding and associating with terrorist groups, the court reduced the First Amendment rights of American citizens.

The case was not about sending money to terrorist organizations or serving as their liaison, activities that are clearly and properly illegal. And it did not stop people from simply saying they support the goals of groups like Hamas or Al Qaeda, as long as they are not actually working with those groups. But it could have a serious impact on lawyers, journalists or academics who represent or study terrorist groups.

The case arose after an American human rights group, the Humanitarian Law Project, challenged the law prohibiting “material support” to terror groups, which was defined in the 2001 Patriot Act to include “expert advice or assistance.” The law project wanted to provide advice to two terrorist groups on how to peacefully resolve their disputes and work with the United Nations. The two groups — the Liberation Tigers of Tamil Eelam and the Kurdistan Workers’ Party — have violent histories and their presence on the State Department’s official list of terrorist groups is not in dispute.

But though the law project was actually trying to reduce the violence of the two groups, the court’s opinion, written by Chief Justice John Roberts Jr. on behalf of five other justices, said that did not matter and ruled the project’s efforts illegal. Even peaceful assistance to a terror group can further terrorism, the chief justice wrote, in part by lending them legitimacy and allowing them to pretend to be negotiating while plotting violence.

In a powerful dissent, Justice Stephen Breyer, also speaking for Justices Ruth Bader Ginsburg and Sonia Sotomayor, swept away those arguments. If providing legitimacy to a terror group was really a crime, he wrote, then it should also be a crime to independently legitimize a terror group through speech, which it is not. Never before, he said, had the court criminalized a form of speech on these kinds of grounds, noting with particular derision the notion that peaceful assistance buys negotiating time for an opponent to achieve bad ends.

The court at least clarified that acts had to be coordinated with terror groups to be illegal, but many forms of assistance may still be a criminal act, including filing a brief against the government in a terror-group lawsuit. Academic researchers doing field work in conflict zones could be arrested for meeting with terror groups and discussing their research, as could journalists who write about the activities and motivations of these groups, or the journalists’ sources. The F.B.I. has questioned people it suspected as being sources for a New York Times article about terrorism, and threatened to arrest them for providing material support.

There remains a reasonable way of resolving these disputes. Justice Breyer proposed a standard that would criminalize this kind of speech or association “only when the defendant knows or intends that those activities will assist the organization’s unlawful terrorist actions.” Because he was unable to persuade a majority on the court, Congress needs to enact this standard into law.

A Bruise on the First Amendment, NYT, 21.6.2010,
http://www.nytimes.com/2010/06/22/opinion/22tue1.html

Editorial

The Court’s Blow to Democracy

January 22, 2010
The New York Times

With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century. Disingenuously waving the flag of the First Amendment, the court’s conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.

Congress must act immediately to limit the damage of this radical decision, which strikes at the heart of democracy.

As a result of Thursday’s ruling, corporations have been unleashed from the longstanding ban against their spending directly on political campaigns and will be free to spend as much money as they want to elect and defeat candidates. If a member of Congress tries to stand up to a wealthy special interest, its lobbyists can credibly threaten: We’ll spend whatever it takes to defeat you.

The ruling in Citizens United v. Federal Election Commission radically reverses well-established law and erodes a wall that has stood for a century between corporations and electoral politics. (The ruling also frees up labor unions to spend, though they have far less money at their disposal.)

The founders of this nation warned about the dangers of corporate influence. The Constitution they wrote mentions many things and assigns them rights and protections — the people, militias, the press, religions. But it does not mention corporations.

In 1907, as corporations reached new heights of wealth and power, Congress made its views of the relationship between corporations and campaigning clear: It banned them from contributing to candidates. At midcentury, it enacted the broader ban on spending that was repeatedly reaffirmed over the decades until it was struck down on Thursday.

This issue should never have been before the court. The justices overreached and seized on a case involving a narrower, technical question involving the broadcast of a movie that attacked Hillary Rodham Clinton during the 2008 campaign. The court elevated that case to a forum for striking down the entire ban on corporate spending and then rushed the process of hearing the case at breakneck speed. It gave lawyers a month to prepare briefs on an issue of enormous complexity, and it scheduled arguments during its vacation.

Chief Justice John Roberts Jr., no doubt aware of how sharply these actions clash with his confirmation-time vow to be judicially modest and simply “call balls and strikes,” wrote a separate opinion trying to excuse the shameless judicial overreaching.

The majority is deeply wrong on the law. Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights. It is an odd claim since companies are creations of the state that exist to make money. They are given special privileges, including different tax rates, to do just that. It was a fundamental misreading of the Constitution to say that these artificial legal constructs have the same right to spend money on politics as ordinary Americans have to speak out in support of a candidate.

The majority also makes the nonsensical claim that, unlike campaign contributions, which are still prohibited, independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” If Wall Street bankers told members of Congress that they would spend millions of dollars to defeat anyone who opposed their bailout, and then did so, it would certainly look corrupt.

After the court heard the case, Senator John McCain told reporters that he was troubled by the “extreme naïveté” some of the justices showed about the role of special-interest money in Congressional lawmaking.

In dissent, Justice John Paul Stevens warned that the ruling not only threatens democracy but “will, I fear, do damage to this institution.” History is, indeed, likely to look harshly not only on the decision but the court that delivered it. The Citizens United ruling is likely to be viewed as a shameful bookend to Bush v. Gore. With one 5-to-4 decision, the court’s conservative majority stopped valid votes from being counted to ensure the election of a conservative president. Now a similar conservative majority has distorted the political system to ensure that Republican candidates will be at an enormous advantage in future elections.

Congress and members of the public who care about fair elections and clean government need to mobilize right away, a cause President Obama has said he would join. Congress should repair the presidential public finance system and create another one for Congressional elections to help ordinary Americans contribute to campaigns. It should also enact a law requiring publicly traded corporations to get the approval of their shareholders before spending on political campaigns.

These would be important steps, but they would not be enough. The real solution lies in getting the court’s ruling overturned. The four dissenters made an eloquent case for why the decision was wrong on the law and dangerous. With one more vote, they could rescue democracy.

The Court’s Blow to Democracy, NYT, 22.1.2010,
http://www.nytimes.com/2010/01/22/opinion/22fri1.html

The Practice

September 27, 2009
The New York Times
By ALAN M. DERSHOWITZ

LOUIS D. BRANDEIS

A Life

By Melvin I. Urofsky

Illustrated. 953 pp. Pantheon Books. $40

The popular parlor game of ranking our presidents hasn’t caught on for Supreme Court justices, perhaps because there are too many of them (Sonia Sotomayor is the 111th justice) or because Americans have so little knowledge of what they actually do. But if justices were to be ranked, three names would appear on the top of most lists: Chief Justice John Marshall, Justice Oliver Wendell Holmes and Justice Louis D. Brandeis. Similarly, if practicing lawyers were to be ranked, nearly every list would include John Adams, Daniel Webster, Abraham Lincoln, Clarence Darrow and Brandeis.

Notably, the only person on both lists is Brandeis. He would also be included on a list of America’s most important social reformers and innovators, having developed savings bank life insurance and new ways of practicing law. He was the co-author of what may well be the single most influential law review article in history — on the right to privacy. And he was the most significant American in helping to establish the state of Israel. All in all, this son of Czech-Jewish immigrants, who grew up in Louisville, Ky., may well qualify as the greatest legal personage in American history.

Melvin I. Urofsky — the author of this monumental, authoritative and appreciative biography of the man Franklin D. Roosevelt called “Isaiah” — would surely agree. A professor of law and public policy at Virginia Commonwealth University, Urofsky has devoted much of his career to documenting the personal and professional life of the great lawyer and justice. In “Louis D. Brandeis: A Life,” he demonstrates, deploying a Brandeisian array of factual material, why Brandeis still matters, nearly 70 years after his death. The First Amendment’s right of free expression, the Fourth Amendment’s right to privacy and the due process clause’s focus on personal liberty (rather than property) all owe their current vitality to the creative genius of Justice Brandeis, whose dissenting opinions have become the law of the land.

Today, Brandeis is seen by liberals as their patron saint because of his views on speech, privacy, liberty and social welfare, yet conservatives claim him as well, because of his commitment to judicial restraint. In many ways he defies labeling. He demonstrated through his judicial decisions that a living constitution, responsive to changing needs, is not incompatible with a modest view of the role of judges. He rejected judicial activism in favor of allowing legislatures — the voice of the people — to expand rights and extend protections to the most vulnerable. He said of the Supreme Court that “the most important thing we do is not doing.”

This was, of course, easier to say in his day, when legislatures, for the most part, were more progressive than courts. He led the Supreme Court in upholding progressive (some called it radical) legislative innovations in the areas of labor law, protection of women and fairness to the poor. But unlike many of today’s justices, who employ artificial jurisprudential constructs to further (and disguise) their political or religious ideologies, Brandeis was a judge who placed principle over politics, and who often voted to uphold legislation he personally despised, like the “big government” aspects of the New Deal. For the most part, however, the laws he upheld were of the sort he, as “the people’s attorney,” helped to design and defend.

Indeed, he developed the legal technique — called “the Brandeis brief” — that was used by progressive lawyers to support legislation in the face of constitutional challenges, especially those based on the property rights of corporations. The Brandeis brief, which has become commonplace today, not only presents the court with an analysis of legal precedents but also marshals current factual material — statistics, scientific experiments, governmental records — to demonstrate that the legislature had a reasonable basis for its actions. It is difficult to overstate the revolutionary consequences of this tactic. Before the introduction of the Brandeis brief, the law was seen by conservatives as a formal series of rules representing eternal verities, unchangeable by new circumstances. Brandeis presented a direct challenge to the old regime by demanding that the law be responsive to new realities, based on new facts.

Urofsky acknowledges that Brandeis did not invent out of whole cloth his fact-based approach to the law. Oliver Wendell Holmes, in particular, had argued that the life of the law was “experience” rather than “logic.” And experience is, of course, fact based.

Brandeis was also the heir of Jefferson and Madison, who saw freedom of expression as the foundation of democracy. But unlike Holmes, Jefferson and Madison, Brandeis was a great legal practitioner who knew how to turn theory into practice. He created enduring structures that lawyers could use to implement the ideas propounded by Jefferson, Madison and Holmes.

The impact he had on the practice of law when he himself practiced it, lucratively and effectively for over 35 years, was probably as great as the impact he had as a justice of the Supreme Court. He is one of the handful of justices — along with Thurgood Marshall, Benjamin Cardozo, William Howard Taft, Earl Warren and Arthur Goldberg — who would have been remembered by history even if he had never been elevated to the high court. (Today’s court has no one with Brandeis’s experience as a practicing lawyer — and it shows.) Remarkably, it was his innovative work as an attorney that, along with his religion, almost kept him from being confirmed by the Senate when President Woodrow Wilson nominated him to the court in 1916. Urofsky believes that his religion played less of a role than his radical approach to the law, but it is impossible to separate the two, because the bigotry of the day associated his alleged radicalism with his Jewish heritage.

One of Urofsky’s most fascinating revelations deals with Brandeis’s conversion from a Christmas-celebrating secular American of Jewish heritage to a committed Zionist and Jew. According to Urofsky, there was no single “aha” moment of revelation. Rather, Brandeis was convinced that Zionism was an outgrowth of his progressive values. The idea of Jews’ having a homeland, based on social justice and Jewish prophetic principles, seemed entirely natural to him. He poured his heart, soul, fortune and considerable energies into persuading American Jews, who were generally unsympathetic to European Zionism, that one could be a patriotic American while at the same time advocating a Jewish homeland for the oppressed Jews of Europe. His most important contribution to Israel’s establishment was in turning Zionism from a theory alien to many American Jews into a pragmatic program to rid the Holy Land of disease, to increase its agricultural production and to make it feasible for European Jews to live in peace with their Arab neighbors. There are many who believe that without Brandeis’s advocacy, the United States would not have supported the establishment of Israel.

Although this is an admiring biography, it is far from hagiographic. Urofsky presents the warts, few as there were. Brandeis’s approach to the practice of law in which he sometimes served as “counsel to the situation” — representing both parties to a dispute in an effort to achieve a just result — raised legitimate questions, as did his payments to his acolyte Felix Frankfurter when Brandeis was a justice and Frankfurter a Harvard Law professor who was promoting causes dear to both of them. But on balance, Urofsky’s Brandeis brief in support of “Isaiah’s” important place in the annals of the law and history is convincing.

Alan M. Dershowitz’s most recent book is

“The Case for Moral Clarity: Israel, Hamas and Gaza.”

The Practice, NYT, 27.9.2009,
http://www.nytimes.com/2009/09/27/books/review/Dershowitz-t.html

Editorial

12 and in Prison

July 28, 2009
The New York Times

The Supreme Court sent an important message when it ruled in Roper v. Simmons in 2005 that children under the age of 18 when their crimes were committed were not eligible for the death penalty. Justice Anthony Kennedy drew on compassion, common sense and the science of the youthful brain when he wrote that it was morally wrong to equate the offenses of emotionally undeveloped adolescents with the offenses of fully formed adults.

The states have followed this logic in death penalty cases. But they have continued to mete out barbaric treatment — including life sentences — to children whose cases should rightly be handled through the juvenile courts.

Congress can help to correct these practices by amending the Juvenile Justice and Delinquency Prevention Act of 1974, which is up for Congressional reauthorization this year. To get a share of delinquency prevention money, the law requires the states and localities to meet minimum federal protections for youths in the justice system. These protections are intended to keep as many youths as possible out of adult jails and prisons, and to segregate those that are sent to those places from the adult criminal population.

The case for tougher legislative action is laid out in an alarming new study of children 13 and under in the adult criminal justice system, the lead author of which is the juvenile justice scholar, Michele Deitch, of the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin. According to the study, every state allows juveniles to be tried as adults, and more than 20 states permit preadolescent children as young as 7 to be tried in adult courts.

This is terrible public policy. Children who are convicted and sentenced as adults are much more likely to become violent offenders — and to return to an adult jail later on — than children tried in the juvenile justice system.

Despite these well-known risks, policy makers across the country do not have reliable data on just how many children are being shunted into the adult system by state statutes or prosecutors, who have the discretion to file cases in the adult courts.

But there is reasonably reliable data showing juvenile court judges send about 80 children ages 13 and under into the adult courts each year. These statistics explode the myth that those children have committed especially heinous acts.

The data suggest, for example, that children 13 and under who commit crimes like burglary and theft are just as likely to be sent to adult courts as children who commit serious acts of violence against people. As has been shown in previous studies, minority defendants are more likely to get adult treatment than their white counterparts who commit comparable offenses.

The study’s authors rightly call on lawmakers to enact laws that discourage harsh sentencing for preadolescent children and that enable them to be transferred back into the juvenile system. Beyond that, Congress should amend the juvenile justice act to require the states to simply end these inhumane practices to be eligible for federal juvenile justice funds.

12 and in Prison, NYT, 28.7.2009,
http://www.nytimes.com/2009/07/28/opinion/28tue1.html

Op-Ed Contributor

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 social importance.”

Rembar mulled over a question that Brennan apparently hadn’t considered: What if a book met the standards of obscenity yet also presented ideas of “redeeming social importance”? By Brennan’s logic, wouldn’t it qualify for the First Amendment’s protection after all?

On a sheet of paper, Rembar drew two slightly overlapping circles. He labeled one circle “Material appealing to prurient interests.” He labeled the other “Material utterly without social importance.” By Brennan’s reasoning, only material that fell inside both circles — that was both prurient and worthless — should be denied the privileges of free speech.

This was the argument that Rembar made before Judge Frederick van Pelt Bryan of the United States District Court for the Southern District of New York. With the assistance of several literary critics’ testimony, he presented “Lady Chatterley” as a novel of ideas that inveighed against sex without love, the mechanization of industrial life and morbid hypocrisy.

The United States attorney representing the Post Office, S. Hazard Gillespie Jr., thought Rembar had misread the law, and he recited a clause of the Roth ruling that Rembar had omitted. Justice Brennan had written that controversial ideas “have the full protection” of the First Amendment — “unless,” Gillespie underlined, these ideas were “excludable because they encroach upon the limited area of more important interests.” One of those interests, surely, was keeping obscenity under wraps. Hence Rembar’s argument was irrelevant.

This was, however, just the rebuttal Rembar was hoping for. He pointed out a footnote in which Brennan elaborated on what kind of “more important interests” were “excludable.” All of them involved actions — peddling, picketing, parading without a license, playing loud music from a truck. The First Amendment didn’t protect any of that. But none of Brennan’s examples involved writing — expression unattached to conduct. Pure expression could be forbidden, Rembar argued, only if it was “utterly without social importance.”

On July 21, 1959, Judge Bryan ruled in favor of Grove Press and ordered the Post Office to lift all restrictions on sending copies of “Lady Chatterley’s Lover” through the mail. This, in effect, marked the end of the Post Office’s authority — which, until then, it held absolutely — to declare a work of literature “obscene” or to impound copies of those works or prosecute their publishers. This wasn’t exactly the end of obscenity as a criminal category. Into the mid-1960s, Barney Rosset would wage battles in various state courts over William Burroughs’s “Naked Lunch” and Henry Miller’s “Tropic of Cancer,” other Grove novels now widely regarded as classics. But the “Chatterley” case established the principle that allowed free speech its total victory.

The Post Office did appeal Judge Bryan’s verdict; a panel of four judges upheld it unanimously. The government’s lawyers decided not to appeal further to the Supreme Court. They knew that they would lose — that the justices who, just two years earlier, had excluded this sort of literature from constitutional protection would now change their minds. They knew that Rembar’s creative view of Justice Brennan’s opinion — a view that Brennan had not explicitly considered when he wrote it — was logically unassailable.

The case also made clear that laws are more complex than strike zones or foul lines, which is why the analogy between judges and umpires is so misleading.

The distinction is sharpened by another argument Rembar made during the “Lady Chatterley” trial. “A novel, no matter how much devoted to the act of sex,” he said, “can hardly add to the constant sexual prodding with which our environment assails us.” In the mass media of the day, with its appeals to a booming youth market, movies and advertisements were often “calculated to produce sexual thoughts and reactions,” to the point where “we live in a sea of sexual provocation.”

In short, “community standards” were radically changing. The proof was that, after the ban on “Lady Chatterley” was lifted, the book reached the No. 2 slot on The New York Times best-seller list (topped only by Leon Uris’s “Exodus”) and, within a year, sold two million copies.

For many decades, the courts upheld racial segregation; then, suddenly, they didn’t. For many decades, the courts let the Post Office decide which books people could read; then, suddenly, they didn’t. In both cases, and many others that could be cited, the laws hadn’t changed; society did. And the courts responded accordingly.

Fred Kaplan is a columnist for Slate

and the author of “1959: The Year Everything Changed.”

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

Sidebar

Free-Speech Case

for a Debt-Ridden Age

June 23, 2009
The New York Times
By ADAM LIPTAK

WASHINGTON

The great Supreme Court free-speech cases of the 20th century arose from the suppression of political dissent in wartime and the struggle for civil rights in the South. These days, the court’s First Amendment docket is thinner and odder.

A recent sample: Minor celebrities swearing. Dog fight videos. A monument to the Seven Aphorisms of the Summum religion. A banner reading “Bong Hits 4 Jesus.”

But the Supreme Court did just agree to hear a free-speech case that captures the tenor of our times. It concerns bankruptcy.

One of the plaintiffs in the case is Robert J. Milavetz, a 73-year-old lawyer from Minnesota. In the 1960s and 1970s, he represented conscientious objectors and people accused of violating obscenity laws. The new free-speech battleground, he says, is whether the government can gag lawyers seeking to help their clients arrange their financial affairs.

In 2005, Congress enacted a law that seems to bar lawyers from advising their clients to take on more debt if they are considering bankruptcy.

“Any lawyer with a First Amendment background would immediately recognize the First Amendment problems in this statute,” Mr. Milavetz said.

The law was meant to combat what it called bankruptcy abuses. It is certainly possible to abuse the bankruptcy system by piling on debt right before filing in the hope that you will not have to repay it. But ethics rules already forbid lawyers from advising their clients to break the law.

At the same time, not all new debt in the face of bankruptcy is abusive. It may be perfectly legal and prudent, for instance, to refinance a home mortgage to pay down credit card debt. It may make sense to buy a car on credit to make sure you can get to work — so you can pay back your creditors. But the law seems to forbid lawyers from suggesting or even discussing such things.

Joseph R. Prochaska, a bankruptcy lawyer in Nashville who represents creditors, said a client might get plausible advice from, say, a brother-in-law or from Suze Orman on CNBC about refinancing a loan.

“You go to your lawyer for confirmation,” Mr. Prochaska continued. “As a lawyer, what do you say to that — if I told you to do that, I’d be breaking the law.”

Experts in First Amendment law and legal ethics said the law, at least if read broadly, is deeply flawed.

“To say that a lawyer can’t advise a client to take on legal debt is clearly unconstitutional,” said Erwin Chemerinsky, the dean of the new law school at the University of California, Irvine.

Stephen Gillers, who teaches legal ethics at New York University, agreed. “Congress has no legitimate interest in denying people knowledge of their lawful alternatives,” Professor Gillers said.

In its brief urging the Supreme Court to hear the case, the government did not defend the broader and more natural reading of the law, the one that would forbid even lawful advice. Instead, it said the law contained “a term of art” with “a specialized meaning” that should allow for a more limited reading, one that applies only to abusive situations.

The law forbids advising someone “to incur more debt in contemplation of such person filing” for bankruptcy. The term of art, the government says, is the three-word phrase “in contemplation of.” You probably have to be a very good lawyer to make that phrase mean what the government says it means: “actions taken with the intent to abuse the protections of the bankruptcy system.”

In fairness, the government’s interpretation won support from a dissenting appeals court judge in the case the Supreme Court agreed to hear, from the United States Court of Appeals for the Eighth Circuit, in St. Louis, and from a unanimous three-judge panel of the Fifth Circuit, in New Orleans.

To avoid holding a law unconstitutional, the Fifth Circuit said, it is sometimes a good idea to give a “restrictive meaning” to “what appear to be plain words.” That approach has a name: the doctrine of constitutional avoidance.

Mr. Milavetz’s firm challenged the law, asking that it be struck down in all possible applications. Its briefs discuss hypothetical problems. The law prohibits advice about co-signing on a child’s student loan, one brief said, or borrowing to pay for credit counseling.

But the Supreme Court has not welcomed these kinds of sweeping challenges in recent cases, preferring more focused “as applied” cases that take issue with particular applications of laws.

The law also requires bankruptcy lawyers covered by it to publish disclosures when they advertise. The law says they must use this statement or something “substantially similar”: “We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.”

Mr. Milavetz said the language was aimed to stifle speech. “I feel the term ‘debt relief agency’ is pejorative,” he said. “It deters lawyers from advertising.”

Other lawyers welcome the requirement.

“Most consumer bankruptcy lawyers like to call themselves a ‘debt relief agency,’ ” Mr. Prochaska said. “They have buttons that say ‘Federal Debt Relief Agent.’ It’s a marketing tool.”

There are traces of history in every era’s First Amendment cases. These days, it seems, the great open question is what may be said in the face of looming financial ruin.

Free-Speech Case for a Debt-Ridden Age, NYT, 23.6.2009,
http://www.nytimes.com/2009/06/23/us/23bar.html

Justices Reject

Inmate Right to DNA Tests

June 19, 2009
The New York Times
By ADAM LIPTAK

WASHINGTON — Prisoners have no constitutional right to DNA testing that might prove their innocence, the Supreme Court ruled on Thursday in a 5-to-4 decision.

The court divided along familiar ideological lines, with the majority emphasizing that 46 states already have laws that allow at least some prisoners to gain access to DNA evidence.

“To suddenly constitutionalize this area,” Chief Justice John G. Roberts Jr. wrote for the majority, “would short-circuit what looks to be a prompt and considered legislative response.”

The case before the court concerned Alaska, which has no DNA testing law. Prosecutors there have conceded that such testing could categorically establish the guilt or innocence of William G. Osborne, who was convicted in 1994 of kidnapping and sexually assaulting a prostitute in Anchorage.

In a dissent, Justice John Paul Stevens said the Constitution’s due process clause required allowing Mr. Osborne to have access to DNA evidence in his case.

“For reasons the state has been unable or unwilling to articulate,” Justice Stevens wrote, “it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all.”

Chief Justice Roberts acknowledged the “unparalleled ability” of DNA testing “both to exonerate the wrongly convicted and to identify the guilty.” Such testing has played a role in 240 exonerations, according to the Innocence Project at Cardozo Law School, which represents Mr. Osborne. In 103 of those cases, the testing also identified the actual perpetrator.

Peter Neufeld, a director of the project, said Thursday’s decision would have pernicious consequences.

“It’s unquestionable that some people in some states who are factually innocent will not get DNA testing and will languish in prison,” Mr. Neufeld said. “Some of them will die in prison.”

Only four states — Alabama, Alaska, Massachusetts and Oklahoma — do not have laws in place specifically dealing with postconviction DNA testing, and Alabama recently enacted one limited to death row inmates that will become effective soon.

Many states that do allow postconviction testing impose conditions on who may seek it. Prosecutors often fight hard to deny access to DNA evidence even in states that nominally allow it, saying the prisoner in question had not met the statutory conditions.

Some laws, for instance, do not allow prisoners who have confessed to seek DNA evidence, though false confessions have been common among exonerated inmates. Other states allow testing only if it was unavailable at the time of trial.

Mr. Neufeld said the logic of Thursday’s decision might allow constitutional challenges to some of those laws.

In the case from Alaska, District Attorney’s Office v. Osborne, No. 08-6, Mr. Osborne sought to test biological evidence on a condom found at the crime scene, a snowbank near Anchorage International Airport. The victim was raped, beaten with an ax handle, shot in the head and left for dead. But the bullet only grazed her head, and she survived.

Rudimentary DNA testing on the condom in preparation for trial excluded two other suspects and included Mr. Osborne among those who might have committed the crime. The kind of testing used at the time, Chief Justice Roberts wrote, “generally cannot narrow the perpetrator down to less than 5 percent of the population.”

Mr. Osborne’s trial lawyer decided not to pursue a second kind of DNA testing that was more discriminating. The lawyer said she feared that the results might further incriminate her client. After his conviction, Mr. Osborne sued state officials in federal court seeking access to the DNA evidence for a third kind of yet-more-discriminating testing.

There was other significant evidence of Mr. Osborne’s guilt, and he confessed to the Alaska Board of Parole, which released him after 14 years. He later said he had lied to the parole board in the hope of quicker release. Mr. Osborne has since been convicted of a home invasion.

Last year, the United States Court of Appeals for the Ninth Circuit, in San Francisco, ordered prosecutors in Alaska to turn over the DNA evidence, saying the most sophisticated form of testing had not been available at the time of the trial, that Mr. Osborne would bear its cost and that the results could provide a conclusive answer about his guilt or innocence.

Justice Samuel A. Alito Jr., in a part of his concurrence joined by Justices Anthony M. Kennedy and Clarence Thomas, was skeptical of all of the appeals court’s rationales.

Allowing Mr. Osborne to forgo testing at trial and then request it from prison, Justice Alito wrote, “would allow prisoners to play games with the criminal justice system.”

“After conviction,” Justice Alito added, “with nothing to lose, the defendant could demand DNA testing in the hope that some happy accident — for example, degradation or contamination of the evidence — would provide the basis for seeking postconviction relief.”

Justice Alito acknowledged that the testing Mr. Osborne now seeks was more advanced than the kind his lawyer failed to pursue.

“But his counsel did not decline” the less discriminating testing “because she thought it was not good enough,” Justice Alito wrote. “She declined because she thought it was too good.”

States would incur significant costs, Justice Alito added, were prisoners “given a never-before-recognized constitutional right to rummage through the state’s genetic-evidence locker.” And even the most sophisticated DNA testing, he said, “often fails to provide absolute proof of anything.”

Although it has no DNA testing law, Alaska does have general procedures through which prisoners can try to gain access to evidence that might prove their innocence. The justices disagreed about how effective those procedures have been.

Chief Justice Roberts, whose majority opinion was joined by Justices Kennedy, Thomas, Alito and Antonin Scalia, wrote that he saw “nothing inadequate” about the procedures.

But Justice Stevens said no prisoner had ever obtained DNA evidence for testing in Alaska. He said Mr. Osborne “was rebuffed at every turn” by the state, creating “grave doubts about the adequacy of the procedural protections” in state law.

Justices Ruth Bader Ginsburg and Stephen G. Breyer joined all of Justice Stevens’s opinion and Justice David H. Souter part of it.

Justice Souter issued a dissent saying that officials in Alaska had “demonstrated a combination of inattentiveness and intransigence” that add up to “procedural unfairness that violates the due process clause.”

But Chief Justice Roberts concluded that the issue of when to allow DNA testing was best handled by the states.

“The question,” he wrote, “ is whether further change will primarily be made by legislative revision and judicial interpretation of the existing system, or whether the federal judiciary must leap ahead — revising (or even discarding) the system by creating a new constitutional right and taking over responsibility for refining it.”

Justices Reject Inmate Right to DNA Tests, NYT, 19.6.2009,
http://www.nytimes.com/2009/06/19/us/19scotus.html

Gun Rulings Open Way

to Supreme Court Review

June 17, 2009
The New York Times
By JOHN SCHWARTZ

A year ago, the United States Supreme Court issued a landmark decision establishing the constitutional right of Americans to own guns. But the justices did not explain what the practical effect of that ruling would be on city and state gun laws.

Could a city still ban handguns? The justices said the District of Columbia could not, but only because it is a special federal district. The question of the constitutionality of existing city and state gun laws was left unanswered.

That left a large vacuum for the lower courts to fill. Supporters of gun rights filed a flurry of lawsuits to strike down local gun restrictions, and now federal appeals courts have begun weighing in on this divisive issue, using very different reasoning.

One court this month upheld Chicago’s ban on automatic weapons and concealed handguns, while in April a California court disagreed on the constitutional issue.

The differing opinions mean that the whole issue of city and state gun laws will probably head back to the Supreme Court for clarification, leading many legal experts to predict a further expansion of gun rights.

The new cases are fallout from last year’s Supreme Court case, District of Columbia v. Heller, which struck down parts of Washington’s gun control ordinance, the strictest in the country, and stated for the first time that the Second Amendment gives individuals a right to keep and bear arms for personal use. But the court declined to say whether the Second Amendment in general applies to state and local governments.

In January, the United States Court of Appeals for the Second Circuit, in New York, in a ruling joined by Judge Sonia Sotomayor, declined to apply the Second Amendment to a New York law that banned the martial arts device known as chukka sticks. The ban was allowed to stay in place.

Then in April, a three-judge panel of the Ninth Circuit, in San Francisco, ruled that the Second Amendment did apply to the states, even though it allowed a California county to ban guns on government property like state fairgrounds. That case, Nordyke v. King, is being considered for a rehearing by the full Ninth Circuit.

Those two conflicting cases set the stage for two other cases that were heard as one in the Seventh Circuit in Chicago, testing that city’s handgun ban. On June 2, a three-judge panel of the court, led by Chief Judge Frank H. Easterbrook, a well-known conservative, ruled that there was no basis for the court to apply the Second Amendment to the states. Such a decision, Judge Easterbrook wrote, should be made only by the Supreme Court, not at the appellate level.

The right of states to make their own decisions on such matters, Judge Easterbrook wrote, “is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.”

The lawyers for the plaintiffs, including the National Rifle Association, have asked the Supreme Court to take up the Chicago cases.

A split among the federal appeals circuits, especially on constitutional issues, invites Supreme Court action, said Adam Winkler, a law professor at the University of California, Los Angeles.

“Californians, Hawaiians and Oregonians have a Second Amendment right to bear arms, but New Yorkers, Illinoisans, and Wisconsinites don’t,” Professor Winkler said. “The Supreme Court will want to correct this sooner rather than later.”

The process of applying amendments of the Bill of Rights to the states, known as incorporation, began after the Civil War but had its heyday in the activist Supreme Court of the Earl Warren era. Much of the Bill of Rights, including the First Amendment’s freedom of speech and some rights of criminal defendants, have been applied to the states, but other elements have not, including the Seventh Amendment right to a civil jury trial and the Second Amendment.

Incorporation fell out of favor after the 1960s, but a new generation of largely liberal scholars of law and history have brought it back into the intellectual mainstream, said Akhil Reed Amar, a law professor at Yale University, who supports the process.

“The precedents are now supportive of incorporation of nearly every provision of the Bill of Rights,” Professor Amar said. “Now what’s odd is that the Second Amendment doesn’t apply to the states.”

Sanford Levinson, a law professor at the University of Texas, said he would be surprised if the Supreme Court accepted these gun cases, because some of the conservative justices on the court had scoffed at incorporation arguments in the past and might not want to set a precedent.

Professor Amar, however, argued that the justices would not only take up the case but would also ultimately vote for incorporation of the Second Amendment.

Even if the Second Amendment becomes the controlling law of every state and town, constitutional scholars say it is still unlikely that gun laws would be overturned wholesale. The Supreme Court’s Heller decision last year, notes Nelson Lund, a law professor at George Mason University, “clearly indicates that governments will still have wide latitude to regulate firearms.”

Even the Ninth Circuit in California, while applying the Second Amendment to the states, still upheld the gun ordinance that gave rise to the lawsuit.

Eugene Volokh, a law professor at the University of California, Los Angeles, said the view of the Ninth Circuit reflected what polls have said was, by and large, the view of the American people.

“There is a right to bear arms,” Professor Volokh said, “but it’s not absolute.”

Gun Rulings Open Way to Supreme Court Review, NYT, 17.6.2009,
http://www.nytimes.com/2009/06/17/us/17guns.html

Editorial

The New Justice

May 27, 2009
The New York Times

President Obama seems to have made an inspired choice in picking Judge Sonia Sotomayor for the Supreme Court. She has an impressive judicial record, a stellar academic background and a compelling life story. Judge Sotomayor would also be a trailblazing figure in the mold of Thurgood Marshall, becoming the first member of the nation’s large and growing but still under-represented Hispanic population to serve on the court.

Based on what we know now, the Senate should confirm her so she can join the court when it begins its new term in October.

It’s impossible not to be moved by Judge Sotomayor’s story — born in the Bronx to Puerto Rican parents and brought up in a city housing project. She was found to have diabetes as a child, and her father, a factory worker, died when she was 9, leaving her mother, a nurse, to raise her and her brother. Judge Sotomayor attended Princeton, from which she graduated summa cum laude, and Yale Law School, where she was an editor of the law review.

Her legal experience is impressive and wide-ranging. She spent five years as a prosecutor in the Manhattan district attorney’s office and was a partner in a commercial litigation firm. She has been a federal judge for 16 years, serving on both a district court, where she presided over trials, and an appellate court. As a member of the New York-based United States Court of Appeals for the Second Circuit, she is known for being smart, extraordinarily well prepared and deeply engaged.

In her rulings, Judge Sotomayor has repeatedly displayed the empathy Mr. Obama has said he is looking for in a justice. She has listened attentively to, and often ruled in favor of, people who have been discriminated against, defendants and other groups that are increasingly getting short shrift in the federal courts. She has shown little patience for the sort of procedural bars that conservative judges have been using to close the courthouse door on people whose rights have been violated.

Conservative activists have already begun trying to paint Judge Sotomayor as a liberal ideologue, but her carefully reasoned, fact-based decisions indicate otherwise. In many ways, her approach to the law is similar to that of Justice David Souter, whose seat she would take.

The Senate will have to carefully scrutinize Judge Sotomayor’s record on and off the bench, as it must for anyone seeking to join the court. If no big surprises turn up, it is not clear that Senate Republicans will expend much effort trying to block this nomination. Apart from her qualifications, they may decide that in light of their desire to win over Latino voters — and their low chance of winning a confirmation battle, given the Democrats’ big Senate majority — it is not worth the fight.

If Judge Sotomayor joins the court, it will be a special point of pride for Hispanic-Americans — as it was for Jews, blacks and women before them to see one of their own take a seat on the highest tribunal in the land. It will also bring the paltry number of female justices back to two. And as Democratic Party strategists have no doubt calculated, the selection could give Mr. Obama and his party a boost with a key voting group.

Judge Sotomayor, though, is more than just a distinguished member of two underrepresented groups. She is an accomplished lawyer and judge, who could become an extraordinary Supreme Court justice.

The New Justice, NYT, 27.5.2009,
http://www.nytimes.com/2009/05/27/opinion/27wed1.html

The Nation

2,691 Decisions

July 13, 2008
The New York Times
By LINDA GREENHOUSE

WASHINGTON — Sometime during the first of my nearly 30 years reporting on the Supreme Court, a distinct visual image of a Supreme Court term took hold in my mind and never let go. The nine-month term was a mountain. My job was to climb it.

The slope was gentle when the term began, every first Monday in October; the court was busy choosing new cases and hearing arguments, but it was not yet ready to issue decisions. The upward path steepened in January and February, when grants of new cases, arguments and decisions all came at once, competing for attention. Spring brought a breather as the path flattened out again: all the arguments had been heard, and the decisions were sporadic. The steepest climb came, predictably, every June, with the final outpouring of opinions before the summer recess. And then it was over. I could look down from the mountaintop to see the term whole and clear, while off in the distance the next term loomed, another climb.

But not this year. I am retiring from The New York Times to write and teach at Yale Law School. So this time, I can survey all the mountains, stretching back to the morning in 1978 when I first walked up the court’s marble steps — mistakenly, as it turned out, because people with business at the court actually use a less majestic but more practical side entrance at ground level.

I had been a political reporter, covering state government in New York from Albany, before I received a Ford Foundation fellowship for journalists to attend Yale Law School for a year. Certainly my Yale master’s degree, the ink barely dry as I walked up those marble steps, had given me a useful grasp of legal concepts. But it could scarcely prepare me for the texture and flavor, the sheer dailiness, of life at the court. So much happened behind closed doors. What did the justices do all day, anyway? I imagined them in earnest conversation with one another, grappling with the great legal questions of the day (in 1978 affirmative action was the most pressing). I learned only gradually that it isn’t like that at all, that except for their formal gatherings around the conference table once or twice a week, the justices spend their time, when they are not on the bench, in their chambers, alone or with their law clerks. Communications among them tend to be in writing, even today, and the ethos of the place discourages one justice from intruding on another’s space, physically or verbally. Membership in one of the world’s most exclusive clubs can be isolating, a little lonely, which I think is why those justices who enjoy companionship spend a fair amount of their free time on the road, speaking at law schools and judicial conferences.

In The Times’s Albany bureau, contact with the capitol’s newsmakers was constant, and feedback from them was instantaneous — not always pleasant, but essential for understanding competing perspectives and agendas, or simply for avoiding making the same mistake twice. Compared with the frenzied drama of the New York Legislature, the quiet of the Supreme Court press room was the silence of the tomb. In place of the easy banter with politicians that had made the Albany beat so engaging, there was an almost suffocating paper flow. Before I could work my way through one list of newly filed petitions to the court, two more would arrive.

Politics, comfortingly, had presented a moving target — an interpretation that seemed wrong today could well be proven correct tomorrow. But when it came to Supreme Court decisions, it was quite possible to get it wrong, flatly and irrevocably. And if I did get it wrong, how would I know? The fact that I received no feedback from those whose activities I was covering was hardly reassuring. It just underscored how different this new environment was going to be.

And yet I came to see my Albany experience as valuable, rather than irrelevant, to my new assignment. Watching the back-and-forth between a state legislature and the Supreme Court of the United States had given me a real sense of the court as an active participant in the ceaseless American dialogue about constitutional values and priorities, not a remote oracle.

For example, the New York Legislature in the 1970s was determined to channel taxpayer money to parochial schools. A majority of the Supreme Court was equally determined to keep that from happening. Session after legislative session in Albany, I reported on efforts to get around the latest Supreme Court ruling and to do indirectly (by providing textbooks or transportation rather than classroom instruction, for instance) what the court had said could not be done directly. It was a constitutional Ping-Pong match, foreshadowing, in its way, the recent one between the court and the Bush administration over the handling of the Guantánamo detainees; a battle over principle, to be sure, but also over who would get the last word.

There was another useful lesson for me in the struggle over parochial school aid: the court’s makeup changes, and so does the law. As an associate justice, William H. Rehnquist, who wanted to cultivate a much bigger space for religion in public life, planted a few seeds in arid soil. He tended those seeds assiduously as new allies joined the court and the climate warmed, until they germinated in the form of decisions like the one in 2002, Zelman v. Simmons-Harris, which upheld Ohio’s system of taxpayer-financed vouchers for parents to use for parochial school tuition. “A program of true private choice,” Chief Justice Rehnquist said in his 5-to-4 majority opinion — having established years earlier, in less freighted contexts, that when public money passes through parents’ hands, it loses its public character and its use becomes a “private choice.”

And then something interesting happened. The voucher movement, even though its constitutional shackles had been removed, stalled almost everywhere, owing not to the intervention of federal judges but to resistance from state courts, teachers’ unions and taxpayers. An ambitious legislative campaign by voucher advocates in 2004 ended in defeat in state after state. The court can only do so much. It can lead, but the country does not necessarily follow.

In fact, it is most often the Supreme Court that is the follower. It ratifies or consolidates change rather than propelling it, although in the midst of heated debate over a major case, it can often appear otherwise. Without delving into the vast political science and legal academic literature on this point, I’m simply offering my empirical observation that the court lives in constant dialogue with other institutions, formal and informal, and that when it strays too far outside the existing political or social consensus, the result is a palpable tension both inside and outside the court.

Such periods are fascinating, and inherently unstable. The early New Deal period is a classic example. The public demanded change, and the “nine old men” stood in the way. The “court-packing” crisis ensued; President Franklin D. Roosevelt had to back down from adding new and younger justices, and change came from inside the court anyway. Some decisions protecting the rights of criminal suspects, made by Earl Warren’s court in the 1960s, placed the court to the left of the country’s center (and provided useful campaign fodder for Richard M. Nixon).

A year ago, at the end of a Supreme Court term marked by sharp ideological divisions and attacks on precedent by a newly empowered conservative majority, I thought we were entering such a period; the court appeared to be moving to the right of the public. For example, the 5-to-4 decision blocking local communities from taking modest steps to preserve the hard-won gains of public school desegregation threatened to unravel delicate arrangements in school districts around the country. That remains a highly problematic decision, but the more muted and centrist tone of the term that just ended has made me less persuaded that the court is on a collision course with mainstream public opinion.

In any event, it is often the court that eventually retreats when it finds itself out of sync with the prevailing mood. That appeared to be the case with the “federalism revolution” that Chief Justice Rehnquist began in the mid-1990s. In a series of 5-to-4 decisions, the court declared that Congress did not have the power it assumed it had to make federal statutes binding on the states. These decisions, reflecting the chief justice’s longstanding goal to re-adjust the post-New Deal federal-state balance, signaled an abrupt jurisprudential shift.

But then 9/11 happened and the national mood changed. Suddenly, the federal government looked useful, even necessary. The Supreme Court’s federalism revolution had been overtaken by events. In 2003, Chief Justice Rehnquist wrote for a 6-to-3 majority that Congress acted within its constitutional authority when it said state governments could be sued for failing to give their employees the benefits required by the Family and Medical Leave Act. It was a decision of enormous symbolic significance. Without apology or much in the way of explanation, the chief justice gave up the fight and moved on.

I admired Chief Justice Rehnquist as a strategist and tactician; he knew what he wanted and knew his limits, just as in his weekly poker game he knew when to hold ’em and when to fold ’em. Justice Antonin Scalia, who joined the court in 1986, was a flashier attention-grabber, but I never had any doubt that William Rehnquist was the brains behind the court’s ascendant conservatives. He took his role seriously, but himself less so (unlike his stuffy predecessor, Warren E. Burger, the first chief justice of my tenure). When he emerged from behind the courtroom’s velvet curtain one morning in 1995 sporting four gold stripes on each sleeve of his robe — with some of his colleagues struggling to suppress smiles — many people saw pomposity, but I saw a wry or maybe even self-mocking comment on the boredom of basic black after 23 years on the court. He had another 10 years to go.

We had nothing approaching a confidential relationship, but we did chat now and then. On the morning after the 2000 presidential election, I ran into him on the court’s plaza as he was taking his morning walk. Wasn’t it amazing, we agreed, that the outcome of the election was still in doubt.

The court I began covering in 1978 was populated by men who were, for the most part, older than my father. Thurgood Marshall, William J. Brennan Jr. and Byron R. White were historic figures. Harry A. Blackmun had only a few years earlier been propelled from obscurity when he wrote the court’s 7-to-2 majority opinion in Roe v. Wade. Nine new justices joined the court during my time there. Of the original group, only John Paul Stevens remains. Three members of the court are younger than I am.

Amid all that change, nothing touched me as much as the arrival in September 1981 of Sandra Day O’Connor. I had never heard her name before President Ronald Reagan nominated her that summer to succeed Potter Stewart. Although I covered her confirmation hearing, she remained to me basically a blank slate. That didn’t matter. The first time I looked up from the press section and saw a woman sitting on the bench, I was thrilled in a way I would never have predicted. Her presence invaded my subconscious. I had recurring dreams about her. In one, she asked me my opinion on a pending case (something no justice ever did in real life). But mostly, she just had walk-on roles in ordinary nighttime dramas, her presence signifying what it meant to me to know that there was no longer a position in the legal profession that a woman could not aspire to.

Four summers later, I was pregnant. Encountering me in a hallway, Justice O’Connor asked me when the baby was due. “Just before the first Monday in October,” I replied. Sandra Day O’Connor, mother of three, laughed. “Oh, keep your legs crossed,” she urged. “Don’t let that baby come out until the First Monday!” Some 30 minutes into the first Monday in October 1985, my daughter, Hannah, came into the world. I later learned that right before going on the bench that morning for the term’s opening session, Justice O’Connor called the court’s public information office and asked: “Has anyone heard from Linda? Did she have her baby today?”

(Years later, my daughter bluntly reminded me that today’s young women have the luxury of taking for granted the pioneering accomplishments of a Sandra Day O’Connor or Ruth Bader Ginsburg. When I observed that I was out of college before I ever met a woman who was a lawyer, the teenage Hannah regarded me with compassion. “Face it, Mom,” she said. “You’ve led a sheltered life.”)

Continuity and change, the entwined spirals of a double helix, are the court’s DNA. Continuity is anchored by the gravitational pull of precedent. Who would have believed that William Rehnquist, long a vocal critic of the Warren court’s Miranda decision, could write a majority opinion in 2000 not only reaffirming it but proclaiming that the Miranda warnings had become “part of our national culture”?

The pull of precedent is powerful but scarcely all-powerful when a shift of personnel or perspective breaks the spell, allowing the forces of change to exert their counterpull. The road from Bowers v. Hardwick, the 1986 decision that dismissed a claim of gay rights as “at best, facetious,” to Lawrence v. Texas, which 17 years later located the privacy rights of gay men and lesbians at the heart of constitutional due process, was paved, I have no doubt, by the justices’ experience of knowing gay men and women in their personal and professional lives.

But with so many important cases decided by such close margins (the two leading cases of the past term, on the rights of the Guantánamo detainees and the Second Amendment right to own a gun, were decided by votes of 5 to 4), perhaps fragility, rather than stability, best characterizes the court today, and that is a reminder of the stakes involved in any Supreme Court vacancy. The galvanizing battle over the nomination of Robert H. Bork in 1987, a conflagration at the intersection of law and politics that held the country spellbound for three months, was the most riveting public event I ever witnessed at close range. Although Judge Bork was, of course, defeated, in many ways the Bork battle has never really ended, with today’s ceaseless judicial confirmation wars being carried on by ideological combatants too young to remember the original.

President Reagan nominated Robert Bork, a well-known conservative, to the “swing” seat on the court being vacated by Justice Lewis F. Powell Jr. I knew Bob Bork. He had been a professor of mine at Yale, an urbane and witty man who bore little resemblance to the instant portrait painted by his opponents. (“In Robert Bork’s America,” Senator Edward M. Kennedy famously said in response to the nomination, “there is no room at the inn for blacks and no place in the Constitution for women, and in our America there should be no seat on the Supreme Court for Robert Bork.”) The day he was nominated, I left a message on his home answering machine. “Congratulations, and keep your sense of humor,” I said. “I think you’ll need it.”

His sense of humor failed him. As the hearings went on, he became testy and abrupt. When he said that serving on the court would be an “intellectual feast,” he was simply being honest. It would have been more politic, but less candid, to claim that he was motivated by a desire to serve the cause of justice. He and his supporters emerged from defeat filled with bitterness, persuaded that he had been dealt an unfair hand.

To the contrary, I thought then and think now that the debate had been both fair and profound. In five days on the witness stand, Judge Bork had a chance to explain himself fully, to describe and defend his view that the Constitution’s text and the intent of its 18th-century framers provided the only legitimate tools for constitutional interpretation. Through televised hearings that engaged the public to a rare degree, the debate became a national referendum on the modern course of constitutional law. Judge Bork’s constitutional vision, anchored in the past, was tested and found wanting, in contrast to the later declaration by Judge Anthony M. Kennedy, the successful nominee, that the Constitution’s framers had “made a covenant with the future.”

It has made a substantial difference during these last 21 years that Anthony Kennedy got the seat intended for Robert Bork. The invective aimed at Justice Kennedy from the right this year alone, for his majority opinions upholding the rights of the Guantánamo detainees and overturning the death penalty for child rapists — 5-to-4 decisions that would surely have found Judge Bork on the opposite side — is a measure of the lasting significance of what happened during that long-ago summer and fall.

It is also a reminder of something I learned observing the court and the country, and listening in on the vital dialogue between them. The court is in Americans’ collective hands. We shape it; it reflects us. At any given time, we may not have the Supreme Court we want. We may not have the court we need. But we have, most likely, the Supreme Court we deserve.

2,691 Decisions, NYT, 13.7.2008,
http://www.nytimes.com/2008/07/13/weekinreview/13linda.html

Sidebar

3 Defining Opinions

July 13, 2008
The New York Times
By LINDA GREENHOUSE

Planned Parenthood v. Casey (1992): The Triumph of Precedent? Reaffirmed the constitutional right to abortion by a vote of 5 to 4. Three Republican-appointed justices in the majority, Sandra Day O’Connor, Anthony M. Kennedy and David H. Souter, said that while they would not necessarily have voted with the Roe v. Wade majority 19 years earlier, they believed it would damage the court to repudiate that precedent under political pressure. “The promise of constancy, once given, binds its maker,” they said.

Bush v. Gore (2000): The Triumph of Politics? Ended the Florida recount and effectively declared George W. Bush the president-elect. “We are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards,” the unsigned opinion read. A debate continues to this day over whether the five justices in the majority were motivated by politics or by the neutral principles they invoked.

District of Columbia v. Heller (2008): The Triumph of Originalism? Held that the Second Amendment protects the right to keep a loaded gun at home for self-defense. Justice Antonin Scalia, for the 5-to-4 majority, and Justice John Paul Stevens, for the dissent, each dissected the history of the Second Amendment. They came to opposite conclusions but proceeded on the premise that original understanding of the amendment’s framers was the proper basis for the decision.

3 Defining Opinions, NYT, 13.7.2008,
http://www.nytimes.com/2008/07/13/weekinreview/13greebox.html

Justices Rule for Individual Gun Rights

June 27, 2008
The New York Times
By DAVID STOUT

WASHINGTON — The Supreme Court declared for the first time on Thursday that the Constitution protects an individual’s right to have a gun, not just the right of the states to maintain militias.

Justice Antonin Scalia, writing for the majority in the landmark 5-to-4 decision, said the Constitution does not allow “the absolute prohibition of handguns held and used for self-defense in the home.” In so declaring, the majority found that a gun-control law in the nation’s capital went too far by making it nearly impossible to own a handgun.

But the court held that the individual right to possess a gun “for traditionally lawful purposes, such as self-defense within the home” is not unlimited. “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” Justice Scalia wrote.

The ruling does not mean, for instance, that laws against carrying concealed weapons are to be swept aside. Furthermore, Justice Scalia wrote, “The court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

The decision upheld a federal appeals court ruling that the District of Columbia’s gun law, one of the strictest in the country, went beyond constitutional limits. Not only did the 1976 law make it practically impossible for an individual to legally possess a handgun in the district, but it also spelled out rules for the storage of rifles and shotguns. But the court did not articulate a specific standard of review for what might be a reasonable restraint on the right to possess a firearm.

The court also said on Thursday that the district law’s requirement that lawful weapons be rendered essentially inoperable, by trigger locks or disassembly, was unconstitutional because it rendered the weapons useless for self-defense.

Joining Justice Scalia were Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito Jr.

A dissent by Justice John Paul Stevens asserted that the majority “would have us believe that over 200 years ago, the framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.” Joining him were Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

The high court’s ruling was the first since 1939 to deal with the scope of the Second Amendment, and the first to so directly address the meaning of the amendment’s ambiguous, comma-laden text: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Not surprisingly, Justice Scalia and Justice Stevens differed on the clarity (or lack thereof) of the Second Amendment. “The amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second clause,” wrote Justice Scalia. “The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.”

Not at all, Justice Stevens countered, asserting that the majority “stakes its holding on a strained and unpersuasive reading of the amendment’s text.” Justice Stevens read his dissent from the bench, an unmistakable signal that he disagreed deeply with the majority.

Indeed, it was clear from the conflicting opinions of Justices Scalia and Stevens that the case had generated emotional as well as intellectual sparks at the court.

Justice Scalia devoted page after page of his opinion to the various state constitutions and to the use of language in the 18th and 19th centuries to support his view that an individual right to bear arms is embodied in the Constitution. And Justice Scalia, who clearly takes pride in his writing as well as his reasoning, used adjectives like “frivolous” and “bizarre” to describe the other side’s arguments.

Not to be outdone, Justice Stevens called the majority’s interpretation of the Second Amendment “overwrought and novel” and said it “calls to mind the parable of the six blind men and the elephant,” in which each of the sightless men had a different conception of the animal.

“Each of them, of course, has fundamentally failed to grasp the nature of the creature,” Justice Stevens wrote.

The ruling on Thursday will surely not quiet the debate about guns and violence in the United States, where deaths by firearm take a far higher toll than in many other countries, as Justice Scalia acknowledged.

“We are aware of the problem of handgun violence in this country,” he wrote, saying that he took seriously the concerns of those who believe that “prohibition of handgun ownership is a solution.”

Lawmakers in the District of Columbia and across the country may look to the decision as a blueprint for writing new legislation to satisfy the demands of constituents who say there is too much regulation of firearms now, or too little, depending on the sentiments in their regions. (Washington’s Mayor, Adrian M. Fenty, will instruct the police department to issue new handgun-registration rules within 30 days while city officials study the ruling, The Washington Post reported on its Web site.)

Nor was there any suggestion that the court’s ruling would lead to a proliferation of deadly, military-style assault weapons. Alluding to the 1939 Supreme Court decision, which held that the weapons protected under the Second Amendment were those “in common use at the time,” Justice Scalia said, “We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ ”

The White House issued a statement saying that President Bush “strongly agrees with the Supreme Court’s historic decision today that the Second Amendment protects the individual right of Americans to keep and bear arms.”

The Supreme Court ruling is likely to play out in this year’s elections, as Senator John McCain of Arizona, the presumptive Republican nominee for president, made clear. “I applaud this decision as well as the overturning of the District of Columbia’s ban on handguns and limitations on the ability to use firearms for self-defense,” Mr. McCain said in a statement, which contained a reminder that his Democratic nominee, Senator Barack Obama of Illinois, refused to join him in signing an amicus brief in support of overturning the district’s law.

Indeed, Mr. Obama’s view, expressed in a statement, was more nuanced than Mr. McCain’s. “I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures,” Mr. Obama said, predicting that the ruling would provide needed guidance for lawmakers.

The National Rifle Association and other supporters of rights to have firearms are sure to use the decision as a launch pad for lawsuits. The N.R.A. said it would file suits in San Francisco, Chicago and several Chicago suburbs challenging handgun restrictions there. “I consider this the opening salvo in a step-by-step process of providing relief for law-abiding Americans everywhere that have been deprived of this freedom,” Wayne LaPierre, executive vice president of the N.R.A., told The Associated Press.

Reaction on Capitol Hill differed sharply. Representative John A. Boehner of Ohio, the Republican minority leader in the House, applauded the ruling. “The Constitution plainly guarantees the solemn right to keep and bear arms, and the whims of politically correct bureaucrats cannot take it away,” he said in a statement.

But Senator Dianne Feinstein, Democrat of California and a former mayor of San Francisco, said she was disappointed in the ruling. “I speak as a former mayor,” she said at a session of the Senate Judiciary Committee. “I speak as somebody who has gone to homicide crime scenes.”

The last time the Supreme Court weighed a case involving the Second Amendment, in 1939, it decided a narrower question, finding that the Constitution did not protect any right to possess a specific type of firearm, the sawed-off shotgun.

By contrast, the issues in the District of Columbia case seemed much more “mainstream,” if that term can be used in reference to gun-control issues. When the justices announced on Nov. 20 that they were accepting the case of District of Columbia v. Heller, No. 07-290, they indicated that they would go to the heart of the long debate.

The question, they said, is whether the district’s restrictions on firearms “violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia but who wish to keep handguns and other firearms for private use in their homes.”

Dick Anthony Heller, a security guard who carries a handgun for his job protecting federal judiciary offices, challenged the District of Columbia’s law after his request for a license to keep his gun at home was rejected.

There have been debates about the efficacy of gun-control efforts in the capital. Those district residents who want guns — and are willing to risk punishment if caught with them without bothering to apply for permits — can get them easily enough, across the Potomac River in Virginia and in other nearby states.

Washington’s homicide rate, while high by world standards, is sharply lower than it was in the early 1990s. Last year, there were 181 homicides in Washington, down from a peak of 479 in 1991, when crack cocaine was a huge problem in some sections of the city.

Concluding his opinion, Justice Scalia wrote, “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.”

“That is perhaps debatable,” Justice Scalia wrote, “but what is not debatable is that it is not the role of this court to pronounce the Second Amendment extinct.”

When the Heller case was argued before the justices on March 18, Mr. Heller’s lawyer, Alan Gura, did not assert that the Second Amendment precluded any kind of ban related to gun possession. He said that a ban on the shipment of machine guns and sawed-off shotguns would be acceptable, and in answer to a question from the justices, so, too, might be a prohibition on guns in schools. Some of the justices signaled during arguments that they thought the District’s near-total ban on handguns went too far.

A legislature “has a great deal of leeway in regulating firearms,” Mr. Gura argued, but not to the extent of virtually banning them in homes.

The Washington law not only established high barriers to the private possession of handguns, it also required that rifles and shotguns be kept either in a disassembled state or under a trigger lock.

Walter Dellinger, the lawyer who argued for the district on March 18, asserted that “the people” and “the militia” were essentially the same, and that the Second Amendment gave people the right to bear arms only in connection with their militia service.

Solicitor General Paul D. Clement, representing the federal government, argued on behalf of the individual-rights position, which has been the Bush administration’s policy. But he said that the appeals court had also gone too far in overturning the ordinance and that the right to bear arms was always subject to “reasonable regulations.”

Justices Rule for Individual Gun Rights, NYT, 27.6.2008,
http://www.nytimes.com/2008/06/27/washington/27scotuscnd.html

Editorial

Supreme Disgrace

October 11, 2007
The New York Times

The Supreme Court exerts leadership over the nation’s justice system, not just through its rulings, but also by its choice of cases — the ones it agrees to hear and the ones it declines. On Tuesday, it led in exactly the wrong direction.

Somehow, the court could not muster the four votes needed to grant review in the case of an innocent German citizen of Lebanese descent who was kidnapped, detained and tortured in a secret overseas prison as part of the Bush administration’s morally, physically and legally abusive anti-terrorism program. The victim, Khaled el-Masri, was denied justice by lower federal courts, which dismissed his civil suit in a reflexive bow to a flimsy government claim that allowing the case to go forward would put national security secrets at risk.

Those rulings, Mr. Masri’s lawyers correctly argued, represented a major distortion of the state secrets doctrine, a rule created by the federal courts that was originally intended to shield specific evidence in a lawsuit filed against the government. It was never designed to dictate dismissal of an entire case before any evidence is produced.

It may well be that one or more justices sensitive to the breathtaking violation of Mr. Masri’s rights, and the evident breaking of American law, refrained from voting to accept his case as a matter of strategy. They may have feared a majority ruling by the Roberts court approving the dangerously expansive view of executive authority inherent in the Bush team’s habitual invocation of the state secrets privilege. In that case, the justices at least could have commented, or offered a dissent, as has happened when the court abdicated its responsibility to hear at least two other recent cases involving national security issues of this kind.

Mr. Masri says he was picked up while vacationing in Macedonia in late 2003 and flown to a squalid prison in Afghanistan. He says he was questioned there about ties to terrorist groups and was beaten by his captors, some of whom were Americans. At the end of May 2004, Mr. Masri was released in a remote part of Albania without having been charged with a crime. Investigations in Europe and news reports in this country have supported his version of events, and German Chancellor Angela Merkel has said that Secretary of State Condoleezza Rice acknowledged privately to her that Mr. Masri’s abduction was a mistake, an admission that aides to Ms. Rice have denied. The Masri case, in other words, is being actively discussed all over the world. The only place it cannot be discussed, it seems, is in a United States courtroom.

In effect, the Supreme Court has granted the government immunity for subjecting Mr. Masri to “extraordinary rendition,” the morally and legally unsupportable United States practice of transporting foreign nationals to be interrogated in other countries known to use torture and lacking basic legal protections. It’s hard to imagine what, at this point, needs to be kept secret, other than the ways in which the administration behaved irresponsibly, and quite possibly illegally, in the Masri case. And Mr. Masri is not the only innocent man kidnapped by American agents and subjected to abuse and torture in a foreign country. He’s just the only one whose lawsuit got this far.

This unsatisfactory outcome gives rise to new worries about the current Supreme Court’s resolve to perform its crucial oversight role — particularly with other cases related to terrorism in the pipeline and last week’s disclosure of secret 2005 Justice Department memos authorizing the use of inhumane interrogation methods that just about everyone except the Bush White House thinks of as torture. Instead of a rejection, the Masri case should have occasioned a frank revisiting of the Supreme Court’s 1953 ruling in United States v. Reynolds. That case enshrined the state secrets doctrine that this administration has repeatedly relied upon to avoid judicial scrutiny of its lawless actions.

Indeed, the Reynolds case itself is an object lesson in why courts need to apply a healthy degree of skepticism to state secrets claims. The court denied the widows of three civilians, who had died in the crash of a military aircraft, access to the official accident report, blindly accepting the government’s assertion that sharing the report would hurt national security. When the documents finally became public just a few years ago, it became clear that the government had lied. The papers contained information embarrassing to the government but nothing to warrant top secret treatment or denying American citizens honest adjudication of their lawsuit.

In refusing to consider Mr. Masri’s appeal, the Supreme Court has left an innocent person without any remedy for his wrongful imprisonment and torture. It has damaged America’s standing in the world and established the nation as Supreme Enabler of the Bush administration’s efforts to avoid accountability for its actions. These are not accomplishments to be proud of.

Supreme Disgrace, NYT, 11.10.2007,
http://www.nytimes.com/2007/10/11/opinion/11thu1.html

2 Patriot Act Provisions

Ruled Unlawful

September 27, 2007
By THE ASSOCIATED PRESS
Filed at 6:34 a.m. ET
The New York Times

PORTLAND, Ore. (AP) -- Two provisions of the USA Patriot Act are unconstitutional because they allow secret wiretapping and searches without a showing of probable cause, a federal judge ruled Wednesday.

U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, ''now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment.''

Portland attorney Brandon Mayfield sought the ruling in a lawsuit against the federal government after he was mistakenly linked by the FBI to the Madrid train bombings that killed 191 people in 2004.

The federal government apologized and settled part of the lawsuit for $2 million after admitting a fingerprint was misread. But as part of the settlement, Mayfield retained the right to challenge parts of the Patriot Act, which greatly expanded the authority of law enforcers to investigate suspected acts of terrorism.

Mayfield claimed that secret searches of his house and office under the Foreign Intelligence Surveillance Act violated the Fourth Amendment's guarantee against unreasonable search and seizure. Aiken agreed with Mayfield, repeatedly criticizing the government.

''For over 200 years, this Nation has adhered to the rule of law -- with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised,'' she wrote.

By asking her to dismiss Mayfield's lawsuit, the judge said, the U.S. attorney general's office was ''asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so.''

Elden Rosenthal, an attorney for Mayfield, issued a statement on his behalf praising the judge, saying she ''has upheld both the tradition of judicial independence, and our nation's most cherished principle of the right to be secure in one's own home.''

Justice Department spokesman Peter Carr said the agency was reviewing the decision, and he declined to comment further.

The ruling probably won't have any immediate affect on enforcement under the Patriot Act, according to legal experts who predicted the government would quickly appeal.

''But it's an important first step,'' said Jameel Jaffer, director of the American Civil Liberties Union's national security project.

Jaffer noted that the Patriot Act carries dozens of provisions and that several have been challenged -- but that this is one of the first major rulings on Fourth Amendment rights.

''This is as clear a violation of the Fourth Amendment as you'll ever find,'' Jaffer said.

Garrett Epps, a constitutional law expert at the University of Oregon, said the ruling adds to the poor record that the Bush administration has piled up in defending the Patriot Act.

''It's embarrassing,'' Epps said. ''It represents another judicial repudiation of this administration's terrorist surveillance policies.''

A federal judge in New York this month handed the ACLU a victory in a challenge to the Patriot Act on behalf of an Internet service provider that was issued a ''national security letter'' demanding customer phone and computer records. The judge in that case ruled the FBI must justify to a court the need for secrecy for more than a brief and reasonable period of time.

Mayfield, a Muslim convert, was taken into custody on May 6, 2004, because of a fingerprint found on a detonator at the scene of the Madrid bombing. The FBI said the print matched Mayfield's. He was released about two weeks later, and the FBI admitted it had erred in saying the fingerprints were his and later apologized to him.

Before his arrest, the FBI put Mayfield under 24-hour surveillance, listened to his phone calls and surreptitiously searched his home and law office.

The Mayfield case has been an embarrassment for the federal government. Last year, the Justice Department's internal watchdog faulted the FBI for sloppy work in mistakenly linking Mayfield to the Madrid bombings. That report said federal prosecutors and FBI agents had made inaccurate and ambiguous statements to a federal judge to get arrest and criminal search warrants against Mayfield.

Congress passed the Patriot Act with little debate shortly after the Sept. 11, 2001, attacks to help counter terrorist activities. It gave federal law enforcers the authority to search telephone and e-mail communications and expanded the Treasury Department's regulation of financial transactions involving foreign nationals. The law was renewed in 2005.

In early August, the Bush administration persuaded lawmakers to expand the government's power to listen in on any foreign communication it deemed of interest without a court order, even if an American was a party. The expanded surveillance authority expires early next year. As Congress takes a closer look at the law, many Democrats want to rein in language that many consider overly broad.

2 Patriot Act Provisions Ruled Unlawful, NYT, 27.9.2007,
http://www.nytimes.com/aponline/us/AP-Patriot-Act-Lawsuit.html

Supreme Court

Limits Schools on Race

June 28, 2007
Filed at 11:15 p.m. ET
The New York Times
By THE ASSOCIATED PRESS

WASHINGTON (AP) -- The Supreme Court on Thursday rejected school assignment plans that take account of students' race in two major public school districts. The decisions could imperil similar plans nationwide. The Court also blocked the execution of a Texas killer whose lawyers argued that he should not be put to death because he is mentally ill.

Today is probably the Court's last session until October.

The school rulings in cases affecting schools in Louisville, Ky., and Seattle leave public school systems with a limited arsenal to maintain racial diversity.

The court split, 5-4, with Chief Justice John Roberts announcing the court's judgment. Justice Stephen Breyer wrote a dissent that was joined by the court's other three liberals.

Justice Anthony Kennedy wrote a concurring opinion in which he said race may be a component of school district plans designed to achieve diversity.

He agreed with Roberts that the plans in Louisville and Seattle went too far. He said, however, that to the extent that Roberts' opinion could be interpreted as foreclosing the use of race in any circumstance, ''I disagree with that reasoning.''

The two school systems in Thursday's decisions employ slightly different methods of taking students' race into account when determining which school they would attend.

In the case involving the mentally ill killer in Texas, the court ruled 5-4 in the case of Scott Louis Panetti, who shot his in-laws to death 15 years ago in front of his wife and young daughter.

The convicted murderer says that he suffers from a severe documented illness that is the source of gross delusions. ''This argument, we hold, should have been considered,'' said Justice Anthony Kennedy, who wrote the majority opinion.

Panetti's lawyers wanted the court to determine that people who cannot understand the connection between their crime and punishment because of mental illness may not be executed.

The Eighth Amendment of the Constitution bars ''the execution of a person who is so lacking in rational understanding that he cannot comprehend that he is being put to death because of the crime he was convicted of committing,'' they said in court papers.

In a third case, the Court abandoned a 96-year-old ban on manufacturers and retailers setting price floors for products.

In a 5-4 decision, the court said that agreements on minimum prices are legal if they promote competition.

The ruling means that accusations of minimum pricing pacts will be evaluated case by case.

The Supreme Court declared in 1911 that minimum pricing agreements violate federal antitrust law.

Supreme Court Limits Schools on Race, NYT, 28.6.2007,
http://www.nytimes.com/aponline/us/AP-Scotus-Rdp.html

A Liberal Case

for Gun Rights

Helps Sway Judiciary

May 6, 2007
The New York Times
By ADAM LIPTAK

In March, for the first time in the nation’s history, a federal appeals court struck down a gun control law on Second Amendment grounds. Only a few decades ago, the decision would have been unimaginable.

There used to be an almost complete scholarly and judicial consensus that the Second Amendment protects only a collective right of the states to maintain militias. That consensus no longer exists — thanks largely to the work over the last 20 years of several leading liberal law professors, who have come to embrace the view that the Second Amendment protects an individual right to own guns.

In those two decades, breakneck speed by the standards of constitutional law, they have helped to reshape the debate over gun rights in the United States. Their work culminated in the March decision, Parker v. District of Columbia, and it will doubtless play a major role should the case reach the United States Supreme Court.

Laurence H. Tribe, a law professor at Harvard, said he had come to believe that the Second Amendment protected an individual right.

“My conclusion came as something of a surprise to me, and an unwelcome surprise,” Professor Tribe said. “I have always supported as a matter of policy very comprehensive gun control.”

The first two editions of Professor Tribe’s influential treatise on constitutional law, in 1978 and 1988, endorsed the collective rights view. The latest, published in 2000, sets out his current interpretation.

Several other leading liberal constitutional scholars, notably Akhil Reed Amar at Yale and Sanford Levinson at the University of Texas, are in broad agreement favoring an individual rights interpretation. Their work has in a remarkably short time upended the conventional understanding of the Second Amendment, and it set the stage for the Parker decision.

The earlier consensus, the law professors said in interviews, reflected received wisdom and political preferences rather than a serious consideration of the amendment’s text, history and place in the structure of the Constitution. “The standard liberal position,” Professor Levinson said, “is that the Second Amendment is basically just read out of the Constitution.”

The Second Amendment says, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” (Some transcriptions of the amendment omit the last comma.)

If only as a matter of consistency, Professor Levinson continued, liberals who favor expansive interpretations of other amendments in the Bill of Rights, like those protecting free speech and the rights of criminal defendants, should also embrace a broad reading of the Second Amendment. And just as the First Amendment’s protection of the right to free speech is not absolute, the professors say, the Second Amendment’s protection of the right to keep and bear arms may be limited by the government, though only for good reason.

The individual rights view is far from universally accepted. “The overwhelming weight of scholarly opinion supports the near-unanimous view of the federal courts that the constitutional right to be armed is linked to an organized militia,” said Dennis A. Henigan, director of the legal action project of the Brady Center to Prevent Gun Violence. “The exceptions attract attention precisely because they are so rare and unexpected.”

Scholars who agree with gun opponents and support the collective rights view say the professors on the other side may have been motivated more by a desire to be provocative than by simple intellectual honesty.

“Contrarian positions get play,” Carl T. Bogus, a law professor at Roger Williams University, wrote in a 2000 study of Second Amendment scholarship. “Liberal professors supporting gun control draw yawns.”

If the full United States Court of Appeals for the District of Columbia Circuit does not step in and reverse the 2-to-1 panel decision striking down a law that forbids residents to keep handguns in their homes, the question of the meaning of the Second Amendment is almost certainly headed to the Supreme Court. The answer there is far from certain.

That too is a change. In 1992, Warren E. Burger, a former chief justice of the United States appointed by President Richard M. Nixon, expressed the prevailing view.

“The Second Amendment doesn’t guarantee the right to have firearms at all,” Mr. Burger said in a speech. In a 1991 interview, Mr. Burger called the individual rights view “one of the greatest pieces of fraud — I repeat the word ‘fraud’ — on the American public by special interest groups that I have ever seen in my lifetime.”

Even as he spoke, though, the ground was shifting underneath him. In 1989, in what most authorities say was the beginning of the modern era of mainstream Second Amendment scholarship, Professor Levinson published an article in The Yale Law Journal called “The Embarrassing Second Amendment.”

“The Levinson piece was very much a turning point,” said Mr. Henigan of the Brady Center. “He was a well-respected scholar, and he was associated with a liberal point of view politically.”

In an interview, Professor Levinson described himself as “an A.C.L.U.-type who has not ever even thought of owning a gun.”

Robert A. Levy, a senior fellow at the Cato Institute, a libertarian group that supports gun rights, and a lawyer for the plaintiffs in the Parker case, said four factors accounted for the success of the suit. The first, Mr. Levy said, was “the shift in scholarship toward an individual rights view, particularly from liberals.”

He also cited empirical research questioning whether gun control laws cut down on crime; a 2001 decision from the federal appeals court in New Orleans that embraced the individual rights view even as it allowed a gun prosecution to go forward; and the Bush administration’s reversal of a longstanding Justice Department position under administrations of both political parties favoring the collective rights view.

Filing suit in the District of Columbia was a conscious decision, too, Mr. Levy said. The gun law there is one of the most restrictive in the nation, and questions about the applicability of the Second Amendment to state laws were avoided because the district is governed by federal law.

“We wanted to proceed very much like the N.A.A.C.P.,” Mr. Levy said, referring to that group’s methodical litigation strategy intended to do away with segregated schools.

Professor Bogus, a supporter of the collective rights view, said the Parker decision represented a milestone in that strategy. “This is the story of an enormously successful and dogged campaign to change the conventional view of the right to bear arms,” he said.

The text of the amendment is not a model of clarity, and arguments over its meaning tend to be concerned with whether the first part of the sentence limits the second. The history of its drafting and contemporary meaning provide support for both sides as well.

The Supreme Court has not decided a Second Amendment case since 1939. That ruling was, as Judge Stephen Reinhardt, a liberal judge on the federal appeals court in San Francisco acknowledged in 2002, “somewhat cryptic,” again allowing both sides to argue that Supreme Court precedent aided their interpretation of the amendment.

Still, nine federal appeals courts around the nation have adopted the collective rights view, opposing the notion that the amendment protects individual gun rights. The only exceptions are the Fifth Circuit, in New Orleans, and the District of Columbia Circuit. The Second Circuit, in New York, has not addressed the question.

Linda Singer, the District of Columbia’s attorney general, said the debate over the meaning of the amendment was not only an academic one.

“It’s truly a life-or-death question for us,” she said. “It’s not theoretical. We all remember very well when D.C. had the highest murder rate in the country, and we won’t go back there.”

The decision in Parker has been stayed while the full appeals court decides whether to rehear the case.

Should the case reach the Supreme Court, Professor Tribe said, “there’s a really quite decent chance that it will be affirmed.”

A Liberal Case for Gun Rights Helps Sway Judiciary, NYT, 6.5.2007,
http://www.nytimes.com/2007/05/06/us/06firearms.html

Supreme Court Upholds

Ban on Abortion Procedure

April 18, 2007

Filed at 1:00 p.m. ET

The New York Times

By THE ASSOCIATED PRESS

WASHINGTON (AP) -- The Supreme Court upheld the nationwide ban on a controversial abortion procedure Wednesday, handing abortion opponents the long-awaited victory they expected from a more conservative bench.

The 5-4 ruling said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman's constitutional right to an abortion.

The opponents of the act ''have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases,'' Justice Anthony Kennedy wrote in the majority opinion.

The administration had defended the law as drawing a bright line between abortion and infanticide.

Reacting to the ruling, Bush said that it affirms the progress his administration has made to uphold the ''sanctity of life.''

''I am pleased that the Supreme Court has upheld a law that prohibits the abhorrent procedure of partial birth abortion,'' he said. ''Today's decision affirms that the Constitution does not stand in the way of the people's representatives enacting laws reflecting the compassion and humanity of America.''

The decision pitted the court's conservatives against its liberals, with President Bush's two appointees, Chief Justice John Roberts and Justice Samuel Alito, siding with the majority.

Justices Clarence Thomas and Antonin Scalia also were in the majority.

It was the first time the court banned a specific procedure in a case over how -- not whether -- to perform an abortion.

Abortion rights groups as well as the leading association of obstetricians and gynecologists have said the procedure sometimes is the safest for a woman. They also said that such a ruling could threaten most abortions after 12 weeks of pregnancy, although government lawyers and others who favor the ban said there are alternate, more widely used procedures that remain legal.

The outcome is likely to spur efforts at the state level to place more restrictions on abortions.

''I applaud the Court for its ruling today, and my hope is that it sets the stage for further progress in the fight to ensure our nation's laws respect the sanctity of unborn human life,'' said Rep. John Boehner of Ohio, Republican leader in the House of Representatives.

Said Eve Gartner of the Planned Parenthood Federation of America: ''This ruling flies in the face of 30 years of Supreme Court precedent and the best interest of women's health and safety. ... This ruling tells women that politicians, not doctors, will make their health care decisions for them.'' She had argued that point before the justices.

More than 1 million abortions are performed in the United States each year, according to recent statistics. Nearly 90 percent of those occur in the first 12 weeks of pregnancy, and are not affected by Wednesday's ruling.

Six federal courts have said the law that was in focus Wednesday is an impermissible restriction on a woman's constitutional right to an abortion.

The law bans a method of ending a pregnancy, rather than limiting when an abortion can be performed.

''Today's decision is alarming,'' Justice Ruth Bader Ginsburg wrote in dissent. She said the ruling ''refuses to take ... seriously'' previous Supreme Court decisions on abortion.

Ginsburg said the latest decision ''tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists.''

Ginsburg said that for the first time since the court established a woman's right to an abortion in 1973, ''the court blesses a prohibition with no exception safeguarding a woman's health.''

She was joined by Justices Stephen Breyer, David Souter and John Paul Stevens.

The procedure at issue involves partially removing the fetus intact from a woman's uterus, then crushing or cutting its skull to complete the abortion.

Abortion opponents say the law will not reduce the number of abortions performed because an alternate method -- dismembering the fetus in the uterus -- is available and, indeed, much more common.

In 2000, the court with key differences in its membership struck down a state ban on partial-birth abortions. Writing for a 5-4 majority at that time, Justice Breyer said the law imposed an undue burden on a woman's right to make an abortion decision.

The Republican-controlled Congress responded in 2003 by passing a federal law that asserted the procedure is gruesome, inhumane and never medically necessary to preserve a woman's health. That statement was designed to overcome the health exception to restrictions that the court has demanded in abortion cases.

But federal judges in California, Nebraska and New York said the law was unconstitutional, and three appellate courts agreed. The Supreme Court accepted appeals from California and Nebraska, setting up Wednesday's ruling.

Kennedy's dissent in 2000 was so strong that few court watchers expected him to take a different view of the current case.

Kennedy acknowledged continuing disagreement about the procedure within the medical community. In the past, courts have cited that uncertainty as a reason to allow the disputed procedure.

But Kennedy said, ''The law need not give abortion doctors unfettered choice in the course of their medical practice.''

He said the more common abortion method, involving dismemberment, is beyond the reach of the federal ban.

While the court upheld the law against a broad attack on its constitutionality, Kennedy said the court could entertain a challenge in which a doctor found it necessary to perform the banned procedure on a patient suffering certain medical complications.

Doctors most often refer to the procedure as a dilation and extraction or an intact dilation and evacuation abortion.

The law allows the procedure to be performed when a woman's life is in jeopardy.

The cases are Gonzales v. Carhart, 05-380, and Gonzales v. Planned Parenthood, 05-1382.

Supreme Court Upholds Ban on Abortion Procedure,
NYT,
18.4.2007,
http://www.nytimes.com/
aponline/us/AP-Scotus-Abortion.html - broken link

Supreme Court Rejects

Request to Reinsert Feeding Tube

March 24, 2005

The New York Times

By ABBY GOODNOUGH

and MARIA NEWMAN

LEARWATER, Fla., March 23 - The Supreme Court today turned down a request by Terri Schiavo's parents for an emergency order to restore the Florida woman's feeding tube, and a few hours later a Florida judge turned down a request by Gov. Jeb Bush to intervene in the case.

The two decisions leave the parents, Robert and Mary Schindler, with little hope to keep alive their daughter, who suffered serious brain damage when she collapsed 15 years ago.

The tube was removed on Friday, on the order of the state judge, George W. Greer, and the parents' efforts to have it reinserted attracted the attention of Congress and President Bush, who rushed through special legislation to help them.

In a one-sentence notice, the Supreme Court said the matter had been presented to Justice Anthony M. Kennedy, and referred by him to the full court. But it offered no explanation as to why it was denied. The justices seldom elaborate when they turn down cases decided by lower courts.

A few hours later, Judge Greer, of Pinellas-Pasco Circuit Court in Florida, ruled against new efforts by Gov. Bush and Florida's social services agency to intervene in the case to have further examinations done on Ms. Schiavo. The governor said Wednesday that a doctor who had seen videotapes of Ms. Schiavo and visited with her for 90 minutes, but had not performed a physical exam, had concluded that she might not be in a persistent vegetative state, as other doctors have testified to the courts.

It is unclear what the Schindlers plan to do next, as they did not immediately comment on today's two critical decisions. In one of the last pending legal matters, a hearing is scheduled for 6 p.m. today in federal court in Tampa to hear an amended version of a lawsuit filed by David Gibbs, a lawyer for the parents, which contends that Ms. Schiavo's civil rights were denied by the state courts.

George Felos, the lawyer for Ms. Schiavo's husband, Michael, told reporters earlier today that "the new claims raised are even more insubstantial than the old claims."

"It saddens me greatly that we have to run to court to get court orders to protect Terri Schiavo from the abuse of the state of Florida," Mr. Felos said.

The Schindlers have been locked in a legal battle for eight years with their son-in-law, who has said Ms. Schiavo told him she did not want to be kept alive by artificial means.

Just after midnight on Monday, Congress passed a law that Mr. Bush signed an hour later that transferred the case from state to federal courts.

But in short order, their efforts failed to sway a federal district judge in Florida, a three-judge panel of a federal appeals court in Atlanta and the full appeals court, all of whom declined to order the reinsertion of the tube. Today's Supreme Court decision seems to have exhausted the legislative efforts to help.

Mr. Felos said he was "grateful" for the Supreme Court decision.

"It should become obvious to everyone and every observer that the entire judicial system of the United States, the state courts in the state of Florida, the entire federal judiciary, has said, this case must end, this case is over," Mr. Felos told reporters. "Mrs. Schiavo's legal rights have been ruled on again and again and again. The courts have consistently found that she did not want to remain alive artificially.

"Her wishes should be carried out," he said. "And in that spirit, I hope that the parents do not keep pursing fruitless legal options to the end. I think their time would be better served in reflection."

A White House spokesman, Dana M. Perino, said that President Bush was told of the Supreme Court's decision while vacationing at his ranch in Crawford, Tex., The Associated Press said.

"The president looked at all options before signing the legislation last weekend," Ms. Perino said. "He felt that the legislation passed by Congress was the best course of action. Terri Schiavo's case is extraordinary and sad.

"As the president said yesterday, he believes that in a case such as this, the legislative branch and the executive branch should err on the side of life," Ms. Perino said.

The Senate majority leader, Bill Frist of Tennessee, who led efforts to pass the Congressional action, reacted in a statement to the Supreme Court decision.

"I'm saddened by the decision of the court to reject Terri Schiavo's case for life despite a compelling case for reexamination of the medical evidence," the senator said. "It is a sad day for her loving family and for their innocent and voiceless daughter."

And House Majority Leader Tom DeLay of Texas, who also led efforts to help the Schindlers, said in a a joint statement issued with F. James Sensenbrenner Jr. of Wisconsin, the chairman of the House Judiciary Committee, that they felt "sadness and disappointment" about the Supreme Court decision.

"Sadly, Mrs. Schiavo will not receive a new and full review of her case as the legislation required," they said, adding they "strongly believe that the court erred in reaching its conclusion and that once again they have chosen to ignore the clear intent of Congress."

They urged "Governor Bush and the Florida legislature to continue examining all options to save Terri's life."On Wednesday, the Florida Senate rejected a measure that would have blocked doctors from withdrawing life support from patients who had not issued written instructions.

As word of the Supreme Court decision spread through the crowd of supporters outside the hospice in Pinellas Park where Ms. Schiavo resides, there was a sadness and anger about Ms. Schiavo's deteriorating condition.

"Yesterday, the legislative options closed," the Rev. Pat Mahoney of the National Clergy Council said to the crowd through a megaphone. "Today the legal options closed. Gov. Bush is now the only practical hope here for Terri Schiavo. We plead with Gov. Bush and the D.C.F. to intercede. Let us pray right now for that."

Mr. Felos told reporters that Mr. Schiavo has been with his wife throughout these last few days since her feeding tube was removed.

"Terri is peaceful," he said about Ms. Schiavo's condition. "She's resting comfortably. She's dying. She's in her death process. She's being attended to by a team of wonderful and compassionate professional health care workers at hospice who are well-trained to see that her physical needs are met and she be able to die with dignity and with peace."

Late Wednesday afternoon, state lawyers appeared before Judge Greer and asked to intervene in the case.

Judge Greer did not rule on their request immediately, but he granted a request from Ms. Schiavo's husband to bar the state's Department of Children and Families from removing her from the hospice where she has gone six days without her feeding tube and from providing her with nutrition or hydration.

Mr. Felos said he had heard "credible" rumors that state officials planned to send doctors to the hospice to give Ms. Schiavo intravenous fluids. Judge Greer also directed state sheriffs to take whatever actions were necessary to enforce the order.

The hearing in Judge Greer's court came at the end of day in which Ms. Schiavo's parents suffered several setbacks in their efforts to force doctors to reinsert the tube, which had provided food and water to her for 15 years.

First, a three-judge panel of the United States Court of Appeals for the 11th Circuit upheld a lower-court ruling that rejected a resumption of feeding. That decision was upheld in the afternoon by the full appellate court on a 10-to-2 vote.

Speaking Wednesday from Tallahassee before Judge Greer's hearing, Governor Bush indicated the state might indeed try to take custody of Ms. Schiavo, which the law would allow it to do under certain circumstances.

He said a new review by Dr. William P. Cheshire, a neurologist in Jacksonville, suggested that Ms. Schiavo had been misdiagnosed as being in a "persistent vegetative state," meaning she cannot think, emote or remember.

Dr. Cheshire, who visited Ms. Schiavo in her hospice room for an hour and a half on March 1 and reviewed videotapes of her made by her parents, said that instead she appeared to be minimally conscious.

"This new information raises serious concerns and warrants immediate action," Mr. Bush said. "If there's any uncertainty, we should err on the side of protecting her."

Dr. Cheshire is the director of a laboratory at the Mayo Clinic branch in Jacksonville that deals with unconscious reflexes like digestion, and the director of biotech ethics at the Center for Bioethics and Human Dignity, a nonprofit group founded by "more than a dozen leading Christian bioethicists," in the words of its Web site. The clinic said in a statement that the state had invited Dr. Cheshire to offer his opinion. Other doctors who have examined Ms. Schiavo for the Florida courts have declared her to be irredeemably brain damaged.

Abby Goodnough

reported from Clearwater for this article

and Maria Newman from New York.

Adam Liptak contributed reporting from New York.

Supreme Court Rejects Request to Reinsert Feeding Tube,
NYT,
24.3.2005,
http://www.nytimes.com/2005/03/24/politics/24cnd-schia.html

Supreme Court Strikes Down

Texas Law Banning Sodomy

June 26, 2003

The New York Times

By JOEL BRINKLEY

WASHINGTON, June 26  The Supreme Court struck down a Texas law today that forbids homosexual sex, and reversed its own ruling in a similar Georgia case 17 years ago, thus invalidating antisodomy laws in the states that still have them.

Justice Anthony M. Kennedy, writing for the majority in the 6-to-3 Texas decision, said that gay people "are entitled to respect for their private lives," adding that "the state cannot demean their existence or control their destiny by making their private sexual conduct a crime."

Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer agreed with Justice Kennedy. Justice Sandra Day O'Connor sided with the majority in its decision, but in a separate opinion disagreed with some of Justice Kennedy's reasoning.

Justice Antonin Scalia wrote the dissent and took the unusual step of reading it aloud from the bench this morning, saying "the court has largely signed on to the so-called homosexual agenda," while adding that he personally has "nothing against homosexuals." Joining Justice Scalia's dissent were Chief Justice William H. Rehnquist and Justice Clarence Thomas.

Justice Scalia said he believed the ruling paved the way for homosexual marriages. "This reasoning leaves on shaky, pretty shaky, grounds state laws limiting marriage to opposite-sex couples," he wrote.

The court's actions today would also seem to overturn any law forbidding sodomy, no matter whether it deals with homosexual or heterosexual activity.

The case, Lawrence v. Texas, No. 02-102, was an appeal of a ruling by the Texas Court of Appeals, which had upheld the law barring "deviate sexual intercourse." The plaintiffs, John G. Lawrence and Tyron Garner of Houston, were arrested in 1998 after police officers, responding to a false report of a disturbance, discovered them having sex in Mr. Lawrence's apartment. Mr. Lawrence and Mr. Garner were jailed overnight and fined $200 each after pleading no contest to sodomy charges.

In its ruling today in the Texas case and its revisiting of the 1986 Georgia case, the Supreme Court made a sharp turn.

In 1986, the justices upheld an antisodomy law in Georgia, prompting protests from gay rights advocates and civil liberties groups. But in the 17 years since, the social climate in the United States has changed, broadening public perceptions of gays and softening the legal and social sanctions that once confronted gay people. Until 1961, all 50 states banned sodomy. By 1968, that number had dwindled to 24 states, and by today's ruling, it stood at 13.

Even though the court upheld the Georgia antisodomy statute  which had applied to heterosexual as well as homosexual conduct  a Georgia court later voided it. But the justices' ruling on the legal principle behind the Georgia statute continued to stand, so today the court, voting 5 to 4, issued a new ruling overturning its 1986 decision in the Georgia case.

Of the three current justices who were on the court when it initially ruled in the Georgia case, in 1986, Justices Rehnquist and O'Connor voted to uphold the Georgia law in 1986 and Justice Stevens voted to strike it down.

The Lambda Legal Defense and Education Fund, which works on behalf of gay rights advocates and related groups, brought the appeal of the Texas ruling to the court, arguing that it violated equal protection and due process laws. It described sexual intimacy in the home as an aspect of the "liberty" protected by the Constitutional guarantee of due process.

Today's ruling "will be a powerful tool for gay people in all 50 states where we continue fighting to be treated equally," the Lambda fund's legal director, Ruth Harlow, said. "For decades, these laws have been a major roadblock to equality. They've labeled the entire gay community as criminals and second-class citizens. Today, the Supreme Court ended that once and for all."

Some lawyers for the plaintiffs wept in the courtroom as the court made public its decision today. Several legal and medical groups had joined gay rights and human rights groups in their challenge to the Texas law.

But traditional-values conservatives reacted angrily to the court's actions, particularly regarding the prospect that they could open the legal door to gay marriages.

"If there's no rational basis for prohibiting same-sex sodomy by consenting adults, then state laws prohibiting prostitution, adultery, bigamy, and incest are at risk," Jan LaRue, chief counsel for Concerned Women for America, a conservative group, said. "No doubt, homosexual activists will try to bootstrap this decision into a mandate for same-sex marriage. Any attempt to equate sexual perversion with the institution that is the very foundation of society is as baseless as this ruling."

Nonetheless, today's ruling was not surprising, given the tone of the justices' questions during oral arguments before the court on March 26, when it appeared that a majority of the court was even then ready to overturn the Texas law.

Most of the remaining states with antisodomy laws forbid anal or oral sex among consenting adults no matter their sex or relationship. Texas is one of only four states whose law distinguished between heterosexual and homosexual consensual sex.

In the March arguments, the plaintiffs' lawyer, Paul M. Smith, chose to argue that while the concept of gay rights as such did not have deep historical roots, a libertarian spirit of personal privacy did reach back to the country's beginnings.

"So you really have a tradition of respect for the privacy of couples in their home, going back to the founding," Mr. Smith said. He noted that three-quarters of the states had repealed their criminal sodomy laws for everyone, "based on a recognition that it's not consistent with our basic American values about the relationship between the individual and the state."

Justice Scalia retorted, "Suppose that all the states had laws against flagpole sitting at one time" and subsequently repealed them. "Does that make flagpole sitting a fundamental right?"

The district attorney for Harris County, Tex., Charles A. Rosenthal Jr., argued that "Texas has the right to set moral standards and can set bright-line moral standards for its people." He asked the court "not to disenfranchise 23 million Texans who ought to have the right to participate in questions having to do with moral issues."

But in the ruling today, Justice Sandra Day O'Connor wrote, "A law branding one class of persons as criminal solely based on the state's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review."