THE U.S. SUPREME COURT 2007-2008
And beyond November 4,
Decisions this term (NYTIMES
visual of high profile cases) of
In a Complicated Term, Kennedy Left
By LINDA GREENHOUSE
Published: June 29, 2008
WASHINGTON — It was not last year’s spectacularly divided Supreme
Court. The term that ended Thursday lacked last term’s gory display of
5-to-4 decisions, with only 11 cases out of 67 decided this time by
Neither was it the Roberts court, at least not yet. Although Chief
Justice John G. Roberts Jr. was in the majority in 90 percent of the
decisions, more than any other member of the court, the more liberal
justices won their share of the high-profile cases. The rulings
granting the Guantánamo detainees access to federal court and
capital punishment for those who rape children were issued over the
dissent of the chief justice.
Nor was it a court in repose in the third year under Chief Justice
Roberts. There was, in fact, less unanimity: just under 30 percent of
the cases were decided without dissent, compared with just over 40
percent in the term before, and just over half in 2005-6. Over all, the
court decided the fewest cases since the 1953-54 term.
In the case for which history may ultimately remember the term — the
decision interpreting the Second Amendment to protect the right to own
a gun for private use — the court’s conservative bloc won a stunning,
if narrow, victory. As in the Guantánamo decision, the crucial
the Second Amendment case was cast by Justice Anthony M. Kennedy.
So if the Roberts court in its third term — one that left a complicated
and, to some extent, blurred imprint — were to be summed up in a sound
bite, it would be this: It was, once again, Justice Kennedy’s court.
Justice Kennedy, who marked his 20th anniversary on the court in
February, did not compile quite the pitch-perfect voting record in this
term that he did in the last, when he dissented only twice in 68
decisions and voted with the majority in all 24 of the cases decided by
votes of 5 to 4. This term, Justice Kennedy dissented 10 times
(compared with the chief justice’s seven), including in four of the
And his vote was not always as essential. Two of the major decisions of
the term, in which the court upheld Kentucky’s method of execution by
lethal injection and Indiana’s law requiring voters to produce photo
identification at the polls, were decided by more comfortable margins
of 7 to 2 and 6 to 3.
In those decisions, the justices gave some evidence of trying to find a
modicum of middle ground. In both the lethal injection case, Baze v.
Rees, and the voter ID case, Crawford v. Marion County Election Board,
the court found the evidence insufficient to declare the challenged
practices unconstitutional, but left the door open, at least
theoretically, for more fully substantiated lawsuits in the future.
First principles, in other words, were not necessarily in play.
But there were no such signs of a search for middle ground in the
term’s signature cases, the rulings on Guantánamo and guns. The
justices spoke at each other across a wide gulf of instinct and
perception. In each case, the dissenters accused those in the majority
of indulging in rank judicial activism, of injecting the court into a
realm where it did not belong.
Justice Kennedy wrote the majority opinion in the Guantánamo
Boumediene v. Bush, joined by Justices John Paul Stevens, David H.
Souter, Ruth Bader Ginsburg and Stephen G. Breyer. He silently joined
Justice Antonin Scalia’s majority opinion in the gun case, District of
Columbia v. Heller, along with Chief Justice Roberts and Justices
Clarence Thomas and Samuel A. Alito Jr. Joined by the liberal justices,
he wrote the 5-to-4 majority opinion in Kennedy v. Louisiana, the case
that ruled out the death penalty for child rape, and in Dada v.
Mukasey, a 5-to-4 decision that granted additional procedural rights to
immigrants facing deportation.
There is no reason to suppose that Justice Kennedy’s role will be any
less important in the near future. In striking down the District of
Columbia’s ban on handguns, the court began writing a new chapter of
constitutional law. The decision raised more questions than it
answered, and it may take many more cases to flesh out how far the
court intends to go to displace legislative choices for gun
Since Justice Kennedy did not write separately, there is no way of
knowing whether he is in full agreement with Justice Scalia’s
historically based analysis, or whether he would accept as reasonable
some restrictions that lack the historical pedigree that language in
Justice Scalia’s opinion appears to demand. For example, it is not
clear whether Justice Scalia’s analysis would permit licensing and
background checks of gun owners or, if it would not, whether Justice
Kennedy would regard such measures as acceptable.
The term, which began on Oct. 1 and ended on June 26, included some
unanticipated developments, like a string of victories for employees in
workplace discrimination cases. In the previous term, a 5-to-4 decision
that imposed tight time limits on workers’ ability to file pay
discrimination cases drew a strong response, including an unsuccessful
effort in Congress to overturn it by amending the statute the court had
But the plan by liberal groups to use that decision, Ledbetter v.
Goodyear Tire and Rubber Company, as a focus for generating concern
about the future of the court was blunted by the rulings in five
discrimination cases that favored employees in this term. In two cases,
the court ruled by votes of 7 to 2 and 6 to 3 that federal statutes
cover claims of retaliation against employees who complain to
management about discrimination.
Further defying easy categorization, the term also included a number of
favorable rulings for criminal defendants. Overturning a Louisiana
death-row inmate’s conviction by a vote of 7 to 2, with only Justices
Scalia and Thomas dissenting, the court gave added teeth to its rule
against racial discrimination in jury selection. By wide margins, the
court also narrowed the application of two federal money-laundering
statutes and gave federal judges added discretion to show leniency in
sentencing defendants for crimes involving crack cocaine.
“It’s not as if every case that’s visible turns on ideology,”
Christopher L. Eisgruber, a Supreme Court scholar who is provost at
Princeton University, said in an interview. He said many cases present
questions about “other kinds of values, about process and precedent.”
But he added that the term demonstrated that “in cases that really
raise ideological questions, the court remains ideologically divided.”
Students of the court across the ideological spectrum made similar
points. There was no “new ‘era of good feelings’ ” on the court, said
Ilya Shapiro, senior fellow in constitutional studies at the
libertarian Cato Institute, which sponsored the successful lawsuit that
led to the gun-control ruling.
But, Mr. Shapiro added, unanimity was not necessarily an end in itself.
While “we would prefer the highest court in the land to speak with one
voice in resolving the nation’s deepest disputes,” he said, “it is
better for five justices to hold to their constitutional duty to say
what the law is than to have nine produce a lukewarm opinion that
either splits the baby or, worse, legislates from the bench.”
There was nothing lukewarm about the justices’ performances in the
cases that mattered the most to them. The Guantánamo decision,
court’s third consecutive rebuff to the Bush administration’s efforts
to keep the detainees outside the jurisdiction of the federal courts,
prompted Justice Scalia’s warning that the ruling “will almost
certainly cause more Americans to be killed.”
Justice Stevens and Justice Breyer, in dissenting opinions in the
Second Amendment case on handguns, refrained from leveling such a
charge against Justice Scalia’s majority opinion, although Justice
Breyer described at length the landscape of urban violence that he said
gave “compelling” support for the District of Columbia’s effort at gun
control. Addressing process rather than outcome, Justice Stevens said
that in bypassing “judicial restraint, the majority had thrown the
Supreme Court into the ‘political thicket’ ” that Justice Felix
Frankfurter, a conservative judicial hero, had warned against in a
different context long ago.
Justice Stevens announced his dissent from the bench on Thursday
morning, a signal of the depth of feeling on a dissenter’s part and a
step none of the liberal justices had felt impelled to take earlier in
the term. Justice Scalia’s announcement of the decision and the
eight-point rebuttal Justice Stevens read in response offered the
courtroom audience 23 minutes of drama before Chief Justice Roberts
announced, with a smile that might have signified relief, that the term
In past years, the final morning on the bench has been the occasion for
the announcement of a justice’s retirement. No such announcement was
expected in the midst of a presidential election year. It may be a
different story next year. But as this term demonstrated, each Supreme
Court term is in some respects a different story.
Court, long quiet, ends term
with a growl
By MARK SHERMAN, Associated Press Writer
Posted on Jun 28, 7:19 AM EDT
WASHINGTON (AP) -- For most of the term, Supreme Court justices showed
remarkable restraint. They displayed broad agreement even in some
volatile areas and refrained from angry dissents. Then they
decided the tough cases.
The court, in its three most important cases, declared a constitutional
right to have guns at home for self-defense, granted some
constitutional protections to foreign prisoners at Guantanamo Bay and
outlawed the death penalty for people who rape children.
Not only did the familiar ideological divisions return in these cases
and several others, but the justices took turns hurling charges of
"judicial activism" and worse at each other.
Giving rights to the detainees "will almost certainly cause more
Americans to be killed," Justice Antonin Scalia said in a scathing
dissent he read from the bench.
No one threw that line back at Scalia in the guns case. But Justice
John Paul Stevens, also summarizing his dissent in court, said of
Scalia's majority opinion on gun rights that "adherence to a policy of
judicial restraint by this court is far wiser than the bold decision it
Those were among nine 5-4 decisions handed down in the past two weeks.
Until then, there had been only two all term, leading a former Supreme
Court clerk, Robert Gordon, to remark that the era of good feelings at
the court lasted about a month.
"Whatever talk there has been about judicial restraint doesn't seem to
be guiding any identifiable group on the court," said Christopher
Eisgruber, a constitutional law professor and Princeton University
provost. "Liberal justices are willing to intervene on controversial
issues when they present themselves and so are the conservatives."
Looking back on the 69 cases the justices decided in their term, former
Texas Solicitor General Ted Cruz said the results confirm the central
role of Justice Anthony Kennedy.
The court under Chief Justice John Roberts defies easy labels, although
it became more conservative when Samuel Alito replaced Sandra Day
O'Connor, Cruz said.
He called it an "exquisitely balanced court with Justice Kennedy
remaining at the fulcrum of most, if not all, close decisions."
Kennedy wrote the majority opinions in the Guantanamo and rape cases.
Kennedy said he discerned a "national consensus" against the death
penalty for rapists, but both Republican John McCain and Democrat
Barack Obama criticized the decision.
Kennedy also was in the majority in the gun case.
Conservative court watchers remain unhappy that Kennedy so often gets
to say what the law is, even if he more often sides with the court's
conservatives. "He believes it's his role to be the grand moral
conscience of the nation," said Ed Whelan, president of the Ethics and
Public Policy Center.
In all, the term had fewer of the controversial cases than in its
previous term, where there were 24 5-4 splits.
Some potential clashes, though, fizzled. Challenges to Kentucky's
lethal injection procedures and Indiana's law requiring voters to show
photo identification were so thin that the justices easily rejected
them. The Kentucky case, which caused a seven-month halt in
executions, was decided by a 7-2 vote. Stevens, although he voted
against the death row inmates in the case, announced that after 32
years on the court he now believes the death penalty is
The 88-year-old justice also wrote the main opinion in the voter ID
case, upholding an Indiana law intended to combat voter fraud. Stevens
said the law was permissible, even though the state could not show any
instances of fraud that the law would prevent. He also said the
challengers had scant evidence that voters were kept from casting
In business cases, the justices handed major wins to ExxonMobil Corp.,
lopping $2 billion off a punitive damages judgment resulting from the
Exxon Valdez disaster, and limiting lawsuits related to securities
fraud and against the makers of medical devices. Two cases that test
limits on suits against pharmaceutical and tobacco companies will be
argued in the fall.
One exception to the trend in the increasingly busy business docket was
in the area of employment law, where the court reaffirmed employee
rights to sue over alleged civil rights violations.
The current lineup of justices has been in place for roughly
two-and-a-half years, since Alito took his seat. They seem sure
to have at least one more term together, but several justices could
retire in the next few years. Stevens is the oldest and longest-serving
among them, but four others will be at least 70 when the court
reconvenes in October.
The demographics and the division could make the court an issue in the
presidential campaign, though not as prominent as the war or economy.
Both Democrats and Republicans point to the rulings they like least to
showcase why they consider Supreme Court nominations among a
president's most important decisions.
Off the bench, the term was notable for nationally televised interviews
given by two justices, Clarence Thomas and Scalia, to promote new
books. Thomas' memoir, "My Grandfather's Son,' was on bestseller lists
last year, while Scalia co-wrote a book on lawyering.
Scalia even got to repeat, to viewers of CBS' "60 Minutes," his
favorite piece of advice to Democrats still upset over the court's
decision in Bush v. Gore in 2000. "Get over it. It's so old by now,"
Scalia said. (To which Jon Stewart pointed out on Comedy Central's "The
Daily Show" that the winner in that old Supreme Court case remains in
the White House.)
Even Justice David Souter - constitutionally averse to publicity - gave
a speech that reporters were allowed to cover. Unlike Scalia and
Thomas, however, Souter said nothing about the court or his personal
Supreme Court Sides With Workers in
By THE ASSOCIATED PRESS
Published: May 28, 2008
WASHINGTON — The Supreme Court sided Tuesday with employees who faced
retaliation after complaining about race and age discrimination in
rulings that drew support from conservative and liberal justices.
The court, by a 7-2 vote, said a provision of the Civil Rights Act of
1866 covers claims of retaliation that follow complaints about
discrimination on the basis of race.
In a 6-3 ruling, the court likewise held that the part of the major
anti-age bias law covering federal employees also protects them from
retaliation after complaining about discrimination. Neither
provision contains express prohibitions against retaliation.
But Justice Stephen G. Breyer, writing for the court in a case
involving a black Cracker Barrel employee who was fired, said that
previous Supreme Court decisions and Congressional action make clear
that retaliation is covered.
The idea that a provision of the 1866 law, known as section 1981,
“encompasses retaliation claims is indeed well embedded in the law,”
Justice Breyer said.
Business groups objected that the absence of an explicit prohibition on
retaliation was significant and said employees should have to file suit
under another law, Title VII of the Civil Rights Act of 1964. That law
has a shorter deadline for filing suit and caps the amount of money
that a successful plaintiff may recover.
The Bush administration was on the side of the workers.
The case grew out of the firing of a black associate manager at a
Cracker Barrel restaurant in Bradley, Ill. The associate manager,
Hedrick Humphries, asserted he was fired after he complained about race
discrimination by other Cracker Barrel supervisors. Mr. Humphries
filed a lawsuit claiming both discrimination and retaliation. Both
claims were dismissed by a federal judge and only the retaliation claim
The United States Court of Appeals for the Seventh Circuit in Chicago
said Mr. Humphries could pursue his retaliation claim under section
1981. The high court upheld the appeals court ruling.
In the age retaliation case, Justice Samuel Alito’s majority opinion
concluded that a Postal Service employee could pursue her lawsuit under
the Age Discrimination in Employment Act. The law does
specifically bar reprisals against private sector employees who
complain about discrimination. But it is silent as to federal workers.
Justice Alito said the law indeed does apply to both categories of
The case involves Myrna Gomez-Perez, a postal worker in Puerto Rico who
asserted she was being discriminated against because of her age. Ms.
Gomez-Perez, who was then 45, said that after she filed a complaint
with the Equal Opportunity Employment Commission, she suffered a
“series of reprisals” from her supervisors.
She sued under the Age Discrimination in Employment Act, claiming
retaliation in violation of the law. The United States Court of
Appeals for the First Circuit in Boston upheld a lower court’s
dismissal. The Supreme Court reversed that ruling Tuesday. The
administration, which is backing workers in other age bias cases at the
high court, said the Employment Act does not afford federal workers
protection from retaliation. It said Congress could have extended
protections to federal workers, but did not.
Justices Antonin Scalia and Clarence Thomas dissented. Chief Justice
John Roberts joined them in the age bias case, but sided with the
majority in the Cracker Barrel case.
Both decisions relied, in part, on a 2005 ruling that called
retaliation another form of intentional, unlawful discrimination under
Title IX, which bars sex discrimination in education. Title IX also
does not explicitly talk about reprisals.
Says It Will Hear
Narragansetts' Land-Trust Case; Rhode Island, Charlestown officials
seeking to stop tribe from circumventing state laws
By Heather Allen
Published on 2/26/2008
The U.S. Supreme Court agreed Monday to hear a case next fall that
questions whether it is constitutional for the federal Department of
the Interior to take land into trust for American Indian tribes.
The case was filed on behalf of the governor and state of Rhode Island
and the town of Charlestown against Secretary of the Interior Dirk
Kempthorne, and Franklin Keel, the Eastern Area director of the Bureau
of Indian Affairs, to stop land owned by the Narragansett Tribe from
being placed into trust by the federal government.
Carcieri v. Kempthorne centers on the Indian Reorganization Act of
1934, which the plaintiffs argue prevents the federal government from
taking land into trust for tribes that were recognized after the law
took effect unless they meet certain ancestry requirements or Congress
specifically authorizes the recognition.
The plaintiffs also take issue with the secretary of the Interior's
reach and authority to take land into trust, claiming that such an
action limits a state's authority in several areas, including taxation,
its restriction of land use and its ability to protect the public.
If the high court finds for the petitioners in this case and deems the
act of placing land into a federal trust by the Interior Department
unconstitutional, the ramifications would be far-reaching.
“This case goes to the core of every state's control over its land and
rights of its citizens to state protection, environmentally and
economically,” said Connecticut Attorney General Richard Blumenthal.
“The rights of states to protect their citizens are deeply enshrined in
our constitution and this case could have sweeping consequences if it
is allowed to stand. Not just on land into trust (but) environmental
enforcement, taxes and even criminal law.”
Blumenthal and 15 other attorneys general have filed a “friend of the
court” brief, citing and supporting the petitioners' arguments. The
brief was filed in November after the 1st Circuit Court of Appeals in
Boston rejected the state's claim in July.
Rhode Island Gov. Donald L. Carcieri hailed Monday's announcement as a
triumph, and not only for Rhode Island.
“For too long, the legitimate concerns of states in the federal
land-to-trust process have been ignored,” Carcieri said in a press
release. “It is simply not acceptable for any state to be stripped of
its sovereignty over land within its borders by mid-level bureaucrats
The case revolves around whether a 31-acre parcel in Charlestown that
belongs to the Narragansett Tribe should be subject to Rhode Island law
— including a prohibition on casino gambling — or governed by tribal
and federal law.
The dispute dates to 1991, when the tribe purchased the land to build
an as-yet-incomplete housing complex for its elderly members.
The state objected when the tribe asked the U.S. Department of the
Interior to take the land into federal trust, which would have placed
it largely under tribal and federal control.
State officials fear the Narragansetts want to build a casino on the
site. Casinos are banned under state statutes, although there are
currently two “racinos” operating in the state.
As it stands now, land that is taken into a federal trust is not
subject to taxation or to many state laws and local ordinances.
Possible effects of a decision favoring the plaintiffs would be for
land to come out of federal trust and the Secretary of the Interior's
“Certainly this will be a landmark decision,” Blumenthal said.
The Mashantucket Pequot Tribe, owners of Foxwoods Resort Casino,
initially bought about 800 acres of land after receiving federal
recognition and funding in 1983. That land would not be affected by the
findings in this case because an act of Congress allowed the tribe to
purchase the land. That means the majority of the tribe's land is not
subject to the Indian Reorganization Act of 1934, which is at issue in
Carcieri v. Kempthorne.
A tribal spokesman said the Mashantucket tribe's attorneys “are looking
at the case with great interest, but there are too many variables to
say if it would affect us or not.”
“Anything with a potential outcome for Indian Country is something we
would review,” said Bruce MacDonald, the spokesman.
The Mohegan Tribe purchased the former UNC Naval Products site in
Montville for $28.3 million in 1995. The Secretary of the Interior then
placed the UNC land into trust. Federal approvals then established a
240-acre reservation. Prior to that approval, the tribe owned less than
an acre of land.
An attorney for the Mohegan tribe could not be reached on Monday to
The Mashpee Wampanoag tribe in Massachusetts could also be affected by
this case. The Mashpees have filed a petition with the federal
government asking that 140 acres in Mashpee and 500-plus acres in
Middleboro be put into a federal trust.
The tribe has expressed its interest in using the land in Middleboro to
build a resort casino, but that can't happen until the land is put into
Supreme Court upholds gun rights in
historic 5-4 decision
constitutional right of the people to have firearms in home for
By Mark Sherman
Published on 6/27/2008
Washington - In 1791, a time of birth pangs for a nation, leaders
carved a guarantee into the bedrock of the Constitution that the people
have the right to keep and bear arms.
In 2008, the Supreme Court finally got around to interpreting what
those words mean.
Weighing in on an argument for the ages, the court affirmed 5-4 that an
individual right to gun ownership exists and, in this case, it allows
people to have guns in their home for self-defense.
How far that right extends is an argument for another day. The decision
Thursday struck down a handgun ban in the District of Columbia and
imperiled similar prohibitions in other cities while, it's expected,
leaving a national instant background check and other federal gun
restrictions largely intact.
The court's historic awakening on the meaning of the Second Amendment
brought a curiously mixed response, muted in some unexpected places.
The reaction broke less along party lines than along the divide between
cities wracked with gun violence and rural areas where gun ownership is
embedded in daily life. Democrats have all but abandoned their long
push for stricter gun laws at the national level after deciding it's a
losing issue for them. Republicans welcomed what they called a powerful
Democratic presidential candidate Barack Obama, straddling both sides
of the issue, said merely that the court did not find an unfettered
right to bear arms and that the ruling “will provide much-needed
guidance to local jurisdictions across the country.”
But another Chicagoan, Democratic Mayor Richard Daley, called the
ruling “very frightening” and predicted more violence and higher taxes
to pay for extra police if his city's gun restrictions are lost.
Republican presidential candidate John McCain welcomed the ruling as “a
landmark victory for Second Amendment freedom.”
The court had not conclusively interpreted the Second Amendment since
its ratification in 1791. The amendment reads: “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.”
The basic issue for the justices was whether the amendment protects an
individual's right to own guns no matter what, or whether that right is
somehow tied to service in a state militia, a once-vital, now-archaic
grouping of citizens. That's been the heart of the gun control debate
The answer: Writing for the majority, Justice Antonin Scalia said that
an individual right to bear arms exists and is supported by “the
historical narrative” both before and after the Second Amendment was
President Bush said: “I applaud the Supreme Court's historic decision
today confirming what has always been clear in the Constitution: the
Second Amendment protects an individual right to keep and bear
The full implications of the decision, however, are not sorted out.
Still to be seen, for example, is the extent to which the right to have
a gun for protection in the home may extend outside the home.
Scalia said the Constitution does not permit “the absolute prohibition
of handguns held and used for self-defense in the home.” The court also
struck down D.C. requirements that firearms be equipped with trigger
locks or kept disassembled, but left intact the licensing of guns. The
district allows shotguns and rifles to be kept in homes if they are
registered, kept unloaded and taken apart or equipped with trigger
Scalia noted that the handgun is Americans' preferred weapon of
self-defense in part because “it can be pointed at a burglar with one
hand while the other hand dials the police.”
But he said nothing in the ruling should “cast doubt on long-standing
prohibitions on the possession of firearms by felons or the mentally
ill, or laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings.”
And in a concluding paragraph to the 64-page opinion, Scalia said the
justices in the majority “are aware of the problem of handgun violence
in this country” and believe the Constitution “leaves the District of
Columbia a variety of tools for combating that problem, including some
measures regulating handguns.”
D.C. Mayor Adrian Fenty responded with a plan to require residents to
register their handguns. “More handguns in the District of Columbia
will only lead to more handgun violence,” he said.
In a dissent he summarized from the bench, Justice John Paul Stevens
wrote 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.” He said such
evidence “is nowhere to be found.”
Justice Stephen Breyer wrote a separate dissent in which he said, “In
my view, there simply is no untouchable constitutional right guaranteed
by the Second Amendment to keep loaded handguns in the house in
crime-ridden urban areas.”
Joining Scalia were Chief Justice John Roberts and Justices Samuel
Alito, Anthony Kennedy and Clarence Thomas. The other dissenters were
Justices Ruth Bader Ginsburg and David Souter.
Gun rights advocates praised the decision. “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,” said
Wayne LaPierre, executive vice president of the National Rifle
The NRA will file lawsuits in San Francisco, Chicago and several
Chicago suburbs challenging handgun restrictions there based on
Some Democrats also welcomed the ruling.
”This opinion should usher in a new era in which the constitutionality
of government regulations of firearms are reviewed against the backdrop
of this important right,” said Sen. Patrick Leahy of Vermont.
The capital's gun law was among the nation's strictest.
Dick Anthony Heller, 66, an armed security guard, sued the district
after it rejected his application to keep a handgun at his Capitol Hill
home a short distance from the Supreme Court.
”I'm thrilled I am now able to defend myself and my household in my
home,” Heller said shortly after the opinion was announced.
The U.S. Court of Appeals for the District of Columbia ruled in
Heller's favor and struck down the district's handgun ban, saying the
Constitution guarantees Americans the right to own guns and a total
prohibition on handguns is not compatible with that right.
The issue caused a split within the Bush administration. Vice President
Dick Cheney supported the appeals court ruling, but others in the
administration feared it could lead to the undoing of other gun
regulations, including a federal law restricting sales of machine guns.
Other laws keep felons from buying guns and provide for an instant
The last Supreme Court ruling on the matter came in 1939 in U.S. v.
Miller, which involved a sawed-off shotgun. Constitutional scholars
agree it did not squarely answer the question of individual versus
Court Rules That Individuals
Have Gun Rights
By THE ASSOCIATED PRESS
Published: June 26, 2008
WASHINGTON (AP) -- The Supreme Court says Americans have a right to own
guns for self-defense and hunting, the justices' first major
pronouncement on gun rights in U.S. history.
The court's 5-4 ruling strikes down the District of Columbia's
32-year-old ban on handguns as incompatible with gun rights under the
Second Amendment. The decision goes further than even the Bush
administration wanted, but probably leaves most firearms laws intact.
The court had not conclusively interpreted the Second Amendment since
its ratification in 1791. The amendment reads: "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."
The basic issue for the justices was whether the amendment protects an
individual's right to own guns no matter what, or whether that right is
somehow tied to service in a state militia.
Justice Antonin Scalia, writing for four colleagues, said the
Constitution does not permit "the absolute prohibition of handguns held
and used for self-defense in the home."
In dissent, Justice John Paul Stevens wrote 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."
He said such evidence "is nowhere to be found."
Court Will Hear Guns
By MARK SHERMAN, Associated Press Writer
Posted on Nov 20, 3:57 PM EST
WASHINGTON (AP) -- The Supreme Court said Tuesday it will decide
whether the District of Columbia can ban handguns, a case that could
produce the most in-depth examination of the constitutional right to
"keep and bear arms" in nearly 70 years.
The justices' decision to hear the case could make the divisive debate
over guns an issue in the 2008 presidential and congressional elections.
The government of Washington, D.C., is asking the court to uphold its
31-year ban on handgun ownership in the face of a federal appeals court
ruling that struck down the ban as incompatible with the Second
Amendment. Tuesday's announcement was widely expected, especially after
both the District and the man who challenged the handgun ban asked for
the high court review.
Arguments probably will be in March, with a decision expected before
the end of June.
The main issue before the justices is whether the Second Amendment of
the Constitution protects an individual's right to own guns or instead
merely sets forth the collective right of states to maintain militias.
The former interpretation would permit fewer restrictions on gun
Gun-control advocates say the Second Amendment was intended to insure
that states could maintain militias, a response to 18th century fears
of an all-powerful national government. Gun rights proponents contend
the amendment gives individuals the right to keep guns for private
uses, including self-defense.
Alan Gura, a lawyer for Washington residents who challenged the ban,
said he was pleased that the justices were considering the case.
"We believe the Supreme Court will acknowledge that, while the use of
guns can be regulated, a complete prohibition on all functional
firearms is too extreme," Gura said. "It's time to end this
unconstitutional disaster. It's time to restore a basic freedom to all
Wayne LaPierre, executive vice president of the National Rifle
Association, noted that 44 state constitutions contain some form of gun
rights, which are not affected by the court's consideration of
Washington's restrictions. "The American people know this is an
individual right the way they know that water quenches their thirst,"
LaPierre said. "The Second Amendment allows no line to be drawn between
individuals and their firearms."
Paul Helmke, president of the Brady Center to Prevent Gun Violence,
said the Supreme Court should "reverse a clearly erroneous decision and
make it clear that the Constitution does not prevent communities from
having the gun laws they believe are needed to protect public safety."
The last Supreme Court ruling on the topic came in 1939 in U.S. v.
Miller, which involved a sawed-off shotgun. That decision supported the
collective rights view, but did not squarely answer the question in the
view of many constitutional scholars. Chief Justice John Roberts said
at his confirmation hearing that the correct reading of the Second
Amendment was "still very much an open issue."
The Second Amendment reads: "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."
Washington banned handguns in 1976, saying it was designed to reduce
violent crime in the nation's capital.
The City Council that adopted the ban said it was justified because
"handguns have no legitimate use in the purely urban environment of the
District of Columbia."
The District is making several arguments in defense of the restriction,
including claiming that the Second Amendment involves militia service.
It also said the ban is constitutional because it limits the choice of
firearms, but does not prohibit residents from owning any guns at all.
Rifles and shotguns are legal, if kept under lock or disassembled.
Businesses may have guns for protection.
Chicago has a similar handgun ban, but few other gun-control laws are
as strict as the District's.
Four states - Hawaii, Illinois, Maryland and New York - urged the
Supreme Court to take the case because broad application of the appeals
court ruling would threaten "all federal and state laws restricting
access to firearms."
Dick Anthony Heller, 65, an armed security guard, sued the District
after it rejected his application to keep a handgun at his home - about
a mile from the court - for protection.
The laws in question in the case do not "merely regulate the possession
of firearms," Heller said. Instead, they "amount to a complete
prohibition of the possession of all functional firearms within the
If the Second Amendment gives individuals the right to have guns, "the
laws must yield," he said.
Opponents say the ban plainly has not worked because guns still are
readily available, through legal and illegal means. Although the city's
homicide rate has declined dramatically since peaking in the early
1990s, Washington still ranks among the nation's highest murder cities.
According to the district's medical examiner, there were 177 homicides
in 2006. Of those, 135 were firearm-related. In 1975, the medical
examiner said that 135 of the district's 207 homicides were
firearm-related, according to a Washington Post article from that era.
The U.S. Court Appeals for the District of Columbia Circuit ruled 2-1
for Heller in March. Judge Laurence Silberman said reasonable
regulations still could be permitted, but said the ban went too far.
The Bush administration, which has endorsed individual gun-ownership
rights, has yet to weigh in on this case.
Arguments will be heard early next year.
The case is District of Columbia v. Heller, 07-290.
Top court won't hear appeal in CIA
By James Vicini
Tue Oct 9, 12:17 PM ET
WASHINGTON (Reuters) - A German citizen who says he was kidnapped,
imprisoned and tortured overseas by the CIA lost his appeal on Tuesday
when the Supreme Court refused to review a decision dismissing the case
because it would expose state secrets.
Attorneys for Khaled el-Masri, a German of Lebanese descent, argued in
the high court appeal that his lawsuit did not depend on the disclosure
of state secrets and that it should be allowed to go forward in U.S.
court. His case, in which Masri said he was abducted in
Macedonia, flown to Afghanistan and tortured, has drawn worldwide
attention to the CIA's extraordinary rendition program, in which
terrorism suspects are sent from one foreign country to another for
interrogation. Human rights groups have strongly criticized the program.
Masri's case sparked outrage in Germany and prompted a parliamentary
inquiry to find out what authorities might have known about U.S.
Masri's attorneys from the American Civil Liberties Union challenged
what they called the Bush administration's increased invoking of
national security secrets to prevent any judicial inquiry into serious
allegations of misconduct. The administration also has asserted
the so-called state secrets privilege in an effort to dismiss the
lawsuits over the warrantless domestic spying program that Bush created
after the September 11 attacks.
Ben Wizner of the ACLU was disappointed by the Supreme Court decision.
'SWEPT UNDER THE RUG'
"If Khaled el-Masri's case is a state secret, then virtually every case
of executive misconduct can be swept under the rug," he said. "This
case is not about secrecy. It's about immunity for crimes against
Masri's lawsuit, which sought damages of at least $75,000, was brought
against former CIA Director George Tenet, three private aviation
companies and 20 unnamed employees of the CIA and the companies.
The Supreme Court sided with the administration and rejected the appeal
without any explanation or recorded dissent.
Masri said he was abducted by Macedonian authorities on December 31,
2003, while on vacation. After 23 days, he was handed over to a CIA
team and flown to a CIA-run secret prison near Kabul, Afghanistan, he
said. Masri said he was beaten, interrogated and held as a
terrorism suspect, even though CIA officials quickly determined his
innocence. He said he was flown to Albania and released on May 28, 2004.
A federal judge and then a U.S. appeals court dismissed the lawsuit
because it threatened to expose government secrets, including how the
CIA supervises its most sensitive intelligence operations. The
Supreme Court formally recognized the state secrets privilege in a 1953
ruling. The ACLU's attorneys said the court has not revisited the
decision in more than 50 years and urged the justices to re-examine it.
The CIA has never acknowledged any role in Masri's detention. The Bush
administration opposed Masri's appeal. Administration attorneys
said lower courts applied "settled legal principles to the highly
classified facts of this case" and that further review by the Supreme
Court was unwarranted.
Court Considers Securities
By PETE YOST, Associated Press Writer
Posted on Oct 9, 9:39 AM EDT
WASHINGTON (AP) -- Investor lawsuits in the Enron scandal and other
corporate wrongdoing hinge on a case before the Supreme Court that
poses this question: Can banks, lawyers, accountants and suppliers be
held liable for scheming with publicly held companies that deceive
The justices were to hear arguments Tuesday in the securities fraud
case investors brought against Motorola Inc. and Scientific-Atlanta
Inc. over their deals with one of the largest cable TV providers in the
country, Charter Communications, Inc. In a case similar to the
one before the court, Enron shareholders are seeking over $30 billion
from banks that allegedly colluded with the energy company to hide its
Standing in line in front of the Supreme Court on Tuesday morning,
Federal Trade Commission attorney Tom Carter said he flew from Dallas a
day early on a business trip to watch the argument in the investors'
suit. Carter's wife, Judy, bought Enron stock for $50 a share and sold
it at 50 cents a share, losing about $5,000.
"The court has a tough job," said Carter. "Investors should be able to
sue for fraud, but the court doesn't want to open the floodgates."
The case of Stoneridge Investment Partners LLC v. Scientific-Atlanta
and Motorola has its origins in the late 1990s, when Charter and other
companies spent billions upgrading their networks for cable TV and
Internet service, an undertaking that cut into their earnings.
Wall Street analysts responded by focusing on revenue growth. To meet
the imperatives of Wall Street, Charter falsely inflated its revenue.
Charter eventually corrected its financial statements, cutting revenue
by $292 million from 2000 through 2002. Four Charter executives pleaded
guilty to criminal charges after a lengthy federal investigation.
The question now is whether Motorola and Scientific-Atlanta, which is
now owned by Cisco Systems Inc., can be sued for their role.
In the transactions that Charter persuaded Motorola and
Scientific-Atlanta to engage in, the two suppliers bought advertising
that was bankrolled with money from Charter, which paid a $20 premium
on each of hundreds of thousands of cable TV set-top boxes, for a total
of $17 million. The amount of the overpayments equaled the amount
the two suppliers paid for the advertising. Charter reported the
advertising payments as revenue, a step that helped Charter paint a
rosy financial picture for the fourth quarter of 2000, a move designed
to artificially inflate the price of the stock.
Charter gave no indication to the investing public that the deals had
occurred because Charter simply lumped in the $17 million with
Charter's quarterly totals. In the lawsuit brought by Charter's
investors, Scientific-Atlanta and Motorola prevailed in the lower
courts. The government took no action against anyone from the two firms
regarding the deals with Charter. Motorola and Scientific-Atlanta
argue in papers before the Supreme Court that they should not be held
liable in a lawsuit for engaging in conduct that the 8th U.S. Circuit
Court of Appeals said at most amounted to an investors' claim of aiding
and abetting fraud by Charter's executives.
The Supreme Court barred aiding and abetting claims for securities
fraud 13 years ago.
Lawyers for Charter's investors argued to the Supreme Court that the
two suppliers took an active part in the fraud, creating a phony paper
trail to conceal the "sham" nature of what they were doing.
Supreme Court Upholds Voter ID Law in Indiana
By THE ASSOCIATED PRESS
Published: April 28, 2008
Filed at 11:00 a.m. ET
WASHINGTON (AP) -- The Supreme Court ruled Monday that states can
require voters to produce photo identification without violating their
constitutional rights, validating Republican-inspired voter ID laws.
In a splintered 6-3 ruling, the court upheld Indiana's strict photo ID
requirement, which Democrats and civil rights groups said would deter
poor, older and minority voters from casting ballots. Its backers said
it was needed to prevent fraud.
It was the most important voting rights case since the Bush v. Gore
dispute that sealed the 2000 election for George W. Bush. But the voter
ID ruling lacked the conservative-liberal split that marked the 2000
The law ''is amply justified by the valid interest in protecting 'the
integrity and reliability of the electoral process,''' Justice John
Paul Stevens said in an opinion that was joined by Chief Justice John
Roberts and Anthony Kennedy. Stevens was a dissenter in Bush v. Gore in
Justices Samuel Alito, Antonin Scalia and Clarence Thomas also agreed
with the outcome, but wrote separately.
Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter
dissented, just as they did in 2000.
More than 20 states require some form of identification at the polls.
Courts have upheld voter ID laws in Arizona, Georgia and Michigan, but
struck down Missouri's. Monday's decision comes a week before Indiana's
The decision also could spur efforts to pass similar laws in other
Ken Falk, legal director of the American Civil Liberties Union of
Indiana, said he hadn't reviewed the decision, but he was ''extremely
disappointed'' by it. Falk has said voter ID laws inhibit voting, and a
person's right to vote ''is the most important right.'' The ACLU
brought the case on behalf of Indiana voters.
The case concerned a state law, passed in 2005, that was backed by
Republicans as a way to deter voter fraud. Democrats and civil rights
groups opposed the law as unconstitutional and called it a thinly
veiled effort to discourage elderly, poor and minority voters -- those
most likely to lack proper ID and who tend to vote for Democrats.
There is little history in Indiana of either in-person voter fraud --
of the sort the law was designed to thwart -- or voters being
inconvenienced by the law's requirements. For the overwhelming majority
of voters, an Indiana driver license serves as the identification.
''We cannot conclude that the statute imposes 'excessively burdensome
requirements' on any class of voters,'' Stevens said.
Stevens' opinion suggests that the outcome could be different in a
state where voters could provide evidence that their rights had been
But in dissent, Souter said Indiana's voter ID law ''threatens to
impose nontrivial burdens on the voting rights of tens of thousands of
the state's citizens.''
Scalia, favoring a broader ruling in defense of voter ID laws, said,
''The universally applicable requirements of Indiana's
voter-identification law are eminently reasonable. The burden of
acquiring, possessing and showing a free photo identification is simply
not severe, because it does not 'even represent a significant increase
over the usual burdens of voting.'''
Stevens said the partisan divide in Indiana, as well as elsewhere, was
noteworthy. But he said that preventing fraud and inspiring voter
confidence were legitimate goals of the law, regardless of who backed
or opposed it.
Indiana provides IDs free of charge to the poor and allows voters who
lack photo ID to cast a provisional ballot and then show up within 10
days at their county courthouse to produce identification or otherwise
attest to their identity.
Stevens said these provisions also help reduce the burden on people who
lack driver licenses.
Court to Hear Voter ID Case
By MARK SHERMAN | Associated Press Writer
10:47 AM EDT, September 25, 2007
WASHINGTON - The Supreme Court agreed Tuesday to decide whether
voter identification laws unfairly deter the poor and minorities from
voting, stepping into a contentious partisan issue in advance of the
The justices will hear arguments early next year in a challenge to an
Indiana law that requires voters to present photo ID before casting
their ballots. The state has defended the law as a way to combat voter
The state Democratic party and civil rights groups complained that the
law unfairly targets poor and minority voters, without any evidence
that in-person voter fraud exists in Indiana. The party argued that
those voters tend to be Democrats.
Courts have upheld voter ID laws in Arizona and Michigan, but struck
down Missouri's. Earlier this month, a federal judge dismissed a
challenge to Georgia's voter identification law, saying the statute
does not impose a significant burden on the right to vote.
Election law experts had urged the court to take the Indiana case to
instruct courts on how to weigh claims of voter fraud versus those of
disenfranchisement. "The court better resolve this question before
ballots start getting counted next fall," said Stanford University law
professor Pamela Karlan.
The court is expected to issue a decision by late June, in time for the
November general election.
The Indiana law enacted in 2005 was upheld by a federal judge and by
the 7th U.S. Circuit Court of Appeals in Chicago. Before the law's
passage, an Indiana voter had only to sign a poll book at the polling
place, where a photo copy of the voter's signature was kept on file for
"The purpose of the Indiana law is to reduce voting fraud, and voting
fraud impairs the right of legitimate voters to vote by diluting their
votes," Judge Richard Posner said in his majority opinion.
But in a dissent, Judge Terence Evans said, "Let's not beat around the
bush. The Indiana voter photo ID law is a not-too-thinly veiled attempt
to discourage election-day turnout by folks believed to skew
The voter ID challenge was among 17 new cases accepted by the court in
advance of the start of its new term on Monday.
The cases are Crawford v. Marion County Election Board, 07-21, and
Indiana Democratic Party v. Rokita, 07-25.
Justices Rule Terror
Suspects Can Appeal in Civilian Courts
By DAVID STOUT
Published: June 13, 2008
WASHINGTON — Foreign terrorism suspects held at the Guantánamo
Bay naval base in Cuba have constitutional rights to challenge their
detention there in United States courts, the Supreme Court ruled, 5 to
4, on Thursday in a historic decision on the balance between personal
liberties and national security.
“The laws and Constitution are designed to survive, and remain in
force, in extraordinary times,” Justice Anthony M. Kennedy wrote for
The ruling came in the latest battle between the executive branch,
Congress and the courts over how to cope with dangers to the country in
the post-9/11 world. Although there have been enough rulings addressing
that issue to confuse all but the most diligent scholars, this latest
decision, in Boumediene v. Bush, No. 06-1195, may be studied for years
In a harsh rebuke of the Bush administration, the justices rejected the
administration’s argument that the individual protections provided by
the Detainee Treatment Act of 2005 and the Military Commissions Act of
2006 were more than adequate.
“The costs of delay can no longer be borne by those who are held in
custody,” Justice Kennedy wrote, assuming the pivotal rule that some
court-watchers had foreseen.
Joining Justice Kennedy’s opinion were Justices John Paul Stevens,
Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter. Writing
separately, Justice Souter said the dissenters did not sufficiently
appreciate “the length of the disputed imprisonments, some of the
prisoners represented here today having been locked up for six years.”
The dissenters were Chief Justice John G. Roberts Jr. and Justices
Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas, generally
considered the conservative wing on the tribunal.
Reflecting how the case divided the court not only on legal but,
perhaps, emotional lines, Justice Scalia said the United States was “at
war with radical Islamists,” and that the ruling “will almost certainly
cause more Americans to get killed.”
And Chief Justice Roberts said the majority had struck down “the most
generous set of procedural protections ever afforded aliens detained by
this country as enemy combatants.”
The immediate effects of the ruling are not clear. For instance, Cmdr.
Jeffrey Gordon, a Pentagon spokesman, told The Associated Press he had
no information on whether a hearing at Guantánamo for Omar
Khadr, a Canadian charged with killing an American soldier in
Afghanistan, would go forward next week, as planned. Nor was it
initially clear what effects the ruling would have beyond
The 2006 Military Commission Act stripped the federal courts of
jurisdiction to hear habeas corpus petitions filed by detainees
challenging the bases for their confinement. That law was upheld by the
United States Court of Appeals for the District of Columbia Circuit in
At issue were the “combatant status review tribunals,” made up of
military officers, that the administration set up to validate the
initial determination that a detainee deserved to be labeled an “enemy
The military assigns a “personal representative” to each detainee, but
defense lawyers may not take part. Nor are the tribunals required to
disclose to the detainee details of the evidence or witnesses against
him — rights that have long been enjoyed by defendants in American
civilian and military courts.
Under the 2005 Detainee Treatment Act, detainees may appeal decisions
of the military tribunals to the District of Columbia Circuit, but only
under circumscribed procedures, which include a presumption that the
evidence before the military tribunal was accurate and complete.
In the years-long debate over the treatment of detainees, some critics
of administration policy have asserted that those held at
Guantánamo have fewer rights than people accused of crimes under
American civilian and military law and that they are trapped in a sort
of legal limbo.
President Bush, traveling in Rome, did not immediately react to the
court’s decision. "People are reviewing the decision," Mr. Bush’s press
secretary, Dana M. Perino, said. The president has said he wants to
close the Guantánamo detention unit eventually.
The detainees at the center of the case decided on Thursday are not all
typical of the people confined at Guantánamo. True, the majority
were captured in Afghanistan or Pakistan. But the man who gave the case
its title, Lakhdar Boumediene, is one of six Algerians who immigrated
to Bosnia in the 1990’s and were legal residents there. They were
arrested by Bosnian police within weeks of the Sept. 11 attacks on
suspicion of plotting to attack the United States embassy in Sarajevo —
“plucked from their homes, from their wives and children,” as their
lawyer, Seth P. Waxman, a former solicitor general put it in the
argument before the justices on Dec. 5.
The Supreme Court of Bosnia and Herzegovina ordered them released three
months later for lack of evidence, whereupon the Bosnian police seized
them and turned them over to the United States military, which sent
them to Guantánamo.
Mr. Waxman argued before the United States Supreme Court that the six
Algerians did not fit any authorized definition of enemy combatant, and
therefore ought to be released.
The head of the New York-based Center for Constitutional Rights, which
represents dozens of prisoners at Guantánamo, hailed the ruling.
“The Supreme Court has finally brought an end to one of our nation’s
most egregious injustices,” Vincent Warren, the organization’s
executive director, told The Associated Press.
High Court In
For Another Eventful Term:
issues are looming, again with Kennedy in the
Barnes, The Washington Post
Published on 10/1/2007
After a bruising term that featured more close decisions and
ideological splits than in its recent history, the Supreme Court begins
its new term Monday with more of the same: emotional, complex and
sometimes partisan issues that divide the justices as well as the
high-profile agenda features a fourth examination of how the Bush
administration and Congress deal with terrorism detainees, a
separation-of-powers case that tests the limits of a president's power,
and a host of discrimination and employment law cases. Last week,
justices added the constitutionality of lethal injection to the list
and said they would, in the midst of the 2008 presidential election,
decide a fiercely partisan battle on voting rights.
Waiting in the
wings from the District of Columbia is a potential showdown on the
meaning of the Second Amendment and gun rights.
“The court is
showing a willingness to keep on taking these kinds of issues even
though they are going to be divisive,” said Richard Garnett, a law
professor at the University of Notre Dame and former clerk to the late
chief justice William Rehnquist.
But if there is
a difference this year, it could be that the court — balanced with four
reliable conservatives, four reliable liberals and one man in the
middle with an outsized influence — might teeter occasionally more to
That is because
Justice Anthony Kennedy's starring role last term — he was the only
justice in the majority in each of the court's record number of 5 to 4
decisions — seems likely for an encore but in a different direction.
conservative views on abortion and campaign finance laws grabbed
attention then, “the menu for this term is shaping up to be the other
way around,” Garnett said. For instance, Kennedy has voted against the
government in each of the detainee cases the court has heard, and his
past opinions signal the central role he is likely to play again in
court is going to be about as conservative or about as liberal as
Justice Kennedy,” Solicitor General Paul Clement, who represents the
federal government before the court, said in a speech this summer.
“The court (last
term) had a number of cases — important, high-profile cases — where
Justice Kennedy's jurisprudence” happened to match that of Chief
Justice John Roberts Jr. and the other conservatives, Clement said.
“But there are certain other areas that have been, and will be again,
where Justice Kennedy's jurisprudence is like that of Justice (John
Paul) Stevens” and the court's other liberals.
One thing is
certain, the term will tell much about the still-evolving nature of the
court — Roberts has just passed his two-year anniversary on the bench,
and the newest justice, Samuel Alito Jr., has served only 20 months.
The still-new chief justice has established clear conservative
credentials but has fallen short in his search for more unanimity on
Roberts is only
two months away from a scary incident that made the chief justice the
lead story in newspapers and network news shows, when he suffered a
seizure at his vacation home in Maine on July 30.
continued his vacation after a night's stay at the hospital and has
looked hale at recent public appearances, two speeches at universities
and a judicial conference in Canada. He has not talked about the
incident publicly, and a court spokeswoman said last week that he had
no comment about what follow-up tests might have revealed or whether he
is taking medication.
Roberts' role on
the court and the justices' decisions this term will be seen through
the prism of the 2008 elections.
themselves hate being lumped into groups: Roberts, Alito and Justices
Antonin Scalia and Clarence Thomas on the right, Stevens and Justices
David Souter, Ruth Bader Ginsburg and Stephen Breyer on the left. They
frequently point to areas of the law, such as sentencing, or to many
business cases, where opinions are often lopsided, or at least the
usual alignments are scrambled.
But the great
majority of last term's 5 to 4 decisions broke along those patterns,
with Kennedy voting twice as often with the conservatives as with the
liberals. And the end of the term was particularly fractious, with the
four liberals taking turns reading sharp dissents from the bench.
“I think last
June they were pretty happy to get away from each other,” said Carter
Phillips, a top Supreme Court practitioner at the law firm Sidley
and liberal activist groups are eager to make the court's more
conservative stance last year a theme for 2008, saying it is important
to have Democrats in charge of the White House and Senate when the next
vacancy on the court occurs.
Goldstein, who heads Akin Gump Strauss Hauer and Feld's Supreme Court
practice, wrote a provocative post for ScotusBlog.com arguing that the
controversial cases on the court's agenda this year might aid
conservatives in making the court an issue.
cases will be ones in which the more liberal position is distinctly —
even profoundly — unpopular with conservatives,” Goldstein wrote. “Even
if the left ultimately does not win all of the five most significant
cases of this Supreme Court term, that wing of the court will carry the
banner for accused terrorists, crack dealers, child pornographers,
child rapists, and those who want to forbid gun possession.”
that, conservative activists — wary of Kennedy's ability to side with
either wing of the court, depending on the issue — have never been as
enamored of the court's work last year as liberals were outraged.
“It's a pretty
good court,” said John Choon Yoo, the former Justice Department
official who was a leader in advocating the Bush administration's
expansive view of presidential power in wartime. “But it's not
Supreme Court Strikes Down ‘Millionaire’s
By ADAM LIPTAK
Published: June 27, 2008
WASHINGTON — The Supreme Court on Thursday struck down a law meant to
level the financial playing field when rich candidates pay for their
own political campaigns. The 5-to-4 decision, legal experts said,
was significant for rejecting the rationale behind the law, known as
the “millionaire’s amendment,” and for confirming the court’s
continuing skepticism about the constitutionality of campaign finance
“Supporters of reasonable campaign finance regulation are now zero for
three in the Roberts court,” said Richard L. Hasen, a professor at
Loyola Law School in Los Angeles. “This is a signal of what is to come.
What could easily fall following this case are the longstanding limits
on corporate and union spending in federal elections.”
The law at issue Thursday imposed special rules in races with
candidates who finance their own campaigns. Those candidates are
required to disclose more information, and their opponents are allowed
to raise more money.
The Supreme Court has upheld campaign finance laws meant to drive the
potentially corrupting influence of large contributions out of
politics. But the millionaire’s amendment, part of the 2002
McCain-Feingold campaign finance law, is based on a different
rationale: that of compensating for the additional financial resources
available to candidates willing to spend their own money.
The case was brought by Jack Davis, a Democrat who twice ran for the
House of Representatives from western New York, spending or lending
himself millions of dollars of his own money. He lost both times.
Justice Samuel A. Alito Jr., writing for the majority, said the
asymmetry imposed by the law was unacceptable. “We have never upheld
the constitutionality of a law that imposes different contribution
limits for candidates who are competing against each other,” Justice
The law allows opponents of candidates for the House of Representatives
who spend more than $350,000 of their own money to receive triple the
usual amounts — $6,900 rather than $2,300 — from individual
contributors when a complex statutory formula is met. The law also
waives limits on expenditures from political parties.
The law was a response to Supreme Court rulings that forbid limits on
the amount that candidates can spend on their own behalf. But Justice
Alito wrote that the legislative response was unconstitutional because
it “imposes an unprecedented penalty on any candidate who robustly
exercises” free speech rights guaranteed by the First Amendment. Rich
candidates, Justice Alito said, must “choose between the First
Amendment right to engage in unfettered political speech and subjection
to discriminatory fundraising limitations.”
In the case, Davis v. Federal Election Commission, No. 07-320, Mr.
Davis’s lawyer argued that the law had an ulterior motive, that of
protecting incumbents against rich challengers. The court did not
address that point, but the majority did express skepticism about
allowing Congress to decide how to level the political landscape.
“Different candidates have different strengths,” Justice Alito wrote.
“Some are wealthy; others have wealthy supporters who are willing to
make large contributions. Some are celebrities; others have the benefit
of a well-known family name.”
“Leveling electoral opportunities means making and implementing
judgments about which strengths should be permitted to contribute to
the outcome of an election,” Justice Alito continued. “The Constitution
confers upon voters, not Congress, the power to choose the members of
the House of Representatives.”
Justice Alito’s decision was joined by Chief Justice John G. Roberts
Jr. and Justices Anthony M. Kennedy, Antonin Scalia and Clarence
Led by those justices, “the court is increasingly hostile to campaign
finance reform,” said Richard Briffault, a law professor at Columbia.
“It underscores the importance of Alito’s replacement of O’Connor.”
Justice Sandra Day O’Connor, who retired in 2006, was a co-author of
the 2003 decision that upheld the major provisions of the
Justice John Paul Stevens, joined by Justices Stephen G. Breyer, Ruth
Bader Ginsburg and David H. Souter, dissented, saying that both
“reducing the importance of wealth as a criterion for public office and
countering the perception that seats in the United States Congress are
available for purchase by the wealthiest bidder” offered valid
justifications for the amendment.
“The millionaire’s amendment quiets no speech at all,” Justice Stevens
wrote. “On the contrary, it does no more than assist the opponent of a
self-funding candidate in his attempts to make his voice heard; this
amplification in no way mutes the voice of the millionaire, who remains
able to speak as loud and as long as he likes in support of his
Richard H. Pildes, a law professor at New York University, said the
result in Thursday’s decision was correct. “It’s deeply dangerous for
Congress to change the ground rules for individual races based on a
judgment about what’s fair,” he said.
More broadly, Professor Pildes said, “the opinion is written in a way
that portends an unsympathetic response to campaign finance regulations
to go anywhere beyond the existing structure.”