U.S. Supreme Court News & Views Fall 2006

December 2006

The Supreme Court Smacks the Ninth
And the Los Angeles Times smacks them again.
By Jack Dunphy

12-19-06 --On a Supreme Court as ideologically divided as this one, unanimous decisions are few and far between. But when the Court does review a case that brings all nine justices into accord, when even Antonin Scalia and Ruth Bader Ginsburg can find common cause, it’s a safe bet the case in question was sent up from the Court of Appeals for the Ninth Circuit. Last Monday, the Court handed down one such opinion, a back-of-the-hand slap at the Ninth Circuit, with its ruling in Carey, Warden v. Musladin. . . . The facts of the case are simple, as laid out in Justice Clarence Thomas’s opinion: . . . On May 13, 1994, respondent Mathew Musladin shot and killed Tom Studer outside the home of Musladin's estranged wife, Pamela. At trial, Musladin admitted that he killed Studer but argued that he did so in self-defense. A California jury rejected Musladin's self-defense argument and convicted him of first-degree murder and three related offenses. . . . Had Musladin’s contented himself with shooting Studer only once, his claim of self-defense might not have been so laughable. But evidence presented at trial showed that Studer, after being shot once in the back, ran to a garage and attempted to hide under a car. Musladin followed him and fired again, with the bullet ricocheting off the ground and hitting Studer in the head, killing him. Musladin then kicked in the door of the house and pointed the gun at another man but did not shoot him. He was stopped by police and arrested while fleeing the scene of the crime.

Supreme farce: Part II

By Thomas Sowell

12-17-06 --From time to time, the Supreme Court of the United States makes a decision that causes anger or outrage, but that reaction usually passes with time, especially since there is nothing the public can do about it -- either to change the decision or to remove from the bench those who made it.  . . . This has emboldened many federal judges at all levels to take advantage of their lifetime appointments to make rulings that impose their own personal views and call it law. Some have even added insult to injury by rationalizing such judicial activism. . . . In a recent interview, Justice Stephen Breyer claimed laws are "not clear," so judges are forced to base their decisions on the "values" they see behind the laws, rather than the specific words in those laws. "Not clear" is an old ploy, and "values" are a blank check. . . . Most of the controversial Supreme Court decisions that have outraged and polarized the country have not involved laws or facts that were "not clear." Everybody knows what an abortion is and what the death penalty is. . . . Everybody knows the difference between government's power to seize private property for "public use," like building a reservoir or a bridge, and allowing politicians to grab people's homes willy-nilly, in order to turn the property over to some other private parties, such as owners of casinos, hotels or shopping malls.

Scalia Speaks in Ames, Scolds Aggressive Student

Kelly Lynn Brown and Rebecca Agule

12-11-06 -- Supreme Court of the United States Justice Antonin Scalia, a 1960 graduate of Harvard Law School, spoke to a packed Ames Courtroom on Nov. 30. HLS Dean Elena Kagan gave opening remarks, and moderated the discussion as Scalia fielded questions from both students and professors. . . . Asked by Kagan about his previous declarations of support for the "dead" Constitution, Scalia smiled. "I can package it better than that," he said. "I call it the enduring Constitution." . . . Scalia went on to compare the Constitution to other legal documents, and to statutes, both of which, he said, do not change in their meaning over time. . . . Professor Bruce Ackerman, who offered a Wendell Holmes Lecture Series this fall called "The Living Constitution," asked Scalia why the justice does not see his task as interpreting the meaning of the words in the Constitution as they are understood today. Scalia again emphasized that ordinary statutes are not reinterpreted as time passes, but that Congress must respond with legislative action to changing times and meanings. . . . The most tense moment of the discussion arose when a student challenged Scalia about Massachusetts v. EPA, a landmark environmental case which had been argued before the Supreme Court on Nov. 29, the day before Scalia's appearance at HLS. The lawsuit was brought by twelve states and several cities of the United States against the U.S. Environmental Protection Agency, alleging that the EPA was required to regulate carbon dioxide as a greenhouse gas pollutant.

Justice Breyer Finally Concedes Judicial Activism

Opinion by CFIF.ORG

12-08-06 -- It turns out that your worst suspicions regarding activist judges are true. 

In a remarkably revealing interview on "Fox News Sunday with Chris Wallace," Supreme Court Justice Stephen Breyer finally conceded what liberal judges have attempted so relentlessly to deny:  that policy objectives guide his rulings.  . . . In his December 3, 2006 appearance, Justice Breyer baldly proclaimed that the Constitution's "text isn't clear."  As an example, he cited the First Amendment's seemingly-straightforward freedom of speech protections.  . . . To mere mortals, of course, the First Amendment's admonition that "Congress shall make no law ... abridging the freedom of speech, or of the press" seems abundantly clear.  . . . To the more enlightened Justice Breyer, however, the simple phrase "freedom of speech" is so equivocal that only elitist shamans such as he are capable of deciphering it for the rest of us:  . . . "The freedom of speech.  Do you know what it means?  Basically.  But you don't know its entire content, and it doesn't tell you itself.  Those words, 'the freedom of speech,' 'Congress shall pass no law abridging the freedom of speech.'  Neither they, nor the founders, nor those words tell you how to apply it to the Internet."  . . . Justice Breyer continues his convoluted explanation, rationalizing the McCain/Feingold campaign finance "reform" legislation:  . . . "When you get a case like that, you start to look to slogans to decide the case.  It won't work.  The First Amendment itself, 'the freedom of speech,' doesn't tell you the answer.  Nor does a slogan...  Because think about that First Amendment.  It was done, enacted, passed, to help our country of now 300 million citizens run free and fair elections. 

Conversation on the Constitution: Breyer v. Scalia II

Matt Bowman on the Constitutionally Correct Blog

12-07-06 -- Last night, for the second time in so many years, Justices Scalia and Breyer went toe-to-toe over U.S. Constitution.  This latest “Conversation on the Constitution” was moderated in Washington, D.C. by Jan Crawford Greenburg of ABC News, who did a commendable job of getting Breyer to answer questions directly (Scalia needs no such help), and guiding the justices to respond to one another.  The event clarified the difference between Breyer’s and Scalia’s approaches to interpreting our Founding document.  . . . Breyer emphasized the uncertainty of important constitutional provisions, and described a justice’s role in deciding cases as one of identifying the larger “purpose” and underlying “value” of the provisions, and then “pragmatically” working toward that goal.  Breyer went out of his way to describe justices who use his approach as being in the mainstream.  He repeatedly emphasized that it is the Court’s job to interpret the Constitution “at the boundaries,” and how very difficult a job it is (calling to mind YouTube videos of President Bush repeating how Iraq is “hard work!”). 

O'Connor Connects Court Critics to Cookie Caper

By Jan LaRue, Chief Counsel

12-07-06 -- O'Connor's viewpoint discrimination shows why "hate crime" laws are a bad idea. . . . When Justice Sandra Day O'Connor retired from the Supreme Court, we wished her well riding the range on her Arizona ranch. So far, she's been riding herd against "threats to the judiciary" on the media/academia circuit. O'Connor says "we must be more vigilant in making sure that criticism does not cross over into intimidation." (Sandra Day O'Connor, "The Threat to Judicial Independence," Wall Street Journal, Sept. 27, 2006, p. A18.). Anybody feel the chill in the air?  . . . Too many people who've been hog-tied to a "hate crime" prosecution for merely expressing an opinion have learned the hard way that one man's criticism is another man's "intimidation." . . . If O'Connor limited her concerns to cases in which someone made a threat of physical harm to a judge, every reasonable person would champion her cause. Such conduct is indefensible. . . . The trouble is, each time O'Connor speaks or writes about "threats," she combines examples of physical threats with examples of protected speech and political action directed at "judicial activists." You get the feeling you're being told to get outta Dodge. . . . When it comes to speech critical of judicial opinions, dissenters on the Court often make the rest of us sound like the Pillsbury Dough Boy. Apparently, O'Connor thinks it's only safe to blow off steam while robed in black.  

Supreme Court Justice Stephen Breyer Refuses to Discuss Abortion

by Steven Ertelt, LifeNews.com Editor

12-07-06 -- Supreme Court Justice Stephen Breyer, who has voted to uphold the Roe decision that legalized abortions, refused to talk about the contentious issue during a weekend interview. Breyer's interview with "FOX News Sunday" host Chris Wallace was the first interview with a Supreme Court judge in that program's history. . . . Breyer appeared on the show to discuss his recent book, "Active Liberty," but when Wallace asked him a question about abortion, the justice refused to answer. . . . Wallace said that one of the reasons abortion has been such a hotly contested issue is that the courts took away the decision-making process from legislatures to determine if and when abortion should be legal. . . . "Well, I purposely chose my examples in this book to illustrate a theme. And I didn't choose abortion as one of them," Breyer said. . . . "Because more important to me in writing a book — I mean, I'll decide abortion cases when they come up, but I know perfectly well that anything I say on that subject is enormously volatile," he added. "And so, I don't want to talk about that subject, particularly in a public forum that isn't the court." . . . Wallace tried to ask a different question and Breyer interjected: "No, not any question to do with abortion. I go back to book." . . . After a short exchange, Wallace went back to the issue of abortion and asked Breyer to discuss Supreme Court precedent. He told the pro-abortion justice abortion how abortion advocates say Roe v. Wade has been "settled law" for over 30 years even though the high court has overturned longer precedents -- such as the 60 year-old Plessy v. Ferguson case.

Stephen Breyer, A First-Class Grind
Matthew J. Franck

12/5/2006 -- Like Jon Adler, I missed watching Justice Stephen Breyer being interviewed by Chris Wallace yesterday on Fox News Sunday.  But reading the transcript, I can’t say there was much to miss.  Try as he might, Chris Wallace could not elicit much from Justice Breyer except vacuous pronunciamentoes about how very “complex” it is to interpret the Constitution, and patronizingly schoolmarmish lessons that the justice presumed to teach his interviewer.  I would use this interview with my students, except that I’d run the risk of decreasing their knowledge of constitutional interpretation thereby.  This is especially the case when Breyer endorses the 1992 Casey opinion of O’Connor, Kennedy, and Souter as a fine place to go for understanding the role of precedents in constitutional jurisprudence.  That’s a source that is bound to make any students dumber on that subject. . . . Maybe he is warmer and more engaging on camera, but on paper his answers make Breyer come across as a bore, a grind, and rather dodgy.  He even seems not to notice when he effectively contradicts himself.  Early in the interview, Wallace asks him, “when a judge takes it upon himself to interpret what purpose the founders, the framers meant when they put something in the Constitution, doesn't that allow them, a judge, to do almost anything?” 

More Disorder in the Court?

If there's a Supreme Court vacancy, the Democrats will have a lot to say about it

By Liz Halloran

12-03-06 -- (Just days before last month's elections, a conservative weekly's website suggested that a member of the U.S. Supreme Court was gravely ill and that friends had been asked to pray for 86-year-old Justice John Paul Stevens. . . . Such rumors are normally "too ghoulish to repeat publicly," wrote Sean Rushton on HumanEvents.com. But with control of the Senate at stake, it is "news that should be considered," he said, even if it's unfounded. . . . That get-out-the-vote effort stuck out even in a campaign full of cynical appeals. Today, nearly a month after Democrats won both houses of Congress, the Stevens scuttlebutt remains uncorroborated–the senior justice has participated fully in recent arguments, as has Justice Ruth Bader Ginsburg, 73, who's also been the subject of rumors of poor health. But the effort by Rushton, former director of a conservative group devoted to winning approval of White House judicial nominations, underscored the right wing's investment in the issue of high court nominees. With newly powerful Democrats like New York Sen. Charles Schumer of the Judiciary Committee vowing an end to "the days of hard-right judges," the nominee game has become far more complicated.

View the video of Justice Stephen G. Breyer's appearance yesterday on
FOX News Sunday: You can view the video online by clicking here.

November 2006

The Great Property-Rights Revival
Americans are rebelling against eminent-domain abuse.
By Timothy Sandefur

11-27-06 -- Election Day revealed some of America’s deepest political differences, and marked an important change in the nation’s direction. But there was one issue on which Americans were strongly united: They overwhelmingly demanded restrictions on the government’s power of eminent domain. . . . In a powerful response to last year’s Supreme Court decision in Kelo v. New London, voters approved nine state-ballot initiatives prohibiting the seizure of homes and businesses for private development. These initiatives — in Florida, New Hampshire, Arizona, and Michigan — won in a landslide, with a nationwide average of some 75 percent in favor. Louisiana passed a similar initiative in October. . . . Only two eminent-domain initiatives — in California and Idaho — failed. California’s came within a few percentage points of succeeding, despite the powerful opposition of government and wealthy interest groups.

Vaunted Legal Scholar Switches Sides in Supreme Court Patent Case

Stanford's Mark Lemley decides the current 'obviousness' standards may be fine after all

Xenia P. Kobylarz, IP Law & Business

One of the nation's top legal scholars on intellectual property has switched sides in a U.S. Supreme Court case that could decide how patents are granted. . . . Mark Lemley, a Stanford University professor and of counsel at Keker & Van Nest in San Francisco, initially asked the high court to hear KSR International Co. v. Teleflex Inc. But then, in October, Lemley filed a brief asking the Court to take no action in the case, which is scheduled for oral argument on Tuesday. . . . Lemley has already landed on the winning side of two high court patent fights this year. He filed an amicus brief supporting eBay Inc., which won its closely watched battle against MercExchange LLC in May. The next month he represented the defendant in LabCorp. v. Metabolite, persuading the Court to punt the case -- after it had already granted certiorari -- because of a procedural issue. His move in the current case could be a big boost to Teleflex, whose patent on an electronic gas pedal KSR is seeking to invalidate.

Justice Recalls Treats Laced With Poison

By Linda Greenhouse

11-17-06 -- A discussion of recent threats to judges’ safety, at a bar association conference in suburban Dallas last week, became startlingly specific when Sandra Day O’Connor, the retired Supreme Court justice, recounted that each justice had received in the mail “a wonderful package of home-baked cookies” that contained “enough poison to kill the entire membership of the court.” . . . Justice O’Connor’s remarks were reported on Thursday in The Star-Telegram in Fort Worth. . . . Although the episode was not publicly disclosed when it occurred in April 2005, it had a public, although little-noticed, denouement last month when the sender of the poisoned cookies was sentenced in federal court here to 15 years in prison. . . . The sender, Barbara Joan March of Bridgeport, Conn., pleaded guilty to 14 counts of “mailing injurious articles.” The 14 recipients included the nine justices; the chiefs of staff of the Army, Navy, and Air Force; and the director and deputy director of the Federal Bureau of Investigation. The packages, containing either candy or baked goods, were laced with rat poison. . . . All mail received at the Supreme Court is screened, and the tainted packages never reached the justices, said Kathleen Arberg, the court’s public information officer. The danger posed by the packages was immediately apparent. Each contained a typewritten letter stating either, “I am going to kill you,” or, “We are going to kill you,” and adding, “This is poisoned.”

The High Court Goes Courting

Supreme Court justices talk to the media in self-defense.

By Dahlia Lithwick

11-15-06 -- Justice John Roberts is the Dr. McDreamy of the federal bench. If you doubt that, check out his performance last night on Nightline. Before 3,000 spectators at the University of Miami, Roberts proved that his whole sweet/funny/smart/humble thing at last year's televised confirmation hearings was just foreplay. Not only is the new chief justice unafraid of the media spotlight, he—perhaps alone among his Supreme Court colleagues—has figured out how to use it to his advantage. . . . Unlike Justice David Souter, who loathes the cameras to the point of some kind of pathology, Roberts embraces the lens, which adores him right back. Unlike Justice Clarence Thomas, whose view of all media is—perhaps understandably—constrained by an us/them isolationism, and unlike Justice Antonin Scalia, whose prickly contempt for the media keeps crashing head-on with his desire to have a voice in the broader national conversation about the law, only the chief understands the whole honey/vinegar problem. . . . Roberts alone recognizes that the media are better friends than enemies. He sees that the press can be gamed to disseminate a view of judging and the judiciary, and the clarity and effectiveness of his message is indisputable.

The Rumor About John Paul Stevens

by Sean Rushton

11-04-06 -- For weeks, commentators have speculated that significant numbers of conservatives, alienated by over-spending, the Iraq War, and other perceived GOP disappointments, will stay home on Election Day, giving one or both Houses of Congress to Democrats. But for those who care about reforming the Supreme Court, sitting this one out may soon look like a mistake of historic proportions. . ..  For the past several weeks, there has been a rumor circulating among high-level officials in Washington, D.C., that a member of the U.S. Supreme Court has received grave medical news and will announce his or her retirement by year’s end. While such rumors are not unusual in the nation’s capital, this one comes from credible sources. Additionally, a less credible but still noteworthy post last week at the liberal Democratic Underground blog says, “Send your good vibes to Justice Stevens. I just got off the phone with a friend of his family and right now he is very ill and at 86 years old that is not good.”

October 2006

Sometimes Judges Need Editors
Matthew J. Franck

10-20-06 -- James Taranto of OpinionJournal, in his Best of the Web column today (see the final item) comments on an amusing article that appeared in Legal Times regarding the silent feud that rages beneath the placid surface of the Supreme Court about when to add an “s” after the apostrophe when forming a possessive of a noun that ends in “s.”  I’m with the author, attorney Jonathan Starble: count me in the camp of Justice Souter on this one, not Justice Thomas. . . . I’ve been editing Supreme Court opinions for years, just for my students (because I can’t stand either the cost or the editing of commercial casebooks), and for most of that time I have been silently correcting the justices who get this wrong.  The late Chief Justice Rehnquist was one of the worst offenders, believing wrongly that the possessive of the proper noun “Congress” takes an apostrophe with no “s” added. . . . Taranto reports an incoherent Wall Street Journal stylebook rule about whether a syllable is accented or not.  Where that idea came from is anybody’s guess.  If you want an authority, try Strunk and White’s Elements of Style, where this is literally the first rule in the book: “Form the possessive singular of nouns by adding ’s.  Follow this rule whatever the final consonant.”  A very, very few exceptions are admitted.  And the sainted H.W. Fowler concurs, in his 1926 A Dictionary of Modern English Usage (avoid all subsequent editions and “American” usage guides), insisting on the “s” except “[i]n verse, & in poetic or reverential contexts.”

ACLU Brings Scalia Out of the Judicial Cloister

By Josh Gerstein - Staff Reporter of the Sun

10-16-06 -- In a move signaling the erosion of the judicial cloister, Justice Scalia sparred publicly yesterday with the president of the American Civil Liberties Union at a Washington conference hosted by the famously litigious liberal group. . . . During the hour-long debate with the ACLU official, Nadine Strossen, the dean of the Supreme Court's conservative wing warned that the notion of an "evolving" Constitution, which the group favors, was as likely to undermine individual liberties as it was to promote them. . . . "We don't always get better and better. Sometimes we get worse and the purpose of the Bill of Rights was to prevent that," Justice Scalia said. . . . Ms. Strossen suggested that the general trend of American history has been "toward more and more freedom and equality for more people." . . . "Where is that one-way street, Nadine?" Justice Scalia shot back. "Where does it say the only way the Constitution, the Bill of Rights can evolve is in the direction of more freedom? It doesn't say that anywhere. And you will find that it has evolved in both directions." . . . Justice Scalia said a day will come when ACLU members will wish they had taken refuge in the doctrine of originalism, which he espouses. The doctrine calls for interpreting the Constitution based on the intent of the founders and of those who drafted constitutional amendments.

September 2006

Sandy Plays Joan of Arc
Matthew J. Franck – Bench Memo Blog

9-27-06 -- Speaking of failures of imagination, the Wall Street Journal runs an op-ed today (subscribers only) by Sandra Day O’Connor, for whose retirement from the Supreme Court I will be eternally grateful.  Leading with the scary prospect that the voters of South Dakota might pass an *** amendment to their state constitution that would eliminate the official immunity of judges where their rulings are concerned, O’Connor launches into a more general diatribe against any and all critics of “activist judges” (scare quotes hers).  Alerting her readers that “the breadth and intensity of rage currently being leveled at the judiciary may be unmatched in American history,” she comes out swinging for the unqualifed virtues of an “independent judiciary” (my scare quotes this time!). . . . Oh, please.  I can agree with O’Connor that we should “mak[e] sure that criticism does not cross over into intimidation,” if by that we mean the kind of personal intimidation that involves threats to judges’ lives and families.  But the federal judiciary at least is long overdue for some institutional intimidation, of the kind that responsibly, calmly, but firmly reminds the judges that the Constitution is not their plaything but the precious property of the American people. 

Roberts and Alito Stay in the Cert Pool

Tony Mauro, Legal Times

9-26-06 -- As they enter their second term, the Supreme Court's two newest justices have decided, at least temporarily, to stick with the Court's clerk-pooling arrangement, despite concerns that it gives law clerks too much power. . . . In brief interviews in recent weeks, both Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. said they will stay in the "cert pool," as it is called, for the current term. . . . Roberts said he will participate on a "year-to-year basis," and Alito said the same; both indicated they are still weighing the issues that have been raised. But Alito said that during his first term it was apparent to him that certiorari petitions need to be read closely to determine if they are worth granting -- suggesting some need for pooling the workload. . . . The arrangement, devised in 1972, radically changed what happens when a petition for review or certiorari comes in to the Court. Instead of being reviewed separately by nine clerks and/or nine justices, it is scrutinized for the pool, presumably in greater depth, by one clerk, who then writes a memo for all the justices in the pool.

High Court to Provide Same-Day Argument Transcripts Online

Tony Mauro, Legal Times

9-15-06 -- Starting in October you won't have to be inside the marble chamber of the Supreme Court to gain a same-day understanding of the thrust and parry of a particular oral argument. . . . The Court announced Thursday that it will be posting on its Web site the transcripts of oral arguments on the same day they occur -- far faster than the previous practice of releasing them up to two weeks afterward. . . . The may seem like a small step that falls well short of opening the Court to television or radio broadcasting. But announcement at an institution that still hands out quill pens to lawyers who argue before it, the change is significant. And access advocates hope it signals a new climate of openness under new Chief Justice John Roberts Jr. . . . "I am pleased to see that the Supreme Court has moved into the 1990s with its same-day release of oral-argument transcripts," says Northwestern University political science professor Jerry Goldman, who posts the audio of oral arguments on his online Oyez Project. "But reading a transcript is like reading a libretto. It's a poor substitute for the real performance. Surely better than nothing, but still inadequate for a pillar of American government."

July 2006

Trust Busters on the Supreme Court

by Richard A. Epstein

Richard Epstein is the James Parker Hall Distinguished Service Professor at the University of Chicago and adjunct scholar of the Cato Institute. He coauthored an amicus brief on behalf of Salim Hamdan and is author of How Progressives Rewrote the Constitution.

7-18-06 -- A huge chunk of the Supreme Court's work lies in interpreting the statutes and regulations that govern every nook of American life. In reading statutes, the justices oscillate uneasily between two inconsistent approaches. Sometimes they distill the meaning of a disputed provision by making their best independent judgment about its structure and function. So they slap down any government officials who exceed statutory powers. Alternatively, they lament the imprecision of language, doubt their own expertise about social and political complexities, and defer to whatever reading the official gives to the statute that empowers him. . . . It is instructive to ask how consistently the four conservative justices -- Roberts, Scalia, Thomas and Alito -- and their four liberal colleagues -- Stevens, Souter, Ginsburg and Breyer -- apply these approaches in the battle for supremacy, with Justice Kennedy frequently the swing voter. Answer: not at all. In principle, it would nice if both sides of the ideological spectrum displayed a sound and consistent position on statutory construction. Unfortunately, each bloc is opportunistic. The litmus test for this erratic behavior boils down to a factor not found in any statute: trust.

VERMONT  

Vermont judge rejects U.S. Supreme Court search ruling

7-11-06 -- A Vermont District Court judge has rejected a recent U.S. Supreme Court ruling on the power of police to search a private home, concluding that the state offers greater protections in such cases. . . . Judge Robert Bent said that under the state Constitution police must knock and announce themselves before conducting a search, even if they have a warrant, or face the prospect that any evidence they find could be thrown out. . . . The Supreme Court said June 15 that evidence obtained without first knocking could be used at trial, but Bent said that would not apply in Vermont. . . . "Evidence obtained in violation of the Vermont Constitution, or as the result of a violation, cannot be admitted at trial as a matter of state law," Bent wrote, citing an earlier state case as precedent. "Introduction of such evidence at trial eviscerates our most sacred rights, impinges on individual privacy, perverts our judicial process, distorts any notion of fairness and encourages official misconduct."

Crazy Law

The Supreme Court beats up on the insanity defense.

By Emily Bazelon

7-7-06 -- The psychiatrists who testified in the case of Eric Clark agreed that he was a paranoid schizophrenic, and actively psychotic, when he shot and killed a police officer in Flagstaff, Ariz. Clark had previously been hospitalized for his mental illness. After his release, he retreated to one room in his house, rigged up a fishing line with beads and wind chimes to warn of intruders, and said that aliens were trying to capture and kill him. In the two days before the shooting, which took place in 2000 when he was 17, his parents frantically—and fruitlessly—called mental-health facilities and a lawyer in an effort to get him recommitted. . . . Yet the Arizona courts found that Clark "intentionally or knowingly" killed a police officer, convicted him of first-degree murder, and sentenced him to 25 years to life. Last week, the Supreme Court affirmed his conviction. The justices rejected the argument that Clark's right to a fair trial was violated because he wasn't allowed to offer evidence of his mental illness to counter the state's claim that he had killed the officer knowingly and on purpose.

No Bad Executions?

EDITORIAL

Justice Scalia should study these death penalty cases.

7-5-06 -- IN HIS INTEMPERATE concurrence to a decision on capital punishment last week, Justice Antonin Scalia made a remarkable claim: "One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. . . . But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum." Justice Scalia sneered that those "ideologically driven to ferret out and proclaim a mistaken modern execution" have been unable to find "a single verifiable case to point to." . . . The justice's remark could not have been more ill-timed. It came in the midst of a remarkable series by the Chicago Tribune casting grave doubt on the guilt of a man executed in Texas in 1989, Carlos De Luna. The state executed Mr. De Luna for the stabbing death of a gas station clerk in 1983, and the condemned went to his death proclaiming his innocence. From the beginning, he named an acquaintance, Carlos Hernandez, as the killer. According to the Tribune, friends and family of Mr. Hernandez, a violent felon who died in prison in 1999, have now come forward to say he boasted of the crime and of letting Mr. De Luna take the fall for it. The Tribune's investigation calls into question the eyewitness evidence presented at trial. It shows how leads concerning Mr. Hernandez were not followed up.

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Liberty and Justices for Al-Qaeda

By Patrick Poole, FrontPageMagazine.com |

7-5-06 -- The Supreme Court’s 5-3 ruling last week in Hamdan v. Rumsfeld, which struck down the Defense Department’s planned military tribunals for the enemy combatants held at Guantanamo Bay, should remind Americans that the most direct threat to our civil liberties doesn’t come from an imperial presidency or runaway Congress, but from the unelected, appointed-for-life philosopher kings of the federal judiciary. The Court’s majority in Hamdan was comprised of Justices Stevens, Breyer, Souter, Ginsberg, and (in part) Kennedy. Justices Scalia, Thomas, and Alito dissented. Chief Justice Roberts recused himself from the case as he was one of the D.C. Circuit judges who ruled on the matter before he was elevated to the High Court. . . . The Hamdan decision very well may go down in history as the turning point at which the executive and legislative branches began to curb judicial power by limiting judges from making public policy in the Global War on Terror, or when Supreme Court majorities began directing the military in violation of the checks and balances established in the US Constitution. This decision is nothing short of a grab for raw judicial power, but don’t expect the ACLU or any Leftist legal outfits decrying the Court’s move.

War, piracy, al Qaeda and the US Supreme Court

Mary Mostert

7-4-06 -- Last week, eight of the US Supreme Court Justices released six different opinions concerning Hamdan v. Rumsfeld, Secretary of Defense. Justice Stevens begins the majority opinion with: "Salim Ahmed Hamdan, a Yemeni national, is in custody at an American prison in Guantanamo Bay, Cuba. In November 2001, during hostilities between the United States and the Taliban (which then governed Afghanistan), Hamdan was captured by militia forces and turned over to the U. S. military." . . . One would think, with that opening, that what we are dealing with here is an enemy combatant — either in the form of an alien soldier or a pirate. This nation's earliest problems with aliens after all, even before the Constitution was written in 1787, was in 1786 when Barbary Coast pirates were seizing American ships and killed, sold into slavery or ransomed American sailors. In fact, it was the problem of pirates, which we call "terrorists" today, that prompted Thomas Jefferson, who generally opposed a strong federal government, to begin to talk about the need for a Navy and to oppose the common practice of other nations to pay ransom to the pirates to protect their ships. .. . . Jefferson was the minister to France under the Articles of Confederation, which did not provide for either an executive branch of government or a federal judiciary. In 1785, he wrote in his autobiography that he unsuccessfully "endeavored to form an association of the powers subject to habitual depredation from them.

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The Hamdan majority: Rewarding barbarity

David Limbaugh -- © 2006 Creators Syndicate Inc.

7-4-06 -- The best explanation for the Supreme Court's holding that a military tribunal lacks jurisdiction to try suspected terrorist Salim Ahmed Hamdan is not to be found in the Constitution or the cases interpreting it, or in the Court's interpretation of congressional legislation, but in extrajudicial factors. . . . The Court lacked jurisdiction to hear Hamdan's appeal, but once assuming jurisdiction, it ruled incorrectly that the Geneva Conventions apply to his case. The Court strained, in the first instance, to inject itself in this matter, despite the clear intent of Congress to deprive it of jurisdiction, and it strained to grant Hamdan, a suspected al-Qaida member, Geneva Convention protections. . . . Such an unwarranted assumption of jurisdiction by the Court, coupled with its bending over backward to treat a suspected civilian-killing terrorist the protections guaranteed to bona-fide soldiers of Geneva signatories, can only be explained by the psychology of the court's majority. . . . When learning of this decision, I was reminded of the words of Justice Antonin Scalia in a speech on the growing (and disturbing) influence of international law on our Supreme Court jurisprudence. Scalia's words, even more than his brilliant dissent in this case, contain the key to understanding the mindset of the Hamdan majority.

Read the U.S. Supreme Court Decision
 http://laws.findlaw.com/us/000/05-184.html

Justice Thomas on presidential and judicial power: right again!

Michael Gaynor

7-3-06 -- To be sure, the Bush-bashing media is ecstatic about the United States Supreme Court majority opinion interfering with President Bush's conduct of the War on Terror and, ironically, accusing President Bush of exceeding his authority as President and Commander-in-Chief. It was fine for President Roosevelt to set up detention camps for Americans of Japanese ancestry after Pearl Harbor, but President Bush establishing military tribunals for the Guantanamo detainees is an abuse of presidential power. Amazing! . . . Justice Clarence Thomas not only issued a superb dissent dissecting and debunking the majority decision (which reversing, 5 to 3, a sound decision of the United States Court of Appeals for the District of Columbia), but read it from the bench! (Reading from the bench is a practice in which Justice Thomas previously had not indulged during his many years on America's highest court. Americans should take notice and Americans rightly concerned about the threat to America posed by out-of-control judicial activists who have the temerity to abuse their judicial power by asserting that the President of the United States has abused his power as President and Commander-in-Chief during the War on Terror should be especially grateful for Justice Thomas' outstanding public service, of which his dissenting opinion is an extraordinary example.

June 30, 2006

Supreme Court Invalidates Guantanamo Detainee Tribunals

Stevens writes 5-3 opinion; Scalia and Thomas read angry dissents from the bench

Tony Mauro and Jason McLure, Legal Times

In a remarkable repudiation of the Bush administration's exercise of power in the war on terror, the Supreme Court on Thursday ruled that the military commissions established to try Guantanamo Bay, Cuba, detainees violate both U.S. law and the Geneva Conventions. . . . Handed down on the final day of the Court's term, the 5-3 decision could affect government policies beyond Guantanamo, jeopardizing U.S. interrogation techniques used on detainees and prisoners, which human rights groups say also violate the Geneva Conventions on the treatment of war prisoners. . . . Ruling in the long-awaited case of Hamdan v. Rumsfeld, the Court also rejected the Bush administration's contention that Congress had stripped the Court of jurisdiction over detainee appeals in a law it passed last December. That law, the Detainee Treatment Act, does not apply to cases pending when it passed, the high court said.

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A Bad Day For Innocents, A Trap For Demagogues

Wizbang Politics

Where to begin, to rebuke a Supreme Court Justice or four? In short, the High Court - as in they must have been on something to pass this absurd judgment - decided to overturn a District Court which had refused Habeus Corpus to an Al Qaeda terrorist. Monsters, weasels, and Democrats all cheered the verdict, which means that it will be that much tougher to keep terrorists incarcerated when they are caught. Personally, I would hope the Military adjusts the Rules of Engagement to simply take few prisoners when fired upon by them. If effective incarceration is less likely, then incineration should become more likely. . . . Apparently, the Supreme Court has watched enough Television to become fooled into believing that Al Qaeda terrorists are somehow just like American citizens; certainly the High Court raised the bar on their expectation of standards. Never mind the history of armed conflicts - which have extensively used military tribunals - or even the Geneva Accords, which while not really applicable to non-uniformed non-national government, non-soldier terrorists, nonethless specifically required military courts (Chapter III, Article 84); nope, the US Supreme Court has once again set up new rights for people trying to murder Americans, even as it scolds the Executive Branch for allegedly trying to "legislate".

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A Bad Decision

In the Hamdan case, the lower appellate court — with Judge John Roberts writing the decision — was correct and the Supreme Court mistaken. . . . The court ruled 5-3 Thursday that President Bush could not order military war tribunals for Guantanamo Bay detainees. Justice Anthony Kennedy joined with the four liberal members of the court to declare such trials illegal under American law. . . . Judge Roberts — because he had ruled previously on the case at the appellate level — recused himself from the ruling. . . . In reacting to the decision, President Bush said he will work with Congress to get approval for the tribunals. Frankly, the administration does not have to try any of the inmates at Gitmo. Akin to prisoners of war, the inmates can be held until the end of the conflict, without judicial proceedings. In fact, even the court’s majority opinion stated, “It bears emphasizing that Hamdan does not challenge and we do not  today address the government’s power to detain him for the duration of hostilities in order to prevent harm.” . . . Since the detention is not challenged, the government should simply keep the inmates in prison until the terrorism war is won. . . . Justice Clarence Thomas noted, in a strongly-worded dissent, the decision would “sorely hamper the president’s ability to confront and defeat a new and deadly enemy.” He also called the court’s decision “unprecedented and dangerous.”

Read the U.S. Supreme Court Decision
 http://laws.findlaw.com/us/000/05-184.html

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Supreme Court Upholds Arizona Insanity Law

Toni Locy, The Associated Press

The Supreme Court ruled Thursday that Arizona's law on the insanity defense is not too restrictive in limiting evidence defendants can present at trial. . . . By a 6-3 vote, justices affirmed the murder conviction of Eric Clark, who thought he was being pursued by space aliens when he killed an Arizona police officer. Clark, a paranoid schizophrenic who was a teenager at the time, is serving 25 years to life in prison. . . . Under Arizona's law, defendants "may be found guilty except insane" if they prove they were so mentally ill that they did not know what they did was wrong. Many other states also allow insanity findings for defendants who can show they did not understand the nature of their criminal acts.

April  2006

Ex-judge shares take on the confirmation process in book

By Brenda Erickson, Register & Bee staff writer

If a fortuneteller had predicted for Judge Charles Pickering how his stalled nomination for the federal Fifth Circuit Court of Appeals would leave him stuck in the middle of a polarized America, Pickering probably would have passed up the opportunity to enter the fray. . . . “If I had known in advance, I probably would have declined the honor,” said the now-retired judge, who faced opposition from Democrats and dozens of special interest groups including the AFL-CIO, American Association of University Women, United Steelworkers of America and Planned Parenthood Federation of America when President George W. Bush nominated him to the position in 2002. . . . .The longtime judge, a conservative Republican from Mississippi, never anticipated the open hostility from Democrats during the confirmation hearings. . . . “I was totally surprised. I thought I would breeze through,” said Pickering, who shares his story in the book “Supreme Chaos: The Politics of Judicial Confirmation and the Culture War,” which he will discuss next week at Chatham Books. “I naively told people I was a non-controversial nominee.” . . . He was very wrong.

Not So Friendly Amici
Look who's filing Supreme Court briefs now.
by Daveed Gartenstein-Ross
CONSERVATIVE LEGAL SCHOLARS HAVE LONG warned that judges' reliance on foreign opinions might undermine the mechanism for setting domestic policy under the Constitution. Now, for the second time, a friend of the court brief has been submitted to the Supreme Court by foreign politicians in a case relating to detainees at Guantánamo, suggesting that constitutional control over foreign policy could be similarly jeopardized. . . . The case is Hamdan v. Rumsfeld, challenging the administration's military commissions for trying Guantánamo detainees. In the course of the litigation, a shifting group of "current and former members of the United Kingdom and European Union Parliaments" has filed a series of amicus briefs urging the Court to strike down the commissions. Although the original brief had 271 signatories, the number had ballooned to 422 by the time the Supreme Court decided to hear the case.

Scalia tells law students Constitution ‘cannot bend’

by Michael Kirk -

Joking that he goes to law schools to “make trouble,” U.S. Supreme Court Justice Antonin Scalia spoke out against what he called “judge-moralists” in an address on his judicial philosophy to 350 guests at the School of Law on April 12. . . . The talk was sponsored by the Hartford firm of Day, Berry and Howard, as well as the Connecticut Law Review. . . . Scalia taught two classes with UConn students the day before at the law school as a “Distinguished Scholar and Jurist in Residence.” . . . During the hour-long appearance, Scalia described himself as a constitutional “originalist,” based on his view that the Constitution is a rigid document that cannot bend to include new rights for Americans or to address social ills. . . . He criticized judges, including his own Supreme Court, for viewing it as a “living” document, which he said is a fairly new phenomenon.

SUPREME CHAOS: The Politics of Judicial Confirmation and the Culture War,

By Judge Charles Pickering,  220 pages
Chaos" is an odd word to use in the title of this book, for the book is not about chaos, but about a well-organized effort by the American left to achieve through the judicial process what seems to elude it at the ballot box or in Congress. That is, victory in what has come to be known as the culture war. . . . Charles Pickering, a U.S. District judge for the Southern District of Mississippi since 1990, was nominated by President Bush in May 2001 to the 5th Circuit Court of Appeals. . . . His nomination was blocked by Democrats in the Senate Judiciary Committee in 2002 and filibustered by them the next year. In early 2004, the president made him a recess appointee to the court, which meant he would have to leave the bench at the end of that year. He did. . . . Judge Pickering was one of several victims — that is the only word for it — of the liberals' concerted effort to prevent well-qualified conservatives from serving on the federal bench. The main organizers of the campaign against Judge Pickering were members of the Coalition for a Fair and Independent Judiciary, a collection of 70 left-wing organizations, such as People for the American Way, the American Civil Liberties Union, the Alliance for Justice and NARAL Pro-Choice America.

Scalia slams judicial activism in UConn speech

Andy Bromage, Register Staff

Supreme Court Justice Antonin Scalia said Wednesday that remaining on a case involving Vice President Dick Cheney after the two had been duck hunting together was the "proudest" thing he’s done on the bench. . . . Scalia revisited the 2003 Louisiana hunting controversy during a speech at the University of Connecticut School of Law. . . . The Supreme Court’s stalwart conservative made no apologies for hearing Cheney’s appeal involving lawsuits over the Bush administration’s secret energy task force strategy sessions. Cheney and Scalia are longtime friends.

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Scalia slammed judicial activism and the notion of a "living Constitution," asserting that judges "have no greater capacity than anyone else to determine what is moral." . . . The early-20th century was a period in which the public looked to political appointees as "experts" on a range of topics, Scalia told audience members. Now the public looks to judges for wisdom on whether abortion, execution and other practices should be allowed, he said. . . . "I am questioning the propriety, indeed the sanity, of having a value-laden decision made for the entire society by unelected judges," he said. "There are no scientifically demonstrable right answers to these questions, as opposed to answers that a particular society favors."

U.S. Supreme Court not for members only

EDITORIAL

4-11-06 -- Judge John G. Roberts Jr. told the nation during his televised hearings for a seat on the U.S. Supreme Court that he is open to the prospect of television cameras inside the nation's highest court. . .