supremect0809

THE U.S. SUPREME COURT 2008-2009

WE'VE HEARD OF BLIND JUSTICE, BUT LAME JUSTICE (or just lame humor)?
OK, now that the election is over, what is on the horizon - how about indecency, a couple on legal searches, bank regulation, voting rights, video links, forensic testimony (live) and ...air quality ruling by federal appeals court to Supreme Court soon?

U.S. SUPREME COURT 2008-2009: Members are, in alphabetical order (age in parenthesis*): Linda Greenhouse on the Court
Samuel Alito (58)
Stephen Breyer (70)
Ruth Bader Ginsberg (75)
Anthony Kennedy (72)
John Roberts (53)
Antonin Scalia (72)
David Souter (69)
John Paul Stevens (88)
Clarence Thomas (60)
----------------
And the "10th member" of the Court, in my opinion, the one who has made things clear for me thru the years, retires. Now on the faculty at Yale Law School, her post NYTIMES-employment comment here.

*= age by year of birth, as shown on the U.S. Supreme Court website.
**=nominee to replace Justise David Souter - commentary from the I-BBC.

Justices Rule Lab Analysts Must Testify on Results
NYTIMES
By ADAM LIPTAK
June 26, 2009

WASHINGTON — Crime laboratory reports may not be used against criminal defendants at trial unless the analysts responsible for creating them give testimony and subject themselves to cross-examination, the Supreme Court ruled Thursday in a 5-to-4 decision.

The ruling was an extension of a 2004 decision that breathed new life into the Sixth Amendment’s confrontation clause, which gives a criminal defendant the right “to be confronted with the witnesses against him.”

Four dissenting justices said that scientific evidence should be treated differently than, say, statements from witnesses to a crime. They warned that the decision would subject the nation’s criminal justice system to “a crushing burden” and that it means “guilty defendants will go free, on the most technical grounds.”

The two sides differed sharply about the practical consequences of requiring testimony from crime laboratory analysts. Justice Anthony M. Kennedy, writing for the four dissenters, said Philadelphia’s 18 drug analysts will now each be required to testify in more than 69 trials next year, and Cleveland’s six drug analysts in 117 trials each.

Noting that 500 employees of the Federal Bureau of Investigation laboratory in Quantico, Va., conduct more than a million scientific tests each year, Justice Kennedy wrote, “The court’s decision means that before any of those million tests reaches a jury, at least one of the laboratory’s analysts must board a plane, find his or her way to an unfamiliar courthouse and sit there waiting to read aloud notes made months ago.”

Justice Antonin Scalia, writing for the majority, scoffed at those “back-of-the-envelope calculations.”

In any event, he added, the court is not entitled to ignore even an unwise constitutional command for reasons of convenience.

“The confrontation clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination,” Justice Scalia wrote.

“The sky will not fall after today’s decision,” he added.

But that is not how prosecutors saw it. “It’s a train wreck,” Scott Burns, the executive director of the National District Attorneys Association, said of the decision.

“To now require that criminalists in offices and labs that are already burdened and in states where budgets are already being cut back,” Mr. Burns said, “to travel to courtrooms and wait to say that cocaine is cocaine — we’re still kind of reeling from this decision.”

Mr. Burns said complying with the ruling would be particularly tough in large rural states with a single crime laboratory and in old cases where the analyst has died or moved away.

The decision came in the wake of a wave of scandals at crime laboratories that included hundreds of tainted cases in Michigan, Texas and West Virginia. William C. Thompson, a professor of criminology at the University of California, Irvine, said those scandals proved that live testimony from analysts was needed to explore potential shortcomings in laboratory reports.

“The person can be interrogated about the process, about the meaning of the document,” Professor Thompson said. “The lab report itself cannot be interrogated to establish the strengths and limitations of the analysis.”

In February, the National Academy of Sciences issued a sweeping critique of the nation’s crime labs. It concluded, for instance, that forensic scientists for law enforcement agencies “sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.”

Cross-examination of witnesses, Justice Scalia wrote, “is designed to weed out not only the fraudulent analyst, but the incompetent one as well.” He added that the Constitution would require allowing defendants to confront witnesses even if “all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Teresa.”

The case arose from the conviction of Luis E. Melendez-Diaz on cocaine trafficking charges in Massachusetts. Part of the evidence against him was a laboratory report stating that bags of white powder said to have belonged to him contained cocaine. Prosecutors submitted the report with only an analyst’s certificate.

Jeffrey L. Fisher, a law professor at Stanford who represented Mr. Melendez-Diaz, said perhaps a third of all states follow procedures that comply with Thursday’s decision. What that will mean as a practical matter remains to be seen. Criminal defense lawyers may still stipulate that crime lab reports are accurate, fearing that live testimony will only underscore their clients’ guilt. Others may insist on testimony in the hope that the analyst will be unavailable. Still others will now be able to prove that an analyst’s conclusion was mistaken or inconclusive.

“The defense bar today gains the formidable power to require the government to transport the analyst to the courtroom at the time of trial,” Justice Kennedy wrote. The decision, Melendez-Diaz v. Massachusetts, No. 07-591, featured some unusual alliances. The two justices most closely associated with a commitment to following the original meaning of the Constitution, Justices Scalia and Clarence Thomas, were joined by three members of the court’s liberal wing, Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.

In addition to Justice Kennedy, the dissenters included two members of the court’s conservative wing, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., and the remaining liberal, Justice Stephen G. Breyer.

Justice Kennedy said the majority had upended 90 years of settled law from six federal appeals courts and courts in 35 states.

“The court’s holding,” Justice Kennedy wrote, “is a windfall to defendants, one that is unjustified by a demonstrated deficiency in trials, any well-understood historical requirement, or any established constitutional precedent.”

Free-Speech Case for a Debt-Ridden Age
NYTIMES
By ADAM LIPTAK
June 23, 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Other lawyers welcome the requirement.

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

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

Justices Let Stand a Central Provision of Voting Rights Act
NYTIMES
By DAVID STOUT
June 23, 2009

WASHINGTON — The Supreme Court on Monday let stand a central provision of the Voting Rights Act of 1965, declaring that there was no need at the moment to decide whether that provision was still constitutional in light of the fundamental changes that have swept across the South in recent decades.

In an 8-to-1 ruling in perhaps the most important case of its term, the court said that passing judgment on an act of Congress is “the gravest and most delicate duty that this court is called upon to perform,” and that it need not undertake that momentous duty at this time. But the court stated pointedly that “the act also differentiates between the states in ways that may no longer be justified.”

At stake was Section 5 of the act, which requires a number of states and many local governments, mostly in the South, to seek federal permission before changing their voting procedures. That section was reauthorized by Congress for 25 years in 2006, even though the lawmakers relied on practices that have all but disappeared and voting data from decades ago.

“The historic accomplishments of the Voting Rights Act are undeniable,” Chief Justice John G. Roberts Jr. wrote for the court. “When it was first passed, unconstitutional discrimination was rampant and the ‘registration of voting-age whites ran roughly 50 percentage points or more ahead’ of black registration in many covered states,” he noted, quoting from an earlier ruling involving the Voting Rights Act.

But while not striking down Section 5, the court ruled that a small Texas water district whose challenge to Section 5 led to Monday’s ruling — and by implication some other political units as well — should have an easier time applying for and obtaining exemption, or getting a “bail out,” from Section 5 provisions. So Monday’s ruling was a victory for the Northwest Austin Municipal Utility District Number One in its suit against the United States.

More important, the court noted: “Since 1982, only 17 jurisdictions — out of the more than 12,000 covered political subdivisions — have successfully bailed out of the act. It is unlikely that Congress intended the provision to have such limited effect.” Exactly which political units will be able to “bail out” of Section 5 will probably require detailed examination.

Only Justice Clarence Thomas dissented Monday, stating that he thought it inappropriate to sidestep the constitutional question in Northwest Austin Municipal District Number One v. Holder, No. 08-322, and that he thinks Section 5 is no longer constitutional.

When the case was argued on April 22, the questions posed by several justices hinted at a willingness to find Section 5 unconstitutional. But Chief Justice Roberts used language that every member of the court, including Justice Thomas in part, was able to embrace. Referring to the Voting Rights Act in its entirety, the chief justice wrote, “In part due to the success of that legislation, we are now a very different nation.”

Alaska, Alabama and Oklahoma - as well as Massachusetts - do not explicitly allow the testing of DNA.

Justices Rule Inmates Don’t Have Right to DNA Tests
NYTIMES
By DAVID STOUT
June 19, 2009

WASHINGTON — Convicts do not have a right under the Constitution to obtain DNA testing to try to prove their innocence after being found guilty, the Supreme Court ruled on Thursday.

In a 5-to-4 decision, the court found against William G. Osborne, a convicted rapist from Alaska. But the decision does not necessarily mean that many innocent prisoners will languish in their cells without access to DNA testing, since Alaska is one of only a few states without a law granting convicts at least some access to the new technology.

“DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty,” the majority conceded, in an opinion written by Chief Justice John G. Roberts Jr. “The availability of new DNA testing, however, cannot mean that every criminal conviction, or even every conviction involving biological evidence, is suddenly in doubt.”

In addition, the majority reasoned, it is not so much up to the federal courts as it is to the state legislatures to establish rules “to harness DNA’s power to prove innocence without unnecessarily overthrowing the established criminal justice system.”

The majority appeared to have been influenced by the fact that 46 states and the federal government have enacted laws that allow some inmates access to DNA testing, and there is nothing to prevent the remaining states from changing their laws. In addition to Alaska, Alabama, Massachusetts and Oklahoma do not explicitly allow the testing.

Justice John Paul Stevens wrote a dissent expressing his dismay that the majority had chosen to approve of Alaska’s denial of the evidence sought by the defendant. “The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise,” Justice Stevens said.

Since 1992, 238 people in the United States, some who were sitting on death row, have been exonerated of crimes through DNA testing. In many of those cases, the DNA testing used to clear them was not available at the time of the crime.

But several aspects of the Osborne case did not make the defendant a sympathetic one, so perhaps his case was not the ideal vehicle for those hoping that the nation’s highest court would find a constitutional right to “post-conviction” DNA testing — that is, after the normal appeals have been exhausted.

The victim in the Osborne case was a prostitute who was raped, beaten with an ax handle, shot in the head and left in a snow bank near Anchorage International Airport in 1993. She recalled that a condom was used in the assault against her, and one was found near the scene. An ax handle similar to the one used to club the victim was found in the defendant’s room.

The victim identified Mr. Osborne as one of her assailants, and he was also incriminated by another man who was found guilty in the attack.

Moreover, Mr. Osborne later confessed to the Alaska parole board, which released him after he had served 14 years of a 26-year prison term for kidnapping, assault and sexual assault. Later, the defendant said he confessed not because he was guilty, but in the hope of getting out of prison sooner. After his parole Mr. Osborne was convicted of a home invasion and is awaiting sentence for that crime.

Thursday’s ruling in District Attorney’s Office v. Osborne, No. 08-6, reversed a ruling by the United States Court of Appeals for the Ninth Circuit. Joining Chief Justice Roberts in the majority were Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

The dissenters, besides Justice Stevens, were Justices Ruth Bader Ginsburg, Stephen G. Breyer and David H. Souter.

A paradox in the case, at least to a layman, is the fact that Mr. Osborne’s lawyer at the time of the trial declined to pursue the most advanced DNA testing available — for fear, she acknowledged later, that it would prove his guilt.

Even though the latest DNA testing could unequivocally establish whether the defendant raped the prostitute, attorneys on both sides have sometimes spoken ambiguously, or at least without iron-clad clarity.

When the case was argued on March 2, Kenneth M. Rosenstein, an assistant state attorney general, said that an Alaska law governing post-conviction relief could allow Mr. Osborne access to DNA evidence if he would swear to his innocence.

But would he?

“I assume he certainly would,” said his lawyer, Peter Neufeld.

But Mr. Rosenstein declined to say whether the state would resist the defendant even if he did so swear.

Justice Scalia said he was struck by the absence of a full-throated declaration of innocence from the defendant, and quoted from a sworn statement Mr. Osborne had submitted to the state courts: “I have no doubt whatsoever that retesting of the condom will prove once and for all time...”

Here, Justice Scalia observed, a listener would expect to hear the words “my innocence.” But the defendant did not say that, saying instead “either my guilt or innocence.”

Mr. Neufeld, a co-founder of The Innocence Project, which works to free wrongly convicted prisoners, told The Associated Press on Thursday that he was disappointed with the ruling.

“There is no question that a small group of innocent people — and it is a small group — will languish in prison because they can’t get access to the evidence,” he said.

Which brings up CAMPAIGN FINANCE REFORM...was there “'a serious, objective risk of actual bias' that required Justice Benjamin to recuse himself...under the Fourteenth Amendment?"
Justices Tell Elected Judges Not to Rule on Major Backers
NYTIMES
By DAVID STOUT
June 9, 2009

WASHINGTON — In a closely watched case involving the confluence of justice, politics and money, the Supreme Court ruled for the first time that the Constitution can require an elected judge to step aside in a particular case based on campaign spending in state judicial races.

In a 5-to-4 decision released on Monday, the high court found that the circumstances surrounding Justice Brent D. Benjamin of the West Virginia Supreme Court and a lawsuit involving the Massey Energy Company, his major campaign contributor, were so “extreme” that there was no question that Justice Benjamin should have disqualified himself.

Because 39 states have legal systems in which judges are elected, the outcome of the West Virginia case has been eagerly awaited. But whether Monday’s decision will bring clarity or chaos to the state courts, or something in between, was a point of bitter disagreement between the high court’s majority and dissenters.

“The facts now before us are extreme by any measure,” Justice Anthony M. Kennedy wrote for the majority. “The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case.”

Justice Benjamin, who is now the chief justice on the West Virginia high court, twice joined 3-to-2 majorities to throw out a $50 million verdict against Massey Energy, which was involved in a long-running dispute with another coal company.

Since Massey’s chief executive, Don L. Blankenship, had spent $3 million in the 2004 campaign attacking a West Virginia justice who was seeking re-election, and since Brent Benjamin prevailed against the incumbent, eyebrows went up in West Virginia and in legal circles across the country as Justice Benjamin refused to remove himself from the case.

Justice Kennedy noted that no “quid pro quo” connection has been established between Mr. Blankenship’s campaign contributions, which dwarfed those of other donors in the judicial elections, and Justice Benjamin’s stance in the lawsuit. But there was “a serious, objective risk of actual bias” that required Justice Benjamin to recuse himself, or the plaintiff’s due process rights under the Fourteenth Amendment would be in danger, Justice Kennedy wrote.

Joining Justice Kennedy in Caperton v. A.T. Massey Coal Company, No. 08-22, were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Monday’s decision sends the case back to West Virginia for further proceedings.

Chief Justice John G. Roberts Jr. wrote a dissent in which he asserted that, contrary to the majority’s insistence, the outcome in Caperton v. Massey “will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be.”

“The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case,” the chief justice wrote, listing dozens of questions that he said the majority had raised without really answering, and that the lower courts will have to wrestle with. Joining the chief justice in dissent were Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

Justices Ease Rules on Questioning
NYTIMES
By THE ASSOCIATED PRESS
May 26, 2009Filed at 12:32 p.m. ET

WASHINGTON (AP) -- The Supreme Court on Tuesday overturned a long-standing ruling that stopped police from initiating questions unless a defendant's lawyer was present, a move that will make it easier for prosecutors to interrogate suspects.

The high court, in a 5-4 ruling, overturned the 1986 Michigan v. Jackson ruling, which said police may not initiate questioning of a defendant who has a lawyer or has asked for one unless the attorney is present. The Michigan ruling applied even to defendants who agreed to talk to the authorities without their lawyers.

The court's conservatives overturned that opinion, with Justice Antonin Scalia saying ''it was poorly reasoned.''

Under the Jackson opinion, police could not even ask a defendant who had been appointed a lawyer if he wanted to talk, Scalia said.

''It would be completely unjustified to presume that a defendant's consent to police-initiated interrogation was involuntary or coerced simply because he had previously been appointed a lawyer,'' Scalia said in the court's opinion.

Scalia, who read the opinion from the bench, said the decision will have ''minimal'' effects on criminal defendants because of the protections the court has provided in other decisions. ''The considerable adverse effect of this rule upon society's ability to solve crimes and bring criminals to justice far outweighs its capacity to prevent a genuinely coerced agreement to speak without counsel present,'' Scalia said.

The Michigan v. Jackson opinion was written by Justice John Paul Stevens, the only current justice who was on the court at the time. He and Justices David Souter, Stephen Breyer and Ruth Bader Ginsburg dissented from the ruling, and in an unusual move Stevens read his dissent aloud from the bench. It was the first time this term a justice had read a dissent aloud.

''The police interrogation in this case clearly violated petitioner's Sixth Amendment right to counsel,'' Stevens said. Overruling the Jackson case, he said, ''can only diminish the public's confidence in the reliability and fairness of our system of justice.''

The Obama administration had asked the court to overturn Michigan v. Jackson, disappointing civil rights and civil liberties groups that expected President Barack Obama to reverse the policies of his Republican predecessor, George W. Bush.

The Justice Department, in a brief signed by Solicitor General Elena Kagan, said the 1986 decision ''serves no real purpose'' and offers only ''meager benefits.'' The government said defendants who don't wish to talk to police don't have to and that officers must respect that decision. But it said there is no reason a defendant who wants to should not be able to respond to officers' questions.

Eleven states also echoed the administration's call to overrule the 1986 case.

The decision comes in the case of Jesse Jay Montejo, who was found guilty in 2005 of the shooting death of Louis Ferrari in the victim's home on Sept. 5, 2002.

Montejo was appointed a public defender at his Sept. 10, 2002 hearing, but never indicated that he wanted the lawyer's help. Montejo then went with police detectives to help them look for the murder weapon. While in the car, Montejo wrote a letter to Ferrari's widow incriminating himself.

When they returned to the prison, a public defender was waiting for Montejo, irate that his client had been questioned in his absence. Police used the letter against Montejo at trial, and he was convicted and sentenced to death. He appealed, but the Louisiana Supreme Court upheld the conviction and sentence.

The Supreme Court sent the case back for a determination of whether any of Montejo's other court-provided protections, like his Miranda rights, were violated.

The case is Montejo v. Louisiana, 07-1529.

Prior to the Sotomayor nomination, a suggested process...
And The Next Supreme Court Justice Award Goes To …
Hartford Courant
Raucous with Jim Shea
May 24, 2009

We need a new way to fill openings on the Supreme Court.

The current system works like this:

The president nominates someone to fill a vacancy. The opposition party engages in several months of high-profile character assassination. The senators engage in several weeks of high-profile grandstanding.
Everyone votes along party lines.

This process of raking a court nominee over the coals even has a name. It's called borking. Robert H. Bork, a 1987 Ronald Reagan Supreme Court candidate, is the man who put the Bork in borked. He was voted down following a bitter battle fought mostly on ideological grounds. Some people think Clarence Thomas got a borking during his 1991 confirmation hearings, although you could argue he got more Coked than borked.

Whoever President Obama nominates to fill retiring Justice David Souter's seat is going to get borked over good. Republicans are already preparing to filibuster the nominee without even knowing who it might be. That's kind of like booing David Ortiz before he strikes out.

I mean, suppose Obama nominated Ann Coulter? What would Republicans do then? Go into flip-flop mode, or stay the course and Bork themselves? The self-inflicted bork, I like it.

As I mentioned, we need a new system, one that removes knee-jerk partisanship and places the emphasis on something more quaint — like the nominee's ability and talent. An excellent way to achieve this might be to have the president nominate several individuals to fill a vacancy, and then let the public pick a winner after a nationally televised competition. There are several popular television shows after which such an approach could be patterned.

•American Ideologue: Nominees compete against each other by singing favorite passages from famous court decisions before a jury.

•Dancing with the Supremes: Nominees tap dance, tango and fox trot around such issues as Roe v. Wade, the right to bear arms, and the constitutionality of wardrobe malfunctions.

•Ultimate Arguing: Nominees enter a steel cage and, at the bell, begin hurling verbal jabs, hooks, haymakers and low blows at each other until only one is left not crying.

•Survivor Judicial Branch: Nominees are dropped off in some barren, culturally devoid, Godforsaken place (Texas?) and forced to participate in a series of mock trials while eating large bugs.

•High Court USA: Nominees parade across a stage in robes and high heels while balancing law books on their heads. Think standard beauty pageant minus the implants.

Now, I'm not saying the reality-show concept might not need some tweaking. But the panel of judges, phone-in voting model has a proven success record.

I also think it can be argued that it might result in even more intense scrutiny of nominees than that provided by the current system.

You think getting borked is bad — how would you like to be Simoned?

•Contact Jim Shea at shea@courant.com, and read his other columns on Wednesday and Saturday in CTLiving.

Copyright © 2009, The Hartford Courant

Obama Chooses Sotomayor for Supreme Court Nominee
NYTIMES
By Jeff Zeleny
May 26, 2009, 8:15 am

President Obama will nominate Judge Sonia Sotomayor of the United States Court of Appeals for the Second Circuit as his first appointment to the court, officials said Tuesday, and has scheduled an announcement for 10:15 a.m. at the White House.

If confirmed by the Democratic-controlled Senate, Judge Sotomayor, 54, would replace Justice David H. Souter to become the second woman on the court and only the third female justice in the history of the Supreme Court. She also would be the first Hispanic justice to serve on the Supreme Court.

Conservative groups reacted with sharp criticism on Tuesday morning. “Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written,” said Wendy E. Long, counsel to the Judicial Confirmation Network. “She thinks that judges should dictate policy, and that one’s sex, race, and ethnicity ought to affect the decisions one renders from the bench.”

The president reached his decision over the long Memorial Day weekend, aides said, but it was not disclosed until Tuesday morning when he informed his advisers of his choice less than three hours before the announcement was scheduled to take place.

Mr. Obama telephoned Judge Sotomayor at 9 p.m. on Monday, officials said, advising her that she was his choice to fill the Supreme Court vacancy. Later Monday night, Mr. Obama called the three other finalists — Judge Diane P. Wood of Chicago, Homeland Security Secretary Janet Napolitano and Solicitor General Elena Kagan — to inform them that he had selected Judge Sotomayor.

White House officials worked into the night to prepare for the announcement, without knowing who it would be.

Judge Sotomayor has sat for the last 11 years on the federal appeals bench in Manhattan. As the top federal appeals court in the nation’s commercial center, the court is known in particular for its expertise in corporate and securities law. For six years before that, she was a federal district judge in New York.

In what may be her best-known ruling, Judge Sotomayor issued an injunction against major league baseball owners in April 1995, effectively ending a baseball strike of nearly eight months, the longest work stoppage in professional sports history, which had led to the cancellation of the World Series for the first time in 90 years.

Born in the Bronx on June 23, 1954, she was diagnosed with diabetes at the age of 8. Her father, a factory worker, died a year later. Her mother, a nurse at a methadone clinic, raised her daughter and a younger son on a modest salary.

Judge Sotomayor graduated from Princeton University summa cum laude in 1976 and and attended Yale Law School, where she was an editor of the Yale Law Journal. She spent five years as a prosecutor with the Manhattan district attorney’s office before entering private practice.

But she longed to return to public service, she said, inspired by the “Perry Mason” series she watched as a child. In 1992, Senator Daniel Patrick Moynihan recommended the politically centrist lawyer to President George H. W. Bush, making good on a longstanding promise to appoint a Hispanic judge in New York.

On the Circuit Court, she has been involved in few controversial issues like abortion. Some of her most notable decisions came in child custody and complex business cases. Her most high-profile case involved New Haven’s decision to toss out tests used to evaluate candidates for promotion in the fire department because there were no minority candidates at the top of the list.

She was part of a panel that rejected the challenge brought by white firefighters who scored high but were denied promotion. Frank Ricci, the lead plaintiff, argued that it was unfair he was denied promotion after he had studied intensively for the exam and even paid for special coaching to overcome his dyslexia.

The case produced a heated split in the Circuit Court and is now before the Supreme Court.

Justices Tell Appeals Court to Revisit Super Bowl Incident
NYTIMES
By DAVID STOUT
May 5, 2009

WASHINGTON — What may be the most controversial fraction of a second in television history, the momentary baring of the singer Janet Jackson’s breast during the halftime show of the 2004 Super Bowl, will be debated once again in federal court.

The Supreme Court on Monday set aside a ruling by the United States Court of Appeals for the Third Circuit, in Philadelphia, that had overturned a $550,000 fine imposed by the Federal Communications Commission on CBS for the “wardrobe malfunction,” as the fateful moment has been described.

The high court said the Third Circuit should give “further consideration” to its conclusion last July 21 that the F.C.C. was wrong to fine the network. A three-judge panel of the Third Circuit said the F.C.C. had not given broadcasters enough advance notice that it was tightening its policies involving fleeting displays of nudity, and that CBS should not have been held responsible for the actions of Ms. Jackson and her performing partner, Justin Timberlake.

The Supreme Court’s order that the Third Circuit re-examine its judgment was not unexpected, given the high court’s ruling last week that broadcasters that allow foul language on live programs may be held accountable, even if the vulgarities were unscripted and isolated. (The ruling, in F.C.C. v. Fox Television Stations, has no effect on cable television.)

CBS issued a statement on Monday saying that it was not surprised by the Supreme Court’s directive, given the Fox decision, “despite the differences in the two cases.” The Fox decision arose from two appearances on a music-awards show by celebrities who used words long considered unacceptable in polite conversation. (For instance, Nicole Richie used vulgar language in discussing the difficulty in cleaning cow manure off a Prada purse.)

The lyrics sung by Mr. Timberlake were arguably not as vulgar, although he seemed to have been overly inspired by them. “Gonna have you naked by the end of this song,” he uttered, just before the big moment.

The exposure of Ms. Jackson’s breast lasted nine-sixteenths of one second, the Third Circuit noted. That is barely enough time for the speediest wide receiver to cover five yards on a dry field, but plenty of time to generate litigation that has lasted half a decade, with accompanying lawyers’ fees.

“We are confident that in reviewing the case the Third Circuit will again recognize that the Super Bowl incident, while inappropriate and regrettable, was not and could not have been anticipated by CBS,” the network said. “This remains an important issue for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when despite best efforts it may not be possible to block unfortunate fleeting material.”

And if the Third Circuit should once again rule in favor of CBS, the case could make its way back to the Supreme Court, assuming that the F.C.C. refuses to give up the fight.

The 2004 Super Bowl in Houston was seen by about 90 million people. Surely, not all viewers were offended by the incident involving Ms. Jackson. But many were, giving rise to a controversy that has endured longer than memories of the game itself. (For the record, the New England Patriots defeated the Carolina Panthers, 32 to 29, on a field goal by Adam Vinatieri in the final seconds.)

A FRIEND TO BASEBALL FANS ON THE COURT

PLAY BALL "...In what may be her best-known ruling, Judge Sotomayor issued an injunction against major league baseball owners in April 1995, effectively ending a baseball strike of nearly eight months, the longest work stoppage in professional sports history, which had led to the cancellation of the World Series for the first time in 90 years."

Sotomayor Sworn In as Supreme Court Justice
NYTIMES
By CHARLIE SAVAGE
August 9, 2009

WASHINGTON — Justice Sonia Sotomayor took the judicial oath on Saturday, becoming the first Hispanic and third woman to serve on the Supreme Court in United States history.

At just past 11 a.m., Chief Justice John G. Roberts Jr. administered a pair of oaths to her in two private ceremonies at the Supreme Court building, completing her ascent to a life-tenured position as the nation’s 111th justice, and the first to be nominated by a Democratic president since 1994.

In the first ceremony, which took place in the justice’s conference room and was attended only by her relatives and a court photographer, she took the standard oath affirmed by all federal employees, swearing to “support and defend the Constitution of the United States against all enemies, foreign and domestic.”

She and the chief justice then walked to the court’s East Conference Room for the judicial oath, in which she stood before about 60 friends and family members and swore to “administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me” under the Constitution and laws of the United States.

The appointment of Justice Sotomayor, 55, capped a life story that began in a Bronx housing project, where the Puerto Rican girl was raised by her widowed mother. She later attended two Ivy League schools, worked as a prosecutor in the office of the Manhattan district attorney, and then left for a stint at a corporate law firm.

Throughout the 1980s, she also became increasingly engaged in civic life, joining the board of the Puerto Rican Legal Defense and Education Fund and winning appointments to the New York City Campaign Finance Board and the board of the State of New York Mortgage Agency.

Her rise brought her to the attention of Senator Daniel Patrick Moynihan, Democrat of New York, who recommended that President George H.W. Bush appoint her to the federal bench. President Bill Clinton later elevated her to the Court of Appeals for the Second Circuit. She spent 17 years as a federal judge before President Obama nominated her in May to succeed retiring Supreme Court Justice David H. Souter.

Saturday’s oath-taking ceremonies brought to a close a 10-week confirmation battle in which Republicans attacked her as an alleged “judicial activist,” citing speeches she had made on topics like foreign law and the role of diversity on the judiciary, including a now-famous comment about the superior judgment of a “wise Latina.”

They also criticized her votes in cases involving Second Amendment rights, property rights, and a racial discrimination lawsuit brought by white firefighters in New Haven.

But Democrats insisted that Judge Sotomayor was a highly qualified, mainstream and moderate jurist, and in the end Democrats’ numerical advantage in the Senate virtually ensured her success. The Senate on Thursday voted 68 to 31 to confirm her in a largely party-line vote: No Democrat voted against her, while all but 9 of the chamber’s 40 Republicans did so.

Although Justice Sotomayor is now a full member of the court, entitled to move into her new chambers and prepare for her first case — a campaign-finance dispute left over from the court’s last term — she still has several rituals yet to attend.

President Obama, who did not attend Saturday’s events, will be at a White House ceremony on Wednesday in Justice Sotomayor’s honor. And on Sept. 8, the Supreme Court will hold a special invitation-only investiture ceremony — a special sitting at which she will take her seat on the dais for the first time, probably followed by an appearance alongside Chief Justice Roberts for a traditional picture on the front steps of the court.

Sotomayor Confirmed by Senate, 68-31
NYTIMES
By CHARLIE SAVAGE
August 7, 2009

WASHINGTON — Voting largely along party lines, the Senate on Thursday confirmed Judge Sonia Sotomayor as the 111th justice of the Supreme Court. She will be the first Hispanic and the third woman to serve on the court.

Chief Justice John G. Roberts Jr. was expected to administer the oath of office to Judge Sotomayor, 55, in the next few days, with a formal ceremony likely in September. She succeeds Justice David H. Souter, who retired in June...

Justice Souter's most significant vote was, in our opinion, the Kelo eminent domain case - his was the one vote in a 5-4 decision I could not understand. More here on CT case...

Sotomayor Resigns From All-Women’s Club
NYTIMES
By THE ASSOCIATED PRESS
June 20, 2009

WASHINGTON (AP) — Judge Sonia Sotomayor, President Obama’s nominee for the Supreme Court, resigned Friday from an elite women’s club after Republicans questioned her membership.

In a letter to Senators Patrick J. Leahy, Democrat of Vermont, and Jeff Sessions, Republican of Alabama, Judge Sotomayor said she was convinced that the club, the Belizean Grove, did not practice “invidious discrimination” and that her membership in it did not violate judicial ethics.

But she said she did not want questions about it to “distract anyone from my qualifications and record.”

Federal judges are bound by a code that says they should not join any group that discriminates by race, sex, religion or nationality.

The Belizean Grove bills itself as women’s answer to the 130-year-old all-male Bohemian Club in California. The men’s club owns a 2,500-acre camping area in Northern California called the Grove.

Chief Justice Earl Warren belonged to the club beginning in the 1940s, before he joined the court and long before the federal judiciary adopted a code of conduct.

At Yale, Sotomayor was sharp but not outspoken
In interviews, classmates say Sotomayor pick would have surprised them 30 years ago
Yale Daily News
Zeke Miller, Staff Reporter
Published Sunday, May 31, 2009

Sonia Sotomayor LAW ’79, nominated Tuesday by President Barack Obama to become the first Hispanic justice on the Supreme Court, has come a long way since publishing her first article in the Yale Law Journal.

As the Second Circuit Court of Appeals judge prepares for a confirmation hearing that, at least according to media accounts, seems to grow more controversial by the day, most of the 34 of Sotomayor’s Yale Law School classmates interviewed for this article attested to her practicality and intelligence both as a student and a jurist.

“She is a person of passionate commitments,” said Peter Kougasian LAW ’79, who was her classmate at both the Law School and Princeton, “and the most important one is her commitment to the rule of law.

“People would be surprised by the extent to which she tries to understand the law to apply it,” said Kougasian, who also worked alongside Sotomayor at the New York County District Attorney’s Office after they graduated. “Temperamentally she is reluctant to take a bold step when a prudent one would do.”

According to her former classmates, Sotomayor has always been an intellectually curious person, though sometimes quietly so. Not one to stand out for the sake of standing out, Sotomayor was, nonetheless, an involved student at the Law School. And while she was unquestionably bright, she never emerged as a star – as someone who would one day be nominated to serve on America’s highest court...full article here.

While watching "Good Morning America" on the overhead video as she ran through La Guardia...lobbying for the sympathy vote?
Sotomayor Fractures Ankle at Airport
NYTIMES
By THE ASSOCIATED PRESS
Filed at 3:39 p.m. ET
June 8, 2009

WASHINGTON (AP) -- Supreme Court nominee Sonia Sotomayor broke her ankle Monday morning in an airport stumble, then boarded her flight as scheduled and made the roughly hourlong trip to Washington to meet with senators who will vote on her confirmation.

The federal judge, who has been keeping up a busy set of appointments on Capitol Hill, tripped at New York's LaGuardia Airport and suffered a small fracture to her right ankle, the White House said.

She was keeping her six appointments with senators despite the injury. She entered the Capitol for a meeting with Sen. Charles E. Grassley, R-Iowa, on crutches, wearing a white cast covered at the foot with a black soft bootie. Asked how she was feeling, Sotomayor said, ''I feel fine, thank you.''

Sotomayor has set a relentless pace since her Capitol Hill debut last week. By day's end Monday, she will have met with one-third of the Senate in just four days of visits.

The White House is pressing for her quick confirmation, and Sotomayor wasn't pausing much for distractions, even her own trip-up. She even stopped at the White House Monday after her arrival in Washington, before heading to a local medical office for an X-ray.

The George Washington University Medical Faculty Associates treated and released her, according to a White House statement.

Sotomayor drew praise Monday former first lady Laura Bush, who said she was pleased President Barack Obama nominated a woman for the Supreme Court.

''I think she sounds like a very interesting and good nominee,'' Bush said of Sotomayor. She said on ABC's ''Good Morning America'' that, ''as a woman, I'm proud that there might be another woman on the court. I wish her well.''

Laura Bush Glad Obama Picked Woman for High Court
NYTIMES
By THE ASSOCIATED PRESS
Filed at 8:33 a.m. ET
June 8, 2009

WASHINGTON (AP) -- Former first lady Laura Bush says she's pleased that President Barack Obama nominated a woman for the Supreme Court.

''I think she sounds like a very interesting and good nominee,'' Bush said of Sonia Sotomayor, the federal appeals judge Obama picked.

Mrs. Bush said in an interview broadcast Monday on ABC's ''Good Morning America'' that ''as a woman, I'm proud that there might be another woman on the court. I wish her well.'' She was interviewed in Dallas, where the Bushes moved after their White House tenure.

On another subject, Mrs. Bush said her husband will have no comment on any Obama decisions. He feels that as a former president, ''he owes President Obama his silence on issues and there's no reason to second-guess any decisions he makes,'' Mrs. Bush said.

Republicans, Let's Play Grown-Up
Sotomayor's hearings are an opportunity for serious debate.
WSJ
Peggy Noonan
OPINION: DECLARATIONS MAY 29, 2009

"Let's play grown-up." When I was a child, that's what we said when we ran out of things to do like playing potsie or throwing rocks in the vacant lot. You'd go in and take your father's hat and your mother's purse and walk around saying, "Would you like tea?" In retrospect we weren't imitating our parents but parents on TV, who wore pearls and suits. But the point is we amused ourselves trying to be little adults.

And that's what the GOP should do right now: play grown-up.

The Democrats in the White House have been doing it since January, operating with a certain decorum, a kind of assumption as to their natural stature. Obamaland is very different from the last Democratic administration, Bill Clinton's. The cliché is true: White House staffs reflect their presidents. Mr. Clinton's staff was human, colorful, messy, slightly mad. They had pent-up energy after 12 years of Republican rule, and they believed their own propaganda that Republicans were wicked. They were oafish: One dragooned a government helicopter to go play golf. President Obama's staff is far less entertaining. They're smooth, impeccable, sophisticated, like the boss. They don't hate Republicans but think they're missing a few chips (empathy, logic, How Things Really Work). It is true they don't know what they don't know, but what they do know (how to quietly seize and hold power, for instance—they now run the American auto industry), they know pretty well.

But back to Sonia Sotomayor, which is my subject.

She is of course a brilliant political pick—Hispanic when Republicans have trouble with Hispanics, a woman when they've had trouble with women. Her background (public housing, Newyorican, Catholic school, Princeton, prominence) is as moving as Clarence Thomas's, and that is moving indeed. Politically she's like a beautiful doll containing a canister of poison gas: Break her and you die.

The New York Post's front page the day after her announcement said it all: "Suprema!" with a picture of the radiant nominee. New York is proud of her; I'm proud of our country and grateful at its insistence, in a time when some say the American dream is dead, that it most certainly is not. The dream is: You can come from any place or condition, any walk of life, and rise to the top, taking your people with you, in your heart and theirs. (Maybe that's what they mean by empathy: Where you come from enters you, and you bring it with you as you rise. But if that's what they mean, then we're all empathetic. We're the most fluid society in human history, but no one ever leaves their zip code in America, we all take it with us. It's part of our pride. And it's not bad, it's good.

Some, and they are idiots, look at Judge Sotomayor and say: attack, attack, kill. A conservative activist told the New York Times, "We need to brand her." Another told me a fight is needed to excite the base.

Excite the base? How about excite a moderate, or interest an independent? How about gain the attention of people who aren't already on your side?

The base is plenty excited already, as you know if you've ever read a comment thread on a conservative blog. Comment-thread conservatives, like their mirror-image warriors on the left ("Worst person in the woooorrrlllddd!") are perpetually agitated, permanently enraged. They don't need to be revved, they're already revved. Newt Gingrich twitters that Judge Sotomayor is a racist. Does anyone believe that? He should rest his dancing thumbs, stop trying to position himself as the choice and voice of the base in 2012, and think.

A few—very few—agitate to go at Judge Sotomayor as the Democrats went after Robert Bork in 1987. The abuse suffered by that good man is a still suppurating wound within the GOP, but it is also a wound for the Democrats, the worst kind, a self-inflicted one. They damaged our national political culture and lowered their own standing with their assault, and their victory left them looking not strong and uncompromising but mean and ferocious. And on some level they know it. Ask Ted Kennedy, if he had it to do over again, if he would repeat all his intemperate and unjust words about "Bob Bork's America" and "back-alley abortions" and blacks turned away from lunch counters. He'd be a fool if he said yes. He damaged himself in that battle.

The choice for Republicans isn't between "attack" and "roll over." It's broader than that, and more interesting. There's a new and fresh opportunity here for Republicans in the Senate to be serious, and, in their seriousness, to be seen and understood in a new light.

Serious opposition to Judge Sotomayor is not only fair, it's necessary: It's your job to oppose if you oppose. But it should be serious, not merely partisan. Mr. Obama himself well knows he voted against John Roberts and Sam Alito only in essence because they were conservative. He was planning a presidential run and playing to a left-wing base. But that didn't enhance his reputation, did it? Not with anyone who wasn't part of his base.

Barring extraordinary revelations, Judge Sotomayor is going to be confirmed. She's going to win. She does not appear to be as liberal or left-wing as others who could have been picked. She seems reminiscent of the justice she will replace, David Souter. She will likely come across in hearings as smart, spirited, a middle-aged woman who's lived a life of grit, determination and American-dream proving.

Republicans can be liberated by the fact that they're outnumbered and likely about to lose. They can step back, breathe in, and use the Sotomayor confirmation hearings to perform a public service: Find out what the future justice thinks and why she thinks it, explain what they think and why they think it, look at the two different philosophies, if that's what they are. Don't make it sparring, make it thinking.

Don't grill and grandstand, summon and inform. Show the respect that expresses equality and the equality that is an expression of respect. Ask and listen, get the logic, explain where you think it wrong. Fill the airwaves with thoughtful exchanges.

Here are some areas: What is judicial activism? Is it sometimes more rightly called judicial presumption? Judge Sotomayor sided against the Connecticut firemen in the famous Ricci case—why? Was this empathy, or a very selective sympathy that resulted in the victimizing of human beings who were not members of a politically favored ethnic or racial group? What is affirmative action, when does it become quota making? How does she understand the Second Amendment? What did the Framers intend there? In what ways did her experience, upbringing and ethnicity contribute to her understanding of the law?

These are just a few fertile areas. There are more.

The odd thing Republican elected officials forget is that they often have the better argument. So used are they to the defensive crouch that they find it difficult to stand tall, expand, tell, hear. They should have more faith in the philosophical assumptions of their party, which so often reflect the wisdom of experience, of tradition, of Founders more brilliant than we.

This might be a good time for them to rediscover their faith in the American people, in their ability to listen, weigh and think. That thinking may not always show up immediately in polls, but it adds up in time and has its own weight, its own force, and future.

Trust them. They're grown-ups, even if they don't always dress the part.

Op-Ed Columnist
The Empathy Issue
By DAVID BROOKS
May 29, 2009

The American legal system is based on a useful falsehood. It’s based on the falsehood that this is a nation of laws, not men; that in rendering decisions, disembodied, objective judges are able to put aside emotion and unruly passion and issue opinions on the basis of pure reason.

Most people know this is untrue. In reality, decisions are made by imperfect minds in ambiguous circumstances. It is incoherent to say that a judge should base an opinion on reason and not emotion because emotions are an inherent part of decision-making. Emotions are the processes we use to assign value to different possibilities. Emotions move us toward things and ideas that produce pleasure and away from things and ideas that produce pain.

People without emotions cannot make sensible decisions because they don’t know how much anything is worth. People without social emotions like empathy are not objective decision-makers. They are sociopaths who sometimes end up on death row.

Supreme Court justices, like all of us, are emotional intuitionists. They begin their decision-making processes with certain models in their heads. These are models of how the world works and should work, which have been idiosyncratically ingrained by genes, culture, education, parents and events. These models shape the way judges perceive the world.

As Dan Kahan of Yale Law School has pointed out, many disputes come about because two judges look at the same situation and they have different perceptions about what the most consequential facts are. One judge, with one set of internal models, may look at a case and perceive that the humiliation suffered by a 13-year-old girl during a strip search in a school or airport is the most consequential fact of the case. Another judge, with another set of internal models, may perceive that the security of the school or airport is the most consequential fact. People elevate and savor facts that conform to their pre-existing sensitivities.

The decision-making process gets even murkier once the judge has absorbed the disparate facts of a case. When noodling over some issue — whether it’s a legal case, an essay, a math problem or a marketing strategy — people go foraging about for a unifying solution. This is not a hyper-rational, orderly process of the sort a computer might undertake. It’s a meandering, largely unconscious process of trial and error.

The mind tries on different solutions to see if they fit. Ideas and insights bubble up from some hidden layer of intuitions and heuristics. Sometimes you feel yourself getting closer to a conclusion, and sometimes you feel yourself getting farther away. The emotions serve as guidance signals, like from a GPS, as you feel your way toward a solution.

Then — often while you’re in the shower or after a night’s sleep — the answer comes to you. You experience a fantastic rush of pleasure that feels like a million tiny magnets suddenly clicking into alignment.

Now your conclusion is articulate in your consciousness. You can edit it or reject it. You can go out and find precedents and principles to buttress it. But the way you get there was not a cool, rational process. It was complex, unconscious and emotional.

The crucial question in evaluating a potential Supreme Court justice, therefore, is not whether she relies on empathy or emotion, but how she does so. First, can she process multiple streams of emotion? Reason is weak and emotions are strong, but emotions can be balanced off each other. Sonia Sotomayor will be a good justice if she can empathize with the many types of people and actions involved in a case, but a bad justice if she can only empathize with one type, one ethnic group or one social class.

Second, does she have a love for the institutions of the law themselves? For some lawyers, the law is not only a bunch of statutes but a code of chivalry. The good judges seem to derive a profound emotional satisfaction from the faithful execution of time-tested precedents and traditions.

Third, is she aware of the murky, flawed and semiprimitive nature of her own decision-making, and has she accounted for her own uncertainty? If we were logical creatures in a logical world, judges could create sweeping abstractions and then rigorously apply them. But because we’re emotional creatures in an idiosyncratic world, it’s prudent to have judges who are cautious, incrementalist and minimalist. It’s prudent to have judges who decide cases narrowly, who emphasize the specific context of each case, who value gradual change, small steps and modest self-restraint.

Right-leaning thinkers from Edmund Burke to Friedrich Hayek understood that emotion is prone to overshadow reason. They understood that emotion can be a wise guide in some circumstances and a dangerous deceiver in others. It’s not whether judges rely on emotion and empathy, it’s how they educate their sentiments within the discipline of manners and morals, tradition and practice.

A Sad Day For Property Rights

Hartford Courant editorial
June 24, 2005

Supreme Court Justice Sandra Day O'Connor got it dead right.* Municipalities shouldn't be able to take a person's property and uproot families, even if they are compensated, in order to accommodate developers.

Sadly, Justice O'Connor's sage comments were on the dissenting end of a Connecticut case critical to property owners everywhere, Kelo et al vs. New London. The justices ruled 5-4, with Justice O'Connor in the minority, to uphold an earlier decision by the Connecticut Supreme Court that allows cities and towns to take private property for private use simply because the new owner might produce more tax revenue for the community...

* = "The specter of condemnation hangs over all property," said Justice Sandra Day O'Connor in a compelling dissent. "Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall or any farm with a factory."
------------------

Source: Liberal-leaning Justice Souter to retire
DAY
By MARK SHERMAN and JENNIFER LOVEN, Associated Press Writers
Posted on May 1, 7:35 AM EDT

WASHINGTON (AP) -- Justice David Souter is planning to retire after nearly two decades on the Supreme Court, but his departure is unlikely to change its conservative-liberal split.

President Barack Obama's first pick for the high court is likely to be a liberal-leaning nominee, much like Souter. The White House has been told that Souter will retire in June, when the court finishes its work for the summer, a source familiar with his plans said Thursday night. The retirement is likely to take effect only once a successor is confirmed. The source spoke to The Associated Press on condition of anonymity because he was not authorized to speak for Souter.

Souter had no comment Thursday night, a Supreme Court spokeswoman said. The vacancy could lead to another woman on the bench to join Justice Ruth Bader Ginsburg, currently the court's only female justice.

At 69, Souter is much younger than either Ginsburg, 76, or Justice John Paul Stevens, 89, the other two liberal justices whose names have been mentioned as possible retirees. Yet those justices have given no indication they intend to retire soon and Ginsburg said she plans to serve into her 80s, despite her recent surgery for pancreatic cancer.

Souter, a regular jogger, is thought to be in excellent health. Interest groups immediately began gearing up.

"We're looking for President Obama to choose an eminently qualified candidate who is committed to the core constitutional values, who is committed to justice for all and not just a few," said Nan Aron, president of the liberal Alliance for Justice.

Some of the names that have been circulating include recently confirmed Solicitor General Elena Kagan; U.S. Appeals Court Judges Sonya Sotomayor, Kim McLane Wardlaw, Sandra Lea Lynch and Diane Pamela Wood; and Leah Ward Sears, chief justice of the Georgia Supreme Court. Men who have been mentioned as potential nominees include Massachusetts Gov. Deval Patrick, Harvard Law professor Cass Sunstein and U.S. District Judge Ruben Castillo of Chicago.

The Obama White House began from almost its first days in office preparing for the possibility of a retirement by thinking about and vetting potential high court nominees. Those efforts only accelerated with Ginsburg's cancer surgery. The timing may have been unexpected, but Souter has long yearned for a life outside Washington.

He has never made any secret of his dislike for the capital, once telling acquaintances he had "the world's best job in the world's worst city." When the court finishes its work for the summer, he quickly departs for his beloved New Hampshire.

He has been on the court since 1990, when he was an obscure federal appeals court judge until President George H.W. Bush tapped him for the Supreme Court. Bush White House aide John Sununu, the former conservative governor of New Hampshire, hailed his choice as a "home run." And early in his time in Washington, Souter was called a moderate conservative. But he soon joined in a ruling reaffirming woman's right to an abortion, a decision from 1992 that remains still perhaps his most noted work on the court.

Souter became a reliable liberal vote on the court and was one of the four dissenters in the 2000 decision in Bush v. Gore that sealed the presidential election for George W. Bush.

Yet as Souter biographer Tinsley Yarbrough noted, "he doesn't take extreme positions." Indeed, in June, Souter sided with Exxon Mobil Corp. and broke with his liberal colleagues in slashing the punitive damages the company owed Alaskan victims of the Exxon Valdez oil spill.

Souter is the court's 105th justice, only its sixth bachelor. He works seven days a week through most of the court's October-to-July terms, a pace that he says leaves time for little else. He told an audience this year that he undergoes "an annual intellectual lobotomy" each fall.

Souter earned his bachelor's and law degrees from Harvard sandwiched around a stay at Oxford University as a Rhodes scholar. He became New Hampshire's attorney general in 1976 and a state court judge two years later. By 1990, he was on the federal appeals court in Boston for only a few months when Bush picked him to replace Justice William Brennan on the Supreme Court.

National Public Radio first reported Souter's plans Thursday night.

28 April 2009

The policy followed swearing by Bono at the 2003 Golden Globes

US TV swearing policy 'correct'
The US government's policy of fining broadcasters over the use of even a single swear word on live TV is justified, the Supreme Court has ruled.

The "fleeting expletives" policy, introduced in 2004, was on hold after a legal challenge by TV company Fox.

The Federal Communications Commission introduced the rule after Bono swore at the 2003 Golden Globes. It previously had a "one free expletive" rule.

Justice Antonin Scalia said the new policy had been "entirely rational".

Fox's legal challenge stemmed from a 2006 FCC ruling that the network had violated decency during its broadcast of the Billboard Music Awards at which celebrities had sworn.

Even when used as an expletive, the F-word's power to insult and offend derives from its sexual meaning

Justice Antonin Scalia

The network, together with ABC, NBC and CBS, legally challenged the FCC policy by arguing that the decency standard was unclear and undermined free speech protections.

The policy was put on hold after a New York appeals court ruled in favour of Fox, saying the FCC had not adequately explained the change and that it was arbitrary and vague.

'Rational'

But, on Tuesday, the Supreme Court voted by five to four, overturning the ruling stating the policy was "neither arbitrary nor capricious".

"The agency's reasons for expanding its enforcement activity, moreover, were entirely rational," Justice Scalia said.

The FCC had changed its policy on fleeting expletives that denote "sexual or excretory activities" as part of a crackdown on indecency on TV.

"Even when used as an expletive, the F-word's power to insult and offend derives from its sexual meaning," Justice Scalia added.

The Supreme Court justices said the reinstated policy may now go before a federal appeals court to judge whether it breached free speech laws.

You know when you see it? Hear it?
Supreme Court Backs F.C.C. on Indecency Rule
NYTIMES
By DAVID STOUT
April 28, 2009

WASHINGTON — The Supreme Court ruled narrowly in favor of the Federal Communications Commission on Tuesday in the agency’s efforts to punish television broadcasters for airing dirty words. But the court’s opinion guaranteed that the issue of obscenity in the age of modern communications would be revisited.

In a splintered 5-to-4 ruling, the court found in favor of the F.C.C. and against Fox Television Stations and the other network broadcasters in a controversy over “fleeting expletives,” or more or less spontaneous utterances on television of four-letter words that once upon a time were supposedly forbidden in polite, educated society.

The ruling overturned a June 2007 ruling by the United States Court of Appeals for the Second Circuit, in Manhattan. That court had struck down a federal government policy that had grown more aggressive under President George W. Bush to fine stations and networks that broadcast shows containing obscene language.

The Supreme Court ruling has no effect on cable television. And it specifically steered wide of underlying First Amendment issues, which are certain to come up again, especially since the high court majority invited a lower court to examine the First Amendment issues to set the stage for Supreme Court review.

Writing for the Supreme Court, Justice Antonin Scalia said the Second Circuit was wrong to find the F.C.C.’s reasoning inadequate for gradually expanding its approach to enforcement. In 2004, the F.C.C. declared for the first time that use of expletives could warrant punishment as indecent, even when the word is used only once.

“The F.C.C.’s orders are neither ‘arbitrary’ nor ‘capricious,’” Justice Scalia wrote. “None of the Second Circuit’s grounds for finding the F.C.C.’s action arbitrary and capricious is valid.”

In layman’s terms, “arbitrary and capricious” action by a lower court or an agency means the action was totally unreasonable and in disregard of the facts. Justice Scalia wrote that the F.C.C. has the power under law to turn to more aggressive enforcement, if it wishes, and that it need not present empirical evidence of harm done to children by over-the-air dirty language. Indeed, he wrote, such empirical evidence is unattainable in any event.

The case arose from comments by Cher and Nicole Richie on the Billboard Music Awards several years ago, the use of expletives by the hard-boiled detective Andy Sipowitz on “NYPD Blue” and a comment on “The Early Show” by a contestant from CBS’s reality show “Survivor.” The networks ABC, CBS and NBC have been trying to avoid potential fines of up to $325,000 for each station that aired “indecent” material between 6 a.m. and 10 p.m.

Justice Scalia wrote that a court ought not to substitute its judgment for that of an agency and should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,” as the F.C.C.’s path can be in the case at hand.

“The fact that technological advances have made it easier for broadcasters to bleep out offending words further supports the commission’s stepped-up enforcement policy,” Justice Scalia wrote at another point.

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined Justice Scalia’s basic opinion for the most part in the case of F.C.C. vs. Fox Television Stations, No. 07-582.

Justices John Paul Stevens, Ruth Bader Ginsburg, David H. Souter and Stephen G. Breyer dissented. “The F.C.C.’s shifting and impermissibly vague indecency policy only imperils these broadcasters and muddles the regulatory landscape,” Justice Stevens wrote. For 30 years, the F.C.C. has had the power to keep “indecent” material off the airwaves from 6 a.m. to 10 p.m., and those rules “have not proved unworkable,” he wrote.

Justice Breyer dissented separately. The law “grants those in charge of independent administrative agencies broad authority to determine relevant policy,” he observed. “But it does not permit them to make policy choices for purely political reasons nor to rest them primarily upon unexplained policy preferences.”

With Tuesday’s ruling, it seemed clear that those who argue over what is and is not too “dirty” or “indecent” to be broadcast on television will get another day in court — and perhaps many more days.

Justices Hear Arguments on Bank Regulation
NYTIMES
By JOHN SCHWARTZ
April 28, 2009

WASHINGTON — The Supreme Court heard arguments on Tuesday in a case that could change the way big banks are regulated.

In the case, Cuomo v. The Clearing House Association, federal and state regulators have squared off over which part of the government should serve as the nation’s watchdog for national banks. The case began four years ago, when Eliot Spitzer, New York’s attorney general at the time, questioned why some national banks seemed to be making a disproportionate number of high-interest home mortgage loans to black and Hispanic borrowers.

Mr. Spitzer was attempting to enforce New York’s anti-discrimination laws, but he ran up against federal precedent that tended to leave regulation of national banks to the Treasury Department, and, specifically, the Office of the Comptroller of the Currency. A consortium of banks sued Mr. Spitzer, and so did the Office of the Comptroller of the Currency.

The banks and federal regulators argued that letting state officials regulate the banks would force the financial institutions to deal with a national patchwork of conflicting regulations. A federal district judge in 2005 and the United States Court of Appeals for the Second Circuit in 2007 ruled against New York and for federal regulation.

The fight involves fundamental issues of federalism and consumer protection, and the court’s decision could open new powers of regulation to the states.

Much has changed since Mr. Spitzer began his inquiry. For one thing, he is no longer attorney general; Andrew M. Cuomo has succeeded him. And, at the same time, the nation has been shaken by financial scandal and failure in ways that have led many to question the sagacity and effectiveness of the regulatory structure. A brief filed by the 49 other state attorneys general argues, “The recent (and continuing) fallout from the subprime lending debacle demonstrates the need for more oversight and consumer protection enforcement in the area of mortgage lending.“

The Office of the Comptroller of the Currency, the brief states, “has no experience in enforcing state public protection laws, has a minimal track record in consumer protection, and has no accountability to the citizens of any State,” and its effort to have exclusive regulatory authority over national banks was part of “a pre-emption agenda” in recent years to take “a wrecking ball” to pro-consumer regulatory efforts.

James E. Tierney, director of the national state attorney general program at Columbia University law school, said the federal regulators’ job is to promote “bank fiscal soundness and not protection of consumers,” and that battling fraud in mortgage lending is something that the state attorneys general have long excelled at. “They got it first,” Mr. Tierney said, “and they got it right.”

A brief filed by all previous Comptrollers of the Currency since 1973, however, takes a different view. The comptroller’s office, according to the brief, works quietly with banks to address consumer issues in a “prophylactic” way, and “uses the wide range of its supervisory powers in an effort to alert national banks of potential non-compliance that poses risks to consumers and to ensure that they are addressed as early as possible.”

The threat of action by the federal regulators, the comptrollers stated, is “a significant incentive for national banks to address any compliance issues before they become serious problems.” And when such gentle measures fail, the comptrollers wrote, the agency “does not hesitate to take aggressive enforcement action against national banks.” The role of the states, they argued, is to pass along information about “possible problems,” leaving enforcement to the federal regulators.

The justices will also hear a case on Tuesday, Forest Grove School District v. T.A., that deals with the question of whether parents can receive reimbursement for private school tuition if their children have never received special education services.

Supreme Court Says Strip Search of Child Illegal
NYTIMES
By THE ASSOCIATED PRESS
Filed at 10:46 a.m. ET
June 25, 2009

WASHINGTON (AP) -- The Supreme Court ruled Thursday that a school's strip search of an Arizona teenage girl accused of having prescription-strength ibuprofen was illegal.

The court ruled 8-1 on Thursday that school officials violated the law with their search of Savana Redding in the rural eastern Arizona town of Safford.

Redding, who now attends college, was 13 when officials at Safford Middle School ordered her to remove her clothes and shake out her underwear because they were looking for pills -- the equivalent of two Advils. The district bans prescription and over-the-counter drugs and the school was acting on a tip from another student.

"What was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear," Justice David Souter wrote in the majority opinion. "We think that the combination of these deficiencies was fatal to finding the search reasonable."

But the court ruled the officials cannot be held liable in a lawsuit for the search. Different judges around the nation have come to different conclusions about immunity for school officials in strip searches, which leads the Supreme Court to "counsel doubt that we were sufficiently clear in the prior statement of law," Souter said.

"We think these differences of opinion from our own are substantial enough to require immunity for the school officials in this case," Souter said.

The justices also said the lower courts would have to determine whether the Safford United School District No. 1 could be held liable.

A schoolmate had accused Redding, then an eighth-grade student, of giving her pills.

The school's vice principal, Kerry Wilson, took Redding to his office to search her backpack. When nothing was found, Redding was taken to a nurse's office where she says she was ordered to take off her shirt and pants. Redding said they then told her to move her bra to the side and to stretch her underwear waistband, exposing her breasts and pelvic area. No pills were found.

A federal magistrate dismissed a suit by Redding and her mother, April. An appeals panel agreed that the search didn't violate her rights. But last July, a full panel of the 9th U.S. Circuit Court of Appeals found the search was "an invasion of constitutional rights" and that Wilson could be found personally liable.

Justices John Paul Stevens and Ruth Bader Ginsburg dissented from the portion of the ruling saying that Wilson could not be held financially liable.

"Wilson's treatment of Redding was abusive and it was not reasonable for him to believe that the law permitted it," Ginsburg said.

The case is Safford Unified School District v. April Redding, 08-479.

Supreme Court Limits Warrantless Vehicle Searches
NYTIMES
By THE ASSOCIATED PRESS
Filed at 10:43 a.m. ET
April 21, 2009

WASHINGTON (AP) -- The Supreme Court ruled Tuesday that police need a warrant to search the vehicle of someone they have arrested if the person is locked up in a patrol cruiser and poses no safety threat to officers.

The court's 5-4 decision puts new limits on the ability of police to search a vehicle immediately after the arrest of a suspect.

Justice John Paul Stevens said in the majority opinion that warrantless searches still may be conducted if a car's passenger compartment is within reach of a suspect who has been removed from the vehicle or there is reason to believe evidence of a crime will be found.

''When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant,'' Stevens said.

Justice Samuel Alito, in dissent, complained that the decision upsets police practice that has developed since the court first authorized warrantless searches immediately following an arrest.

''There are cases in which it is unclear whether an arrestee could retrieve a weapon or evidence,'' Alito said.

Even more confusing, he said, is asking police to determine whether the vehicle contains evidence of a crime. ''What this rule permits in a variety of situations is entirely unclear,'' Alito said.

The decision backs an Arizona high court ruling in favor of Rodney Joseph Gant, who was handcuffed, seated in the back of a patrol car and under police supervision when Tucson, Ariz., police officers searched his car. They found cocaine and drug paraphernalia.

The trial court said the evidence could be used against Gant, but Arizona appeals courts overturned the convictions because the officers already had secured the scene and thus faced no threat to their safety or concern about evidence being preserved.

The state and the Bush administration complained that ruling would impose a ''dangerous and unworkable test'' that would complicate the daily lives of law enforcement officers.

The justices divided in an unusual fashion. Justices Ruth Bader Ginsburg, Antonin Scalia, David Souter and Clarence Thomas joined the majority opinion. Chief Justice John Roberts and Justices Stephen Breyer and Anthony Kennedy were in dissent along with Alito.

Justices Limit Key Protection of Voting Rights Act
NYTIMES
By ADAM LIPTAK
March 9, 2009

WASHINGTON — Only election districts in which minorities make up at least half of the voting age population are entitled to an important protection of the Voting Rights Act, the Supreme Court ruled on Monday.

Officials in North Carolina had argued that the act required them to create a district that included about 39 percent of the black voting-age population, on the theory that this gave black voters the opportunity to join with white “crossover voters“ to elect a candidate of the black voters’ choice. The court rejected that argument by a 5-to-4 vote.

“The decision turns 50 percent into a magic number,“ said Richard L. Hasen, who teaches election law at Loyola Law School in Los Angeles. The decision will, he said, both reduce the number of voting districts in which minorities play a dominant role mandated by the Voting Rights Act and cut back on election litigation.

Richard H. Pildes, a law professor at New York University whose work the justices cited many times in Monday’s decision, said that current events — including the fact that both major political parties are led by African Americans — have complicated the legal landscape, creating “tremendous pressure on a statute that was primarily structured for an earlier era.“

The decision resolved a question the court had left open in five earlier decisions, and it touched off a sharp debate among the justices about how best to protect minority voting rights without cementing racially polarized voting.

Justice David H. Souter, writing for the four dissenters, said the upshot of Monday’s decision will be more racial polarization. It will require states “to pack black voters into additional majority-minority districts,“ he wrote, “contracting the number of districts where racial minorities are having success in transcending racial divisions.“

Nonetheless, some legal experts said the impact of the decision may be relatively minor. “How many districts will not be drawn as a result of this decision?“ asked Nathaniel Persily, a law professor at Columbia. “The answer is very few.“

But the justices also provided some hints about how they will approach the term’s more significant Voting Rights Act case, that one concerning whether jurisdictions with a history of racial discrimination must continue to obtain the federal government’s permission before changing voting procedures.

Justice Anthony M. Kennedy, who wrote the controlling opinion on Monday and almost certainly will be in the majority in the next case, signaled that he is alert to the legacy of racial discrimination and in favor of only incremental steps in cutting back on the sweep of voting rights protections.

“Racial discrimination and racially polarized voting are not ancient history,“ Justice Kennedy said. But the goal of the Voting Rights Act, he continued, was to “hasten the waning of racism in American politics“ rather than to “entrench racial differences.“

In all, said Heather Gerken, a law professor at Yale, Justice Kennedy’s statements “bode well for the constitutionality of the Voting Rights Act“ in the case to be argued in April, Northwest Austin Municipal Utility District v. Holder, No. 08-322.

The district at issue in Monday’s decision, Bartlett v. Strickland, No. 07-689, violated North Carolina’s constitution, which forbids dividing counties when drawing legislative districts. County officials sued, and state officials defended by saying the district was required by the Voting Rights Act. The North Carolina Supreme Court ruled that only districts in which minorities make up 50 percent of the voting age population are covered by the act’s anti-dilution provision.

The act itself does not answer the question. It requires courts to look at “the totality of the circumstances“ to decide whether some groups “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.“

But the Supreme Court suggested that there may be a 50 percent threshold in 1986, and on Monday it made that suggestion into what Justice Kennedy, who wrote the controlling opinion, called “an objective, numerical test“ that “draws clean lines for courts and legislatures alike.

“Nothing in Section 2 grants special protection to a minority group’s right to form political coalitions,“ Justice Kennedy, writing for himself, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., added. “There is a difference between a racial minority group’s ‘own choice’ and the choice made by a coalition.“

Supreme Court Enters the YouTube Era
NYTIMES
By ADAM LIPTAK
WASHINGTON
March 3, 2009

The Supreme Court is entering the YouTube era.

The first citation in a petition filed with the court last month, for instance, was not to an affidavit or legal precedent but rather to a video link. The video shows what is either appalling police brutality or a measured response to an arrested man’s intransigence — you be the judge.

Such evidence verité has the potential to unsettle the way appellate judges do their work, according to a new study in The Harvard Law Review. If Supreme Court justices can see for themselves what happened in a case, the study suggests, they may be less inclined to defer to the factual findings of jurors and to the conclusions of lower-court judges.

In 2007, for instance, the Supreme Court considered the case of a Georgia man who was paralyzed when his car was rammed by the police during a high-speed chase. The chase was recorded by a camera on the squad car’s dashboard, and that video dominated the court’s analysis. The federal appeals court in Atlanta had ruled for the driver, Victor Harris, at a preliminary stage in the case, saying a jury should decide whether his driving warranted the aggressive measures taken by the police.

“Harris remained in control of his vehicle, slowed for turns and intersections and typically used indicators for turns,” the appeals court said of the video.

But that is not how most of the justices saw it.

Justice Antonin Scalia said at the argument that the video showed “the scariest chase I ever saw since ‘The French Connection.’ ”

Justice Stephen G. Breyer said he was not sure how to think about the appeals court’s interpretation. “I end up with Chico Marx’s old question,” Justice Breyer said. “Who do you believe — me or your own eyes?”

When the decision in the case, Scott v. Harris, was handed down, only Justice John Paul Stevens dissented. With understated sarcasm, he highlighted the new role his colleagues had taken on.

“Eight of the jurors on this court,” Justice Stevens said, “reach a verdict that differs from the views of the judges on both the district court and the court of appeals who are surely more familiar with the hazards of driving on Georgia roads than we are.”

The court posted the video on its Web site. “I suggest that the interested reader take advantage of the link in the court’s opinion and watch it,” Justice Breyer said in a concurrence.

Three law professors accepted that invitation and made it the basis of an interesting study published in January in The Harvard Law Review. They showed the video to 1,350 people, who mostly saw things as the justices did. Three-quarters of them thought the use of potentially deadly force by the police was justified by the risk Mr. Harris’s driving posed.

But African-Americans, liberals, Democrats, people who don’t make much money and those who live in the Northeast were, the study found, “much more likely to see the police, rather than Harris, as the source of the danger posed by the flight and to find the deliberate ramming of Harris’s vehicle unnecessary to avert risk to the public.”

Video creates a danger, the study said, of “decision-making hubris” by judges.

Many judges do not seem to understand, said Jessica Silbey, a law professor at Suffolk University in Boston, that video is not categorical or irrefutable proof like DNA but only a partial, volatile and dangerously persuasive account of what happened. But video can also bring an encounter to life in a way a paper transcript never will. Consider the video at the heart of the petition filed last month asking the court to hear another case about what may have been excessive force by the police.

This one, also recorded by a patrol car’s dashboard camera, shows Jesse D. Buckley just after he was stopped for speeding on a rural Florida road. Being pulled over is no one’s favorite experience, but it completely undid Mr. Buckley, who said in an interview that the prospect of paying a $175 ticket was just too much given his personal and money troubles at the time.

“I just cried,” he said. “I needed to cry. I just couldn’t stop crying.”

He refused to sign the traffic citation, and he was arrested. Hands cuffed behind his back, he sat down on the ground by his car, sobbing. Jonathan Rackard, a sheriff’s deputy, tried to lift Mr. Buckley to move him into the patrol car, but he failed. Then he threatened to use a Taser stun gun.

“I don’t care any more,” Mr. Buckley responded, disconsolate. “Tase me.”

So Deputy Buckley applied, over the course of a couple of minutes, three five-second-long 50,000-volt electrical shocks from the Taser. Between the second and third shocks, he walked to his patrol car and called for backup. Mr. Buckley stayed where he was. A second officer soon arrived, and the two officers placed Mr. Buckley into the patrol car.

Mr. Buckley pleaded guilty, paid the ticket and sued over the episode. “I still have scars on my back and some on my chest,” he said the other day.

Deputy Rackard’s lawyers, in an appeals court brief last year, said the use of “moderate non-deadly force in the face of spirited, though non-violent, resistance was a reasonably proportionate response.”

“Deputy Rackard should not have to struggle to lift a heavy object like Buckley,” the brief added, “and run the risk of a work-related injury.”

Mr. Buckley’s lawyers say there are more than 100 federal court decisions on the use of Tasers and that the lower courts need guidance from the Supreme Court. Michael R. Masinter, a lawyer for Mr. Buckley, said that “video evidence is inherently more compelling than recorded testimony.” But he did not claim that it is always better evidence, only that it works on the brain in a different way.

“It’s less a question of law,” he said, “and more one of how we have evolved as a species.”

What do you get when you mix Egyptian god Anubis with a French Poodle? White House pet!

Justices Rule Sect Cannot Force Placing of Monument
NYTIMES
By DAVID STOUT
February 26, 2009

WASHINGTON — The Supreme Court ruled unanimously on Wednesday, in one of the most closely watched free speech decisions in years, that a tiny religious sect could not force a Utah city to let it erect a monument to its faith in a public park. The fact that there is already a Ten Commandments monument in the park in Pleasant Grove City does not mean that city officials must also allow the religious group called Summum to place a monument there to the Seven Aphorisms of its faith, the justices ruled.

“We think it is fair to say that throughout our nation’s history, the general government practice with respect to donated monuments has been one of selective receptivity,” and properly so, Justice Samuel A. Alito Jr. wrote for the court.

The case has been of keen interest to local and state officials across the country, as reflected in the fact that more than 20 cities and states, along with the federal government, sided with Pleasant Grove City in the matter. Not least among the officials’ concerns is what kinds of markers and monuments, if any, they might be forced to allow in public areas if Summum prevailed. And while the case of Pleasant Grove City v. Summum, No. 07-665, involves religion, the real issue was free speech, not the separation of church and state, both of which are addressed in the First Amendment to the Constitution.

The Summum group has contended that the Pleasant Grove City officials were no more entitled to discriminate among private monuments donated to a public park than they were entitled to forbid speeches and leaflets advocating viewpoints that they found unpalatable.

But Justice Samuel A. Alito Jr., writing for the court, said the arguments embraced by Summum were not really the right way to look at the case. The core issue is not private speech in a public forum but, rather, the power of government to express itself, in this case by selecting which monuments to have in a public park, Justice Alito wrote.

“The Free Speech Clause restricts government regulation of private speech,” Justice Alito noted. “It does not regulate government speech.”

While a government entity is quite limited in its ability to regulate or restrict private speech in traditional public forums, like parks, the government entity “is entitled to say what it wishes,” Justice Alito wrote, citing earlier Supreme Court rulings. If the people do not like what their government officials say or stand for, they can vote them out of office, he wrote. Not that government, through its officials, can say whatever it wants whenever it wants, Justice Alito observed. For one thing, government expressions must not violate the First Amendment’s ban on endorsement of a particular religion. Moreover, what government officials say may be limited “by law, regulation, or practice.”

“And of course, a government entity is ultimately ‘accountable to the electorate and the political process for its advocacy,’ ” Justice Alito wrote, quoting from an earlier Supreme Court decision.

Justice Stephen G. Breyer emphasized in a concurring opinion that, while the Summum members have been thwarted in their bid to have a monument erected, “the city has not closed off its parks to speech; no one claims that the city prevents Summum’s members from engaging in speech in a form more transient that a permanent monument.” In other words, Summum members, like other citizens, can presumably hand out leaflets or stand on soapboxes and hold forth on the issues of the day.

The small park where the sect wanted its monument placed has a dozen or so monuments donated by private groups or individuals. Besides the Ten Commandments monument, they include an historic granary and the city’s first fire station, a wishing well and other displays reflecting the history of the area. In its ruling on Wednesday, the high court overturned a decision by the United States Court of Appeals for the 10th Circuit, which had sided with Summum and told the city to allow the group’s monument to be erected at once.

The Summum group was founded in 1975, and contains elements of Egyptian faiths and Gnostic Christianity. The word Summum derives from Latin, and refers to the sum of all creation. It seems clear from the history of the court case that not all the group’s aphorisms resonate with the descendants of Mormon pioneers. (“Nothing rests; everything moves; everything vibrates,” one aphorism reads.)

The issues raised by the Summum lawsuit have been of interest to legal scholars as well as government officials. “No prior decision of this court has addressed the application of the Free Speech Clause to a government entity’s acceptance of privately donated, permanent monuments for installation in a public park,” Justice Alito noted.

1998 law intended to protect children from Internet pornography done for.
Justices Reject Pornography Law
NYTIMES
By DAVID STOUT
January 22, 2009 - hey! It is the 21st.

WASHINGTON — The Supreme Court on Wednesday refused to consider attempts to revive a 1998 law intended to protect children from Internet pornography, ending a legal conflict dating to the administration of President Bill Clinton. Without comment, the court handed down an order declining to take the case of Mukasey v. A.C.L.U., No. 08-565. The administration of former President George W. Bush, through Attorney General Michael Mukasey, had asked the justices to review the law. The American Civil Liberties Union has been a leading foe of the statute.

The Child Online Protection Act has been the subject of court battles since Congress enacted it in 1998, and it has never taken effect. Some judges have called the controversy an agonizing conflict between the cherished right of free speech and society’s duty to watch over children, many of whom grow up as familiar with computers as earlier generations of children were with coloring books. The high court’s refusal to take another look at the law was not surprising, given that the United States Court of Appeals for the Third Circuit, in Philadelphia, ruled last July that the law violated the First Amendment because filtering technologies and other tools offered less restrictive ways to shield children.

Signed by President Clinton in the fall of 1998, the law would have made it illegal for the operator of a commercial Web site to make sexually explicit material deemed harmful to minors available to those under 17. Violators would have faced fines of up to $50,000 per offense and six months in jail. A site that carried such material but gated it off from children through credit cards or other age-verifying measures would have had a defense under the statute.

Backers of the law contended that it was aimed primarily at “teaser” ads, or free samples offered by Web pornography sites. But opponents of the law complained that it was too broad and could have covered non-pornographic sexual material, like those dealing with gynecological issues.

The Child Online Protection Act was an attempt to fill a void created when the Supreme Court struck down a broader measure, the Communications Decency Act of 1996, the year after it had been enacted. The court ruled then that the decency act was defective because, among other things, it had not defined its key terms clearly enough. The journey of the Child Online Protection Act through the court system began early in 1999, when Federal Judge Lowell A. Reed Jr. in Philadelphia issued an injunction against the statute, concluding that the fears of the law’s critics were reasonable. But Judge Reed’s remarks were memorable for their ambivalence.

The judge wrote that he felt “personal regret” that his injunction would “delay once again the careful protection of our children.” But he went on to write that “perhaps we do the minors of this country harm if the First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.”

Judge Reed’s injunction was upheld by a three-judge panel of the Third Circuit in June 2000. Then the Supreme Court, in a 5-to-4 ruling in June 2004, affirmed that the injunction against enforcement of the law should remain in effect pending a trial on the law’s constitutionality in Federal District Court.

Early in 2007, Judge Reed declared the law unconstitutional, while again voicing his regret. After the Third Circuit upheld Judge Reed last July, the Bush administration made one last attempt to revive it, which the Supreme Court rejected on Wednesday.

Justices Say Evidence Valid Despite Police Error
NYTIMES
By THE ASSOCIATED PRESS
Filed at 11:35 a.m. ETJanuary 14, 2009

WASHINGTON (AP) -- The Supreme Court ruled Wednesday that evidence found after an arrest based on incorrect information from police files may be used against a criminal suspect.

In a 5-4 split, the court upheld the conviction of an Alabama man on federal drug and gun charges.

Bennie Dean Herring was arrested on what the Coffee County, Ala., sheriff's department thought was a valid warrant from a neighboring county. It turned out that the warrant for Herring's arrest had been recalled five months earlier.

Herring argued that police negligence should automatically lead to the suppression of evidence found after an unjustified arrest.

But Chief Justice John Roberts, writing for the court, said the evidence may be used ''when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements.''

Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas sided with Roberts.

In a dissent for the other four justices, Justice Ruth Bader Ginsburg said the ruling ''leaves Herring, and others like him, with no remedy for violations of their constitutional rights.''

Ginsburg said accurate police record-keeping is of paramount importance, particularly with the widespread use of electronic databases. Justices Stephen Breyer, David Souter and John Paul Stevens also dissented.

Herring was arrested after a neighboring Dale County sheriff's employee found a computer entry noting that Herring was wanted for failing to appear in court on a felony charge. The sheriff's computer database had not been updated to reflect the recall of the warrant for Herring's arrest.

Meanwhile, in a search after Herring's arrest, Coffee County deputies found methamphetamine in Herring's pockets and an unloaded gun under the front seat of his truck. Some courts have ruled that as a deterrent to police misconduct, the fruits of a similar search may be excluded from evidence. But the 11th U.S. Circuit Court of Appeals in Atlanta said that suppressing evidence in Herring's case would be unlikely to deter sloppy record keeping.

The case is Herring v. U.S., 07-513.

The decision itself here: we read of this first in the New Haven REGISTER...
Justices Rule for White Firefighters in Bias Case
NYTIMES
By THE ASSOCIATED PRESS
June 29, 2009

WASHINGTON (AP) -- The Supreme Court ruled Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.

"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them."

Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday.

Kennedy's opinion made only passing reference to the work of Sotomayor and the other two judges on the 2nd U.S. Circuit Court of Appeals who upheld a lower court ruling in favor of New Haven.

But the appellate judges have been criticized for producing a cursory opinion that failed to deal with "indisputably complex and far from well-settled" questions, in the words of another appeals court judge, Sotomayor mentor Jose Cabranes.

"This perfunctory disposition rests uneasily with the weighty issues presented by this appeal," Cabranes said, in a dissent from the full 2nd Circuit's decision not to hear the case.

Sen. Patrick Leahy, chairman of the Judiciary Committee, said Sotomayor should not be criticized for the unsigned appeals court decision, which he asserted she did not write. "Judge Sotomayor and the lower court panel did what judges are supposed to do, they followed precedent," said the Vermont Democrat who will preside over Sotomayor's confirmation hearings next month.

Leahy also called the high court decision "cramped" and wrong.

In New Haven, Nancy Ricci, whose son, Frank, was the lead plaintiff on the lawsuit, carried a large cake decorated with red, white and blue frosting into the law office where the firefighters were celebrating their victory.

Ricci's father, Jim Ricci said the ruling is a victory for firefighters across the country. "Now we're going to get the best managers as far as firefighters go. That's really important," Ricci said.

Monday's decision has its origins in New Haven's need to fill vacancies for lieutenants and captains in its fire department. It hired an outside firm to design a test, which was given to 77 candidates for lieutenant and 41 candidates for captain.

Fifty six firefighters passed the exams, including 41 whites, 22 blacks and 18 Hispanics. But of those, only 17 whites and two Hispanics could expect promotion.

The city eventually decided not to use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a "disparate impact" on minorities in violation of the Civil Rights Act of 1964.

The white firefighters said the decision violated the same law's prohibition on intentional discrimination.

Kennedy said an employer needs a "strong basis in evidence" to believe it will be held liable in a disparate impact lawsuit. New Haven had no such evidence, he said.

The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results.

"The city could be liable for disparate-impact discrimination only if the examinations were not job related" or the city failed to use a less discriminatory alternative, Kennedy said. "We conclude that there is no strong basis in evidence to establish that the test was deficient in either of these respects."

But Ginsburg said the court should have assessed "the starkly disparate results" of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. As of 2003, she said, only one of the city's 21 fire captains was African-American.

Until this decision, Ginsburg said, the civil rights law's prohibitions on intentional discrimination and disparate impact were complementary, both aimed at ending workplace discrimination.

"Today's decision sets these paired directives at odds," she said.

Decision Expected On New Haven Firefighters Case
The Hartford Courant
By EDMUND H. MAHONY
6:42 AM EDT, June 29, 2009

Analysts said they expect the U.S. Supreme Court to release a decision today in the case of case of 20 New Haven firefighters who claim they were denied promotion for racial reasons.

The reverse discrimination case, known as Ricci v DeStefano, was brought by 19 white firefighters and a 20th who is considered white and Hispanic. They sued in 2004, a year after New Haven invalidated a promotional examination because only white candidates for the positions of fire lieutenants and captains scored high enough for promotion.

All 20 of the plaintiff firefighters would have qualified for promotion, had the test results been used.

The case highlights knotty questions about racial preference just months after the election of the nation's first black president: Can an employer scrap a promotional examination that appears to hurt the chances of black candidates? Does doing so improperly disadvantage whites candidates who score higher?

Employment lawyers say the suit turns on an apparent contradiction in Title VII of the Civil Rights Act of 1964, a law concerning employment discrimination. The law prohibits race-based discrimination in hiring and promotion. But it requires employers to scrap tests that produce "disparate" results among test-takers of different races – unless the employer can prove the test is necessary.

The 20 firefighters claim they were illegally denied promotion for racial reasons. New Haven says it scrapped the test because of the disparity in results achieved by test takers of different races..

New Haven bought the test, which had written and oral segments, from a consultant for $100,000. It was administered to 118 candidates for promotion, including 17 blacks. None of the blacks scored high enough to qualify for promotion. After a series of raucous meetings, the city civil service board decided to reject the examination results and promote no one.

New Haven Attorney Karen Lee Torre, on behalf of the 20 firefighters, sued in U.S. District Court in New Haven. Judge Janet Bond Arterton ruled for the city in a 48-page summary judgment order. Arterton said the city's invalidation of the test results was based on the racial distribution of results. She further concluded there was no discrimination because the results were discarded before anyone was promoted.

Torre appealed to the U.S. 2nd Circuit Court of Appeals. On Feb. 8, 2008, a three member appeals court panel – including Judge Sonia Sotomayor, who later became President Barack Obama's first Supreme Court nominee – affirmed Arterton's "thorough, thoughtful, and well-reasoned opinion" in an order notable for its brevity. The appellate court later ruled against having the issues decided by the full court in a 7-6 decision. Not long after, the Supreme Court took the case. Sotomayor's participation increased attention to what already was a high profile case. It is the first case to broadly raise the issue of race and the workplace under the leadership of Chief Justice John G. Roberts Jr. And it is the court's first examination of race since Obama's election.

When the Supreme court heard oral arguments on April 22, it was clear from aggressive questioning by justices that philosophical differences over racial preference in hiring had split the court's conservative and liberal blocs.

Justice David H. Souter, whose questions sympathized with New Haven's position, asserted that the city faced a "damned if you do, damned if you don't situation" when it identified the race of the successful test takers. Whatever the city did, it would have been sued by whatever race viewed itself as losing, he said.

One of the claims the city raised during litigation was that the promotional examination it bought was racially biased. During oral argument, Justice Samuel A. Alito Jr. remarked sarcastically that the only criticism of the test came from an executive with a competing test preparation firm. The competitor testified at a civil service hearing in New Haven that, even though he had not read the test, he thought he could have designed a better one, Alito pointed out.

Torre reacted sharply to the claim as well.

"The only thing wrong with the test is that it didn't suit the political agenda of the mayor of New Haven," Torre has said. Her reference to Mayor John DeStefano refers to an element of the lawsuit that has been little heard from since the case reached the realm of the Supreme Court.

Among other things, the plaintiffs claim DeStefano jettisoned the promotional exam to satisfy influential black political supporters who were pushing for a greater black presence in the fire department's officer ranks.

Analysts have said the Ricci case embodies a number of firsts. It is viewed as the most important race and hiring case of the high court's current term, and some speculated it could reshape hiring and promotion policy affecting millions in government and private industry.

They also predict that it is unlikely the court will rule conclusively for one party or another. It is more likely, the analysts said, that the court would reach legal conclusions and return the case to Arterton for further action.

The Obama administration argued for a similar means of resolution when it weighed in on the case before the Supreme Court.

The administration sided with New Haven, saying the city was justified in dropping the test if it determined the test had "gross exclusionary effects on minorities." But it urged the high court to return the case to Arterton for trial to allow the plaintiffs an opportunity to argue that the city acted with a discriminatory motive.

Copyright © 2009, The Hartford Courant

Supreme Court to hear firefighters’ bias case
By William Kaempffer, New Haven Register Staff
Saturday, January 10, 2009 1:38 AM EST

NEW HAVEN — In a case with potential ramifications for civil service practices across the country, the U.S. Supreme Court Friday agreed to hear a reverse discrimination lawsuit filed by 20 New Haven firefighters who claim they were wrongfully denied promotions because of their race.

Later, the 19 white and one Hispanic firefighters stood on the steps of New Haven’s U.S. District Court, the same building where a judge threw out their lawsuit in 2006 before it got to trial. Their attorney, Karen Torre, discussed the “disguised system of racial quotas” she said persists in civil service.

While “we cannot predict what the outcome of the Supreme Court review will be, we hope that this case will restore the civil service to what it should be — a public work force of the very best chosen on the basis of individual merit, free from the divisive politics of race,” Torre said in a prepared statement.

The city issued a short statement indicating it remained confident in its position. While the city was “not surprised” that the Supreme Court accepted the case, “it remains confident that the 2nd Circuit U.S. Court of Appeals correctly decided the issue.”

In 2008, the 2nd Circuit Court of Appeals upheld the district court’s dismissal, leading to the petition to the high court.

It was about 1:40 p.m. when Torre got word from Washington, and by 2:30 p.m. many of her firefighter clients had gathered in her Church Street law offices ready to toast the day with a $150 bottle of Dom Perignon champagne. She told her clients not to comment to the media.

Oral arguments before the Justices are scheduled for April.

“I’m so happy for these men,” Torre said in her office as her clients celebrated outside. “They felt kicked in the stomach so many times, and none of them had any faith at all in the federal court system and they made this decision to embark on a very long journey against all odds.”

The Supreme Court receives nearly 10,000 petitions each year, and accepts about 70.

Some heavyweight law firms have gotten involved. Boston-based Wilmerhale has agreed to handle the city’s case pro bono. Lawyers from Yetter, Warden & Coleman, an Austin, Texas-based law firm, have come on board to assist Torre. She has not said whether they agreed to work pro bono, but has said in the past that “they have not asked for any money, and they don’t expect any, and we can’t give them any. Firefighters don’t make much.”

It was a very different mood Friday than last month, when they gathered in the same offices only to learn that theirs was not among granted cases. A reprieve came the following Monday when Ricci v. DeStefano was not listed among the rejected cases either, meaning it was put off to the next Supreme Court conference.

Firefighter Frank Ricci is the lead defendant in the case.

The key question to be answered in the case is this: Can a municipality disregard results of a civil service exam, crafted to be race-neutral, on grounds that the exam yielded too many qualified applicants of one race and not enough of the other? Legal observers have said the answer would be a landmark decision that could have far-reaching workplace ramifications, since the case argues a set of complicated issues that have not been answered yet by any settled body of existing legal precedent.

The controversy dates back to 2003 when the city administered two promotional exams for fire lieutenant and fire captain. When the results came back, however, those at the top of the lists were virtually all white, prompting a series of contentious public hearings in early 2004 to determine whether the lists should be certified.

The city asserted the exams made a disparate impact on minority firefighters, and if the city were to proceed with promotions it would open itself to potential employment discrimination lawsuits from minorities. The Civil Service Commission did not certify the exam.

The lawsuit, filed in 2004, asserted that it was race-based politics, and not altruistic motives, that scuttled the exams, and that in doing so, the city instead violated the civil rights of the white firefighters who would have otherwise been promoted.

A U.S. District Court judge threw out the lawsuit in 2006, and a three-judge panel for the U.S. Court of Appeals for the Second Circuit upheld the decision in February. The firefighters then petitioned to the U.S. Supreme Court.

The firefighters’ cause received unexpected support from dissenting judges on the 2nd Circuit bench, who suggested the three-judge panel hadn’t done justice to “questions of exceptional importance raised in this appeal.”

Six of the 13 appellate court judges, while not taking a position on the merits of the claims, signed an opinion strongly urging the Supreme Court to grant the petition.

In addition to the Ricci, the other plaintiffs are Benjamin Vargas, Brian Jooss, Christopher Parker, Edward Riordon, Gary Carbone, Greg Boivin, James Kottage, John Vendetto, Kevin Roxbee, Mark Vendetto, Matthew Marcarelli, Michael Blatchley, Michael Christoforo, Ryan Divito, Sean Patton, Steven Durand, Thomas J. Michaels, Timothy Scanlon and William Gambardella.

The plaintiffs filed suit before they knew where they fell on the scuttled lists.

“This is all for principal,” said Ricci. “All these 20 guys stood up not even knowing if they stood in line for promotion, and there’s still 20 guys (in the suit) and that’s principal.”

U.S. Supreme Court rejects Greenwich man's Obama challenge; Legal challenge questions Obama's citizenship
Greenwich TIME
Wire report
The Associated Press
Posted: 12/15/2008 06:06:30 PM EST

WASHINGTON - The Supreme Court has turned down another challenge to Barack Obama's eligibility to serve as president because of his citizenship.

The appeal by Cort Wrotnowski of Greenwich, Conn., was denied Monday without comment. Wrotnowski argued that Obama was a British subject at birth and therefore cannot meet the requirement for becoming president. He wanted the high court to halt presidential electors from meeting to formally elect Obama as president.

Echoing an appeal that was rejected by justices last week, Wrotnowski said that since Obama had dual nationality at birth - his mother was American, his Kenyan father was a British subject - he cannot possibly be a "natural born citizen."

At least two other appeals over Obama's citizenship remain at the court. Philip J. Berg of Lafayette Hill, Pa., argues that Obama was born in Kenya, not Hawaii as Obama says and Hawaii officials have confirmed.

Federal courts in Pennsylvania have dismissed Berg's lawsuit. Federal courts in Ohio and Washington state have rejected similar lawsuits. Allegations raised on the Internet say the birth certificate, showing that Obama was born in Hawaii on Aug. 4, 1961, is a fake.

But Hawaii Health Department Director Dr. Chiyome Fukino and the state's registrar of vital statistics, Alvin Onaka, say they checked health department records and have determined there's no doubt Obama was born in Hawaii. The nonpartisan Web site Factcheck.org examined the original document and said it does have a raised seal and the usual evidence of a genuine document.

In addition, Factcheck.org reproduced an announcement of Obama's birth, including his parents' address in Honolulu, that was published in the Honolulu Advertiser on Aug. 13, 1961.

Justices Reject Appeal in Libel Suit
NYTIMES
By THE ASSOCIATED PRESS
Filed at 10:12 a.m. ET
December 15, 2008

WASHINGTON (AP) -- The Supreme Court has rejected a plea by former Army scientist Steven J. Hatfill to revive his libel lawsuit against The New York Times over columns falsely implicating him in the deadly 2001 anthrax attacks.

The justices did not comment Monday in turning down Hatfill's appeal of a unanimous ruling by the 4th U.S. Circuit Court of Appeals, based in Richmond, Va. A three-judge panel affirmed a lower court's dismissal of the libel claims on the grounds that Hatfill is a public figure and failed to prove that columns written by Nicholas Kristof were malicious.

Circumstantial evidence led the FBI to suspect Hatfill was involved in the anthrax attacks that killed five people and sickened 17 just weeks after the Sept. 11 terrorist attacks. Then-Attorney General John Ashcroft publicly identified Hatfill, who worked at the Army's infectious diseases laboratory at Ft. Detrick, Md., from 1997 to 1999, as a ''person of interest'' in the investigation.

In June, the Justice Department agreed to pay Hatfill $5.8 million to settle a lawsuit claiming officials violated his privacy rights by speaking with reporters about the case.

No one has been charged in the attacks, although the government now believes another Army scientist, Bruce Ivins, was responsible. Ivins killed himself in July.

The case is Hatfill v. New York Times, 08-483.

Justices Block Effort to Challenge Ohio Voters
NYTIMES
By ADAM LIPTAK and IAN URBINA
October 18, 2008

WASHINGTON — The United States Supreme Court on Friday overturned a lower court’s order requiring state officials in Ohio to supply information that would have made it easier to challenge prospective voters. The decision was a setback for Ohio Republicans, who had sued to force the Ohio secretary of state, a Democrat, to provide information about database mismatches to county officials.

But Republicans vowed to fight on and quickly filed a similar lawsuit in the State Supreme Court.

The legal battle concerns as many as 200,000 of the 660,000 new voters who have registered in Ohio since Jan. 1, according to Social Security Administration and state election officials.

The United States Supreme Court, in a brief, unsigned decision, said lower federal courts in Ohio should not have ordered the secretary of state, Jennifer Brunner, to turn over the information. The court acted just before a deadline set by a federal judge in Columbus requiring Ms. Brunner to act.

A 2002 federal law, the Help America Vote Act, or HAVA, requires states to check voter registration applications against government databases like those for driver’s license records. Names that do not match are flagged. Ohio Republicans sought to require Ms. Brunner to provide information about mismatches to local officials.

Those officials could use information to require voters to cast provisional ballots rather than regular ones. They could also allow partisan poll workers to challenge people on the lists. Given the success by Democrats in registering new voters this year, those actions would probably affect that party’s supporters disproportionately.

The court said it expressed “no opinion on the question whether HAVA is being properly implemented.” But it said that Congress had probably not intended to allow private litigants like political parties to sue to enforce the part of the law concerning databases.

The decision also means that the Ohio Republican Party will not be able to make public-information requests to get the data so that poll workers can raise voter challenges.

Edward B. Foley, a law professor at Ohio State, said the Supreme Court’s action in letting state authorities handle matters in the face of a late challenge was consistent with a general premise of election law. “Federal court intervention is a last resort, even if it’s not at the last minute,” Professor Foley said.

Ms. Brunner welcomed Friday’s ruling.

“Our nation’s highest court has protected the voting rights of all Ohioans, allowing our bipartisan elections officials to continue preparing for a successful November election,” she said. “We filed this appeal to protect all Ohio voters from illegal challenges and barriers that unfairly silence the votes of some to the advantage of others.”

But the victory for Ms. Brunner might be short-lived.

Having lost before the United States Supreme Court, Republicans turned Friday to the Ohio Supreme Court.

David Myhal, a Republican from New Albany, filed a lawsuit asking the court to issue an order so that local election officials separate any ballots from voters whose registration information does not match records in state or federal databases.

The lawsuit seeks to require Ms. Brunner to order county elections boards not to count any absentee ballot from voters registered after Jan. 1 without first checking the statewide voter registration database to ensure there is no mismatch.

If there is a mismatch, the boards would be required to determine whether the person is an eligible voter.

The Ohio court gave Ms. Brunner until Monday to file her response, and said both parties must file briefs by next Friday.

Voting experts and state election officials have raised concerns about treating flagged voters differently because the databases used to check registrations are prone to errors. Most non-matches are the result of typographical errors by government officials, computer errors and use of nicknames or middle initials, not voter ineligibility, they said.

In one audit of match failures in 2004 by New York City election officials, more than 80 percent of the failures were found to have resulted from errors by government officials; most of the remaining failures were because of immaterial discrepancies between the two records.

Ms. Brunner has also argued that requiring so many voters to cast provisional ballots would raise tensions at the polls and worsen lines and confusion on an Election Day when she is expecting unprecedented turnout.

Republicans rejected those arguments.

“It remains our belief that American citizens should be guaranteed that their legitimate votes are not wiped away by illegally cast ballots,” said Rick Davis, the McCain-Palin campaign manager. “What is no longer in question is the partisan nature of Jennifer Brunner’s efforts to minimize the level of fairness and transparency in this election.”

Officials in the Ohio Republican Party had said they wanted the list so that local election officials could clear up any discrepancies before Election Day and in cases where that was not possible, those voters should use a provision ballot. Provisional ballots in Ohio are held for 10 days before being counted while workers check eligibility, and they are often subject to partisan wrangling and legal fights.

In 2004, President Bush won Ohio by about 118,000 votes. During that race, litigation over Republican plans to challenge about 35,000 voters went to Justice John Paul Stevens on the eve of the election. Justice Stevens said it was too close to the election to intervene, but he added that he expected both sides to act in good faith. The Republicans dropped plans for their challenges.

Polling in the state shows Senator Barack Obama, the Democratic presidential nominee, with a slight lead on his Republican challenger, Senator John McCain.

Roe v Wait-a-minute...Is this tied to the abortion issue?
Billions of Fish, Fish Eggs Die in Power Plants
NYTIMES
By THE ASSOCIATED PRESS
Published: October 18, 2008
Filed at 1:06 p.m. ET

BUCHANAN, N.Y. (AP) -- For a newly hatched striped bass in the Hudson River, a clutch of trout eggs in Lake Michigan or a baby salmon in San Francisco Bay, drifting a little too close to a power plant can mean a quick and turbulent death.

Sucked in with enormous volumes of water, battered against the sides of pipes and heated by steam, the small fry of the aquatic world are being sacrificed in large numbers each year to the cooling systems of power plants around the country.

Environmentalists say the nation's power plants are needlessly killing fish and fish eggs with their cooling systems, but energy-industry officials say opponents of nuclear power are exaggerating the losses.

The issue is affecting the debate over the future of a nuclear plant in the suburbs north of New York City, and the facilities and environmentalists are closely watching the outcome here to see how to proceed in other cities around the country. The U.S. Supreme Court is expected to rule this term in a lawsuit related to the matter.

The issue's scope is tremendous. More than 1,000 power plants and factories around the country use water from rivers, lakes, oceans and creeks as a coolant. At Indian Point plant in New York, the two reactors can pull in 1.7 million gallons of water per minute. Nineteen plants on or near the California coast use 16.3 billion gallons of sea water every day.

Most of the casualties are just fish eggs, and for many species, it takes thousands of eggs to result in one adult fish. The U.S. Environmental Protection Administration, which counts only species that are valuable for commerce or recreation, uses various formulas and says the number of eggs and larvae killed each year at the nation's large power plants would have grown into 1.5 billion year-old fish.

Environmentalists note that even fish that die before maturity contribute to the ecosystem as food for larger fish and birds, and as predators themselves on smaller organisms. But once they've gone through the power plant, they become decomposing detritus on the river bottom and have moved from the top to the bottom of the food chain, said Reed Super, an environmental lawyer specializing in the federal Clean Water Act.

''This is a really significant ongoing harm to our marine ecosystem,'' says Angela Haren, program director for the California Coastkeeper Alliance in San Francisco.

Technology has long existed that might reduce the fish kill by 90 percent or more. Cooling towers allow a power plant to recycle the water rather than continuously pump it in. New power plants are required to use cooling towers, but most existing plants resist any push to convert, citing the huge cost and claiming that most fish eggs and larvae are doomed anyway.

''We're not killing grown fish,'' says Jerry Nappi, spokesman for Entergy Nuclear Northeast, owner of Indian Point. ''If we were killing billions of grown fish you'd be able to walk across the Hudson on their backs.''

And Nappi says the fish population in the Hudson is stable, despite a recent study commissioned by Indian Point opponents that said 10 of 13 species were declining.

He also says an insistence on cooling towers could lead to Indian Point's closing and a sudden power deficit in the New York metropolitan area.

''What you're really talking about is a $1.5 billion hit on the company, and then it becomes an economic decision whether they want to stay here,'' he says. He believes talk of cooling towers is ''a backdoor attempt by some to shut down Indian Point.''

A recent ruling dealt at least a small blow to Entergy's efforts. The state Department of Environmental Protection, which is pushing for cooling towers, said the simple fact that so many fish eggs are destroyed each year at Indian Point is proof of an environmental impact, and Entergy can no longer maintain that it's not adversely affecting the river.

There's still months of argument ahead, but the ruling could be influential.

''We'll be very interested to see how that comes out,'' says Katie Nekola, an attorney for Clean Wisconsin, which failed to force cooling towers at the Oak Creek plant on Lake Michigan but won a $105 million settlement.

State agencies in California also are working on new regulations that should limit the numbers of fish killed, in the Pacific Ocean and other bodies of water.

According to the Nuclear Regulatory Commission, nuclear plants drink from other familiar bodies of water as the Mississippi River, Chesapeake Bay, Lake Michigan, the Gulf of Mexico and the Atlantic Oceans. Water used for cooling does not become radioactive.

Most plants without cooling towers use a system in which water is continuously pumped in, used for cooling, and returned.

Various types of barriers are used to keep adult fish out of the system; Indian Point uses screens with holes measuring a quarter-inch by a half-inch.

However, fish that are blocked by the screen can become caught on the screen by the force of the water intake. To rescue them, the screens rotate, and as they come out of the water a spray of water knocks the impinged fish into a trough, which is directed back to the river.

A California state report says 9 million fish are caught on nets there every year. Even turtles, seals and sea lions are occasionally caught. Environmentalists believe many fish and other creatures are killed in this process, or are injured and die later.

''When you hit a deer in your car, just because it gets up and runs away doesn't mean it's not going to die,'' Haren said.

But Ed Keating, environmental manager at the nuclear subsidiary of Public Service Enterprise Group Inc., said that probably only 1 percent of the fish caught get killed on the screens. Dara Gray, environmental supervisor at Indian Point, says there's no reason to believe that any fish are injured or killed by being caught on the screen.

In the process known as closed-cycle cooling, used mostly in newer plants, the number of fish and eggs sucked in or impinged is sharply reduced because cooling towers use so much less water. Even if a power plant draws its cooling water from a river, it uses that water over and over again and rarely needs to replenish.

Some plants with cooling towers don't have to worry about fish at all. PSEG Fossil has plants in New Jersey that now take treated wastewater from sewage plants.

Op-Ed Contributor
The Court Changes the Game
NYTIMES
By LINDA GREENHOUSE
June 30, 2009

Washington

THE law of employment discrimination today is not what it was before 10 a.m. Monday, when the Supreme Court ruled against the City of New Haven for scrapping a fire department promotional exam that appeared to favor white test-takers.

Whatever else the court’s 5-to-4 majority achieved, the result removed the breathlessly awaited case of Ricci v. DeStefano as a substantial issue in the imminent Supreme Court confirmation hearing for Judge Sonia Sotomayor.

Judge Sotomayor, famously, was one of three judges on an appellate panel who applied their federal circuit’s settled precedent to rule in New Haven’s favor. Like that decision or hate it, cheer Monday’s ruling or deplore it, one thing that is clear from reading the Supreme Court’s 89 pages of opinions in the case is that Judge Sotomayor and her colleagues played by the old rules, and the court changed them. Although “Sotomayor Reversed” was a frequent headline on the posts that spread quickly across the Web, it was actually the Supreme Court itself that shifted course.

To understand the nature of the shift requires a bit of history. Congress enacted Title VII of the Civil Rights Act of 1964, the statute at issue in the Ricci case, with a simple command to employers: thou shalt not discriminate on the basis of race or other protected characteristics, including sex and religion. But the simple proved to be complicated. An employer of blue-collar workers in North Carolina, Duke Power, required a high school diploma of all job applicants, a requirement that screened out 88 percent of black men in that region at that time.

In a 1971 decision, the Supreme Court ruled unanimously that a test that was “fair in form, but discriminatory in operation” could violate Title VII even without proof that the discrimination was intentional. Congress eventually amended Title VII to codify that decision, Griggs v. Duke Power. The rule was clear: if a job requirement produced a “disparate impact,” the employer had the burden of showing that the requirement was actually necessary.

Federal agencies, in turn, stepped forward to define the statistical disparity that prompted the further inquiry. Under the Equal Employment Opportunity Commission’s “four-fifths rule,” a test that one racial group passed at less than 80 percent the rate of another group would place an employer in presumptive violation of Title VII.

The early Supreme Court decision and later Congressional ratification represented a highly visible social settlement in the employment discrimination area. But beginning in the 1990s, changes in the Supreme Court’s membership and outlook began to unravel not only the legal structure, but also the philosophic one that had kept the settlement intact.

Powerful voices on the court, including Justice Anthony M. Kennedy, who wrote the majority opinion on Monday, began to call for something close to a zero-tolerance policy when it came to government counting its citizens by race for any purpose. And the court became skeptical of Congress’s making its own legislative judgments in ways that threatened to expand the boundaries of the court’s own narrowing constitutional vision.

These were tensions that underlay the challenge to the Voting Rights Act that the justices deflected with a narrow statutory ruling last week. The same tensions made the disparate-impact prong of Title VII something of an accident waiting to happen, because curing or avoiding a disparate impact obviously requires an employer to take race into account. A municipal employer like New Haven is bound not only by Title VII but also by the 14th Amendment’s equal protection clause, which the Supreme Court has interpreted to prohibit only intentional, and not simply statistical, discrimination.

The New Haven case, like the Voting Rights Act case, thus reached the court at a moment when the tectonic plates were in motion. White firefighters in New Haven had passed the promotional exams in 2003 at roughly double the rate of black and Hispanic test-takers, and no black firefighters had scored high enough to be eligible for promotion in a department with a long history of minority under-representation in a city that is now 60 percent black and Hispanic. Advised by its counsel that it faced Title VII disparate-impact liability, New Haven decided not to use the exam’s results. It thought it had found an escape from liability, and two lower federal courts agreed.

But where the lower courts saw a safe harbor, the Supreme Court majority saw “express, race-based decision-making” that violated Title VII’s other prong, the prohibition against disparate treatment. A “statistical disparity based on race,” the standard that Judge Sotomayor and her colleagues used, is no longer a sufficient excuse, Justice Kennedy said. The court announced what it called a “strong-basis-in-evidence standard.” Without a “strong basis” for concluding that a disparate impact made it vulnerable, and not just a lawyer’s plausible caution, an employer is stuck.

As it did last week, the court stopped short of addressing the deeper constitutional question. But Justice Kennedy warned that the Ricci opinion did not mean “that meeting the strong-basis-in-evidence standard would satisfy the equal protection clause in a future case.”

In dissent, Justice Ruth Bader Ginsburg had her own warning: “The court’s order and opinion, I anticipate, will not have staying power.”

Both predictions are provocative, and each depends on the same thing: not future cases so much as future justices. Even before the court ruled, there was little doubt that Judge Sotomayor would be confirmed. With the justices having changed the rules in employment discrimination cases, now it’s not even clear what there will be to talk about.

Linda Greenhouse, a former Supreme Court correspondent for The Times, teaches at Yale Law School.

Every Justice Creates a New Court
By LINDA GREENHOUSE
NYTIMES
May 27, 2009

Washington

EVERY time a new justice comes to the Supreme Court, “it’s a different court,” Justice Byron R. White liked to say — and he was in a position to know, having witnessed the arrival of 13 new justices during his own 31-year tenure.

He meant that in a group of nine people bound together by daily ritual and by the need to round up a sufficient number of like-minded colleagues to get anything done, the substitution of one personality for another matters in real life more than it might seem to matter on paper.

It’s an obvious point, but one that is often overlooked in discussions of Supreme Court nominations when, as now, the departing justice’s successor is one who figures to occupy the same side of the ideological divide. President Obama’s nominee to succeed Justice David Souter, Judge Sonia Sotomayor, may not vote much differently from Justice Souter, who established a moderately liberal record during his 19 years on the court.

Even before President Obama made his selection, it was commonly said that this particular nomination would not be a “game changer” on today’s sharply polarized court, where two blocs of four justices seem to spend much of their energy competing for the affections of the one in the middle, Anthony M. Kennedy. (In two 5-to-4 decisions issued on Tuesday, Justice Kennedy voted once with the conservative bloc and once with the more liberal bloc; a third decision was unanimous.)

But even when it seems most static, the Supreme Court is a dynamic institution whose component parts are always, although not always visibly, in motion. John G. Roberts Jr. didn’t figure to be a game-changer either when President George W. Bush nominated him in 2005 to be chief justice. After all, Chief Justice William H. Rehnquist, who had just died, was his former boss and longtime mentor, and no matter how conservative he might prove to be, it was hard to imagine him or anyone else finding much running room to Rehnquist’s right.

And yet there is a different tone now at the court, and not only because Justice Samuel A. Alito Jr., President Bush’s subsequent nominee, is more conservative than the justice he replaced, Sandra Day O’Connor. John Roberts is a justice in a hurry; he pushes hard, like the young Associate Justice Rehnquist for whom he clerked, and in contrast to Chief Justice Rehnquist, who in his later years was capable of voting in surprising ways — to reaffirm the Miranda decision and reject a constitutional challenge to the Family and Medical Leave Act, for example.

It wasn’t that Chief Justice Rehnquist changed his mind on issues that mattered to him — there is no evidence of that. Rather, he seemed to have developed a sense for when it was best for the court, or perhaps even for the country, not to carry every favored proposition over a cliff to its logical conclusion.

That is a sense that Chief Justice Roberts did not appear to gain during his first years on the court; his 2007 opinion striking down voluntary school integration plans in Louisville, Ky., and Seattle was so hard-edged that Justice Kennedy refused to sign it, providing a fifth vote for the result but not for the chief justice’s reasoning.

Whether Chief Justice Roberts has developed a Rehnquist-style sense of when to hold back will be evident next month, when the court is expected to decide whether a central provision of the Voting Rights Act, renewed almost unanimously by Congress three years ago, is constitutional. Based on the deep skepticism he expressed when the case was argued last month, the answer is no.

Beyond Sonia Sotomayor’s stirring life story and impressive résumé, what we really want to know is how she will fit into this mix of ideology, personality, principle and politics. Will she make a difference? According to common sense as well as Justice White’s maxim, the answer is “yes, inevitably.” Will it be a difference that is discernible in the outcomes of cases? That may not be clear immediately.

After Justice Thurgood Marshall retired in 1991, Justice O’Connor published a tribute describing him as the embodiment of “moral truth” and recounting the experience of listening to his stories during the decade that they served together, stories that “would, by and by, perhaps change the way I see the world.”

That was a striking statement from a justice who was on the opposite side from Thurgood Marshall in nearly every civil rights case and whose jurisprudence appeared unmarked by his influence. But it turned out to be Justice O’Connor who wrote the majority opinion in 2003 that upheld affirmative action in admission to the University of Michigan Law School. The way she saw the world in the interval had clearly changed, whatever the cause.

Although she is a pioneer in her own way, it takes nothing from Judge Sotomayor to observe that she is not Thurgood Marshall — just as Anthony Kennedy, for that matter, is not Sandra O’Connor.

Indeed, not even the most experienced justice can count on finding an argument that will persuade Justice Kennedy. But there is some evidence that he can be inspired by example and observation. His opinion for the court in Lawrence v. Texas, the 2003 gay-rights case, clearly rested on his conclusion that gays were entitled to the “dignity,” as he put it, that the court’s earlier ruling on gay rights in Bowers v. Hardwick had withheld. That opinion, among others, indicates Justice Kennedy’s willingness to look through the eyes of those whose experiences are different from his own.

In any event, Judge Sotomayor’s nomination comes at a special moment: the first projection of the remarkable 2008 election onto a Supreme Court that has so often in these last few years appeared headed in the opposite direction from the country. Whether her arrival proves to change the way the incumbent justices see the world, it will, at the least, change the way the world sees the Supreme Court.

Linda Greenhouse, a former Supreme Court correspondent for The Times, is the author of “Becoming Justice Blackmun.”

2,691 Decisions
NYTIMES
By LINDA GREENHOUSE
Published: July 13, 2008

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2007-2008 term over now...
Supreme Court, long quiet, ends term with a growl
DAY
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 announced today."

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 unconstitutional.

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 ballots.

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 life.

Winter v. Natural Resources Defense Council, Inc.
Justices Take Case on Navy Use of Sonar - click above for decision
NYTIMES
By LINDA GREENHOUSE
Published: June 24, 2008

WASHINGTON — The Supreme Court on Monday stepped into a long-running environmental dispute over the impact on whales and other marine mammals of Navy training exercises off Southern California.

The court, warned by the Bush administration that a set of conditions placed on the exercises by the federal appeals court in San Francisco “jeopardizes the Navy’s ability to train sailors and marines for wartime deployment during a time of ongoing hostilities,” agreed to hear the Navy’s appeal during its next term.

The training exercises, which are due to end next January, will continue in the meantime, because the appeals court issued a stay of its own order when it ruled in the case four months ago. That court, the United States Court of Appeals for the Ninth Circuit, ordered the Navy to suspend or minimize its use of sonar when marine mammals are in the vicinity.

The Navy acknowledges that the sonar can cause “behavioral disruptions” and short-term hearing loss in dolphins and whales, but denies that these effects are serious or lasting. But the Natural Resources Defense Council maintains that the high-intensity sonar causes “mass injury,” including hemorrhaging and stranding. The appeals court said the Navy’s own assessment “clearly indicates that at least some substantial harm will likely occur” without the measures designed to mitigate the sonar’s effects.

The justices themselves will not resolve the debate over the extent of the harm. Rather, as presented to the Supreme Court, the case is a dispute over the limits of executive branch authority and the extent to which the courts should defer to military judgments.

In January, as the case was proceeding in the appeals court, President Bush granted the Navy an exemption from one federal environmental law, the Coastal Zone Management Act. Simultaneously, the Council on Environmental Quality, an executive branch agency, declared that “emergency circumstances” warranted granting an exemption from the full effect of another statute, the National Environmental Policy Act.

These actions did not sway the appeals court, which said that “while we are mindful of the importance of protecting national security, courts have often held, in the face of assertions of potential harm to military readiness, that the armed forces must take precautionary measures to comply with the law.”

In the government’s appeal, Winter v. Natural Resources Defense Council, No. 07-1239, the administration describes training in the use of sonar to detect submarines as an “essential element” of the exercises, which it says are designed to “train the thousands of military personnel in a strike group to operate as an integrated unit in simultaneous air, surface and undersea warfare.”

The administration’s brief says that by imposing conditions on the use of sonar, “the decision poses substantial harm to national security and improperly overrides the collective judgments of the political branches and the nation’s top naval officers regarding the overriding public interest in a properly trained Navy.”

Under the appeals court’s order, the Navy must suspend the use of sonar or reduce it to specified levels when a marine mammal is seen at certain distances. The appeals courts said this requirement would not compromise the Navy’s ability to conduct the exercises.

Another appeal before the Supreme Court on Monday also presented a clash between executive power and environmental protection, concerning the fence being built on the Mexican border by the Department of Homeland Security.

But in this instance the government had prevailed in the lower court, and the justices, without comment, declined to hear an appeal filed by Defenders of Wildlife and the Sierra Club. The question was the validity of a federal law that allows the secretary of homeland security to waive any federal, state, or local laws that, in the secretary’s “sole discretion,” present obstacles to the fence project.

Michael Chertoff, the department’s secretary, invoked this authority last year in waiving 20 laws, including the Endangered Species Act, to enable the fence project to proceed through a national conservation area in Arizona.

The lawsuit filed by the environmental groups maintained that the statute violated the separation of powers by delegating to the secretary a form of legislative authority. The lawsuit also challenged the law’s unusually truncated judicial review provision, which limits the types of challenges that can be brought in Federal District Court and strips the appeals court of jurisdiction to hear any appeal.

Judge Ellen Segal Huvelle of the Federal District Court here upheld the law, saying that the breadth of the waiver provision did not make it unconstitutional. The case was Defenders of Wildlife v. Chertoff, No. 07-1180.

Supreme Court Says It Will Hear Narragansetts' Land-Trust Case; Rhode Island, Charlestown officials seeking to stop tribe from circumventing state laws
DAY
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 in Washington.”

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 actions repealed.

“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 comment.

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 trust.

28 May 2009

Washington diary: Justice Sotomayor?

By Matt Frei
BBC News, Washington

In America the appointment of a Supreme Court judge is front page news.

Ms Sotomayor is likely to face a smooth ride onto the court

Presidents serve for eight at years at most. The nine justices serve for life, should they wish to.

By placing someone on the bench, a commander-in-chief can try to make his influence felt well beyond his time in office.

It is an imprecise science. Justices do not always vote the way the presidents or the public expect them to.

Ruffling feathers?

One thing seems certain. Judge Sonia Sotomayor, the daughter of Puerto Rican immigrants reflects the demographic reality of America on the high court just as Barack Obama does in the White House.

When the two of them met in private for the first time they got along famously.

They certainly have a lot in common. Both were raised by a single mother, both overcame the limitations of their humble origins with hard work on the coalface of academia, both became stars in law school, both embarked on lives of public service and both appear to be supremely confident and comfortable in their own skin.

If confirmed, Sonia Sotomayor will only be the third woman ever to sit on the Supreme Court. But unlike Ruth Bader Ginsburg and the retired Sandra Day O'Connor, this outspoken daughter of the Bronx could ruffle some feathers.

Matt Frei in the BBC World News America studio

The nine justices on the Supreme Court wield real power in a country in which Congress has been incapable of tackling many of the most contentious issues.

Conservative activists have vowed to fight her nomination. Some have celebrated it as the much needed jolt that will unite and re-energise the fractious and fractured conservative movement.

Controversial radio host Rush Limbaugh has described Ms Sotomayor as a "reverse racist".

But how many Republican senators with significant numbers of Hispanic voters in their states will oppose her passage to the court? Hispanics are now the biggest minority in the US - and still growing.

Politicians ignore or upset them at their peril - just ask the GOP.

Lawyers may be loathed or ridiculed in America but the law is revered and nothing illustrates this more than a visit to the Supreme Court.

Its august building looks like a reconstruction of the Acropolis, with its giant doors flanked by huge columns. On a sunny day the white marble is blindingly bright.

'Sacred temple'

Walking up its steps and through its portals is a far more humbling experience than entering the White House or paying a visit to Capitol Hill.

The nine justices on the Supreme Court wield real power in a country in which Congress has been incapable of tackling many of the most contentious issues.

The Supreme Court creates legal precedents with the same power to change lives as congressional legislation.

The right to have an abortion in the United States is not enshrined in a law passed by Congress. It is based on the 1973 case of Roe v Wade.

The desegregation of education, allowing blacks to enter schools that were one reserved for whites famously stems from the landmark case of Brown v Board of Education.

The Supreme Court is housed in a suitably grand building

Walking up the marble staircase of America's highest court is like entering a sacred temple, harboring a precious icon. Barely a murmur disturbs the marble halls.

The only noise that echoes here is reverential silence. Even visiting schoolchildren are reduced to an awestruck hush.

The security is as stringent as anything at the White House. All mobile phones, bags and coats are confiscated. There is the inevitable metal detector, your name has to be on a visitors list and you cannot even have a pee without being escorted by one of the presiding marshals.

The chamber has the feel of a grand theatre. Heavy red velvet curtains hang down from the frescoed ceiling behind a phalanx of double columns.

The visitors' seating is cramped. Instead of looking down at a stage you look up at a High Table, behind which you see nine empty chairs, one for each justice.

The audience is separated from the legal staff and the bench by a wide passage-way, patrolled by federal security agents with earpieces.

'Extraordinary pageant'

The justices are the druids that interpret and protect America's sacred Constitution. They are custodians of the Idea.

Supreme Court justices - along with other federal judges - are the only senior public officials who serve for life.

Their setting, their demeanour and their job description ooze finality.

These judges do not wear wigs and embroidered cloaks. The simplicity merely adds to the gravitas.

On cue the judges, whose average age is 76, walk in with the precision timing of a Broadway chorus line

You do not hear the sound of gavel on wood. But the theatre that has been created around the Supreme Court is far more serious and self-conscious than anything that London's Old Bailey has to offer.

Everyone needs to be seated ten minutes before the first hearing, which usually starts at 1000.

The lawyers are usually allowed to mill around for a little longer, exchanging pleasantries or barbed greetings like gladiators before a fight.

In the minutes leading up to 1000, marshals scuttle in and out from behind the red curtain, placing papers, cups of tea or bottles of water in front of the judges' chairs. Everything is made perfect for the grand entry.

At 1000 sharp, an electronic whistle like a dog's yelp blows and the red curtain behind the bench swings open. On cue the judges, whose average age is 76, walk in with the precision timing of a Broadway chorus line: four from each wing and the chief justice through the middle. You half expect them to break into song.

Instead, they take their seats and then with a surprising minimum of fuss and decorum they begin the business of administering justice.

Barring the "unknown unknown" of a bombshell disclosure, Sonia Sotomayor - who grew up in public housing and whose father never went past third grade - will soon play her part in this extraordinary legal pageant that goes to the very root of America.

It will be fun to watch.

Justice Ginsburg briefly hospitalized again
YAHOO
By JESSE J. HOLLAND, Associated Press Writer

WASHINGTON – Supreme Court Justice Ruth Bader Ginsburg, who had cancer surgery earlier this year, was kept at a hospital overnight after she became drowsy and fell from her seat aboard an airplane. Court officials blamed a reaction to medicine.

It was the second time Ginsburg, 76, has been hospitalized in the last month. She was taken to a hospital on Sept. 24 after falling ill at her Supreme Court office. Ginsburg was taken to Washington Hospital Center around 11:15 p.m. Wednesday by paramedics and released Thursday morning, court officials said. Ginsburg, along with Chief Justice John Roberts and justices Stephen Breyer and Antonin Scalia, was heading to London to take part in ceremonies marking the opening of Britain's new Supreme Court.

"Prior to the plane taking off, the justice experienced extreme drowsiness causing her to fall from her seat," a court statement said. "Paramedics were called and the justice was taken to the Washington Hospital Center as a precaution."

The statement said doctors attributed her symptoms to a reaction caused by the combination of a prescription sleeping aid and an over-the-counter cold medicine. Ginsburg's health has been watched closely since her second cancer surgery in February.

She had surgery back in 1999 for colon cancer and received radiation and chemotherapy. And on Feb. 5, doctors removed a small, malignant growth from Ginsburg's pancreas. Doctors found no spread of it elsewhere, the court said. Her spleen also was removed.

In September, Ginsburg became lightheaded in her office after receiving treatment for anemia, a common side effect of pancreatic cancer chemotherapy. Although she was found to be stable after an examination, the court said she was taken to the hospital by ambulance as a precaution and released the next day. She returned to the court quickly and hasn't missed a day of work since. In March she said the operation had been "a complete, successful, surgical removal" of the cancer. She also said she was to undergo chemotherapy treatment.

Mixing sleeping pills and cold medicines can be doubly sedating, depending on the cold medicine's ingredients, which often induce drowsiness by themselves. And it's possible that Ginsburg was a bit more susceptible because of her cancer treatment, said Dr. Steven Cohen, a medical oncologist who specializes in pancreatic cancer at Philadelphia's Fox Chase Cancer Center.

The typical chemotherapy for pancreatic cancer, called gemcitabine, is given weekly for six months. (Ginsburg has not specified her chemo but it began in the spring.) It can cause anemia and fatigue that can take a few months to recover from once the chemo ends, Cohen said. And paradoxically, the fatigue affects the sleep-wake cycle in a way that leaves many patients needing prescription sleep aids, he said.

Add Ginsburg's busy schedule, and her recent reactions could be "related to simply being worn down from the chemotherapy," he said. "Patients are often more susceptible to the side effects of medications and the impact of a hectic schedule or demanding job than they would be" otherwise.

Ginsburg will no longer be going to London because she would not make it in time for the ceremony, court officials said. Breyer, who was flying with Ginsburg and got off the plane, took a later flight to London. Roberts and Scalia had taken an earlier flight. After the retirement in January 2006 of Justice Sandra Day O'Connor, Ginsburg was the only woman on the nine-member court until Sonia Sotomayor joined in August.

Nominated by President Bill Clinton, Ginsburg took her seat on the Supreme Court on Aug. 10, 1993. She had been a judge on the U.S. Court of Appeals for the District of Columbia Circuit since 1980. Ginsburg is considered to be one of the reliably liberal votes on the closely divided court.

Supreme Court Justice Ruth Bader Ginsburg released from hospital, back at work
NY DAILY NEWS
THE ASSOCIATED PRESS
Friday, September 25th 2009, 9:22 AM

WASHINGTON - Supreme Court Justice Ruth Bader Ginsburg was released from a Washington hospital Friday after spending the night there as a precaution.

The 76-year-old justice planned to be back at work later Friday, the court said in a statement after she was discharged from Washington Hospital Center.

Ginsburg had fallen ill in her office Thursday afternoon after receiving treatment for anemia.

Although she was found to be stable after an examination, the court said she was taken to the hospital as a precautionary measure.

Ginsburg underwent surgery for pancreatic cancer in February. Before going to the hospital, the justice received an iron sucrose infusion to treat an iron deficiency anemia that had been discovered in July.

About an hour later, she "developed lightheadedness and fatigue," a court statement said.

She was found to have a slightly low blood pressure, which the court said can occur after the type of treatment she received.

Although an examination found her to be in stable health, she was given fluids and taken to the hospital, the court said.

The July evaluation found "that she was in completely normal health with the exception of a low red blood cell count caused by deficiency of iron.

Intravenous iron therapy was administered in a standard fashion," the court statement said. Doctors on Feb. 5 removed a small, malignant growth from Ginsburg's pancreas. Doctors found no spread of it elsewhere, the court said at the time.

Her spleen also was removed. She returned to work quickly and hasn't missed a day of work since. In March she said the operation had been "a complete, successful, surgical removal" of the cancer.

However, she also said she was to undergo chemotherapy treatment. A common side effect of chemotherapy for pancreatic cancer is anemia.

Two months after her surgery, Ginsburg told law students at a symposium at Ohio State University that serving on the Supreme Court was "the best and the hardest job I've ever had."

She said she wanted to match the tenure of Justice Louis Brandeis, who served for more than two decades and retired at age 82. Ginsburg spent part of this past summer the way she usually does, teaching in Europe.

This year's class was in Rome. After the retirement in January 2006 of Justice Sandra Day O'Connor, Ginsburg was the only woman on the nine-member court until Sonia Sotomayor joined the court last August.

Nominated by President Bill Clinton, Ginsburg took her seat on the Supreme Court on Aug. 10, 1993. She had been a judge on the U.S. Court of Appeals for the District of Columbia Circuit since 1980.

Justice Ginsburg hospitalized after feeling faint
YAHOO
By MARK SHERMAN, Associated Press Writer Mark Sherman, Associated Press Writer
September 24, 2009

WASHINGTON – Supreme Court Justice Ruth Bader Ginsburg was hospitalized Thursday after becoming ill in her office at the court following treatment for an iron deficiency.

The 76-year-old justice, who underwent surgery for pancreatic cancer in February, was taken to Washington Hospital Center at 7:45 p.m. EDT as a precaution, a statement from the court said. Earlier in the day, she had received an iron sucrose infusion to treat an iron deficiency anemia that had been discovered in July.

About an hour later, she "developed lightheadedness and fatigue," the statement said. She was found to have a slightly low blood pressure, which the court said can occur after the type of treatment she received.

Although an examination found her to be in stable health, she was given fluids and taken to the hospital as a precaution, the court said.

The July evaluation found "that she was in completely normal health with the exception of a low red blood cell count caused by deficiency of iron. Intravenous iron therapy was administered in a standard fashion," the court statement said.

Court spokeswoman Kathy Arberg said late Thursday it had not yet been determined whether the justice would remain in the hospital overnight. After her surgery for pancreatic cancer in February, the justice returned to work quickly. Two months after her surgery, Ginsburg told law students at a symposium at Ohio State University that serving on the Supreme Court was "the best and the hardest job I've ever had." She said at the time that she wanted to match the tenure of Justice Louis Brandeis, who served for more than two decades and retired at age 82.

After the retirement in January 2006 of Justice Sandra Day O'Connor, Ginsburg was the only woman on the nine-member court until Sonia Sotomayor joined the court last August. Nominated by President Bill Clinton, Ginsburg took her seat on the Supreme Court on Aug. 10, 1993. She had been a judge on the U.S. Court of Appeals for the District of Columbia Circuit since 1980.

Supreme Court Delays Sale of Chrysler to Fiat
NYTIMES
By MICHAEL J. de la MERCED
June 9, 2009

The United States Supreme Court agreed Monday afternoon to delay the sale of most of Chrysler’s assets to Fiat pending further consideration of an appeal by three Indiana state funds, in a move that injects a new element of uncertainty over the carmaker’s bankruptcy case.

Justice Ruth Bader Ginsburg, who handles emergency matters arising from the United States Appeals Court for the Second Circuit, in a one-sentence order, said the orders of the bankruptcy judge allowing the sale “are stayed pending further order of the undersigned or of the court.”

The action indicates that the delay may be temporary, but for now the stay will keep Chrysler and Fiat from completing their transaction. What happens now is a bit unclear. The stay made no mention of the next step — whether Justice Ginsburg would decide on her own or ask the court to decide.

Lawyers for the three Indiana funds, which represent teachers and police officers, filed their appeal to Justice Ginsburg late Saturday night, after the Second Circuit reaffirmed a lower court’s approval of the sale. The appeals court then delayed the closing of the deal until 4 p.m. Monday or until the Supreme Court declined to issue its own delay.

The Indiana funds have sought greater compensation for their portion of Chrysler’s $6.9 billion in secured debt. They have also argued that the Obama administration illegally used federal bailout money earmarked for financial institutions to help Chrysler.

“The negative economic consequences of permitting an unlawful sale to proceed may well over time dramatically outweigh Chrysler’s short-term harm,” the funds said in their brief.

On Monday, federal officials asked the court to allow the sale without additional delay.

The government, in papers filed by the Office of the Solicitor General, said that stays are only granted under extraordinary circumstances.

Lawyers representing Chrysler, the Indiana funds, the government, Fiat and others made their arguments in a two-hour hearing on Friday before the Second Circuit. The judges issued their decision after a 10-minute recess, affirming a bankruptcy court judge’s approval of the sale.

Lawyers for Chrysler and the government had argued that the sale to Fiat should be completed as quickly as possible to preserve Chrysler’s viability and to save thousands of jobs. Fiat can walk away if no agreement is struck by June 15.

Last week, Judge Arthur J. Gonzalez of United States Bankruptcy Court for the Southern District of New York approved the sale to Fiat, overruling more than 300 objections. He later agreed to shorten a customary 10-day stay of the sale to four days, though the Court of Appeals stayed the transaction pending its hearing.

When Chrysler emerges from bankruptcy, a union retiree trust will own 55 percent, Fiat a 20 percent share that could eventually grow to 35 percent, and the United States and Canadian governments minority stakes.

Ginsburg Has Surgery for Pancreatic Cancer
NYTIMES
By ADAM LIPTAK
February 6, 2009

Justice Ruth Bader Ginsburg underwent surgery at the Memorial Sloan-Kettering Cancer Center in New York on Thursday for what was apparently early-stage pancreatic cancer, according to a statement released by the Supreme Court.

The surgery followed the discovery of a lesion during an annual check-up in late January at the National Institutes of Health in Bethesda, Md. A CAT scan revealed a small tumor, approximately one centimeter across, in the center of the pancreas, the court’s statement said.

According to Dr. Murray Brennan, the attending surgeon, Justice Ginsburg will most likely remain in the hospital approximately for seven to 10 days, the statement added. A spokeswoman for Sloan-Kettering declined to elaborate.

Robert Gibbs, the White House press secretary, said that President Obama had not yet spoken with Justice Ginsburg, but his thoughts and prayers were her and her family.

Justice Ginsburg, 75, was appointed to the court in 1993 by President Bill Clinton. She was born in Brooklyn in 1933, graduated from Cornell in 1954 and first attended law school at Harvard, where she was on the law review. After moving to New York with her husband, she transferred to Columbia, joining its law review as well. She taught at Columbia and Rutgers, and was a leading courtroom advocate for women’s rights.

As director of the Women’s Rights Project of the American Civil Liberties Union during the 1970’s, she brought a series of cases before the court that helped establish constitutional protections against sex discrimination. Her incremental litigation strategy invited comparison to Thurgood Marshall, the architect of the civil rights movement’s legal attack on race discrimination.

She argued six cases in the court, winning five.

She was treated for colon cancer in 1999 and did not miss a day on the bench. The court next hears arguments on Feb. 23.

The five-year survival rate for pancreatic cancer is 5 percent, compared with lung cancer, at about 15 percent, or colon and rectal cancer, at 64 percent. The survival rate is low because the cancer is often not diagnosed until its later stages. There is no test for early detection, and such symptoms as weight loss and abdominal discomfort are often overlooked.

Justice Ginsburg is the second woman to serve on the Supreme Court, after Justice Sandra Day O’Connor, who was appointed by President Ronald Reagan in 1981 and announced her retirement in 2005. Justice O’Connor herself underwent surgery for breast cancer in 1988.

Other justices have also battled cancer in recent memory. Justice John Paul Stevens underwent radiation treatment for prostate cancer in 1992. Chief Justice William H. Rehnquist was diagnosed with thyroid cancer 11 months before his death in September 2005.

Before her appointment to the Justice Ginsburg had earlier served for 13 years as a judge on the United States Court of Appeals for the District of Columbia Circuit.

Justice Ginsburg is a member of the court’s liberal wing. Her appointment in 1993 marked the end of a 26-year gap during which no Democratic president made an appointment to the Supreme Court. The last justice named by a Democratic president before her was, fittingly perhaps, Justice Thurgood Marshall, appointed by President Lyndon B. Johnson in 1967. President Clinton also appointed Justice Stephen G. Breyer, in 1994.