OLYMPIA – A Seattle-based atheists group asked state officials Friday for permission to display a placard outdoors on the Capitol campus over the holidays.

Jerry Schiffelbein, the treasurer for Seattle Atheists and an activist in other “free-thought” groups that advocate separation between church and state, said the sign’s message is less provocative than those that the Wisconsin-based Freedom From Religion Foundation put up last year.

The proposed 18-by-30-inch sign says, “In this holiday season let us remember that kindness, charity and goodwill transcend belief, creed or religion.”

The request to put up the sign came the day that state officials lit up a 48-foot holiday tree inside the domed Capitol rotunda, a yearly tradition now entirely under state sponsorship. The evening event featured Gov. Chris Gregoire; Army Staff Sgt. Stephanie McDowell, who recently returned from Iraq; and a children’s chorale.

The atheists’ request – just like two requests to display a Jewish menorah Thursday through Dec. 19 – will be considered under the state policy adopted after last December’s ruckus over holiday displays inside the Capitol, Department of General Administration spokesman Steve Valandra said Friday. He expects a decision on the requests Monday.

“We thought we would get more requests. There is still time,” he said.

Last December, the GA declared a moratorium because it had about a dozen requests from groups wanting to put up displays, and a third-floor area for displays was getting crowded. The GA had approved a half-dozen of the requests, including a Nativity set, an atheist placard that mocked religion as superstition, Christian placards that mocked atheism, and a 9-foot menorah.

Requests halted by the moratorium included a “Festivus” pole from the mock holiday celebrated on the TV show “Seinfeld,” a “flying spaghetti monster,” and one from a Kansas church that assails homosexuality.

Before the controversy ended, someone stole the atheists’ placard. Thousands of complaints flooded the governor’s office and the GA after a national television commentator condemned the state for allowing the atheists’ display near the Nativity scene.

The GA has approved one display request so far this year. It was one of two submitted by Chabad Jewish Discovery Center in Olympia for a 9-foot menorah. The approved request is for Sylvester Park, a state-owned property in downtown Olympia; the other is for a menorah next to the Tivoli Fountain on the campus lawn.

By Robert Barnes
Washington Post Staff Writer
Tuesday, November 17, 2009

A nearly two-decade legal challenge by Native American activists to the nickname of the Washington Redskins came to a close Monday when the Supreme Court declined to review the group’s last loss in federal courts.

The justices declined without comment to reconsider a lower court’s ruling that the activists waited too long to bring their assertion that the nickname is so racially offensive that it does not deserve trademark protection.

“Obviously, we’re quite pleased; it’s been a long road,” said Robert Raskopf, a lawyer for the team since the suit was first filed in 1992. “We’re not surprised the court didn’t see any issue worthy of review.”

Philip Mause, who represented the challengers, said the activists were “disappointed” by the court’s decision but not yet resigned to accept defeat. A new group of challengers has filed the same trademark cancellation suit in hopes that their slightly different circumstances can avoid the procedural bar that halted this case.

Raskopf said the team is not worried about the new complaint. “I think we’re very confident with our likelihood of success,” he said.

Through the years, the team has steadfastly defended the use of the Redskins nickname as honoring Native Americans, not disparaging them. When based in Boston, the team was known as the Boston Braves and was renamed in 1933 as the Redskins. The team said in its brief to the court that the new name was “in honor of the team’s head coach, William ‘Lone Star’ Dietz, who was a Native American.”

The team became the Washington Redskins in 1937, when it moved south.

Native American groups have persuaded scores of high school and college teams to rename their mascots. The National Congress of American Indians told the justices in a friend of the court brief that the name is “patently offensive, disparaging, and demeaning and perpetrates a centuries-old stereotype.”

But despite vociferous protests, Washington has not budged. Under both former owner Jack Kent Cooke and current owner Daniel Snyder, Raskopf said, there has never been “even a whisper” about changing the nickname.

For the most part, though, the battle has been fought on the more mundane grounds of legal procedure, and even a victory by the activists would have cost the team only trademark protection and would not have forced it to abandon the name.

The battle began in 1992, when seven activists, led by Suzan S. Harjo, challenged Redskins trademarks issued in 1967. They won a decision seven years later from the Trademark Trial and Appeal Board, which said the name could be interpreted as offensive to Native Americans.

Trademark law prohibits registration of a name that “may disparage . . . persons, living or dead, . . . or bring them into contempt, or disrepute.”

Pro-Football Inc., the team’s corporate owner, appealed to federal court.

In 2003, U.S. District Judge Colleen Kollar-Kotelly sided with the team, ruling that the activists had not produced enough evidence to show the name was so insulting that it could not be protected by a trademark. She also said the trademark-cancellation claim was barred by the doctrine of laches, which serves as a defense against claims that should have been made long ago.

She revisited the issue after the U.S. Court of Appeals for the District of Columbia returned it to her, saying the youngest of the plaintiffs might have standing to pursue the case. But Kollar-Kotelly ruled that the challenger, Mateo Romero, waited eight years after he reached the age of majority to file the complaint. She said the delay unfairly penalized the Redskins, who invested millions of dollars marketing the team during that eight-year span.

A three-judge panel of the appeals court agreed that eight years was too long to bring the claim.

The Supreme Court was being asked only to review whether the claim was brought too late, not whether the nickname was offensive.

Mause had argued that the justices should take the case to decide whether disparaging trademarks can be challenged at any time. He cited a decision from the U.S. Court of Appeals for the 3rd Circuit, which was written by then-judge, now-Justice Samuel A. Alito Jr., that he said supported that view.

The case the court declined to hear is Harjo v. Pro-Football, Inc.

At a glance:

Only 9 people in the country are serving life sentences for crimes committed when they were 13. The number rises to 73 when 14-year-olds are added in. No other country allows life sentences for young offenders.

WASHINGTON – Joe Sullivan was sent away for life for raping an elderly woman and judged incorrigible though he was only 13 at the time of the attack.

Terrance Graham, implicated in armed robberies when he was 16 and 17, was given a life sentence by a judge who told the teenager he threw his life away.

They didn’t kill anyone, but they effectively were sentenced to die in prison.

Life sentences with no chance of parole are rare and harsh for juveniles tried as adults and convicted of crimes less serious than killing. Just over 100 prison inmates in the United States are serving those terms, according to data compiled by opponents of the sentences.

Now the Supreme Court is being asked to say that locking up juveniles and throwing away the key is cruel and unusual – and thus, unconstitutional. Other than in death penalty cases, the justices never before have found that a penalty crossed the cruel-and-unusual line. They will hear arguments today.

Graham, now 22, and Sullivan, now 33, are in Florida prisons, which hold more than 70 percent of juvenile defendants locked up for life for nonhomicide crimes. Although their lawyers deny their clients are guilty, the court will consider only whether the sentences are permitted by the Constitution.

The Supreme Court’s latest look at how to punish young criminals flows directly from its four-year-old decision to rule out the death penalty for anyone younger than 18.

In that 2005 case decided by a 5-4 vote, Justice Anthony Kennedy’s majority opinion talked about “the lesser culpability of the juvenile offender.”

“From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed,” Kennedy said.

Yet Kennedy also acknowledged the possibility that for the worst crimes and the worst offenders, “the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person.”

Both sides point to the same basic facts – the rare imposition of Draconian prison terms on people so young – to make their point.

The state of Florida, backed by 19 other states, argues it should retain flexibility in sentencing so that “particularly heinous acts that stop short of causing death” can be punished vigorously.

Life without parole “is appropriately rare and reserved only for the worst of the worst offenders,” crime victims groups said in court papers.

Most victims of juvenile violence also are young, the victims groups said, citing Justice Department statistics. “Softening sentences for juvenile offenders puts actual children in harm’s way – innocent ones, not those who have committed violent crimes,” the victims groups said.

Opponents of such sentences said, however, that most states have in practice rejected life terms for juveniles when no one was killed. The 109 juveniles serving terms of life without parole are in Florida and seven other states – California, Delaware, Iowa, Louisiana, Mississippi, Nebraska and South Carolina – according to a Florida State University study. More than 2,000 other juveniles are serving life without parole for killing someone.

Beyond the infrequency of such punishment, lawyers for Graham and Sullivan argue that it is a bad idea to render a final judgment about people so young.

“They are unfinished products, works in progress,” said Bryan Stevenson, who will argue Sullivan’s case at the high court.

Actor Charles Dutton, former U.S. Sen. Alan Simpson and others who committed crimes as teenagers have weighed in against life-without-parole sentences. Corrections officials, psychologists, educators and even some victims also have taken Graham and Sullivan’s side.

Simpson, a Wyoming Republican, served 18 years in the Senate, but as a teenager, he pleaded guilty to setting fire to an abandoned building on federal property and later spent a night in jail for slugging a police officer.

Simpson said he sees no good argument for refusing even to review their sentences after the passage of time.

“When they get to be 30 or 40 and they been in the clink for 20 years or 30 or 40 and they have learned how to read and how to do things, why not?”

If a prisoner shows he is not fit to be released, “throw him back in,” he said. “That’s better than saying ‘Sorry, we can’t look at that file because you were sent here for life.’ ”

WASHINGTON – The Supreme Court’s conservative bloc sounded poised Wednesday to strike down on free speech grounds a 100-year-old ban against corporations spending large amounts of money to elect or defeat congressional and presidential candidates.

If the justices were to issue such a ruling in the next few months, it could reshape American politics, beginning with the congressional campaign in 2010. Big companies and industries – and possibly unions as well – could fund campaign ads to support or defeat members of Congress.

Since 1907, federal law has prohibited corporations from giving money to candidates. And since 1947, corporations and unions have been barred from spending money on their own to urge voters to elect or defeat federal candidates. Corporate executives, as individuals, can contribute money to a corporate political action committee or PAC, but these amounts are relatively modest compared to the funds available to the corporate treasury.
At least 24 states have similar bans on corporate spending in state races.
All those spending limits have come under growing legal attack from conservatives and libertarians who say the government should not be allowed to set limits on campaign spending and electioneering, even when corporate or union money is in play.

Three justices – Antonin Scalia, Anthony Kennedy and Clarence Thomas – have already said they would overrule past decisions that had upheld federal and state restrictions on corporate election spending. Chief Justice John Roberts and Justice Samuel Alito also have said they favor free speech over the campaign funding limits. But they have not yet said whether they would go along and give corporations a free speech right to spend on campaign ads.

That was the issue before the court Wednesday. It was a rare re-argument in a seemingly narrow case of a small nonprofit group called Citizens United. It had produced a video called “Hillary: The Movie,” which was designed to undercut Hillary Rodham Clinton’s 2008 campaign for the presidency. However, it got tied up in a legal battle with the Federal Election Commission.

Because Citizens United is incorporated and received a small amount of corporate money, the group and its movie came under FEC regulation. Any amount of corporate money can trigger regulatory action under the election laws.
In March, the justices debated whether the law should apply to a nonprofit group that produced a campaign-related video. But rather than decide that narrow question, the justices said in June they would focus instead on whether to say that all corporations, like individuals, have a right to spend freely to elect or defeat candidates.

Washington lawyer Ted Olson, the former solicitor general under President George W. Bush, pressed the justices to rule broadly. “Corporations are persons entitled to protection under the First Amendment,” said Olson, who represented Citizens United.

Sens. John McCain, R-Ariz., and Russell Feingold, D-Wis., co-sponsors of the 2002 campaign funding law, were in the courtroom and listened intently to the 90-minute argument. The ruling could strike down part of the McCain-Feingold Act that restricted corporate and union-funded election ads in the months before the election.

The court will meet behind closed doors later this week to vote on the case. A decision could come within a few months.

Published Sep 24, 2009 From the magazine issue dated Oct 5, 2009

Next week the Supreme Court will begin its 2009 term, secure in the knowledge that it remains completely misunderstood by the American public. A Gallup poll conducted in September showed the court’s current approval rating—61 percent—to be higher than it’s been in a decade. (Last year that number was 50 percent.) This fall, 50 percent of Americans believe the court is not too liberal or too conservative; that’s up from 43 percent last year. The number of Americans who believe the court is too conservative has dropped from 30 to 19 percent.

All this public admiration for the court’s moderation came the same week the court was hearing a campaign-finance-reform case that may dismantle a longstanding system of campaign-finance restrictions. The issue in Citizens United v. Federal Elections Commission is not limited to the constitutionality of the McCain-Feingold campaign-finance-reform law. The reason court watchers got so worked up about this case is that it squarely tests Chief Justice John Roberts’s stated commitments to preserving precedent, deferring to the elected branches, and issuing narrow rulings instead of sweeping ones. Oral arguments revealed that the court’s five conservatives feel nothing but contempt for campaign-finance regulations that demonize corporations, restrict core political speech, and—to quote the chief justice—”put our First Amendment rights in the hands of FEC bureaucrats.”

But that’s where the public confusion kicks in. In last term’s cases on voting rights, reverse discrimination, and a school strip search, the court opted for narrow, case-specific rulings rather than the sweeping ones foreshadowed by dramatic oral arguments. All this hardly means the 2008 term was a triumph for liberals at the high court. On balance, the term continued a clear trend in which big business always prevails, environmentalists are always buried, female and elderly workers go unprotected, death-row inmates get the needle, and criminal defendants are shown the door. So how to explain these new poll numbers showing that 49 percent of Republicans believe the Roberts Court is too liberal and 59 percent of Democrats believe the court is “about right”?

In part, the numbers reflect a focus on the wrong data; we continue to believe in the court we see on TV. Thus, the highly charged confirmation hearings of Justice Sonia Sotomayor this summer contributed to the idea that the court was swinging leftward, even though it’s clear that her substitution for Justice David Souter will do nothing to alter the balance of the court (indeed, she is generally expected to move the court to the right in some areas of criminal law). Similarly, the refusal of the court to go all the way in the big-banner civil-rights cases last year leads to the broad perception that the court is quite liberal.

To be sure, progressives who claim that the court’s eventual ruling in September’s campaign-finance fracas will conclusively reveal the heart of darkness that lurks inside the Roberts Court are also overstating their case. It’s true that the Roberts Court is a fundamentally conservative creature and will remain that way for the foreseeable future. But as we learned yet again last term, it’s also a court that is deeply aware of, even responsive to, public opinion. This is a court willing to reverse the Warren revolution with a tablespoon instead of a wrecking ball, and that may be too nuanced an approach to be captured in public-opinion polls.

The term that opens next week promises to provide another fistful of cases that will slowly deepen our understanding of the Roberts Court. Among them: yet another challenge to a cross on government property (raising questions about who has standing to be offended by religious symbols); a dispute over the constitutionality of a federal statute criminalizing depictions of animal cruelty; questions about whether juveniles may be sentenced to life without parole; another hot eminent-domain case; and maybe even a quarrel over whether the name “Washington Redskins” is offensive. If the tea leaves are correct, we may also see another confirmation hearing next summer.

As a generation raised on a constant diet of reality television and the inevitable “big reveal,” we will continue to look to the high drama of oral argument and the staged fireworks of judicial-confirmation hearings for our views about the Supreme Court. What really happens at the high court in the coming years will continue to occur by the tablespoon—even if we are too busy with imagined wrecking balls to see it.

Tags: gun rights u.s. supreme court

Associated Press The Supreme Court sits for a group photograph Tuesday ahead of the new session. The justices are: Samuel Alito Jr., Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Anthony M. Kennedy, John Paul Stevens, Chief Justice John G. Roberts, Antonin Scalia and Clarence Thomas.

WASHINGTON – The Supreme Court set up a historic decision on gun control Wednesday, saying it will rule whether restrictive state and local laws violate the Second Amendment right to gun ownership that it recognized last year.

The landmark 2008 decision to strike down the District of Columbia’s ban on handgun possession was the first time the court had said the amendment grants an individual right to own a gun for self-defense. But the 5-to-4 opinion in District of Columbia v. Heller did not address the question of whether the Second Amendment extends beyond the federal government and federal enclaves such as Washington, D.C.

Most court observers think that the five justices who recognized the individual right will also find that the Second Amendment applies to state and local governments, a move that could spark challenges of state and local laws governing gun registration, how and when the weapons can be carried, and storage requirements.

The court will hear a challenge of handgun laws in Chicago and the neighboring village of Oak Park, Ill. It was filed by Alexandria, Va. attorney Alan Gura, who successfully argued the Heller case. He said the Chicago ban is “identical” to the one found unconstitutional in the District.

The announcement came as the court prepared for its new term, which will officially begin on Monday. Justices sifted through more than 2,000 petitions accumulated through the summer and selected 10 to hear.

Also on the list was an examination of an anti-terrorism statute, widely used by federal prosecutors, that bans material support to groups that the State Department designates as terrorism organizations.

Solicitor General Elena Kagan told the court that the law is a “vital part of the nation’s effort to fight international terrorism,” but a lower court said some of the statute was unconstitutionally vague.

The decision to accept the Chicago gun case was a natural progression from the decision in Heller, which split the court on ideological grounds. The liberal justices said the Second Amendment guaranteed only a collective right for gun ownership to maintain militias.

If the amendment is extended, the next question will be about the kind of restrictions allowed. The Heller opinion by Justice Antonin Scalia said some requirements would be constitutional, but it was not specific.

Gura hopes for a “definitive ruling” on Chicago’s restrictions, and said he thinks that at a minimum the court would strike the same kind of handgun ban it found objectionable in Washington.

But gun-control advocates played down the importance of the case, saying few states or municipalities had such restrictive laws. Only a handful of states do not protect gun ownership in their constitutions, and 33 filed a brief advocating that the court find that the Second Amendment applies to them.

“Even if the court were to hold the Second Amendment applicable to states and localities, such a ruling is unlikely to change the crucial holding by the Supreme Court in Heller that a wide range of reasonable gun laws are presumptively constitutional, and that the Second Amendment right is narrowly limited to guns in the home for self-defense,” said Paul Helmke, president of the Brady Campaign to Prevent Gun Violence.

The method by which the court might apply the Second Amendment is what interests constitutional scholars. The Bill of Rights originally was thought to be a restriction on the federal government, a perception furthered by a 19th Century court ruling that differentiated between state and federal rights.

Since then, the court has gradually applied most of the 10 amendments to the states in a process called “incorporation,” but not the Second Amendment.

Gura is supported by liberal and conservative scholars who say the issue should be taken care of by the post-Civil War 14th Amendment, which says a state may not “abridge the privileges and immunities” of citizens nor deprive liberty “without due process of law.”

Clark Neily, a senior lawyer at the conservative Institute for Justice, said in a statement: “This case is about more than guns – it is about whether the Supreme Court should interpret the Constitution as the powerful protection of liberty it was intended to be. His organization sees the “privileges and immunities” clause as a protector of “economic liberty” and “armed self-defense.”

Liberal scholars such as Doug Kendall of the Constitutional Accountability Center consider the clause an “explicit protection for substantive liberty that would reinforce the constitutional underpinnings of Roe v. Wade and the court’s ruling protecting sexual autonomy for gays and lesbians.”

Justice Sonia Sotomayor was part of a panel on the U.S. Court of Appeals for the 2nd Circuit that said in an unrelated case that only the Supreme Court could decide whether the Second Amendment applies beyond the federal confines. Because the court accepted the case from the U.S. Court of Appeals for the 7th Circuit, she is free to participate.

The case is McDonald v. Chicago. The earliest it would be argued is Jan. 11.

For years, death-penalty opponents and supporters have been working their way toward a moment in which each side would rethink things. They were seeking a case in which a clearly innocent defendant was wrongly put to death. In a 2005 Supreme Court case that actually had nothing to do with the execution of innocents, Justices David Souter and Antonin Scalia tangled over the possibility that such a creature even existed. Souter fretted that “the period starting in 1989 has seen repeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA tests.” To which Scalia retorted: “The dissent makes much of the newfound capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt.” Scalia went on to blast “sanctimonious” death-penalty opponents and a 1987 study on innocent exonerations whose “obsolescence began at the moment of publication,” then concluded that there was not “a single case—not one—in which it is clear that a person was executed for a crime he did not commit.”

This suggested that if anyone found such a case, the Scalias of the world would rethink matters. As of today, the Innocence Project, a national organization dedicated to exonerating the wrongfully convicted through DNA testing, claims there have been 241 postconviction DNA exonerations, of which 17 were former death-row inmates spared execution. The gap between their facts and Scalia’s widens every year. And now we may have found that case of an innocent put to death: Cameron Todd Willingham, executed by the state of Texas in 2004 for allegedly setting a 1991 house fire that killed his three young daughters.

David Grann, who wrote a remarkable piece about the case in last week’s New Yorker, sifted through the evidence against Willingham to reveal that the entire prosecution was a train wreck. And at every step in his appeal, Willingham’s claims of innocence were met with the response that he’d already had more than enough due process for a baby killer.

But you needn’t take Grann’s word for it. In 2004 Gerald Hurst, an acclaimed scientist and fire investigator, conducted an independent investigation of the evidence in the Willingham case and came away with little doubt that it was an accidental fire—likely caused by a space heater or bad wiring. Hurst found no evidence of arson, and wrote a report to try to stay the execution. According to documents obtained by the Innocence Project, it appears nobody at the state Board of Pardons and Paroles or the Texas governor’s office even took note of Hurst’s conclusions. Just before Willingham was executed, he told the Associated Press, “[T]he most distressing thing is the state of Texas will kill an innocent man and doesn’t care they’re making a mistake.”

Since Willingham’s death, two other independent inquiries found no evidence of arson. In 2007 the state of Texas commissioned another renowned arson expert, Craig Beyler, to examine the Willingham evidence. Beyler’s report, issued two weeks ago, concluded that investigators had no scientific basis for claiming the fire was arson.

One might think that all this would give a boost to death-penalty opponents, who have long contended that conclusive proof of an innocent murdered by the state would fundamentally change the debate. But that was before the goalposts began to shift this summer. In June, by a 5–4 margin, the Supreme Court ruled that a prisoner did not have a constitutional right to demand DNA testing of evidence in police files, even at his own expense. “A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man,” wrote Chief Justice John Roberts. And two months later, Justices Scalia and Clarence Thomas went even further when the Supreme Court ordered a new hearing in Troy Davis’s murder case, after seven of nine eyewitnesses recanted their testimony. Justice Scalia, dissenting from that order, wrote for himself and Thomas, “[T]his court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

As a constitutional matter, Scalia’s assertion is not wrong. The court has never found a constitutional right for the actually innocent to be free from execution. When the court flirted with the question in 1993, a majority ruled against the accused, but Chief Justice William Rehnquist left open the possibility that it may be unconstitutional to execute someone with a “truly persuasive demonstration” of innocence. Now, in Scalia’s America, the Cameron Todd Willingham whose very existence was once in doubt is legally irrelevant. We may execute a man for an accidental house fire, while the Constitution itself stands silently by.

Lithwick also writes for slate.com.

Linda P. Campbell is a columnist for the Fort Worth Star- Telegram. Her e-mail address is lcampbell@star-telegram.com.

Amy Goodman is the host of “Democracy Now!,” a daily international TV/radio news hour airing on more than 750 stations in North America. Denis Moynihan contributed research to this column.

By Michael Gerson

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Page Printed from: http://www.realclearpolitics.com/articles/2009/05/29/entering_the_trap_96716.html at May 29, 2009 – 10:06:26 AM PDT

Opponents of gay marriage often cite Scripture. But what the Bible teaches about love argues for the other side.

NEWSWEEK

Why are the two major presidential candidates virtually ignoring the importance of this election in determining the composition of the Supreme Court and the future of constitutional law? One of a president’s most long-lasting legacies is in the judges he places on the bench. Justice John Paul Stevens, now 88, was appointed by President Ford in 1975. If John G. Roberts Jr. remains on the court until he is 88, he would be chief justice until 2043.

Although the candidates’ mentions of the issue have been few, it is clear that there is a sharp difference between them as to what type of individuals they would name to the Supreme Court. John McCain has said that he would appoint individuals like Roberts and Samuel A. Alito Jr., and that he admires the judicial philosophies of Antonin Scalia and Clarence Thomas. Barack Obama voted against the confirmation of Roberts and Alito and has said that he would appoint justices like Ruth Bader Ginsburg and Stephen G. Breyer.

The issue of judicial appointments is particularly important in this election, because there are almost sure to be vacancies on the Supreme Court during the next presidential term. It seems unlikely that Stevens will remain on the court until 2013, when he would be 93. Ginsburg is 75, and there is speculation that she might retire. It also has been widely rumored that David H. Souter wants to retire and go home to New Hampshire.

If McCain gets to replace any of these justices, let alone more than one, there likely would be dramatic changes in many areas of constitutional law. There are almost certainly four votes on the current court – Roberts, Scalia, Thomas and Alito – to overrule Roe v. Wade and allow the government to prohibit abortion. In light of McCain’s emphatic opposition to abortion rights, he likely would appoint the decisive fifth vote to end constitutional protection of those rights. Obama, by contrast, would almost certainly appoint individuals who would reaffirm Roe.

The disagreements between McCain and Obama about issues of constitutional law extend far beyond just abortion rights. McCain said that the Supreme Court’s decision in June protecting the right of those held as prisoners at Guantanamo Bay to have access to federal court hearings was one of the worst in history. Obama praised it for upholding the rule of law and ensuring compliance with the Constitution. Because it was a 5-4 decision that included Stevens, Souter and Ginsburg in the majority, McCain’s replacing even one of these justices could cause the court to reverse itself.

Likewise, a McCain appointment to the high court probably would cast the fifth vote to overrule the court’s 2003 decision to allow colleges and universities to consider race in admissions to achieve diversity.

The presidential candidates likely have made a political calculation to avoid discussion of judicial picks, because the issue is not paramount to the all-important undecided, swing voters.

Moreover, the candidates – especially Obama – seem to want to avoid the underlying constitutional issues. For example, Obama rarely emphasizes his support for abortion rights, being content to say that the goal should be to decrease the number of abortions. Nor does he see political gain in defending affirmative action or the rights of suspected terrorists.

But this strategy may be a serious miscalculation in what is likely to be a very close election. Each candidate needs to turn out his base of support, which does care about this crucial issue. Equally important, there may be appeal to key groups of undecided voters, such as Republican women, Hispanics and younger voters.

Even with the economic crisis and the war in Iraq as dominant political issues, there is time to discuss the president’s role in filling judicial vacancies. The stakes are no less than the content of constitutional rights for a generation to come.

WASHINGTON – A business-friendly Supreme Court will start another season Monday on familiar turf.

With a closely watched case involving cigarette advertising, Chief Justice John G. Roberts Jr. will resume the corporate focus that’s marked his three-year tenure. The cases may not sound sexy, but they can be crucial for companies and consumers alike.

“The question,” noted Robin Conrad, the executive vice president of the National Chamber Litigation Center, “comes down to who gets to regulate business.”

So far, the Supreme Court has agreed to hear some 41 cases for the 2008-09 term, which begins on the traditional first Monday morning in October. The National Chamber Litigation Center, the increasingly active litigation arm of the U.S. Chamber of Commerce, has identified at least 16 of these as business cases.

The court typically hears about 75 cases each term, and some of the most important disputes may not have matured yet. The justices will continue adding cases through early next year.

Unlike recent years, the court hasn’t yet scheduled a Guantanamo Bay or obvious national-security case, though they might yet arise. The culture war issues, including abortion, bandied about by presidential candidates are nowhere to be seen yet, although there’s one case involving dirty words on television. Other high-profile disputes, including all-but-certain legal challenges to the new $700 billion financial bailout package, remain dormant.

“It’s going to take a while (for the bailout law) to get to the Supreme Court,” former Solicitor General Paul Clement predicted.

The pending business interests, meanwhile, revolve around high-dollar, dry-sounding issues such as pre-emption.

The term’s inaugural case, for instance, called Altria Group v. Good, will determine whether federal authority freezes out consumers from challenging cigarette advertising in state courts. A similarly themed case, Wyeth v. Levine, centers on state vs. federal authority over drug labeling.

The facts can be gruesome. Vermont resident Diana Levine lost her right arm below the elbow after the allegedly unsafe injection of a medicine. The implications may be sweeping. Nearly 30 groups – ranging from the California Medical Association to Democratic Sen. Dianne Feinstein, of California, and Democratic Rep. Debbie Wasserman Schultz, of Florida – have filed friend-of-the-court briefs, known as amici curiae, in Wyeth.

“This case may win the amici sweepstakes for this term,” joked David Vladek, a law professor at Georgetown University Law Center.

The pre-emption theme surfaces in different ways, though the core principle remains the same. As Conrad put it: Who gets to regulate?

In Altria, for instance, three Maine residents claim that the manufacturer of Marlboro Light and Cambridge Light cigarettes – the firm more commonly known as Philip Morris – deceptively advertised the cigarettes as essentially safer. The tobacco company and business allies including drug manufacturers argue that a federal cigarette-labeling law blocks smokers from taking action under state deceptive-practices laws.

Every Supreme Court term contains a surprise or two, but handicappers already are predicting some likely winners and losers. Count business among the probable winners. In the past two terms, the U.S. Chamber of Commerce has prevailed in 21 out of 31 cases in which it’s filed briefs.

“This is a court that feels comfortable with business,” said lawyer Beth Brinkmann, who’s argued numerous cases before the high court.

Individual case winners also might be predictable. Next Wednesday, for instance, the justices will hear in Winter v. Natural Resources Defense Council a challenge that some label as the Pentagon v. whales.

The Navy’s 3rd Fleet wants to use mid-frequency active sonar for training exercises off the Southern California coast. Environmentalists contend that the underwater sonar emissions disrupt whales, dolphins and other marine mammals. The legal question, one being closely watched by timber companies, builders and others, is when “emergency circumstances” can overcome a court’s injunction.

In a wartime case coming out of the often-reversed 9th U.S. Circuit Court of Appeals, where a Navy victory is simultaneously a win for business interests, the odds appear set.

“For the whales, it’s not looking so good,” Georgetown law professor Lisa Heinzerling said.

Sure, you sometimes want to shake Joe Biden and shout, “When are you going to get to your question and let the witness speak?”

But can Sarah Palin say she’s helped evaluate the qualifications of every sitting U.S. Supreme Court justice?

Biden, the Democrats’ nominee for vice president, voted on 11 of the last 12 Supreme Court appointees. (He was sick and didn’t vote when the Senate approved Justice Anthony Kennedy 97-0 in 1988.)

Biden voted to approve Republicans as well as Democrats – though he opposed “conservative” heroes Robert Bork, whose nomination failed in 1987, and Clarence Thomas, both of whose hearings were surrounded by ugly and contentious interest-group battles.

It might be surprising to learn that while Biden voted against both of George W. Bush’s appointees, the accomplished and likable John Roberts and longtime appellate Judge Samuel Alito, the 35-year senator voted for Justice Antonin Scalia, who’s been one of the court’s most doctrinaire conservative members.

But Scalia was approved 98-0 in 1986, despite resisting efforts to probe his judicial philosophy, as Democrats focused on opposing (unsuccessfully) Justice William Rehnquist’s elevation to chief.

Unlike Palin, the Republican vice presidential nominee, Biden has a long record to examine for insight into how he might influence the selection of Supreme Court justices.

But there’s more to it than just looking at his votes.

Legal affairs writer Jeffrey Rosen argues that, during the Bork and Thomas hearings, Biden didn’t do the bidding of abortion-rights groups, something for which “women’s groups remain angry at Biden to this day.” Instead, he was interested in a broader concept of privacy, important to most Americans, the idea that the Constitution protects such things as the contraception choices of married couples.

Biden opposed Roberts and Alito in part because he found their answers lacking on the scope of constitutional safeguards for privacy.

Palin, who has a journalism degree, is neither a lawyer nor has she taught constitutional law, like Biden.

But in Alaska, the governor selects judges from a committee’s recommendations, and the appointees later run in retention elections.

In her less than two years as governor, Palin has appointed 13 judges, including a state Supreme Court justice, Joe Palazzolo and Tony Mauro wrote recently on law.com.

They reported that Palin asked at least one candidate whether the Constitution is a living, breathing document – a bugaboo for those like Scalia who favor an “original intent” approach to constitutional interpretation.

On the other hand, liberals might give Palin points for supporting a $200,000 appropriation for the Alaska Legal Services Corp., given that Republicans do not have a history of particularly favoring legal services agencies.

Nowhere is the vice president charged with helping pick Supreme Court members, but the last two VPs have been heavily involved. The next president almost surely will name one or more justices.

I’m not convinced that hopes or fears about how the next president might shape the Supreme Court should decide which candidate to choose.

Keep in mind that it’s easier to predict the volatile and divisive issues likely to come before the court in the short term – property rights, the death penalty, business regulations, etc. – than those likely to be thrust upon them unexpectedly: Bush v. Gore, anyone? Detainees’ rights?

Also consider that it’s been the Supreme Court that’s checked the Bush administration’s power-grabbing attempts and managed to maintain the Constitution’s balances.

Rosen wrote in The New Republic that, “with Biden at his side, (Barack) Obama has more than a like-minded defender of civil liberties; he has one of the nation’s most effective spokesmen on their behalf.”

Can McCain-Palin say as much?

School administrators can gain from a recent court decision some much-needed guidance on how to react to student voices they dislike.

The good news for students – and for all Americans – is that this newest legal lesson supports more speech instead of placing more limits on student expression.

A landmark 1969 U.S. Supreme Court decision – Tinker v. Des Moines Independent Community School District, involving students and Vietnam War protest armbands – put forth the idea that young citizens don’t automatically surrender their First Amendment rights at the schoolhouse door.

But since then, courts at various levels have set about defining when and how officials legally could shut down student expression. A number of those legal limits have been driven by security, education or drug-related concerns.

No principal, no superintendent – and no judge, for that matter – wants to be the person whose inattention, inactivity or decision results in another Columbine-style massacre. Judges have recognized that teachers cannot teach and students cannot learn amid chaos or fear. And the dangers of drug use are painfully obvious.

Still, in various cases in just the past five years, students have been silenced because the message was politically incorrect or offended administrator sensibilities or community views. After voicing or writing sharp political views about the war in Iraq or illegal immigrants or gay rights or after penning provocative illustrations involving Old Glory, students have been told to sit down, shut up and wait their turn as citizens until they leave school – or face suspension or worse.

Many disputes are settled out-of-court, more often than not with an apology to the student and reinstatement. But the 8th U.S. Circuit Court of Appeals weighed in on Sept. 2 with a common-sense decision supporting the rights of students to object to – of all things – a school policy.

A three-judge panel agreed that school officials in Watson Chapel, Ark., violated the constitutional rights of three students in 2006 who were disciplined for wearing black armbands or wristbands to school to protest a new policy enforcing school uniforms and for handing out a flier objecting to the policy.

The administrators agreed in court that the student protest did not disrupt classes or order at the school.

The 8th Circuit panel said that despite restrictive decisions since it was handed down, including the 2007 Supreme Court decision in the so-called “Bong Hits for Jesus” case, “Tinker remains good law.” Students in both Tinker and the Watson Chapel case were exercising a right of protest against a government policy – something officials in every school ought to celebrate by example, not denigrate.

Advocates for student expression have feared that school officials and lower courts would expand legal controls into other areas of student free expression based on the ruling in that “Bong Hits” case. In that case – officially called Morse v. Frederick – the high court said officials may clamp down on student speech regarded as encouraging drug use.

School officials in Arkansas even argued that the subject matter was too mundane to get constitutional protection. The decision in the Watson Chapel case, however, squarely affirms that non-disruptive student speech, be it on issues of international interest or on local policies such as school uniforms, is protected by the First Amendment.

In an era in which educators struggle to motivate students to think critically, and to instill basic American values of good citizenship, arbitrarily denying basic rights to speak out, to write in protest, to assemble and to peaceably “seek redress” seems wrong-headed.

Students should learn about First Amendment freedoms in the classroom rather than the courtroom.

I had a conversation with a seemingly smart woman recently who thought that Roe v. Wade would never be overturned regardless of who wins the presidency. Though deeply pro-choice, she said she has voted for a Republican as president in the past because she likes the concept of local control and thinks Republicans represent that ideal better.

Now had she said that she’s willing to forgo abortion rights for other Republican political values, that would be one thing. (Although President Bush’s imperial presidency stands starkly inapposite to her stated interest in decentralized power.) But she couldn’t even contemplate a world without Roe’s protections. She was horrified by the prospect and yet, through determined denial, she was willing to be an instrument of the ruling’s demise.

We are almost certainly one U.S. Supreme Court justice away from Roe’s being consigned to the dustbin of history. With two of the court’s liberals being the two oldest members on the court – Justice John Paul Stevens is 88 years old and Justice Ruth Bader Ginsburg is 75 – the next president is going to be the decider.

And if he wins, Sen. John McCain promises to be the one to overturn Roe by picking justices who will do the deed. On this, McCain couldn’t be clearer.

In case you missed his recent appearance before the evangelical audience of pastor Rick Warren’s Saddleback Church, McCain was asked: When is a baby entitled to human rights? His emphatic response: “At the moment of conception.” (Add wild applause here.)

Think about this.

Were this view to come to pass and a single-cell zygote were imbued with 14th Amendment rights to life, liberty and property, not only would abortion rights go away, but infertile couples would lose the option of in vitro fertilization. It would also mean the end of all embryonic stem cell research.

This last bit is at odds with McCain’s expressed stance. He has said he would allow federal funds for embryonic cell research in narrow circumstances, on embryos slated for destruction in fertility clinics.

But to state the obvious, embryos with rights equivalent to a bar mitzvah boy may not be destroyed for scientific experimentation, even if that science holds immense medical promise for, you know, the born.

And those fertility clinics McCain speaks of would have to close because it would not be OK – not in the least – to freeze all those petri-dish-souls who are not lucky enough to be implanted in a womb.

A 5-day-old embryo of about 150 cells used in stem cell research is smaller than a grain of sand. (Note that the brain of a fruit fly has 250,000 cells.) The idea of human rights flowing to such an entity is just plain silliness. But the consequences of this view are not silly at all.

Right now a controversy is swirling around Mike Leavitt, secretary of Health and Human Services, who proposed new regulations on Thursday that potentially embrace the human-rights-at-conception paradigm.

The regulations would deny federal funds to hospitals, clinics, pharmacies and health plans that don’t allow their employees to opt out of providing care that offends their personal convictions.

In other words, if a doctor holds the belief that human rights attach at conception, he must be allowed to refuse to provide emergency contraception to patients who need it – even a rape victim.

Catholic hospitals and pharmacies too would be able to deny women access to so-called morning-after pills.

Extremists claim it’s a chemical abortion by occasionally preventing the implantation of a fertilized egg.

Pro-choice Republican voters are deluding themselves if they think Roe is eternal no matter who wins the White House. If McCain is president he promises to grant human rights to microscopic cells, and he very well may succeed.

PIERRE, S.D. – In a victory for antiabortion forces, doctors in South Dakota are now required to tell a woman seeking an abortion that the procedure “will terminate the life of a whole, separate, unique living human being.”

The U.S. Court of Appeals for the 8th Circuit last week lifted a preliminary injunction that prevented the language from taking effect. A spokesman for Planned Parenthood, which runs the state’s only abortion clinic, said doctors will begin reciting the script to patients as early as this week.

On another front, South Dakota voters will be asked in a Nov. 4 referendum to consider broad limits on abortion for the second time since 2006. The ballot measure includes exceptions for rape, incest and the woman’s health that were not part of the 2006 wording rejected by voters.

Antiabortion forces in South Dakota have been trying for years to halt the procedure and to build a winnable challenge to Roe v. Wade, the 1973 Supreme Court decision legalizing abortion nationwide.

A law that took effect July 1 requires doctors to ask a woman seeking an abortion if she wants to see a sonogram of the fetus. About 700 abortions are performed in South Dakota each year.

The doctors’ script that officially took effect Friday has been tied up in court since 2005, when Planned Parenthood challenged a law that instructed physicians what to tell abortion patients. Under the law, doctors must say that the woman has “an existing relationship” with the fetus that is protected by the U.S. Constitution and that “her existing constitutional rights with regards to that relationship will be terminated.” Also, the doctor is required to say that “abortion increases the risk of suicide ideation and suicide.”

The message must be delivered no earlier than two hours before the procedure. The woman must say in writing that she understands.

Related story: Questions and answers about the primary
More election news: Briefings, multimedia and more

Washington voters have a new system this summer to winnow out candidates for the general election. The first “top two primary,” on Aug. 19, will pare a long list of partisan and nonpartisan offices.

Some races are overflowing with candidates.

The governor’s race has 10 candidates, although most voters would be hard-pressed to name more than incumbent Chris Gregoire and the man she edged out in 2004, Dino Rossi. Gregoire, a Democrat, and Rossi, who lists his party preference as GOP, share the ballot with two Republicans, another Democrat, one candidate each from the Reform Party, the Green Party and the Independent Party, and two who say they have “No Party Preference.”

Other races are merely a warm-up for the general election, with just two candidates in the primary who will face each other in November unless a major write-in campaign knocks one out of the running. The state lands commissioner race seems already set, with incumbent Republican Doug Sutherland facing Democrat Peter Goldmark, as are six legislative races in districts completely or partly in Spokane County.

Party affiliation may be the most confusing thing about the top two primary, which was adopted by a voters initiative in 2004 but only made possible by a U.S. Supreme Court ruling this March. A candidate doesn’t file as a member of a party, but does list a party which he or she “prefers.”

Candidates can list their party preference any way they wish, and neither the state nor the parties have any control over it. Rossi lists the GOP, for Grand Old Party, which Republicans often use instead of the formal party name. He says voters know the two names are synonymous; Democrats say he’s trying to fool some voters into thinking he’s not of the same party as an unpopular president.

Other incumbent Republicans, including Sen. Mark Schoesler, of Ritzville, also list GOP after their names. It’s the way he’s listed his name on brochures and signs over the years, he said.

At least one identifiable Republican, county party Chairman Curt Fackler, listed “No Party Preference” in his run for state insurance commissioner. The race already had a Republican candidate, John Adams, and Fackler said he’s hoping to attract votes from independents and Democrats willing to consider someone other than incumbent Mike Kreidler.

However candidates lists their preferences – and however many candidates appear on the ballot for a particular office – the primary is designed to send the two candidates with the most votes on to the general election.

It allows a voter to pick any candidate in any race, but only one candidate in each race. In that sense, the top two primary is similar to the state’s old “blanket primary,” which was in place for about 70 years but ruled illegal by the federal courts in 2003.

Last week, the state’s Democratic and Republican parties argued that the top two is still illegal. It was put on hold by a federal judge, and the state never had the injunction removed after the Supreme Court ruled this system could pass constitutional muster. The state is arguing that a Supreme Court ruling trumps the district court injunction and plans to proceed.

Unlike the blanket primary, there’s no guarantee the general election ballot will feature one Democrat and one Republican. If the first- and second-place vote getters for a particular office are both Republicans, they face off in the November election and there is no Democrat.

That’s true whether the primary race has candidates with differing party preferences or all list the same party, such as the 7th Legislative District race with five candidates who are all Republicans.

That rule doesn’t apply to nonpartisan races, like the judiciary seats. The statewide ballot includes three Supreme Court positions, and the ballot in Spokane and the surrounding counties to the north and west has an Appeals Court race. Counties also elect judges to their Superior Court, where felonies, major civil suits and domestic cases are heard.

A judicial candidate who gets a simple majority in the primary goes on the general election ballot unopposed, so barring an actual tie, any race with only two candidates is essentially decided in the primary.

Even if the race has three or more candidates, if one gets a simple majority of the votes, that candidate appears alone on the general election ballot.

An overview of the top two system

The Spokesman-Review’s election-answer person responds to some of the frequently asked questions about the upcoming Washington state primary:

Q: So, with all these campaign yard signs I’m seeing everywhere, do we have an election or something coming up?

A: Yes, the state primary, also known as the top two primary, is Aug. 19.

Q: Isn’t that a bit early?

A: It might seem that way, particularly for longtime Washington voters who got used to the primary being in September. But last year the Legislature moved the primary to the third Tuesday in August to put more time between the primary and the general election in November.

Q: And they did this to …?

A: To allow more time to print up and mail out the general election ballots. Most of the state votes by mail now, and there were concerns that military members serving overseas wouldn’t get their ballots in time to mark them and get them back if a primary race was so close it needed a recount.

Q: So this year’s primary is like last year’s primary?

A: Only as far as scheduling is concerned. This year the state will debut the top two primary, in which voters get a single ballot with all the candidates’ names on it. A voter can choose a candidate from any party for any race, but only one candidate per office. Last year’s election was primarily for municipal offices, which are nonpartisan, but two years ago, the partisan primary was limited by party and voters had to pick one party’s ballot and select only among that party’s candidates.

Q: That doesn’t sound right. Weren’t we able to pick a Democrat for one office, a Republican for another and even a communist for a third if we wanted in primaries?

A: Once upon a time, but not in 2006. What you’re thinking of is the old blanket primary, which Washington had for about 70 years.

Q: Yeah, I remember that system. Why’d we get rid of that?

Because the federal courts said it was unconstitutional. It infringed on the political parties’ ability to make sure that Democratic nominees were selected by Democrats, Republican nominees by Republicans, and so forth, the 9th U.S. Circuit Court of Appeals said in 2003. So the voters opted for the top two primary in an initiative in 2004.

Q: But if it passed in 2004, how come we’re just doing this for the first time in 2008?

A: Because the major political parties, who successfully sued the state to get rid of the blanket primary, also sued over the top two primary. While the suit was pending, the state used an alternate system it cobbled together after the federal court ruling, which required separate party ballots or at least divisions for the parties on a single ballot. The U.S. Supreme Court didn’t rule that the top two primary could pass constitutional muster until this March.

Q: So now everyone’s happy with this top two system?

A: The major political parties think the way it has been set up for this election is unconstitutional and sent letters to Secretary of State Sam Reed last week to that effect. They’ll probably be back in federal court at some point, but Reed says the election will go on as planned.

Q: How will it work?

A: You’ll get one ballot with all the races on it, partisan offices as well as the nonpartisan races like the judges. Most counties vote completely by mail, so those ballots will arrive around the end of July, and must be postmarked no later than Election Day, which is Aug. 19. It’s a fairly busy election year, so all the statewide executive offices, from governor on down, are on the ballot, as are the U.S. House races (there’s no U.S. Senate race this year in Washington), legislative races and county commissioner posts in many counties.

On the partisan races, candidates will list their party preference, but you can vote for any candidate in any race.

Q: So I can vote for Barack Obama for president but Dino Rossi for governor?

A: No. The presidential primary was in February, so Obama and John McCain won’t be on the Washington ballot again until November. But you could vote for Rossi, who lists his party preference as GOP, for governor; Brad Owen, who lists his party preference as a Democrat, for lieutenant governor; Marilyn Montgomery, who lists the Constitution Party, for secretary of state; and Curt Fackler, who lists no party preference, for insurance commissioner. In the old system, the Democrat who got the most votes and the Republican who got the most votes automatically went to the general election. So did any third party candidate or independent candidate who got a minimum vote threshold. Under this system, the top two vote recipients, regardless of party preference, go on to the general.

Q: Why do you keep saying “party preference” instead of just “party”?

A: Because the candidates are only asked which party they would prefer to have listed. The parties still have no say in determining who gets to call themselves a Democrat or a Republican and can endorse a candidate or not as they see fit. The winner isn’t the party’s nominee.

Q: So in some races, we could have two Democrats or two Republicans in the general election?

A: That’s possible. It will happen in a state House race in the 7th Legislative District, because only Republicans are running. It could happen in a race with candidates of several different party preferences listed, although it’s mathematically unlikely in a race with several candidates from one major party and a single candidate from the other major party.

Q: What about the Greens, the Libertarians, the other minor parties and the independents?

A: In theory, they’ve got the same chance as any candidate listing Democratic or Republican preference. In reality, it could be difficult for them to get to the general election if there’s a Democrat and a Republican in that race.

Q: So this is the way the primary is going to be from now on?

A: Hard to say. We’ve had three different systems since 2004, so it would be a bit of a surprise if something didn’t change between now and 2010. In the meantime, don’t forget: any candidate for any race, but only one candidate per race, and the ballots must be postmarked by Aug. 19.

Just shy of eight years after they squared off in the Florida recount battle, James A. Baker III and Warren Christopher have joined forces to clean up one of the ugly legacies of the Vietnam War: the misguided piece of legislation called the War Powers Act.

Passed in 1973 when Congress was mightily frustrated with the undeclared war in Southeast Asia, that statute is proof of the adage that hard cases make bad law. Cases don’t come any harder than Vietnam, and the War Powers Act has turned out to be one of the worst bills ever to reach the president’s desk and be signed into law.

Its constitutionality is suspect, but no one has ever found a way to test it in court. Now Baker and Christopher, both former secretaries of state before they became lawyers for George W. Bush and Al Gore, respectively, in the 2000 struggle over Florida’s decisive electoral votes, have found common cause as co-chairmen of a National War Powers Commission created by the Miller Center of Public Affairs at the University of Virginia.

When I went to see the two men during their visit to Washington, D.C., this week, I found no lingering sense of the partisan animosities that marked their Florida encounter. Instead, they communicated a shared passion to help the next president and Congress find a way to solve a problem that has vexed the capital since the early days of the Republic.

The Founders left a ton of confusion about a pretty important question: Who has the authority to make war? Article I of the Constitution gives Congress the exclusive right to declare war, but Article II makes the president the commander in chief. Nowhere does it say where the authority of one stops and the other begins.

The War Powers Act tried to resolve the question by putting a time limit on the president’s ability to deploy troops into a combat zone, but no president has accepted as legitimate that limitation on his authority, and Congress has never tried to enforce it.

Baker and Christopher told me that as they dug into the issue, they and their fellow commission members quickly concluded there was no way to nudge the Supreme Court into settling the issue. The court has an aversion to arbitrating a “political question” arising from a conflict between the elected branches.

But Baker and Christopher were reluctant to accept the status quo, in part because, as lawyers, it offends them to have a law that no one takes seriously governing a vital area of public policy.

Instead, they focused on the question of how to encourage substantive discussions between the branches before the weighty decision is made to put troops into combat. Their proposed substitute is called “The War Powers Consultation Act.”

It calls on the president to consult with key legislators before sending troops into “significant armed conflict,” defined as a situation in which fighting could last more than a week. It creates a Joint Congressional Consultation Committee, composed of leaders of both parties and senior members of six key committees, and it guarantees that the committee and its staff have access to all the relevant intelligence the president sees.

It requires Congress to vote up or down on a deployment within 30 days, and it permits a cutoff of funds for deployments disapproved by two-thirds of the House and Senate.

That complex procedure, Baker said, is designed to preserve the constitutional authority of both the president and Congress. It avoids some of the practical and legal infirmities of the current War Powers Act. But as he readily conceded, “You can’t legislate trust,” and without trust, no set of procedures can be guaranteed to work.

It could be argued that if there were trust between the leaders of the elected branches – as there has been for substantial periods of our history but not in recent years – you would need no statute to replace the War Powers Act.

But Baker and Christopher argue that with a new president and a new Congress arriving in January, agreement on a workable substitute for the War Powers Act could, in itself, be a confidence-building step.

I have trouble seeing this as a high priority on the 2009 agenda. But I do think the Florida antagonists have devised a clever way to signal a healthy change toward bipartisanship in foreign policy.

June 26, 2008

WASHINGTON – The Supreme Court on Wednesday ruled that it is unconstitutional to execute someone who rapes a child, issuing a broad decision that reserves the death penalty for murderers and those who commit crimes against the state.

The 5-4 decision continued the move by a slim majority of the court to narrow the circumstances under which capital punishment is allowed, even when society views the crime with “revulsion.”

“There is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other,” Justice Anthony Kennedy wrote in what will be a term-defining decision for the court.

While the latter may be “devastating in their harm,” Kennedy said, “they cannot be compared to murder in their severity and irrevocability.” He was joined by the court’s more liberal members: John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

No one has been executed for rape in the United States since 1964. Though capital punishment can be imposed for crimes against the state such as treason, espionage and terrorism, of the 3,300 inmates on death rows across the country, only two face execution for a crime other than murder.

The decision prompted outrage from the conservative wing of the court.

Justice Samuel Alito questioned the majority’s logic that every murderer sentenced to death is more “morally depraved” than any child rapist.

“I have little doubt that, in the eyes of ordinary Americans, the very worst child rapists – predators who seek out and inflict serious physical and emotional injury on defenseless young children – are the epitome of moral depravity,” he wrote. Alito was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas.

The decision overturned the death penalty for Patrick Kennedy, 43, who was convicted of raping his 8-year-old stepdaughter in Louisiana in 1998 – an assault so brutal that the girl required surgery.

By LINDA GREENHOUSE

WASHINGTON — The Supreme Court upheld Indiana’s voter identification law on Monday, concluding in a splintered decision that the challengers failed to prove that the law’s photo ID requirement placed an unconstitutional burden on the right to vote.

The 6-to-3 ruling kept the door open to future lawsuits that provided more evidence. But this theoretical possibility was small comfort to the dissenters or to critics of voter ID laws, who predicted that a more likely outcome than successful lawsuits would be the spread of measures that would keep some legitimate would-be voters from the polls.

Voting experts said the ruling was likely to complicate election administration, leading to both more litigation and more legislation, at least in states with Republican legislative majorities, but would probably have a limited impact on this year’s presidential voting.

The issue has been intensely partisan, with Republicans supporting increased identification requirements for voters and Democrats opposing them. In what the court described as the “lead opinion,” which was written by Justice John Paul Stevens and joined by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy, the court acknowledged that the record of the case contained “no evidence” of the type of voter fraud the law was ostensibly devised to detect and deter, the effort by a voter to cast a ballot in another person’s name.

But Justice Stevens said that neither was there “any concrete evidence of the burden imposed on voters who now lack photo identification.” The “risk of voter fraud” was “real,” he said, and there was “no question about the legitimacy or importance of the state’s interest in counting only the votes of eligible voters.”

The three others who made up the majority, Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr., said in an opinion by Justice Scalia that the law was so obviously justified as “a generally applicable, nondiscriminatory voting regulation” that there was no basis for scrutinizing the record to assess the impact on any individual voters. “This is an area where the dos and don’ts need to be known in advance of the election,” Justice Scalia said.

In a dissenting opinion, Justice David H. Souter said that for those on whom the law had an impact, the burden was “serious” and the state had failed to justify it. Like the Virginia poll tax the court struck down 42 years ago, he said, “the onus of the Indiana law is illegitimate just because it correlates with no state interest so well as it does with the object of deterring poorer residents from exercising the franchise.” The other dissenters were Justices Ruth Bader Ginsburg and Stephen G. Breyer.

Six states in addition to Indiana — Florida, Georgia, Hawaii, Louisiana, Michigan, and South Dakota — now require voters to provide photo identification before casting a ballot. Bills are pending in two dozen other states, although they are not likely to pass this year in more than a handful, due to short legislative sessions and Democratic opposition.

The Indiana law, adopted by the Republican-controlled legislature in 2005 without a single Democratic vote, is regarded as the strictest in the country. It requires a voter to present a photograph as part of an unexpired document issued either by Indiana or the federal government, a requirement that in most cases can be satisfied only by a current driver’s license or a passport. The state’s motor vehicle agency provides a free photo ID card for people who do not drive, but obtaining it requires a “primary document” like an original birth certificate or a passport.

Would-be voters without proper identification may cast a provisional ballot that will be counted only if they appear within 10 days at a county clerk’s office and present acceptable photo identification or, alternatively, swear either that they are indigent or that they have a religious objection to being photographed.

The Indiana law was challenged in separate suits filed by the Indiana Democratic Party and by another group of plaintiffs that included elected officials and community groups. The plaintiffs argued that the state had failed to justify a requirement they said would place a special burden on thousands of eligible voters in Indiana who lack driver’s licenses, a group that disproportionately includes the poor, the elderly and people with disabilities.

The plaintiffs lost, both in Federal District Court in Indianapolis and in the United States Court of Appeals for the Seventh Circuit, in Chicago. Writing for the 2-to-1 majority at the appeals court, Judge Richard A. Posner agreed with the plaintiffs that the law would have the greatest impact on people who were “low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates.” While that fact gave the Democratic Party standing to sue, he said, it did not make the law unconstitutional.

The suits were filed before the statute took effect, challenging the law “on its face.” This technique, known as a “facial challenge,” has been a staple of election litigation, based on the notion that once an election has taken place, the asserted damage has been done and it is too late to make judicial amends.

A debate over the legitimacy of a facial challenge in the voter ID context did not enter this case until the Bush administration filed a brief at the Supreme Court stage supporting Indiana. Solicitor General Paul D. Clement told the court in his brief that, as a facial challenge, the suit was premature and based on nothing more than “speculation and as-yet untested evidence.” In the decision on Monday, Crawford v. Marion County Election Board, No. 07-21, the Supreme Court did not go quite so far as to make facial challenges unavailable. But Justice Stevens said in his opinion that in their effort to invalidate the statute in all its applications, the plaintiffs failed to carry their “heavy burden of persuasion,” given the weight of the state’s interest in election integrity.

In his dissenting opinion, which Justice Ginsburg also signed, Justice Souter examined the case from the opposite end of the telescope. Given that there was “no evidence of in-person voter impersonation fraud in a state, and very little of it nationwide,” he said it was Indiana’s job to justify placing even a slight burden on even a limited number of people. “The interest in combating voter fraud has too often served as a cover for unnecessarily restrictive electoral rules,” Justice Souter said.

Justice Breyer, in a separate dissenting opinion, compared Indiana’s law with those in Georgia and Florida, which also require photo identification but accept a range of more broadly accessible documents. Florida accepts student identification cards, employee badges and cards from neighborhood associations, for example, and accepts a provisional ballot as long as the voter’s signature matches one on file. Indiana has not justified its “significantly harsher” requirements, he said.

The vote of Justice Stevens, a reliable anchor of the court’s liberal bloc, was something of a surprise. Some speculated that his strategic aim was to keep Chief Justice Roberts and Justice Kennedy from joining the Scalia camp. Edward B. Foley, an election law expert at Ohio State University, said the Stevens opinion might represent an effort to “depoliticize election law cases.”

The last time the court issued a major decision on the right to bear arms was in 1939, when criminals wore fedoras.

Dahlia Lithwick

NEWSWEEK

Updated: 12:52 PM ET Mar 15, 2008

This week the Supreme Court will hear arguments in the most important gun-control case in 69 years. And almost lost amid all the political posturing on both sides of the case about the constitutional contours of the “right to bear arms” is the quiet, crucial fact that the high court is about to step into a cultural conflict for the first time in 69 years.

Think about it: abortion, homosexuality, affirmative action, separation of church and state, the death penalty. The court has waded into almost every hot-button social issue dividing this country.

And both conservatives and liberals suspect that in doing so, the high court has messed things up. Its most acerbic conservative, Justice Antonin Scalia, says the court should not conduct itself like an unelected superlegislature. It’s not for the court to invent new rights, it’s for the people: “You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it.”

A growing number of legal thinkers, including the University of Chicago’s Cass Sunstein, agree that judicial “minimalism” is preferable to resolving sprawling social problems with broad moral judgments. Many of the country’s pre-eminent liberal scholars believe that matters as important as abortion and segregation were better left up to the democratically elected branches; that the broad brushstrokes of the Warren Court launched a backlash still being felt today.

With District of Columbia v. Heller, these court critics may have fished their wish. The case tests the constitutionality of D.C.’s sweeping gun ban prohibiting handgun possession at home unless guns were registered before 1976, and requiring all guns—including rifles and shotguns—to be unloaded and either disassembled or bound by a trigger lock. Last year, by a 2-1 vote, a federal appeals court struck down the ban, claiming that the Second Amendment confers upon “the people” an individual right to bear arms, rather than a collective right to arm its militias.

Still, the most dramatic aspect of Heller may well be that the last time the Supreme Court issued a major proclamation on the right to bear arms, it was 1939 and the criminals in question sported fedoras and drove Packards. That makes this case a natural experiment in what happens when the Supreme Court butts out. If the gun fight is any indication, it’s not clear democracy moves to the driver’s seat when the court lets go of the wheel.

The Supreme Court determined in 1939 in U.S. v. Miller that an individual right to a gun had no “reasonable relationship to the preservation or efficiency of a well regulated militia,” and thus the Second Amendment did not confer individual rights to guns. The court followed this with many decades of constitutional radio silence on the subject. When faced with opportunities to revisit Miller, the court either upheld it or declined to hear appeals that would raise it. In the wake of that silence, 10 of the 12 federal appeals courts also sided with this “collective rights” view of the Second Amendment.

But in the face of the courts’ quiet resistance, a well-funded and powerful lobby group, the National Rifle Association, forcefully and effectively pushed the claim that the Second Amendment confers an individual right to bear arms. Four million-plus-members strong, the group has handed out millions of dollars and is credited with winning the 2000 election for George W. Bush. Whatever financial or political clout it has exhibited pales next to its legal influence: polls show that while a slight majority of Americans would support stricter gun laws, about 75 percent of them believe the Constitution confers a personal right to own a gun.

The vacuum created by the courts was filled not only with special-interest groups but, more recently, with legal academics intent on preserving strong individual rights under the Constitution. And according to Robert Spitzer, a political scientist at SUNY Cortland and author of “The Politics of Gun Control” (2003), the failure of the Supreme Court to revisit the question of the Second Amendment for decades in fact created “the allegation of some legal pathology; that the court was avoiding it or embarrassed by it.” That embarrassment prompted an important liberal thinker, Prof. Sanford Levinson of the University of Texas, to pen a 1989 law-review article in favor of a “strong reading” for the individual-rights theory of the Second Amendment. Other prominent liberals and libertarians have followed, many less interested in reshaping modern gun-control policy than insider constitutional housekeeping: you can’t be for strong individual constitutional rights, and treat the Second Amendment like elevator music. But when Robert Levy, a senior fellow at the Cato Institute and the engine behind the Heller lawsuit, determined the time was ripe to challenge the D.C. gun ban in court, one of the factors motivating him was this intellectual shift in the liberal academy.

So long overdue is Supreme Court scrutiny in Heller that the Bush administration has staked out one position, while Dick Cheney has taken another (rumors surfaced last week that the administration might change its position again at oral argument). But the more interesting question is whether, absent judicial pronouncements, large constitutional matters will be thrashed out by the people and the democratic process or by well-funded interest groups and well-meaning academics.

URL: http://www.newsweek.com/id/123509

Associated Press
March 18, 2008

WASHINGTON — The Supreme Court today upheld the state of Washington’s open primary election system, a setback for the Republican and Democratic political parties in the state.

By a 7-2 vote, the court says the state may use a primary system that allows the top two vote-getters to advance to the general election, even if they are from the same party.

Washington never held a primary under the new system because of legal challenges.

“Wow!” Washington Secretary of State Sam Reed said when told of the decision. “That’s terrific! It means the people of the state of Washington are going to be able to control who gets elected through this process.”

Reed said the top-two system will take effect with the August primary election.

“This is a victory for the state of Washington,” he said.

Reed said the ruling sets a precedent that will allow other states to break political party control on primary elections.

“I think we’ll see it around the country,” he said.

Writing for the majority, Justice Clarence Thomas said that overturning Washington’s plan would have been an “extraordinary and precipitous nullification of the will of the people.”

In dissent, Justice Antonin Scalia said Washington’s system would cause a political party to be associated with candidates who may not represent its views. Scalia was joined by Justice Anthony Kennedy.

Under Washington’s system, all candidates for a particular office may list their political party preference after their names.

Lawyers for the political parties said David Duke has identified himself as a Republican, despite GOP repudiation of his racial views, while perennial presidential candidate Lyndon LaRouche has called himself a Democrat, despite wide disagreement with Democratic leaders.

In his majority opinion, Thomas wrote that “there is simply no basis to presume that a well-informed electorate will interpret a candidate’s party-preference designation to mean that the candidate is the party’s chosen nominee” or that the party approves of the candidate.

Thomas added that “we cannot strike down” Washington’s plan “based on the mere possibility of voter confusion.”

The major parties challenged the law in federal court, asserting a First Amendment right to select their own nominees without outside interference.

The top-two plan was created after state voters approved a law in 2004 allowing them to pick their favorite candidate for each office. The top two vote-getters would advance to the November general election, even if they are from the same party.

A federal judge and the 9th U.S. Circuit Court of Appeals in San Francisco struck down the election plan.

Washington state Attorney General Rob McKenna argued there was no evidence that the parties would be harmed, since they can publicize through advertising and other means which candidates they support.

Tuesday’s decision is the second of two this year on the rights of political parties. In New York, the justices said the state’s method of electing trial judges, which gives party bosses effective control of the process, does not violate the Constitution.

The top-two plan was intended as the replacement for Washington’s old “blanket primary,” in which voters could vote for one party for governor and another party for the state legislature, for example.

The Supreme Court threw out blanket primaries, to which the political parties also objected, in a case from California in 2000. The Washington state government and the Washington State Grange have been sparring with the political parties ever since. The Washington State Grange advocates for farmers and has a long history of supporting populist ballot measures.

The cases are 06-713, Washington State Grange v. Washington State Republican Party, and 06-730, Washington et al. v. Washington State Republican Party.

Exxon asks justices to overturn, reduce $2.5 billion damages

Plaintiff attorney Jeffrey L. Fisher speaks with the media after addressing the Supreme Court in the Exxon Valdez case. Associated Press (Associated Press )

David G. Savage
Los Angeles Times
February 28, 2008

WASHINGTON – Nearly 19 years after the Exxon Valdez oil spill fouled Alaska’s Prince William Sound, the Supreme Court debated Wednesday whether the world’s largest oil company must pay a record $2.5 billion in punitive damages.

The eight justices who heard the case appeared closely split, although several said they were looking for a way to reduce the size of the award. Justice Samuel Alito sat out the case because he is an Exxon stockholder. His stock holdings could prove costly to the company, since a tie vote would have the effect of affirming the $2.5 billion verdict.

No one disputed that the oil spill was an extraordinary disaster. The company’s lawyer began by describing it as “one of the worst environmental tragedies in U.S. maritime history.”

And no one disputed that Exxon was responsible for paying for the cleanup and for the losses suffered by fishermen, cannery workers and other Alaska residents. Exxon paid $900 million in cleanup costs, and a jury ordered it to pay $287 million to 32,000 Alaskans, many of whom lost their livelihoods when the fishing industry was destroyed.

At issue Wednesday was whether extra damages were needed to punish Exxon for corporate recklessness.

In 1994, a jury in Alaska imposed $5 billion in punitive damages, money that would go to the plaintiffs. Years of appeals followed, and the verdict was cut to $2.5 billion.

During this same stretch, the Supreme Court has been putting limits on punitive damages, believing the amount should be tied to the actual harm.

The case heard Wednesday is unusual because it apparently was the first before the Supreme Court involving punitive damages for an accident on the high seas.

Maritime law has shielded ship owners from being punished for damage caused by their vessels. This made sense during the era of sailing ships, said Justice David Souter. “In those days, when a ship put to sea, the ship was sort of a floating world by itself,” he said. It was gone and out of its owner’s control until months, or perhaps years, later when it returned to port.

Representing Exxon, Washington lawyer Walter Dellinger cited this principle of maritime law and urged the court to throw out the entire punitive verdict. He cited the case of the Amiable Nancy in 1818 as having a historic precedent shielding ship owners.

But his argument quickly ran aground. “It’s rather, I think, an exaggeration to call it a long line of settled decisions in maritime law,” Justice Ruth Bader Ginsburg said.

As a fallback, Dellinger argued that the $2.5 billion verdict was too high. He cited several federal laws that, for example, fine those who pollute the environment. Typically, these legal fines may total millions of dollars but not billions, he said.

He also urged the justices to keep in mind that it was an accident. “This was not an intentional act. It was not malicious. The company did not make one dollar of profit,” he said.

But Stanford law professor Jeffrey L. Fisher, representing the workers, said Exxon deserved to be punished for “putting a drunken master in charge of a supertanker.”

He said the jury heard testimony that Exxon officials knew Capt. Joseph Hazelwood was an alcoholic, and they had 33 reports that he had gone back to drinking. “Up and down the corporation, for three years, upper management was receiving reports that this man was drinking aboard the vessel,” Fisher said.

On March 24, 1989, Hazelwood had been drinking and left the bridge of the supertanker. The third mate left in charge failed to turn the giant ship in time, and it hit Bligh Reef. About 11 million gallons of crude oil were spilled.

Fisher said the captain was an agent of Exxon’s management. “It is perfectly appropriate to expose the corporation to punitive damages based on the reckless acts of such an individual,” he said.

Chief Justice John Roberts and Justice Antonin Scalia questioned why a corporation should be punished if one of its officials violates its corporate policy. Exxon had a firm policy against drinking.

Three other justices – Anthony M. Kennedy, Stephen G. Breyer and Souter – said they saw a need to reduce the punitive damages.

“This is a very dramatic accident … but there are accidents every day,” Breyer said. He questioned whether “negligence or recklessness is now going to be not only imputed to the corporation but subject (to) punitives. … It will be a new world for the shipping industry.”

Kempthorne seeks compatibility with state laws

Richard Simon and Judy Pasternak
Los Angeles Times
February 23, 2008

WASHINGTON – In a victory for gun rights advocates, the federal government is preparing to relax a decades-old ban on loaded firearms in national parks.

Interior Secretary Dirk Kempthorne said Friday his department would suggest new regulations by the end of April that could bring federal rules into line with state laws concerning guns in parks and public lands. His announcement came in a letter to 51 senators who have written to him about the issue. A near majority of the Senate, including Democrats and Republicans from Western states, has backed a drive to repeal the ban, which has been in place in some parks for 100 years.

The proposed rule change might let visitors carry loaded weapons into national parks in states with few gun restrictions, such as Montana.

Gun rights advocates, notably the National Rifle Association, have said the ban infringes on their Second Amendment right to bear arms and their ability to defend themselves from predators, human and animal.

“If you’re hiking in the backcountry and there is a problem with a criminal or an aggressive animal, there’s no 911 box where you can call police and have a 60-second response time,” said Gary Marbut, president of the Montana Shooting Sports Association. “Here in Montana, we are very used to being able to provide for our own personal protection.”

Kempthorne’s decision to review the ban was hailed by the NRA. “This is an important step in the right direction,” said the organization’s chief lobbyist, Chris W. Cox.

On the other hand, the National Parks Conservation Association called Kempthorne’s action “alarming.” Tom Kiernan, the group’s president, said a loosening of the ban would be “a blow to the national parks and the 300 million visitors who enjoy them every year.”

His view is echoed by gun-control advocates and some rangers who say permitting firearms would be dangerous for visitors and wildlife and alter the national park experience.

“Parks have long been sanctuaries for both animals and people,” said Butch Farabee, a former acting superintendent at Montana’s Glacier National Park who is retired. “There need to be places in this country where people can feel secure without guns and know that the guy in the campground across the way does not have one.”

The federal government would not cede authority over firearms in national parks to the states, said Interior Department spokesman Chris Paolino, but would like to reflect the policies of host states. In drafting proposed new rules, Paolino said, the department also would take into consideration the ban on firearms in federal buildings.

“It’s important to note this is the beginning of the process,” Paolino added.

Weapons originally were prohibited in national parks to prevent “opportunistic poaching” of wildlife, said Frank Buono, a former assistant superintendent of California’s Joshua Tree National Park.

A 1908 Yellowstone National Park regulation, for example, required that visitors “having firearms, traps, nets, seines or explosives” surrender them at the entrance unless they received written permission from the park superintendent.

A similar policy was in effect at most parks for decades. Then the Reagan administration in 1983 required that visitors unload and store their firearms before entering most national parks.

Supporters of the repeal effort note that state gun laws currently apply to federal land managed by the Forest Service and the Bureau of Land Management, and they see no reason why that should not be the case in national parks and wildlife refuges.

So far, half the Senate seems to agree. Nine Democrats and 41 Republicans have signed letters to Kempthorne calling on him to lift the gun ban. “We do not believe that allowing law-abiding citizens to transport and carry firearms – rather than forcing them to disassemble or store them in their trunks – will increase the chances that they will be tempted to violate prohibitions on discharge,” one group of senators wrote.

Advocates believe it is, foremost, an issue of ending an unconstitutional infringement on their right to bear arms. But they also contend that park visitors are “increasingly vulnerable” to crime.

“While park rangers now use bullet-proof vests and automatic weapons to enforce the law, regular Americans in states where conceal-and-carry law exists are denied the opportunity for self-defense,” Coburn said in “talking points” distributed by his office.

The National Park Service says there were 116,588 reported offenses in national parks in 2006, the most recent year data are available, including 11 killings, 35 rapes or attempted rapes, 61 robberies, 16 kidnappings and 261 aggravated assaults.

Supporters also believe that gun owners should be able to protect themselves against dangerous animals, dismissing arguments that firearms would ruin the park experience.

Officials at Glacier – which recorded 10 deaths from grizzly bear attacks between 1967 and 1998 – said the last attack was in 2005, when a bear mauled two hikers. One of the victims, Johan Otter, of Escondido, Calif., said the idea that a gun could have stopped the 400-pound bear that charged him is naive. “We only had, like, half a second between seeing the bear and the impact,” Otter said.

Organizations that represent current and retired park workers oppose a repeal, saying it not only would endanger visitors, rangers and wildlife but would change the character of the parks.

Bill Wade, executive council chairman of the Coalition of National Park Service Retirees, said, “How many of you would want to go out there if you knew that people were running up and down the Appalachian Trail with guns?”

Tugboats pull the crippled tanker Exxon Valdez toward Naked Island in Prince William Sound, Alaska, on April 5, 1989. Associated Press (File Associated Press )

Robert Barnes
Washington Post
February 24, 2008

WASHINGTON – When a federal jury in Alaska in 1994 ordered Exxon to pay $5 billion to thousands of people who had their lives disrupted by the massive Exxon Valdez oil spill, an appeal of the nation’s largest punitive damages award was inevitable.

But few could have predicted the incredible round of legal ping-pong that only this month lands at the Supreme Court.

In the time span of the battle – 14 years after the verdict, nearly two decades since the spill itself – claimants’ lawyers say there is a new statistic to add to the grim legacy of the disaster in Prince William Sound: Nearly 20 percent of the 33,000 fishermen, Native Alaskans, cannery workers and others who triumphed in court that day are dead.

“That’s the most upsetting thing, that more than 6,000 people have passed and this still isn’t finished,” said Mike Webber, a Native Alaskan artistic carver and former fisherman in the Prince William Sound community of Cordova. “Our sound is not healthy, and neither are the people. Everything is still on the surface, just as it was.”

“The bottom line,” said Tim Joyce, the mayor of Cordova, where half the town’s 2,400 full-time residents are parties to the suit, “is that there is still oil on the beaches. And this lawsuit still isn’t finished.”

The high court is scheduled to hear arguments Wednesday on whether punishment is excessive or even permitted under maritime law. The case, Exxon Shipping v. Baker, may turn, in the eyes of the justices, on a nearly 200-year-old precedent set when privateer ships sailed the oceans, or on the more recent provisions of the Clean Water Act.

An epic event
In Alaska, the lawsuit is seen as a test of justice and corporate responsibility, and its resolution is seen as critical to healing the scars left by an epic event that defines the state’s modern history, Republican Gov. Sarah Palin said in an interview.

“Every Alaskan life was affected by this,” said Palin, elected in 2006. “When I got in here, that was one of the first orders of business: to find out how in the world can this administration speak on behalf of all Alaskans who have been so adversely affected by this spill.”

Exxon officials contend that such sentiments ignore the facts of the case and note that the company already has spent more than $3.4 billion in compensation for losses, cleanup and fines.

“This case is about whether further punishment is warranted,” Exxon spokesman Tony Cudmore said. “We’ve spent $3.5 billion, which is a significant sum of money we think is adequate to deter anyone” from future wrongdoing.

But that figure no longer impresses Palin and others. When the jury awarded $5 billion in 1994, that represented a year of Exxon profits. An appeals court subsequently reduced the damages to $2.5 billion – “about three weeks of Exxon’s current net profits,” the plaintiffs told the Supreme Court in their brief.

“I’m a capitalist, I’m a conservative Republican, I am pro-development and pro-industry,” said Palin, who is herself a former commercial fisherman once party to the suit. “But consider what Exxon has made in terms of profits in all these years. The American judicial system came down with this judgment, and they’ve appealed and they’ve appealed and they’ve appealed.”

The award has been reviewed three times by a district judge and twice by the U.S. Court of Appeals for the 9th Circuit, based in San Francisco, with more than four years elapsing between one appeal and a decision.

“It’s a scandal how long it’s gone on,” said David Lebedoff, a Minneapolis lawyer and author who wrote a book about the five-month trial that led to the punitive damages award. He blames the 9th Circuit for not moving faster. “It’s absolutely inexcusable.”

PR, legal tactics
The passage of time is a worry for claimants, and they have responded with public relations and legal tactics unusual for Supreme Court cases. A newly created Web site details the continuing environmental damage to Prince William Sound and a commercial fishing industry that has not fully recovered.

News conferences and a vigil are planned before the arguments. The “ridicule pole” Webber carved from yellow cedar, depicting an Exxon executive with oil flowing from his mouth, is crated and on its way to Washington, D.C.

Jeffrey Fisher, a Stanford law professor who will argue the case for plaintiffs, has sent the court a DVD containing photos and footage taken at the time of the spill, video of Exxon executives acknowledging fault and an audiotape of the distress call made by what plaintiffs claim to be a clearly drunk Capt. Joseph Hazelwood reporting that the Exxon Valdez had hit Bligh Reef.

Fisher said it is important to remind the justices of the events of 19 years ago, and that the jury was punishing Exxon for “socially outrageous behavior.”

“One of the dangers for us is that outrage dissipates over time, and it is hard to get back to the place where the country was at that time,” he said.

Justices have extended the allotted time for oral arguments, and the briefs filed on both sides indicate that the events of the grounding might yet be explored again.

‘Relapsed alcoholic’
Some things are not in dispute. The Exxon Valdez left port late on the evening of March 23, 1989, loaded with 53 million gallons of crude oil. It strayed out of the shipping lane to avoid ice. Hazelwood instructed the third mate on when to make the turn back into the lane, and then left the bridge of the ship, a violation of regulations. Just after midnight, the crewman ran the nearly 1,000-foot tanker aground on the reef, and 11 million gallons of oil oozed into Prince William Sound.

The oil eventually spread more than 600 miles, an area plaintiffs contend would stretch from Cape Cod, Mass., to Cape Lookout, N.C.

They also charge that Hazelwood, an alcoholic, was drunk. They argue that he consumed at least five double-vodkas in waterfront bars before boarding the ship. They say Exxon knew that Hazelwood, once treated for his disease, had resumed drinking.

Courts have agreed. “Spilling the oil was an accident, but putting a relapsed alcoholic in charge of a supertanker was not,” the appeals court ruled in upholding the punitive damages.

Exxon’s lawyer in the case, Walter Dellinger, told the court in his brief that it is “hotly disputed” whether Hazelwood was drunk at the time of the accident, and points out that Hazelwood was acquitted by a state court jury of operating a vessel under the influence.

Whatever misdeeds were committed by Hazelwood, Dellinger argues, they were not the misdeeds of Exxon. “Imposing vicarious punitive liability on a ship owner, without requiring the jury to find that the ship owner directed, countenanced or participated in the conduct, was in conflict with almost 200 years of unbroken maritime law,” the brief argues.

The reference is to the court’s 1818 decision in “The Amiable Nancy,” in which it held a ship’s owner could not be held responsible for the plundering of its crew when it was miles out at sea.

Exxon also argues that the punishment for discharges of oil and other hazardous substances is governed by the Clean Water Act, and it does not provide for private punitive damages. Alternately, the company says punitive damages should not be allowed because of what Exxon already has paid, or they should at least be reduced.

Not surprisingly, the claimants reject all of those arguments. Exxon itself stipulated that Hazelwood was a “managerial agent” of the company, they argue, and that the jury found that both Hazelwood and the company had acted recklessly. They contend that the Clean Water Act claim is baseless, and that the award is justified.

Final judgment
Justice Samuel Alito Jr. owns Exxon stock and has recused himself from the case. That leaves eight justices to hear it, and an even split would mean that the award stands.

Around Prince William Sound, residents wait for a final judgment on the $2.5 billion award, which plaintiff lawyers say now stands at about $4.8 billion because of the interest earned while the suit proceeds.

“It’s painful for people to talk about this,” said Jennifer Gibbons, executive director of the environmental group Prince William Soundkeeper, “but they want closure.”

February 15, 2008

More than six years after Americans watched Muslim terrorists destroy the World Trade Center, damage the Pentagon and kill more than 3,000 innocents, the Bush administration is about to attempt justice for some of the high-ranking alleged perpetrators.

Six al-Qaida members, a cast headlined by Sept. 11 mastermind Khalid Sheikh Mohammed, are headed for trial by a U.S. military tribunal.

The questions before the court will involve 169 charges, including conspiracy, murder in violation of the laws of war, and terrorism.

The question before the nation is broader: Are we more interested in defending ourselves from terrorists or defending terrorists against intrusions upon their “rights”?

For the last five or six years, the defendants have lived at the U.S. detention facility at Guantanamo Bay. The key word in that sentence isn’t “defendants,” “detention” or “Guantanamo.” The key word is “lived.” That’s the thing they got to do that their victims didn’t.

I can’t help but feel a little apprehension about seeing them go before a court – even a military court. We haven’t done very well at justice in this war.

In fact, lawyers have provided some of the finest aid and comfort to the enemy that money can buy. In doing so, they’ve worked hard to sow confusion in Westerners’ minds about what constitutes justice.

War isn’t a courtroom drama. The calculations of the people who must save their own lives by pulling a trigger shouldn’t have to include, “What would a lawyer say about this?” Yet those calculations are made every day. But only by our side.

We ought to be ashamed that our own good men have been wounded and killed because hesitation is built into their rules of engagement.

We ought to be ashamed that American lives have been sacrificed to fears that some terrorist might file a lawsuit against his interrogators.

What we don’t need to be ashamed about – not for one second – is that Khalid Sheikh Mohammed got water up his nose before he cracked. By the standards of his own organization, which has a penchant for cutting off the heads of its captives and gleefully packing the videotapes off to Al-Jazeera – Mohammed says he himself wielded the knife that killed journalist Daniel Pearl – he’s gotten off pretty light, so far.

The people we’re fighting have never shown the slightest inclination toward playing by the rules of the Geneva Convention, or anything else that might pass for “civilized” warfare.

They do not wear uniforms, nor do they act under the auspices of any nation or government. They target civilians. They don’t mistakenly commit the occasional atrocity in the heat of battle. Rather, they strive for atrocities, planning them carefully for maximum loss of life and shock value.

Their most effective weapons are terror, stealth, propaganda and our own civilized sensibilities, which they understand perfectly, sneer at, and use against us at every opportunity.

And some of their most effective propagandists, unwitting and otherwise, are people who demand that Americans focus on the legal niceties of this war and the legal rights of enemies who find our laws quaint, silly and useful.

So, although there were worse ideas than leaving Mohammed and his boys to rot in the warm Cuban breeze, the complaints of the I-dotters and T-crossers have won them a day in court. It isn’t the court they would have preferred – a civilian trial court where the whole legal circus could have come to town. But with the military promising all kinds of openness and transparency, the defendants and their advocates probably will have ample opportunity to spew their venom and insult our intelligence.

With the legal strategizing and handicapping already well under way, the Telegraph of London offered this bit of odd phrasing: “Legal experts said the willingness of Mohammed, known as ‘KSM’ in intelligence circles, to take credit for terrorism could complicate the tribunal process.”

Complicate? Killers who brag about their murderous exploits usually simplify the process.

Then again, maybe those legal experts are hoping for an acquittal.

Leonard Pitts Jr.
The Miami Herald
February 14, 2008

You have no right to read this.

The First Amendment gives me the right to write it, but doesn’t necessarily give you the right to read it. Or so I was once told by an attorney. While the right to free speech certainly implies a corresponding right to hear what is being spoken, he said, the First Amendment doesn’t explicitly grant such a right. So theoretically, it could be argued that no such right exists.

The key word being “theoretically.” As a practical matter, the freedom to read whatever we choose is such an intrinsic part of our national character as to make legal theory superfluous. People would rise in outrage if government ever attempted to dictate what they read. Theory and reality are often two different things.

I bring up the First Amendment in order to discuss the Second. The Supreme Court is pondering what is expected to be a landmark ruling on that amendment which, for the record, reads as follows: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

At issue is whether a District of Columbia law banning handgun ownership is constitutional. The key question is this: Does the Second Amendment confer an individual right to gun ownership, or does it refer only to the right of a state to raise a militia? I’ve always thought the latter, a view buttressed by many legal rulings, including the Supreme Court’s, when it last weighed in on the subject, nearly 70 years ago.

But in a very real sense, and for reasons similar to those just mentioned, I also think that’s beside the point. Regardless of whether a right to individual gun ownership can be found in the Second Amendment, the perception of that right is so deeply ingrained that legal theory is – here’s that word again – superfluous. Do you really think, regardless of what the court rules, it would be possible to ban firearms on a national scale? I think any attempt to do so would lead to uprisings we can scarcely imagine.

What we have here, then, is another case of theory versus reality. It’s a confrontation that did not have to happen.

The problem with this debate is that it has always been defined by its most extreme voices, its most uncompromising, ideologically pure voices.

But what if gun control advocates got over the idea that getting the right ruling from the right court would magically make guns disappear? And what if gun advocates got over the notion that every attempt at firearms regulation is a step toward totalitarianism? Where might this debate go then?

What if supporters of gun control could concede that hunting is, for some, an honored tradition? That some people feel it necessary to have a weapon in the home for protection? That some entirely rational folks simply like guns?

Could gun rights people then concede that you don’t need an assault weapon to go deer hunting? And that manufacturers who flood poor, violence-prone neighborhoods with cheap handguns ought to be held accountable? And that guys who sell guns from the trunks of their cars are nobody’s friend? And that background checks and gun safety classes for new gun owners make us all safer? And that gun registration isn’t totalitarianism any more than a driver’s license is? And, most of all, that all of us are tired of seeing children shoot children with guns they never should have had access to?

It’s called compromise and no, it would hardly mollify ideological purists. It would not make guns disappear, nor acknowledge an individual right to bazooka ownership. What it would do, though, is recognize that ideological purity has its limits. That’s a good thing to remember.

When theory confronts reality, put your money on reality every time.

Waterboarding, tribunals test prosecution

Khalid Sheikh Mohammed, the alleged Sept. 11 mastermind, is seen shortly after his capture during a raid in Pakistan. The Pentagon plans to seek the death penalty for Mohammed and five other detainees at Guantanamo Bay in connection with the 2001 attacks. Associated Press (FILE Associated Press) The suspects •Khalid Sheikh Mohammed, alleged mastermind of the Sept. 11 attacks. •Mohammed al-Qahtani, who the military said could have been the 20th hijacker had he not been turned down for a visa. •Ramzi Binalshibh, considered a top al-Qaida detainee in Guantanamo. The military called Binalshibh a main intermediary between the hijackers and bin Laden. He also was named Mohammed’s main assistant for “Planes Operations.” •Ali Abd al-Aziz Ali, a nephew of Khalid Sheikh Mohammed. •Mustafa Ahmad al-Hawsawi, who helped move money among the hijackers. •Waleed bin Attash, who’s charged with training some of the hijackers. For example, the military alleges that he prepared reports for al-Qaida on how to get knives onto flights. McClatchy Related stories 9-11

Aamer Madhani and James Oliphant
Chicago Tribune
February 12, 2008

WASHINGTON – The plan announced by the Pentagon Monday to seek the death penalty against six suspects accused of planning and organizing the Sept. 11 attacks could be complicated by the recent acknowledgment that one of the accused was the subject of waterboarding, as well as the legal and international communities’ antipathy toward the Bush administration’s military tribunals.

The charges filed against the six, including alleged Sept. 11 mastermind Khalid Sheik Mohammed, outline a litany of war crimes and include conspiracy, murder, attacking civilians, terrorism and supporting terrorism. All six suspects are being held at Guantanamo Bay, Cuba, and the military plans to try the six together.

Monday’s announcement takes the Pentagon, and the country, into largely uncharted legal territory. The procedures of the military commissions have been repeatedly challenged in court, with some success, and legal precedents that have been developed by courts over decades or longer hold less sway than in the civilian criminal justice system.

But the administration argues that ordinary courts are not equipped to handle the sensitive national security considerations involved in trying top terrorists.

“These charges allege a long-term, highly sophisticated, organized plan by al-Qaida to attack the United States of America,” Brig. Gen. Thomas Hartmann, the legal adviser to the tribunal system, told a Pentagon news conference Monday.

Besides Mohammed, the other men facing charges for the Sept. 11 plot are Walid Muhammad bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, Mustafa Ahmed al-Hawsawi and Mohammed al-Qahtani. Mohammed, bin Attash, Binalshibh, and Ali are also charged with “hijacking or hazarding a vessel” in connection with the four commercial airplanes that were crashed into the World Trade Center, the Pentagon and rural Pennsylvania.

As the commissions’ procedures dictate, Judge Susan Crawford, the convening authority over the military tribunals, still needs to certify the charges against all six of the suspects as capital offenses to make them eligible for the death penalty if convicted.

Since its opening, the Guantanamo prison has been criticized by human rights activists and some foreign leaders as a secretive facility operating outside U.S. law. The military commissions have also been criticized by many in the legal community, and federal courts have repeatedly questioned the Bush administration’s overall system for handling enemy combatants in the war on terror.

In 2006, the Supreme Court decision struck down the first version of the military tribunal, or commission, system as unconstitutional. Since then, only four defendants had been formally charged by the military commission.

Despite the notoriety of the new defendants, nothing is likely to come easily – or quickly. Hartmann said it could be months before the defendants even make an appearance before a commission, the first step toward an ultimate trial.

The prospect of capital punishment is likely to throw the already muddy process into further uncertainty, since courts demand a higher degree of due process when the death penalty is involved. And lawyers for each of the detainees will undoubtedly file motions to sever their clients’ case from the other five.

Another potential wrinkle: The Supreme Court is considering a case that concerns whether detainees have the right to challenge their detention in federal court outside the commission process. If it sides with the detainees, that litigation would proceed on a wholly separate, and elongated, track.

Kevin Lanigan, the director for the Human Rights First law and security program, said the prosecution of Khalid Sheikh Mohammed and the other suspects was long overdue, but the allegations of torture will complicate a military system that has been problematic from the start.

“The administration still refuses to acknowledge its two greatest self-imposed obstacles to achieving justice for the families and victims of 9-11: the absence of a credible and truly independent system for trying these defendants, and problems caused by the use of official cruelty in interrogating them,” Lanigan said.

Last week, CIA Director Michael Hayden confirmed that Khalid Sheikh Mohammed, the purported mastermind of the attacks, was one of three terror suspects in CIA custody who had been subjected to the interrogation technique known as waterboarding.

Waterboarding makes a prisoner believe he is in imminent danger of drowning. The suspect is tied to a board and water is poured through a cloth that covers his face. The practice is prohibited by the Geneva Conventions and the U.S. Army Field Manual, and most of the international community considers the technique torture.

In addition, al-Qahtani, who Pentagon officials say was supposed to have been the 20th hijacker, has alleged he was tortured and last fall recanted a confession he said he made after he was abused by interrogators.

Jim Cohen, a professor at Fordham Law School who represents two Guantanamo Bay detainees who are not among the six charged Monday, said the government’s case “smells of utter and complete unreliability.”

“What is the basis for the charges?” Cohen said “The meaty basis of this case is the statements made by KSM (Khalid Sheikh Mohammed) and others. And (most of) those statements, if not all of them, were made under harsh interrogations.”

When asked if Hayden’s admission could complicate the case, Hartmann said it would be up to the military judge to determine what evidence can be admitted.

Along with the interrogations, a recurring problem facing defense attorneys who have tried to defend detainees before commission has been access to other detainees as witnesses and to classified material. The Pentagon has continually objected to such access because of concerns over national security. Those will also be issues confronting Judge Crawford.

But Hartmann said the six accused men would be given the same rights as U.S. troops tried under a military justice system.

The suspects, for example, will be allowed to call witnesses and will be appointed military attorneys as well as have the right to hire civilian attorneys. They will also be allowed to review any evidence presented against them, Hartmann said. If convicted, appeals can ultimately go to the Supreme Court.

While the trial will not be televised, journalists will be allowed to attend, and arrangements will be made to allow the family of the Sept. 11 victims to view recordings of the proceedings in private, Hartmann said.

“There will be no secret trials,” Hartmann said.

Cal Thomas
January 19, 2008

Thirty-five years after the Supreme Court unilaterally struck down state laws restricting abortion, the cost of that decision continues to increase our moral deficit, which will have far greater (and eternal) consequences than the impact from economic challenges during a possible recession.

Depending on how one counts the number of abortions per year since 1973, more than 50 million people who might have been are not. These were people who, regardless of the circumstances of the women who carried them, had the potential to contribute to the country and to the world. But now they cannot, because they are not. Would we be fighting the battle over immigration had we not rid ourselves of a generation of humans who likely would have done the work for which we are now importing illegal aliens? Actions have consequences.

Roe and its companion case, Doe v. Bolton, took the question of endowment of life by “our Creator” and placed it in the hands of individuals. History has shown what happens when humanity seizes such power for itself: political dictatorships, eugenics and scientific experiments unrestrained by any moorings to a moral code. Each becomes her and his own god; each becomes a taker of life, rather than a giver, inverting the creation model into one of destruction and transforming the pregnant woman from life-giver to life-taker.

The social restructuring unleashed by the judicial fiat that was Roe created a cultural fissure that remains today. We moved quickly from acknowledgement of a right to live, to assertions of a right to die. In her essay “The Women of Roe v. Wade,” Harvard professor Mary Ann Glendon calls to mind the novelist Walker Percy who prophesied two years before Roe that “Qualitarian Centers” would spring up, “where, as one of Percy’s characters explained, doctors would respect ‘the right of an unwanted child not to have to endure a life of suffering.’ ” State governments, Percy suggested, might eventually recognize a right to die. Arrangements would be made for the sick and elderly to push a button that would transport them to a “happy death” in Michigan, a “joyful exitus” in New York, or a “luanalu-hai” in Hawaii. Percy’s fiction increasingly resembles fact.

Abortion on demand cannot be seen in isolation from social breakdown. In 1973, near the end of the Vietnam War and the approaching resignation of President Nixon two years later, the focus on self, pleasure and convenience by Baby Boomers was at its height. Marriages easily dissolved as “no fault” divorce laws were passed; cohabitation and out-of-wedlock births were on the rise; “unwanted babies” (who were labeled “products of conception” to make it easier to deny the obvious) became an impediment to the pursuit of pleasure and material gain.

Abortion was not a cause, but a reflection of our decadence and deviancy. One does not begin to kill babies until other dominoes have fallen. And once they have fallen, it becomes difficult to set them aright because to do so would require an admission of something so horrible that those responsible for this fetal holocaust would have to acknowledge their sin and repent of it. Such a thing is not a character trait of this most pampered generation.

In recent years there have been signs that things may be – if not turning around – then moderating. According to the Centers for Disease Control and Prevention, abortion numbers have declined steadily since 1990, from a high of 1.2 million annually to fewer than 900,000. This is due, I believe, to the unrelenting commitment of the pro-life movement through pregnancy help centers, information by Internet, marches and what appears to be a growing pro-life consensus among many women who reject the cavalier attitudes about life displayed by their mothers’ feminist generation.

Hollywood has infused a pro-life subplot into films such as “Juno” and “Knocked Up.” Might the “old-fashioned” become the new fashion?

Politicians and judges could help bury Roe by requiring that pregnant women receive complete information about the nature of the life within them, including being required to view sonograms before electing abortion. This would follow truth-in-labeling and truth-in-lending laws by fully informing and empowering women. Such an approach would satisfy the liberal demand to keep abortion “safe and legal” and the pro-life desire to make them rare.

After 35 years of slaughtering our young, isn’t it time to stop? That child born in 1973 could be a parent now. There are children who could have been born today. Thirty-five years of killing has diminished and corrupted us all. Let’s summon the moral courage to stop it for our sake … and for theirs.

WASHINGTON — There are many ways to lose a Supreme Court case, and by the end of an argument that was before the court on Wednesday, the Democrats who were challenging Indiana’s voter-identification law appeared poised to lose theirs in a potentially sweeping way, with implications for many future election cases.

The justices’ questioning indicated that a majority did not accept the challengers’ basic argument — that voter-impersonation fraud is not a problem, so requiring voters to produce government-issued photo identification at the polls is an unconstitutional burden on the right to vote.

The tenor of the argument suggested, however, that rather than simply decide the case in favor of the state, a majority of five justices would go further and rule that the challenge to the statute, the strictest voter-identification law in the country, was improperly brought in the first place. Such a ruling could make it much more difficult to challenge any new state election regulations before they go into effect.

The Indiana Democratic Party and the American Civil Liberties Union challenged the 2005 law before it went into effect, seeking a declaration that it was unconstitutional on its face and could not be enforced even against the majority of Indiana voters who could easily produce the required photo ID. Such an approach, known as a “facial challenge,” is the standard way of attacking election regulations like the poll taxes that the Supreme Court struck down in the 1960s and more recent redistricting and ballot-access cases.

But the court under Chief Justice John G. Roberts Jr. has displayed deep skepticism toward such challenges, most notably on the subject of abortion, on the grounds that they require courts to step outside a limited role of resolving concrete disputes brought by parties with actual injuries.

“You seem to accept that a facial challenge is appropriate here,” Justice Antonin Scalia said with evident disapproval to Thomas M. Fisher, the Indiana solicitor general, who was defending a lower court’s judgment that the law was constitutional.

Indiana, in fact, had not objected to the form in which the case was brought. That argument was introduced by the Bush administration, which entered the case, Crawford v. Marion County Election Board, No. 07-21, after the Supreme Court agreed in September to hear it. In the administration’s brief, Solicitor General Paul D. Clement urged the justices to uphold “principles of judicial restraint” by rejecting the facial challenge.

Joining Mr. Fisher in arguing for the state on Wednesday, Mr. Clement said the court should wait for a case to be brought by someone who was actually barred by the statute from casting a ballot. Such a lawsuit “could focus like a laser beam” on particular problems, Mr. Clement said, adding that if such a case were successful, it would have the virtue of producing a remedy that solved the problem without invalidating the entire law.

Justice David H. Souter countered, “That would be a virtue, but one of the vices would be that it would be after the election, and the entire matter would be academic for another two years.”

Justice Ruth Bader Ginsburg raised a similar objection. “The reason they are bringing a facial challenge is because the horse is going to be out of the barn,” she said. “They will have the election, and just what they are afraid of could happen — that the result will be skewed in favor of the opposite party.”

Justice Ginsburg’s subtle but unmistakable allusion was to the partisan context in which voter identification laws, recently adopted by a handful of Republican-dominated states, are being debated. Democrats charge that the true purpose of the laws is to deter participation by some predictably Democratic voters, particularly poor people and members of minority groups who are less likely than others to have driver’s licenses or passports.

The Bush administration has raised the suspicions of Democrats by making what they call “voter fraud” a priority for Justice Department enforcement. No prosecution for impersonating a registered voter, the type of fraud that would be prevented by a photo requirement, has ever been brought, however. “No one has been punished for this kind of fraud in living memory in this country,” Paul M. Smith, a Washington lawyer arguing for the Democrats, told the justices.

In his opinion last year upholding the Indiana law, Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit agreed with the Democratic plaintiffs that the law would fall more heavily on Democrats than on Republicans. But that did not make the statute unconstitutional, he said.

On Wednesday, discussion of the law’s justification, and of the extent of the burden it placed on voters, was inconclusive. Mr. Fisher, Indiana’s lawyer, said that because photo identification was “necessary to do so many everyday activities,” the number of those affected was “infinitesimal.” Mr. Smith said the number was more likely in the hundreds of thousands.

Under the Indiana law, voters who are turned away for lack of identification may cast provisional ballots, which are counted only if the voter travels to the county clerk’s office within 10 days to show the required identification or sign a sworn statement that he cannot afford to obtain such an identification. The plaintiffs have argued that this extra step and required travel create an unnecessary burden that other states with identification requirements do not impose; those states do not require voters to make a second trip in order to have a provisional counted.

Chief Justice Roberts, who grew up in Indiana, did not seem to find the burden excessive. “County seats aren’t very far for people in Indiana,” he said.

Mr. Smith replied that the county seat in Lake County was a 17-mile bus ride from the county’s urban center of Gary. “If you’re indigent, that’s a significant burden,” he said. The chief justice also seemed unimpressed by the absence of known voter impersonators. “It’s a type of fraud that, because it’s fraud, it’s hard to detect,” he said to Mr. Smith.

Justice Scalia interrupted the debate over the law’s impact in order to frame his argument against facial challenges.

“Why are we arguing about whether there is one-half of one percent of the electorate who may be adversely affected and as to whom it might be unconstitutional?” he asked Mr. Fisher, adding: “This court is sitting back and looking at the ceiling and saying, oh, we can envision not the case before us, but other cases. Maybe it’s one-half of one percent or maybe it’s 45 percent, who knows. But we can imagine cases in which this law could be unconstitutional, and therefore, the whole law is unconstitutional. That’s not ordinarily the way courts behave, is it?”

“I should hope not,” the Indiana solicitor general replied.

By Martha Brant and Stuart Taylor Jr.

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NEWSWEEK

Updated: 12:54 PM ET Nov 24, 2007

Washington, D.C., has the toughest gun-control laws in the country. For 31 years, it has been illegal in the nation’s capital to buy, sell or own a handgun. Residents may keep shotguns or rifles—but only if they are stored unloaded, and either disassembled or disabled with trigger locks. Even so, Damon Sams doesn’t spend much time worrying about restrictions on his right to bear arms. Now 19, the former drug dealer got his first gun, a .380 pistol, at 13, when he started selling marijuana and later crack on a street corner in Southeast Washington. “I wanted people to respect me and be scared of me,” he says. He also wanted protection. As a kid, he’d seen his father shot dead in the street. He’s been shot himself on two separate occasions. Now an aspiring rapper who works with Peaceoholics, a D.C. group that tries to get kids off the streets, Sams no longer has any guns, but he says it wouldn’t be much trouble to get them, ban or no ban. “I wasn’t tripping on D.C. laws,” he says with a smile.

The grand marble Supreme Court building is a few miles and a world away from the neighborhood where Sams grew up. But his life story might as well be exhibit A in a landmark gun-rights case the court will hear next spring. Dick Heller, a 65-year-old security guard who lives in a once drug-ridden D.C. neighborhood, challenged the city’s gun ban. With backing from a group of libertarian attorneys who had been searching for just the right gun case to bring before the Supreme Court, Heller argued the law violates his Second Amendment right to bear arms. It will be the first time the court has heard a Second Amendment case since 1939, when it upheld a federal ban on the interstate transportation of sawed-off shotguns.

Americans have argued for decades about gun-control laws—do they reduce violence or strip weapons from honest citizens while leaving them in the hands of criminals? But remarkably, the justices have never squarely answered the question at the heart of the gun debate: what does the Second Amendment mean? Its wording is maddeningly ambiguous: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Did the Framers intend to protect an individual right to bear arms, or is the amendment a relic from another era, intended to provide for long-defunct state militias, and therefore meaningless today?

The justices will now likely confront that question. If they reject the argument that there is an individual right to bear arms, then the D.C. law and other federal, state and local gun-control measures will be safe from the courts. But if the justices adopt the individual-rights view and strike down the D.C. restrictions, it will set off a wave of new lawsuits challenging the constitutionality of gun-control laws in cities and states nationwide. That doesn’t mean all those laws would be struck from the books. Even if the justices decide there is an individual right to bear arms, they conceivably could still uphold the D.C. ban as a reasonable measure to protect public safety. (Though not likely, there is a possibility that the court will decide the case without getting into any of these details. On a technicality, the justices could rule the Second Amendment does not apply to Washington, a federal enclave ultimately controlled by Congress, and leave it at that.)

Viewed from the streets of D.C., the colloquy over the Second Amendment can seem out of touch. It’s hard to argue that what Washington needs is more guns. So far this year, 169 people have been murdered in the city—77 percent of them victims of shootings. Heller, the man who brought the case, says statistics like that only reinforce his point. One day, he awoke to find a window of his Capitol Hill home punctured by a stray bullet. Another time, someone shot a hole near his front door. To Heller, who is licensed to carry a weapon for his job guarding federal buildings, the law has it backward. “I can protect [federal workers], but at the end of the day they say, ‘Turn in your gun, you can’t protect your home’.”

Gun-control advocates argue the trouble is that most people aren’t nearly as well trained as Heller. Studies show that rates of gun accidents, suicide and murder of family members are far higher in homes with firearms. Linda Singer, D.C.’s attorney general, agrees the gun ban hasn’t done enough to keep down street shootings. But without it, she says, “We would have far more guns in the city.”

As it is, getting a gun is absurdly easy in D.C., which is sandwiched between Maryland and Virginia, where handgun ownership is legal. The gun ban was never a concern when Sams went looking for a new weapon. He’d just call up friends in Maryland who would get him anything he wanted. “I know people with a gun license,” he says casually. “You just throw them a couple hundreds.”

URL: http://www.newsweek.com/id/72034

There’s wide support for a death penalty, but those who carry it out are increasingly uncomfortable.

By Evan Thomas and Martha Brant

NEWSWEEK

Updated: 4:31 PM ET Nov 10, 2007

Texas has long been the Hang ‘em high state. In 2000, it executed convicted prisoners at the rate of almost one a week. Gov. George W. Bush seemed to take pride in turning down appeals for clemency. The “Decider” was known for spending as little as 15 minutes reviewing a death case. In a Talk magazine piece, Tucker Carlson reported that Bush mocked the plea of one double murderer on death row, pursing his lips in mock desperation and whispering, “Please, don’t kill me.” (Bush later said Carlson had “misread, mischaracterized me.”)

Texas still accounts for more than half of all executions in the United States. But a strange thing is happening in the state that has executed more prisoners than any other since the U.S. Supreme Court revived the death penalty in 1976 after a brief hiatus. Texas prosecutors are less willing to seek, and juries are less willing to grant, capital punishment for aggravated murder. In 2006, only 15 Texas convicts were sentenced to death, down from 34 a decade earlier. Texas mirrors a national trend: death-penalty sentences in the 38 states that allow capital punishment dropped from 317 in 1996 to 128 in 2005, the latest year for which statistics are available.

Why the reluctance to populate death row? Polls show popular support for capital punishment stays relatively high, at about 65 percent. But when it comes to carrying out death sentences, the people involved—judges and juries, prosecutors and prison officials—are starting to recoil, or at least pull back. What is acceptable in theory seems less and less tolerable in practice. Indeed, the Supreme Court has called at least a temporary halt to executions while it examines the fine points of killing convicts by pumping lethal chemicals into their veins. “The death penalty may go out with a whimper, not a great moral revolution,” says Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C.

The new reluctance to punish by killing is part of a historical trend. There was a time when death and torture were spectator sports, when crowds flocked to see prisoners drawn and quartered or beheaded. In some parts of the world, flogging and stoning are still public spectacles. But in the 19th century, supposedly “enlightened” states began looking for more-humane ways to serve final justice—to kill people without causing too much suffering to either the victims or their executioners. The authorities tried hanging, firing squads, electrocutions, gas chambers and, more recently, lethal injection. Each method was supposed to be an improvement over the last.

But the results could be ghastly. Too much depended on the uneven skills of the executioners. The hangman’s noose has to be handled just so. Too short a drop and the prisoner slowly strangles. Too long a drop and the prisoner can be decapitated. Witnesses to executions in the electric chair have watched, horrified, as flames shot out of the head of the doomed prisoner. In Arizona in 1992, the state attorney general vomited and the prison warden threatened to quit after observing the agonizingly slow death of a man in a gas chamber. Today not many doctors are willing to play any part in an execution, and prison guards often complain of little or no training.

Lethal injection is less violent than a firing squad and less grisly than the electric chair. In most states, the prisoner is given a “three-drug cocktail”: a sedative to put him to sleep, a paralyzing agent to stop him from struggling (or breathing) and a drug to stop his heart. But, hands shaking, guards sometimes botch inserting the needle, and veins can be hard to find if the inmate was a drug addict. In Ohio, a prisoner raised his head to announce, “It’s not working,” and in Florida, a prisoner sustained chemical burns on his arm while he grimaced for almost a half hour. Inevitably, defense lawyers began to attack the cocktail as “cruel and unusual punishment,” banned by the Eighth Amendment to the Constitution.

The Supreme Court has imposed a de facto moratorium on lethal injection while it waits to hear oral arguments this January in Baze v. Rees, a case that could determine whether, or under what conditions, lethal injection can be used as capital punishment. It may be that states will resort to giving prisoners a massive dose of barbiturates—the preferred method for putting down sick pets. In theory, at least, the high court will uphold a “better” form of lethal injection, setting off a wave of executions. But whether state officials and juries will want to dispose of humans like dogs remains to be seen. A single drug might take longer to work—prolonging the death throes.

Jurors and prosecutors are steering away from the death penalty because they are both more and less afraid: more apprehensive about killing the innocent and less fearful of crime. Over the past decade, the use of DNA testing on wrongly convicted criminals has overturned prison sentences for at least 200 inmates nationwide (about 15 of them sentenced to death). In 2000, Illinois declared a moratorium on executions after 13 death-row inmates were exonerated. Back in the ’80s, when violent crime was surging along with crack-cocaine addiction in cities, Americans demanded retributive justice. But as crime rates fell in the ’90s and the first few years of the new century, jurors became more lenient in capital cases.

At the same time, prosecutors began to be wary of seeking the death penalty. A series of court decisions required that more states provide competent lawyers for the criminally accused in death-penalty cases. Better defense lawyers could stall and maneuver, running up the cost to the state of bringing a capital case. The more-clever lawyers have been especially good at introducing “mitigating circumstances” into these cases, arguing that the abuse suffered by the killer as a child helps to explain the horrible crime he or she committed. Since 1982, according to New Jersey Policy Perspective, a think tank, the state has spent more than $250 million on the death penalty, or about $11 million a year—without executing a single prisoner. With legal costs soaring in death cases, states are finding it cheaper to pay for lifetime prison sentences.

In many states, jurors chose the death penalty because they feared the convicted murderer might get out on parole and kill again. But in Texas, and many other states, jurors can now sentence the convicted to life imprisonment without the possibility of parole. (The motives of the Texas Legislature in passing this law two years ago were not altogether humane: when the Supreme Court did away with the death penalty for juveniles in 2005, some Texas lawmakers wanted to find a way to put away youthful killers forever.)

Opinion polls show that about 70 percent of Texans still favor the death penalty. But in Dallas, the district attorney, Craig Watkins, is not sure how he feels. “It depends on which day you ask me,” says Watkins, 39. “I’m sitting here at my desk looking at some autopsy photos. So, yeah, I’m for it.” (He was reviewing the 1996 case of a woman who killed her son and now sits on death row.) “But when I come out of church on Sunday morning, I’m against it.”

Two decades ago Watkins could not have been elected in Dallas. He is black, a Democrat and a former defense lawyer. His most famous, or notorious, predecessor was Henry Wade, the Dallas D.A. from 1951 to 1986. The year Wade left office, The Dallas Morning News found a manual used by city prosecutors. It stated: “Do not take Jews, Negroes, Dagos, Mexicans, or a member of any minority race on a jury, no matter how rich or well educated.” Minorities have been disproportionately sentenced to death— especially if the victim was white. Wade apparently wanted to make sure they got no sympathy votes. Wade, says Watkins, choosing his words judiciously, was “a product of his time.” Watkins is a product of more recent times. In the 2006 election, tough-on-crime didn’t work in Dallas. “My opponent wore the number of people he had sent to death row like a badge of honor,” says Watkins, about the Republican incumbent he beat last year. Watkins’s more benign approach—stressing justice, not vengeance—was mocked as “hug-a-thug” by detractors, but Watkins won. “I see a change in mentality,” he says. “We’ve had a lot of folks coming out who didn’t commit crimes and that gives people pause.” Dallas leads the nation in the number of DNA exonerations for all counties in the United States (14). “In the near future, we will see the death penalty rarely,” he says.

There may be no such thing as a foolproof system for killing people fairly and painlessly. The smallest glitch can make too much of a difference. The last execution before the Supreme Court imposed its moratorium is a case in point. Harris County, Texas—encompassing the city of Houston—has far more executions than most states, so it has had plenty of practice. At 9 a.m. on Sept. 25, the U.S. Supreme Court announced it would hear the Baze case challenging the constitutionality of lethal injection. Michael Richard, convicted of rape and murder in 1986, was scheduled for execution that night. His lawyers rushed to file a new motion based on the high court’s ruling, but their computer crashed and they missed the 5 p.m. filing deadline. A judge refused to keep open the state court. Richard was executed at 8:22 p.m.

URL: http://www.newsweek.com/id/69546

Susan Estrich
Creators Syndicate
October 25, 2007

The kids in one of my son’s ninth-grade classes were asked to write essays on their heroes. With two exceptions, they all picked Al Gore. That’s easy: He was in the news that week. Only a kid with my son’s backbone would debate whether all of the science in Al Gore’s presentation was correct, whether he really would be a stronger candidate than Hillary, or whether his loss in 2000 wasn’t at least in part his own fault.

But the question of picking a hero remained. So he asked me who mine was.

That’s probably why I found myself dreaming of Williams v. Walker-Thomas Furniture Store. Most people dream of romance and adventure. On occasion, I do, too. But when I go to bed thinking of heroes, I’m more likely to dream of an obscure furniture store in Washington, D.C., that used to take advantage of poor people who had nowhere else to go to buy tables and chairs, or refrigerators and stoves. So they went to Walker-Thomas Furniture, which promised credit for everyone, with a catch. The catch was that the interest rates were higher than anyone would pay in any other part of town, and repossession came faster than it ever would from Hecht’s or Woodward and Lothrop if they missed even a single payment. Did I mention that all the customers were black?

That’s the way it was until a man named J. Skelly Wright wrote a decision I read about in my first year of law school. I’d never heard of Wright, and when I started reading, it was just one more case to be briefed by morning. But this one was different. The Uniform Commercial Code, one of the most boring documents I encountered in law school, prohibited unconscionable commercial transactions. No one had ever thought that meant charging poor people usurious interest rates for goods they desperately needed and then repossessing them for even a single nonpayment, as explained in very small writing.

Wright thought that was exactly what it prohibited, and he wrote a decision that outraged many in the business community for its audacity in seeking to regulate arms-length commercial transactions between willing sellers and desperate buyers.

“What do you think of that?” my then-professor asked the class. I thought I might have found my hero.

Long before he protected poor people from being treated like dirt in furniture stores, Wright, a self-described “good Catholic boy” from New Orleans, a night-law-school graduate, a working-class kid who took seriously what he learned in school and in church, had been appointed to the federal district court by Harry Truman while still in his 30s because he was the only guy around who thought every ballot was supposed to be counted, once. But no one expected this good ol’ boy to decide that if separate but equal was inherently unequal, it was his job as a federal judge to order the first blacks to attend LSU Law School, to integrate the New Orleans school systems.

The Klan burned crosses on his lawn so often his son once told me that when his parents went out, his dad told him to just ignore them unless they got too close to the house, in which case he should call the fire department.

He didn’t set out to be a hero. He just believed it was his job to do what was right, to enforce the law. By the early ’60s, Richard Russell, then the chairman of the Senate Judiciary Committee, had told the president’s men that Skelly Wright would never be confirmed for the Court of Appeals for the 5th Circuit, which covered the South, or for the Supreme Court. But if the new president wanted to get him out of Louisiana and put him on the U.S. Court of Appeals in D.C., he’d skip the hearing that day. That is what President Kennedy did.

I was Wright’s second woman clerk. He had to tell me that his good friend William Brennan, then the most liberal justice on the U.S. Supreme Court, a job my judge would have loved and could never have, wouldn’t be hiring me because I was a woman. He sat with me as I tried not to cry.

A few months later we were assigned an important rape case. The fancy law firm representing the defendant was trying to uphold the corroboration requirement that Wright’s closest friend on the court had championed. I came close to tears again. I explained how I’d been raped and there had been no corroboration, and the rule that would have kept this case from the jury would have kept mine away as well. This one’s for you, he told me. It was the day I came to understand that lemons could be made into lemonade.

He never got rich. I used to joke years later that he was the only person I knew who drove a car worse than mine: I drove a Maverick, and he drove a Pinto. As the Supreme Court changed, he got reversed more and more often. But he never stopped fighting.

The year I worked for him was the year my world fell apart: I lost my father, my family was in shambles, I didn’t have a dime to call my own, and I could barely remember why I had become a lawyer. It was also the year my world came back together, under the kind and gentle tutelage of a man who never wore his courage on his sleeve, never expected, or received, much acclaim, but taught me what it was to believe in something enough to put your life and your heart on the line for it every day.

I spent Christmas that year with the Wrights. It was the finest Christmas of my life. For it was his soul that made J. Skelly Wright a hero. He never got a Nobel Prize, but truth be told, he didn’t need one.

By David Von Drehle

Once a year, as another December gives way to a chill January, Chief Justice John Roberts rereads a poem published in 1749 by the great writer, moralist and late-night conversationalist Samuel Johnson. Roberts began the ritual in the 1970s as an undergraduate at Harvard, where he was one of many students taught to revere Johnson by the master biographer Walter Jackson Bate.

It is an odd pairing, not least because Roberts comes off as upbeat as a roomful of Rotarians, while Johnson, despite his vast accomplishments–including singlehandedly compiling the first comprehensive dictionary of the English language–was haunted by the inevitability of disappointment. The poem, “The Vanity of Human Wishes,” is a devastating reflection on remorseless fate. “Life protracted is protracted Woe,” the poet says.

Roberts, by all appearances, is fate’s darling: wealthy, handsome, at the pinnacle of his profession. Having recovered from a strange but evidently benign seizure this summer at his vacation home in Maine, the young chief no doubt sees protracted life as pretty good. (At 52, Roberts is 35 years younger than the court’s oldest Justice, John Paul Stevens, and is surely the first Chief Justice whose schedule has included back-to-school night at his children’s grade school.) His combination of keen intelligence and undeniable charm is such that another of his college professors, the liberal lion Laurence Tribe, continues to extol Roberts’ “wisdom” even as he laments the conservative course the Roberts court has taken.

So picture the chief at New Year’s–this man who has it made, settled into his comfortable chair in his big house in the wealthy Washington suburb of Chevy Chase, Md. He’s reading, maybe for the 30th or 35th time, this intricate, almost overwhelming poem about how nothing in this world can be counted on to turn out right. What’s the meaning of this annual discipline? Perhaps that the conservatism of John Roberts goes much deeper than mere politics. That he favors authority and tradition while distrusting reforms and revolutions because he believes in the ancient notion that it is human nature to screw things up. The image of the Supreme Court as a great righter of wrongs, ingrained among liberals by the stirring cases of the Warren Court–school desegregation; one man, one vote; right to counsel; and so on–has no power over a judge so rooted in the conservatism of the 18th century, of Samuel Johnson and Edmund Burke, a mind-set always focused on the fact that even well-intended changes often go awry.

In which case, no one should be surprised that Roberts has turned out to be an uncompromising conservative on a court split 4 to 4 on ideology, with a fifth conservative, Justice Anthony Kennedy, deciding case after case according to his own self-dramatizing muse. When Roberts was picked to be the nation’s 17th Chief Justice, he talked a great deal about the need for the fractious court to find more coherence and common ground, to wage fewer ideological spats on the pages of unnecessary separate opinions. Some wondered if this was an offer on his part to split the difference between the rival camps, but no one wonders anymore. In two terms, Roberts has not taken a single position on a high-profile case that you would not expect a darling of the conservative Federalist Society to take.

Republican Senator Arlen Specter of Pennsylvania, chairman of the Judiciary Committee in 2005, when Roberts was confirmed, was so annoyed by some of the Chief Justice’s opinions last term that he threatened to investigate whether Roberts had misled the panel. But Roberts has told friends he stands by every word. He wasn’t talking about compromising on ideological principles, he explains. He was talking about conducting disputes and expressing outcomes in the voice of a durable institution–not as nine voices of nine headstrong pundits.

So much for human wishes. Roberts, of all people, ought to have been more circumspect in trumpeting his plans to reform the vociferous court. His ambitions have so far been in vain. The warring factions of the Roberts court–and their pocked and smoking battlefields–have made his talk of self-effacing harmony seem obsolete. After a brief honeymoon of unanimous opinions in obscure cases, it is the same four Justices on the right and the same four on the left in one high-profile case after another, with Kennedy determining the law. Bombast, rhetorical excess and dueling opinions are thick as Pompeian ash.

Yet there is something strange about all this heat and division. As the dust rises and the opinions, concurrences and dissents pile up, the court turns its attention to ever smaller cases related to ever narrower points of law. There is, it seems, an inverse relationship between the passions expressed in judicial writings and the import of the cases that inspire them. In the midst of these battles, no one seems to have noticed that the stakes have diminished. This trend–a steady shrinking of the judicial role in public policy and a handing over of issues to the states–is consistent with Roberts’ conservative philosophy. And it points to an obvious question about the highest court in the land. How much does the Supreme Court matter anymore?

The Incredible Shrinking Court

The irony is that the Court’s ideology is playing a dwindling role in the lives of Americans. The familiar hot-button controversies–abortion, affirmative action, the death penalty, police powers and so on–have been around so long, sifted and resifted so many times, that they now arrive at the court in highly specific cases affecting few, if any, real people. And it’s not clear that Roberts wants to alter that trend. His speeches on the judicial role suggest a man more interested in the steady retreat of the court from public policy than in a right-wing revolution. Unless the Roberts court umpires another disputed presidential election (à la Bush v. Gore in 2000–a long shot, to say the least), the left-right division will matter mainly in the realm of theories and rhetoric, dear to the hearts of law professors and political activists but remote from day-to-day existence. What once was salient is now mostly symbolic.

For example, in 1954 the Supreme Court decided a set of cases challenging racial segregation of schools. Brown v. Board of Education changed the lives of millions, beginning with the students in the affected school districts and radiating throughout the country. Compare that with the race-and-schools cases decided by the Roberts court last term, which affected at most a few hundred students.

In 1973 Roe v. Wade dramatically altered the abortion options of most American women. By contrast, the abortion case decided last term staked out an equivocal position on a specific procedure that, according to abortion-rights advocates, is rarely used.

A single death-penalty decision, Furman v. Georgia, in 1972 struck down more than 30 state laws and spared some 600 prisoners. This year the Roberts court will hear a case asking whether death is an excessive punishment for the rapist of a child. There is only one such prisoner on death row in the U.S.

Of course, symbols matter. Court cases dealing with Executive power over Guantánamo detainees will directly affect relatively few people, but such cases help strike the philosophical balance between security and human rights that is relevant to the entire nation and to America’s place in the world. As Harvard professor Frederick Schauer pointed out in an influential recent law-review article, however, “most of the court’s agenda lies some distance from the nation’s.” Compounding this is the fact that the court is tackling fewer cases than at any other time in the past half-century. Last term’s output of just 68 decisions was the lowest since 1953. Court watchers and even the Justices themselves aren’t sure why the docket is so small. Nor do the Justices have a plan for picking up the pace. The U.S. is the world’s most litigious society, but our lawsuits aren’t sexy enough to interest the Justices of the Roberts Court. We’re not that into them, and they’re not that into us.

The Dryest Court in the Land

John Roberts not only has an abiding philosophy, but he also has a temperament. He is a technocrat of appellate law and a groupie of Supreme Court culture. He clerked for the late Chief Justice William Rehnquist and became one of the most prominent members of the Supreme Court bar as head of appellate practice at the law firm Hogan & Hartson. Roberts argued 39 cases before the court–which meant studying the personalities of Justices to whom he would direct his arguments and identifying the questions that might pique their intellectual fancy.

This makes him a perfect representative of a highly technocratic and specialized court. The Roberts Court exemplifies a striking change in the anthropology of the high tribunal. For much of the institution’s history, Justices arrived from diverse backgrounds. Some were distinguished lawyers in private practice, such as Louis Brandeis and Lewis Powell. Some were presidential advisers–like Roger Taney, James Byrnes and Abe Fortas. Dwight Eisenhower put Earl Warren in the job after the then Governor locked up California for Ike in 1952. There have been relatively obscure state-court judges like William Brennan and Sandra Day O’Connor, law professors like Felix Frankfurter and even a former President, William Howard Taft. On the court that decided Brown, only one Justice had come up from the federal courts.

Today’s court includes a woman and an African American, but in other ways it is far less diverse than in the past. All the Justices were promoted from the federal courts of appeals. Most of them have backgrounds as law-school professors or as veterans of the intellectual realms of the Justice Department–the Solicitor General’s office or the élite Office of Legal Counsel.

That these Justices so often find their attention captured by discrete cases that pirouette on a narrow point of law suits their shared temperament. They are like priests, schooled from an early age in the orthodoxies, mysteries and controversies of the constitutional faith. Many of them have been enfolded from an early age in the ideological apparatus of the right or the left. As young Justice Department lawyers in the early days of Ronald Reagan, Roberts and Justice Samuel Alito played on the same volleyball team, and both men were quickly marked for big things and nurtured for the bench. Justice Ruth Bader Ginsburg’s cocoon was the American Civil Liberties Union. Stephen Breyer’s inculcation came on Senator Edward Kennedy’s Judiciary Committee staff.

An ordinary citizen visiting the court on an oral-argument day is likely to feel as though she has wandered into a Vatican conference room filled with adepts in Augustinian theology debating arcane questions in hurried Latin. The Justices are scarlet-capped cardinals; the law clerks are the brilliant new seminary graduates, their razor minds undulled by actual experience; the lawyers at the dais are the theologians commissioned to assist in plumbing the sacred texts.

The Gloves Come Off

Opposite Roberts’ desk in his paneled chambers is a door that leads to the Supreme Court conference room, where in order of seniority the Justices discuss cases. It is a small space for such robust egos and large minds, but by all accounts, the exchanges are unfailingly cordial.

But if the Justices are polite in conference, the muzzles come off when they set pen to paper. For many years, the sharpest tongue on the Supreme Court belonged to Justice Antonin Scalia, whose stinging, highly quotable and sometimes quite personal dissents made him a hero to conservatives back when they weren’t winning all the time. Now that they are, his operatic style has spread. You never know anymore, as you read an opinion, when the case law is going to give way to aggrieved wailings and self-righteous asides. Even Roberts, whose opinions are characterized by clear prose and occasional sports analogies, has been known to indulge from time to time.

Take the schools case from the 2006-07 term. On June 28, as the term was ending in a burst of 5-to-4 decisions, the court ruled on a controversy involving public schools in Seattle and Jefferson County, Ky. Parents had sued to end policies that classified children by race and–occasionally–used this data in determining which school students would attend. The goal of the programs was to make schools racially diverse even if neighborhoods were not.

The court has been deciding cases in this realm since before Roberts was born. As you might expect, given all that history, the unresolved issues were rather narrow. Author Richard Kluger once wrote of Brown, “Probably no case ever to come before the nation’s highest tribunal affected more directly the minds, hearts and daily lives of so many Americans.” All these years later, the Seattle and Kentucky cases affected “a few handfuls” of students in Seattle, according to lower court findings, and fewer than 1 out of 20 school assignments in Jefferson County.

Apparently, firing a popgun requires a lot more rhetoric than loosing a thunderclap. The unanimous court in Brown needed just 14 calmly crafted pages to deliver its ruling. The Roberts Court devoted 178 pages, in five separate opinions, to its narrow resolution of the smaller questions. And what did the Justices say in all those pages? Little, if anything, new. As the Rehnquist Court held in 2003, schools may not use simple racial classifications as the determining factor for admitting students. Administrators in Seattle and Jefferson County were advised to find more nuanced ways to achieve diversity.

The opinions in the case featured page after page of rich and exhaustive legal reasoning, befitting the intellectually dazzling court. Justice Clarence Thomas reiterated his often expressed opposition to affirmative action of all kinds, this time in 36 pages. Justice Stevens delivered a relatively terse ad hominem attack on the majority and offered his nonbinding belief that “no Member of the Court that I joined in 1975 would have agreed with today’s decision.” (The other eight are dead, so this couldn’t be confirmed.) Kennedy offered an airy critique of both sides of the argument.

Meanwhile, Roberts and Breyer churned out the lion’s share of the verbiage, writing for and against the court’s ruling. Each strove to wrap the case in the lustrous legacy of Brown. “Before Brown,” Roberts intoned, “schoolchildren were told where they could and could not go to school based on the color of their skin,” and now these schools are doing the same. Not true, countered Breyer. Indeed, “to invalidate” those policies “is to threaten the promise of Brown,” he warned.

The inescapable conclusion, for anyone with the fortitude to read the entire tome, was that each faction of the court wanted the public to believe that the other side was soft on racism and imperiling one of the monuments of American justice. All based on a case that broke little new ground and affected few, if any, people.

A sense of proportion is among the defining qualities of a judge. Yet the Roberts Court so far is better known for making symbolic mountains out of real-life molehills. Roberts’ first written dissent, published six months after he joined the court, seemed to accuse the majority of making the world safe for wife beaters. The case at hand dealt with a fillip in the vast edifice of Fourth Amendment law governing police searches. To wit: What if a husband and wife are together at their home and the wife invites the police in to search for her husband’s drug paraphernalia but the husband says no? Is the consent of just one spouse sufficient? Previous courts had handled the slightly different instance in which one spouse is sleeping, as well as the slightly different instance in which the wife gets the drug paraphernalia and hands it to the police. This case simply resolved the small number of instances in which both Bickersons are at the door together.

That this is an intriguing philosophical puzzle was evident from the opinions–six of them–totaling 48 pages. In places, they read like the midnight bull session of the world’s smartest law students. But when Roberts warned that the decision would effectively seal battered women in their homes with the police locked outside, he sent Breyer and Justice David Souter to their keyboards to write yet more pages establishing the long settled fact that police are allowed to enter a home to stop domestic violence, with or without consent.

Even soft-spoken Ginsburg belted out an aria last term. The decision to uphold a federal ban on so-called partial-birth abortions provoked a speculative outburst from the legendary women’s rights advocate. The ban, she declared from the bench, “and the court’s defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court–and with increasing comprehension of its centrality to women’s lives.” Someday we’ll know whether the right to abortion will be chipped to nothing by the Roberts Court–or whether, as some legal theorists predict, the issue fades away with the arrival of further advances in contraception. As for the actual decision that provoked Ginsburg, it’s a stretch to think that it will be central to the lives of women.

Heartfelt disputes have been a part of the court forever, but that doesn’t mean the Justices have always treated one another this way. When Oliver Wendell Holmes Jr. famously dissented from the Supreme Court’s 1905 ruling rendering governments nearly powerless to regulate working conditions–for decades one of the most consequential cases in history–he needed just three paragraphs to say his piece. He was piercing but entirely civil and expressed sadness that he felt compelled to write at all: “I regret sincerely that I am unable to agree with the judgment in this case.”

Benjamin Wittes, a fellow at the Brookings Institution, is among the court watchers distressed by the bellicose tone of some recent decisions. He points to the once rancorous Washington Circuit Court of Appeals as an example of an ideologically divided panel that has managed to find its way back to civility. “It’s not clear yet if John Roberts understands that that achievement requires the judges to give something up,” Wittes says. “Namely, excess rhetoric.” Even some Justices express concern on occasion. The newest of the nine, Alito, has confided that he finds the rhetoric dismaying, and he recently noted during a question-and-answer session at Pepperdine School of Law that it can be almost impossible to slip in a question among all the speechifying by his colleagues during oral argument.

Heading into the Second Inning

The Chief Justice has been encouraging people not to make too much of the court’s divisions. A lifelong baseball fan, he turns again to a sports analogy. A single term in the life of the court, he likes to say, is like a single at bat in a baseball game.

But with voting rights, the death penalty, Guantánamo detainees and, in all likelihood, gun control on the docket this term, there will be plenty of fuel to heat up the rhetoric again. The question is whether Roberts and his colleagues will put away their matches.

No one knows better than Roberts how difficult this will be. Many of these Justices seem to seek the spotlight–the hotter, the better. Thomas’ headline-making memoir, thick with grievances, drowns out the substantive work of the court. Other Justices prefer to give speeches, barely disguised as questions, from the bench or to jet around the globe to conferences and panel discussions.

As a clerk for Rehnquist in 1980, Roberts was assigned to conduct research for an article on the power of a Chief Justice to set the court’s tone. He found an essay in which Frankfurter scoffed at the very notion. Every Justice “is his own sovereign,” Frankfurter wrote; you can’t expect Justices to get along just because a new chief smiles at them. Rehnquist’s article concurred.

A quarter-century later, John Roberts still wants to believe that something more is possible. A Chief Justice ought to aspire to persuade his colleagues “to be open to the considered views of the others,” as he explained in a 2006 speech at Georgetown University. Roberts added, “There will, of course, be divisions on the court, and those cannot and should not be artificially suppressed.” Still, “working toward broader agreement should be one of [the] shared aims” of all Justices.

It should be–but so far, it isn’t. That’s the story of the Roberts Court, a tale of the gap between should be and is.

With reporting by Text by Jeninne Lee-St. John

Linda P. Campbell
Fort Worth Star-Telegram
October 20, 2007

The day an ambulance transported a player from a football scrimmage, I prayed he would be all right.

The night the trainer was holding up fingers in front of a dazed defender, I prayed the injury wasn’t major.

And when a tight end was helped to the sideline and then taken to the hospital, I prayed he wouldn’t suffer lasting damage.

There might not be crying in baseball, but there is praying in football.

It’s a violent game. Contested in an emotional atmosphere. By young men who in the best of worlds have bonded with their teammates and their coaches. And people get hurt.

So a little head-bowing, a moment of silence, a reminder from the announcer that “it’s just a game” strike me as comforting, not constitutional tinder.

But a New Jersey town has been upended over what separation of church and state means for locker rooms, playing fields and pregame rituals.

Last year, U.S. District Judge Dennis Cavanaugh decided that football coach Marcus Borden, who also teaches Spanish at East Brunswick High School, could take a knee and bow his head during his players’ pregame prayers.

Cavanaugh ruled from the bench that Borden wasn’t leading the prayers – or even really participating in them.

“I agree that an Establishment Clause violation would occur if the coach initiated and led the activity, but I find nothing wrong with remaining silent and bowing one’s head and taking a knee as a sign of respect for his players’ actions and traditions, nor do I believe would a reasonable observer,” wrote Cavanaugh, who was appointed to the bench in 2000 by President Clinton.

(Read a transcript at www.thnt.com/assets/html/ B535522726.HTM.)

If only it were so simple.

For most of his 24 years at East Brunswick, Borden perpetuated the “tradition” by appointing players to lead prayers at mandatory pregame meals and conducting a locker room prayer circle, according to court filings.

He did it even though the Supreme Court ruled in the 1960s that the First Amendment bars school officials from conducting classroom prayers or Bible devotions.

Even though the Supreme Court ruled in 1992 that public schools unconstitutionally promote religion by organizing or leading graduation prayers.

Even though the Supreme Court ruled in 2000 that school officials can’t appoint or arrange for students to lead public prayers before football games.

Borden did it until 2005, when some cheerleaders, players and parents complained to the superintendent. They told her, among other things (according to a court brief), that those who objected to pregame dinner prayers were told to wait them out in the bathroom.

When the district told Borden to stop leading prayers, he quit his job; then he withdrew his resignation and sued for a court order allowing him to quietly bow his head and take a knee with his team.

District officials have asked the 3rd U.S. Circuit Court of Appeals, which covers New Jersey, Pennsylvania, Delaware and the Virgin Islands, to rule that even his silent action would go too far toward endorsing religion.

“Borden does not get to infringe students’ and parents’ religious freedom because, as a public employee, he does not get to make policy: The District does,” the district’s lawyers argue in a brief. A three-judge panel heard arguments Oct. 3.

They’re absolutely correct about public employees not coercing students to engage in favored religious conduct. Teachers shouldn’t evangelize on school time. They shouldn’t use their positions of influence to promote certain beliefs, denigrate others or make students feel ostracized.

But honestly, once we start policing what’s intended when people take a knee, have we divorced the law from reality?

When is it genuflection and when sincerely secular?

Ideally, coaches should neutrally respect their athletes’ choices to pray or not, but where’s the line that they dare not cross between promoting unity and seeding discord?

And when you hear about a coach secretly selling players’ medical information to big-money donors, how do you escape the sense that there are worse things that a coach can do than take a knee with his team?

By Robert Barnes and Jerry Markon
Washington Post Staff Writers
Thursday, October 18, 2007; A01

The Supreme Court stopped the execution of Virginia death row inmate Christopher Scott Emmett yesterday, a move that legal experts said might signal a nationwide halt to lethal injections until the justices decide next year whether the procedure amounts to cruel and unusual punishment.

The court granted the stay of execution just four hours before Emmett was to be put to death. It is the second time the justices have stopped an execution since agreeing to decide whether lethal injections carry the potential for pain that would violate constitutional standards.

“I think this is a de facto moratorium,” said Douglas A. Berman, a sentencing expert at Ohio State University’s law school. Since almost all executions are carried out by lethal injection, he said a halt “would mean the most profound hiatus in the operation of the death penalty in at least two decades.”

The justices review applications for stays on a case-by-case basis and gave no indication what their decision means for other death row inmates. They gave no reason for halting Emmett’s execution, saying only that the stay would last until a federal appeals court in Richmond rules on the case “or further order of this court.”

Emmett’s attorneys have brought numerous appeals, and the Supreme Court turned down his latest Oct. 1. Emmett, 36, beat a co-worker to death with a brass lamp in a Danville, Va., motel room in 2001 and then stole his money to buy crack.

“The Supreme Court has spoken, and we will follow their decision,” said David Clementson, a spokesman for Virginia Attorney General Robert F. McDonnell (R), who had urged that the execution be carried out.

Gov. Timothy M. Kaine (D), who previously had delayed Emmett’s execution so the justices could consider his latest appeal, said in a statement that he “had no reason to question the prosecutor’s decision to seek the death penalty or the jury’s decision that death was an appropriate punishment.”

The court’s action spared Kaine, who personally opposes the death penalty but has overseen four executions in his time as governor, from having to make the decision to either halt the execution or allow it to go forward before the justices decide whether lethal injection is constitutional.

Other governors and courts are facing the same question. Executions by lethal injection have been delayed in at least six states, including Texas, which leads the nation in executions, since the court announced Sept. 25 that it was taking up the issue by accepting a Kentucky case. Other states had suspended the use of lethal injections because of questions about it.

“I think you’ll see that very few states want to be the outliers when the court seems ready to step in and stop” the planned executions, Berman said.

Richard Dieter, executive director of the Washington-based Death Penalty Information Center, agreed. “I believe this stay in Virginia, combined with previous stays in a number of other states, confirms that a moratorium on all lethal injections is in place in this country until the Supreme Court rules on the issue,” he said.

Lethal injection is the primary method of execution in 37 of the 38 states that have the death penalty. Nebraska uses electrocutions, but no executions are scheduled there.

Kent Scheidegger, legal director and general counsel for the Criminal Justice Legal Foundation, which favors capital punishment and opposes expansion of criminal rights, said he had hoped the court would explain its reasoning in its case-by-case review of the stay requests. Another appeal, from Georgia, is likely to reach the court this week.

If the court’s action amounts to a moratorium, Scheidegger said, it would dilute “the deterrence effect” of the death penalty and “cause more innocent people to die.”

Even without a halt to the use of lethal injections, the pace of executions nationally is the slowest in a decade. A Texas execution carried out on the day the court announced it had accepted the Kentucky case was the last.

The case, Baze v. Rees, does not question the constitutionality of the death penalty but whether lethal injection violates the Eighth Amendment’s prohibition of cruel and unusual punishment.

Since accepting the case, the justices have issued stays in two executions that lower courts in Texas and Virginia had said could move forward. Tuesday night, they refused to vacate a stay that the U.S. Court of Appeals for the Eighth Circuit had issued for an Arkansas death row inmate.

Justice Antonin Scalia dissented from that decision, saying that the appeals court applied the “mistaken premise” that the court’s decision to take Baze“calls for the stay of every execution in which an individual raises an Eighth Amendment challenge to the lethal injection protocol.”

No other justice signaled agreement with Scalia, and he did not note a dissent in the stay of Emmett’s execution.

States began using lethal injection in 1978 on the grounds that it was more humane than electrocution and the gas chamber. Almost all the states that employ lethal injection use the same combination of three chemicals: sodium thiopental, a barbiturate intended to render the inmate unconscious at the start of the procedure; pancuronium bromide, which paralyzes the muscles; and potassium chloride, to stop the heart.

Studies have shown that if the barbiturate is not administered properly, some inmates might be fully aware as the paralyzing agent cuts off their ability to breathe. Moreover, pancuronium is known to cause severe pain, but the inmate would be unable to express that.

Maryland’s method of lethal injection is being challenged in federal court, and the state’s highest court ruled in December that state officials had not properly adopted the regulations for carrying it out. Gov. Martin O’Malley (D), an opponent of capital punishment, has delayed issuing those regulations.

Virginia’s Clementson said the commonwealth’s procedures have been reviewed by the courts “and always found to be humane and constitutional.” The state has no more executions scheduled this year.

When a case involves the power of the judiciary, the authority of the World Court, the role of Congress in enforcing treaties and the ability of states to ignore a direct order from the president, even the nine justices of the Supreme Court need more than an hour.

So Chief Justice John G. Roberts Jr. told the attorneys to keep arguing — and fellow justices kept pulling out copies of the Constitution and peppering the lawyers with questions — long after the arguments in a complex case known as Medellin v. Texas were scheduled to come to an end yesterday.

The case began with a horrific rape and murder committed by Jos¿ Ernesto Medell¿n and others in 1993. But it has moved far beyond Texas’s death row to complicated questions about whether the president or an international court has the power to determine the rights U.S. courts afford criminal defendants.

Roberts was one of several justices who seemed skeptical of the deference owed to the International Court of Justice, also known as the World Court. He asked Medill¿n’s lawyer, Donald F. Donovan: If the Supreme Court thought a World Court ruling preempted federal law, “We would have no authority to review the judgment itself?”

Justice Antonin Scalia agreed, saying he has a constitutional problem with giving an international body such power. “I am rather jealous of that authority,” Scalia said. “I don’t know on what basis we can allow some international court to decide what is the responsibility of this court, which is the meaning of the United States law.”

Medell¿n, 33, has lived in the United States since he was 3; he speaks and writes English but is still a Mexican national. He was part of a gang that attacked Jennifer Ertman, 14, and Elizabeth Pe¿a, 16, as the girls walked home from a friend’s house. The girls were raped and murdered, one of them strangled with her own shoestring.

Medell¿n signed a waiver of his Miranda right to remain silent and confessed within hours of his arrest. But he was not told of his right to talk to the consulate of his country, guaranteed to those arrested outside their home countries, under the Vienna Convention. Medell¿n did not raise that right during his trial but did in one of his death penalty appeals.

Mexico, which has no death penalty, went to the International Court of Justice, and it ruled that the death sentences of 51 Mexican nationals in nine states, including Medell¿n’s, receive “review and reconsideration.”

The Bush administration first argued against Mexico, then President Bush in 2005 issued a memorandum to the attorney general saying that the United States will “discharge its international obligations . . . by having state courts give effect to the decision” of the World Court.

Bush’s home state said no. The Texas Court of Criminal Appeals said Bush’s directive exceeded his authority, and to give Medell¿n an additional hearing would violate the state’s judicial procedures.

Justices Ruth Bader Ginsburg and Stephen G. Breyer were most supportive of Bush’s desire to comply with the guarantees of treaties and the ruling of the international court.

“The United States gave its promise,” Ginsburg said. “It voluntarily accepted this jurisdiction. It didn’t have to.”

Breyer pulled out a copy of the Constitution and read a portion that said state judges must comply with U.S. treaties — “I guess it means, including Texas.”

Solicitor General Paul D. Clement, who joined Medell¿n’s side, distanced himself from the argument that the treaties alone would mean the court must follow the World Court’s directive. The president’s agreement with the World Court is the “critical element,” Clement said.

But Texas Solicitor General R. Ted Cruz said Bush had no authority to issue a memorandum ordering a state court to do something its laws do not authorize — in this case, another hearing for Medell¿n.

The lively debate drew in all the justices, save Justice Clarence Thomas, who maintained his customary silence. At one point, the fray grew such that Justice John Paul Stevens asked Cruz to clarify a point — and then asked colleagues not to interrupt until Cruz finished.

By BRENDAN FARRINGTON
The Associated Press
Thursday, October 4, 2007; 3:30 PM

TALLAHASSEE, Fla. — Congressional Democrats from Florida sued their own party Thursday, hoping to restore the national convention delegates stripped from the state because it scheduled an early presidential primary.

The party violated the Constitution and federal voting laws by taking away Florida Democrats’ ability to have a say in choosing the presidential nominee, says the lawsuit filed by Sen. Bill Nelson and Rep. Alcee Hastings against the Democratic National Committee and Chairman Howard Dean.

“For the DNC to say to the fourth-largest contingency of Democrats in the nation that their votes will not matter in next year’s presidential primary is not only shocking and ironic, but we believe is illegal,” Hastings said at a news conference in Washington.

The national party’s rules committee voted to take away Florida’s 210 delegates after the state party chose to go along with a Jan. 29 primary. That date was set by Florida’s Republican-led Legislature and signed into law by Republican Gov. Charlie Crist.

Democratic Party rules say states cannot hold their 2008 primary contests before Feb. 5, except for Iowa, Nevada, New Hampshire and South Carolina.

The DNC issued a statement saying the Supreme Court has previously ruled that political parties _ and not states _ have the right to decide how their candidates for president are selected.

“The state of Florida moved the date of their primary knowing full well what the consequences from the national parties would be. The DNC has the absolute legal right to treat the state-run primary as a mere beauty contest,” the statement said.

Nelson said they tried to compromise with party leaders before filing the lawsuit. “We didn’t have any other choice,” he said.

The calendar was designed to preserve the traditional role that Iowa and New Hampshire have played in selecting the nominee, while adding two states with more racial and geographic diversity to influential early slots.

Meanwhile, South Carolina Democrats will decide within two weeks whether to ask national party leaders to move the state’s primary to Jan. 19 and make it the party’s first contest in the South.

That would move the state out of Florida’s shadow. South Carolina Republicans already have decided to vote Jan. 19.

“The concern is we don’t want to be 10 days after the Republican primary,” Joe Werner, the state Democratic Party executive director, told The Associated Press on Thursday.

The Iowa and New Hampshire congressional delegations on Thursday sent a letter to House leaders asking them to stay out of the simmering fight over primary election dates.

“Constitutional questions have already arisen related to congressional action to set the order of presidential primaries and caucuses,” the letter said. “We believe that this matter is best left to the two major political parties and the states.”

The lawsuit filed by the Florida lawmakers in Tallahassee said, “For the right to vote in a presidential primary to have any meaning, those presidential primary ballots must result in votes that are going to count at the party’s national convention.”

It notes the controversy over vote-counting in Florida that extended the 2000 presidential election, which was decided only after a Supreme Court ruling.

“In the aftermath of the shattering events of 2000, Democrats here and around the country have made continued efforts to assure that every vote counts,” it said. “It is thus truly a monumental irony for the Democratic National Committee to replace its own commitment to assuring that every vote must be counted with a decree that no Florida Democrats’ vote will count.”

___

Associated Press Writers Jim Davenport in South Carolina and Ann Sanner in Washington contributed to this story.

Matthew Daly
Associated Press
October 1, 2007

WASHINGTON — Supreme Court justices appeared skeptical today as they heard arguments on whether Washington state’s “top two” primary system is constitutional.

Washington voters passed a law three years ago allowing voters to pick their favorite candidate for each office, with the top two vote-getters advancing to the November general election, even if they are from the same party.

The major political parties challenged the law in federal court, asserting a First Amendment right for them to select their own nominees without outside forces interfering.

Several justices appeared wary of the state law, which has been struck down by a federal judge and a federal appeals court.

The law would allow candidates to associate themselves with a party but would not allow the parties to reject a candidate they oppose or simply do not like, said Justice Antonin Scalia.

“That seems to me a great disadvantage to the parties,” Scalia said.

State Attorney General Robert McKenna, defending the law, said there was no evidence that the parties would be harmed, since they can publicize through advertising and other means which candidates they support.

But Scalia pressed McKenna on the point, asking three times whether the proposed state ballot would indicate that a party does not prefer someone who self-identifies as a party member.

When McKenna began a lengthy response, Scalia cut him off. “Please answer yes or no,” he said.

McKenna finally said no; the ballot would not indicate whether a party endorses the person who identifies as a party member.

Chief Justice John Roberts compared the case to a trademark dispute. The two major parties are trying to protect their “brand” to ensure that only those who agree with the party’s principle are identified with that party, he said.

Under the law as approved, “people will be confused,” Roberts said. Candidates might “look like Republicans but aren’t.”

But Justice David Souter said candidates were unlikely to identify themselves with a party unless they agree broadly with its principles.

“’I really prefer the Democrats. I’m a Republican myself.’ That doesn’t happen,” Souter said.

“There’s the example of Senator Lieberman,” answered McKenna, referring to the Connecticut independent who lost a Democratic primary but later won a general election as an independent. Lieberman generally caucuses with the Democrats in the Senate.

“There’s always one,” Souter said, drawing laughter from the audience.

The Washington state government and the Washington State Grange have been sparring with the political parties since the Supreme Court threw out the blanket primary in a California case in 2000.

The blanket primary was adopted by an initiative drafted during the 1930s by the Grange, organized labor and other groups. It allowed voters to split their tickets, voting for one party for governor and another party for state senator, for instance.

The court said that system violated the parties’ right to nominate their candidates without outsiders taking part in the primary. The Legislature responded with the top-two system, but then-Gov. Gary Locke vetoed it and the state reverted to a Montana-style “pick-a-party” system that requires voters to restrict themselves to one party’s slate of candidates.

In 2004, Washington voters approved the Grange-sponsored Initiative 872.

The Republican, Democratic and Libertarian parties challenged the law, which was struck down by a U.S. District judge and the 9th U.S. Circuit Court of Appeals.

John White, arguing the case for Republicans, said the current law converts a party’s right to nominate a candidate “to a mere right to endorse,” which he said discriminates against the parties.

In recent history, David Duke has identified himself as a Republican, despite GOP repudiation of his racial views, and perennial presidential candidate Lyndon LaRouche has called himself a Democrat, despite wide disagreement with Democratic leaders, White said.

Suzanne Goldenberg in Washington
Saturday September 29, 2007
Guardian

America, which has some 3,350 prisoners on death row, yesterday seemed to be moving towards an unofficial moratorium on executions after the supreme court granted a rare last-minute reprieve to a condemned man in Texas.

The supreme court stay for Carlton Turner Jr, who was scheduled to be put to death by lethal injection for killing his adoptive parents, arrived hours after a death row inmate in Alabama was granted a 45-day reprieve by the state’s governor.

Opponents of the death penalty said the moves suggested there would be a lull in executions while the supreme court reviews lethal injection, the method for dispatching prisoners in all but one of the 38 states which impose the death penalty.

“I think this is a sign that maybe all executions are going to be put on hold aside from those who might volunteer, or who don’t raise the issue of the lethal injection method,” said Richard Dieter of the Death Penalty Information Centre.

In its order on Thursday the supreme court offered no explanation for Turner’s reprieve. However, his lawyers had based their appeal entirely on likening lethal injection to a “chemical straitjacket”.

The court is expected to hear arguments next January on whether lethal injection, a cocktail of three drugs, represents cruel and unusual punishment and is therefore unlawful. The challenge is on behalf of two condemned men in Kentucky, Ralph Baze and Thomas Clyde Bowling Jr, who argued in their 2004 suit that they would suffer excruciating pain in the moments before death, but would be unable to cry out because of the immobilising effects of one of the drugs in the injection.

The supreme court’s consideration of lethal injection also follows a number of botched executions.

Its decision, expected to arrive by June 2008, would have broad implications. Most of the 37 states using lethal injection use the same drugs as in Kentucky.

In recent months 11 states have suspended executions because of concerns about the cruelty of lethal injection.

However, a spokesman for Amnesty International said it was too early to say whether America was moving towards a “creeping moratorium” on executions. Texas, which operates the busiest execution chamber, appears resistant to a slowdown. The state executed a prisoner hours after the supreme court announced its review – before lawyers for the condemned man could prepare an appeal.