Supreme Court

You’ve probably already heard this, but just in case…quoting the New York Times:

The death penalty is unconstitutional as a punishment for the rape of a child, a sharply divided Supreme Court ruled Wednesday.[…]

Justice Anthony M. Kennedy, writing for the majority, said there was “a distinction between intentional first-degree murder on the one hand and non-homicide crimes against individual persons,” even such “devastating” crimes as the rape of a child, on the other.

Hmmm….I wonder if spamming could be classified with treason as a crime against the state, which is also permitted to retain the death penalty under the ruling.

Seriously, I have issues with the death penalty on general principle, due to seeming inequities in its application, and due to the number of times that capital offense convictions have been overturned.  But, if  you are going to have a death penalty… I’m not sure that I agree that capital offenses require that the victim be a corpse.  If death is ever an appropriate punishment (and that’s a big “if”), the test of appropriateness should be heinousness.  There are some particularly vile crimes that don’t involve murder.

Justice Kennedy expressed concern that the criminal justice system would be bogged down if child-rape cases were capital offenses, or that family member victims/witnesses would be less likely to testify if the criminal was a family member and was up for the death penalty.   While those are valid concerns…isn’t that part of the reason why judges and district attorneys are given some latitude in prescribing sentences?

Seen at SCOTUSBlog:

In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights.  If Congress wishes to suspend habeas, it must do so only as the Constitution allows — when the country faces rebellion or invasion.

The Court stressed that it was not ruling that the detainees are entitled to be released — that is, entitled to have writs issued to end their confinement. That issue, it said, is left to the District Court judges who will be hearing the challenges. The Court also said that “we do not address whether the President has authority to detain” individuals during the war on terrorism, and hold them at the U.S. Naval base in Cuba; that, too, it said, is to be considered first by the District judges.

I had thought from my old Social Studies classes that the rights enumerated by the Bill of Rights were inalienable rights applicable to all people.  Heck, we fought a civil war 140-plus years ago over the question of whether those rights should belong to just some folks, or all…and the “all” crowd won.

It’s nice to see a bit of that upheld, despite Washington’s best efforts to the contrary.

I don’t necessarily object to the idea that folks who really are set on doing Americans harm should be detained.  I also don’t necessarily object to the idea of radical measures being taken during a legitimate emergency.

However, it’s been almost seven years since 9/11.  You’d think that our political leaders have had ample opportunity to work out how to provide such protection without throwing away the rights our ancestors died to protect.

One other comment that merits highlighting:

Even though the two political branches — the President and Congress — had agreed to take away the detainees’ habeas rights, Kennedy said those branches do not have “the power to switch the Constitution on or off at will.”

Thank-you Justice Kennedy, for pointing out something that should have been obvious all along.

Seen at Business Insurance:

The U.S. Supreme Court refused Tuesday to hear a case in which a federal appeals court ruled that property insurance policies did not cover flood damage in New Orleans caused by the failure of levees during Hurricane Katrina in 2005.

In its Aug. 2, 2007, decision in the Katrina Canal Breaches Litigation, which it revised on Aug. 30, the 5th U.S. Circuit Court of Appeals held that “even if plaintiffs can prove that the levees were negligently designed, constructed or maintained and that the breaches were due to this negligence, the flood exclusions in the plaintiffs’ policies unambiguously preclude their recovery.”

Repeat after me: A flood is a flood is a flood.

It’s nice to see the courts continuing to see sense here, and hopefully this will finally close the book on this unfortunate chapter of the Katrina mess.

Fun stats noted while surfing—the ages of certain Supreme Court justices:

• Stevens—age 87
• Ginsburg—age 74
• Breyer—age 69
• Souter—age 68
   
• Scalia—age 71
• Kennedy—age 71
• Thomas—age 59
• Alito—age 57
• Roberts—age 52

I encountered this information at Daily Kos, where it was mentioned in the context of the 35th anniversary of Roe v. Wade.

The significance of this is left as an exercise for the reader.

You may have seen through the usual sources that the Supreme Court yesterday heard oral arguments in regards to Indiana’s “strictest in the nation” voter ID law.  

I’m no legal scholar, but I did skim through the transcript of the session.  A couple of the Justices seemed to be hung up over whether the Democratic Party of Indiana had any business being a plaintiff on the case, and why such a big fuss was being made over such a seemingly small problem — lines of questioning that doesn’t bode well for the “ID’s are evil” crowd.  Also, the attorney arguing against the law came off as a bit of a dolt in the record.

But that’s not why I’m posting.

In some of the post-argument discussion on the blog circuit, I came across this statement in AJC’s “Thinking Right” blog:

The challengers say: If we were in power, we’d have chosen another approach (usually absentee voting) to restoring the integrity of the voting process. Fine. But just because one party doesn’t like the choice made by another to achieve the same end doesn’t make it unconstitutional.

While I disagree with the author’s sentiment, and I’m not a fan of ultra-stringent Voter ID laws, there is a bit of sense in that quoted passage.

One of the alternatives regularly suggested to recent Voter ID laws is a two-part system:

• Folks who show up at the polling place show ID and vote normally;
• Folks who show up at the polling place without ID cast essentially an absentee ballot, which is counted after the signature on the ballot envelope is compared to the signature on record.

(Under some recent Voter ID laws, folks who don’t have or are unable to get photo ID can cast provisional ballots which are counted after they go down to the county office during business hours, within 10 days, to provide proof of identity….or they can request regular absentee ballots, which are subject to signature verification.)

If Dems are really peeved by the toughness of recent voter ID laws, getting themselves elected to state legislatures, and changing the law to something a bit more sane might be a more realistic course of action, rather than taking a complaint all the way to a conservative-leaning Supreme Court.

Seen in the Wall Street Journal (subscriber link):

The Supreme Court on Tuesday imposed a six-year deadline for suing the federal government in property disputes.

The justices ruled 7-2 that a company waited too long to complain in court that the government took the firm’s property. The decision came in a lawsuit by the John R. Sand & Gravel Co. of Lapeer County, Mich., which sought compensation for the loss of some of the land it had leased from the property owners.[...]

In the 1990s, the Environmental Protection Agency began blocking access to portions of the property because the agency was overseeing the cleanup of a landfill under the federal Superfund law. The owners of the 158-acre site in Metamora Township, Mich., had used part of the property for a landfill for tens of thousands of drums of toxic industrial waste.

The reason this article caught my attention is because of recent events on the Great Plains, where a Lakota organization claims to be reasserting its independence, and has threatened to place liens against much of five states as inappropriately taken property.

Depending on how broad a scope the six year statute of limitations opinion has, I suppose that there may now be legal precedent to argue that the Lakota declaration and liens might be many years too late.

The idea that not everybody has a photo ID was glossed over in a few states’ rush to mandate such identification as a prerequisite to voting. However, the New York Times has run a story attaching a face to an undocumented voter:

But on Election Day last November, Valerie Williams became that evidence, according to lawyers in a case that will be argued before the Supreme Court on Wednesday. After Ms. Williams grabbed her cane that day and walked into the polling station in the lobby of her retirement home to vote, as she has done in at least the last two elections, she was barred from doing so.

The election officials at the polling place, whom she had known for years, told her she could not cast a regular ballot. They said the forms of identification she had always used — a telephone bill, a Social Security letter with her address on it and an expired Indiana driver’s license — were no longer valid under the voter ID law, which required a current state-issued photo identification card.

“Of course I threw a fit,” said Ms. Williams, 61, who was made to cast a provisional ballot instead, which, according to voting records, was never counted. Ms. Williams — who has difficulty walking — said she was not able to get a ride to the voting office to prove her identity within 10 days as required under the law, and her ballot was discarded.[...]

A brief filed with the Supreme Court by the Marion County Board of Elections, the state’s largest voting jurisdiction and a defendant in the case, said Ms. Williams — who is a black Republican — and 31 other voters had to cast provisional ballots because they showed up at the polls without the state-required ID, which can include a driver’s license, a passport, a state-issued ID or some other government-issued photo identification. Because they also failed to appear later at county offices with the identification required to validate their identities, all of these voters had their ballots thrown out, records show. In interviews, many of these voters said they could not find transportation or could not afford the IDs.

All of these voters appeared at the polling place for the precinct in which they were registered, and all of the signatures on their provisional-ballot envelopes matched the appropriate poll book signatures. At least 14 of these voters had voted in 10 elections before last year, according to voting records.

A few years ago, I would have believed that the Supreme Court would likely view the photo ID requirement as a combination of some form of discrimination against folks with disability, and a poll tax. However, with the Roberts court having developed a bit of a neoconservative air about it, now I’m not so sure.

Politico is running an article suggesting that some folks might be more aware of the stakes involved in the President’s power to appoint new Supreme Court justices heading into the next election:

U.S. Supreme Court Chief Justice John Roberts and Associate Justice Samuel Alito may well become the bogeymen of 2008.

Their decisions in the last term on abortion, school desegregation and pay equity angered pillars of the Democratic constituency, already prompting Senate campaigns and issue advocates to invoke the Supreme Court in fundraising pitches and attacks on Republican incumbents.[...]

Five of the nine justices will be at least 70 by Election Day 2008, including three of the court’s most liberal members.

Neither side disputes the prize: The next president could continue President Bush’s efforts to solidify a conservative majority, or reverse it altogether.

A few of us tried to make noise in 2000 and 2004 over how the results of the presidential election could influence the law of the land for years to come. Alito and Roberts have, in their time on the Court, certainly proven to be interesting in that regard.

Perhaps the reminders I and others will make in 2008 will fall on more receptive ears this time around.

In case you haven’t heard already, the Supreme Court handed down a ruling today that has been said to partially overturn Brown v Board of Education. Quoting a Washington Post article on the subject:

Chief Justice John Roberts asserted in his majority opinion that by classifying students by race, the school districts are perpetuating the unequal treatment the Brown decision outlawed. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts said.

I’ve been under the impression that explicit consideration of a student’s skin color was tolerable when setting out plans to reverse decades of racial segregation in school systems, due to the lack of other ways to accomplish the goal.  If and when segregation was unlikely to to reemerge, at that time it would be appropriate to drop race-based considerations.

This form of reverse discrimination still sucked…although I might be a bit biased because of the headaches my family had to go through to get me into a good high school within the Memphis City Schools system, rather than the troubled school I was zoned to.   However, it did make sense in an environment where segregation was deemed inherently bad.

Today, though, you have to wonder whether that is still considered true.  Involuntary discrimination is evil, regardless, and it would be entirely inappropriate to see a return to the bad old days of “white only” schools.   However, we have had had public discussions of the potential value of tolerating public schools focused on a particular culture or for particular genders, to provide a certain level of guidance that might be valuable in overriding local social challenges.

I’m not convinced of that, but as long as the opportunity afforded is equal… then maybe there’s some sense there.

In Justice Kennedy’s opinion, agreeing in part and disagreeing in part with the plurality, he pointed out that race and other demographic attributes could still be used when deciding where to locate new schools to facilitate diversity.

But perhaps it could be argued that society has advanced to the part where considering race is no longer the best tool to combat institutional racism.

I realize that there are a number of folks who are in a tizzy over the ultra-conservative Roberts Court having the gall to overturn Brown v. Board of Education… but I tend to disagree with that assessment.  I’m cautiously optimistic that we may have matured enough to quit being so hung up about skin color, and instead look towards how best to address local challenges in educating children…even if those challenges may be correlated to certain demographic traits.

Seen on the newswires:

The Supreme Court tightened limits on student speech Monday, ruling against a high school student and his 14-foot-long “Bong Hits 4 Jesus” banner.

Schools may prohibit student expression that can be interpreted as advocating drug use, Chief Justice John Roberts wrote for the court in a 5-4 ruling.

Even though this ruling is being hailed as the standard-bearer in a big victory for conservatives in today’s SCOTUS decisions, I think the Supremes were probably correct this time.

Wikipedia has a decent synopsis of the case. The Cliffs Notes version is that the plaintiff, a student who had been playing hookey from school showed up with his classmates across the street from campus when they were released to watch the Olympic torch run pass by.  The plaintiff and a few of his cohorts unfurled a “Bong Hits for Jesus” banner as a defiant demonstration of free speech.  The school principal promptly had the banner taken down, and suspended the truant for the stunt.  A violation of civil rights was claimed, lawyers were involved, and the rest is history.

The gist of the ruling appears to be that schools are free to prohibit speech that advocates or romanticizes illegal activity, on school grounds or at school functions, in the interest of maintaining order and promoting responsible behavior.  The “get out of school to watch the torch run by campus” was deemed to have been a school function…and thus it follows that the suspension was not out-of-line under the circumstances.

For the most part, I can agree with that.

However, where I do get a bit uncomfortable is with the distinction the SCOTUS makes between the notion of political speech being protected under the First Amendment, but not advocacy for law-breaking.   The Court clearly states that black arm-bands in protest of war are OK, but “Bong Hits” banners are not. 

Well, there are times where an activist is making a political statement to advocate a change in the law.  Where does that fall in the black-and-white scheme being advocated?   What if the banner had been a clear message calling for the legalization of medical marijuana?  Would the suspension still have been constitutional?

I don’t think that the Court started down the slippery slope with this ruling, but I think if Justice Roberts were to look down, he’d see his toes hanging over an icy down-grade.