Crimbrary: U.S. Supreme Court

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How the Roberts Supreme Court has Strengthened the Powerful and Screwed Everyone Else
"John Roberts is entering the stretch run of his tenth term as chief justice of the United States. In-depth assessments will come, but the preliminary results are plain. The man who vowed to act as a neutral umpire calling balls and strikes has led a Court in which racial and religious minorities, women, workers and consumers have struck out regularly, while the economically and politically powerful have walked around the bases.

The chief justice has emerged as a cunning strategist and leader willing to defy the customs and traditions that buttress the Court’s legitimacy. He has led a Court that has repeatedly overreached by taking cases it does not need to hear, answering questions not squarely before it, and ignoring or overruling longstanding precedent—all in the service of deciding the issues that the conservative majority wants to decide, in the manner it wants to decide them. Roberts has been aided in this effort by Justice Samuel Alito, who joined the Court just months after Roberts and has written some of the most radical decisions of the past nine years."

The Supreme Court's Massive Blind Spot
"This term, the Supreme Court heard two cases involving the actions of police officers during traffic stops. How the court comes down on the two cases will likely have significant repercussions far beyond the facts of the cases themselves. The court’s decisions could affect how police target motorists, which motorists they target and how often, and how they interact with motorists once they’ve pulled them over. The decisions will likely affect how police profile motorists to look for drug couriers, who gets detained and searched, and who has property confiscated through civil asset forfeiture.

Here’s the problem: You’d be hard-pressed to assemble nine lawyers in America who as a collective are further removed from the realities of the facts of these cases than the nine justices of the Supreme Court. The road from law school to the Supreme Court today starts at Harvard or Yale (all nine of the current justices attended Harvard or Yale for law school, although Ruth Bader Ginsberg later transferred to Columbia). From there the next stop is a clerkship or two with a federal judge, followed by a post in academia, the Justice Department, or a white shoe law firm. Rise quickly and get noticed, and you might eventually earn an appointment to the federal judiciary. From there you’ll want to write strong opinions (but not too strong) that will attract the eye of court watchers, influential ideological organizations like the Federalist Society and the American Constitution Society, and the legal media commentators who draw up those Supreme Court short lists.

What’s missing from that career trajectory is any real experience in criminal law...."

News in Brief:

Canada:

What's behind the trend of declining crime rate in Toronto?
Commentary by the Centre's Professor Rosemary Gartner
Stephen Harper is wrong: Crime and sociology are the same thing
Article by Centre graduate Rashmee Singh
Women and girls often exploited in street gangs, says ex-member
Ian McKinney, 24, opens up on the dangers of Winnipeg gang life
Reports contradict PM's view on aboriginal women victims
Fairness for Victims Act faces major constitutional problem
Boat crash on Lake Ontario leads to key test of civil forfeiture law
Robert Latimer case: How Harper's tough agenda ignores individual nature of crime
Black inmate sues B.C. over alleged KKK beating and "torture" by jail staff
Are you on the no-fly list? Who knows?
Audit raises concerns about prisoners' privacy rights
Library time and book access limited for federal prisoners, advocates say
Red Devils: A glimpse into Hamilton's oldest outlaw biker gang

U.S.

U.K.

What To Watch Out For In The Supreme Court’s Big Remaining Cases

The Supreme Court is in the home stretch. There are just three days left in this term — Wednesday, Thursday and next Monday — when the justices are scheduled to hand down opinions. Until these cases are decided, however, the fate of women seeking reproductive care, workers and their unions, criminal suspects with cell phones and a president thwarted by a recalcitrant Senate remain uncertain. Here’s a few things to watch out for in seven of the biggest cases that are still pending before the Court:

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Americans now get to decide which religions we want to protect

When the Supreme Court handed down its decision Monday in Town of Greece v. Galloway, many commentators suggested that it was an overreaction to believe that it would impact religious freedom in America. If anything, they argue, we are all a little bit freer this morning, as the court has moved away from the stifling demand that religious invocations before a town council meeting be limited to “nonsectarian” references, such as the “Almighty” or “addressed only to a generic God.” In a significant shift from earlier case law, Justice Anthony Kennedy wrote that local government “cannot require chaplains to redact the religious content from their message to make it acceptable for the public sphere.” From now on, religious leaders can offer full-throated, unapologetic prayers to the god of their choosing in public meetings. And in language consistent with one of the most speech-protective courts in modern history, Kennedy reminds religious objectors that citizens who “feel excluded or disrespected” by such religious invocations should simply ignore them. “Adults often encounter speech they find disagreeable,” he wrote.

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The Supreme Court Just Gutted Another Campaign Finance Law. Here’s What Happened.

The Supreme Court on Wednesday released its decision in McCutcheon v. Federal Election Commission, the blockbuster money-in-politics case of the current term. The court's five conservative justices all agreed that the so-called aggregate limit on the amount of money a donor can give to candidates, political action committees, and political parties is unconstitutional. In a separate opinion, conservative justice Clarence Thomas went even further, calling on the court to overrule Buckley v. Valeo, the 1976 decision that concluded it was constitutional to limit contributions to candidates.

In their dissent, the court's four liberal justices called their colleagues' logic "faulty" and said it "misconstrues the nature of the competing constitutional interests at stake." The dissent continues, "Taken together with Citizens United v. Federal Election Commission, today's decision eviscerates our Nation's campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve."

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How the Supreme Court Is on the Verge of Delivering Even Greater Power to Corporations

The five right-wingers on the U.S. Supreme Court may soon recognize the “religious freedom” of corporations so that these artificial constructs can then dictate to female human citizens restrictions on the kinds of contraceptives that they can get through their work-place health insurance plans.

That may sound crazy but some court watchers believe that the Right-Wing Five will follow the logic of their “corporations-are-people” theories to this next nutty conclusion. After all, if corporations have First Amendment rights of “free speech” when they are financing political propaganda to influence the outcome of U.S. elections, there is a consistency – albeit a bizarre one – to extending to corporations the First Amendment’s “religious freedom.”

Already unlimited corporate money in campaigns has drowned out regular human citizens in terms of who (or what) has the bigger say in the outcome of elections, so why shouldn’t the religious choices of corporations override the personal and moral judgments of people who work for the corporations?

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How Conservatives Abandoned Judicial Restraint, Took Over The Courts And Radically Transformed America

Child labor laws hurt children. Social Security is an anchor dragging down economic growth, and Medicare should be abolished.

Those are the lessons I learn in a room full of conservative lawyers snacking on lamb sausage and Gorgonzola fondue — a room that’s absolutely packed with top practitioners, right-wing intellectuals and judges. I walked into the room alongside a Texas Supreme Court justice. When I reach to ladle some of the fondue onto a plate full of croutons, my hand accidentally brushes the arm of a federal court of appeals judge.

My sparring partner during much of this closing reception for the Federalist Society’s annual lawyer’s convention, is Ilya Somin, who is a law professor and writer for the Volokh Conspiracy, a popular legal blog that thousands of lawyers, law clerks and judges read every day. As Ilya lays out Social Security’s supposed vices, I wonder if his readers are aware of the breadth of his agenda. I also chide him that voters would have an easy time making up their minds if Republicans campaigned openly on promises to abolish child labor laws and kill Medicare, but he is completely unapologetic for his beliefs. This is not a man who pretends to care about the poor and the middle class in order to sell policies that will lower his own taxes. I leave the reception convinced that he sincerely believes that America’s poor would be better off if they only embraced his vision for a libertarian utopia.

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Supreme Court will tackle affirmative action once again

An affirmative action backlash that began in California and migrated to Michigan has now reached the Supreme Court, with university admissions and more potentially on the line.

In one of the new term’s highest-profile cases, the court on Tuesday will consider a Michigan ballot measure that bans the use of race in public university admissions. Inspired by a similar measure in California, the Michigan policy has divided other states, while giving court conservatives their latest chance to roll back race-based preferences.

“This measure was so polarizing that it created a racial divide,” Mark Rosenbaum, the chief counsel of the American Civil Liberties Union of Southern California, said Thursday. “Instead of healing the nation’s wounds, it actually opens those wounds.”

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Read more here: http://www.mcclatchydc.com/2013/10/10/205044/supreme-court-will-tackle-affirmative.html#storylink=cpy

Abortion, Big Money In Elections, And Eleven Other Huge Cases The Supreme Court Will Hear Next Term

It’s become a cliché at the beginning and end of each Supreme Court term to comment on how important the term is or will be, and how the justices are hearing a myriad of major cases. And certainly after two terms featuring high profile cases on health care, immigration, voting rights and marriage equality — in addition to under the radar decisions blasting worker and consumer rights — there can be little doubt of the Court’s immense power to do harm (and its less frequently exercised power to do good).

The term that begins this fall, however, has the potential to be even more significant that the previous two. By this time next year, fair housing law could be neutered, unions could be hobbled, billionaires could be free to spend millions to put their favorite candidates in office, and the right to choose an abortion could be meaningless. With a wave of their hand, five conservative justices could achieve outcomes that Scott Walker, Rick Perry and Sheldon Adelson could never dream of accomplishing even at the height of their power.

Here’s a taste of what’s at stake in the next Supreme Court term:

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Supreme Court Chips Away At Judges’ Power To Ratchet Up Mandatory Minimum Sentences

Mandatory minimum prison sentences, statutorily imposed by legislatures, are among the major contributors to the U.S. incarceration epidemic. Many federal judges have recognized the injustice of these sentences, and lament that acts of Congress have tied their hands to issue sentences below the mandatory minimums, particularly when it comes to low-level drug offenders. Nevertheless, judges often exercise their authority to hand down sentences above the floor set by law.
In a decision issued Monday, the U.S. Supreme Court held in a splintered 5-4 ruling that judges do not get to raise the floor itself when deciding a criminal defendant’s sentence:

Any fact that, by law, increases the penalty for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an “element” that must be submitted to the jury.

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When You Don’t Have The Right To Remain Silent

Anyone who’s ever watched a crime show knows that the right to remain silent is a fundamental constitutional protection for those who are arrested and read their Miranda rights. But what happens when you aren’t yet in police custody but are nonetheless being questioned by police? In a 5-4 decision along ideological lines, the U.S. Supreme Court held Monday that a man questioned before police custody and not yet read his rights had not invoked his Fifth Amendment right to avoid self-incrimination, when he simply did not answer a police question and remained silent.

The ruling means that prosecutors were entitled to use Genovevo Salinas’ silence against him during a murder trial to argue that jurors should infer guilt from his silent reaction to a police question, even though Genovevo was not present at trial and couldn’t counter this assertion. Salinas had voluntarily answered several other police questions before falling silent on the question of whether shell casings found at the crime scene would match his gun.

While Justice Samuel Alito held for the court that Salinas would have had to explicitly “assert the privilege” by referring to his right to remain silent, the dissent found that defendants cannot be expected to utter particular code words, as the Supreme Court has long said there is “no ritualistic formula” necessary to invoke the privilege.

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Cover Of NAACP’s Official Magazine Features Justice Scalia With Confederate Bandanna

Scalia’ comment, and the NAACP’s commentary upon it, highlights one of the many pitfalls facing the Republican Party as it attempts to rebrand itself as a party that can potentially appeal to voters of color. Just a few weeks after Scalia’s “racial entitlement” comment, the Republican National Committee released an “autopsy” of it’s 2012 election losses claiming that “the Republican Party must be committed to building a lasting relationship within the African American community year-round” and that “[i]t is imperative that the RNC changes how it engages with Hispanic communities to welcome in new members of our Party.”

Meanwhile, while Scalia’s four fellow Republican justices do not share his penchant for offensive rhetoric, they appear poised to join Scalia strike down a key prong of the Voting Rights Act that likely did more than any other law to bury Jim Crow. Similarly, on the same day that the RNC released its autopsy, three top Republicans responded to President Obama’s nomination of Assistant Attorney General Tom Perez to lead the Labor Department with racially charged attacks. The next day, Arkansas Republicans voted to enact a law suppressing the minority vote in that state.

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The Dred Scott award for revealing Supreme Court Justice statements

And the winner is .... Uncle Nino:

Justice Antonin Scalia this week escalated his criticism of the Voting Rights Act ahead of a Supreme Court decision expected within the next two months — raising the likelihood that he and perhaps a majority of justices will overturn the landmark law.

Speaking on Monday night at the University of California’s Washington Center, in D.C, Scalia described a centerpiece of the 1965 law as an “embedded” form of “racial preferment,” in remarks captured by the Wall Street Journal. He reportedly warned that the law would be reauthorized into perpetuity unless the courts invalidate it.
[...]
During oral arguments in the case, Shelby County v. Holder, in late February, Scalia said that portion of the law — and its repeated renewal by Congress — reflects a “perpetuation of racial entitlement.” The other conservatives justices were also deeply skeptical that Section 5 of the law remains valid given the changing times.

"Racial preferment", "racial entitlement" c'mon say what you really mean:

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The Justices Are Not Ready To Bring Marriage Equality To Alabama, And They Want Prop 8 To Go Away

There are probably five justices who object to California’s anti-gay Proposition 8 and who would prefer to see it struck down. Justice Kennedy, the conservative viewed as most likely to provide the fifth vote for equality, openly pondered whether Prop 8 violates the Constitution’s ban on gender discrimination. Kennedy at one point admitted uncertainty about whether there is sufficient evidence examining the effect of marriage equality on society, but he then pivoted to note that the nearly 40,000 children raised by gay parents in California suffer “immediate legal injury” because of Prop 8. His vote is not entirely clear, but Kennedy leaned significantly in the direction of justice.

A weak performance by Charles Cooper, the lawyer defending discrimination, probably went a long way to push Kennedy into the pro-equality camp. When Justice Sotomayor asked Cooper to identify a single example outside of marriage where discrimination against gay couples could be “rational,” Cooper responded “I cannot,” prompting Sotomayor to note that Cooper had more or less conceded that gay people meet the definition of a class entitled to heightened protection under the Constitution. Under longstanding precedent, a group which has experienced a a “‘history of purposeful unequal treatment‘ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities” enjoys enhanced protection under the Constitution’s Equal Protection Clause.

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Prop. 8 lawyers: Supreme Court justices asked 'penetrating' questions

Speaking before a bank of microphones on the Supreme Court steps moments after the argument over gay marriage in California ended, lawyers for both sides said the justices asked probing questions and did not reveal much about how they would decide the case.

Proponents in favor of legalizing gay marriage in California erupted in cheers and whistles as David Boies and Ted Olson emerged from the central door to the court. Both high-profile lawyers were part of the legal team arguing that the court should overturn the state ban.

Boies told reporters it was "amazing" that the proponents of Proposition 8, the initiative that prohibited gay marriage, made "no effort to defend the ban on gay marriage."

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6 Ways the US Supreme Court Has Trashed and Rewritten Our Constitution

What a sorry state the Supreme Court is in, with a creep like Scalia attacking the Voting Rights Act as a “phenomenon that is called racial entitlement.”

O tenderest of mercies! The right to speak one’s mind freely, the right to question and challenge—upon which all other rights are hinged.

1. “Corporate Personhood”
The first attack came almost two hundred years ago in 1819, as the Industrial Revolution was beginning to spin serious wheels in the budding Empire. Blacks picked cotton in the South and the mills hummed in Lowell, Mass., and other river-blessed locations in the North. It was a hundred years after Newcomen’s steam engine, and less than two decades after Fulton’s steamboat would once again spur our westward expansion. Given such multifactoral impetus, and its own proclivity—established by Marshall—to oversight, how could our Supreme Court restrain its worst intentions?

And so it declared, in “Trustees of Dartmouth College vs Woodward,” the principle of “corporate personhood.” The Court was essentially restating the 14th Amendment, but now equating the “rights” of corporations to be as free as real, live, human beings from any State’s denial of “equal protection” under the laws within its jurisdiction.

Of course, this 14th Amendment “equal protection” did not apply to cotton-picking slaves, “Indian savages,” women, etc.! And that’s the assault on our national consciousness and conscience. And we have lived with that assault for nearly two centuries!

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The Supreme Court Will Hear A Republican Party Lawsuit To Make Citizens United Even Worse

The Supreme Court’s election-buying decision in Citizens United v. FEC enabled wealthy corporations to spend unlimited money to change the course of American elections, and a subsequent lower court decision gave the green light to super PACs funded by unlimited donations from millionaires, billionaires and corporations. Today, the Supreme Court announced it would hear another case — brought by none other than the Republican National Committee — that would go even further towards transforming American democracy into the Wild West.

Despite recent election-buying decisions permitting unlimited donations to super PACs and other groups that exist independently of campaigns and political parties, federal law still limits individual donations to candidates and to the parties themselves. In the next election cycle, these limits include a $2,600 cap on individual donations to a single candidate, and an overall limit of $123,200 in contributions to candidates, political party committees and similar organizations. The Republican Party’s lawsuit seeks to eliminate most of these limits on election-buying — most importantly, by removing the $123,200 cap on total contributions.

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More Fallout From Citizens United: Corporations Granted More Power to Propagandize to Americans

The controversial 2010 Supreme Court ruling did not just affect corporate "speech" in elections.

Tamara Piety is a constitutional law professor and dean at University of Tulsa’s College of Law. Her latest book, Brandishing The First Amendment: Commercial Expression in America, describes how federal courts have aggressively and inappropriately expanded the First Amendment rights of for-profit corporations in recent decades.

The book starts with a striking assertion, that if the government cannot regulate corporate speech then it cannot regulate commerce, especially in our media-driven world. Piety writes that the Supreme Court’s 2010 Citizens United ruling, which deregulated corporate political speech, also will make it harder for the government to protect public interests because corporate rights to say anything is ascendant in the federal judiciary.

Steven Rosenfeld interviewed Piety about Citizens United's reach beyond the electoral arena. Below is a slightly edited transcript.

Steven Rosenfeld: Are we talking about advertising or does it go deeper than that?

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Supremes Gut Arizona's Immigration Law; Scalia Strikes Down Results of the Civil War

While one of the law's most contentious issues remains unresolved, the 5-3 ruling represented a pretty big win for civil liberties advocates.

On Monday, the Supreme Court gutted Arizona's controversial immigration law, SB 1070, prompting a notably injudicious outburst from Justice Antonin Scalia.

In a 5-3 decision – Elena Kagan recused herself from the case – the majority ruled that 3 major provisions were unconstitutional under the Supremacy Clause, which holds that when a federal law conflicts with a state law, the former must prevail. The ”Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens," wrote Justice Anthony Kennedy on the behalf of the majority, adding that "the federal power to determine immigration policy is well settled."

The federal government had made a strategic decision not to challenge the law on the basis of the 14th Amendment's Equal Protection or Due Process clauses. Its suit didn't focus primarily on the potential for rampant racial profiling that led to so much controversy around the law in the first place. Instead, the Justice Department argued more narrowly that federal immigration law pre-empted the state's efforts to create its own regulatory scheme.

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