By Courtney Costello-Talk Radio News Service

The Abolitionist Action Committee, a human rights organization promoting nonviolent alternatives to the death penalty, have been staging a hunger strike for the past 4 days to mark the anniversaries of two very different landmark rulings over execution, Furman v. Georgia and Gregg v. Georgia.

In 1972 the Supreme Court ruled in Furman v. Georgia that the death penalty violated the 8th amendment’s ban on cruel and unusual punishment. 4 years later in Gregg v. Georgia the court ruled that provisions made by individual states can create situations in which the death penalty is constitutional.

“There are tens of thousands of people passing by: commuters going to work, tourists from around the world. We are able to get the message of abolition of capital punishment to them, because it’s something that’s a part of all of our lives,” said vigil organizer Scott Langley.

Vigil attendee Scott Bass of North Carolina recounted walking over 312 miles in 17 days in an effort to reach out to people about the death penalty’s effects on the families of homicide victims and families of those on death row.

“We were walking for restorative justice rather than the death penalty,” said Bass.

Organizers claimed that over 100 people have attended since the vigil’s start. They will be able to break their fast at midnight Friday.

“The death penalty maybe slowly but surely crumbling in this country”, said Langley.

Fifteen states have abolished the death penalty, while many other states are questioning the practice.

The Abolitionist Action Committee has held the ‘Fast & Vigil to Abolish the Death Penalty’ for 16 years.

Tom Goldstein, founder of SCOTUSblog.com and Supreme Court litigator, analyzes the last term of the Supreme Court. He discusses the direction the court has taken, the judicial philosophy of the conservative majority, and predicts the tone of the upcoming hearings for Supreme Court nominee Sonia Sotomayor.

By Learned Foote - Talk Radio News Service

The American Constitution Society, a liberal group designed to counter what they describe as an “activist conservative legal movement,” hosted a panel of legal experts today to review the actions of the Supreme Court this term. According to many observers, the court has leaned to the right under the leadership of Chief Justice John Roberts.

The panel consisted of former New York Times reporter Linda Greenhouse, and six lawyers who have argued before the Supreme Court. The panelists discussed a broad range of cases and offered perspectives on the court that were often at variance.

John Payton, president of the NAACP Legal Defense Fund, criticized the oral arguments in two cases regarding civil rights, the Voting Rights Act and Ricci v. DeStefano. “There was a level of hostility directed at the government lawyers in those cases to me was unprecedented,” he said. He argued that the decisions reflected the court’s erroneous belief that legal protection against racial discrimination is no longer required in some cases.

Greenhouse, who won the Pulitzer Prize for her coverage of the Supreme Court, harshly criticized the court’s decision in Ashcroft v. Iqbal, in which plaintiff alleged that unjust discrimination led to his detention after 9/11. Greenhouse said the ruling revealed a “certain level of intellectual dishonesty of this court, a certain cynicism,” because it misrepresented previous legal precedents.

Greenhouse noted that some court observers believe Iqbal will likely be the most cited case of the term. “It’s going to be cited by defendants in every civil case,” she said.

Andrew J. Pincus, partner at Mayer Brown LLP, discussed the five environmental cases to come before the Supreme Court this term, all of which resulted in a defeat for environmentalists. He said that one critical factor governing these decisions was judicial deference to the executive branch of the government. He noted that “we have a different administration now, and deference to the executive branch may well cut the other way.”

Some lawyers also suggested that broad generalizations of the Roberts Court were inaccurate. “Calling the Roberts Court a great court for business defendants or at least employers has been a little over-simplistic for awhile,” said Paul D. Clement, former Solicitor General and a current partner at King & Spalding LLP. He emphasized that the context of each individual case matters greatly, and that it is difficult to pinpoint broad trends across the term.

Several members of the panel lamented the retirement of liberal justice David Souter, and suggested that nominee Sonia Sotomayor will make a notable and perhaps unpredictable difference in the ideological make-up of the court next year.

By Learned Foote- Talk Radio News Service

A panel of legal experts argued on Monday that the 5-4 decision of the Supreme Court in Ricci v. DeStefano should not affect the confirmation of Supreme Court nominee Sonia Sotomayor. The Center for American Progress and the American Constitution Society hosted the panel.

The Supreme Court found that the city of New Haven did not have sufficient grounds to throw out the results of a test designed to specify officers for promotion, even though black and Hispanic firefighters fared relatively poorly on the test. The opinion struck down a ruling issued by the district court and upheld by the 2nd Circuit Court of Appeals, upon which Sotomayor serves. Four justices, including Stevens, Breyer, and Souter, signed a dissent written by Justice Ginsburg.

Tom Goldstein of Akin Gump Strauss Hauer & Feld, founder of the popular SCOTUSblog, acknowledged that the majority opinion interpreted the law differently than Sonia Sotomayor had. He quoted Justice Kennedy, however, who had said that the law under consideration was unclear. Goldstein also noted that Ginsburg’s dissent said that Sotomayor followed precedent set by the 2nd Circuit.

Goldstein said that the majority opinion indicated an unwillingness to engage with the political process surrounding Sotomayor’s confirmation. He said the opinion “seemed to go out of its way to avoid openly criticizing the second circuit panel on which Judge Sotomayor sat, rather than sort of taking the Court of Appeals openly to task.”

Kevin Russell of Howe & Russell pointed out that Justice Souter—whom Sotomayor could potentially replace on the Supreme Court—signed onto the dissent. He said that the four dissenting justices “thought that Judge Sotomayor’s opinion was correct in concluding that this is not the kind of decision that requires a special justification, it’s not the equivalent of intentional racial discrimination, and that New Haven had substantial leeway to throw the results of these tests out based on the evidence that it had before it.”

By Matthew S. Schwartz — Talk Radio News Service

The Sixth Amendment to the U.S. Constitution gives criminal defendants the right to confront witnesses against them, and that includes the technicians who analyze the evidence found at the scene, the Supreme Court ruled today in a 5-4 decision that crossed the court’s ideological lines.

Until today, the Confrontation Clause only guaranteed defendants the right to face witnesses who were explicitly testifying against them; scientists and technicians who merely ran tests and prepared sworn “certificates of analysis” did not need to come to court and face the defendant in person. With today’s ruling, they do.

The word “witnesses” in the Sixth Amendment means anyone who presents testimony against the defendant, Justice Antonin Scalia wrote in his bench statement discussing his majority opinion, which was joined by Justices John Paul Stevens, David Souter, Clarence Thomas and Ruth Bader Ginsburg. Certificates of Analysis are testimonial statements against the defendant, and so the analysts must be called for cross-examination, the Court ruled.

“Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well,” Scalia wrote. “Serious deficiencies have been found in the forensic evidence used in criminal trials.”

The four dissenting justices were, put bluntly, aghast at the decision today, arguing that the majority had, in one fell swoop, disregarded the accepted Confrontation Clause rules that have been in place for at least 90 years, and extend across 35 states and six federal Courts of Appeals.

“It is remarkable that the Court so confidently disregards a century of jurisprudence,” wrote Justice Anthony Kennedy for the dissent, which was joined by Chief Justice John Roberts Jr., Justice Stephen Breyer and Justice Samuel Alito. “We learn now that we have misinterpreted the Confrontation Clause — hardly an arcane or seldom-used provision of the Constitution — for the first 218 years of its existence.”

Particularly problematic, the dissenters argue, is the fact that the Court required the “analyst” to testify, but made no attempt to explain which analyst they were referring to. In the context of a standard drug test that leads to a Certificate of Analysis, there could be four different technicians that each count as the “analyst.”

The ruling “has vast potential to disrupt criminal procedures that already give ample protections against the misuse of scientific evidence,” Kennedy wrote, calling the Court’s new reading of the Confrontation Clause “formalistic and pointless.”

The case was Melendez-Diaz v. Massachusetts.

By Matthew S. Schwartz — Talk Radio News Service

A 13-year-old girl’s Constitutional rights were violated when school officials searched her bra and underpants for prohibited painkillers, the Supreme Court ruled today.

The Court did not go as far as banning school strip searches, but did state that officials must have a justified belief, based on suspected facts, that a strip search will reveal the hidden items.

“Nondangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear,” wrote Justice David Souter in the 8–1 decision. Officials need to fear danger to students, and have a specific reason to look in a student’s underwear, “before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts.”

Because there was no reason to suspect the drugs presented a danger or were hidden in her underwear, the search violated the Constitution. The Fourth Amendment protects citizens from “unreasonable searches.”

The highly anticipated case arose out of events that occurred at the Arizona middle school in October of 2003. Then assistant-principal of the school, Kerry Wilson, called Savana Redding into his office, where he showed her four white prescription-strength ibuprofen pills, and one over-the-counter naproxen pill, all used for pain but banned under school rules. Wilson told her he had received a report that she was giving the pills to students, but Savana denied it and agreed to let Wilson search her backpack.

After finding nothing, Wilson sent Savana to the school nurse, who searched her clothes for pills. Finding none, they then asked her to remove her clothes, pull her bra out and to the side and shake it, and pull out the elastic on her underpants. No pills were found.

Savan’s mother filed suit against the the school district and officials for conducting a strip search in violation of Savana’s Fourth Amendment rights.

Normally, for a search to be constitutional, a police officer must have “probable cause” to conduct the search. Probable cause exists where circumstances would “warrant a man of reasonable caution in the belief that an offense has been, or is, being committed,” in the words of an oft-cited 1925 Supreme Court decision.

But the Court has also recognized that the Fourth Amendment must be applied differently in educational contexts, where schools are responsible for ensuring their students’ safety. So in 1985, the Court required a less stringent standard — “reasonable suspicion” — and held that a student search is permissible if it is “reasonably related to the objectives of the search, and not excessively intrusive in light of the age and sex of the student.”

The facts in this case did not justify such an intrusive search, the Court held.

“The suspicion of Wilson’s was enough to justify a search of Savana’s backpack and outer clothing,” Souter wrote, adding that most reasonable suspicions would support searches of a student’s backpack and outer clothes.

A strip search, however, is “categorically distinct” from a backpack and clothes search, Souter wrote. “Savana’s subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. … [A]dolescent vulnerability intensifies the patent intrusiveness of the exposure.”

Lawyers for the school had argued that the search was no more intrusive than what happens in school locker rooms. But the justices wouldn’t buy it.

“Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be,” Souter wrote.

The Court also held that the school officials who conducted the search are protected from liability, because it was unclear at the time whether the search violated the Fourth Amendment.

The lone dissenter, Justice Clarence Thomas, believed the search did not violate Savana’s Constitutional rights. “The majority imposes a vague and amorphous standard on school administrators,” he wrote, calling the decision a “deep intrusion into the administration of public schools.”

The case is Safford Unified School District #1 v. Redding.

Senator Robert Menendez (D-N.J.) speaks out in support of Judge Sonia Sotomayor’s Supreme Court nomination.

“Let me make one thing perfectly clear: We get to be proud of this nominee because she is exceptionally qualified, first and foremost. We get to be proud of her vast knowledge of the law, her practical experience fighting crime and her proven record of dedication to equal justice under the law,” said Menendez. (0:19)

 

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The Supreme Court today blessed a gold mining operation in Alaska that is virtually guaranteed to kill all the wildlife in a nearby lake — although the mining company promises it will later “reclaim” the lake, filling it with organic material to make it an even better wildlife habitat.

The Environmental Protection Agency and the U.S. Army Corps of Engineers had already approved the project, which was being disputed by a coalition of Alaskan environmental groups. In upholding the agencies’ approval, the Court upheld its familiar rule that federal agencies are entitled to deference.

The case stemmed out of a proposal by Couer Alaska to reopen the Kensington Gold Mine, near Juneau, which had been closed since 1928. Couer hoped to make the mine profitable by using a technique called “froth flotation” to pull gold-bearing minerals to the top of a tank of roiling water. Couer would then dispose of the crushed rock and water slurry in the Lower Slate Lake, three miles away in the Tongass National Forest. The slurry would almost completely fill the 23-acre lake, currently 51 feet deep at its maximum, transforming it into a 60-acre lake about one foot deep. In the process, all the fish and fauna in the lake would die.

The alternative, Coeur argued, was to place the slurry on nearby wetlands, creating a pile that would rise twice as high and cover three times the area of the Pentagon. This would permanently destroy dozens of acres of wetlands.

Couer needed federal approval before it could proceed with its plan. Two separate provisions of the Clean Water Act (CWA) seemed to give authority over the discharge of slurry to both the U.S. Army Corps of Engineers, which has jurisdiction over the creation of wetlands, and the Environmental Protection Agency, which is responsible for monitoring levels of waste in the water.

The Army Corps approved the gold mining plan, finding it was the “least environmentally damaging” way to dispose of the slurry, and that the damage would only be temporary, since in the future the reclaimed lake will be an even better wildlife habitat. The EPA declined to veto the Corps permit.

The permit was challenged by the Southeast Alaska Conservation Council (SEACC), a coalition of 12 Alaskan environmental groups. According to SEACC, the Army Corps did not have the authority to approve the mining operation because a section of the CWA forbids even tiny solid waste discharges — and that includes the slurry discharge, 30% of which is solid waste. The company and the federal government argued that another section of the CWA grants the Army Corps blanket authority to permit the discharge of the slurry.

In light of the ambiguities in the CWA, the Court looked to the agencies’ interpretation — and found that the agencies had resolved the problem “in a reasonable and coherent way.” An internal EPA memo explained that the prohibition on solid waste discharge applies not to the initial discharge of slurry into the lake, but to any further discharge into downstream waters.

The Army Corps had the sole authority to grant the permit, the Court ruled, because the slurry would fall under the regulations for “fill material,” which is solely under the jurisdiction of the Army Corps, not the EPA.

Three justices dissented, arguing that the use of waters as “settling ponds” for harmful mining waste runs “antithetical to the text, structure and purpose of the Clean Water Act.”

The case was Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (07-984/07-990).

By Michael Combier-Talk Radio News Service

The U.S. Supreme Court ruled in a 8-1 vote that Section 5 of the Voting Rights Act “is a difficult constitutional question we do not answer today” but questioned whether the section is still significant in modern times.

Section 5 requires states with a history of flagrant voter disenfranchisement to seek the approval of a three-judge Federal District Court in Washington, D.C. or the Attorney General whenever they seek to alter state election procedures. Today’s decision of the court came in the case of Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr, Attorney General, et al., in which it was argued that since the district was not a state, they should not be required to seek Federal approval.

The issues raised in this case were the constitutionality of the Voting Rights Act as well as the possibility for the Austin district to opt out of Section 5’s requirements.

Chief Justice John Roberts delivered the opinion of the Court. “The historic accomplishments of the Voting Rights Act are undeniable…In part due to the success of that legislation, we are now a very different nation,” Roberts wrote.

“Things have changed in the South,” Roberts continued. “[Section 5‘s] formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions…the Act’s preclearance requirements and its coverage formula raise serious constitutional questions.”

Another question raised concerns over the repeated authorization of Section 5, which was only intended to last five years, by Congress. It was extended for another twenty-five years in 2006.

The Court reversed the judgement of the District Court and concluded that the Voting Rights Act “permits all political subdivisions, including the district in this case, to seek relief from its preclearance requirements”. Since the utility district is entitled to apply for bailout, the Court believed there was no reason to decide the constitutional issue.

Justice Clarence Thomas wrote separately, saying he would have struck down Section 5 as unconstitutional.

An employee bringing an age-discrimination lawsuit against his employer must prove that age was the determining factor in the demotion or firing, the Supreme Court held today in a 6-3 ruling.

Plaintiff Jack Gross, 54, sued his employer, FBL Financial Group, Inc., after FBL demoted him and gave his old position to a younger employee. Gross brought his action under the Age Discrimination in Employment Act of 1967 (ADEA), which makes it unlawful for an employer to take adverse actions against an employee “because of such individual’s age.”

Over FBL’s objections, the judge instructed the jury that if Gross proved his age played any part in the decision to demote him, the burden would shift to FBL to prove it would have demoted him regardless of his age. The jury returned a verdict for Gross, awarding him over $46,000 in lost compensation.

Today the Supreme Court vacated that verdict, finding that the judge had improperly instructed the jury.

In an ADEA disparate-treatment claim, the plaintiff has the burden of proving, by a preponderance of the evidence, that age was the “but-for” cause — that is, the determining factor — of the employer’s decision.

Lower courts were inappropriately applying Title VII precedent to this ADEA action, the Court found. Title VII prohibits discrimination on the basis of race, color, religion, sex or national origin. But unlike Title VII, the burden of proof in ADEA age-discrimination claims “does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision,” Justice Clarence Thomas wrote for the majority.

The case was Gross v. FBL Financial Services, Inc.