The Supreme Court heard oral arguments today on the case of Pleasant Grove City v. Summum. The issue surrounding this case is if Pleasant Grove City allows a monument with the Ten Commandments to be erected in a public park, must it also allow other religious groups to display comparable monuments based on their belief systems?

Jay Sekulow, Petitioner on behalf of Pleasant Grove City, argues that this is not a “public forum” case but a “government speech” case. “The government itself is permanently displaying the Ten Commandments in a government-owned and government-controlled park,” Sekulow said. Sekulow went on to say that Summum has no constitutional “right to impose a monument’ on the city. Sekulow says that by siding with Summum, municipalities all over the country would be constitutionally obligated to accept any and every donated monument, no matter what it memorialized or commemorated.

Pamela Harris, Respondent for Summum, argued that this is not a “government speech” case but a “public forum” case. “Summum relies on the First Amendment case law establishing beyond peradeventure that a public park is a traditional or quintessential public forum,” Harris said. Harris argued that Summum insists that these precedents do not allow the city to practice content-discrimination or speaker-discrimination. Harris went on to say that “if Pleasant Grove permitted the Faternal Order of the Eagles to conduct a prayer rally or revival extolling the Ten Commandments in the park, then the city would be obliged to permit Summum to conduct a transcending meditation or a rally extolling the Seven Aphorisms.” Because of this, Summum argued, permanent monuments must be provided the same equal treatment.

“This Supreme Court case presents a very engaging and difficult story,” said Chip Lupu, Professor of Law at Elwood and Eleanor Davis, on the Pleasant Grove City v. Summum Supreme Court Case that will be heard on Wednesday Nov. 12th. Summum is a Morman religious group that asked Peasant Grove City authorities to allow them to place religious monuments of the Seven Aphorisms (aphorisms are believed by Summum’s to be a second set of tablets given by God to Moses) next to the already built Ten Commandments in the Pleasant Grove City public park. After authorites voted not to allow Summum to build these monuments in their public park, Summum sued for infridgment of their freedom of speech. The Federal District Court ruled with Pleasant Grove City, shortly after an appeals court in the 10th District ruled in favor of Summum.

Lupu said “Pleasant Grove City lacks evidence to why they refused to allow these monuments to be built and the city can not discriminate against private voices.” Lupu further stated that Pleasant Grove believes that privately owned monuments are not public owned speech and that is the reason why Summum should not be allowed to build munuments.

Ayesha Khan, Legal Director of the Americans United for Seperation of Church and State, said that it’s a classic example of free speech violation, picking and choosing of what they like and don’t like. “Pleasant Grove had taken on the ‘Come one, Come all’ attitude and has accepted everything that has been presented to them except for the what Summum has asked,” Khan said. She went on to state that if other religious monuments can go up in this public park then Summum should have the opportunity to do so.

Basic facts: The Navy performed a number of mid frequency active sonar exercises off the coast of Southern California aimed at detecting diesel electric submarines. Citing irreparable damage to marine life, the Natural Resources Defense Council (NRDC) took legal action to prohibit the sonar use.

The District Court for the Central District of California agreed that environmental laws would be violated by the sonar use, but agreed to let the Navy continue under a preliminary injunction that would require a 75 percent power shut down and restrict the Navy from using sonar when marine mammals are detected within 2,200 feet of testing areas.

The Navy sought to remove the injunction by invoking a statement in the National Environmental Policy that allows alternative measures in emergency circumstances. The President and the Council for Environmental Quality recognized the situation as being an emergency and granted the Navy approval to continue without the preliminary injunction.

The District and the Ninth Circuit Court refused on the grounds that there was no apparent emergency and that the alternative means the Navy took were not valid.

The courts deemed that the preliminary injunctions would continue. The Navy brought the case to the Supreme Court to judge if the District Court acted legitimately in prohibiting the Navy’s sonar exercises.

Arguments:

The Navy argued that the District Court made their decision based on an erroneous conception of irreparable injury, and that there is a precedent set by the Supreme Court that when a lower court makes an erroneous assessment the court may intervene.

According to the Navy, there was no clear permanent damage done to marine mammals and that the only disturbances they faced were “Level B”, which means marine mammals would temporarily alter their direction or feeding routines when confronted with mid frequency sonar. Therefore, since there was no permanent damage done to marine mammals, it could not be considered irreparable injury.

Justice Ruth Bader Ginsberg mentioned that the Navy’s environmental assessment estimated that there would be 654 Type A disturbances, implying permanent damage to marine mammals. The Navy responded that this number included beached whales, of which the causes of death were unclear.

The NRDC responded that classifying beached whales as possible Type A disturbances was not a generous policy move by the Navy, but that there is scientific evidence that these deaths are sonar related. The NRDC explained that the sonar disturbed the whales diving patterns, which resulted in whales coming up too fast or too early which would cause “the bends” or embolisms. The NRDC also said that traditionally environmental damages have been considered permanent and irreparable.
There were also questions raised by Justice Antonin Scalia over whether or not the District Court could judge what would constitute as military emergency since they are not related to the armed forces. NRDC responded that the Court gave proper deference to the Navy but still did not find that the evidence matched the declaration of an emergency.

Color:

Justice Stephen Breyer joked that he thought the military trying to get an environmental impact report was absurd since “the whole point of the armed services to hurt the environment” and asked if we made environmental inquiries when we’re dropping bombs. The NRDC responded that none of their restrictions apply to the environment.

The Navy did perform an Environmental Assessment and apparently if there is nothing in the assessment that would make a party believe there needs to be an Environmental Impact Statement (EIS) one can be forgone. The NRDC pushed for the Navy to issue an EIS. Antonin Scalia suggested that this shows they hold the Navy in bad faith.

The Vietnam Agent Orange Relief and Responsibility Campaign is asking the U.S. Supreme Court to reverse the dismissal of their lawsuit against Dow Chemical and Monsanto for their inclusion of dioxin in Agent Orange. The group’s lawyer Jonathan Moore, believes that American use of Agent Orange “violated international law” because of the use of dioxin in the chemical spray. Dang Hong Nhut, a 72-year-old first generation victim, described various skin diseases, intestinal tumors, as well as five miscarriages and one stillborn birth. Tran Thi Hoan is a 22-year-old second generation victim born without legs and an atrophied left hand. The group asks for compensation as well as “remediation of the destroyed environment” in Vietnam. Moore said the most important thing is that America must “recognize the tremendous harm done in Vietnam” and take responsibility for the acts committed there.

Basic facts:

It’s long been known that people smoking “light” cigarettes smoke them differently. They inhale more, smoke more cigarettes and/or cover the air holes in the filter. The FTC requires that cigarette companies use the “Cambridge Filter Method” for testing tar and nicotine levels, and that method shows lower levels. But it doesn’t accurately recreate the way people actually smoke, and people really end up getting about the same amounts of tar and nicotine whether they smoke light cigarettes or not.

Color:

Not really relevant to the legal arguments, but the U.S. government took a position in the case and received 10 minutes of time, argued by Assistant Solicitor General Douglas Hallward-Driemeier. Justice Alito grilled him about whether the FTC had tacitly approved the use of these figures. “If these figures are misleading, you should have prohibited them a long time ago.” He said that the FTC had created the problem at the base of this case, saying that, “If they are misleading, then you have mislead.” Justice Scalia seemed to concur, noting that he had heard a case on a similar issue (”lip draping,” the covering of the filter air holes with one’s lips) when he was on the circuit court between 1982 and 1986. “It’s been general knowledge for a long time, and the FTC has done nothing,” he said.

Arguments:

The questions in the case dealt with whether the deceptive advertising claims, brought in state courts, should be allowed under federal law. There is a federal law regulating labeling on cigarettes, and the question is whether federal law controls (meaning any action would have to come from the FTC) or whether cases like this should be allowed. There was a lot of discussion about whether the case relies on “smoking and health” or whether it’s a purely deceptive advertising case. Altria and the Justices noted that if there were no health distinction, there would be no case, but the respondents argued that this was just a run-of-the-mill deceptive advertising case and presented no special burden on cigarette companies. They argued that the federal law was passed to keep states from having extra regulations focused on cigarette companies, but that it wasn’t supposed to prevent general state laws, which apply to everyone else, from being enforced.

There was also a big question as to the relief being sought. Respondents said at first that they were not asking for an injunction to force additional warnings or stop selling the cigarettes, but Mr. Frederick later admitted he had misspoken. Still, he argued the main thing they were asking for were damages. He could not, however, explain what damages he was asking for. He said there was an economic cost when people bought the light cigarettes instead of normal ones, but under questioning by Justices Scalia and Souter admitted the cigarettes cost the same whether light or not. Further, he tried to argue that there would be damages even if the smokers could show no health effects—if they were Olympic athletes, for example. The Court may decide that this lack of demonstrated harm means that the plaintiffs are owed no money, and therefore there is no case.

Tonight Texas put José Medellin to death. Medellin, a Mexican national, was arrested in 1993 and charged with the rape and murder of two 14- and 16-year-old girls. Normally a foreign national would at this point be given an opportunity to speak with his home country’s consulate, pursuant to the Vienna Convention, but Medellin was never informed of this right. Instead, he was convicted and sentenced to death. Only then did he learn of his Vienna Convention rights. He took his case to the International Court of Justice, who ruled that Texas should reconsider his case and that of 50 other Mexican nationals on death row. Texas refused, even though the Bush administration ordered it to reconsider.

That’s right: even the death-penalty-friendly, international-law-ignoring Bush administration disagreed with Texas on this one.

Medellin took his case to the Supreme Court, asking it to enforce the ICJ’s decision. On March 25 of this year, the Supreme Court refused, saying that Congress hadn’t passed legislation making ICJ rulings binding on states. In July of this year, Congressman Berman (D-Calif.) introduced a bill that would have allowed people to go to court to have their Vienna Convention rights enforced. It never even got a committee hearing.

Last week and today, Medellin’s lawyers asked the Supreme Court to issue an emergency stay of execution. Normally the Supreme Court summarily rejects these requests, but tonight it issued an unsigned opinion saying Congress and the Department of Justice had had a chance to act and didn’t, so the execution could continue. Four Justices (Stevens, Souter, Ginsburg, and Breyer) wrote dissents. Justice Stevens’s dissent is particularly notable, since he had agreed with the majority of the Court when they heard the case. In his dissent tonight, Stevens wrote that there are serious foreign policy implications of this action, so he’d like to delay the execution and hear the federal government’s opinion on that. Justices Souter and Ginsburg said largely the same thing, and Justice Breyer wrote a longer dissent, giving 6 other reasons the execution should be delayed.

According to the Houston Chronicle, “Medellin was pronounced dead at 9:57 p.m. [Central time], nine minutes after the lethal dose was administered.”

The Heritage Foundation hosted a panel discussion this morning taking a look at the recent Supreme Courts term. Featured were Seth Waxman, the former Solicitor General of the United States under former President Clinton, Ronald Rotunda a constitutional treatise author, and Texas Solicitor General Ted Cruz. No one case dominated discussion but the issue of preemption and its reference to treatises were dominated by Waxman who believes the issue is “predicated on the supremacy clause.” (more…)

Correspondent Dawn Jones will be attending a press conference where Elizabeth Edwards will discuss a new campaign ad to encourage quality, affordable healthcare for every American.

The Washington Bureau will also be covering presumptive presidential nominee Sen. John McCain’s (R-Ariz.) speech to the League of United Latin American Citizens (LULAC), as well as Sen. Barack Obama’s remarks to the LULAC at the 79th Annual National Convention and Exposition. (more…)

Today the Talk Radio News Service will attend a briefing on U.S. Supreme Court rulings at the Brookings Institution in Washington. An event on climate change’s effects on Gulf Coast transportation and waterworks in New York held by the American Meteorological Society will be covered on Capitol Hill. In preparation for the G8 Summit in Hokkaido, Japan, the Washington Bureau will also participate in a conference call discussing the summit’s agenda which includes global warming.

DC v. Heller

“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.”

Heller is a security guard at the Federal Judicial Center. He’s licensed to carry a handgun at work. He applied for a permit to take it home, and it was rejected.

DC law has several provisions. You’re not allowed to carry an unregistered handgun, and the law prohibits registration of handguns. You’re also not allowed to carry any guns without a license, and the chief of police can issue licenses. You can own longguns (like shotguns and rifles) and keep them in your home, but you must keep them unloaded and dissembled, or bound by a trigger lock. There’s no exception in the statute allowing you to take the lock off or load it if you want to use it to protect yourself, but the DC government says they wouldn’t prosecute you.

Justice Scalia wrote the majority opinion for 5 Justices: himself, Chief Justice Roberts, and Justices Kennedy, Thomas, and Alito.

The opinion is 64 pages long and spends 56 pages interpreting the amendment before addressing the DC law. The first half of the Second Amendment is read as a preface: it states a purpose but doesn’t limit the amendment’s meaning. This part of the opinion has little support other than saying that this type of construction is common in founding-era documents, and Justice Scalia cites a law review article rather than specific examples. Turning to the “Operative Clause,” Justice Scalia rights that “the people” refers to the normal people: the same ones protected in the 1st, 4th, 9th, 10th, and other amendments.

Justice Scalia reads the 2nd Amendment as protecting two rights: the right to keep arms, and the right to bear arms. He argues that the phrase “to keep and bear arms” was not in common usage, so there is no reason to interpret it as a unitary right. He then turns to historical analysis, finding little support for the proposition that “keep arms” and “bear arms” were only used in military contexts. Therefore, it must be read to mean that average people can possess (”keep”) and carry (”bear”) weapons (”arms”). Further, there was a right in England for Englishmen to be armed (enacted after the Stuart Kings disarmed the populace and packed the militias with their supporters), so the right was preexisting, not new.

The prefatory clause states the purpose of the Amendment. Since the purpose was to make sure people would be able to serve as a militia and the kinds of weapons they would bring would be the ones they owned for home protection, those are the kinds of weapons protected by the Amendment. M-16s and other high-power weapons wouldn’t be useful for home defense and thus would not be expected in a militia. Therefore they would not be protected by the Amendment.

Justice Scalia leaves significant questions unanswered: Does the right only apply against the federal government, or against states, too? Justice Scalia says that the opinion does not allow felons and the mentally ill to possess guns, or allow guns to be taken into sensitive areas like schools, but he does not offer support for those exceptions.

Turning to the DC laws, Justice Scalia says that they prohibit any possession of weapons that would be useful for self defense. Handguns are the weapons most people choose for defense of the home, and DC bans them as a class. Similarly, the restrictions on longguns render them useless for home defense. Thus, the restrictions are unconstitutional.

The challenge did not address the requirement that guns be registered, so that law stands.

Justice Stevens dissents, criticizing the majority’s interpretation of the Second Amendment. He reads it as saying people can have guns only in a military context, since phrases like “bear arms” have often been used when referring to organized state militia.

Justice Breyer takes issue with the invalidation of the DC laws. Under a balancing approach, considering DC’s crime rates and the crime control options available to lawmakers, he says that the DC laws should be allowed to stand. This is similar to the position the Bush Administration took in the case, which was that there is an individual right to possess guns, but that the courts should be more deferential when reviewing the laws.