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.

Rick Davis, adviser for the McCain/Palin campaign, continued speculation about the Barack Obama campaign’s involvement in the “emerging scandal relating to ACORN.” Davis accused Obama of not utilizing the time he was given during the final Presidntial debate to “spell out his historic involvement with ACORN”. Davis would like to see the Association of Community Organizations for Reform Now (ACORN) asked, “what exactly happened with that $830 thousand given to you by the Obama campaign?”

As for the McCain campaign’s stance on ACORN and their voter registration, Davis said, “I believe the power the media has to bring scrutiny to these issues will help reform the process.” In response to the fact that the Supreme Court just sided with Democratic election officials in Ohio over the voter registration dispute, Davis said the Supreme Court “did not make the decision based on the merits of the case.”

Davis expressed his concern for lack of honesty in this election, and that there’s a “cloud of suspicion hanging over this election.” Davis further stated that “when John McCain gets elected President, we want to know that these are the most honest elections that Americans will have confidence in.”

Pearson v. Callahan

The “consent-once-removed” is a doctrine which allows multiple police officers to enter a home once one police officer (generally an undercover officer) is invited in. The question in this case is whether the same doctrine applies to an undercover informer. In this case, an informant told police that Callahan was selling methamphetamine. Police set the informant up with money, a wire, and a signal for officers to enter. The informant went to Callahan’s home and bought some meth, then signaled police to come in and arrest Callahan. Callahan argued at trial that his Fourth Amendment rights against unreasonable searches and seizures had been violated.

The lower courts agreed, and the Supreme Court today indicated it might uphold those decisions. Justice Souter took the lead in questioning, pointing out that exceptions to the warrant requirement for searches have in the past been granted due to necessity of some kind; in this case, police had two hours between the informant’s contact and when they returned to the house, plenty of time to obtain a warrant. The officers claimed they suspected the meth might be sold or destroyed, so they didn’t have probable cause to get a warrant, but Justice Souter incredulously said that was “not a serious answer.” While Callahan’s lawyer argued that the “consent-once-removed” rule was unconstitutional even in the case of undercover police, the Justices were hesitant to accept that view: Justice Alito in particular expressed concern that police going into a house to protect an undercover office would have to violate the Constitution to do so. Justice Breyer, on the other hand, expressed some doubt about the correctness of the consent-once-removed doctrine, indicating the Court may end up with a 3-way split: some Justices invalidating the rule for police and informants, some keeping it for police but not informants, and some expanding it to informants.

Bartlett v. Strickland

Background: North Carolina House District 18 straddles two counties. The state constitution says that counties should not be divided between districts. The District was created in 2003 and was justified as being necessary to satisfy the Voting Rights Act (VRA), since the new district contains enough black people to get black candidates elected. The state courts have in past held that the VRA trumps the state constitution on this issue. In May 2004, county officials from one of the counties sued to get the district lines redrawn.

The lawsuit arises because the district is not a “majority minority district,” where a minority group makes up a majority in the district (e.g. a district where blacks account for 51% of the population). Instead, the district is a “coalition district”: blacks make up 39.36% of the population, but they make up 53.7% of registered Democrats, and Democrats make up 59% of the population. Therefore blacks are able to get candidates elected. Thus, North Carolina argues, the district is justified under the VRA.

Most of the argument session focused on whether the 50% threshold generally imposed for VRA-justified districts was arbitrary or not. While a minority group, voting as a block, can get candidates elected if it constitutes 50% of the population, it can (obviously) get candidates elected with less than 50%, and it may not be able to get candidates elected even if it has over 50% if it doesn’t vote in a block. Justices (especially Justice Scalia) also had concerns about getting the judiciary branch involved in every districting decision.

The Court’s decision will likely rest on how willing the Justices are to look at specific cases as opposed to abstract theories, and how willing the Justices are to let the courts get involved in districting decisions. The Court’s decision will likely come well after this year’s election, meaning (as the county official noted) it will be enforced in a single election before 2010’s census.

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.

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.

John Nichols, reporter for “The Nation”, speaks with Talk Radio News Service reporter Elia Herman at the Democratic National Convention in Denver, CO. Nichols talks about the recent Supreme Court ruling striking down the Washington DC handgun ban and its role in the election.

 

 After 8 years of George Bush: Play Now | Play in Popup | Download

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 House Constitution, Civil Rights, and Civil Liberties Subcommittee met to discuss the State Secrets Protection Act of 2008. Rep. Jerrold Nadler (D-N.Y.) who introduced the legislation, said members of the Executive Branch are misusing the state secrets privilege to avoid Congressional oversight and thus, shielding itself from questions concerning spying against Americans and acts of torture committed at Guantanamo Bay. He said the act protects justice and, noting checks and balances, the Constitution. Rep. John Conyers (D-Mich.) referenced a Los Angeles Times article from 2006 that suggests over half of government information is over-classified.

Rep. Trent Franks (R-Ariz.) said disclosing classified information threatens the national security of the United States and that though a denial of access to judicial review may be disadvantageous for some, it is necessary for the safety of all Americans. Franks said that the post-September 11 era has shown the significant role of the state secrets privilege in the Department of Justice. He also said the Supreme Court has defended the privilege, adding that he finds it “shocking” that Democrats want courts to deviate from precedent as 200 detainees at Guantanamo Bay qualify for trial in American courts.

Meredith Fuchs of the National Security Archives supported the State Secrets Protection Act, saying that federal agencies often do not feel the need to disclose information without independent pressure. She said courts should have the right to consider evidence in claims of state secrets privilege, adding that courts should not refuse evidence provided by non-governmental experts. Steven Shapiro of the American Civil Liberties Union said Nadler’s legislation restores the state secrets privilege to its proper role and bring legal clarity. Shapiro said the ACLU supports the passing of the State Secrets Protection Act. Michael Vatis, a partner at Steptoe & Johnson, LLP expressed concern with a section of the act he said could be interpreted to mean that courts would analyze governmental and independent evidence equally. He said courts should exercise judgement but give substantial weight to the, potentially better-informed, government.

“The gavel allows you to push issues” according to Senate Judiciary Committee Ranking Member Senator Arlen Specter (R-Penn.) and he added that he missed being the one holding the gavel. (more…)