Supreme Court Preview

Ken AshfordConstitution, Supreme CourtLeave a Comment

Supreme_court_side_view_medium_web_This blog actually was originally an outgrowth of legal writings I did on the Supreme Court and the Constitution.  I used to prepare Continuing Legal Education materials on constitutional issues, and that whetted my appetite to express my views on the Supremes and upcoming highlights in the law.  Hence, this blog.

Sadly, I don’t do that kind of work and analysis anymore, and happily(?), I write about lots of things now.  And, I have to admit, the Supreme Court has been, frankly, quite boring these past couple of years.

But looking over the docket for the upcoming term, I see we have some interesting stuff.


Boumediene v. Bush and Al Odah v. United States

Issue:  Can Congress pass a law suspending the writ of habeus corpus?

Background:  The "writ of habeus corpus" allows a prisoner to petition the court on the theory that his detainment is illegal.  It is known as an "extradinary" writ — "extraordinary" in the sense that is often the "last chance" that a prisoner can get into the courts outside of the normal trial and appeal process.  Because our system has a complicated structure of appeals, habeus corpus was never a particularly heavily litigated topic; it was almost deemed archaic.

But with the Iraq War, and the Bush policy of detaining alleged "enemy combatents" indefinitely without trial (indeed, without bring a criminal charge, in some cases), the issue of habeus corpus is front page news.  The Supremes visited the habeus corpus issue two years ago, and ruled in favor of a Gitmo detainee who sought access to U.S. courts by invoking the writ.  The then-Republican controlled Congress responded to the Supreme Court decision by passing the Military Commissions Act, whic said that “no court, justice, or judge shall have jurisdiction” to consider a detainee’s petition for a writ of habeas corpus.

But the Constitution authorizes Congress to suspend the “privilege” of habeas corpus only at times of “rebellion or invasion".  Under the Supreme Court’s precedents, a suspension at other times may nonetheless be permissible as long as adequate alternate procedures exist for challenging a conviction or sentence.  So the question here is if the suspension of the writ is permissible.

Thoughts:  I suspect the so-called "liberal" view will prevail, and the Supreme Court will overturn the Military Commissions Act.  My guess is 6-3, although it should be unanimous for such a clear cut case.  The Gitmo detainees seem to have no possibility of due process without the writ.

Death Penalty

Baze v. Rees

Issue:  Is the three-drug lethal injection “cocktail” given to death row inmates at their execution, "cruel and unusual" punishment?

Background:  There was a time when death-by-injection was considered humane, at least compared with the other options of the time (electrocution, hanging, etc.).  But the ingredients of "cocktail" have not changed in half a century, and many argue there are more humane executions (including other cocktails) available.  The ASPCA had used the same cocktail to enthenize animals, but even they abandoned that formula years ago.  In the Kentucky Supreme Court (from where this case came), the use of the cocktail concluding that the risk of pain to executed prisoners was not "substantial" enough to forbid its use.

Thoughts:  This is going to be one of those 5-4 cases, and I expect the lower court decision to be upheld.


Gall v. United States and Kimbrough v. United States

Issue:  When sentencing convicts, how much discretion do judges have to stray from the mandatory guidelines?

Background:  In Gall, the specific question is what kind of justification (if any) a judge must give if he does stray from the mandatory sentencing guidelines. 

In Kimbrough, the issue is whether a judge’s discretion can mitigate the harsh sentences required for offenses involving crack cocaine.  It is well-known that sentences for crack cocaine are ridiculously out of proportion when compared to sentences for "regular" powder cocaine.  In other words, 6 ounces of crack cocaine could get you in jail for the rest of your life; 6 ounces of powder coke will get you a couple of years.  Many have thought this disparity to be racist (since crack is the drug of choice for blacks; while powder coke has a whiter, more-upscale clientele).

Thoughts:  Don’t look for any sentencing reform here.  This mostly-conservative court tends to crack down on judicial discretion (which some incorrectly view as "judicial activism").

Voting Rights

Crawford v. Marion County Election Board, and Indiana Democratic Party v. Rokita

Issue:  Can states require photo I.D. requirements at the polls?

Background:  Voting is a constitutionally guaranteed right.  Still, people are becoming increasingly concerned about voter fraud.  On the chopping block is an Indiana law (although other states have adopted similar laws) which require some from of government photo identification (typically, a driver’s license) before a person can vote.  Some argue this discriminates against the elderly and the poor, who don’t always have, or need, those I.D.s

Thoughts:  Tough one.  Could go either way.

Child Porn

United States v. Williams

Issue: Is the recent PROTECT Act passed by Congress too broad and vague as to be unconstitutional?

Background:  The PROTECT Act makes the pandering of "any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe" that the material is illegal child pornography.  In other words, if the "models" in the porno are of legal age (above 18), but it is presented to make someone think they are NOT of legal age, it is a crime.  Opponents of the law argue that such a law is vague and arbitrary (How can you decide if a model "looks" underage?  Who decides?)

Thoughts:  This will be a close one, too, but I think the Supreme Court will strike down the law in a 5-4 decision.

International Law/Treaties

Medellin, Jose v. Texas

Issue:  Do state courts have to honor treaties made between the United States and other nations?

Background:  The case involves the murder and rape of Mexican children.  The State of Texas found the defendant guilt, but the International Court of Justice ruled that the execution of the defendant would violate the Vienna Convention of 1963, to which the United States is a party.  At first, the Bush Administration sided with the State of Texas, but then it did a 180, and now is on the side of the defendant (the federal government now wisely argues that if states can violate international treaties, then the federal government becomes essentially without power to enter into future treaties).

Thoughts:  This to me is a no-brainer: Medellin should win.  But this mostly-conservative court loves to talk about "states rights" and it could very easily go the other way.  It is an important case not in the realm of criminal law, but in the realm of international treaties.  I suspect a lot of the outside world will be watching this one, even if Americans aren’t.


Another case to watch for is Parker v. District of Columbia.  The Supreme Court has not decided whether to take the case, but it is on the docket for certioriari (a request for the Supremes to hear it).  The Parker case, whatever its outcome (and assuming the Supreme Court takes it) will be landmark.  At issue is the centuries-debated question: Is ownership of firearms an "individual" right, or a "collective" right?  The Second Amendment of the Constitution, depending on how you interpret it, suggests that the "right to bear arms" is an individual right — or — on the other hand a "collective" right that exists only as part of being in a Militia.  Obviously, since there are no "militia" in existence today (for all practical purposes), a ruling that the Second Amendment applies only to a "collective" right would essentially make that right non-existent.


I should note that today, the first day of the Court’s 2007-2008 term, the Court refused to hear a case over birth-control health insurance benefits.  Many states (including North Carolina) have a law which requires employers to provide health insurance which gives (among the normal stuff) birth control benefits.  A good idea, but some employers are religious organization which oppose birth control:

[New York] enacted the Women’s Health and Wellness Act in 2002 to require health plans to cover contraception and other services aimed at women, including mammography, cervical cancer screenings and bone density exams.

Catholic Charities and other religious groups argued New York’s law violates their First Amendment right to practice their religion because it forces them to violate religious teachings that regard contraception as sinful.


The New York law contains an exemption for churches, seminaries and other institutions with a mainly religious mission that primarily serve followers of that religion. Catholic Charities and the other groups sought the exemption, but they hire and serve people of different faiths…

…and the exemption would not apply to them.

Since the Supreme Court refused to take the case, that means that the decision of the lower court stands.  The 6-0 decision by the state Court of Appeals hinged on the determination that the groups like Catholic Charities are essentially social service agencies, not churches. 

Makes sense to me.


This will be a particularly interesting yeara for the Supreme Court not only because of the actual cases they will be hearing (they have selected 45 cases to hear, and will probably pick another 20 or so), but because this is the first full year with the "new" court.  Justice Alito has replaced moderate O’Connor, and many wonder just how conservative Alito really is.  Kennedy’s role as the "swing" justice makes him the most important on the bench.  There will be an unusual amount of 5-4 cases this year, and very few unanimous ones.  Last year set a record for those "close 5-4 cases" and many expect this year will result in even more of those.  Basically, it’s almost a one-man court: win over Kennedy, and you win your case.