Doug Huffman
Banned
imported post
http://www.washtimes.com/news/2008/jun/28/courts-08-term-exposed-division/
The Supreme Court's final week of decisions set precedents on issues from guns to the death penalty that are likely to reverberate for years, but they also revealed fractures on the court.
On the last day of the 2007-08 term, the court released its most far-reaching decision, affirming that the Second Amendment gave individuals a personal right to own handguns - previously banned by the District of Columbia.
The gun decision was a major victory for conservatives, but the court also handed them two major defeats - ruling that Guantanamo Bay prisoners had rights to court hearings and that the death penalty could not be imposed for the rape of a child.
All three of those decisions came on 5-4 votes.
Unlike Chief Justice John G. Roberts Jr.'s first term on the Supreme Court, his third term was marked by split decisions similar to those of his predecessor, former Chief Justice William H. Rehnquist.
"In the past two years, we've had a lot more 5-to-4 decisions than we did in his first term," said Susan Low Bloch, a constitutional law professor at Georgetown University Law Center. "I think the first year was sort of a honeymoon."
The group that emerged with the most victories may have been the business community, though some of the key victories also came on narrow votes.
A single vote determined that Exxon Mobil could have its punitive damages for the 1989 oil spill at Prince William Sound in Alaska reduced from $2.5 billion to $507 million, and determined that bankers, accountants and their lawyers were not liable to investors for fraud when their investments drop in value.
The Exxon Mobil case is shaping up as one of the most important business decisions in years. The justices limited the punitive damages in lawsuits for maritime accidents to no more than the compensatory damages, which cover only provable injuries, money loss or property damage. Punitive damages are intended to punish wrongdoers.
"For us, that's exactly the kind of approach you should use," said Amar Sarwal, the U.S. Chamber of Commerce's general litigation counsel. Legal formulas that produce "predictable" results help businesses anticipate the outcomes of lawsuits, he said.
The Supreme Court recognized "that a lack of clarity in the lower courts on business issues causes a lack of predictability for American business," Mr. Sarwal said. "It makes it harder for a national or international business to operate."
In one of the rare labor relations cases decided for corporations, the Supreme Court said in Chamber of Commerce v. Brown that California's liberal labor laws could not override federal laws on what contractors tell workers about their rights to seek union representation.
However, the court tended to side with unions and workers in employment discrimination cases.
"Most of the other labor cases we were in, this term we lost," Mr. Sarwal said.
The rulings allow workers to use civil rights laws to sue employers when they suffer retaliation for filing labor complaints and allow workers to sue when their 401(k) retirement plans are mismanaged.
Last term, the court appeared bitterly divided, with the liberals accusing President Bush's two conservative appointees, Chief Justice Roberts and Justice Samuel A. Alito Jr., of trying to overturn precedent.
"We are still learning the personality of the Roberts court," said Steven Shapiro of the American Civil Liberties Union. "Last term, the court launched an aggressive assault on core principles affecting race and abortion.
"This term, the court generally spoke with a softer voice," he said. "Even when speaking softly, however, the court's instincts remain fundamentally conservative on most issues."
For example, the court's conservative majority upheld a federal child pornography law and upheld a state law requiring voters show photo identification, a ruling that critics said could disproportionately affect blacks, poor people and other traditional Democratic supporters in the November election.
The divisions appeared despite efforts by the chief justice to develop more consensus opinions.
In an interview last week on PBS, Justice Antonin Scalia said, "The chief may say: 'Why don't you come along with a very narrow opinion? We can get seven votes for that. It will look a lot better.'"
Justice Anthony M. Kennedy emerged during this term as the court's swing vote in 5-4 cases, most notably in the Guantanamo Bay detainees case, in which the court said the prisoners have the right to challenge their detentions as enemy combatants before U.S. federal judges. The opinion marked the fourth time the court had rejected President Bush's policies in the war on terrorism.
Justice Kennedy also wrote the 5-4 decision striking down Louisiana's law allowing the death penalty for raping children who survive the assaults. He wrote that the executions were unconstitutional as "cruel and unusual punishment."
Washington lawyer Tom Goldstein, the creator of SCOTUSblog, said the November presidential election will be crucial for the court's future direction.
The most likely retirements over the next four years could come from the court's liberal members, such as Justices John Paul Stevens, Ruth Bader Ginsburg and David H. Souter, he said.
A Republican victory by Sen. John McCain could mean "a sea change in jurisprudence," with the court moving dramatically to the right, Mr. Goldstein predicted. Mr. McCain has promised to appoint justices like Chief Justice Roberts, Justice Alito and the late Chief Justice Rehnquist.
The presumptive Democratic nominee, Sen. Barack Obama, a former constitutional law professor at the University of Chicago, has said he would choose judges based in part on their compassion.
http://www.washtimes.com/news/2008/jun/28/courts-08-term-exposed-division/
The Supreme Court's final week of decisions set precedents on issues from guns to the death penalty that are likely to reverberate for years, but they also revealed fractures on the court.
On the last day of the 2007-08 term, the court released its most far-reaching decision, affirming that the Second Amendment gave individuals a personal right to own handguns - previously banned by the District of Columbia.
The gun decision was a major victory for conservatives, but the court also handed them two major defeats - ruling that Guantanamo Bay prisoners had rights to court hearings and that the death penalty could not be imposed for the rape of a child.
All three of those decisions came on 5-4 votes.
Unlike Chief Justice John G. Roberts Jr.'s first term on the Supreme Court, his third term was marked by split decisions similar to those of his predecessor, former Chief Justice William H. Rehnquist.
"In the past two years, we've had a lot more 5-to-4 decisions than we did in his first term," said Susan Low Bloch, a constitutional law professor at Georgetown University Law Center. "I think the first year was sort of a honeymoon."
The group that emerged with the most victories may have been the business community, though some of the key victories also came on narrow votes.
A single vote determined that Exxon Mobil could have its punitive damages for the 1989 oil spill at Prince William Sound in Alaska reduced from $2.5 billion to $507 million, and determined that bankers, accountants and their lawyers were not liable to investors for fraud when their investments drop in value.
The Exxon Mobil case is shaping up as one of the most important business decisions in years. The justices limited the punitive damages in lawsuits for maritime accidents to no more than the compensatory damages, which cover only provable injuries, money loss or property damage. Punitive damages are intended to punish wrongdoers.
"For us, that's exactly the kind of approach you should use," said Amar Sarwal, the U.S. Chamber of Commerce's general litigation counsel. Legal formulas that produce "predictable" results help businesses anticipate the outcomes of lawsuits, he said.
The Supreme Court recognized "that a lack of clarity in the lower courts on business issues causes a lack of predictability for American business," Mr. Sarwal said. "It makes it harder for a national or international business to operate."
In one of the rare labor relations cases decided for corporations, the Supreme Court said in Chamber of Commerce v. Brown that California's liberal labor laws could not override federal laws on what contractors tell workers about their rights to seek union representation.
However, the court tended to side with unions and workers in employment discrimination cases.
"Most of the other labor cases we were in, this term we lost," Mr. Sarwal said.
The rulings allow workers to use civil rights laws to sue employers when they suffer retaliation for filing labor complaints and allow workers to sue when their 401(k) retirement plans are mismanaged.
Last term, the court appeared bitterly divided, with the liberals accusing President Bush's two conservative appointees, Chief Justice Roberts and Justice Samuel A. Alito Jr., of trying to overturn precedent.
"We are still learning the personality of the Roberts court," said Steven Shapiro of the American Civil Liberties Union. "Last term, the court launched an aggressive assault on core principles affecting race and abortion.
"This term, the court generally spoke with a softer voice," he said. "Even when speaking softly, however, the court's instincts remain fundamentally conservative on most issues."
For example, the court's conservative majority upheld a federal child pornography law and upheld a state law requiring voters show photo identification, a ruling that critics said could disproportionately affect blacks, poor people and other traditional Democratic supporters in the November election.
The divisions appeared despite efforts by the chief justice to develop more consensus opinions.
In an interview last week on PBS, Justice Antonin Scalia said, "The chief may say: 'Why don't you come along with a very narrow opinion? We can get seven votes for that. It will look a lot better.'"
Justice Anthony M. Kennedy emerged during this term as the court's swing vote in 5-4 cases, most notably in the Guantanamo Bay detainees case, in which the court said the prisoners have the right to challenge their detentions as enemy combatants before U.S. federal judges. The opinion marked the fourth time the court had rejected President Bush's policies in the war on terrorism.
Justice Kennedy also wrote the 5-4 decision striking down Louisiana's law allowing the death penalty for raping children who survive the assaults. He wrote that the executions were unconstitutional as "cruel and unusual punishment."
Washington lawyer Tom Goldstein, the creator of SCOTUSblog, said the November presidential election will be crucial for the court's future direction.
The most likely retirements over the next four years could come from the court's liberal members, such as Justices John Paul Stevens, Ruth Bader Ginsburg and David H. Souter, he said.
A Republican victory by Sen. John McCain could mean "a sea change in jurisprudence," with the court moving dramatically to the right, Mr. Goldstein predicted. Mr. McCain has promised to appoint justices like Chief Justice Roberts, Justice Alito and the late Chief Justice Rehnquist.
The presumptive Democratic nominee, Sen. Barack Obama, a former constitutional law professor at the University of Chicago, has said he would choose judges based in part on their compassion.
