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Sunday, June 30, 2002
UNDER WHAT? Newsweek magazine features the Pledge of Allegiance controversy as its cover story in its July 8, 2002 issue, which hits newsstands tomorrow. Both Stuart Taylor Jr. and George F. Will have contributed essays that are well worth a look.
Posted at 11:50 by Howard Bashman
Saturday, June 29, 2002
IN SUNDAY'S NEW YORK TIMES: Adam Liptak has a front page story in Sunday's New York Times about the trouble with the U.S. Court of Appeals for the Ninth Circuit. You can access the article here. Although Liptak, who interviewed me for the story, does not quote me directly, he does prominently mention the White Commission Report, which I believe I was the first to draw to his attention. The Commission examined whether the Ninth Circuit should be split into two separate circuits. You can access transcripts of the oral testimony provided to the Commission at this link. You can access the very interesting written submissions to the Commission -- including letters from U.S. Supreme Court Justices and other federal appellate judges -- at this link.
Posted at 22:48 by Howard Bashman
THANK YOU for making yesterday this Web site's third largest traffic day ever! (Update: Plus, today "How Appealing" received a permanent link on InstaPundit, which is deservedly the most popular blog of all. Thanks Glenn!) Posted at 01:25 by Howard Bashman $290 MILLION PUNITIVE DAMAGES AWARD AFFIRMED IN CALIFORNIA: Click here to access the decision issued Friday by the California Court of Appeals for the Fifth Appellate District in Fresno, California. The judgment is against Ford Motor Company in a case involving a Ford Bronco that overturned, causing the deaths of three people in the vehicle. Posted at 01:02 by Howard Bashman Friday, June 28, 2002
U.S. SUPREME COURT ROUND-UP FOR JUNE 27 & 28, 2002: The Supreme Court of the United States today declared the start of its traditional summer recess that lasts until the first Monday in October (Monday, October 7, 2002, that is), secure in the knowledge that while the Justices are now free to travel to exotic European locations to teach, or travel by luxury bus to hidden hamlets in out-of-the-way places here in the United States, the most important issues of our time -- such as racial preferences in public university admissions or the legality of the words "under God" in the Pledge of Allegiance -- will continue to reach the Court as surely as day follows night. So, as everyone's thoughts start to turn to summer vacation destinations -- I hear that the National Cowgirl Hall of Fame, featuring 2002 honoree Sandra Day O'Connor, is quite nice -- it's time to talk about urination, tying a prisoner to a hitching post in the hot summer sun, religious school vouchers, and meaningful judicial elections. Plus, today the Court issued two per curiam death penalty decisions and granted review in six new cases. So, take a deep breath, sit back, and let's have some fun as we detail the final two days before the Court's summer recess, starting with yesterday's four opinions in the Term's remaining argued cases.
1. When urine school, check your Fourth Amendment rights at the door. Although I can understand the special interest in yesterday's religious school voucher decision, I think that in the long run the most important Supreme Court ruling delivered yesterday will turn out to be the Court's 5-4 decision in Board of Ed., Pottawatomie Cty.v. Earls, No. 01-332 (U.S. June 27, 2002). Thanks to the decisive vote of Justice Stephen G. Breyer, public high school students who participate in so-called competitive extracurricular activities can have their participation conditioned on suspicionless drug testing. Yup, if you want to march in the band, belong to the Future Homemakers of America, the Future Farmers of America, the math team, or the choir, you now have to pee in a cup and test drug free. Instead of engaging in further urine-related puns or efforts to twist the County's name -- Pottawatomie -- into something that resembles "potty what to me?," let's turn to examine the actual ruling. Justice Clarence Thomas wrote the majority opinion, in which the Chief Justice and Justices Scalia, Kennedy, and Breyer joined. So, thanks to Justice Breyer siding with the Court's more traditionally conservative Justices, we're on the verge of a boom-time in the industry that conducts urine testing. Justice Ginsburg wrote the principal dissent, in which Justices Stevens, O'Connor, and Souter joined. Justice Breyer wrote a short separate (yet potentially important) concurrence, and Justice O'Connor wrote a short separate dissent. Justice Thomas's majority opinion, standing alone, suggests to me that soon high schools will be allowed to conduct suspicionless drug testing of all students, not just students participating in competitive extracurricular activities. (Does anyone know why these extracurricular activities are called "competitive"?) In Justice Breyer's concurrence, he says that one reason he finds this drug testing program lawful is that it allows students to opt-out by refraining from participation in the covered extracurricular activities. Thus, five votes may not exist to allow the testing of all students. But, I wouldn't be so sure. After all, kids who don't want to be tested could just opt out of school altogether, or they could opt out of drug usage. And then it's just one small additional step to drug testing everyone in society, which would itself be a very effective way of addressing the drug scourge, were it not (again) for the Fourth Amendment. If you don't want to be tested, you could just opt out of your United States citizenship and your right to reside in this nation. What makes this ruling the day's most important for me is that, as a result of this decision, countless school children will be desensitized to what the Fourth Amendment (at least in my view and in the views of four Justices) actually requires, which in this setting would be reasonable particularized suspicion. In 1995, the Supreme Court upheld the lawfulness of a high school's suspicionless drug testing program that was limited to student athletes. As a result, Justice Ginsburg's dissent spent some time discussing how today's much broader drug testing program lacked the same persuasive rationale as the program at issue in 1995. She wrote: At the margins, of course, no policy of random drug testing is perfectly tailored to the harms it seeks to address. The School District cites the dangers faced by members of the band, who must "perform extremely precise routines with heavy equipment and instruments in close proximity to other students," and by Future Farmers of America, who "are required to individually control and restrain animals as large as 1500 pounds." For its part, the United States acknowledges that "the linebacker faces a greater risk of serious injury if he takes the field under the influence of drugs than the drummer in the halftime band," but parries that "the risk of injury to a student who is under the influence of drugs while playing golf, cross country, or volleyball * * * is scarcely any greater than the risk of injury to a student . . . handling a 1500-pound steer (as [Future Farmers of America] members do) or working with cutlery or other sharp instruments (as [Future Homemakers of America] members do)." One can demur to the Government's view of the risks drug use poses to golfers, for golfers were surely as marginal among the linebackers, sprinters, and basketball players targeted for testing in Vernonia as steer-handlers are among the choristers, musicians, and academic-team members subject to urinalysis in Tecumseh. Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree.And what explains Justice Breyer's vote in this case, many students heading to the bathroom with plastic cups in their hands want to know. Justice Breyer aims to have all of his judicial opinions written in a style that allows them to be understood by the typical high school student. That goal, however, wasn't being achieved. Perhaps he feared that illegal drugs were to blame? In closing, allow me to reemphasize: drug use bad; disregarding the Fourth Amendment also bad. (Update: George Washington University Law School Professor, and media darling, Jonathan Turley makes an egregious error in an op-ed piece about this decision published in Friday's edition of The Los Angeles Times. His commentary (which you can access here) incorrectly asserts that Justice Sandra Day O'Connor wrote Justice Breyer's concurring opinion. Why is this such a big mistake? Those two Justices look nothing alike, and Justice O'Connor dissented from this ruling!) 2. Vouching for the constitutionality of government scholarships for religious schools. Unlike many of my friends, I never seriously doubted the outcome of this case. As everyone knows by now, the Court ruled 5-4 in the day's lengthiest ruling, see Zelman v. Simmons-Harris, No. 00-1751 (U.S. June 27, 2002), that municipalities that provide tuition vouchers to parents for use at the educational institution of the parents' choice do not unconstitutionally endorse religion when it turns out that many of the vouchers are used for religious schools. Chief Justice Rehnquist wrote the majority opinion, in which Justices O'Connor, Scalia, Kennedy, and Thomas joined. Justices O'Connor and Thomas wrote concurring opinions. Dissenting were Justices Stevens, Souter, Ginsburg, and Breyer. Justice Stevens wrote a short dissenting opinion. Justices Souter and Breyer both wrote fairly long dissents. To me, the most interesting feature of this ruling was Justice Thomas's concurring opinion. Justice Thomas, who has been unfairly criticized many times in the past as insensitive to the issues facing African-Americans, wrote a thoughtful and heartfelt concurrence to explain that education is the key to escaping poverty and school vouchers allow those in poverty to obtain the type of meaningful education that many poor inner-city schools fail to provide. Whether the school religious voucher decision will have a huge impact on the United States remains to be seen, but I do not expect that it will. 3. An important victory for voters in States that elect judges. In a surprisingly close decision, the Supreme Court yesterday ruled 5-4 in Republican Party of Minnesota v. Kelly, No. 01-521 (U.S. June 27, 2002), that States which prohibit candidates for elective judicial office from announcing their "views on disputed legal or political issues" unconstitutionally impinge on the freedom of speech guaranteed by the First Amendment. Justice Scalia wrote the majority opinion, in which the Chief Justice and Justices O'Connor, Kennedy, and Thomas joined. Justices O'Connor and Kennedy also filed concurring opinions. Justice Ginsburg filed the principal dissent, in which Justices Stevens, Souter, and Breyer joined. Justice Stevens also wrote a short dissent of his own. As I explained in my column published last month in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, the regulation that was at issue in this case represented a significant burden on the right of candidates for elected judicial office to share views on disputed legal and political issues that were essential to an informed electorate. Justice Scalia's majority opinion touches on nearly all of the points that I raised in my column. The four Justices who dissented really seemed to have missed the boat on this one, which is surprising given how those Justices do usually appreciate the overriding importance of the First Amendment's free speech guarantee. 4. Sometimes I feel like I've been tied to the hitching post. In a case whose facts never fail to remind me of the lyrics of a certain Allman Brothers Band classic, the Court ruled 6-3 that Alabama prison guards who tied a inmate to a hitching post for seven hours without providing water or bathroom breaks weren't entitled to qualified immunity at the summary judgment stage. (See here for a piece of artwork depicting a horse tied to a hitching post.) This case provides further proof that, just as you don't ever want to repaint a BMW to be sold in Alabama, you should also do everything in your power not to be imprisoned in Alabama. Anyhow, the same six Justices who recently joined together to invalidate the execution of mentally retarded inmates held a brief reunion yesterday to reverse the dismissal of a prisoner's Eighth Amendment claims against the guards who tied him to the post for seven hours and then provided neither water nor bathroom breaks. Justice Stevens wrote the majority opinion in Hope v. Pelzer, No. 01-319 (U.S. June 27, 2002), in which Justices O'Connor, Kennedy, Souter, Ginsburg, and Breyer joined. Justice Thomas wrote the only dissent, in which the Chief Justice and Justice Scalia joined. In recognition of the fact that this was the day's least talked about ruling, I will stop talking about it right now. Two death penalty per curiam decisions issued today: Before hopping on that proverbial bus outta town, the Justices today handed down two per curiam decisions in death penalty cases, and each went against the prisoner. (See here and here.) In so ruling, the Supreme Court got to spank both the Sixth Circuit and the Ninth Circuit, two favorite targets for reversals in recent years. Review granted in six new cases. I will summarize these six grants just as soon as I determine the question presented in each case. I'm already halfway there. Update: Here are the questions presented in these six cases. 1. Whether Kentucky's "any willing provider" law, which requires each health maintenance organization (HMO) in the State to make available to its subscribers the services of any medical provider in its geographical region that agrees to the terms and conditions offered by the HMO, is saved from preemption as a law that "regulates insurance" under ERISA. 2. Whether a Maine statute providing for affordable prescription drugs is preempted by the Supremacy Clause or violates the dormant Commerce Clause. 3. Whether a federal law that requires the detention without bail of lawfully admitted aliens who are deportable from the United States because they have committed an aggravated felony violates the Due Process Clause of the Fifth Amendment. 4. Whether municipalities are subject to suit under the federal False Claims Act, which subjects defendants to treble damages. (The Court has previously ruled that States cannot be sued under that Act.) 5. Whether a conviction on federal criminal charges became "final" within the meaning of the federal habeas corpus statute one year after the court of appeals issued its mandate on direct appeal or one year after the time for filing a petition for a writ of certiorari expired. 6. Whether, under the Foreign Sovereign Immunities Act of 1976, a corporation is an "agency or instrumentality" of a foreign state if that state owns a majority of the shares of a corporate enterprise that in turn owns a majority of the shares of the corporation; and whether a corporation is an "agency or instrumentality" of a foreign state if that state owned a majority of the shares of the corporation at the time of the events giving rise to litigation, but the foreign state does not own a majority of those shares at the time that a plaintiff commences a suit against the corporation. (Worth noting: The Court's order granting review in this sixth case misspells the word "enterprise" as "enterpise." Oops!) No summer recess for "How Appealing": As much fun as this blog has summarizing U.S. Supreme Court developments, all of the nation's other federal and state appellate courts continue with business as usual over the summer months. And, as we have seen this week, sometimes a lower appellate court can make as much if not more news than our nation's highest court. So, keep checking this blog regularly for all of the latest appellate court-related developments from across the nation throughout the summer. Update: Now that the last of the Supreme Court's opinions in argued cases have issued, it's time for the major news outlets to publish their year-end summaries of the Court's big cases. Charles Lane, who covers the Court for The Washington Post, offers this summary of the year's developments. He and I spoke by phone on Friday, June 28, 2002 to exchange views about the past year at the Court, and I think his article, which ran on Sunday, June 30, 2002, turned out quite nicely. David G. Savage, who covers the Court for The Los Angeles Times, has written this year-end summary, also published on Sunday, June 30. Look for Linda Greenhouse's retrospective in The New York Times early next week. And, coming soon to "How Appealing," this blog's first-ever year-end U.S. Supreme Court wrap-up. Posted at 22:35 by Howard Bashman MORE PLEDGE NEWS: The Associated Press reports that Ninth Circuit Judge Alfred T. Goodwin said in an interview with the AP that he believes his ruling is correct and reasonable. Not much of a surprise there; judges rarely decide cases incorrectly on purpose. In other news, the U.S. Court of Appeals for the Eleventh Circuit heard oral argument today in another Pledge-related appeal. As an added bonus, the Eleventh Circuit case also involves a school-administered spanking (in Alabama, of course). (Update: Saturday's edition of The Los Angeles Times contains this profile of the two Ninth Circuit judges whose votes declared the words "under God" to be unconstitutional.) Posted at 20:00 by Howard Bashman FIRST CIRCUIT REVERSES FALSE LIGHT INVASION OF PRIVACY AWARD AGAINST NEWSPAPER REPORTER: The U.S. Court of Appeals for the First Circuit today reversed a sizeable verdict in favor of the plaintiff on his claim for false light invasion of privacy brought against a reporter who was then on the staff of The New York Times. The claim was based on an article printed in that newspaper. You can access the decision here. Posted at 16:43 by Howard Bashman TENTH CIRCUIT ALLOWS COLUMBINE HIGH SCHOOL TO BAN "GOD IS LOVE" TILES: God and federal appellate courts are back in the news again. Yesterday the Denver, Colorado-based U.S. Court of Appeals for the Tenth Circuit ruled that Columbine High School did not violate anyone's First Amendment rights by refusing to post wall tiles stating "God is love" in a project to restore the school at which a horrendous school shooting occurred. According to the Court, "If the District were required to be viewpoint neutral in this matter, the District would be required to post tiles with inflammatory and divisive statements, such as 'God is Hate,' once it allows tiles that say 'God is Love.'" You can access the ruling here. Posted at 15:27 by Howard Bashman U.S. SUPREME COURT STAYS ORDER REQUIRING INS HEARINGS TO BE OPEN: The Supreme Court of the United States this morning issued its final orders for this Term. The Court has granted review in six new cases, which I will summarize later today. Most noteworthy, however, is the following order entered in a case in which the U.S. Court of Appeals for the Third Circuit refused the federal government's emergency request to stay a New Jersey federal district judge's decision that struck down the INS's blanket policy of secrecy over deportation hearings for immigrants rounded-up in the post-September 11th anti-terrorism sweeps: The application for stay presented to Justice Souter and by him referred to the Court is granted, and it is ordered that the preliminary injunction entered by the United States District Court for the District of New Jersey on May 28, 2002, is stayed pending the final disposition of the government’s appeal of that injunction to the United States Court of Appeals for the Third Circuit.You can access the district court's ruling at this link. You can access at this link an earlier posting of mine about this dispute. Posted at 11:50 by Howard Bashman TEEN SEX: I managed to stay out of the recent blogger debates over teen sex that occurred several weeks back. But maybe I was just waiting for an appellate decision presenting the issue. According to today's edition of The Atlanta Journal-Constitution, the sexual activity of two Georgia teenagers will soon present the Supreme Court of Georgia (whose motto I still love) with an opportunity to declare Georgia's fornication statute unconstitutional. You can access the newspaper article here. Perhaps the suit should also include an equal protection claim; the newspaper reports that, after being found guilty in juvenile court, "The girl, identified in court papers as J.D., was sent to boot camp. The Clayton County boy, identified as J.M., also 16, was ordered to pay a fine and write an essay." On the other hand, if today's teens are anything like the ones I grew up with, many might prefer boot camp over having to write an essay. Posted at 11:44 by Howard Bashman PROF. VOLOKH ON JUDICIAL ELECTIONS: UCLA School of Law Professor Eugene Volokh (whose excellent blog you can access here) agrees with me that the majority reached the correct result in yesterday's U.S. Supreme Court decision that vindicated the free speech rights of candidates for elected judicial office. You can access here his essay published today at National Review Online. Don't fret; my summary of yesterday's final four U.S. Supreme Court rulings is coming soon. Posted at 11:29 by Howard Bashman EVERYONE'S BLAMING THE NINTH CIRCUIT FOR EVERYTHING: Thanks to the Ninth Circuit's having declared the Pledge of Allegiance unconstitutional, my U.S. Supreme Court round-up for June 27, 2002 will appear this evening. YOU MUST BE KIDDING: Critics of judicial elections in Pennsylvania are unwilling to concede that yesterday's U.S. Supreme Court ruling that strikes down a prohibition on the speech of candidates for elected judicial office that is identical to a prohibition in effect in Pennsylvania invalidates Pennsylvania's provision. See this article from Friday's Legal Intelligencer. The Supreme Court's ruling is so clearly correct for all of the reasons stated in my Legal Intelligencer column from last month, which you can access here. Posted at 01:00 by Howard Bashman Thursday, June 27, 2002
APPLE PIE AND MOTHERHOOD STILL LAWFUL IN THE NINTH CIRCUIT: Yesterday I drove my car from home in the northwestern Philadelphia suburbs to Pittsburgh for my law firm's litigation department retreat. And, like any good appellate lawyer, I brought along my Blackberry satellite email device, which allows me to send and receive emails through my work email account even while I am on the road.
Upon arriving in Pittsburgh, I checked my emails. And there was one of those CNN Breaking News email bulletins that you can sign-up for on CNN's Web site. The email, dated 2:57 pm Eastern Daylight Time, read: Federal appeals court rules Pledge of Allegiance unconstitutional because of words "under God," according to The Associated Press.On first read, the information the email was communicating struck me as absurd. Had The Onion, perhaps, commandeered CNN's news alert email list? Of course, the email made me feel quite sorry that I wasn't in my office yesterday, as I certainly would have broken news of the Ninth Circuit's ruling way before CNN did. Next, however, I began to wonder why CNN's email didn't say which federal appellate court had issued the ruling. And what was the significance of "according to The Associated Press"? Was there some reason why CNN couldn't independently confirm the ruling. As soon as I got to my hotel room, I switched on the cable television version of CNN. And, of course, the federal appellate court was precisely the one that I would have bet good money on as the court to issue such a ruling, the U.S. Court of Appeals for the Ninth Circuit. You can access the Ninth Circuit's opinion in Newdow v. U.S. Congress here. Now, I don't want to be seen as implying that the Ninth Circuit never reaches the right result; to the contrary, it reaches the right result in most every case it decides. However, it decides a whole lot more cases than most other federal appellate courts, and when the Ninth Circuit -- with its especially large number of rather liberal judges -- issues a controversial decision, it can often be quite a doozy. My next reaction was to ask myself whether Judge Stephen Reinhardt wrote the opinion. As I have said here previously, he is one of the most liberal and most brilliant judges currently serving on the federal appellate courts. As it turns out, he didn't write the opinion, but he was one of the two judges in the majority. And, as the only active judge in the majority, Judge Reinhardt had the power to assign the opinion to the authoring judge, former Ninth Circuit Chief Judge Alfred T. Goodwin. Which is not to imply that Judge Goodwin didn't want to write this opinion -- if I were a federal appellate judge who believed that the Pledge of Allegiance was unconstitutional, I'd be champing at the bit to get the assignment to write the opinion. The panel assigned to the case also included Senior Circuit Judge Ferdinand F. Fernandez, who dissented from the panel's ruling. Senior Judge Goodwin is a Nixon appointee, Judge Reinhardt is a Carter appointee, and Senior Judge Fernandez is an appointee of the original President Bush. Yesterday, the Ninth Circuit ruled that the phrase "under God" contained in the Pledge of Allegiance violated the First Amendment's Establishment Clause because the Pledge contains "an impermissible government endorsement of religion." The court also held that the Pledge unlawfully coerces school students to participate in an exercise with religious content. Finally, the court held that the Pledge lacks a secular purpose and could reasonably be seen as a governmental endorsement of religion. This decision is easy to parody; it is easy to denounce. One of the most interesting aspects of yesterday's television coverage of the ruling was when reporters took to the street to interview the average person. Those interviews suggest to me that it would be quite amusing for television stations to take to the streets regularly to ask the people what they think about having the Constitution enforced in ways that are not favored by the majority. For example, we could ask the person on the street what he or she thinks about the Fourth Amendment when it is used to exclude evidence that was necessary to convict an actually guilty individual, or what he or she thinks about excluding the unconstitutionally coerced confession of someone who is guilty. The beauty of the Constitution is that it doesn't matter if the person on the street likes the consequences of the document's provisions, because various parts of the document exist to protect the most vulnerable and least popular. What are my views on yesterday's ruling? First, I think that the decision further highlights the need for the U.S. Supreme Court to reconcile a number of seemingly conflicting decisions in the establishment clause area. Under some of those rulings -- in particular, Lemon v. Kurtzman, 403 U.S. 602 (1971) -- the Ninth Circuit's decision seems to be a reasonable if unusually bold application of the law. But a majority of the currently-serving Justices have expressed serious doubts about Lemon, and this case from the Ninth Circuit may provide an opportunity to discard a rotting Lemon once and for all. Yet under this existing law, the challenged phrase is objectionable on two grounds. First, the mention of "God" shows government endorsement of monotheism, as opposed to atheism or the belief in multiple higher beings. Second, the use of the word "under" could be understood as saying that the nation is subservient to God, which would be problematic in its own right. On the other hand, jurists who believe that the only proper method of constitutional interpretation is to determine the drafters' original intent assert that the Establishment Clause sought to prohibit what its name suggests, the governmental establishment of an official religion. The First Amendment provides: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.According to the original intent view, the government was not prohibited from recognizing that this is a predominantly religious nation. Under this view, I think that the Pledge would pass muster, because the Pledge does not come close to establishing an official religion. I am not at all surprised that the losing parties in the Ninth Circuit have declared their intent to seek rehearing en banc. It would have taken an incredible amount of restraint for the losing parties to take the case straight to the U.S. Supreme Court, even though, given the existence of a conflicting ruling from the Seventh Circuit (an opinion by Circuit Judge Frank H. Easterbrook, who is himself exceptionally brilliant and also one of the federal judiciary's best writers) and the public importance of the issue, U.S. Supreme Court review would be a near certainty. I think that enough votes will exist among all active Ninth Circuit judges to take the case en banc. The Ninth Circuit then assigns an eleven-judge en banc panel which consists of the Chief Judge and ten other active judges chosen at random. Thus, both Senior Circuit Judge Goodwin and Senior Circuit Judge Fernandez will be excluded from any en banc panel, and even Circuit Judge Reinhardt is not guaranteed a seat on the en banc panel unless he is randomly selected to serve on it. (Update: Further research discloses that the answer to the question whether Senior Judges Goodwin and Fernandez will be excluded from the eleven-judge en banc panel is not as clear-cut as the Ninth Circuit's governing Local Rule would seem. You see, the Local Rule says that the en banc panel will consist only of active judges, while an advisory committee note to the Local Rule states that senior Ninth Circuit judges who were on the three-judge panel in a case that goes en banc can elect to be put into the pool of judges from which the en banc panel will be randomly chosen. And, in the past, the Ninth Circuit has applied the Local Rule in accordance with the advisory committee note. So, on further review, it appears that Senior Judges Goodwin and Fernandez will have the same chance as any non-recused active Ninth Circuit judge of being one of the other ten judges on the en banc panel if this case goes en banc.) To me, the most audacious aspect of the Ninth Circuit's ruling was that it issued a day before the close of the U.S. Supreme Court's term, when the High Court's ruling on religious school vouchers was going to issue. Today, the High Court upheld the constitutionality of government-funded vouchers that pay tuition for parents to send their children to religious schools. Thus, students may not be able to say the Pledge of Allegiance in public schools, but if they live somewhere that provides government-funded school vouchers, they can go to a school on the government's dime where they can say the Pledge and countless other religiously-influenced things. Finally, today Judge Goodwin stayed the panel's ruling pending disposition of any rehearing en banc petition. As this article from Friday's Washington Post explains, the stay order is essentially a formality. Would it help things if the Ninth Circuit were split into two separate courts? Here's what Justices Anthony M. Kennedy (click here) and Antonin Scalia (click here and here) had to say about that several years ago. Posted at 23:08 by Howard Bashman BLUES BROTHERS -- PART 2: The amazingly great John P. Elwood (see this post, in the unlikely event you're saying "Who?") checked in via email this morning. First, he definitely is now working at the Office of the Solicitor General of the United States. Second, he reads this blog from time to time. He writes: "A while back I had bookmarked your page, which I think is really invaluable and, despite your protestations, at least as good as my old Supreme Court updates." And later he characterizes "How Appealing" as "great reading." Well, the fact that he is being so unjustifiably kind to me is further proof that he is the best there ever was and the best there ever will be at this genre. He even managed to include in his email three or four of his clever Elwood-isms! IN OTHER NEWS, Adam Liptak, who covers courts and the law for The New York Times, also reads this blog. Liptak, who once was a practicing attorney, is writing a story for tomorrow's paper about the Ninth Circuit and whether it is constantly wacky or only periodically so. Adam made it seem as though I gave him some useful information, so we'll see soon whether anything that I said was noteworthy enough to be quoted in tomorrow's Times. And what did I say? See immediately above for my take on yesterday's Ninth Circuit ruling on the constitutionality of the Pledge of Allegiance. Posted at 22:54 by Howard Bashman I'M BACK home in one piece from my trip to Pittsburgh, which is more than the Pledge of Allegiance can say about its recent trip to the U.S. Court of Appeals for the Ninth Circuit. I'll have a whole lot more to say about that decision shortly in posts that will appear above this one. My visit to Pittsburgh was wonderful. PNC Park is an amazing place to watch baseball. And, it was great to see so many of my colleagues all at once. A special thanks to one of my colleagues who was not only kind enough to get me a copy of the Ninth Circuit's Pledge opinion but also, as an added bonus, made sure that I had copies of two of today's most significant U.S. Supreme Court rulings. And, of course, I'll be talking about all four of today's Supreme Court opinions shortly right here, in a post that will appear way above this one. So, keep checking back for updates throughout the night. (Update: It turns out that driving to Pittsburgh and back wasn't as senseless as I had feared. Most of the lawyers traveling back to Philadelphia were stranded in Pittsburgh until Friday morning due to bad thunderstorms covering most of Pennsylvania on Thursday afternoon and evening. I, by contrast, made it back home at 9:45 pm Thursday night. Although I never would have thought it possible, the portions of the highway infrastructure that I experienced leading to and from Pittsburgh were even worse than the highways leading into and out of Philadelphia! (I must thank Zeus for central Pennsylvania's Revolution 103.7, which made driving through the most boring part of the five-hour commute bearable. I must also thank Lao Tze and the entire Taoist movement for the band SYSTEm Of A DOWn. It rocks!) Posted at 22:15 by Howard Bashman Wednesday, June 26, 2002
GO WEST, YOUNG MAN: I have a work-related retreat that will be taking me to Pittsburgh, Pennsylvania today through tomorrow evening (and to the lovely new PNC Park tonight to see the Pittsburgh Pirates play baseball against the Montreal Expos). As a result, the next entry in this blog is likely to occur on Thursday night, when I summarize that day's final four U.S. Supreme Court decisions for the Court's current Term.
Which four cases remain to be decided? 1. Zelman v. Simmons-Harris, No. 00-1751 (argued February 20, 2002). Question presented: Does the establishment clause of the U.S. Constitution prohibit Ohio's school choice program from authorizing parents to use tax-funded scholarships at any private school, whether religious or not? (You can access here the Sixth Circuit's ruling in the case.)Posted at 08:32 by Howard Bashman IN TODAY'S NEWSPAPERS: Both The Washington Post and The New York Times offer coverage today of the oral argument that occurred yesterday in the U.S. Court of Appeals for the Fourth Circuit concerning whether the so-called second American Taliban, whom the U.S. military is holding incommunicado in the Norfolk, Virginia Naval Station Brig, should have the right to meet with a federal public defender. You can access The Post's report here; you can access The Times's report here. In related news, The NYTimes reports that Zacarias Moussaoui almost pleaded guilty by accident yesterday. In totally unrelated news, yesterday the House of Representatives passed a new ban on virtual child pornography -- images that appear to, but in fact do not, depict a minor engaging in sexually explicit conduct. According to this report from Declan McCullagh, the new ban may suffer from the same flaws that led the U.S. Supreme Court to strike down the prior law. Posted at 07:54 by Howard Bashman Tuesday, June 25, 2002
BLUES BROTHERS: Charles Lane, who covers the U.S. Supreme Court for The Washington Post, is more than just an excellent reporter; he is also a very nice guy. Today he contacted me by email, and this afternoon we spoke on the telephone for half an hour about this blog and the U.S. Supreme Court. Somehow I managed to refrain from telling him more than once that I wanted his job. In response, one of the many kind things that Mr. Lane had to say was that "How Appealing" reminded him of the Supreme Court Reports that attorney John P. Elwood used to write.
On that last point, however, I must beg to differ. Try as I may, "How Appealing" simply can't even come close to approaching the brilliance of Elwood's Supreme Court Reports. Indeed, the main advantage that "How Appealing" now has going for it is that the U.S. Department of Justice has clamped a cone of silence over Elwood while he is serving as Counselor to Michael Chertoff, the Assistant Attorney General for the DOJ's Criminal Division. (Update: An email advises that John is now an Assistant to the Solicitor General of the United States, which, if true, simply provides one more reason to envy him.) Still don't believe me? Well, then you should click here and/or here to see John Elwood's brilliance for yourself. Now if only John Elwood had a blog -- perhaps one of those "anonymous" blogs that so many lawyers seem to be resorting to. So, while the mystery of who's reading this site from The Washington Post's Internet domain is now at least partially solved, the mystery as to who's reading this site from The New York Times's Internet domain lives on. Genie Tyburski is one of the true pioneers at the intersection of the law and the Internet. She runs a Web site known as The Virtual Chase, which, since 1996, has assisted legal professionals in conducting research on the Internet. The site is sponsored by the law firm of Ballard Spahr Andrews & Ingersoll, LLP. Today, The Virtual Chase has this to say about "How Appealing": A blog by attorney Howard J. Bashman deserves mention. He highlights issues pertaining to appellate litigation. Current entries include information about a recent Third Circuit opinion on police misconduct and summaries of the current day's U.S. Supreme Court decisions. If you prefer reading Bashman via a newsreader, here's the RSS/XML address.Thanks, Genie, for finding your way here, and especially for recommending "How Appealing" to your site's many readers. Posted at 22:47 by Howard Bashman FOURTH CIRCUIT HEARS ORAL ARGUMENT ABOUT ATTORNEY ACCESS TO SECOND AMERICAN TALIBAN: The U.S. Court of Appeals for the Fourth Circuit heard oral argument today about whether the so-called second American Taliban, whom the U.S. military is holding incommunicado in the Norfolk, Virginia Naval Station Brig, should have the right to meet with a federal public defender. The Associated Press offers this report. Posted at 19:25 by Howard Bashman COLORADO SUPREME COURT INVALIDATES RELEASE OF YOUTH'S CLAIMS IN SKIING INJURY CASE: The Supreme Court of Colorado yesterday held that a parent cannot release a minor's prospective claims for negligence against a skiing facility. You can access the court's ruling here. Posted at 16:43 by Howard Bashman TIPPING POINT: A divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has today reinstated Suzuki Motor Corporation's product disparagement claims against the Consumers Union of United States, which publishes Consumer Reports magazine. You can access the Ninth Circuit's ruling here. Judge Warren J. Ferguson dissents in an opinion that begins: "By failing to apply the full procedural protections afforded by the First Amendment, the majority intrudes on the field of free expression in two of its most important contexts -- consumer protection and public safety." The dissent also cites a law review article co-authored by UCLA School of Law Professor Eugene Volokh, whose fine blog you can access here. Posted at 13:54 by Howard Bashman POSSE COMITATUS ACT: I mentioned a few weeks back, in my hugely popular "No tank you" post, that we might soon be hearing more about the Posse Comitatus Act. And now we have, courtesy of this op-ed that appears in today's Washington Post. Posted at 13:11 by Howard Bashman THE JUDICIAL CONFIRMATION SPOTLIGHT SHIFTS: Today's Washington Post reports on the upcoming Senate Judiciary Committee hearing for Fourth Circuit nominee, and current U.S. District Judge, Dennis W. Shedd. You can access the Post's report here. TOO OLD FOR BENEFITS?: The Supreme Court of California ruled yesterday that California law does not prohibit employers from discriminating against older workers when awarding job benefits. You can access the ruling here. Posted at 08:45 by Howard Bashman Monday, June 24, 2002
U.S. SUPREME COURT ROUND-UP FOR JUNE 24, 2002: Today was one of those rare days that make being a U.S. Supreme Court-watcher totally worthwhile. The Court today decided two very significant criminal cases, both involving the respective roles of the trial judge and the jury in sentencing a convicted criminal. The day's most noteworthy case declared unconstitutional the death penalty sentencing procedures of some nine States that require judges, rather than juries, to find the existence of facts essential to the imposition of the death penalty. As I will discuss, this ruling was hardly unexpected, but the press has managed to greatly exaggerate the decision's likely consequences. The day's second most noteworthy case presented a closely-related issue: whether the trial judge or a jury must decide facts that, if established, raise the mandatory minimum sentence for a crime. In this second case, the Court ruled 5-4 that judges can keep deciding such facts, although no single rationale in support of that result garnered a majority of Justices. The most shocking aspect of the result in this second case was that Justice Antonin Scalia offered no explanation whatsoever for why he had abandoned the views to which he had subscribed by joining most of Justice Clarence Thomas's concurring opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000), and instead sided with the majority in today's case. It's rare that Justice Scalia gets to be the swing vote as he was in this second case; at least Justice Sandra Day O'Connor, who normally occupies that role, typically provides a short statement of why she joined one outcome over the other. The day's other two opinions in argued cases, which I will summarize below, were much less noteworthy. Only really interesting cases remain to be announced this Thursday, June 27, 2002, when the Court will decide the remaining four argued cases from this Term. Finally, the Court today issued a per curiam opinion in a case from a Louisiana state court, summarily affirmed what appears to have been a redistricting challenge involving West Virginia, and granted review of three new cases. And now, on to the details!
Comprehending Apprendi: The two most noteworthy decisions issued today both required the Court to examine the limits of its decision issued two years ago this Wednesday in Apprendi v. New Jersey. Charles C. Apprendi, Jr. fired several bullets into the home of an African-American family that had moved into a previously all-white neighborhood in Vineland, New Jersey. Upon being arrested, he admitted that he fired the shots because the residents of the dwelling were black. Apprendi pled guilty to the state criminal charge of possessing a firearm for an unlawful purpose. That charge carried a maximum sentence of ten years' imprisonment. In sentencing Apprendi, the state court trial judge concluded after a hearing that the crime was motivated by racial bias. Under New Jersey law, this finding of motivation allowed the trial judge to increase Apprendi's sentence by ten years beyond the original maximum. The trial judge sentenced Apprendi to serve twelve years in prison based on the racial bias finding. Apprendi appealed all the way to the U.S. Supreme Court, which held by a 5-4 vote that the Constitution requires that any fact which increases the maximum penalty for a crime other than the existence of a prior conviction must be submitted to a jury and proved beyond a reasonable doubt. Because, under New Jersey law, the finding of a racially-biased motivation was neither submitted to a jury nor proved beyond a reasonable doubt, the Supreme Court set aside Apprendi's sentence as unconstitutional. Almost as noteworthy as Apprendi's holding was the line-up of Justices that produced it. Justice Stevens wrote the majority opinion, in which Justices Scalia, Souter, Thomas and Ginsburg joined. Justice Thomas also wrote a lengthy concurring opinion, in which Justice Scalia largely joined, suggesting that the Court's decision would also likely require juries to decide facts that increased mandatory minimum sentences. The Chief Justice and Justices O'Connor, Kennedy and Breyer dissented from Apprendi's holding. It's no exaggeration to say that Apprendi has created a great deal of work for federal and state courts, as well as the U.S. Supreme Court. Just over one month ago, the Supreme Court in United States v. Cotton squelched the hopes of many criminal defendants whose lawyers had failed to make timely Apprendi-type objections before the Court's Apprendi decision issued in 2000. (Click here to see my summary of the Court's ruling last month in Cotton.) Today, the Court was confronted with having to decide both how Apprendi applies when the trial judge must find facts necessary to impose the death penalty and how the decision applies when the trial judge finds facts that increase the mandatory minimum sentence. 1. What's an extra two years when compared to death? In a decision that should have caught few by surprise, the Court today ruled (6-1)-2 that defendants facing the death penalty are entitled to have juries determine beyond a reasonable doubt the existence of all facts necessary to the imposition of a death sentence. See Ring v. Arizona, No. 01-488 (U.S. June 24, 2002). Justice Ruth Bader Ginsburg wrote the majority opinion, in which Justices Stevens, Scalia, Kennedy, Souter and Thomas joined. As the final paragraph of Justice Ginsburg's well-written opinion explains (okay, I admit it's redundant to say that a Justice Ginsburg opinion is well-written): "The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant's sentence by two years, but not the factfinding necessary to put him to death." Justice Breyer concurred in the judgment, explaining that while he still thinks that Apprendi was wrongly decided, "death is different," and so juries should be required to decide facts necessary to impose the death penalty. Justice Breyer's opinion concurring in the judgment can be read to say that, personally, he's no big fan of the death penalty. Justice Kennedy, who dissented from the ruling in Apprendi, joined the majority opinion and wrote a short concurrence in which he said that he is willing to accept Apprendi as the law of the land. (You see, unlike the rest of us who have no choice in the matter, U.S. Supreme Court Justices don't have to accept the law of the land if they don't like it. More about this in a moment.) Justice Scalia also wrote a short concurring opinion, in which Justice Thomas joined, to resume the needling of Justice Breyer that Justice Scalia began in his concurring opinion in Apprendi. Today Justice Scalia at the close of his concurrence urged Justice Breyer to "buy a ticket to Apprendi-land." (As my summary of the next case observes, sometimes Justice Scalia has been known to go missing in Apprendi-land himself.) Finally, Justice O'Connor wrote a dissenting opinion in which the Chief Justice joined. Although Justice O'Connor predicted today's result when she dissented from the Apprendi ruling (which perhaps made her a bit more honest than the Apprendi majority about the consequences of its ruling), she remains unwilling to accept Apprendi as a lawful result and thus refuses to sign-on to today's Apprendi-driven consequences. So, the Court declares the manner of capital sentencing in five states unconstitutional and casts serious doubt on the capital sentencing schemes in use in four other states. Nearly 700 inmates are on death row in these states, presumably thanks to procedures that are now unconstitutional. The press today had a field day with this information, suggesting that within weeks the death rows in these nine states would be empty except for the sagebrush blowing on through. But, as Justice O'Connor's dissenting opinion correctly observed, most of these prisoners will have no realistic chance at obtaining a shot at a resentencing by a jury: I believe many of these challenges will ultimately be unsuccessful, either because the prisoners will be unable to satisfy the standards of harmless error or plain error review, or because, having completed their direct appeals, they will be barred from taking advantage of today's holding on federal collateral review.Certainly the courts will now become even more clogged with suits by death row inmates seeking to grasp onto Ring, but I think that Justice O'Connor has correctly predicted the outcome of those actions, as the Court's ruling last month in Cotton exemplifies. 2. Apprendi's mantra: Increased mandatory minimum -- good; increased maximum sentence -- bad. The outer limits of agreement among the five-Justice majority that produced Apprendi were exposed in today's second most noteworthy decision, the Court's ruling in Harris v. United States, No. 00-10666 (U.S. June 24, 2002). I'll be the first to admit that the holding of Apprendi did not mandate any particular outcome in Harris. Apprendi held that facts other than prior criminal history that expose the defendant to a sentence beyond the statutory maximum for the crime of conviction must be submitted to the jury and proved beyond a reasonable doubt. The issue in Harris was whether facts that increase the statutory minimum sentence likewise must be submitted to the jury and proved beyond a reasonable doubt. The Court today answered that question "no" by a 5-4 margin that lacked a majority rationale. Justice Kennedy wrote the principal opinion, in which the Chief Justice and Justices O'Connor and Scalia joined in full. Justice O'Connor wrote a short concurring opinion in which she explained that even if she accepted Apprendi as correct, she would still have joined Justice Kennedy's opinion. Justice Breyer wrote an opinion concurring in part and concurring in the judgment in part, and Justice Breyer's opinion certainly deserves (and will receive, below) discussion. Justice Thomas wrote a fine dissenting opinion in which Justices Stevens, Souter and Ginsburg joined. Justice Kennedy's opinion strikes me as a very practical response to the mayhem that a contrary ruling in this case would have produced. It is a regular feature of federal and state sentencing law to have the judge find facts that increase a convicted criminal's prison sentence within the range that the legislature has prescribed. To hold that every increase in the allowed sentencing range (or nearly every increase except the existence of prior convictions) must be charged and presented to the jury would really have caused Apprendi to be a huge monkey-wrench thrown into the works of federal and state sentencing schemes. So, I personally don't find this ruling to be much of a surprise. Nor do I join with the majority of Justices (Stevens, Souter, Thomas, Ginsburg, and Breyer) who express the belief that Apprendi requires juries to find facts that increase a mandatory minimum sentence. (Justice Breyer concurs in the judgment by expressing his complete disagreement with Apprendi, which allows him to avoid applying it to facts that increase mandatory minimum setences. Looks as though three solid votes currently exist to overrule Apprendi. Oh, and by the way, just as Justice Breyer doesn't seem to like the death penalty (see his opinion concurring in the judgment in Ring), he really doesn't like mandatory minimum sentences, his opinion in Harris makes clear.) What I do find surprising, however, is that Justice Scalia -- with no explanation offered whatsoever -- joined in Justice Kennedy's entire opinion. Just two years ago in Apprendi, Justice Scalia joined most of Justice Thomas's concurring opinion that provided the groundwork for Justice Thomas's dissent today. Now maybe someone much smarter than me can explain that when Justice Scalia joined only two-thirds of Justice Thomas's concurring opinion in Apprendi, it was clear how Justice Scalia would vote in a case such as Harris. But I think that even the parts of Justice Thomas's concurring opinion in Apprendi that Justice Scalia did join would have required Justice Scalia to vote with Justice Thomas in Harris. Did Justice Scalia change his mind about this case, and if so why? We don't have any insight whatsoever, as Justice Scalia failed to issue any explanation today for why he voted as he did in this case. His ticket to Apprendi-land certainly did not place him at the same destination as the other four Justices who joined him in the majority in that case. To summarize, the result of Harris was not unexpected. Justice Scalia's vote, however, was both unexpected and unexplained, which of course will allow law professors everywhere to begin writing law review articles on what exactly happened here. 3. Before pleading guilty, the Ninth Circuit genie grants you three wishes. Well, not quite, but the U.S. Court of Appeals for the Ninth Circuit had ruled in the decision that gave rise to the Supreme Court's opinion today in United States v. Ruiz, No. 01-595 (U.S. June 24, 2002), that defendants charged with a crime were entitled to receive from the prosecution impeachment information relating to informants and other government witnesses before deciding whether to plead guilty. If that Ninth Circuit ruling strikes you as absurd, you are in good company, as the Supreme Court today reversed by a 9-0 vote. Justice Breyer wrote the majority opinion, which was so sound that even Justice Scalia was not goaded into making any separate comment. 4. And, in today's final opinion: In a case that presented the question whether the NLRB may impose liability on an employer for filing a losing retaliatory lawsuit even if the employer could show the suit was not objectively baseless, the Court held that the NLRB's standard for imposing liability violates the employer's First Amendment right to petition. If this decision interests you (sorry, but it doesn't interest me), you can access it here. Even in Louisiana you can't just bust into someone's home to make an arrest absent exigent circumstances: In a per curiam decision issued today, the Court demonstrated that at least one intermediate state appellate court in Louisiana has a thing or two to learn about the Fourth Amendment. Cert. granted in three cases: One of these three cases could prove to be next Term's Eleventh Amendment blockbuster, as the case presents the question whether the family medical care provision of the Family and Medical Leave Act of 1993 is a proper exercise of Congress's power under Section 5 of the Fourteenth Amendment, thereby constituting a valid exercise of congressional power to abrogate the States' Eleventh Amendment immunity from suit by individuals. A second case asks whether a referendum to stay the effectiveness of a lawfully approved site plan for low-income housing violates the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment and the Fair Housing Act. The final case presents the question whether a prepetition settlement of all tort claims against a debtor creates a novation, releasing the debtor from non-dischargeability claims after the debtor files for bankruptcy. Time to prognosticate? With four opinions left to issue, it's time again to guess who is the likely author of the majority opinion in each case. Only one case remains from the Court's February session -- the religious school voucher case -- and neither Justice Scalia nor Justice Kennedy has written an opinion from that session. I'm guessing Justice Kennedy has that decision. Two decisions remain pending from March -- high school drug testing and the free speech rights of candidates for elected judicial office. Justice Thomas is the only Justice who has not yet written a majority opinion from that session. I'm guessing he has the free speech case, which may be good news for the outcome I am predicting. Finally, only one decision remains from the April session, involving whether Alabama prison guards who tied an inmate to a hitching-post are entitled to qualified immunity. Neither Justice Stevens nor Justice Thomas has written a majority opinion from that session. Your guess is as good as mine on this one. And that concludes tonight's U.S. Supreme Court round-up. Posted at 22:47 by Howard Bashman COUNTER PRODUCTIVE: Time for a few site-related notes. I've recently switched to a counter that publicly discloses the number of page visits that "How Appealing" receives. You can view it at the bottom of my links list on the left-hand column of this page. The counter that I previously used disclosed nothing publicly. There's no reason not to let you see how many others are visiting here. In fact, making the counter number publicly available might even help me to accept how this endeavor has become so much more popular than I had ever imagined it would. While my page visit numbers are now public, I have decided against making the rest of my counter's information public. What other information is there? Well, as you may know from visiting totally open counters on the pages of other bloggers, a counter captures the visitor's Internet Protocol address (essentially a string of four numbers, separated by three periods, such as 1.2.3.4) and often can translate that address into the domain name of a particular organization. For example, at 7:39:25 pm tonight, "How Appealing" received a visit from the domain of my former law firm, "mailhost.mmwr.com." To make the IP addresses and, in many instances, the domain names of all visitors to "How Appealing" publicly available strikes me as too intrusive. So, I won't be making my counter fully public. But now you do at least have access to the total number of page visits that "How Appealing" receives. On a related note, some law bloggers have lamented that the Web sites of large law firms receive hardly any outside traffic while blogs that manage to capture a readership can receive over 15,000 page visits in a month. I'm not sure that it's fair to compare a law firm's Web site, which exists principally to advertise, with a blog such as this, which exists purely to provide information and commentary. Can many large law firm Web sites be made more interesting? Unquestionably yes. Can those Web sites manage to capture the readership of a halfway decent law blog? Probably not, for many reasons that are far too involved to state here. In other site related news, over this past weekend I updated the list of blogs featured on the left-hand column of this page. New entries include N.Z. Bear, law professor Jeff Cooper, and Tony Pierce. Posted at 21:52 by Howard Bashman THIRD CIRCUIT REINSTATES POLICE OFFICERS' CONSPIRACY CONVICTIONS: Today the U.S. Court of Appeals for the Third Circuit reinstated the criminal conspiracy convictions of five former Orange, New Jersey police officers whose mistreatment of a suspect believed to have murdered one of their colleagues resulted in the suspect's death. You can access the court's opinion here. In fact, the suspect was not involved in the crime, and the person who had murdered the police officer was later apprehended. Posted at 15:53 by Howard Bashman UPDATE: The Supreme Court of the United States today decided four of the pending eight argued cases and will return on Thursday, June 27, 2002 to announce decisions in the remaining four cases. You can access my recent summary of these eight cases here. The Court today decided cases 3, 5, 7, and 8 listed in my summary. The Court has saved until Thursday its decisions on: (a) the constitutionality of government-funded vouchers for religious schools; (b) the constitutionality of suspicionless drug testing of public high school students; (c) the scope of free speech rights of candidates for elected judicial office; and (d) whether Alabama prison guards who handcuffed an inmate to a hitching post for seven hours are entitled to qualified immunity. Tonight "How Appealing" will offer a complete summary of today's opinions and other newsworthy developments at the Court. Posted at 11:01 by Howard Bashman Sunday, June 23, 2002
UNTRUSTWORTHY EYEWITNESSES AND UNTRUSTWORTHY CONFESSIONS: An "Ideas and Trends" piece in today's Week in Review section of The New York Times reminds us that eyewitness testimony -- which many people think is the most reliable type of evidence -- is often not very reliable at all. You can access the report here. The Atlantic Monthly, in its July/August double issue (which also contains an excellent article written by William Langewiesche about the arduous work to dismantle the remains of the World Trade Center buildings), contains an article that is similarly critical of eyewitness identifications. The article, which you can access here, further explains that even the confession of someone charged with a crime cannot always be trusted. The article suggests that authorities videotape their interrogations of suspects and that police line-ups be conducted differently.
Posted at 17:03 by Howard Bashman
IN TODAY'S NEWSPAPERS: Today's edition of The New York Times offers this report about how, in the war on terror, "two Americans are being held in military brigs without access to lawyers, while two foreigners accused of terrorist activities are being tried in federal court with the full range of protections usually accorded to Americans." The article includes quotes from law professors. Today's edition of The Los Angeles Times offers this report about whether the Supreme Court's ruling on Thursday barring the execution of the mentally retarded will be the start of an anti-death penalty trend at the Court. Posted at 11:36 by Howard Bashman Saturday, June 22, 2002
WHAT QUESTIONS ARE PRESENTED IN THE EIGHT SOON-TO-BE-DECIDED U.S. SUPREME COURT CASES?: With less than one week to go before the start of its summer recess, the Supreme Court of the United States has eight argued cases in which opinions remain to be announced. Can you recite the issues that all eight of those cases present? Unless you are a Justice or law clerk serving on the Court or a reporter covering the Court, chances are you cannot. But thanks to this posting, now you will be able to answer that question. Here is a list of the questions presented in the eight argued cases that the Court is expected to decide this upcoming week. The list begins with the cases argued longest ago and ends with the cases argued most recently.1. Zelman v. Simmons-Harris, No. 00-1751 (argued February 20, 2002). Question presented: Does the establishment clause of the U.S. Constitution prohibit Ohio's school choice program from authorizing parents to use tax-funded scholarships at any private school, whether religious or not? (You can access here the Sixth Circuit's ruling in the case.)In addition to this preview of the eight cases in which the U.S. Supreme Court will announce opinions next week, "How Appealing" will of course provide a complete nightly round-up on each day that decisions have issued. Posted at 23:16 by Howard Bashman EIGHTH CIRCUIT REJECTS DISPUTE OVER CO-ED BATHROOMS: Still playing catch-up on developments from the two days I was on vacation with the family. The U.S. Court of Appeals for the Eighth Circuit ruled this past Thursday that a federal trial court properly dismissed the claims of a female school teacher in Minneapolis alleging that the school district discriminated against her on the basis of her sex and her religion by allowing a transgendered coworker to use the women's faculty restroom. You can access the court's per curiam decision (the panel consisted of Chief Judge Hansen and Circuit Judges Fagg and Bowman) at this link. The panel gave the following recitation of the facts: David Nielsen began working for the school district in 1969. Nearly thirty years later, in early 1998, Nielsen informed school administration that he was transgendered, that is, a person who identifies with and adopts the gender identity of a member of the other biological sex. Nielsen informed administration he would "transition from male to female" and be known as Debra Davis in the workplace. To plan for the transition, the school district collaborated with Davis, legal counsel, the parent teacher association, students' parents, and psychologists. Cruzan asked whether Davis would be allowed to use the school's women's restrooms, and administration informed her other arrangements would be made. Later, legal counsel informed the school that under the Minnesota Human Rights Act (MHRA), which prohibits discrimination on the basis of a person's "self-image or identity not traditionally associated with one's biological maleness or femaleness," Minn. Stat. section 363.01 subd. 45 (1998), Davis had the right to use the women's restroom. Thus, after Davis's transition in the spring of 1998, the school district permitted Davis to use the women's faculty restroom.After the plaintiff encountered Davis leaving a stall in the women's bathroom, the plaintiff objected to the school's principal and then later sued asserting claims of religious discrimination and hostile work environment sex discrimination. Upon rejecting the plaintiff's claims on the merits, the appellate panel next turned to reject the plaintiff's argument that her case should have been assigned to a female federal district judge: Cruzan argues it is an abuse of the summary judgment procedure for a male judge to decide that reasonable women could not find their working environment is abusive or hostile when they must share bathroom facilities with a coworker who self-identifies as female, but who may be biologically male. No case law supports Cruzan’s assertion, however. Judges routinely decide hostile environment sexual harassment cases involving plaintiffs of the opposite sex.Posted at 19:41 by Howard Bashman TONIGHT ON C-SPAN'S "AMERICA AND THE COURTS": On C-SPAN's wonderful program "America and the Courts," which is scheduled to air at 7 p.m. eastern time tonight, you can watch "a rally in support of President Bush's judicial nominees, followed by Justice Stephen Breyer discussing reasons for optimism in today's world." One reason for Justice Breyer to feel optimistic -- the Court's summer recess will begin in less than one week from now. Sometime next week, C-SPAN will provide online access to the program at this link. Posted at 11:35 by Howard Bashman IN SATURDAY'S NEWSPAPERS: Today's edition of The New York Times contains a report by U.S. Supreme Court correspondent Linda Greenhouse explaining that the Court's very recent decision prohibiting the execution of mentally retarded individuals may not herald a new era of even more stringent death penalty restrictions. You can access the report here. Separately, UCLA School of Law Visiting Professor Stuart Banner has an op-ed piece in today's NY Times explaining that "[h]istory shows that public opposition to capital punishment vacillates over time." So, according to Professor Banner, someday in the not too distant future the Court could reverse itself again and return to its original position that executing the mentally retarded does not constitute cruel and unusual punishment. The Washington Post joins The NY Times in reporting that the U.S. Department of Justice has sought U.S. Supreme Court review of the Third Circuit's refusal to uphold the INS's rule providing for the closure of all deportation hearings involving illegal immigrants rounded-up in the federal government's post September 11th antiterrorism sweeps. The government's petition will first be considered by Justice David H. Souter, who serves as the Circuit Justice for the Third Circuit. You can access the Post's article here; you can access the Times's article here. An op-ed in today's Washington Post suggests that Justice Anthony M. Kennedy should take a ride on a bus. The op-ed piece makes no mention of the bus that Justice Clarence Thomas owns. My only comment is that op-ed pieces criticizing rulings from this past Monday would have seemed so much more timely had they run before yesterday's decisions issued. Posted at 11:10 by Howard Bashman Friday, June 21, 2002
U.S. SUPREME COURT ROUND-UP FOR JUNE 20, 2002: Yesterday the Supreme Court of the United States announced six opinions in argued cases, leaving just eight argued cases left to decide with one week to go before the Court's summer recess. The Court is due to announce opinions next on Monday, June 24, 2002. Opinions in the eight remaining cases could all be announced then; if not, the Court will be back again sometime later next week to announce the balance of its opinions. Yesterday's decisions demonstrated for the second time in two weeks the risks inherent in relying on the Court's common practice of assigning at least one majority opinion to each Justice per sitting, as either Justice Scalia or Justice Kennedy will have missed out on a majority opinion from the February 2002 sitting. The other (probably Justice Kennedy) will have the pleasure of announcing the result in the long-awaited religious school vouchers case, which is now the oldest outstanding undecided case (a distinction it assumed following the Court's decision yesterday in Rush Prudential HMO, Inc. v. Moran). And now, on to the details of yesterday's rulings:
1. The mentally retarded "win" right to spend life in prison for committing capital murder: While one may legitimately debate whether the penalty of life imprisonment without parole is more cruel than the State's administration of the death penalty, as far as the U.S. Supreme Court is concerned the death penalty wins hands down on the cruelness comparison scale. Thus, yesterday the Court ruled 6-3 that evolving standards of decency in this nation compelled the holding that executing the mentally retarded violates the Eighth Amendment's prohibition on cruel and unusual punishment. See Atkins v. Virginia, No. 00-8452 (U.S. June 20, 2002). Justice Stevens wrote the majority opinion, which he assigned to himself as the most senior Justice in the majority. Justice Scalia wrote the principal dissent, in which the Chief Justice and Justice Thomas joined. The Chief Justice also chimed in with a short separate dissent of his own, in which Justices Scalia and Thomas joined. The most notable aspect of this decision, however, was that both Justices O'Connor and Kennedy joined with the Court's four-person moderate to liberal voting bloc to make this a 6-3 ruling rather than another harshly contested 5-4 ruling. Having made the mistake of taking a two-day vacation that included yesterday and most of today, I can't be the first legal commentator to tell you that Justice Scalia's dissenting opinion struck me as much more persuasive than Justice Stevens' majority opinion. See here (excellent essay, Rick!), here, and here, for example. The only portion of Justice Stevens' majority opinion that I found particularly persuasive was toward the end, where he explained how a defendant who is retarded might be at a greater risk of being wrongfully convicted or wrongfully punished to death. Justice Scalia's dissent, which had the bad fortune of following an eight-page informational chart that served as the appendix to the Chief Justice's dissent, began with sparks flying: Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.At the outset of his dissent, Justice Scalia traced how our nation has applied the death penalty to the mentally retarded. He explained that when the Bill of Rights was adopted, only a special class of the retarded then endearingly known as "idiots" were exempted from the death penalty because they could not tell right from wrong. (Today, ironically, the term is reserved for lawyers who seek career advice via a blog.) Reassuringly, however, imbeciles where not exempt even though they too were retarded, but less profoundly so. (This discussion allowed for a cite to everyone's favorite book from the early nineteenth century, A. Highmore's "Law of Idiocy and Lunacy" (1807)). Although Justice Scalia does not believe, as an original matter, that an emerging consensus of unconstitutionality should suffice to cause a punishment to violate the Eighth Amendment, his dissent next proceeded to explain why the majority is wrong to say that such a consensus exists with respect to executing the mentally retarded. In Part III of his dissenting opinion, Justice Scalia returned to the big picture: Beyond the empty talk of a "national consensus," the Court gives us a brief glimpse of what really underlies today's decision: pretension to a power confined neither by the moral sentiments originally enshrined in the Eighth Amendment (its original meaning) nor even by the current moral sentiments of the American people. "'[T]he Constitution,'" the Court says, "contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." (The unexpressed reason for this unexpressed "contemplation" of the Constitution is presumably that really good lawyers have moral sentiments superior to those of the common herd, whether in 1791 or today.) The arrogance of this assumption of power takes one's breath away. And it explains, of course, why the Court can be so cavalier about the evidence of consensus. It is just a game, after all. "[I]n the end," it is the feelings and intuition of a majority of the Justices that count -- "the perceptions of decency, or of penology, or of mercy, entertained * * * by a majority of the small and unrepresentative segment of our society that sits on this Court."Before concluding, Justice Scalia also noted that mental retardation can easily be feigned. In the aftermath of this ruling, I look forward to seeing how three issues are addressed in the days, weeks, months, and years ahead. First, is it truly more civilized to keep those who are retarded but unquestionably guilty of capital murder imprisoned for life? Many unquestionably guilty non-retarded capital defendants seem to prefer the death penalty to spending the rest of their natural lives behind bars. Second, will States that are already hard-pressed for funds find a way to provide better treatment and medical attention to mentally retarded convicts? And, finally, will society ever find a less negative term than "retarded" to describe these individuals (e.g., mentally impaired, or something), so that the term "retarded" can join "idiot" and "imbecile" as schoolyard taunts rather than remaining a medically-accepted descriptor? (See here and here for two discussions of this issue.) 2. ERISA preemption narrowed even further: Health Maintenance Organizations suffered a substantial defeat in yesterday's other blockbuster case when the Court ruled 5-4 that the Employee Retirement Income Security Act of 1974 did not prevent the State of Illinois from enacting an independent review mechanism providing that, whenever an HMO denies a claim for medical treatment, if "[i]n the event that the reviewing physician determines the covered service to be medically necessary," the HMO "shall provide" the service. See Rush Prudential HMO, Inc. v. Moran, No. 00-1021 (U.S. June 20, 2002). Justice Souter wrote the majority opinion, in which Justices Stevens, O'Connor, Ginsburg and Breyer joined. Justice Thomas wrote the dissenting opinion, in which the Chief Justice and Justices Scalia and Kennedy joined. In recent years, HMOs have seemingly experienced one setback after another from the Court on the scope of ERISA preemption. If broad ERISA preemption is recognized, HMOs will rarely be subject to suit in state court under state law. If only very narrow ERISA preemption is recognized, HMOs will be regularly subject to suit in state court under state law. Originally, the Court suggested that the scope of ERISA preemption would be quite broad. But, that has over time has not proved correct. Yesterday's decision even seems to have deprived the HMOs of some of the more favorable aspects of the Court's recent ruling in Pegram v. Herdrich, 530 U. S. 211 (2000). Given the increasingly important role that HMOs are playing in the provision of health care in the United States, and given the increasing amount of State regulation of HMOs both through legislation and litigation, the Court's ruling in Rush Prudential is likely to prove quite significant. As tempting as it may be to explain the details of the Court's decision here, were I to do so your eyes would likely glaze over. For the decision involves not only ERISA's preemption clause but also a separate clause that exempts from preemption state laws that regulate insurance. Indeed, one of the HMO's main arguments in Rush Prudential was that HMOs were primarily healthcare providers, not insurers. The Court's majority would have none of that, and instead concluded that HMOs are both healthcare providers and insurers. In the final analysis, more state regulation of HMOs may benefit patients who wish to dispute treatment decisions or those injured as the result of substandard care; however, more regulation also will likely increase the rate of health insurance premiums and could cause fewer employers to offer such coverage. 3. Time for this decade's installment of "Challenge The Census": The U.S. Constitution requires the federal government to count the nation's population every ten years. Originally, it was clear that counting the population meant just that -- sending out canvassers to roam across the nation to count each and every person. Today, of course, advances in technology allow the Census Bureau to have a fairly certain idea of precisely how many people live in each state and in the nation as a whole, so that the actual counting of people is reduced to something of a formality. Yet an attempt an actual count is what the Constitution requires, so that is what is done ever ten years. For the past few decades, after each census one or more states have brought suit to challenge the methods by which the Census Bureau has employed statistical methods to render more accurate (at least that's what we hope is happening!) the actual enumeration. You see, not even avid bloggers remain home at all times, and sometimes the actual enumeration will establish nothing conclusively other than its own lack of reliability. Anyhow, these statistical methods are employed to increase the count the actual enumeration has produced to more closely approximate the count the actual enumeration would have produced if everyone had cooperated with the census and stayed home on the day of the count to be counted. (Yes, I know, door-to-door canvassing is just a small portion of the count, but it provides a much more colorful image than picturing the head of household filling out a multiple-choice questionnaire with a number 2 pencil.) In this decade's installment of challenge the census, the State of Utah has sued to protest the fact that the method of count enhancement known as "hot-deck imputation" caused Utah to lose a seat in the U.S. Congress's House of Representatives to the State of North Carolina. (See this map, which the Census Bureau has helpfully provided.) Just as California now gets 53 U.S. Representatives and Idaho only two, population shifts from decade to decade can result in the movement of House seats from one state to another. Yesterday the Court rejected Utah's challenge to "hot-deck imputation." See Utah v. Evans, No 01-714 (U.S. June 20, 2002). Justice Breyer wrote the majority opinion, in which only the Chief Justice and Justices Stevens, Souter and Ginsburg joined in full. Justice O'Connor dissented from the Court's holding that "hot-deck imputation" was statutorily lawful. Justice Thomas, joined by Justice Kennedy, concluded that the method was statutorily lawful but violated the Constitution. Finally, Justice Scalia dissented and would have held that Utah and the other petitioners lacked standing to bring this suit. All of which makes this complex case a 5-4 ruling! None of the opinions in this case did a very good job of explaining what "hot-deck imputation" actually means. The term, which one might associate with a Las Vegas card table where the players are much happier than the house, actually appears to describe a statistical method that is not limited to census-taking. As this Web page explains, In hot deck imputation, a donor case is selected from the current round of respondents by matching on related variables. The donor case's response is used as a proxy for the recipient's missing variable. Hot deck imputation is the method of choice for variables that may change over time, such as employment characteristics. Hot deck is preferable to model-based imputation in this application because it easily preserves correlation among variables and maintains the valid response rages for categorical variables.So, today's lesson is that hot-deck imputation is good, while statistical sampling remains bad. How are the two methods dissimilar? Ask your local statistician. At a minimum, yesterday's ruling is bound to be good news for fans of Congressional redistricting challenges involving bizarrely shaped districts in North Carolina. So stay tuned for that likely companion case coming soon to a High Court near you. 4, 5 & 6 -- Proving that not every end-of-Term decision is a blockbuster: Sometimes the crop of decisions that issues on a given day during the final weeks of the U.S. Supreme Court's Term can resemble the banquet menu at a suburban Chinese restaurant. You've got the especially appealing dishes in "Column A," from which you'd prefer to select all of your table's entrees. And then there's "Column B," which contains the selections that can only be described as insipid. Yesterday, the Court decided three cases remaining in "Column B," guaranteeing that most of next week's rulings will consist of the tasty morsels remaining in "Column A." 4. Yesterday the grammatically-challenged Ours Garage and Wrecker Service, Inc. suffered a serious setback in its suit against the City of Columbus, Ohio. Ours Garage sued in federal court, arguing that a federal statute prohibited Columbus from regulating the operation of tow-trucks in that city. Although both the trial court and the U.S. Court of Appeals for the Sixth Circuit sided with Ours, the U.S. Supreme Court reversed by a vote of 7-2, holding that the federal law in question does not prevent a State from delegating to municipalities and other local units the State's authority to establish safety regulations governing motor carriers of property, including tow trucks. Justice Ginsburg wrote the majority opinion; Justice Scalia wrote a dissenting opinion, in which Justice O'Connor joined. You can access the Court's ruling here. In an attempt at interesting sports fans in this case, Justice Scalia's dissenting opinion explained: The situation is comparable to the following hypothetical using the term "football" (which may be used to include soccer, see Webster’s New International Dictionary 983 (2d ed. 1950)): Assume a statute which says that "football and soccer shall not be played on the town green," except that "football and soccer may be played on Saturdays," "football and soccer may be played on summer nights," and "football may be played on Mondays." In today’s opinion, the Court says soccer may be played on Mondays. I think it clear that soccer is not to be regarded as a subset of football but as a separate category. And the same is true of "political subdivision" here.Well, that certainly clears things up! For anyone concerned about the fate of Ours's challenge to the regulations in question, the Court remanded the challenge to consider whether federal law might preempt the regulations on another ground that the lower courts have yet to consider. 5. In the second-to-last case decided yesterday, the Court ruled 5-2-2 that the Family Educational Rights and Privacy Act of 1974 does not allow individuals to sue educational institutions under the federal civil rights act for violations of FERPA. You can access this ruling here. The Chief Justice wrote the majority opinion, in which the usually reliably conservative quartet of Justices O'Connor, Scalia, Kennedy and Thomas joined. Justice Breyer wrote an opinion concurring in the judgment, in which his former First Circuit colleague, Justice Souter, joined. Justice Stevens wrote a dissenting opinion in which Justice Ginsburg joined. 6. Finally, attorney Jennifer Harbury, who argued her very own case before the Court in March 2002, lost yesterday when the Court ruled unanimously that her assertion t |