Three Dog Blog

O'Connor leaves the Supremes

Justice O'Connor just announced her decision to resign from the Supreme Court.  O'Connor, a conservative, could always be counted not to rely upon neo-con ideology and instead render a thoughtful and well reasoned opinion. 

In these times when our country is terribly polarized, leaders like O'Connor, who are willing to consider both sides of an issue are desperately needed.  It is unlikely that Justice O'Connor will be replaced by someone who has her strengths.

If Dubya decided to replace Justice O'Connor with a female jurist, she may be replaced by Edith Hollan Jones.  She's on the short list submitted to the current administration by the Christian Legal Society.  (Samuel Alito, a 3rd U.S. Circuit judge from Philadelphia, and Michael W. McConnell, on the 10th U.S. Circuit Court of Appeals were also recommended, as possible candidates by The Christian Legal Society.)

Judge Jones practiced law in Texas and now sits on the 5th U.S. Circuit Court of Appeals in New Orleans.  A really ugly Title VII dissent to her discredit proves that Judge Jones lacks Justice O'Connor's capacity for critical thought and reason.  Harriet Miers, another Texas lawyer, and White House Counsel would be a much better choice.  Ms. Miers is widely respected by all those who know her.

But my money is on Emilio Garza of the 5th Circuit.  Garzo could give Dubya the chance to name the first Hispanic justice.  Alberto Gonzales, might have otherwise been in the running, but is now unsuited for nomination in light of his memo that provided that detainees could be subjected to torture without running afoul of the Geneva Convention.

Slate has a good article outlining those in line to take O'Connor's spot.

Actuarial tables alone suggest that Dubya will be able to name at least two new justices, and perhaps as many as four.   Chief Justice Rehnquist, 80, suffers from thyroid cancer, and will likely announce his retirement in the next week or so.  Justices John Paul Stevens is 85.  And Ruth Bader Ginsburg, 72, has also been treated for cancer.

Let Justice Reign

The American Bar Association Journal reports that the Supreme Court’s Sosa v. Alvarez-Machain decision – authored by Justice Souter, in which Justices Scalia, Thomas and Rehnquist concurred – may have left the “door ajar” for human rights lawsuits to be filed on behalf of the Abu Ghraib prisoners in the courts of the United States.

One such suit was filed last month in a San Diego federal court by the New York City-based Center for Constitutional Rights. The CCR sued Titan Corp. and CACI International Inc. on behalf of several Iraqi prisoners, accusing the government contractors of conspiring with U.S. officials to abuse Iraqi detainees and failing to properly supervise their own employees.

“The court’s decision leaves it an open question as to whether U.S. corporations can be sued under this statute,” says Texas Tech law professor William Casto, an international tort expert whose work was cited by Justice Souter and Justice Scalia in his concurrence.

At issue is the Alien Tort Statute, passed in 1789, which provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

The decision in Sosa v. Alvarez-Machain concerned the Drug Enforcement Administration's (DEA) approval to use Sosa and other Mexican nationals to abduct Alvarez (also a Mexican national), from Mexico to stand trial in the United States for a DEA agent’s torture and murder. After Alvarez was acquitted he sued the United States for false arrest under the Federal Tort Claims Act (FTCA), which waives sovereign immunity in suits “for … personal injury … caused by the negligent or wrongful act or omission of any [Government] employee while acting within the scope of his office or employment.” Alvarez also sued Sosa and for violating the law of nations under the ATS.

Sosa argued that Alvarez-Machain could not sue under the ATS because the law was merely jurisdictional and did not create a private right of action. Souter, while agreeing that the ATS was intended as jurisdictional, wrote that it also allowed torts in violation of international law that would have been recognized in the 18th century. Souter gave the following three examples: “violation of safe conducts, infringement of the rights of ambassadors, and piracy.” Souter opined that “judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms today.”

In his concurrence Scalia offered a more pragmatic view, “The question is not whether that door will be left ajar, but whether this court will open it.”

Los Angeles attorney Paul L. Hoffman, who argued Alvarez’ case before the court offered his opinion as to the type of cases that are likely to be tested in the future, under the ATS, “These include torture, genocide, prolonged arbitrary detentions, disappearances, summary executions, crimes against humanity, war crimes, and slavery-like practices,” citing Filartiga v. Pena-Irala, 630 F.2d 876 (2nd Cir. 1980) (find that deliberate torture perpetrated under the color of official authority violates universally accepted norms of international law of human rights regardless of the nationality of the parties, and, thus, whenever an alleged torturer is found and served with process by an alien within the borders of the United States, the Alien Tort Statute provides federal jurisdiction).

Am I Free to Leave?

If you are a seventeen year old boy whose parents are waiting while you are being interrogated for two hours by the police, a state court might properly find that you need not be told that you have the right to remain silent or the right to an attorney, before the police solicit a confession from you.

Yesterday, by a vote of 5 to 4 (Rehnquist, Scalia, Thomas, Kennedy & O’Connor), the United States Supreme Court ruled that the California Court of Appeal did not have to factor in the youth and inexperience of 17 year old Michael Alvarado, when it decided that he was not clearly in custody during his two-hour session with a detective. The requirement that police advise interviewees of their rights applies only to those who are under arrest or who, under the circumstances, reasonably believe they are not free to leave.

Justice Kennedy, writing for the majority, relied upon this Court’s long established view of federalism and decided that federal law requires federal courts to accept constitutional decisions by state courts unless they are clearly unreasonable or violate Supreme Court precedent.

However, in conceding that "fair-minded jurists could disagree over whether Alvarado was in custody" Kennedy all but admitted that another set of jurists might have found that Alvarado was in custody, Miranda, as modified by the Court's subsquent decisions, controlled and Alvarado’s confession was tainted in that he was not told of his right to remain silent.

Today’s Washington Post reminds all of us that our rights to remain silent and to have an attorney present with us prevent convictions of the innocent by citing the case of five New York teenagers who wrongly served prison sentences for the 1989 beating and rape of the woman who became known as the Central Park jogger. Those five young men later recanted their confessions and it was later discovered that DNA evidence proved their confessions – and convictions – to be false.

Justice O'Connor, wrote a short concurring opinion in which she qualified her vote by noting that, although Alvarado was nearly 18, "there may be cases in which a suspect's age will be relevant to the Miranda 'custody' inquiry." Writing for the dissent, Justice Breyer (jointed by Justices Stevens, Souter and Ginsburg) agreed with O’Connor saying noting that "[c]ommon sense, and an understanding of the law's basic purpose in this area, are enough to make clear that Alvarado's age . . . is also relevant to the inquiry." "What reasonable person in the circumstances . . . could have thought to himself, 'Well, anytime I want to leave I can just get up and walk out?'”

In the final analysis, six members of the United States Supreme Court found that "there may be cases in which a suspect's age will be relevant to the Miranda 'custody' inquiry." In light of the Patriot Act, and its abuses, the debate over the protections of the Fourth, Fifth and Sixth Amendments is is far from over. The rights contained in these amendments are: (1) no arrest after unreasonable search and seizure or without probably cause; (2) no arrest without grand jury indictment or for crimes of which you've already been tried, you cannot be compelled to testify against yourself, and the government can't take your property without paying for it; (3) the right to a speedy trial, effective assistance of counsel, and the right to confront your accusers, respectively.

Retarded?- Who decides

This post at Talk Left discusses a current case in Virginia. At issue is whether the State of Virginia can impose the death penalty on Daryl Atkins. Atkins has an IQ of 59. Prosecutors maintain that he is not mentally retarded.

The Times article about the case points out that in most states the decision on whether a defendant is retarded is made by a judge before the trial begins. Others, including Viginia, fold the retardation determination into the trial and rely on the jury for the determination.

It is an interesting distinction. I have been reading the article, Explaining Death Row's Population and Racial Composition, in the Journal of Empirical Legal Studies, March 2004. (If I can find an online link I will add it)

The authors of the article (John Blume, Theodore Eisenberg, Martin T. Wells) point to a correlation between death penalty rates (from 1977 to 1999) and the identity of the ultimate sentencer. In states where the ultimate sentencer is either an individual judge, or a judge with the advice of a jury, the death sentence rate is significantly higher than in states where either a three judge panel or a jury is the ultimate sentencer. Virginia, in their study, has one of the lower death sentencing rates.

That suggests that judges might be operating under greater pressure to apply the death penalty. It also suggests that the death penalty is a more problematic sentence when imposed by a group. As I understand this particular case, the decision of the jury will determine whether his existing sentence of death will be lowered to life imprisonment.

The implication it seems, is that somehow the jury might be manipulated through a description of the crimes, into an unjust decision regarding Atkins' mental retardation. Although the determination of retardation is obviously a different decision than the imposition of the death penalty, this data suggests that a jury, as a group, may be less subject to pressures demanding a death sentence. It will be interesting to see what decision is made by the jury. I am also curious if there is any data that compares the willingness of judges and juries to make the determination of retardation in capital cases. It may be that the ruling by the Supreme Court is too recent for such a study to have been done. But if anyone reading this knows otherwise, please let me know.

Freedom of Religion

The American Center for Law and Justice insists that the United State Supreme Court's recent decision, that the State of Washington's ban on the use of state scholarship program funds to assist post-secondary students pursuing a degree in theology does not violate the Free Exercise Clause of the Constitution, "clearly sanctions religious discrimination." While admitting that the Court's decision "does not prohibit states from structuring scholarship programs to permit the pursuit of a degree in devotional theology," the ACLJ insists that the Court "missed an important opportunity to protect the constitutional rights of all students."

The State of Washington's prohibition against the use of state funding in support of religious schools is found in 36 other states. Washington’s constitutional provision and statutes are not unique. Thirty-six states have similar provisions, the sort of which was first introduced by James G. Blaine, in 1875 in response to the rise of Catholic education following the great wave of Irish immigration to the United States.

Davey, the theological student who found tuition money denied to him, relied upon the rather sexy case of Church of Lukumi Babalu Aye, Inc. v. Hialeah and complained that the State of Washington's insistence that "[n]o aid shall be awarded to any student who is pursuing a degree in theology" singled out religion for unfavorable treatment and was therefore unconstitutional. In Babalu, the Court decided that the City of Hialeah's prohibition against the ritual sacrifice of animals was an unconstitutional prohibition against a Sanatoria church and its congregant's employment of animal sacrifice as a principal form of devotion. The Court concluded that because the City of Hialeah's ordinance burdened religious practice it was subject to strict scrutiny, something that a law will survive "only in rare cases."

The problem for Davey, and for those who supported his case before the Supreme Court, is that the State of Washington's prohibition against the use of state funds to earn a theological degree does not "burden" Davey's "religious practice" in the same manner that a ban on ritual slaughter burdened the practice of the Sanatoria religion. Instead the State of Washington's prohibition simply avoids the use of state funds to promote religious practice thereby falling in the "play in the joints" between the clause of the First Amendment that provides for the Free Exercise of Religion and the clause of the First Amendment which prohibits the Establishment of Religion. This is to say that there are some state actions which neither run afoul of the Establishment Clause nor are required by the Free Exercise Clause. It is for this reason that Ohio's voucher program that allowed students to use state funds in either secular or religious schools was found by the Court to be Constitutional. The Ohio voucher system neither had the effect of advancing or inhibiting religion.

The Court's decision has left it up to each individual state to decide whether state funds will be used in religious schools. This is at the heart of the uproar, against the Davey decision, proponents of educational vouchers worry that similar “Blaine Amendments” will block the use of voucher programs in religious primary and secondary schools.

At the heart of the Court's decision is its strict constructionist view of the Tenth Amendment. This Court, born in the Reagan Era, believes much of the power held by the federal government ought to be reserved to the states. While the Republican Party, since the time of Reagan, has courted the religious right (a primary proponent of the use education vouchers), the religious right fails to understand that its goals and the goals of the Republican Party are not the same. The religious right seeks to disseminate the Gospel of Jesus Christ by helping to preserve traditional values and the institution of the family. The Republican Party courts the religious right in order to gain their votes and thereby maintain a Republican power base among state and federal legislatures and executives, period. Everything else is just persiflage.