Latest Supreme Court Debates

“Partial-Birth” Abortion Ban:
The Supreme Court Revisits Late-Term Abortion Law
Is the Federal Partial-Birth Abortion Ban Constitutional?
(Excerpted from Supreme Court Debates, December 2006)

On November 5, 2003, President George W. Bush signed the Federal Partial-Birth Abortion Ban Act into law.

It was the latest development in the heated abortion debate, and a direct challenge to the Supreme Court, which had struck down a similar Nebraska ban only three years before in Stenberg v. Carhart (2000). In that case, the Court invalidated the law because it was overbroad and because there was no exception allowing the procedure to preserve the health of the mother.

Congress, when it passed the ban, differentiated its law from the one in question in Stenberg by including extensive factfinding material that, its supporters claimed, demonstrated that D&X procedures were never medically necessary; therefore, the act did not require a woman’s health exception.

Shortly after the law was signed, a group of four doctors, led by LeRoy Carhart — who had also challenged the Nebraska law — filed suit over the constitutionality of the ban.

The United States appealed to the Supreme Court, which granted certiorari on February 21, 2006. During oral arguments lawyers for the Government pointed to congressional factfinding as grounds for upholding the ban.

Lawyers for the doctors responded that, in matters of constitutionality, Congress does not have the only word in determining facts.

The case may turn on whether the Court believes that congressional factfinding merits sufficient weight to validate a law that, just three years earlier, it found unconstitutional.

The Roberts Court is still less than a year old, and highprofile cases such as this one will go a long way toward revealing what to expect from it in the years to come.

Prejudicial Displays in Court:
Button-Wearing and the Right to a Fair Trial
Can the Ninth Circuit Reverse a Murder Conviction Because the Victim’s Relatives Wore Picture Buttons at the Trial?
(Excerpted from Supreme Court Debates, November 2006)

On October 16, 1995, Mathew Musladin went on trial for the murder of his estranged wife’s fiancé, Tom Studer. Musladin contended that he believed Studer had a gun and so he shot him in self-defense.

During the trial, members of Studer’s family appeared in court with buttons bearing a photograph of a smiling Studer in a Navy uniform. The defense objected to the presence of the buttons, but the trial judge allowed them.

On November 1, Musladin was convicted of first-degree murder and sentenced to 32 years to life in prison. Musladin appealed his conviction to the California Court of Appeal on the grounds that the display of the buttons interfered with his right to a fair trial.

After a series of losses, on April 8, 2005, the Ninth Circuit U.S. Court of Appeals ruled in his favor.

The State of California appealed to the U.S. Supreme Court, which granted certiorari on April 17, 2006.

At issue is whether the buttons are prejudicial because they conveyed a likable portrait of the victim that directly cut against Musladin’s defense that Studor was the aggressor and had been killed in self-defense.

But even if the Court decides that Musladin’s trial was flawed, it could still find in California’s favor based on its reading of current law.

Warrantless Police Entries:
The Fourth Amendment During Emergencies
Can Police Officers Enter a Home Without a Warrant When They Believe a Person’s Health May be in Danger?
(Excerpted from Supreme Court Debates, October 2006)

When is an emergency situation so critical that police officers can respond by entering into a private home without a warrant?

This was the question the U.S. Supreme Court considered last spring in the case of Brigham City v. Charles W. Stewart, et al.

The case centers around a routine police response to a neighbor’s complaint about a loud party at 3 a.m. on July 23, 2000, in Brigham City, Utah. After four officers arrived on the scene, they observed several underage drinkers in the home’s backyard. They went into the yard and, through a window, saw a teenager being restrained by three adults.

The youth broke free and punched one of the adults in the nose. The officers yelled, “Police,” and entered the house to break up the fight. Several of the occupants became belligerent were eventually arrested for disorderly conduct, intoxication, and contributing to the delinquency of a minor.

During the trial, the lawyer representing three of the defendants motioned to have all evidence obtained by the police in the house suppressed because the officers violated the Fourth Amendment by having no cause to enter the premises without a warrant.

The trial court agreed and, after Brigham City appealed, both the Utah Court of Appeals and the Utah Supreme Court upheld its ruling. The State of Utah appealed the decision to the U.S. Supreme Court.

On May 22, the Supreme Court unanimously voted to overturn the Utah Supreme Court’s decision. In the Court’s opinion, Chief Justice John Roberts wrote, “Police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.”

The Fourth Amendment and police searches are a regular subject on the Supreme Court’s docket, and the Brigham City case, along with others considered by the Court last term, indicate that the newly constituted Roberts Court will often side with law enforcement in this key area of constitutional law.

Prosecuting Enemy Combatants:
The Legality of President Bush’s Military Tribunals
Are the Military Commissions Established by the President to Try Alleged War Criminals in the “War on Terror” Illegal?
(Excerpted from Supreme Court Debates, September 2006)

Shortly after the U.S. military campaign in Afghanistan started in October 2001, the Nation’s armed forces began capturing enemy combatants and receiving custody of individuals held by U.S. allies. The disposition of these detainees has been a hotly debated question ever since.

One such detainee is Salim Ahmed Hamdan, who was captured by Afghani forces and turned over to the United States in November 2001. He was ordered to stand trial before a military tribunal set up by the Bush Administration.

Hamdan’s lawyers challenged the proceeding’s legality in court, and the case was granted certiorari on November 7, 2005. During oral arguments, lawyers for Hamdan contended that the U.S. Congress had not authorized the president to set up military tribunals during this conflict.

Lawyers for the United States countered that when Congress sanctioned the use of military force to prosecute the “war on terror,” it authorized the president to use military tribunals to try detainees — a practice well established in U.S. wars dating back to the Revolution.

On June 29, the Supreme Court ruled 5 to 3 in favor of Hamdan (Chief Justice Roberts abstained, as he had been on the circuit court panel that upheld the tribunals). (Read the opinion here.)

Justice Stevens, writing for the majority, held that Congress did not authorize the tribunals and so Hamdan had to be tried under UCMJ rules.

In addition, as constituted, the tribunals violated the Geneva Convention, which applied to defendants like Hamdan. The Bush Administration is now presented with two options: It can try Hamdan in a court-martial or it could ask Congress to authorize military tribunals. Until it makes a decision, however, Hamdan — and nearly 500 other detainees at Guantánamo Bay — can continue to be held indefinitely.

Rights of Foreign Nationals:
Consular Notification of U.S. Arrests
Does the Vienna Convention on Consular Relations Require Detained Foreign Nationals to Be Informed of Their Consular Rights?

When criminal suspects are interrogated while in police custody in the United States, the Supreme Court has said that they must be informed of their rights to remain silent and consult with a lawyer.

Now, the Court is considering whether foreign nationals should be informed of another right: under the Vienna Convention on Consular Relations (VCCR), to inform their home country’s consulate of their arrest and seek its assistance.

The case in question began in the early morning of December 18, 1999, when Moises Sanchez-Llamas — a Mexican national — was arrested by Medford, Oregon, police for shooting at and wounding an officer in the leg.

While in custody, Sanchez-Llamas was informed of his legal rights as outlined in Miranda v. Arizona (1966), but was not told that he could contact the Mexican consulate. During interrogation, he made incriminating statements that were later used to help convict him of 11 felony counts, including attempted murder.

The public defender representing Sanchez-Llamas challenged the admissability of his client’s confession, arguing that the State’s failure to inform him of his consular rights violated the VCCR. The trial court denied his request, and both the Appeals Court and the Oregon Supreme Court upheld that decision.

Sanchez-Llamas appealed to the U.S. Supreme Court.

During oral arguments on March 29, 2006, lawyers for Sanchez-Llamas contended that the text of the VCCR requires that foreign nationals be informed of their consular rights following their arrest.

Lawyers for Oregon countered that the VCCR was created to deal with relations between nations and not to give individuals rights in foreign courts. The proper way to handle such cases is through state-to-state negotiation, not local legal action, they said.

How the justices rule in this case should shed some light on the direction the Roberts Court is heading in these areas. A Court decision in favor of Sanchez-Llamas and Bustillo also could make effective law enforcement education programs essential.

The Texas Redistricting Fight:
Redrawing Congressional Maps for Political Gain
Is the 2003 Mid-Decade Texas Congressional Redistricting Unconstitutionally Partisan Gerrymandering?

Every 10 years, it has become a tradition for legislatures across the country to haggle and argue over redrawing the lines of their congressional districts.

The issue is fraught with political tension because the consequences for a State's congressional delegation can be significant.

In 2003, the Texas Republican Party undertook an unusual and controversial re-redrawing of the State's congressional lines after it gained control of the Legislature in the 2002 elections. Republicans were determined to redraw congressional lines in their favor. And despite determined resistance from the State's Democrats in October 2003, a new map was approved. The battle between the two parties over the Texas congressional map then moved to the courts, where four separate suits were filed against the State of Texas. These suits were consolidated by a Federal district court, which upheld the map on January 6, 2004.

In June 2004, the U.S. Supreme Court issued a ruling in Vieth v. Jubelirer that directly addressed the issue of partisan influences in congressional district-drawing and left the door open to a future challenge to line-drawing for purely political gain.

On June 9, 2005, the court issued a decision standing by this earlier judgment.

The Plaintiffs - the League of United Latin American Citizens and Travis County, Texas, among others, appealed to the U.S. Supreme Court. The Plaintiffs maintained that the Texas case presented the clear standard for unconstitutional line-drawing that Justice Kennedy was seeking.

Lawyers for Texas responded that this wasn't a case of middecade redistricting, but that the Legislature was finally fulfilling its responsibility to draw congressional lines.

If the Court strikes down the Texas redistricting effort, the Court will have finally found a type of partisan gerrymandering that is unconstitutional - paving the way, perhaps, for further challenges in the years ahead.

The Samuel Alito Nomination:
George W. Bush Names a Second Supreme Court Justice
Should the Senate Confirm Samuel Alito to Be an Associate Justice of the Supreme Court?
(Excerpted from Supreme Court Debates, March 2006)

Judge Samuel Alito of the Third Circuit U.S. Court of Appeals was not President George W. Bush’s first pick to replace retiring Justice Sandra Day O’Connor. Now-Chief Justice John Roberts was the initial choice, but Bush renominated him for the top spot after the death of William Rehnquist.

Alito wasn’t Bush’s second pick for O’Connor’s seat, either. On October 3, 2005, the president nominated his White House counsel and longtime friend from Texas, Harriet Miers. But Miers encountered strong opposition from members of Bush’s own party and withdrew her nomination.

On October 31, Bush turned to Alito - and his nomination quickly became an ideological flashpoint. Republicans hailed his Reagan Administration background and conservative record during 15 years of service on the court of appeals.

Meanwhile, Democrats feared that replacing the moderate O’Connor with a reliable right-wing vote would significantly alter the ideological balance of the Court and jeopardize abortion rights, among other precedents.

When the nomination reached the floor of the Senate, Senators Kennedy and John Kerry (MA-D) attempted to block Alito’s confirmation through a filibuster, but Republicans easily prevailed, 72 to 28 - well over the 60 votes needed to end debate. The following day, January 31, the Senate voted 58 to 42 to confirm Alito. Four Democrats voted yes, while only one Republican, Lincoln Chafee (RI-R), opposed. Shortly thereafter, Alito was sworn in as the 110th justice of the Supreme Court.

Court-watchers will have to wait to determine Alito’s impact on the Court. He will only be able to participate in cases in which he has attended oral arguments. If an earlier case is tied 4- to-4, the Court will either let the lower court decision stand or rehear arguments with Alito present.

On-Campus Military Recruiting:
Congress Challenges Law School Antidiscrimination Policies

Is the Solomon Amendment, Which Denies Federal Funds to Universities That Restrict Military Recruiters on Campus, Constitutional?
(Excerpted from Supreme Court Debates, February 2006)

The ban on openly homosexual servicemembers in the U.S. military has been a source of controversy ever since the Clinton Administration implemented the "don't ask, don't tell" policy in 1993. It also has led to a U.S. Supreme Court case that puts an association of law schools in direct legal conflict with the U.S. Government.

Modern relations between the institutions have been colored by a Vietnam War-related conflict during the 1960s, when some colleges banned Reserve Officer Training Corps (ROTC) units from campus. In response, Congress passed a measure in 1968 denying NASA funds to colleges that took action against the military and, in 1972, expanded the law to include all Department of Defense funds.

With the end of the Vietnam War, the military's presence on college campuses became less of a divisive issue - until a 1990 decision by the American Association of Law Schools to prohibit its members from allowing any organization that discriminated on the basis of sexual orientation from recruiting on campus. Some universities viewed this new policy as a requirement that they deny access to the military, which prohibits openly homosexual individuals from serving.

In response, Congress once again turned to the power of the purse to compel universities to open their gates to the military. In 1994, Representative Gerald Solomon (NYR) sponsored a measure that withholds Federal funds from any university with a law school that denies access to military recruiters. In 2001, the George W. Bush Administration expanded the so-called Solomon Amendment to require that universities provide the military with the same services they do other recruiters.

This last provision led a group of law schools - organized under the Forum for Academic and Institutional Rights (FAIR) - law professors, and law students to sue the government, alleging that the Solomon Amendment violated their First Amendment right to freedom of speech.

After a Federal district court ruled against FAIR, the universities appealed to the Third Circuit U.S. Court of Appeals, which ruled that the Solomon Amendment restricted free speech.

The government appealed the decision to the Supreme Court, which granted certiorari on May 2, 2005.

A Court decision against the government, U.S. lawyers warn, could open the door to campus-wide bans on military recruiting, jeopardizing the armed forces in a time of war. FAIR supporters counter that a government victory will only encourage Congress to use its powers to further infringe on free speech. The Court will issue its ruling by the end of spring.

Parental Notification Laws
The Supreme Court Reenters the Abortion Debate

Is New Hampshire’s Parental Notification Prior to Abortion Act Constitutional? (Excerpted from Supreme Court Debates, January 2006)

UPDATE on Jan. 18, 2006: Download the Ruling

For the first time in more than five years, the U.S. Supreme Court is considering an abortion case. At issue is a 2003 New Hampshire law requiring minors to notify a parent or guardian at least 48 hours prior to terminating a pregnancy.

The law includes two exceptions: A doctor can perform an abortion without notification if the procedure is "necessary to prevent the minor’s death" and there isn’t time to notify a parent; and a judge may authorize an abortion by ruling that the minor is mature and capable of giving informed consent, or that waiving the notification requirement is in her best interests. It is the exception that the New Hampshire Legislature did not include, however, that has led to a legal challenge now before the Supreme Court — one allowing doctors to perform abortions without notification to preserve the health of the minor.

On November 17, 2003, Planned Parenthood of Northern New England, a doctor, and a group of New England health centers filed suit against the State of New Hampshire, challenging the constitutionality of the law. To support their case, lawyers for Planned Parenthood focused on two previous Supreme Court cases.

A Federal district court ruled that the absence of a health exception, along with the narrowness of the death exception, made the New Hampshire law unconstitutional. The State appealed, but on November 24, 2004, the First Circuit U.S. Court of Appeals upheld the lower court decision. Once again, New Hampshire appealed, and the U.S. Supreme Court granted certiorari.

Abortion cases are always high drama when they reach the Supreme Court, and Ayotte v. Planned Parenthood of Northern New England, et al., is no exception. Although the case does not directly address the constitutional right to an abortion as set forth in Roe v. Wade (1973) and reaffirmed in Casey, it will be the first time newly appointed Chief Justice John Roberts weighs in on the controversial topic.

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