Latest Supreme Court Debates

Sentencing Guidelines
The Disparity Between Crack and Powder Cocaine
Can a Judge Disregard Congressionally Sanctioned Federal Sentencing Guidelines for Crack Cocaine Offenses?
(Excerpted from Supreme Court Debates, December 2007)

In 1986, the U.S. Congress passed the Anti-Drug Abuse Act, which mandated sentences for trafficking in crack cocaine that were significantly harsher than for infractions involving similar amounts of powder cocaine. The following year, the U.S. Sentencing Commission issued specific guidelines that included a 100:1 or greater ratio between crack and powder penalties. In other words, a conviction of possession of 5 grams of crack landed a person in jail for a mandatory minimum sentence of five years; it took 500 grams of powder cocaine to yield a similar sentence.

To some, the higher sentence for crack possession was a rational response to a potent drug that was wreaking havoc on inner-city America. For others, it was an unconscionable policy whose effects fall disproportionately on the African-American community.

Now, the U.S. Supreme Court is considering whether a Federal judge can disregard the U.S. Sentencing Guidelines for crack cocaine possession — and the congressional directive behind them.

The case in question began with Derrick Kimbrough’s May 24, 2004, arrest in Norfolk, Virginia, for possession of 56 grams of crack cocaine and 92.1 grams of powder cocaine, as well as a firearm. Following his indictment, Kimbrough pled guilty to all charges. The imprisonment range recommended by the Sentencing Guidelines for the drug offenses was 168 to 210 months, for a total of 19 to 22 years in jail. Noting that such a sentence was “ridiculous,” District Judge Raymond Jackson gave Kimbrough the statutory minimum of 10 years (in addition to five years for the firearms sentence).

Kimbrough appealed to the U.S. Supreme Court, which granted certiorari on June 11, 2007, and heard oral arguments on October 2.

During arguments, lawyers for the United States countered claims by Kimbrough and Judge Jackson that the higher sentences for crack violations where optional.

Kimbrough’s lawyers responded that while Congress had not yet explicitly endorsed reversing the 100:1 ratio, neither had it endorsed the premise that crack sentences should “generally exceed” those of powder cocaine.

Kimbrough v. United States poses an interesting test for the newly constituted Supreme Court, which has an opportunity to review the impact of Booker and its earlier sentencing-guideline cases.

While the legal implications of this case are significant, the controversial topic of Federal sentences in drug cases took a decisive turn in November, when the deadline for Congress to reverse a May decision by the U.S. Sentencing Commission to reduce the sentence ranges for crack cocaine violations passed. Although Judge Raymond Jackson had his decision reversed in this case, his views on crack cocaine sentencing are now closer to the law of the land.

The President's Treaty Power
Enforcing International Court of Justice Decisions
Must State Courts Comply With the International Court of Justice’s Avena Judgment?
(Excerpted from Supreme Court Debates, November 2007)

For the second year in a row, the Supreme Court addresses U.S. obligations under the Vienna Convention on Consular Relations and the power of the International Court of Justice (ICJ).

On June 28, 2006, the Court ruled in Sanchez-Llamas v. Oregon that even if foreign nationals are not informed of their right to contact their home country’s consulate following their arrest, evidence gathered prior to such notification is still admissible in court. The court decided this way despite the ICJ decision in the Case Concerning Avena and Other Mexican Nationals that U.S. appellate courts should review whether lack of consular notification affected a defendant’s trial.

Now, however, the stakes are higher. The Court is considering the case of José Ernesto Medellín, one of the individuals named in the ICJ’s Avena decision. According to the Optional Protocol of the Vienna Convention, of which both the United States and Mexico are signatories, the ICJ has jurisdiction over disputes. As a result, unlike in Sanchez-Llamas, the U.S. Government is siding with the defendant — and arguing that the lower courts must reconsider the convictions and sentences of the 52 individuals named in Avena.

The case began on June 29, 1993, when José Medellín was arrested by Houston police on suspicion of having taken part in the gang rape and murders of 14-year-old Jennifer Ertman and 16-year-old Elizabeth Peña. After two hours in custody, and having been informed of his Miranda v. Arizona (1966) rights, Medellín provided police with a written confession to the crime. He was not, however, informed of his right to contact the Mexican consulate. The following year, Medellín was convicted of capital murder and sentenced to death.

During arguments, Medellín’s lawyer contended that the United States was obligated under the Optional Protocol — a treaty signed by the president and ratified by the Senate in 1969 — to respect the Avena decision. And the fact that President Bush — who is authorized to conduct foreign policy by the U.S. Constitution — had issued a memorandum stating that the United States would comply makes the case that much clearer.

The Texas solicitor general countered that neither an international court such as the ICJ nor the Federal Government could interfere with State judicial proceedings. The Texas Court of Appeals had followed its rules in determining that Medellín did not have grounds to challenge his conviction, and that determination must be respected.

The Court will likely be closely divided when it issues a decision on this case sometime next year. In Sanchez-Llamas, the court voted 6 to 3 in favor of Oregon. But during the Medellín arguments, Justice Ginsburg — who had previously sided with the majority — appeared sympathetic to the Petitioner. Like many recent cases, this one may come down to how Justice Kennedy votes.

Gender in the Workplace
Pay Discrimination and Title VII of the Civil Rights Act
Can an Employee Use Title VII of the Civil Rights Act to Sue a Company for Discriminatory Salary Decisions Occurring Outside the Charge-Filing Period?
(Excerpted from Supreme Court Debates, October 2007)

Title VII of the Civil Rights Act of 1964 prohibits discrimination “against any individual with respect to his compensation ... because of such individual’s race, color, religion, sex, or national origin.” The law, however, does not give employees unlimited time to file charges against employers they believe are discriminating. Under Section 706(e), an individual must file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) “within 180 days after the alleged unlawful employment practice occurred.”

This time limit was at the center of a recent Supreme Court case that left the Court sharply divided over when, exactly, a discriminatory pay practice occurs and what legal remedies are available to those who believe they have been wronged.

The case began in 1998, when Lilly Ledbetter, a 60-year-old employee at the Goodyear Tire & Rubber Company factory in Gadsden, Alabama, received an anonymous note. From the note, Ledbetter learned that she had been receiving significantly less pay than her male coworkers. In 1979, when she started at the plant, Ledbetter’s pay had been equal to that of her male peers — but over the course of the next 19 years, a disparity slowly emerged.

Later that year, Ledbetter filed suit against Goodyear, alleging pay discrimination under Title VII. After trial, an Alabama jury found in favor of Ledbetter and awarded her $223,776 in back pay, $4,662 for mental anguish, and $3,285,979 in punitive damages. The judge reduced the total amount to $360,000.

Goodyear appealed to the Eleventh Circuit U.S. Court of Appeals, which struck down the district court award and threw out the case on August 23, 2005, holding that none of the discriminatory pay decisions cited by Ledbetter took place within the 180-day time limit imposed by Title VII. Ledbetter appealed to the U.S. Supreme Court, which granted certiorari on June 26, 2006.

On May 29, 2007, the Court decided 5 to 4 in favor of Goodyear.

The Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc. effectively makes it much more difficult for individuals to file pay discrimination charges. Legislation is pending in Congress to extend the filing period in Title VII beyond the current 180-day limit.

Regulating Campaign Advertising
The Court Reconsiders the McCain-Feingold Act
Is the Bipartisan Campaign Reform Act’s Limit on “Electioneering Communications” by Corporations and Labor Unions Constitutional?
(Excerpted from Supreme Court Debates, September 2007)

In McConnell v. Federal Election Commission (FEC) (2003), the U.S. Supreme Court upheld the constitutionality of the Bipartisan Campaign Reform Act of 2002 (BCRA), which, among other provisions, regulated so-called “soft money” contributions to political parties and the funding and timing of television issue ads. While the decision was praised by supporters of campaign finance reform, it has been far from the last word on the law’s constitutionality. This year, the provision of the BCRA governing issue ads was once again before the Supreme Court.

This time, the Court looked at how the BCRA was applied to a specific organization — Wisconsin Right to Life (WRTL) — and the television advertisements it tried to run calling for a campaigning U.S. senator, Russell Feingold (WI-D), to oppose filibusters of President Bush’s judicial nominations. The FEC had blocked the airing of the ads because they were funded by corporate contributions, directly referenced Senator Feingold, and were scheduled to air less than 60 days before the election.

During oral arguments on April 25, lawyers for the FEC and the supporting politicians argued that WRTL’s advertisements were clearly designed to affect the outcome of Senator Feingold’s election.

Lawyers for WRTL countered that the BCRA was essentially a measure crafted by incumbent politicians to shield themselves from issue lobbying under the guise of campaign reform.

On June 25, 2007, the Supreme Court ruled 5 to 4 that WRTL’s advertising did not run afoul of the BCRA. While Chief Justice Roberts, writing for the majority, did not explicitly rule that the issue ad provision of the BCRA was unconstitutional, his holding gives corporate and union groups like WRTL much greater latitude in airing television advertisements during campaign periods. The right of organizations to be able to lobby government officials on public policy issues, he reasoned, outweighs the interests of the government in preventing possible influence on Federal campaigns.

That the Court’s decision in FEC v. WRTL could be so different from the earlier McConnell decision is a reflection of the realities of the new Roberts Court, where Justice Alito has replaced Justice O’Connor, the moderate swing voter. In nearly all of the closely contested cases this term — including this one — the Court has tilted toward the conservative side. Although the lasting impact of President Bush’s two appointments to the High Court has yet to be determined, early results indicate that the balance has tilted noticeably to the right.

Student Speech
The First Amendment at School
Does the First Amendment Allow Public Schools to Prohibit Students From Displaying Messages Promoting Drugs at School-Sponsored Events?
(Excerpted from Supreme Court Debates, May 2007)

On January 24, 2002, during a school-sanctioned viewing of the Olympic Torch Relay, Juneau-Douglas High senior Joseph Frederick held up a sign that read “Bong Hits 4 Jesus” across the street from his school. Five years later, nine U.S. Supreme Court justices debated what the sign meant — and whether Frederick’s First Amendment rights were violated when the school’s principal made him take it down.

Since 1968, student speech has been governed by Tinker v. Des Moines Independent Community School District, a landmark case in which the Court ruled that a school cannot prohibit students from wearing black armbands as a symbolic protest against the Vietnam War. Students, wrote Justice Fortas for the majority, “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

In the intervening years, the Supreme Court has narrowed its broad guarantee of student free speech to some extent. In Bethel School District No. 403 v. Fraser (1986), the Court held that a school could punish a student for a sexually suggestive speech given to classmates because it was “offensively lewd and indecent” and could interfere with a school’s educational mission. Two years later, the Court ruled in Hazelwood School District v. Kuhlmeier (1988) that a school could censor controversial articles in a student newspaper.

Now, the Court must consider whether Frederick’s actions are more like the student protests in Tinker or the disruptive speech in Bethel.

The Court seemed torn over whether or not Frederick’s admittedly nonsensical sign deserved protection under the First Amendment. The justices did seem to agree, however, that the precedent in this case is unclear, which likely means that even if they find in favor of Frederick, he will not be allowed to sue the principal for damages.

Police Chases
The Constitutionality of Using Lethal Force to Stop a Fleeing Suspect
Is a Police Officer’s Use of Force to End a High-Speed Pursuit Reasonable?
(Excerpted from Supreme Court Debates, April 2007)

High-speed police chases make for exciting scenes in movies and on television. But every time law enforcement engages a fleeing suspect, there is the potential for the chase to end in tragedy for police, innocent bystanders, and suspects, and to ignite legal issues that can persist long after the original pursuit concludes.

Such is the case with a chase that began on the night of March 29, 2001, in Coweta County, Georgia, when a deputy serving as backup to an impending drug sting clocked Victor Harris’s car at 73 miles per hour (mph) in a 55 mph zone. The officer flashed his lights at Harris, but the 19-year-old didn’t slow down. The officer pursued Harris’s car through rural highways, the parking lot of a local shopping center, and city streets. During the chase, which lasted for six minutes and covered approximately nine miles, Harris repeatedly ran red lights and reached speeds of up to 90 mph.

The pursuit ended when a deputy who had joined in the chase, Timothy Scott, requested permission from his dispatcher to attempt a PIT (pursuit intervention technique) maneuver, in which he would use the front bumper of his police cruiser to push the back side of Harris’s car into a spinout. Although he received approval, Harris was driving too fast for Scott to make the PIT attempt, so the deputy instead waited for a clear, straight stretch of freeway and then rammed Harris’s car on the bumper. Harris lost control of his vehicle and, in the ensuing crash, was paralyzed from the neck down.

The case eventually ended up before the U.S. Supreme Court, which granted certiorari on October 27, 2006.

During oral arguments, lawyers for Scott contended that for the deputy to be held civilly liable for his on-the-job actions, his conduct had to violate a constitutional right and every reasonable law enforcement officer would have to know that such conduct was counter to clearly established law. In this case, neither condition was met.

Harris’s lawyers countered that Supreme Court precedent clearly shows that ramming a car during a high-speed chase is using lethal force and that established law prevents the use of lethal force in instances where a suspect is fleeing from police.

During oral arguments, many of the nine justices sounded taken aback by the videotapes of the chase. Justice Scalia compared it to a scene in the movie “The French Connection.” But unlike in the movies, the story of this chase will end not in closing credits, but with a decision issued by the highest court in the land. Whether the justices pin responsibility for the outcome on the fleeing suspect or on the police who chased him and initiated the crash remains to be seen.

Global Warming
Legal Battles Over Greenhouse Gas Regulation
Can the Environmental Protection Agency Regulate Greenhouse Gases Under the Clean Air Act?
(Excerpted from Supreme Court Debates, March 2007)

The issue of global climate change has become one of the central environmental controversies of our time. Scientific evidence continues to mount that the Earth is getting warmer, but activists, politicians, and industry groups disagree on the seriousness of the problem, whether it is caused by human activities, and whether proposed responses will be effective.

Although many nations have taken steps to regulate the emission of greenhouse gases, such as carbon dioxide (CO2), suspected to be responsible for global warming, the United States has yet to ratify the key international agreement on the issue, the Kyoto Protocol to the UN Framework Convention on Climate Change, or to take other Federal action.

In an effort to force the issue, environmental groups and some States have looked to existing law for authority to regulate greenhouse gases. On October 20, 1999, a group led by the International Center for Technology Assessment filed a rulemaking petition asking the Environmental Protection Agency (EPA) to regulate emissions of CO2, methane, nitrous oxide, and hydrofluorocarbons from new motor vehicles under the Clean Air Act (CAA). Over the course of the next four years, the EPA held hearings and consulted its legal counsel on the applicability of the CAA to greenhouse gas emissions. Although the EPA during the Clinton Administration initially ruled that the agency could issue such regulations, on August 28, 2003, the Bush Administration’s EPA administrator ruled that the CAA does not grant the EPA such authority and stated that, even if it did, the agency would not exercise it.

Even if the Court disagrees with the politics, the accuracy of the science, or the effectiveness of limiting carbon emissions, supporters argue the EPA has clear authority to regulate “airborne pollutants,” such as greenhouse gases.

Lawyers for the EPA — along with those representing several States and the interests of greenhouse gas-emitting industries — counter that the Petitioners in this case didn’t have standing to file suit because they couldn’t conclusively demonstrate that automobile emissions were causing harm.

This case represents the Supreme Court’s first foray into the contentious debate over global warming, but it is only one step in what will surely be an ongoing legal battle. If the Court rules in favor of the Petitioners, lower court cases challenging EPA regulation of utilities and other greenhouse polluters will have a much greater likelihood of success.

If, on the other hand, the EPA prevails, pressure on Congress will continue to mount to pass legislation directly authorizing the agency to issue regulations — or at least granting States greater flexibility to regulate greenhouse gas emissions on their own.

Political Advocacy by Unions
The Constitutionality of Unauthorized Use of Nonmembers’ Fees
Can Labor Unions Take the Wages of Non-Union Employees and Use Them for Political Purposes Without Permission?
(Excerpted from Supreme Court Debates, February 2007)

Unions, and the money they control, are key players in the modern American political process. Because in some professions union dues or equivalent fees are compulsory, the U.S. Supreme Court has ruled that payers can request that the percentage of their dues used for political purposes be returned to them.

This “opt out” right was first affirmed by the Court in International Association of Machinists v. Street (1961) and reinforced by Railway Clerks v. Allen (1963).

In 1992, voters in the State of Washington approved the Fair Campaign Practices Act, a broad reform of State election law that contained a novel “opt in” provision, Section 760, which required a public-sector employees’ union to obtain the permission of nonmembers before using a portion of the nonmembers’ agency fees for purposes not related to collective bargaining.

Despite this new law, the Washington Education Association (WEA), the official union of more than 70,000 State public school teachers, continued to require nonmembers to request a fee refund. After a conservative think tank filed a complaint with the State against the union in August 2000, the State of Washington sued WEA two months later. A trial court found in favor of the State and fined WEA a total of $590,375 for violations of Section 760. WEA appealed, the case was consolidated with a class-action suit filed by five non-union teachers, and, on June 24, 2003, the State court of appeals ruled that Section 760 placed an unconstitutional burden on the union’s rights to free speech and association. The teachers and the State then appealed, and on March 16, 2006, a 6-to-3 majority upheld the appellate court’s decision.

Washington and the teachers then appealed to the U.S. Supreme Court, which granted certiorari on September 26, 2006.

During oral arguments, lawyers for Washington argued that an opt-in provision gives the free speech rights of the individual the protection they deserve.

Lawyers for WEA countered that the Washington Supreme Court should be given deference in interpreting State law.

The importance of the case, however, lies in whether the Court’s prior rulings on union political speech determine the maximum that States can do to restrict political use of dues and fees or just the minimum.

Race in Public Education
School Busing in Post-Segregation America
Is the Jefferson County Public Schools' Desegregation Plan Unconstitutional?
(Excerpted from Supreme Court Debates, January 2007)

In the landmark 1954 case Brown v. Board of Education the U.S. Supreme Court ruled that the principle of "separate but equal" in public education was inherently unconstitutional. In the decades that followed, Federal courts instituted mandatory desegregation plans that required public school districts to bus children, sometimes across town, to achieve racial balance in their classrooms.

The mandatory desegregation plans were not intended to be permanent, and over the past decade, many school districts and their residents have successfully petitioned the courts to do away with them. In 2000, in Louisville, Kentucky, a Federal court suspended a 1975 desegregation mandate. Although no longer under court order, the Jefferson County Board of Education decided to continue a similar plan intended to prevent its schools from becoming resegregated. While children were given preference to attend nearby schools, the Board's plan required that no school in the district have a black population of under 15 percent or over 50 percent.

In 2002, four parents of Louisville children who were not allowed into their school of choice sued the Jefferson County School District, alleging that the Board's plan violated the Fourteenth Amendment to the Constitution when it used race as the determining factor in assigning students to schools.

On June 29, 2004, a Federal district court upheld the Jefferson County plan, stating that it did not constitute a quota system, but rather used race, along with a variety of other factors, in assigning students to their schools. Crystal Meredith, one of the parents, appealed the case to the Sixth Circuit U.S. Court of appeals, which ruled on July 21, 2005, in favor of the School Board.

Meredith then appealed to the U.S. Supreme Court. During oral arguments, lawyers for Crystal Meredith argued that the Jefferson County plan posed an undue burden on her child, who was forced to attend school across town solely because of his race.

Lawyers for the Jefferson County Board of Education countered that their student assignment plan was a reasonable and narrowly tailored method of ensuring that its schools did not become resegregated.

This case presents an interesting contradiction: A school district is facing a court challenge to a desegregation plan that had been imposed upon it by a court to begin with.

View 2007 Debates