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http://www.insightmag.com/news/2004/09/27/Politics/The-Court.The.Presidency.And.History-739281.shtml
Insight on the News - Politics
Issue: 9/27/04
The Court, the Presidency and History
By Michael Kirkland
The Supreme Court of the United States, which begins its new term next week -- on the first Monday in October -- casts a shadow over the upcoming presidential election.
The justices intervened in the 2000 election, of course, reversing the Florida Supreme Court and stopping the hand recount of ballots in Florida. Their action ensured that Texas Gov. George W. Bush would be the 43rd president of the United States.
As a result of the U.S. Supreme Court decision, Bush won Florida and its
25 electoral votes by a few hundred popular votes. That gave him 271 votes in the Electoral College, one more than the simple majority needed, and he claimed the presidency, despite Vice President Al Gore's slim lead in the popular vote across the country.
The vote to stop the hand recount in Florida was even closer in the U.S.
Supreme Court. The justices split 5-4 along strictly ideological lines, reinforcing the image of the high court as a subjective political body instead of an objective judicial one.
In the four years since that vote, the more conservative justices in the
five-vote majority have taken considerable heat for allegedly voting their politics instead of the law. Somewhat unfairly, few seem to level that same criticism at the court's four-justice liberal bloc, which voted predictably in dissent.
The ruling caused considerable ill feeling within the court itself,
particularly among the justices' clerks, though the justices themselves have publicly denied it.
Members of the conservative Bush vs. Gore majority, such as Chief
Justice William Rehnquist and Justice Clarence Thomas, also have publicly and privately said the high court took on the case reluctantly. The assertion is probably true. But few doubt the justices would quickly step in to intervene in 2004 if there is a similar controversy that leaves the presidency in doubt, no matter how much they would dread doing so.
How likely will history repeat itself?
A national newspaper, USA Today, pointed out this week that the window of opportunity is wide open.
Voters in one of the key battleground states, Colorado, are considering
an initiative that would allot the state's Electoral College votes proportionately instead of the winner-take-all system now in place. Only two other states, Republican-leaning Nebraska and Democratic-leaning Maine, split their electoral votes between the two major candidates.
Polls show Bush ahead in Colorado, but they also show the initiative
winning approval by a wide margin. If the initiative passes, even if Bush wins the state he would not get all of Colorado's nine electoral votes. Instead, polls show he would get five, with the remaining four going to his main rival, Sen. John Kerry, D-Mass.
If that happens, and if the vote is close overall in the Electoral College, expect Colorado Republicans to mount a fierce court challenge to the initiative, citing the U.S. Constitution's language that gives state legislatures, not the people, the right to allot electoral votes for
president.
Also expect the extended fight to keep the Colorado results in doubt,
and expect the battle to end up in the Supreme Court of the United States.
The presidential election aside, the new term of the Supreme Court has a
number of cases that will affect the legal system and how people in this country live their lives.
The issues range from juvenile murder to medical marijuana.
One of the most closely watched cases will be heard next Monday on the first day of the new term.
The Justice Department is trying to quarantine the spreading effects of
a 6-3 decision last June, Blakely vs. Washington, that officials fear could undo tens of thousands of criminal sentences.
The majority opinion in Blakely, written by Justice Antonin Scalia, says
that besides prior convictions, each fact supporting a harsher sentence for a convicted defendant must either be admitted by the defendant or presented separately to a jury and proved beyond a reasonable doubt.
The decision rests on the Sixth Amendment, which guarantees the criminal
defendant a public trial by jury, the ability to question witnesses who testify against him or her and the right to a lawyer.
Blakely also is the natural progeny of 2000's Apprendi vs. New Jersey, in which a majority of the high court said that any fact increasing the penalty for a crime beyond the maximum prescribed by law must be submitted separately to a jury and proved beyond a reasonable doubt.
Blakely deals with what lawyers call "relevant behavior" and how it is used in sentencing.
In Blakely, a state judge sentenced a husband for kidnapping his wife. Under state law, the kidnapping charge alone would have meant a sentence of up to 53 months. But the Washington state judge, after determining on his own that the kidnapping was committed with "deliberate cruelty," sentenced the husband to 90 months in prison, using the state sentencing
guidelines.
The Supreme Court majority said the separate element of "deliberate
cruelty" had to be submitted to a jury and proved beyond a reasonable doubt -- just like the kidnapping charge -- before the sentence could be extended by the judge.
This summer, the Justice Department filed briefs in two cases saying that Blakely threatened to unravel sentences across the country and was leaving federal judges with little guidance as to whether they could use the U.S. Sentencing Guidelines.
Federal law gives judges broad leeway to impose sentences for many violations. Congress established the U.S. Sentencing Commission to write the guidelines and bring some uniformity to federal sentencing.
The two cases combined for argument next Monday involve similar drug prosecutions, one in Wisconsin (No. 04-104, United States of America vs. Booker) and one in Maine (No. 05-104, United States of America vs. FanFan).
In each case, a judge refused to use the U.S. Sentencing Guidelines to impose a harsher sentence based on facts not submitted to the jury.
Another case set for this term and receiving considerable public attention asks whether it is constitutional to execute a murderer who killed before 18 years of age.
The Supreme Court ruled in 1989 that executing someone who killed at 16 or 17 was not a violation of the Eighth Amendment's ban on cruel or unusual punishments. The high court has outlawed executions of those who killed at 15 or younger.
But members of the court's liberal wing -- Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer -- have indicated they believe executing anyone who killed before 18 is unconstitutional.
An eventual decision in the case may depend on moderate conservative Justice Sandra Day O'Connor to form a 5-4 majority.
The case involves Christopher Simmons, who was 17 in 1993 when he murdered a Missouri woman who recognized him as he and a 15-year-old companion burglarized her house.
The state's highest court, relying on a U.S. Supreme Court decision outlawing the execution of the mentally retarded, ruled that murderers who killed before 18 could not be executed. Missouri then asked the U.S. Supreme Court for review.
Seventeen of the 38 states that have the death penalty do not execute those who killed before 18. As a practical matter, only Texas, Oklahoma and Virginia have executed such inmates within the last 10 years. Of the more than 70 inmates on state death rows who killed before they were 18, a third are in Texas.
The case before the court is No. 03-633, Roper vs. Simmons. It is scheduled to be heard Oct. 13.
Also this term, the justices appear to have reopened the debate on the medical use of marijuana.
In 2001's United States vs. the Oakland Cannabis Buyers' Cooperative, a unanimous Supreme Court said there was no medical-use exception to the federal Controlled Substances Act ban on the growing and distribution of marijuana.
However, the high court has agreed to review a lower-court ruling that
said Congress exceeded its authority when it banned the personal use of medical marijuana.
California has exempted the use of medical marijuana from its criminal laws since a 1996 referendum, and in October 2002 four state residents who use the plant for medical purposes filed suit in federal court against the Justice Department.
The group said marijuana was prescribed by their physicians for severe
conditions.
A federal judge refused to issue an injunction against the Justice Department for continuing to prosecute those using medical marijuana, but a federal appeals court panel issued a temporary order restraining the department, saying the four were likely to win their case on the merits.
The appeals court said Congress, which enacted the Controlled Substances Act under the constitutional clause authorizing it to regulate interstate commerce, exceeded its power under the clause when it included medical marijuana.
The government then asked the Supreme Court for review. The case, No. 03-1454, Ashcroft et al vs. Raich et al., is not yet scheduled for argument.
The Supreme Court also will decide this term whether police may constitutionally use a drug-sniffing dog during a routine traffic stop. The Illinois dispute is the latest in a long stream of cases that seek to determine how police interact with the driving and pedestrian public.
The Fourth Amendment bans "unreasonable" searches.
The case arose in November 1998, when a state trooper stopped Roy Caballes for speeding in LaSalle County, Ill. While the trooper and Caballes were sitting in the patrol car, the officer asked Caballes whether he had ever been arrested and whether police could search his
car. Caballes answered no to both questions, court records show.
However, the trooper discovered from the radio dispatcher that Caballes had two prior arrests for the distribution of marijuana. While the trooper wrote a warning ticket for Caballes in the patrol car, another officer arrived with a drug-detection dog, which "alerted" -- or
indicated the presence of illegal drugs -- at the trunk of Caballes's car. Officers opened the trunk and found a large quantity of marijuana inside.
A state judge refused to suppress the evidence, and Caballes was convicted and sentenced to 12 years and a $256,136 fine, the purported street value of the marijuana.
But a divided Illinois Supreme Court ruled 4-3 that the search was unconstitutional under U.S. Supreme Court precedent in 1968's Terry vs. Ohio.
The U.S. Supreme Court has twice ruled, in 1983 and 2000, that a canine sniff is not a search in the strict sense of the word. However, the Terry ruling does require that police actions falling short of a search -- such as a "pat-down" above the clothes looking for weapons -- be subject to a two-pronged test.
The Terry test asks "whether the officer's action was justified at its
inception" and "whether it was reasonably related in scope to the circumstances which justified the interference (of the police with the suspect) in the first place."
The Illinois court majority said the Caballes stop satisfied the first
prong, but failed the second because officers "impermissibly broadened the scope of the traffic stop" by using the drug-sniffing dog.
Illinois then asked the U.S. Supreme Court to review the case and decide whether the Fourth Amendment "requires reasonable, articulable suspicion" that a crime has taken place "to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop."
The case, No. 03-923, Illinois vs. Caballes, is scheduled to be heard Nov. 10.
Also this term, the Supreme Court agreed to decide whether individuals have a right to sue if they suffer retaliation for complaining about unlawful sex discrimination.
The case, which turns on Title IX of the Education Amendments, involves a girls' basketball coach in Birmingham, Ala.
Title IX says no person may be a target of discrimination based on gender in any education program supported by federal funds. The Supreme Court ruled as early as 1979 that individuals who suffer such discrimination are entitled to sue under the law.
At issue is whether someone who has not been the target of discrimination, but has been the target of retaliation for complaining about such discrimination, also has the right to sue under Title IX.
Roderick Jackson's petition to the Supreme Court says he complained to his supervisors when he discovered that the girls' team was being denied equal funding and equal access to equipment and facilities.
Shortly after those complaints, he began to receive negative evaluations, the petition said. Though he remained employed as aphysical-education teacher, he was relieved of his coaching duties in 2001.
Eventually, a federal appeals court panel said it could find no congressional intent in Title IX that permitted a right to sue for retaliatory conduct. The panel opinion said even if Congress meant to prevent retaliation, that intent would not extend to those who were not
themselves victims of gender discrimination.
Jackson then asked the Supreme Court for review.
The case is No. 02-1672, Jackson vs. Birmingham Board of Education, and is not yet scheduled for argument.
Though plenty of other cases this term deserve attention, one granted review earlier this week could prove truly revolutionary.
The Supreme Court said it would decide whether government could condemn property solely for economic development, a practice occurring in communities across the United States.
In the case before the high court, the City of New London, Conn., has condemned a number of older homes, with the eventual intention of leasing the aggregate property to a development corporation.
The current owners contend that condemning private property for such
development, not to erase slums or blight, violates the Fifth Amendment's limitation that government can only take private property for "public use."
For its part, the city argues that it is condemning the property for "public use" in the strictest sense.
It asks whether "an economically depressed city may satisfy the (Fifth Amendment taking) clause's public-use requirement if that city employs its eminent-domain power to condemn private property in order to reverse decades of economic decline, create thousands of jobs and significantly increase property taxes and other sources of revenue for the city, as long as the proposed condemnation is rationally related to the accomplishment of those goals?"
The justices indicated they would hear the case sometime later this term. The high court should hand down a decision before recessing for next summer.
If the justices decide in favor of the current property owners, the decision would rock city halls and county commissions across the country.
The case is No. 04-108, Kelo et al vs. City of New London and New London Development Corp.
MICHAEL KIRKLAND is the Legal Affairs Correspondent for UPI, a sister news agency of Insight.
http://www.insightmag.com/news/2004/09/27/Politics/The-Court.The.Presidency.And.History-739281.shtml
Insight on the News - Politics
Issue: 9/27/04
The Court, the Presidency and History
By Michael Kirkland
The Supreme Court of the United States, which begins its new term next week -- on the first Monday in October -- casts a shadow over the upcoming presidential election.
The justices intervened in the 2000 election, of course, reversing the Florida Supreme Court and stopping the hand recount of ballots in Florida. Their action ensured that Texas Gov. George W. Bush would be the 43rd president of the United States.
As a result of the U.S. Supreme Court decision, Bush won Florida and its
25 electoral votes by a few hundred popular votes. That gave him 271 votes in the Electoral College, one more than the simple majority needed, and he claimed the presidency, despite Vice President Al Gore's slim lead in the popular vote across the country.
The vote to stop the hand recount in Florida was even closer in the U.S.
Supreme Court. The justices split 5-4 along strictly ideological lines, reinforcing the image of the high court as a subjective political body instead of an objective judicial one.
In the four years since that vote, the more conservative justices in the
five-vote majority have taken considerable heat for allegedly voting their politics instead of the law. Somewhat unfairly, few seem to level that same criticism at the court's four-justice liberal bloc, which voted predictably in dissent.
The ruling caused considerable ill feeling within the court itself,
particularly among the justices' clerks, though the justices themselves have publicly denied it.
Members of the conservative Bush vs. Gore majority, such as Chief
Justice William Rehnquist and Justice Clarence Thomas, also have publicly and privately said the high court took on the case reluctantly. The assertion is probably true. But few doubt the justices would quickly step in to intervene in 2004 if there is a similar controversy that leaves the presidency in doubt, no matter how much they would dread doing so.
How likely will history repeat itself?
A national newspaper, USA Today, pointed out this week that the window of opportunity is wide open.
Voters in one of the key battleground states, Colorado, are considering
an initiative that would allot the state's Electoral College votes proportionately instead of the winner-take-all system now in place. Only two other states, Republican-leaning Nebraska and Democratic-leaning Maine, split their electoral votes between the two major candidates.
Polls show Bush ahead in Colorado, but they also show the initiative
winning approval by a wide margin. If the initiative passes, even if Bush wins the state he would not get all of Colorado's nine electoral votes. Instead, polls show he would get five, with the remaining four going to his main rival, Sen. John Kerry, D-Mass.
If that happens, and if the vote is close overall in the Electoral College, expect Colorado Republicans to mount a fierce court challenge to the initiative, citing the U.S. Constitution's language that gives state legislatures, not the people, the right to allot electoral votes for
president.
Also expect the extended fight to keep the Colorado results in doubt,
and expect the battle to end up in the Supreme Court of the United States.
The presidential election aside, the new term of the Supreme Court has a
number of cases that will affect the legal system and how people in this country live their lives.
The issues range from juvenile murder to medical marijuana.
One of the most closely watched cases will be heard next Monday on the first day of the new term.
The Justice Department is trying to quarantine the spreading effects of
a 6-3 decision last June, Blakely vs. Washington, that officials fear could undo tens of thousands of criminal sentences.
The majority opinion in Blakely, written by Justice Antonin Scalia, says
that besides prior convictions, each fact supporting a harsher sentence for a convicted defendant must either be admitted by the defendant or presented separately to a jury and proved beyond a reasonable doubt.
The decision rests on the Sixth Amendment, which guarantees the criminal
defendant a public trial by jury, the ability to question witnesses who testify against him or her and the right to a lawyer.
Blakely also is the natural progeny of 2000's Apprendi vs. New Jersey, in which a majority of the high court said that any fact increasing the penalty for a crime beyond the maximum prescribed by law must be submitted separately to a jury and proved beyond a reasonable doubt.
Blakely deals with what lawyers call "relevant behavior" and how it is used in sentencing.
In Blakely, a state judge sentenced a husband for kidnapping his wife. Under state law, the kidnapping charge alone would have meant a sentence of up to 53 months. But the Washington state judge, after determining on his own that the kidnapping was committed with "deliberate cruelty," sentenced the husband to 90 months in prison, using the state sentencing
guidelines.
The Supreme Court majority said the separate element of "deliberate
cruelty" had to be submitted to a jury and proved beyond a reasonable doubt -- just like the kidnapping charge -- before the sentence could be extended by the judge.
This summer, the Justice Department filed briefs in two cases saying that Blakely threatened to unravel sentences across the country and was leaving federal judges with little guidance as to whether they could use the U.S. Sentencing Guidelines.
Federal law gives judges broad leeway to impose sentences for many violations. Congress established the U.S. Sentencing Commission to write the guidelines and bring some uniformity to federal sentencing.
The two cases combined for argument next Monday involve similar drug prosecutions, one in Wisconsin (No. 04-104, United States of America vs. Booker) and one in Maine (No. 05-104, United States of America vs. FanFan).
In each case, a judge refused to use the U.S. Sentencing Guidelines to impose a harsher sentence based on facts not submitted to the jury.
Another case set for this term and receiving considerable public attention asks whether it is constitutional to execute a murderer who killed before 18 years of age.
The Supreme Court ruled in 1989 that executing someone who killed at 16 or 17 was not a violation of the Eighth Amendment's ban on cruel or unusual punishments. The high court has outlawed executions of those who killed at 15 or younger.
But members of the court's liberal wing -- Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer -- have indicated they believe executing anyone who killed before 18 is unconstitutional.
An eventual decision in the case may depend on moderate conservative Justice Sandra Day O'Connor to form a 5-4 majority.
The case involves Christopher Simmons, who was 17 in 1993 when he murdered a Missouri woman who recognized him as he and a 15-year-old companion burglarized her house.
The state's highest court, relying on a U.S. Supreme Court decision outlawing the execution of the mentally retarded, ruled that murderers who killed before 18 could not be executed. Missouri then asked the U.S. Supreme Court for review.
Seventeen of the 38 states that have the death penalty do not execute those who killed before 18. As a practical matter, only Texas, Oklahoma and Virginia have executed such inmates within the last 10 years. Of the more than 70 inmates on state death rows who killed before they were 18, a third are in Texas.
The case before the court is No. 03-633, Roper vs. Simmons. It is scheduled to be heard Oct. 13.
Also this term, the justices appear to have reopened the debate on the medical use of marijuana.
In 2001's United States vs. the Oakland Cannabis Buyers' Cooperative, a unanimous Supreme Court said there was no medical-use exception to the federal Controlled Substances Act ban on the growing and distribution of marijuana.
However, the high court has agreed to review a lower-court ruling that
said Congress exceeded its authority when it banned the personal use of medical marijuana.
California has exempted the use of medical marijuana from its criminal laws since a 1996 referendum, and in October 2002 four state residents who use the plant for medical purposes filed suit in federal court against the Justice Department.
The group said marijuana was prescribed by their physicians for severe
conditions.
A federal judge refused to issue an injunction against the Justice Department for continuing to prosecute those using medical marijuana, but a federal appeals court panel issued a temporary order restraining the department, saying the four were likely to win their case on the merits.
The appeals court said Congress, which enacted the Controlled Substances Act under the constitutional clause authorizing it to regulate interstate commerce, exceeded its power under the clause when it included medical marijuana.
The government then asked the Supreme Court for review. The case, No. 03-1454, Ashcroft et al vs. Raich et al., is not yet scheduled for argument.
The Supreme Court also will decide this term whether police may constitutionally use a drug-sniffing dog during a routine traffic stop. The Illinois dispute is the latest in a long stream of cases that seek to determine how police interact with the driving and pedestrian public.
The Fourth Amendment bans "unreasonable" searches.
The case arose in November 1998, when a state trooper stopped Roy Caballes for speeding in LaSalle County, Ill. While the trooper and Caballes were sitting in the patrol car, the officer asked Caballes whether he had ever been arrested and whether police could search his
car. Caballes answered no to both questions, court records show.
However, the trooper discovered from the radio dispatcher that Caballes had two prior arrests for the distribution of marijuana. While the trooper wrote a warning ticket for Caballes in the patrol car, another officer arrived with a drug-detection dog, which "alerted" -- or
indicated the presence of illegal drugs -- at the trunk of Caballes's car. Officers opened the trunk and found a large quantity of marijuana inside.
A state judge refused to suppress the evidence, and Caballes was convicted and sentenced to 12 years and a $256,136 fine, the purported street value of the marijuana.
But a divided Illinois Supreme Court ruled 4-3 that the search was unconstitutional under U.S. Supreme Court precedent in 1968's Terry vs. Ohio.
The U.S. Supreme Court has twice ruled, in 1983 and 2000, that a canine sniff is not a search in the strict sense of the word. However, the Terry ruling does require that police actions falling short of a search -- such as a "pat-down" above the clothes looking for weapons -- be subject to a two-pronged test.
The Terry test asks "whether the officer's action was justified at its
inception" and "whether it was reasonably related in scope to the circumstances which justified the interference (of the police with the suspect) in the first place."
The Illinois court majority said the Caballes stop satisfied the first
prong, but failed the second because officers "impermissibly broadened the scope of the traffic stop" by using the drug-sniffing dog.
Illinois then asked the U.S. Supreme Court to review the case and decide whether the Fourth Amendment "requires reasonable, articulable suspicion" that a crime has taken place "to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop."
The case, No. 03-923, Illinois vs. Caballes, is scheduled to be heard Nov. 10.
Also this term, the Supreme Court agreed to decide whether individuals have a right to sue if they suffer retaliation for complaining about unlawful sex discrimination.
The case, which turns on Title IX of the Education Amendments, involves a girls' basketball coach in Birmingham, Ala.
Title IX says no person may be a target of discrimination based on gender in any education program supported by federal funds. The Supreme Court ruled as early as 1979 that individuals who suffer such discrimination are entitled to sue under the law.
At issue is whether someone who has not been the target of discrimination, but has been the target of retaliation for complaining about such discrimination, also has the right to sue under Title IX.
Roderick Jackson's petition to the Supreme Court says he complained to his supervisors when he discovered that the girls' team was being denied equal funding and equal access to equipment and facilities.
Shortly after those complaints, he began to receive negative evaluations, the petition said. Though he remained employed as aphysical-education teacher, he was relieved of his coaching duties in 2001.
Eventually, a federal appeals court panel said it could find no congressional intent in Title IX that permitted a right to sue for retaliatory conduct. The panel opinion said even if Congress meant to prevent retaliation, that intent would not extend to those who were not
themselves victims of gender discrimination.
Jackson then asked the Supreme Court for review.
The case is No. 02-1672, Jackson vs. Birmingham Board of Education, and is not yet scheduled for argument.
Though plenty of other cases this term deserve attention, one granted review earlier this week could prove truly revolutionary.
The Supreme Court said it would decide whether government could condemn property solely for economic development, a practice occurring in communities across the United States.
In the case before the high court, the City of New London, Conn., has condemned a number of older homes, with the eventual intention of leasing the aggregate property to a development corporation.
The current owners contend that condemning private property for such
development, not to erase slums or blight, violates the Fifth Amendment's limitation that government can only take private property for "public use."
For its part, the city argues that it is condemning the property for "public use" in the strictest sense.
It asks whether "an economically depressed city may satisfy the (Fifth Amendment taking) clause's public-use requirement if that city employs its eminent-domain power to condemn private property in order to reverse decades of economic decline, create thousands of jobs and significantly increase property taxes and other sources of revenue for the city, as long as the proposed condemnation is rationally related to the accomplishment of those goals?"
The justices indicated they would hear the case sometime later this term. The high court should hand down a decision before recessing for next summer.
If the justices decide in favor of the current property owners, the decision would rock city halls and county commissions across the country.
The case is No. 04-108, Kelo et al vs. City of New London and New London Development Corp.
MICHAEL KIRKLAND is the Legal Affairs Correspondent for UPI, a sister news agency of Insight.