In the death penalty case argued before th ecourt on Wednesday, Justice Kennedy emerges as an important figure.

With questions and comments from the justices revealing an even split along liberal-conservative lines, the outcome could depend on Justice Anthony M. Kennedy, the centrist who is the court's swing voter now that Sandra Day O'Connor has retired.

Kennedy was in no mood for joking as he weighed Florida death row inmate Clarence E. Hill's contention that the three-drug injection used by Florida, 36 other states and the federal system risks harsh but undetectable pain.

When his colleagues engaged in some light banter, as they often do during oral arguments, Kennedy interrupted: "This is a death case. It's not that amusing."

This is a role some think Kennedy likes to play: rather than shrink from judicial power, he enjoys it. Here is a lengthy excerpt from an opinion piece earlier this month in the New York Times, Anthony Kennedy Is Ready for His Close-Up, that should resonate with us as we are reading Keck:

When the right cases reach the court, Justice Kennedy could provide the deciding vote to declare campaign finance restrictions of all kinds unconstitutional, to end affirmative action and to uphold greater limitations on abortion rights. He may well relish the chance to finally get his way on these issues. But there are also reasons to believe that, at least in some cases, he may not.

For one thing, there are signs that his views are evolving. Last year, he wrote the decision ending the juvenile death penalty, reversing his 1989 position. And he has become an increasingly strong advocate for taking international law into account, to the distress of many conservatives.

He is also someone who cares what other people think. The Supreme Court scuttlebutt has always been that he is open to persuasion by colleagues, and even law clerks. It is sometimes said condescendingly, but there is something refreshing about a justice who genuinely seems to have an open mind. When he switched sides on the juvenile death penalty, he wrote a thoughtful opinion noting both that the American people had turned against it and that "the overwhelming weight of international opinion" opposed it.

Perhaps most important, it is not yet clear how Justice Kennedy will be changed by his vastly expanded influence. Justice O'Connor was very aware of her position as the swing justice, and it made her deeply aware of the impact her votes had on real people's lives. Justice Kennedy may inherit that mantle of concern. It is one thing to argue in dissent that campaign finance laws violate the First Amendment. It is quite another to cast the vote that prevents a nation weary of lobbying scandals from trying to clean up its elections.

the Court is back in session!

Court Weighs Procedural Issue in Death Row Lawsuit

By Charles Lane
Washington Post Staff Writer
Thursday, April 27, 2006; A10

Few issues test the Supreme Court's unity more than the death penalty, and the justices' deep disagreements were evident yesterday during oral argument on the rights of death row inmates to challenge lethal injection as a cruel and unusual punishment.

This ends up being a procedural issue:

But the precise issue before the court is not whether lethal injection is unconstitutional. Rather, it is a related procedural question: Should courts treat a prisoner's assertion that a particular method of execution is unconstitutional as a federal civil rights lawsuit, as Hill argues, or as a petition for habeas corpus, as Florida says?

The question is critical, because Congress has put strict limits on habeas corpus claims but not on civil rights suits.

We have seen this before with property: when the notion of vested rights is foreclosed, people turn to the contract clause. when contract clause litigation is foreclosed, people turn to due process. When due process litigation is foreclosed, people turn to limits on takings, and limits on congressional commerce power.

Specter and the Courts

In Tuesday's Washington Post, Senate Judiciary Chair Arlen Specter has an editorial about the Court, tee-vee cameras, and branch relations.

He responds to Justices' Thomas and Kennedy's testimony before congress to leave cameras out of the court: "respect us," they say. To which he responds, "But does the Supreme Court respect Congress?"

Highlights:

Within the past decade the court has expanded its super-legislature status by invalidating legislation it dislikes, plucking out of the air a brand-new doctrine that acts of Congress are "disproportionate and incongruent," whatever that means. That led Justice Antonin Scalia to admonish his colleagues for setting the court up as a "taskmaster" to determine whether Congress has done its "homework," a situation that he saw as an "invitation to judicial arbitrariness and policy-driven decision-making."

If the public understood the extent of the court's power, perhaps the electorate would insist that Congress do its job on a variety of issues -- including desegregation, Guantanamo Bay detainees, eminent domain and defendants' rights -- instead of punting to the court. Or perhaps the public would insist that our presidents nominate justices with sensitivity to these matters.

Silver Tongues

the human side of judging, from USA Today, via the Wall Street Journal's Law Blog:

Justices' mixed phrases on tip of silver tongues
Posted 4/16/2006 10:35 PM ET
By Joan Biskupic, USA TODAY
WASHINGTON — At the Supreme Court, a popular stop for visitors to the nation's capital each spring, the justices have a language all their own during oral arguments. But amid lofty phrases like res judicata are attempts by the justices and lawyers to bring the discussion down to earth.

That's when metaphors can get mixed, expressions become strange, or a turned phrase just keeps on turning — often prompting giggles from spectators in the red upholstered benches. Courtroom arguments offer plenty of evidence, and they resume today as the justices return from a two-week recess.

Examples follow.

More Law and Order:

Human fallibility and the power and self interest of the government are major reasons I fall into the Due Process Model camp. Here are several headlines that add to the post below:

1.

April 19, 2006
Study Fuels Debate Over Police Lineups
By KATE ZERNIKE

The police lineup is a time-honored staple of crime solving, not to mention of countless cop movies and television shows like "Law and Order." Each year, experts estimate, 77,000 people nationwide are put on trial because witnesses picked them out of one.

In recent years many states and cities have moved to overhaul lineups, as DNA evidence has exposed nearly 200 wrongful convictions, three-quarters of them resulting primarily from bad eyewitness identification.

In the new method, the police show witnesses one person at a time, instead of several at once, and the lineup is overseen by someone not connected to the case, to avoid anything that could steer the witness to the suspect the police believe is guilty.

But now, the long-awaited results of an experiment in Illinois have raised serious questions about the changes. The study, the first to do a real-life comparison of the old and new methods, found that the new lineups made witnesses less likely to choose anyone. When they did pick a suspect, they were more likely to choose an innocent person.

Author Zernike is the Times' crime reporter, and a search ot eh Times' site reveals similar types of articles:

2.

Cultural Differences Complicate a Georgia Drug Sting Operation

By KATE ZERNIKE
Published: August 4, 2005

ROME, Ga., July 29 - When they charged 49 convenience store clerks and owners in rural northwest Georgia with selling materials used to make methamphetamine, federal prosecutors declared that they had conclusive evidence. Hidden microphones and cameras, they said, had caught the workers acknowledging that the products would be used to make the drug.

But weeks of court motions have produced many questions. Forty-four of the defendants are Indian immigrants - 32, mostly unrelated, are named Patel - and many spoke little more than the kind of transactional English mocked in sitcoms.

So when a government informant told store clerks that he needed the cold medicine, matches and camping fuel to "finish up a cook," some of them said they figured he must have meant something about barbecue.

3.

Executed Man May Be Cleared in New Inquiry
By KATE ZERNIKE
Published: July 19, 2005

ST. LOUIS, July 18 - The corner of Sarah and Olive looks almost nothing as it did 25 years ago when a 19-year-old drug dealer named Quintin Moss was gunned down from a slow-moving car. The boarded-up houses have been replaced by a new townhouse development marked by sleek stone gates; the drug dealers and prostitutes are gone.

"Every prosecutor conceptually has the notion that someone innocent can be convicted," said Jennifer Joyce, the St. Louis circuit attorney.

And the man convicted of the killing, Larry Griffin, was executed 10 years ago.

Yet the city's top prosecutor has decided to re-investigate the murder as if it just happened, out of new concerns that the wrong man may have been put to death for the crime.

Recent Law and Order Headlines

1. Supreme Court hears arguments: does Arizona's restrictive insanity defense violate due process?

Supreme Court to Review Insanity Defense

By Charles Lane
Washington Post Staff Writer
Thursday, April 20, 2006; A06

The Supreme Court embarked on a potentially far-reaching review of the insanity defense yesterday, as the justices heard oral arguments in the case of an Arizona man, Eric Michael Clark, who was suffering from paranoid schizophrenia at the time he shot a police officer to death.

At issue in the case is whether Arizona's version of the insanity defense, which requires defendants to prove with "clear and convincing" evidence that they were too mentally ill to understand that their conduct was wrong, is so narrow that it violates the constitutional right to due process of law.

the case is further discussed at SCOTUSblog, before it was argued, and after

2. Recalling Crime Control Model and Due Process Model:

Wrongful Conviction Prompts Detroit Police to Videotape Certain Interrogations
By JEREMY W. PETERS (NYT) 966 words
Published: April 11, 2006

DETROIT, April 10 - The Detroit Police Department, whose image has been marred for years by complaints of wrongful detentions, the excessive use of force to obtain confessions and other civil rights abuses, has agreed to videotape interrogations of all suspects in crimes that carry a penalty of life in prison without the possibility of parole.

Detroit's police chief, Ella Bully-Cummings, said she viewed the new policy as a way to reform her department, which is operating under two consent decrees with the Department of Justice.

The videotaping, part of a settlement of a lawsuit brought by the family of a mentally ill man who spent 17 years in prison after confessing to a rape and murder that he did not commit, is expected to be in place within six months.

Many readers will find it interesting a person will confess to crimes they do not commit. Its not at all rare. And the story in this case is typical: a low functioning "suspect."

In early 1984, Mr. Lloyd, a patient at the Detroit Psychiatric Institute who suffered from delusions that he had a special ability to solve crimes, sent a letter to the police saying he wanted to help in the investigation of the killing of Michelle Jackson, 16, the latest victim in a rash of several dozen rapes and murders. It was similar to other letters he had written, falsely claiming he knew things that would allow the police to solve heinous and well-publicized cases.

But this time, the police said, the letter mentioned details of Ms. Jackson's murder that had not been made public, and Mr. Lloyd quickly shot to the top of the list of suspects.

Mr. Lloyd's lawyers have said the police interrogated him at the hospital, fed him details of the crime and convinced him that confessing would help them find the real killer. At his sentencing, Judge Leonard Townsend of the Circuit Court in Wayne County said he regretted that Michigan had abolished the death penalty. ...

3. Lethal Injections:

Citing Risk of Missteps, Judges Set Hurdles for Lethal Injection
By ADAM LIPTAK (NYT) 1281 words
Published: April 12, 2006

Judges in several states have started to put up potentially insurmountable roadblocks to the use of lethal injections to execute condemned inmates.

Their decisions are based on new evidence suggesting that prisoners have endured agonizing executions. In response, judges are insisting that doctors take an active role in supervising executions, even though the American Medical Association's code of ethics prohibits that.

4. SCOTUSblog has a posting on Tuesday's oral argument involving the 6th amendment right to counsel -- does that include the right to have the counsel of your choosing?

As per Law.com:

In the case before the Court, a Missouri federal trial judge barred the first-choice California lawyer of drug-conspiracy defendant Cuauhtomec Gonzalez-Lopez, leaving him with a St. Louis lawyer who had never argued a criminal case, and lost. The 8th U.S. Circuit Court of Appeals tossed out Gonzalez-Lopez's conviction, ruling that the judge's improper exclusion of the first lawyer amounted to a structural defect that warranted automatic reversal of the conviction.

Deputy Solicitor General Michael Dreeben argued that reversal should not be so automatic, urging that some kind of inquiry be required to determine if the rejection of a first-choice lawyer prejudices the outcome of a case, especially when the replacement lawyer is competent.

From segregation to desegregation to integration to segregation?

Omaha schools split along race lines

By SCOTT BAUER
Associated Press Writer

LINCOLN, Neb. (AP) -- In a move decried by some as state-sponsored segregation, the Legislature voted Thursday to divide the Omaha school system into three districts - one mostly black, one predominantly white and one largely Hispanic.

Supporters said the plan would give minorities control over their own school board and ensure that their children are not shortchanged in favor of white youngsters.
...

Attorney General Jon Bruning sent a letter to one of the measure's opponents saying that the bill could be in violation of the Constitution's equal-protection clause and that lawsuits almost certainly will be filed.

But its backers said that at the very least, its passage will force policymakers to negotiate seriously about the future of schools in the Omaha area.

"Brief Means Brief"

As referenced in class, a link to a court decision by a California appeals court that lambasts the appellant's attorney for writing a horrible 202 page brief. The opinion says [PDF]

"This is an appeal run amok. Not only does the appeal lack
merit, the opening brief is a textbook example of what an appellate
brief should not be...[the brief] is painful to read and difficult to understand...[and] is heavy on words but light on analysis."

The Court and Foreign Sources, continued

Kennedy's Assault on Editorial Writers

By Charles Lane
Monday, April 3, 2006; Page A17

Although the Supreme Court tries to make its opinions as clear and convincing as possible, its decisions do occasionally come in for criticism on the editorial pages of the nation's newspapers.

For the most part, the court has absorbed its negative reviews stoically. But one justice, Anthony M. Kennedy, apparently has had enough of the slings and arrows. Lately, he has been publicly lashing out at editorialists who, he says, write as if they have not even read the court's opinions.

Last week, he addressed the American Society of International Law in Washington. In response to a question about how the organization could enhance public understanding of the role of foreign law in Supreme Court opinions -- a controversial topic of late -- Kennedy replied: "One thing you can do is suggest to editorial writers that they read the opinions before they write their editorials."

Social scientisits have long understood dissemination of rulings is problematic. Is the Supreme Court really considering making the pledge of allegiance illegal? Has it told students they may not pray in school?

Some of the court cases that seem silly in fact are silly, as "implemeters" err on the side of caution, and thus end up being sued.

Fourth Amendment Issues

From the Seattle Times, Friday 31 March, 2006

Lawsuit threat ends use of dogs for random school searches

By The Associated Press

NINE MILE FALLS, Wash. – The threat of a lawsuit has ended the use of dogs for random drug searches in the middle and high schools of this town northwest of Spokane, officials said.

Dogs from Interquest Detection Canines were wrong about 85 percent of the time they indicated something was amiss at the start of the program in January 2004, but the main issue was the students' constitutional rights, according to the American Civil Liberties Union of Washington and the Center for Justice, which announced the change Thursday.

From the Kansas City Star, Sunday 26 March 2006:

Mobile print policy clarified
By BENITA Y. WILLIAMS
The Kansas City Star

Simple traffic stops will not be enough for police officers to demand on-the-spot fingerprint scans when portable devices are tested in the coming months, Kansas officials say.

“If you’re pulled over for speeding, the law doesn’t allow me to take your fingerprint,” said Attorney General Phill Kline. “If you’re wanted or a fugitive, then I can arrest you because there’s a bench warrant. Then we take fingerprints to ensure identification, that you are the person who is wanted.”

He said the same rules would apply to the mobile scanners.

Kline and other state officials clarified how the devices would be used after concerns arose last week that police would use them anytime they stop someone for a traffic violation. The devices were unveiled Tuesday. Kansas law allows police to take fingerprints from people arrested under a list of circumstances,

click through to see if you qualify.

Constitutional Law and Foreign sources, continued

This is a lengthy email on a Law and Courts Discussion list, by someone much more versed than me about international (Kim Scheppele)

the international influence was a factor in Lawrence v. Texas(2003)]
European Court of Human Rights decisions were cited in the text, not just as ornament, but as persuasive authority for the point that "Western civilization" (which presumably includes the 45 countries that are under the jurisdiction of that court) has largely come to the view that anti-gay laws are mere prejudice not historic morality. It has been less noticed, but in Ginsburg's concurrence in Grutter (joined by Breyer) earlier in the week, she cites not only the International Convention for the Elimination of All Forms of Racial Discrimination (which the US has ratified) but also the Convention for the Elimination of Discrimination against Women (which the US has not).

The brief (PDF)urging the international arguments in Lawrence was submitted to the Court with Harold Koh as Counsel of Record and with able research assistance from a group of students at the Yale Law School. It reviewed the significant international jurisprudence in favor of striking down anti-sodomy laws (the Colombian and South African Constitutional Court decisions are particularly bold) and shows how many countries have acknowledged that gay rights are human rights. And it also compiles a wonderful collection of quotations from some of the current justices (some in opinions, some in speeches) about the need to look at international sources. For those who haven't seen the brief (or who haven't been part of the substantial conversations in comparative constitutional law where gay rights have been triumphing in jurisdiction after jurisdiction), ...

And it is true that US Supreme Court justices have been getting progressively more criticism from their fellow justices elsewhere for being so parochial. At international conference after international conference, judges from other courts can cite chapter and verse of US Supreme Court decisions but the US justices barely know the jurisdictional rules for these other courts. Perhaps Lawrence is one way to redress the balance just before a number of them head off for other countries and this year's round of (perhaps less) embarrassing summer meetings with judges from other courts..

Constitutional Law and Foreign Sources

In class we discussed this relative to the death penalty for offenders under 18 and for the mentally retarded.

Here is an excerpt from Scalia's dissent in Roper v. Simmons (2005),

The Court thus proclaims itself sole arbiter of our Nation’s moral standards–and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

One response to this, on the ConLawProf discussion list, is this:

The USSC has been citing foreign cases for centuries. In 2002 I did some quick and dirty research to discover that the USSC has cited cited to Blackstone's Commentaries at least 350 times, many using Blackstone as an authority for our law. The Court has also cited the great English jurist, Chief Justice Lord Mansfield more than 325 times. The Court has over 190 citations to the Magna Carta. The court has cited Montesquieu', Locke, Grotious, etc. The Court often relied on the works of Story, who cited and quoted from European legal commentators all the time. In other words, the Supreme Court and most other American courts, from the very beginning, relied on foreign law and foreign precedents. To offer just easy eample, we borrowed the fellow servant rule from England in the 1840s.

The author of this post then asks us to consider one of the arguments for those who support the posting of the 10 commandments in courthouses, that they provide a basis for our laws.

Back to Scalia, who argues for American exceptionalism:

the basic premise of the Court’s argument–that American law should conform to the laws of the rest of the world–ought to be rejected out of hand. In fact the Court itself does not believe it. In many significant respects the laws of most other countries differ from our law–including not only such explicit provisions of our Constitution as the right to jury trial and grand jury indictment, but even many interpretations of the Constitution prescribed by this Court itself. The Court-pronounced exclusionary rule, for example, is distinctively American.

As we see with constitutional interpretation, application of principles can be done in interesting ways. The principle "We are different" may lead to the exclusionary rule, and executing juveniles. What principle might lead to support of both the exclusionary rule, and not executing juvenile offenders? (what might a due process model adherent say?).

Here is an excerpt of a second post on the ConLawProf list

There's a special problem with the death penalty, which is that the Supreme Court has interpreted the Eighth Amendment to bar punishments that are cruel and unusual in light of "evolving standards of decency." Here the question is over what population do we assess what those evolving standards are, and not (I think) really over whether non-U.S. norms generally are properly taken into account in interpreting the Constitution.

...Because the controversy has arisen only recently, there's relatively little authoritiative [writing] on it. In my view, Vicki Jackson, Ambivalent Resistance and Comparative Constitutionalism: Opening up the Conversation on “Proportionality,” Rights and Federalism, 1 U. PA. J. CONST. L. 583 (1999) (available at http://www.law.upenn.edu/conlaw/issues/vol1/num3/jackson/jackson_tf.html) remains the best introduction.

Finally, I link to this New Yorker article:

SWING SHIFT
How Anthony Kennedy’s passion for foreign law could change the Supreme Court.
by JEFFREY TOOBIN
Issue of 2005-09-12
Posted 2005-09-05

Scalia and "interpretation"

Its interesting to have characters on the court, eh?

Photographer: Herald got it right
By Marie Szaniszlo
Thursday, March 30, 2006 - Updated: 09:39 AM EST

Amid a growing national controversy about the gesture U.S. Supreme Court Justice Antonin Scalia made Sunday at the Cathedral of the Holy Cross, the freelance photographer who captured the moment has come forward with the picture.
“It’s inaccurate and deceptive of him to say there was no vulgarity in the moment,” said Peter Smith, the Boston University assistant photojournalism professor who made the shot.
Despite Scalia’s insistence that the Sicilian gesture was not offensive and had been incorrectly characterized by the Herald as obscene, the photographer said the newspaper “got the story right.”
Smith said the jurist “immediately knew he’d made a mistake, and said, ‘You’re not going to print that, are you?’ ”
Scalia’s office yesterday referred questions regarding the flap to Supreme Court spokeswoman Kathy Arberg, who said a letter Scalia sent Tuesday to the Herald defending his gesture at the cathedral “speaks for itself.”
“He has no further comment,” Arberg said.
Smith was working as a freelance photographer for the Boston archdiocese’s weekly newspaper at a special Mass for lawyers Sunday when a Herald reporter asked the justice how he responds to critics who might question his impartiality as a judge given his public worship.
“The judge paused for a second, then looked directly into my lens and said, ‘To my critics, I say, ‘Vaffanculo,’ ” punctuating the comment by flicking his right hand out from under his chin, Smith said.
The Italian phrase means “(expletive) you.”

follow the link to read how difficult it is to faithfully interpret constitutional jurist's gestures. Although the utterance, if made, seems to help.