Legal Analysis

Podcasts on UNited STates Supreme Court grants of certiorari, oral argument, and decisions at and as a free subscription on iTunes at SupremePodcast.

2013 Cases:

Bond vs. The United States (Can petitioner Carole Bond be prosecuted under the Chemical Weapons Convention law for an individual attack in Pennsylvania on a woman who had an affair with Bond’s husband.)

The US Supreme Court accepted certiorari this week in the case Bond vs. The United States.  In 2011, the high court decided, as a preliminary issue in the same case, that petitioner Carole Bond of Pennsylvania had standing to challenge her prosecution under federal law.  Bond had been prosecuted in federal court under the Chemical Weapons Convention Implementation Act, which criminalized the use of chemicals as chemical weapons under American law in conjunction with the adoption and implementation under international treaty of the Chemical Weapons Convention.

The facts, which led to Bond’s prosecution, concern her attempt to injure or kill a former friend after the woman was discovered to have had an affair with and to have had a child with Bond’s husband.  Bond was a microbiologist FULL STORY

Sample:  I reviewed the oral arguments in the constitutional challenge to the individual mandate portion of the Patient Protection and Affordable Health Care Act of 2009:

Judge Sotomayor — Target of Newfound McCarthyism?

Originally published at on June 9, 2009

Is it all right that Newt Gingrich called a sitting federal judge with a stellar record a “racist”?

How about Rush Limbaugh rallying the conservative base by demonizing Judge Sotomayor’s opinions as racially biased?

Isn’t this more like 50s’ McCarthyism, bullying your political enemies with politically loaded names — even when they don’t fit?

There should be no concern about Judge Sonia Sotomayor’s prospects for confirmation by the Senate. Senate Republican Jeff Sessions, top republican on the Judiciary Committee, which will conduct hearings, is a former federal prosecutor and can tell the difference between political mudslinging and a real issue about a biased judge.  Her opinions, which I will go into in my next post, are highly regarded by lawyers and judges.  Conservatives should be applauding Judge Sotomayor because she is tough, judicially restrained, and respectful of legal authority.  You will see many Republican Senators honor her extensive resume of public service, her judicial philosophy and her meticulous opinions during the hearings and confirmation process to come.

But in the lead up, before she has the opportunity to testify before the Senate, is it fair game to call her names, whether justified or not?  “Racist” is one of the ugliest terms to label an American citizen.  The spirit of the country is that “all men are created equal,” and while it is obviously an evolving picture, the ideas of equality are core beliefs in what it means to be American.

McCarthy called people “un-American.”  And some of his targets indeed held loyalties to our enemy’s political beliefs or systems.  Others did not, but were tarred just the same until, in the most famous of McCarthy’s eventual dressing downs, the counselor Welch for the U.S. Army, interrupted McCarthy during televised hearings: “I think I never gauged your cruelty or recklessness….Have you no sense of decency, sir, at long last? Have you left no sense of decency?.”

Gingrich’s and Limbaugh’s conservative political philosophy includes fundamental truths as did McCarthy’s, buy they suffer from the same problem as McCarthy as well:  Power corrupts.  They have such power over their followers that they can at times cross the line into injustice, indignity, and mistruth without paying for it.  This is no slight against Libertarian or Conservative political beliefs.  There are many nuggets of truth in a philosophy seeking control over government, strict constitutional interpretation, and fiscal responsibility.

But Limbaugh and Gingrich are attacking now while there is no accounting.  When the hearings come and real analysis is laid on the table, their early words will look foolish, although they will have been disavowed or revised by then.  They would not want to risk a real head to head match up of ideas on this one.

At the end of six weeks of hearings in June of 1954, Senator Stuart Symington said to McCarthy, “The American people have had a look at you for six weeks. You are not fooling anyone.”  America won the Cold War against Communism, but we didn’t do it by attacking each other for political advantage.  It was won by better ideas facilitated by honest government and real democracy.

Taking this lesson forward:  America would benefit from an education about judicial philosophy, but personal attacks, on esteamed public servents without credible justification and outside of a hearing process, lower the level of public discourse and respect for our democratic institutions. (Full story)

Supreme Court Reverses Sotomayor Panel in Ricci Case

Originally published at

The Supreme Court recently overturned an opinion issued from a three-judge appellate panel including Supreme Court nominee Judge Sonia Sotomayor. The core of the case turned on how a government agency, in this case the city of New Haven, Connecticut, should deal with potential discrimination against minority employees.

The city took a number of steps to address concerns about discrimination in promotions for fire department officer positions, such as making great efforts to create a race-neutral test and ensuring that minority officers from other departments participated in the candidate evaluation process. The lawsuit arose when the city decided to throw out the results of the firefighter promotion exams because no African-American applicants achieved top scores, meriting promotion.

The Supreme Court decision sheds some light on how government entities are expected to handle discrimination concerns. However, it does not fit as nicely into the affirmative action debate as commentators claim. It also fails to provide any significant evidence against Judge Sotomayor’s promotion to the U.S. Supreme Court.

It was white and Hispanic firefighters who sued the government in Ricci v. DeStefano when their success on the exams was disregarded. They lost their case in the lower courts and petitioned the Supreme Court for a final review. The Supreme Court found that once the promotion exams were completed, the city needed evidence that the exam was discriminatory, beyond just the results themselves, to justify disregarding those results. This, the city did not have. It had a history of discrimination, where only one of 21 fire captains was African-American, and it had a fear of lawsuits from unsuccessful black candidates, a legitimate concern recognized in the law guiding cities’ decision making on employment matters, but it did not have evidence that this test was unfairly discriminatory.

The Supreme Court decision was 5-4, with Justice Anthony Kennedy writing an opinion joined by Justices Scalia, Thomas, Alito and Chief Justice Roberts. The decision does not seem to overturn much law on affirmative action or to allow discrimination against minorities to go unchecked. It does say that once a hiring process is completed and candidates are ranked for promotion, it should not be upended without evidence that it was faulty.

The dissent would have allowed the city to disregard the test results in light of past discrimination and suspicion and potential legal challenges over the results themselves. There was evidence that another type of exam process might have yielded different results and the dissenting opinion considered that sufficient to put the test results into question and justify the city’s action.

Judge Sotomayor, along with two other appellate judges, had agreed with the trial judge that the city was within its rights to redress what it perceived was a problem in the test results. Justice Sotomayor will be asked about the decision in the nomination hearings next week. However, her position was hardly the type that should concern the judiciary committee reviewing her nomination. Sotomayor followed existing law on an issue where there is obviously substantial disagreement.  (Full story)

Justice Sotomayor

Originally published on

Justice Sonia Sotomayor of the 2nd Circuit Court of Appeals has been nominated by President Barack Obama for the U.S. Supreme Court.

Consistent with Obama’s other cabinet and ambassadorial nominations, Sotomayor is a highly respected mainstream candidate. She has distinguished herself through her academic ability and professional skills, but not her ideology.

Justice Sotomayor was nominated by President George H.W. Bush to the federal bench in 1991 and later promoted by President Clinton to the federal court of appeals. She received bi-partisan support in both Senate confirmation votes, however, her nomination for the appellate position was stalled in the Senate committee by Republican Senators. She was criticized at that time as too liberal by the objecting Senators, who rightly saw the nomination to the 2nd Circuit as laying the foundation for a Supreme Court appointment.

Justice Sotomayor is a centrist although her opponents will likely paint her as a liberal in any attempt to derail her nomination. She is fifty-four years old and was born in New York to Puerto Rican immigrant parents. She would be the first Latina Supreme Court Justice if confirmed and would join Justice Ruth Bader Ginsberg as the second woman currently on the high court.

Justice Sotomayor graduated summa cum laude from Princeton and at Yale’s law school was editor of the Yale Law Journal. With those stellar academic credentials she could have taken nearly any position in the legal field upon graduation. She chose to work for the New York District Attorney’s office, illustrating a belief in law and order and a commitment to public service. It also means she has learned something about the realities of human behavior and law enforcement.

It is her comments about being a Latina woman judge that have aroused philosophical controversy. In a 2002 lecture she said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Critics have taken this to mean that she would take up the cause of advancing women’s rights, minority rights and a liberal agenda through her judicial office. It could just as easily be read to suggest that knowledge and wisdom come from experience, as well as books. Her legal positions during her 16 years as a judge do not demonstrate disregard for legislative or executive authority.

Another comment of hers that has been attacked in the same vein is the statement “the Court of Appeals is where policy is made.” This may get some political traction because it plays into conservative concerns about judicial activism. Judges in the ideal conservative mold should interpret the constitution and laws and not “make” law. Be that as it may, in reality,judges must interpret laws in light of the facts presented, and they inevitably create legal policy through their decisions. This goes for decisions made by Justices Scalia and Thomas as much as it would for Justice Stevens or Justice Souter, whose retirement led to Justice Sotomayor’s nomination. In addition, since the Supreme Court only hears a small number of cases each year, the much larger Circuit Courts of Appeal are, in fact, where are great deal of federal law is decided.

The real test is whether her judicial philosophy allows her to freely infringe on the authority of the legislative and executive functions of government, or whether she believes that the judiciary, as the unelected branch, must tread cautiously. Justice Sotomayor’s time on the bench does not show her to be an ideological justice, but a judge focused on the facts of each case. 

In a controversial case, Justice Sotomayor rejected claims by white and Hispanic firefighters who believed they were unfairly held back from promotion by government action to advance black firefighters. The case turned on whether the government had the authority to doubt the validity of the testing, which the government did, when none of the black firefighters achieved promotable results. At first, Justice Sotomayor was part of a three-judge panel that decided to accept the government’s decision and later on reconsideration she was part of a larger panel of 2nd Circuit judges reaching the same outcome. The U.S. Supreme Court will decide this term whether the government’s considerations of race violated the Constitution. In either case, Justice Sotomayor’s decision is well within mainstream thinking that, in rare instances and for limited purposes, the government may consider race in employment and educational arenas.

There may be some conservative opposition to the nomination, but absent a scandal, Sotomayor’s nomination should not be difficult. Senators from both sides of the isle will want to line up to praise the first Hispanic Supreme Court justice. Her record is hardly extreme. And in the end, Democratic numerical superiority is too great to be overcome.

Boumediene v. George W. Bush


Originally published at

In a significant enemy combatant case, Boumediene v. George W. Bush, five men, who have been held at Guantanamo Bay detention facility, have been ordered to be released, while one continues to be detained.

The five released, who had previously been denied an opportunity to challenge their detention in court, owe their freedom in part to a Supreme Court decision earlier this year granting Guantanamo Bay detainees the right of habeas corpus, to challenge their detention is U.S. courts.  (Full story)

One response to “Legal Analysis

  1. Great blog, bookmarked for later use.

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