Tag Archives: Supreme Court

A Judicial Review: Justice Richard Posner

By Marc Seltzer; originally published on May 20, 2009 at politicsunlocked.com

. .

A potential candidate for the U.S. Supreme Court?

Justice Richard Posner of the U.S. Court of Appeals for the 7th Circuit is a giant in the field of legal theory. In association with others at the University of Chicago Law School, Posner is a chief architect of a movement called “law and economics”: efforts to bring free-market economic thinking into legal theory. Consequently Posner is known as a conservative for his economic principles. However, he does not take broad ideological positions. For example, he supported the government’s recent efforts to stimulate the economy using public funds, but he opposed the use of tax rebates because he concluded that the public would save this money rather than spend it. Instead, he endorsed spending on roads, bridges and other infrastructure, generally in line with Democratic Party positions.

Justice Posner is also a unique Supreme Court candidate because he has expressed so many opinions outside of the courtroom. He has written 40 books and hundreds of articles. He also maintains an active blog with colleague Gary Becker and is considered the most prolific justice in U.S. history. He has expressed support for environmental regulation, abortion rights and other principles that make him appear socially liberal. On the other hand he has supported a powerful government in the context of national security, defending the use of torture and limiting press freedoms in a way that is not popular with critics of the Bush administration.

Can such a person be nominated to the U.S. Supreme Court?

In the past, this would not have been a problem. However, since the 1980s, every Supreme Court nomination has become a power struggle and performance where the political parties attack the other side and try to score points while painting the opposition as extreme. The nomination of Posner would be difficult because it would appeal to centrists from both parties, but it would also be a sitting duck for attack by ideologues from both parties.

The question for President Obama is whether he believes Posner would make a great justice. Obama knows Posner from their time together on the faculty at the University of Chicago Law School. They share a pragmatic view of politics and policy. Is the President willing to apply his political capital in support of a candidate who will draw fire from his own party? Is Obama comfortable appointing a justice with such an independent mind that his judicial decisionmaking is difficult to predict?

A Judicial Review: Professor Cass Sunstein

By Marc Seltzer; originally published on May 13, 2009 at politicsunlocked.com

. .

Harvard Professor Cass Sunstein is 54, the same age as Justices Kim Wardlaw and Sonia Sotomayor, profiled here in recent weeks. A longtime Professor at the University of Chicago Law School, where he was a colleague of President Barack Obama, Sunstein is one of the country’s leading legal scholars. He has published widely with particular interest and expertise in environmental issues, information technology, and behavioral economics.

Sunstein is referred to as a liberal, but his political philosophy is not easy to categorize. He would appeal to some conservatives because of his belief that judges should carefully limit their focus to the case at hand, leaving the larger legal rulemaking to legislators. Mr. Sunstein supported the nomination of Bush appointee John Roberts Jr. to the Supreme Court. Roberts had articulated this philosophy of judicial minimalism in his Senate confirmation hearing.

However, when Justice Samuel Alito was nominated by President George W. Bush, Mr. Sunstein wrote a detailed analysis of Alito’s conservative rulings arguing that Alito was a “conservative’s conservative.” The op-ed did not overtly oppose Mr. Alito’s nomination, but it sought to make plain theesssential conservatism of Alito’s positions.

This type of record is something that would not be available for those considering Professor Cass as a nominee to the high court. He has not served as a judge and has no record of judicial decision-making to dissect.

Professor Sunstein left the University of Chicago to join the Harvard Law faculty this academic term, and in January was nominated by the Obama administration to be head of the Office of Information Technology and Regulatory Affairs.

He is extremely creative and forward-thinking. His most recent book Nudge: Improving Decisions about Health, Wealth, and Happiness, which he co-authored with Richard H. Thaler, discusses a framework for moving society’s decisions in the right direction.

Responding to the question, “How does anyone determine what’s “good”? How do we determine what’s good for the environment?” in a recent interview, Sunstein explained,

“For most nudges, we’re thinking of people’s good by reference to their own judgments and evaluations. We’re not thinking that the government should make up its own decision about what’s good for people. The environment can fit within that framework to a substantial extent, but it has a wrinkle, which is that often when we buy certain goods or use certain energy or drive certain cars.…we inflict harm on others, so our own judgments about our own welfare aren’t complete. We want nudges that do help people who are being nudged but also help people who are harmed by those who are not taking adequate account of the risks they are imposing on other people.”

Sunstein’s pragmatism also seems a good fit for President Obama, demonstrated in the following quote:

“I think on a lot of problems, including environmental problems, we can make progress without getting stuck on issues that divide people. The price system can be used in a way that fits with people’s moral obligations. If you’re inflicting harms on other people but the costs of your actions (become) higher, then you’re probably going to inflict lower harms on other people. One of the great tasks of the next decade is to ensure that when people are creating risks though their daily activities, that they bear the cost.

I believe also that one big motivator of behavior is economic and another big motivator is moral, and for certain environmental activities we should appeal to people’s conscience. A lot of people are buying hybrids not because they save money, which they might, but because it’s the right thing to do. I just bought a hybrid myself. The reason I bought it was moral.”

Fundamental to Sunstein’s public policy theory is the idea that more information makes people more able to get the right outcome. If Sunstein is nominated to the Court, or if he is confirmed in the position at the Office of Information Technology and Regulatory Affairs, we should expect to receive an education.

A Judicial Review: Justice Sonia Sotomayor

By Marc Seltzer; originally published on May 11, 2009 at politicsunlocked.com
. .

President Barack Obama will soon name a Supreme Court nominee to fill the shoes of Justice David Souter.

Mr. Obama has stirred the pot in explaining what he is looking for in a justice, saying, “I will seek somebody with a sharp and independent mind, and a record of excellence and integrity. . . I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book, it is also about how our laws affect the daily realities of people’s lives, whether they can make a living, and care for their families, whether they feel safe in their homes, and welcome in their own nation. I view that quality of empathy, of understanding and identifying with peoples hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”

This is more a working man’s justice than an ivory tower intellectualism. Critics have already attacked Mr. Obama’s statement as though it sacrifices legal principles in favor of emotional sympathy. This is hardly likely, given Mr. Obama’s own background in education, role as a constitutional law professor and keen intellect, but it remains to be seen whether the issue will play into the selection of a candidate or the argument at hearings on confirmation. The overwhelming Democratic majority in the Senate may finally reduce the hearings to the pro-forma confirmation of years gone by.

Last week I profiled Justice Kim McLane Wardlaw of the 9th Circuit Court of Appeals. Another leading contender for the position is Justice of the 2nd Circuit Court of Appeals, Sonia Sotomayor. Sotomayor was nominated by President George H.W. Bush to the federal bench and 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 seen as too liberal for objecting Senators who saw the nomination to the 2nd Circuit as preparation for a Supreme Court appointment.

Justice Sotomayor is considered 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.

In 1994 she was the trial judge in the Major League Baseball strike case and her decision against the League and its effort to hire replacements and impose a new collective bargaining agreement effectively ended the strike.

The work of judges becomes a political football game when it comes time for nominations. Already Justice Sotomayor is being criticized in the press without much consideration for her judicial ability. More to the point are a list of evaluations of Justice Sotomayor by lawyers who interacted with her in court, provided by Loyola Law Professor Rob Kar:

“She is a brilliant judge and has been mentioned as a potential justice on the Supreme Court.”

“She’s of Supreme Court caliber. She’s very smart.”

“She’s very smart and well-educated, but she comes from very humble roots and I don’t think she’s forgotten that. She’s still human. She’s an outstanding judge.”

“I liked her when she was on the Southern District of New York, but I think she’s doing an even better job now that she has been elevated to the Second Circuit.”

“She’s brilliant.”

“She’s very impressive. She has really done a good job and made a name for herself.”

“She’s usually right on target.”

“She’s very scholarly.”

“She’s really able to tackle anything. She really is a quick learner.”

“Even though she’s still relatively young, she has a very keen legal mind. She’s outstanding.”

“She’s very well-qualified for the job. She’s really very impressive.”

A Judicial Review: Justice Kim McLane Wardlaw

By Marc Seltzer; originally published on May 6, 2009, at politicsunlocked.com

. .

The selection of a Supreme Court nominee raises some obvious questions. Among them is one overall concern: will the nominee be liberal, centrist or conservative?

So called “liberals” on the Supreme Court have extended greater constitutional rights in the areas of a woman’s right to have an abortion and criminal defendants’ rights to fair process than their critics accept. “Conservative” justices have hesitated to extend constitutional protections to individuals and have at times limited the government’s ability to impose restrictions on business interests. These hot-button issues are a small fraction of the work of the Court, but they do draw lines in the sand.

Centrists have been more likely to recognize the values asserted by both liberal and conservative positions and look for justice within the complexity of conflicting rights and values.

Near the top of the list of potential Supreme Court nominees is Justice Kim McLane Wardlaw of the Ninth Circuit Court of Appeals. Justice Kim McLane Wardlaw attended UCLA Law School and began her distinguished legal career in private practice. After 16 years at the Los Angeles office of O’Melveny & Myers, she was nominated by President Clinton to the federal judiciary. She worked first as a district court judge and then as a justice of the 9th Circuit Court of Appeals, where she is today.

Justice Wardlaw was supported by Democrats and Republicans in her confirmation hearings and was initially confirmed by the Senate Judiciary Committee by unanimous vote. Then, the entire Senate confirmed her unanimously. On nomination to the U.S. Court of Appeals position her Senate Judiciary hearing support was 17-1. Then the entire Senate again confirmed her unanimously.

Justice Wardlaw’s mother is Mexican-American and her father Scottish, which made her the first Mexican-American justice to be appointed to the U.S. Court of Appeals. She would also be the first Mexican-American to serve on the U.S. Supreme Court if President Obama selected her and her nomination was confirmed.

Justice Wardlaw’s positions demonstrate centrist reasoning and pragmatism. The following brief summaries of four of her opinions demonstrate that she does not always take a classically liberal or conservative view. In Card v. City of Everett, the Justice penned a majority opinion finding that a monument displaying the Ten Commandments on city land did not constitute the city’s endorsement of a religion in violation of the First Amendment “freedom of religion” restrictions.

In another case, Roe v. City of San Diego, Wardlaw disagreed with the Ninth Circuit majority and refused to extend constitutional protection to a police officer who was fired for selling adult videos of himself. The U.S. Supreme Court agreed with Wardlaw’s dissent and reversed the Ninth Circuit decision.

In Jones v. City of Los Angeles, Wardlaw wrote that arresting homeless people for occupying public property, when other shelter was not available, violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

Finally, in Allen v. Woodford, Wardlaw determined that a defendant sentenced to death would not receive a new trial despite his counsel’s failures in representation because there was overwhelming evidence of guilt such that a jury would still have sentenced him to death.

Justice Wardlaw may not satisfy those who desire certainty that every decision will reflect their political philosophy. But she is a respected moderate with tremendous high-level legal experience and the endorsement of Democrats and Republicans alike.

A Strong and Clear Decision by the Supreme Court and a Legal Black Eye in Tennessee

Originally published on January 29, 2009, at care2.com/causes/women’srights/blog



Rejecting the tortured logic of a decision of the United States Court of Appeals for the Sixth Circuit (KY, TN, OH, MI), the U.S. Supreme Courthas ruled that a woman fired for cooperating with an internal investigation of sexual harassment is entitled to protection from federal law. 

Vicky Crawford, a 30-year-old payroll-department employee of theMetropolitan Government of Nashville and Davidson County was interviewed by the county’s legal staff in the course of an inquiry into sexual harassment allegations.  Crawford did not file a sexual harassment complaint herself, but did provide evidence of harassment during the inquiry into rumors that a county director had harassed another female county employee.  After cooperating in the investigation, Crawford was terminated.

Protection under the Civil Rights Act of 1964

Crawford then filed suit claiming the protections of the Civil Rights Act of 1964, which protects employees from retaliatory firing for complaining against or opposing unlawful discrimination.  A federal judge and eventually the Court of Appeals sitting in Nashville rejected Crawford’s claim, ruling that the Civil Rights Act of 1964 protects only people who actively oppose discrimination, filing formal complaints or seek to give evidence, but that merely cooperating in an investigation which results in firing is not enough to deserve the law’s protection. 

The U.S. Supreme Court, in a unanimous decision, reversed the Court of Appeals, ruling in Crawford’s favor.  Justice  David Souter sharply rejected the lower courts’ reasoning, offering as much a rebuke to the judges below as the ever-respectful high court is want to do.  Souter called “freakish” the courts’ interpretation of the law that cooperation in an investigation, resulting in termination, is insufficient to merit the protection given to those who oppose discrimination by taking action such as filing a complaint or suit. 

The High Court’s Reasoning 

The Supreme Court essentially said that if the action taken by the employee against unlawful harassment was enough to get her fired, it must have been enough to qualify as “opposing” unlawful discrimination under the “opposition” protection of the Civil Rights Act.  It would be ludicrous to say that she was fired for what she did, but that what she did wasn’t action enough to trigger legal protection against firing.  

The sixth circuit’s interpretation was remarkably narrow and not one likely to have come from the United States Court of Appeals in other districts.  In any case, the lower threshold for what constitutes protected “opposition” is now the law of the land, and the logic of the decision should apply beyond sexual harassment cases to unlawful employment practices covered by the Civil Rights Act. 

A Clear Message

Despite statements from both sides of the political spectrum that the U.S. Supreme Court is irreconcilably split, the high court does as times speak with one voice.  In this case, there should be no doubt what the court is saying to American workers:  The government stands on the side of those who oppose or give evidence against illegal discrimination.

See the text of the court’s decision and Justice Alito’s concurring opinion in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee at www.supremecourtus.gov.

Challenging Obama’s Presidency

Originally published December 22, 2008, at politicsunlocked.com


United States Supreme Court

United States Supreme Court

Photo by dbking licensed http://creativecommons.org/licenses/by-nd/2.0/


A little known aspect of the judicial system was made a bit more public recently, as courts have rejected lawsuits challenging the legitimacy of Barack Obama’s presidential election.

Anthony Martin-Trigona, a documented legal system abuser, did it again, filing a lawsuit regarding Obama’s citizenship in Hawaii state court. Federal courts have already imposed rules barring him from bringing any more frivolous claims to their courts.

federal appeals court has previously described Martin-Trigona’s actions and called out the harm caused by people who use our justice system for their own personal agenda without regard to the legal validity of their claims.

“To those who follow the business of the courts, the appellant needs no introduction. He is the source of literally hundreds of lawsuits, motions and miscellaneous pleadings, all but a small fraction of which lack any merit whatsoever. Viewing Martin-Trigona’s litigious conduct in its entirety yields the inescapable conclusion that he persistently resorts to legal processes without regard to the merits of the claims asserted and that he invokes those processes largely to harass persons who have unluckily crossed his path.”

And the 2nd Circuit Court of Appeals continued:

“Martin-Trigona is known to have filed over 250 civil actions, appeals, and other matters throughout the United States, which have been pursued with ‘persistence, viciousness, and general disregard for decency and logic.’  He has used legal pleadings to ventilate his contempt and hatred of persons of Jewish heritage and to level accusations which ‘have often been personal, have often emphasized racial or religious affiliations, and have often involved the members of . . . judges’ and counsel’s families.’ The purpose, nature and effect of his resort to multiple litigation has been to involve as many persons in as many confounding legal processes as possible. . . . Martin-Trigona’s voluminous filings have ‘inundated’ the District of Connecticut and his activities have burdened judicial operations to the point of impairing the administration of justice. Finally, Martin-Trigona has not desisted from his course of vexatious litigation but has expressly stated his intent to file yet more actions.”

Fox News put Martin-Trigona on the air during the campaign to impugn Obama.  The real offense, political positions aside, was that a person known for such extensive and frivolous abuse of the American legal system was given the credibility of broadcast time.

But he is not alone.  Seventeen lawsuits (so far) have been filed in various jurisdictions, claiming Barack Obama was not born a U.S. citizen, and thus, cannot become president.

The facts:

Hawaii achieved statehood in 1959.  Obama was born in Hawaii in 1961.   Obama’s birth certificate, conveying U.S. citizenship and noting birth in Hawaii’s capital, Honolulu, has been examined by the State of Hawaii and found to be authentic.

Case closed.

None-the-less, seventeen individuals have filed suit, and upon rejection of their claims by trial judges, haveappealed as high as the U.S. Supreme Court.  The legal basis of the challenges is Article II of the U.S. Constitution, requiring a president to be a natural-born citizen.  Precious resources are used, briefs read, arguments heard, all to give every possible advantage to litigants who want their day in court.  To date, the U.S. Supreme Court has rejected two petitions that have made it to the court for consideration.

The “natural-born citizen” clause has received publicity in recent years with California Republican GovernorArnold Schwarzenegger, who is an Austrian-born, naturalized U.S. citizen, appearing to emerge as apresidential hopeful, except for Article II.  Discussion was also prompted by the candidacy of Republican Presidential aspirant John McCain, was born in the Panama Canal Zone to a U.S. military family.  McCain, however, was a citizen at birth, via his parents, both citizens and the status of the U.S.-controlled Canal Zone.

Can you imagine challenges to the birth certificates of George W. Bush, William Jefferson Clinton, George H.W. Bush, or Ronald Reagan? 

Boumediene v. George W. Bush

Protesters at the U.S. Supreme Court Wearing Prisoner Jumpsuits

Protesters at the U.S. Supreme Court Wearing Prisoner Jumpsuits

Originally published December 29, 2008 at politics unlocked.com.


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.

After the Sept. 11 attacksPresident George W. Bush, guided by Vice-President Richard (Dick) Cheney and Defense Secretary Donald Rumsfeld, adopted aggressive defense strategies to deal with the nation’s security.  While the administration’s geopolitical approach was to demand cooperation from foreign powers, and eventually to conduct wars in Afghanistan and Iraq, the administration also needed to handle the enemy one by one.

The attacks had shown that a small number of individuals using the element of surprise could cause extraordinary destruction and loss of life.  Fearing more attacks, the administration ramped up its world-wide hunt for terrorists.  As arrests were made, the Bush administration created new procedures for placing those captured into U.S. military detention facilities rather than providing them with the opportunity for civil or military trials.

It was often said that the worst of the worst were placed in a U.S. military prison facility at Guantanamo Bay, Cuba.  The administration took the position that prisoners at this facility were not entitled to a trial or the right to challenge their detention in U.S. courts.  In many cases, the U.S. government refused to allow lawyers to contact prisoners and rarely released the names of persons being held.

Concerned that some prisoners were wrongly held or were subject to torture, yet lacking a good alternative, civil libertarians, lawyers groups, family and friends staged theatrical photo ops outside the Supreme Court, argued their cases in the press and lobbied the government of behalf of the detainees.

Meanwhile, legal appeals to the administration’s position have slowly worked their way through the courts and gradually defined what rights detainees do have.  The courts have not rubber stamped the Bush administration’s plans and have significantly increased the rights provided to detainees.

The Supreme Court ruled in 2008 that Guantanamo Bay detainees have the right of habeas corpus to challenge the legality of their detention.  This right provides judicial review of the government’s decision to designate and hold someone, but does not expressly provide the constitutional protections of a criminal trial.  Further, the Court in another detainee case, Hamdi, indicated that the courts have an obligation to protect prisoners from the risk of erroneous detention.

Under the Supreme Court ruling, six men were given a new hearing before U.S. District Court Judge Richard Leon in Washington, D.C.  They had all been in custody since 2001, when they were arrested in Southern Europe by the Bosnian government for alleged involvement in a plot to bomb the U.S. embassy in Sarajevo.  They were subsequently turned over to U.S. authorities and sent to the U.S. Naval Station at Guantanamo Bay.

A Bush administration appointee, Judge Leon conducted the hearings in private because of the presence of classified information, but the order of the court made public a number of issues in the case.

The Bush administration argued that the defendants had a plan to travel to Afghanistan and fight U.S. and coalition forces there. They made no claims regarding the previously alleged embassy plot.

The detainees, Lakhdar BoumedieneMohamed NechlaHadj BoudellaBelkacem BensayahMustafa Ait Idir, and Saber Lahmar were represented by counsel, who argued that the government had failed to show the six Algerian-born men were enemy combatants.

The Judge first defined an “enemy combatant” as “an individual who was part of or supporting Taliban or Al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.  This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

Judge Leon concluded that the government failed to meet its burden of convincing the court that a plan existed.  The court did not fully elaborate on the reasons for its decision, noting that classified material could not be revealed.

None-the-less, Judge Leon granted the five habeas petitions and ordered those prisoners’ be released.  The court also ruled that a sixth defendant was in fact an enemy combatant based on evidence showing ties to Al Qaeda that was not present in the case against the other five petitioners.  The sixth defendant will remain in military custody.

Photo licensed: http://creativecommons.org/licenses/by-sa/2.0/

Detainee Ali Al-Marri Appeals

Originally published at politicsunlocked.com


photo: creative commons

Supreme Court agrees to hear enemy combatant case.

The United States Supreme Court has agreed to hear the legal appeal of a man imprisoned without trial as an enemy combatant.

The case presents a rare situation where a person suspected of working for the enemy, in this case Al Qaeda, was arrested inside the United States and is being treated like a battlefield capture.  The man, Ali Al-Marri has not been charged with an act of terrorism or any other crime in U.S. courts, although the government has presented a statement of evidence against him.  According to the government’s declaration, Al-Marri met withOsama Bin-Ladin and was instructed to enter the United States to conduct an act of sabotage against financial institutions.

Since operation Enduring Freedom (the U.S. military action in Afghanistan) began in 2001, thousands of Al Qaeda members captured overseas have been imprisoned as enemy combatants.  This is a common practice in armed conflicts and is recognized by international law.  Al Qaeda members have also been arrested in the United States for crimes committed here, such as the 1993 World Trade Center bombing.  In those cases, defendants were charged with crimes and afforded trials according to the rules of our criminal justice system.

The present case is, however, a hybrid.  

Ali Al-Marri was living with his wife and children in Peoria, Illinois and attending computer classes at Bradley University, when he was arrested in 2001.  He was originally treated like a criminal suspect and was incarcerated while awaiting trial.  However, before his trial occurred, he was reclassified by the Bush administration as an enemy combatant and moved from the civilian court system to a South Carolina military prison.  As an enemy combatant, he was not given a trial and was told he may have to wait until the end of the war to be released.

There are two central legal principles in this case.  

First, the executive branch is constitutionally invested with the power to conduct war and secure the national defense. Within this power are decisions about how to handle the capture of enemies.  The judiciary, not the branch of government suited to speed or action, gives the president almost complete authority on such matters of national defense.  In a previous case on detentions, the Supreme Court allowed an American citizen, whose battlefield capture in Afghanistan demonstrated his Al Qaeda affiliation, to be imprisoned as an enemy combatant, stating “detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war.”

Secondly, because the arrest of Al-Marri was made in the United States, there is serious judicial concern about his detention without trial in light of our national principles of constitutional justice.  The right to confront witnesses against you and be tried by a jury has long been fundamental to our system of justice.  These rights, guaranteed in the Sixth Amendment to our Constitution, were viewed as fundamental by our nation’s founders, who feared the power of Kings and abusive governments to condemn and imprison their political enemies unjustly.

Attorneys for Al-Marri have challenged his detention without trial through a writ of habeas corpus.  This allows Al-Marri to challenge the government’s legal authority to treat him as an enemy combatant. The Court of Appeals for the Fourth Circuit ruled in a 5-4 split decision that the government does have this authority, under the Authorization for Use of Military Force against Terrorists passed by Congress in 2001.  Al-Marri’s Supreme Court petition asks the high Court to overturn the Fourth Circuit decision and reject the government’s enemy combatant classification of him, making him eligible for trial.

While the evidence against Al-Marri and the fairness of process have also been challenged, these questions are still in stages of review by the lower courts.  Thus, the Supreme Court has only, at this point, focused on whether the government has legal authority to detain Al-Marri without trial, rather than any consideration of what evidence should be required in order to do so.

While the case is not likely to apply to many individuals, it certainly has very important implications.  Historically, America is well aware of the internment of Japanese Americans without trial in World War II. A 1980’s court challenge to the government’s WWII internment practice called into question whether the government had been honest in its claims about the risk that Japanese Americans posed, including in representations to the U.S. Supreme Court during the war.

On the other hand, the experience of the government in the 1990’s, prosecuting Al Qaeda operatives responsible for the 1993 World Trade Center bombing, illustrated the great economic cost and commitment of resources required to process just a few individuals through the criminal justice system.  


Originally published at: http://www.politicsunlocked.com/item/detainee-ali-al-marri-appeals

Court Watch

By Marc Seltzer; originally published on December 2, 2008, at politicsunlocked.com

. .

The 2008 presidential campaign did not focus on potential Supreme Court appointments.  The financial crisis, two wars and the Obama phenomenon tended to dominate media coverage.

However, the last four presidents have each appointed two Supreme Court justices.  With the Supreme Court often split on hot button issues such as workplace discrimination, abortion restrictions and the death penalty, the constitutional authority of the President to appoint a potential deciding vote carries great weight.

The U.S. Supreme Court may remain below the radar for some time after President-elect Barack Obama takes office.  There are no justices signaling impending retirement, and ultimately, the choice is with them, not the President.

Regardless of which justices preside, there are a number of significant issues expected to come before the highest court in America.

The Right to a Trial

Challenges to the President’s power to imprison people suspected of terrorist or anti-American activities may come to the Court from cases arising out of Guantánamo Bay or other detention facilities.  Lawyers have challenged detention of Americans as well as foreigners on the grounds that they deserve a trial even if accused of fighting against U.S. interests.

The lower courts have not given President Bush a green light on detentions without trial, despite his argument for unfettered Presidential power on security issues in time of war.  President-elect Obama has not made clear what his policy will be with respect to detainees, but a shift from the Bush administration position may resolve some cases without the requirement of Supreme Court review.

Challenges to Federal Regulation from Progressive States

Another important issue concerns the balance of power between states and the federal government.

A number of states have challenged federal environmental and other regulations that limit the states’ ability to regulate for themselves.  States such as California and Massachusetts have sought stricter environmental regulations than those enacted by Congress or enforced by the Bush administration.

The question in these circumstances will be if a state is able to make different regulations than the federal government, or will the the traditional exclusive power of the federal government trump state efforts?