Latest Supreme Court Debates

Navy Sonar Exercises
The Potential Impact on Marine Mammals
Can the U.S. Navy Proceed With Its Plan for Sonar Training Exercises off the Coast of Southern California?
(Excerpted from Supreme Court Debates, November 2008)

The waters off the coast of Southern California are home to a rich abundance of ocean life, including a wide variety of marine mammals. Some are common, such as dolphins and gray whales; blue, fin, humpback, and various other species of beaked whales are more rare.

Southern California is also the site of the largest Navy base on the West Coast, home to the U.S. Pacific fleet, which routinely conducts training exercises in the coastal areas. One such program — a series of anti-submarine warfare (ASW) exercises — has pitted the U.S. government against a consortium of environmental groups, sparking a legal battle that reached the U.S. Supreme Court last month.

The Navy’s ASW training involves the use of mid-frequency active sonar (MFA), which employs pulses of sound from a surface ship to detect ultra-quiet submerged submarines. Whales and dolphins also use sonar to communicate with each other and navigate the seas, and environmentalists cite some recent studies that indicate MFA sonar can cause physical harm and even death to marine mammals. They point to examples of whales beaching themselves following sonar exercises in the Caribbean, the Mediterranean, and the Atlantic Ocean.

The case before the Supreme Court began in February 2007, when the Navy issued an environmental assessment under the National Environmental Policy Act of 1969 (NEPA) for up to 14 planned sonar-training exercises through January 2009. In its 293-page report, the Navy concluded that the use of MFA sonar during its maneuvers would not have a significant impact on the environment and, therefore, it did not have to complete a more thorough environmental impact statement (EIS).

On March 22, 2007, the Natural Resources Defense Council (NRDC), four other environmental groups, and marine biologist Jean-Michel Cousteau filed suit against the Navy in Federal district court seeking to block the use of MFA sonar during its California exercises until the Navy conducts a full EIS. On August 27, 2007, the district court issued a preliminary injunction based on the “near certainty” of MFA sonar causing irreparable harm to the environment.

On November 13, 2007, the Ninth Circuit U.S. Court of Appeals ordered the district court “to narrow its injunction so as to provide mitigation conditions under which the Navy may conduct its training exercises.” On January 3, 2008, the district court issued a new preliminary injunction, which required the Navy to cease sonar transmissions whenever a marine mammal is spotted within 2,200 yards of any sonar source and reduce sonar power by six decibels (75 percent), whether or not a marine mammal is present, whenever the Navy detects ocean conditions that exacerbate the effect of MFA sonar.

The Navy again appealed to the Ninth Circuit and in the meantime got an Executive Branch agency, the Council on Environmental Quality (CEQ), to overrule the district court because the small amount of time left before the start of the Navy exercises created “emergency circumstances” as defined by Federal law. On February 29, 2008, the appeals court upheld the district court’s injunction with a few modifications and ruled that the CEQ didn’t have the power to reverse the lower court’s injunction — in part because the “emergency circumstances” were created by the Navy’s own refusal to prepare an EIS and because the CEQ based its decision entirely on evidence provided by the Navy.

The Navy once again appealed, and on June 23, 2008, the U.S. Supreme Court granted certiorari.

During oral arguments, the U.S. solicitor general argued that the CEQ has the authority to make rulings based on Federal law. In any event, proper training of naval personnel in ASW — which can only be done in real-life exercises — constitutes a national security issue and deference needs to be given to the Navy. One district court judge, he said, could not be allowed to negatively affect the readiness of U.S. military forces. And in any event, he concluded, there was no clear evidence that MFA sonar actually causes any permanent damage to whales. The Navy has been conducting sonar training off the coast of California for decades, and there have been no instances of mass whale beachings as a result.

The NRDC’s lawyer countered that an Executive agency such as the CEQ can’t overrule a Federal court’s decision about an Executive action — such a step violates the constitutional separation of powers. The law, he continued, is clear that a preliminary injunction is necessary to preserve the environment until more thorough studies can be done.

The Court’s decision in this case likely will have a lasting impact on the amount of power environmental concerns have under current law when weighed against national security interests.

The separation-of-powers question is also of significant interest in this case. The Court will likely decide whether “emergency circumstances” as defined by Federal law allow an Executive Branch agency to sit in judgment of a Judicial Branch decision.

Due to the time sensitivity of this case, a ruling is expected in the coming months.

Trafficking in Child Pornography
The Pandering Provision of the PROTECT Act
Is the PROTECT Act of 2003 Constitutional?
(Excerpted from Supreme Court Debates, October 2008)

In the late 1970s, Congress passed the first laws to combat child pornography, which had developed into a national problem as video recording and publishing methods became less expensive and more accessible to the general public. Federal law made it illegal to use minors below the age of 16 in pornographic films and photographs; in 1984, the law was expanded to include children under 18.

By the early 1990s, trafficking in child pornography in the United States had been greatly reduced. Law enforcement had broken up mail-based distribution networks and cracked down on behind-the-counter sales at adult bookstores. With the advent of the Internet, however, the problem of child pornography once again emerged, as trading and sale of digital images proliferated in Web chat rooms and via email.

The U.S. Congress first attempted to deal with child pornography in the Internet age with the passage of the Child Pornography Prevention Act of 1996, which prohibited any photograph, video, or computer-generated image that is or appears to be of a minor engaged in sexual activity. In addition, the law prohibited any image that “was advertised, promoted, presented, described, or distributed in such a manner that conveys the impression it depicts a minor engaging in sexually explicit conduct.”

A group called the Free Speech Coalition challenged the constitutionality of the law, and in 2002 the U.S. Supreme Court, in Ashcroft v. Free Speech Coalition, struck down the statute, ruling that it was overly broad and would prohibit material — such as productions of the play Romeo and Juliet — that was neither obscene nor child pornography.

In response to the Supreme Court’s decision, Congress passed the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003. The law, in addition to other measures to combat the exploitation of children, made it a crime for anyone to knowingly advertise, promote, present, distribute, or solicit through the mail any material that is purported to be child pornography — whether, in fact, it is or not. It is this portion of the law that came under scrutiny by the Court last term in United States v. Williams.

The case began in 2004, when a South Florida undercover police officer monitoring an Internet chat board witnessed someone posting a link to a Web page containing child pornography. The police acquired the identity of the individual from his Internet service provider and raided his home, where they found several computer hard drives containing child pornography.

The man, Michael Williams, was arrested and charged with one count of promoting and distributing child pornography and one count of possession of child pornography. He pled guilty to both counts and was sentenced to two five-year terms in prison, to be served concurrently.

Following his sentencing, his lawyer challenged the constitutionality of the first count of his conviction, arguing that Section 2252A(a)(3)(B)1 of the U.S. Code — the portion of the PROTECT Act that makes it illegal to promote anything purported to be child pornography — was vague and overly broad.

A Federal district court dismissed Williams’s appeal, but on April 6, 2006, the Eleventh Circuit U.S. Court of Appeals invalidated the 2003 law, ruling that it violated the First Amendment right to freedom of speech. The United States appealed, and on March 26, 2007, the U.S. Supreme Court granted certiorari.

During oral arguments, U.S. Solicitor General Paul Clement argued that offers to sell, buy, or barter contraband material are not protected by the First Amendment.

Wiliams’s lawyer countered that noncommercial, noninciteful promotion of child pornography, while repugnant, is protected speech.

On May 19, 2008, in a 7-to-2 decision, the Supreme Court upheld the constitutionality of the PROTECT Act.

With the Court’s decision, police and prosecutors can continue to use the pandering provision of the PROTECT Act to charge individuals who claim they are offering child pornography, instead of first having to prove that the material in question is real — a task that has grown increasingly difficult with the advent of computer-generated images. Supporters of the law claim that this is a key tool in combating the resurgence of child pornography in America, while free-speech advocates fear the decision erodes the First Amendment and opens the door to new laws based not on actual crimes but on what the accused thinks or believes.

Driving Under the Influence
Alcohol, Guns, and Automobiles
Do Prior Felony Driving-Under-the-Influence Convictions Qualify as “Violent Felonies” Under the Armed Career Criminal Act?
(Excerpted from Supreme Court Debates, September 2008)

The National Highway Traffic Safety Administration estimates that there were 13,470 traffic fatalities in 2006 caused by drivers under the influence (DUI) of alcohol. Across the country, States have enacted strict laws in an attempt to control the problem, including lowering the maximum blood alcohol level for vehicle operation to .08 percent and mandating harsher penalties for repeat offenders.

Last term, the U.S. Supreme Court heard a case that asked them to determine the nature of DUI offenses: Are they violent acts? Should they qualify for increased punishment compared with other criminal violations?

The case began in New Mexico, which has some of the highest rates of alcohol-related traffic fatalities. In 1993, the State Legislature passed a law making the fourth and all subsequent DUI convictions felony offenses carrying maximum sentences starting from one-and-a-half to three years in prison for the seventh conviction.

Larry Begay, a New Mexico resident, had 12 DUI convictions on his record when he was arrested for threatening his sister and his aunt with an unloaded .22 caliber rifle. Federal law dating back to the 1968 Gun Control Act prohibited Begay, as a convicted felon, from possessing a firearm of any type. At trial, Begay pled guilty to the felon-in-possession charge — but instead of receiving the standard five years of jail time, he was given a 15-year sentence.

The judge ruled that Begay qualified for a mandatory higher sentence under the Armed Career Criminal Act (ACCA) of 1984 because of his three prior felony DUI convictions. In 1986, Congress had amended the law with a so-called “three strikes” provision, which mandates a minimum 15-year sentence for those convicted of felon-in-possession who had at least three previous convictions “for a violent felony or a serious drug offense.”

Begay challenged his sentence, arguing that his DUI convictions were not “violent felonies,” which the ACCA defined as “burglary, arson, or extortion ... the use of explosives,” or acts that otherwise involve “conduct that presents a serious potential risk of physical injury to another.” On December 12, 2006, the Tenth U.S. Circuit Court of Appeals upheld Begay’s conviction, ruling that DUI felonies did qualify. Begay then appealed to the U.S. Supreme Court, which granted certiorari on September 25, 2007.

During oral arguments, Begay’s lawyer argued that, as its name suggests, the Armed Career Criminal Act was directed at career criminals.

The lawyer representing the United States countered that repeated felony DUI violations represent “conduct that presents a serious potential risk of physical injury to another,” which qualifies it under the ACCA.

On April 16, 2008, the U.S. Supreme Court overturned the circuit court ruling. In his majority opinion, Justice Breyer — joined by Chief Justice Roberts and Justices Stevens, Kennedy, and Ginsburg — wrote that DUI is too unlike the other crimes listed in the ACCA to be a qualifying felony. Although it can be reckless and dangerous, DUI does not involve purposeful, violent, and aggressive conduct. A DUI offender, Breyer wrote, does not have a higher likelihood of being the kind of person who might deliberately point a gun and pull the trigger — the type of person at which the ACCA is aimed.

With this decision, the U.S. Supreme Court has clarified the language of the ACCA and shed some light on the relative severity of DUI convictions. Meanwhile, Larry Begay’s case has now been remanded to the trial court for resentencing under the less severe guidelines.

The Second Amendment
Gun Control and the Right to “Bear Arms”
Is the District of Columbia’s Ban on Handguns Constitutional?
(Excerpted from Supreme Court Debates, May 2008)

In 1976, the District of Columbia City Council passed one of the Nation’s toughest gun control laws, which included a ban on all handguns except for those previously registered in the city or in the possession of active or retired law enforcement personnel.

Although the effectiveness of the law has been called into question — violent crime rates in the District have fluctuated and remain high, and legal handguns have been readily available in nearby States such as Virginia — the ban remained in effect for decades without legal challenge and with limited call for its repeal by District residents.

In 2003, however, six residents of the District filed suit against the city and its mayor, alleging that the handgun ban violated the Second Amendment to the U.S. Constitution, which reads, “A well regulated Militia being necessary to the security of a free State, the right of the People to keep and bear Arms shall not be infringed.”

The lawsuit attracted little attention when it was summarily dismissed by a Federal district court on March 31, 2004. That changed, however, when just under three years later, the U.S. Court of Appeals for the District of Columbia Circuit struck down the handgun ban in its entirety, ruling that it infringed on an individual’s Second Amendment right to bear arms. This marked the first time that a circuit court had cited the Second Amendment as grounds for invalidating a gun control law.

The District of Columbia and its mayor, Adrian Fenty, appealed the decision to the U.S. Supreme Court, which granted certiorari on November 20, 2007.

The District of Columbia argued that the Second Amendment protects a State’s ability to raise and regulate a militia — and does not give individuals a blanket right to own arms.

Lawyers for Dick Anthony Heller — the only District of Columbia litigant granted standing by the appeals court — countered that the first phrase is merely context and the language of the second phrase, “the right of the people to keep and bear arms,” clearly sets out an individual right.

Now, the Supreme Court has the opportunity to more clearly define the scope of the Second Amendment. It is not often that the Supreme Court has such a blank slate to work on, particularly when the subject is a hotly contested issue of constitutional interpretation. A decisive move by the Court to endorse one side or the other in this case will likely create a lasting precedent on the meaning of the Second Amendment.

Open Primaries
A Challenge To the Power of Political Parties
Is Washington State’s Primary System Constitutional?
(Excerpted from Supreme Court Debates, April 2008)

For 68 years, the State of Washington had a “blanket primary” system, where voters could cast ballots for whichever party’s candidates they preferred. They could select the Democratic nominee for governor, then turn around and pick the Republican nominee for Senate, regardless of their own party affiliation.

The U.S. Supreme Court struck down a similar primary system in California Democratic Party v. Jones (2000), however, holding that voters who are not affiliated with a political party cannot help to choose the party’s nominees in the primary election. In 2003, the Ninth Circuit U.S. Court of Appeals, citing Jones, invalidated Washington’s blanket primary.

The following year, supporters of the Washington system proposed a revised system that they claimed passed muster under the Jones decision. Washington Grange, a grass-roots organization of farmers, pushed for a “top-two” primary system under which the top-two votegetters in the primary, regardless of party affiliation, would advance to the general election. Although the primary would be nonpartisan, candidates could list a “party preference” next to their names on the ballot.

The proposal hit a dead end in the State Legislature after Washington’s governor at the time, Gary Locke (D), vetoed the bill. Voters eventually approved the new system by passing Initiative 872 on November 2, 2004.

Washington’s political parties were quick to challenge the constitutionality of the initiative.

The U.S. Supreme Court granted the State a hearing on February 26, 2007.

During oral arguments, lawyers for Washington argued that the top-two primary system was a constitutional means of separating the party-candidate nomination process from determining the composition of the general election ballot. Such a move, they argued, would encourage the election of more moderate candidates and give the average voter, who may not be deeply involved in party politics, greater influence on selecting who appears on the November ballot.

Lawyers for the Washington State Republican Party, which took the lead in challenging Initiative 872, countered that Jones envisioned a truly nonpartisan primary — but by including “party preference,” the Washington system made the election partisan. In addition, they argued, the top-two primary gives voters no way to know who the official nominee of a party is, nor does it provide the party with a way to disassociate itself with unacceptable candidates. Extremist or objectionable candidates would have the same party preference listed next to their names as mainstream candidates.

On March 18, the Supreme Court issued an 8-to-1 decision reversing the Ninth Circuit and remanding the case to the lower courts. Justice Thomas, writing for the majority, held that because no elections had been held under a top-two primary, there was not enough evidence to determine whether the system was constitutional or not. Initiative 872 was not unconstitutional on its face, as there is a chance it could be implemented and not violate the political parties’ rights to speech and association.

Lethal Injections
Constitutionality of the Three-Drug Protocol for Execution
Does the Kentucky Lethal Injection Procedure Constitute “Cruel and Unusual Punishment”?
(Excerpted from Supreme Court Debates, March 2008)

Lethal injection is by far the most used method of execution in the United States. Seventeen States and the Federal Government authorize lethal injection as the sole method of execution. Twenty other States provide for lethal injection as the primary method. Of the 1,029 executions performed from 1976 through June 2006, 861were by lethal injection, including 375 of the last 378.

Recently, however, lethal injection has become controversial, as critics have contended that the “three-drug protocol,” in which a prisoner is given an anesthetic followed by a muscle relaxant and a drug to stop the heart lead to executions that, while seeming peaceful, actually cause excruciating pain.

The U.S. Supreme Court is now entering the debate, as it considers whether Kentucky’s lethal injection procedure constitutes cruel and unusual punishment prohibited by the Eighth Amendment. In the meantime, executions across the Nation have come to a halt, as States wait to see how the High Court rules.

The case in question arises out of a challenge in State court by two death-row inmates, Ralph Baze and Thomas C. Bowling. Baze was convicted of murdering two Kentucky police officers, while Bowling received a death sentence for fatally shooting a husband and wife and seriously wounding their 2-year-old child. The circuit court trial judge who heard their challenge ruled that there was no substantial risk that lethal injections would cause excruciating pain in violation of the Eighth Amendment. The two prisoners appealed to the Kentucky Supreme Court, which in November 2006 unanimously upheld the lower court’s decision. They then appealed to the U.S. Supreme Court, which granted certiorari on September 25, 2007.

A much better procedure, they maintained, would be to administer a barbiturate similar to the anesthetic already in use, but in a quantity sufficient enough to cause death. Or, if the three-drug protocol is used, an expert should be present to make sure the anesthetic is working.

Lawyers for Kentucky countered that no evidence has been presented that the worst-case scenarios Petitioners describe have occurred and that sufficient safeguards are in place to prevent them.

With experts on both sides arguing the science behind lethal injections, the Supreme Court must now weigh the evidence and decide how rigorous a standard to apply to Kentucky’s death penalty procedure. A ruling in favor of Kentucky would allow lethal injections to continue in much the same manner as they have over the last two decades. If the Court reverses, however, it could dramatically alter the way capital punishment is carried out in the United States.

Voter ID Laws
Photo Identification Requirements at the Polls
Does the Indiana Law Requiring Voters to Show Photo Identification Violate the Constitution?
(Excerpted from Supreme Court Debates, February 2008)

Earlier this month, the U.S. Supreme Court heard a case involving a State voter ID law that may or may not effectively and constitutionally address in-person voter fraud, a problem that, according to what little research has been done on the issue, may or may not even exist. The Court must now sort through the conflicting facts and determine what standard to use when weighing the possible benefits and harms of this law before issuing its decision on a subject that has been the focus of highly partisan battles in numerous States.

The law in question was passed by the Indiana Legislature and signed into law by Republican Governor Mitch Daniels on April 7, 2005. It requires voters in the State to show some form of government photo identification, such as a driver’s license, before casting a ballot, with some exceptions.

A group of Democrats, led by the Indiana Democratic Party, filed suit against the State and several State officials, arguing that the law violated the constitutional rights of those who did not have easy access to photo identification, such as the elderly, the homeless, the urban poor, and the disabled. Both a Federal district court and the Seventh Circuit Court of Appeals ruled against them, however, holding that the Indiana law was not a severe burden on the right to vote.

The Democrats appealed to the U.S. Supreme Court, which granted certiorari on September 25, 2007. An array of conservative think tanks, politicians, and States filed amicus curiae briefs in support of Indiana. Meanwhile, the AARP, NAACP, ACLU, and various other civil rights groups, activists, and nonprofit organizations lined up with the Indiana Democrats.

The oral arguments on January 9 mirrored the debates that have taken place in State legislatures across the country. Lawyers for the Indiana Democratic Party made the case that in-person voter fraud is hardly a problem worth addressing with such a drastic remedy.

Lawyers for the State of Indiana countered that in-person voter fraud is difficult to detect and the previous system of relying on poll workers to compare the signature of the voter with the one on file is unreliable.

The Supreme Court has a variety of options to consider over the next few months. It could dismiss the case for lack of standing, which Justice Scalia seemed to advocate during oral arguments, effectively remaining silent on the issue. It could uphold the Indiana law, opening the door for more States to follow. Or, it could strike down all or part of the law (such as the courthouse indigency affidavit requirement), possibly remanding it to the lower courts for further proceedings and evidence-gathering. Whatever course it decides on will likely only fan the flames of partisan rancor over this highly controversial issue.

Enemy Detainees
The Legality of Military Tribunals
Can Congress Strip Federal Courts of Jurisdiction Over Foreign Citizens Indefinitely Detained by the United States as Enemy Combatants?
(Excerpted from Supreme Court Debates, January 2008)

Ever since the United States began sending suspected terrorists to its naval base in Guantánamo Bay, Cuba, in late 2001, Federal courts have been embroiled in battles over the constitutionality of the detentions and the rights of the detainees to challenge their incarceration. And every time a detainee has won a major court battle, Congress has stepped in to adjust the law and limit the scope of the victory.

Twice over the past four years, the U.S. Supreme Court has heard cases relating to Guantánamo Bay detentions, issuing decisions that have upheld the rights of both citizens and noncitizens to seek an impartial review of their detention and questioned whether the Bush Administration’s military commissions constituted such an opportunity. Now, the Court considers the constitutionality of Congress’s latest response to these decisions, the Military Commissions Act of 2006 (MCA).

The case presently before the court began when Lakhdar Boumediene and five other Algerian natives were arrested in Bosnia under suspicion that they planned to attack the U.S. embassy in Sarajevo in late 2001. Although the Bosnian Supreme Court determined that they should be released due to lack of evidence, they were turned over to U.S. forces, which transported them to Guantánamo Bay. They have remained there ever since.

In July 2004, a group of detainees, including Boumediene, initiated habeas corpus proceedings in U.S. Federal court, challenging their detention and the adequacy of the tribunals that reviewed their cases. A district court dismissed their suit, however, and the D.C. Court of Appeals agreed. The group then appealed to the U.S. Supreme Court, which ruled in Rasul v. Bush (2004) that the foreign detainees did have standing to sue and ordered the district court to reconsider the case.

Congress countered the Court’s decision with the Detainee Treatment Act of 2005 (DTA), which denied Federal court jurisdiction over suits filed by Boumediene and other foreigners held in Guantánamo Bay. Once again, the detainees sued, and once again a district court and the D.C. Court of Appeals dismissed the case. The Supreme Court again stepped in, ruling in Hamdan v. Rumsfeld (2007) that the DTA did not apply to detainees like Boumediene, who had initiated court proceedings before Congress passed the law, and that the military commissions that the Bush Administration had instituted were not adequate.

Congress then passed the MCA, which authorized the president to convene military commissions and reduced the access of aliens in U.S. custody to Federal courts, no matter when their suits were filed. Detainees may appeal the decision of the commissions, but only to the Court of Appeals for the D.C. Circuit.

Boumediene and the other detainees went back to Federal court, arguing that the MCA did not apply to them and, if it did, it was an unconstitutional denial of the right to habeas corpus. The district court dismissed the case, however, and the D.C. Circuit followed suit. Boumediene, et al. then appealed to the U.S. Supreme Court, which in April 2007 voted 6 to 3 to not hear the case (four votes are necessary to grant certiorari). Two months later, however — following claims by an Army lawyer that the military commissions were “shams” — the Court reversed course and agreed to consider the detainees’ appeal.

During oral arguments, lawyers for Boumediene, et al., argued that the Constitution’s requirement that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it” had not been met.

Laywers for the United States countered that the military commissions created by the Bush Administration and the MCA met the standards set out by the Supreme Court in Hamdan.

Since the Court has ruled in previous cases that foreign detainees at Guantánamo Bay are entitled to some sort of review process, the case will likely turn on whether the Court considers the military commissions to be an acceptable replacement for habeas review by Federal courts. A win by the United States will likely be seen as an endorsement of the current system. If Boumediene prevails, however, expect another round of congressional legislation and Federal court battles — which could once again end up on the steps of the Supreme Court.

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