CLS 12th Annual Supreme Court Round-Up

Columbia Law School
Social Justice Initiative Presents:

Twelfth Annual U.S. Supreme Court Round-Up

Wednesday, October 4, 2006

Participants:

Robert Garcia, Public Defender with the Neighborhood Defender Service of Harlem and a Special Litigator working with the NYU Community Defender Clinic

Thomas W. Merrill, Charles Keller Beekman Professor at Columbia

Michael Ratner, President of the Center for Constitutional Rights

Steven R. Shapiro, Legal Director of the ACLU

Overview “The First Year of the Roberts Court”

Professor Merrill opened the evening with a synopsis of the tumultuous transition and entrance of the two new justices. Cautious decisions and a more conciliatory demeanor on the court marked this period of transition. Later in the terms, a few more controversial and fragmenting decisions were levied. A honeymoon of sorts lasted throughout the term. The Supreme Court is such a unique institution, that it takes quite a long time for justices to get acclimated and become full players on the bench. More turnover of the Court’s lineup is likely: only Justice Thomas is under 67 of pre-Bush appointees.

Shapiro echoed Merrill’s general assessment, but comically pointed out Merrill’s failure to address the aborted Harriet Myer’s nomination. He too foresaw increasing divisiveness in the upcoming term, especially in two high-profile civil liberties issues: abortion and affirmative action. Both cases force the court to revisit issues decided fairly recently with 5-4 decisions. This puts Chief Justice Roberts in an awkward position as the Court’s novice leader: should his vote overrule such a recent precedent? Finally, Shapiro noted a center-ward shift in Rehnquist when he became Chief Justice, and wondered about a similar move for Roberts.

Michael Ratner- The Aftermath of Hamdan

Ratner began by describing the frustrations and complexity of his vantage point as a representative of Guantanamo detainees. “We are one vote away from tyranny,” he declared, invoking “tyranny in the Madisonian sense as the power of all three branches being practically vested in one individual.” Illegal wiretapping and the military commissions for enemy combatants were his prime examples of the accumulation of executive power. He then discussed the statutory issues at play in Hamdan v. Rumsfeld in detail, with the Court finding a narrow range of action for the executive in the formulation of military commissions. The most interesting repercussion of Hamdan is that it permits the application of language in the Geneva Conventions that was not directly at issue in the case, potentially to torture cases.

Shapiro chimed in, lauding the bar generally, as well as military lawyers, for stepping up to combat abuses of executive power and the deprivation of rights incidental to the “War on Terror.”

Thomas Merrill- A Look Ahead: Administrative Law and Other Important Cases

Merrill returned to his theme of the court in transition, using two voting rights cases as illustrations. First, he addressed Randall v. Sorrell, which dealt with campaign contributions law in Vermont. This case has reified the three-way split among the justices that has existed regarding the precedent in Buckley, both new justices residing in a center group and signing on to Justice Breyer’s plurality opinion in Randall. Moving to LULAC, the Texas redistricting case, Merrill pointed to the claim that mid-decade redistricting was an unconstitutional and partisan gerrymander. The court has never laid down a doctrine to assess political gerrymandering, and again, the two new justices aligned themselves in the centrist position of judicial restraint in deciding gerrymandering cases. Merrill opined that the presence of the two rookie justices in the center on these two cases is likely a place holding maneuver in the temperate spirit of newcomers on the court, and therefore not indicative of their potential future positions on similar legal issues.

Looking forward to the coming term, Merrill anticipated Massachusetts v. EPA as an important case on the standing of U.S. state attorney generals to challenge the federal government’s non-enforcement of the emission of greenhouse gasses. In Waters v. Wachovia Bank, a case for which Merrill contributed an AMICUS Brief may prove to be an important precedent determining the relationship between state statute and federal agency decrees.

Robert Garcia- A Look Ahead: Criminal Justice Cases

Garcia began with a discussion of Hudson v. Michigan as an unanticipated ruling that was questionably consistent with precedent. In a criticism of the narrow holding of the case, he suggested that the Court forgot about privacy. Garcia worried that the logic of this opinion could be used to eliminate the exclusionary rule of the 4th Amendment. Turning to more optimistic cases, Davis v. Washington and Hammon v. Indiana. These cases involved convictions without the ability to cross-examine the alleged victim. The Supreme Court stated that an ongoing emergency was an exception to the procedural rule mandating a right to confront adversarial witnesses.

Steven Shapiro- A Look Ahead: First Amendment and Other Important Cases

Shapiro began by announcing the score of the Mets-Dodges playoff game, and – in a further audience-friendly move – announced his intention to be brief and permit time for questions. Shapiro also commented on the Randall case, observing that the two new justices relied heavily on stare decisis in their voting. He then moved to LULAC case, and pointed to the issue of gerrymandering as the single largest hurdle to a more efficient federal electoral government. “Justice Kennedy has now become Justice O’Connor” as the critical middle of the court, proclaimed Shapiro, and considering his ongoing judicial evolution, he is the most interesting justice to observe. Kennedy, in the abortion and affirmative action cases, was in the dissent in precedents, so he will be torn between his commitment to stare decisis and his own prior votes. Shapiro worried about the repercussions of Gacetti v. Ceballos because that decision held that government employees have no right to free speech while under the auspices of their post. One potentially detrimental consequence of this decision is that public employees would be protected when revealing information to the press and public, but not when discussing issues with superiors or colleagues, creating a warped set of incentives for public officials.

In general, the session provided an excellent overview of the serious jurisprudential issues facing the current Supreme Court with an eye toward possible policy repercussions. The CLS ACS and all present thank and commend the Social Justice Initiative at Columbia for sponsoring and presenting this fantastic program.