Showing posts with label U.S. Supreme Court. Show all posts
Showing posts with label U.S. Supreme Court. Show all posts

Unexceptionalism: A Primer, By E. L. Doctorowapril 28, 2012


Unexceptionalism: A Primer
By E. L. DOCTOROWAPRIL 28, 2012

TO achieve unexceptionalism, the political ideal that would render the United States indistinguishable from the impoverished, traditionally undemocratic, brutal or catatonic countries of the world, do the following:
PHASE ONE
If you’re a justice of the Supreme Court, ignore the first sacrament of a democracy and suspend the counting of ballots in a presidential election. Appoint the candidate of your choice as president.
If you’re the newly anointed president, react to a terrorist attack by invading a nonterrorist country. Despite the loss or disablement of untold numbers of lives, manage your war so that its results will be indeterminate.
Using the state of war as justification, order secret surveillance of American citizens, data mine their phone calls and e-mail, make business, medical and public library records available to government agencies, perform illegal warrantless searches of homes and offices.
Take to torturing terrorism suspects, here or abroad, in violation of the Eighth Amendment of the Constitution, which prohibits the infliction of cruel and unusual punishment. Unilaterally abrogate the Convention Against Torture as well as the Geneva Conventions regarding the treatment of prisoners of war. Commit to indeterminate detention without trial those you decide are enemies. For good measure, trust that legislative supporters will eventually apply this policy as well to American citizens.

Suspend progressive taxation so that the wealthiest pay less proportionately than the middle class. See to it that the wealth of the country accumulates to a small fraction of the population so that the gap between rich and poor widens exponentially.
By cutting taxes and raising wartime expenditures, deplete the national treasury so that Congress and state and municipal legislatures cut back on domestic services, ensuring that there will be less money for the education of the young, for government health programs, for the care of veterans, for the maintenance of roads and bridges, for free public libraries, and so forth.
Deregulate the banking industry so as to create a severe recession in which enormous numbers of people lose their homes and jobs.
Before you leave office add to the Supreme Court justices like the ones who awarded you the presidency.
PHASE TWO
If you’re one of the conservative majority of a refurbished Supreme Court, rule that corporations, no less than human beings, have the right under the First Amendment to express their political point of view. To come to this judgment, do not acknowledge that corporations lack the range of feelings or values that define what it is to be human. That humans can act against their own interest, whereas corporations cannot act otherwise than in their own interest. That the corporation’s only purpose is to produce wealth, regardless of social consequences.
This decision of the court will ensure tremendous infusions of corporate money into the political process and lead to the election in national and state legislatures of majorities of de facto corporate lobbyists.

PHASE THREE
Given corporate control of legislative bodies, enact laws to the benefit of corporate interests. For example, those laws sponsored by weapons manufacturers wherein people may carry concealed weapons and shoot and kill anyone by whom they feel threatened.
Give the running of state prisons over to private corporations whose profits increase with the increase in inmate populations. See to it that a majority of prisoners are African-American.
When possible, treat immigrants as criminals.
Deplete and underfinance a viable system of free public schools and give the education of children over to private for-profit corporations.
Make college education unaffordable.
Inject religious precepts into public policy so as to control women’s bodies.
Enact laws prohibiting collective bargaining. Portray trade unions as un-American.
Enact laws restricting the voting rights of possibly unruly constituencies.
Propagandize against scientific facts that would affect corporate profits. Portray global warming as a conspiracy of scientists.
Having subverted the Constitution and enervated the nation with these measures,  portray the federal government as unwieldy, bumbling and shot through with elitist liberals.  Create mental states of maladaptive populism among the citizenry to support this view.
PHASE FOUR
If you’re a justice of the Supreme Court, decide that the police of any and all cities and towns and villages have the absolute authority to strip-search any person whom they, for whatever reason, put under arrest.

With this ruling, the reduction of America to unexceptionalism is complete.

Kiobel decision

http://www.supremecourt.gov/opinions/12pdf/10-1491_8n59.pdf



Breaking: US Supreme Court Affirms Second Circuit Dismissal of ATS Suit in Kiobel v. Royal Dutch Petroleum Co.
by Kenneth Anderson
April 17th, 2013 - 10:55 AM EDT

The US Supreme Court released its long-awaited Kiobel decision this morning, affirming the Second Circuit’s dismissal of the plaintiffs Alien Tort Statute claims.  Chief Justice Roberts wrote the opinion, joined by Justices Scalia, Alito, Thomas, and Kennedy.  Justice Kennedy wrote a separate concurrence; Justice Alito did likewise, joined by Justice Thomas. Justice Breyer concurred in the judgment, joined by Justices Ginsburg, Sotomayor, and Kagan.


Will International Law Impact the Gay Marriage Cases? Conservatives Seem to Hope So.


Will International Law Impact the Gay Marriage Cases? Conservatives Seem to Hope So.
by Peter Spiro   March 24th, 2013 

It should be no surprise that there is an amicus brief in support of striking down the Defense of Marriage Act from a global angle, charting an international trend towards recognition of same-sex marriages. (The brief is on behalf of a select lawprof group – Harold Koh, Sarah Cleveland, Larry Helfer, and Ryan Goodman, part of a trend toward elite, small-list amici filings also evident here and here.) The brief skillfully plays to the Court’s self-interest and the opportunity to enhance its international prestige: “Courts in other countries have invoked this Court’s reasoning in Lawrence, for example, to strike down laws that impinge upon the intimate relations between gay and lesbian couples. The Court’s ruling in this case is likely to have similar influence.” That’s a line that might appeal to a certain swing Justice.

At the same time, there’s no hint in the brief that international law requires the recognition of gay marriage, an argument that would be hard to make. The brief does no overreaching, well advised in the face of serious blowback to the Court’s recent invocations of international law on the way to progressive results. The caution starts with the cover page: the brief is filed on behalf of “foreign and comparative law experts,” not international law ones.

Leave the international law argument to . . . Jeremy Rabkin?

Rabkin and a group of mostly European academics and former jurists have filed a brief in support of California’s decision (through the ballot measure Proposition 8) to reserve marriage for opposite-sex couples. The basic argument: most countries have left the question to democratic processes, which “national and international courts have overwhelmingly refused to trump.” That fact establishes, the brief argues, that there are “rational, non-invidious reasons based in secular public policy considerations” for a jurisdiction’s refusal to recognize same-sex marriage. Variation on the question is fully compatible with “international norms.” [My quotation marks, not theirs!]

The brief carefully qualifies the salience of international practice. “Of course, foreign law and practice cannot and should not determine the meaning of U.S. Constitutional guarantees.” But that practice apparently stands as an empirical resource, a “lesson,” at least.

In the end, I suspect the Court will ignore foreign and international practice in the Windsor and Perry decisions, consistent with its recent posture to things foreign. But the gay marriage cases might mark an important turning point on this particular front of the Culture Wars. With their brief, conservatives may have conceded the threshold salience of international practices. The door can’t be completely shut on this material, whether the Court expressly acknowledges it or not. Once they’ve played the international law card themselves, conservatives can hardly cry foul next time it’s played against them. (Rabkin himself will have to lose the label “fantasy world“ when speaking of international law.) Perhaps conservatives have come to understand that they can win on this turf, too. (Check out Justice Scalia’s dissent in Roper for pointers.) The bottom line: global practice becomes more deeply entrenched in the everyday of American constitutional law.

Supreme Court to review constitutionality of same-sex marriage


Supreme Court to review constitutionality of same-sex marriage
Friday, December 07, 2012   Julia Zebley


[JURIST] The US Supreme Court [official website] on Friday granted certiorari [order list, PDF] in two cases dealing with same-sex marriage [JURIST backgrounder]. InHollingsworth v. Perry [docket; cert. petition, PDF] the court will consider the validity ofProposition 8 [JURIST news archive], a California referendum that revoked same-sex marriage rights. Same-sex marriage was briefly legal in California following a state Supreme Court decision and then overturned with a constitutional amendment created by Proposition 8. Early in the proceedings, the state of California declined to defend the law, and the backers of Proposition 8, ProtectMarriage.com [advocacy website], successfully intervened. The court will consider whether Proposition 8 is constitutional under the Equal Protection Clause of the Fourteenth Amendment as well as if the Proposition 8 supporters had standing to intervene under Article III [LII Cornell backgrounders].

The court also granted United States v. Windsor [docket; cert. petition, PDF], which examines the constitutionality of Section 3 of the Defense of Marriage Act (DOMA) [text; JURIST news archive]. The case concerns Edith Windsor [ACLU backgrounder], a widow who had a legal same-sex marriage under Canadian and New York law but was denied spousal deduction for federal estate taxes when her wife died. The Supreme Court will consider the constitutionality of DOMA under the Fifth Amendment [LII Cornell backgrounder]. Prior to her challenge, the US Department of Justice (DOJ) announced that it would no longer defend DOMA in courts, and in response, the US House of Representatives formed [JURIST reports] the Bipartisan Legal Advisory Group (BLAG) to defend the law. The court will also consider if BLAG had standing to intervene and if the DOJ's refusal to defend the law deprives the Supreme Court of jurisdiction. The Windsorcourt held homosexuals to an intermediate scrutiny standard of review. The other petitions concerning same-sex marriage remain on hold.

The Kiobel argument


The Kiobel argument

====
DO- I agree “early consensus seems to be that while a majority of the justices were plainly concerned by a reading of the universal jurisdiction statute that would give the courts the power to hear cases with no substantial connection to the United States, “a majority [also] did not seem inclined to narrow the Alien Tort Statute nearly into non-existence.””—the first part given the oral argument by Mr. Paul Hoffman, the latter part given the one by Ms. Sullivan.
====

For the transcript

Kiobel Watching
by Deborah Pearlstein  October 1st, 2012

For those watching for signs of how oral arguments went in the U.S. Supreme Court in Kiobel this morning, early consensus seems to be that while a majority of the justices were plainly concerned by a reading of the universal jurisdiction statute that would give the courts the power to hear cases with no substantial connection to the United States, “a majority [also] did not seem inclined to narrow the Alien Tort Statute nearly into non-existence.” So writes the venerable Lyle Denniston over at Scotusblog. There may be quite a line-drawing exercise to come. More on the arguments here in a bit…

Kiobel Oral Argument: Why the ATS as We Know it is in Jeopardy
by Roger Alford

My initial impression of the Kiobel oral argument is that the Supreme Court is going to do its best to do an historical analysis of the ATS and use that history to find ways to limit its scope. (DO – I agree) .. But one way or the other, I predict that the ATS as it currently is applied by lower courts will be severely limited.

The good news for the plaintiffs is that Paul Hoffman did an exceptional job of trying to make the ATS sound unexceptional. One of his best arguments was that courts have all the tools they need to address the concerns about friction with foreign nations, including the political question doctrine, the act of state doctrine, international comity, forum non conveniens, and personal jurisdiction. In other words, these concerns about tensions with foreign nations are legitimate, but courts already have developed doctrines sensitive to those concerns. When pressed, he was even willing to make more concessions, such as the possible need to exhaust local remedies. The bad news is that the swing Justices did not appear to be buying the argument that the arrows currently in the quivers of the courts are enough to limit the reach of the ATS.

Kathleen Sullivan’s key argument was that the presumption against extraterritoriality required clear congressional intent, which she argued was lacking in this case. She then fumbled by trying to argue that the Court’s recognition of piracy in Sosa did not undercut this argument. She should have stuck with her argument about the purpose of the presumption against extraterritoriality—to avoid encroachment on the sovereign prerogatives of other nations to regulate conduct in their territory—and conceded the point about piracy on the high seas as falling within the scope of the ATS. Instead, she argued that pirate ships are mini-foreign countries and tried to argue that that the presumption applied even to pirate ships. It was not a fatal mistake, but it was painful to read.

Sullivan also struggled with Justice Kagan’s creative reverse Marbois question, (page 30-32) which aptly addresses the possibility that foreign tensions can arise from an American’s misconduct against a foreign national on foreign soil, just as much as an American’s misconduct on domestic soil. Sullivan argued that other remedies were available, such as extradition or state law torts for assault. That may be true, but that is also true for an American’s misconduct on domestic soil. Her argument didn’t address the critical question of why Congress believed the ATS was necessary in the first place, and why it should only apply to domestic misconduct by Americans. If concern about foreign friction is what is driving the ATS, she should have taken a page from Hoffman and conceded points that were not essential to her case, such as the possibility that the ATS applied to foreign conduct by an American non-corporate defendant. (That seemed to be Solicitor General Verrilli’s position: that the ATS should only apply where there is a clear U.S. nexus, such as misconduct by an American national on foreign soil or misconduct by a foreign national on U.S. soil.)

Argument recap: In search of an ATS compromise
Lyle Denniston Reporter Posted Mon, October 1st, 2012 2:35 pm

Paul L. Hoffman, a California lawyer representing Nigerian nationals claiming killing and torture in their homeland, faced claims that his approach would mean no limits on a worldwide pursuit of human rights justice, potentially disrupting diplomatic relations generally.  Kathleen M. Sullivan, a New York lawyer for the big foreign oil companies sued in the case and seeking to head off almost all ATS claims, encountered suggestions that her view would cut back even on ATS claims that the Court has already allowed.  And U.S. Solicitor General Donald B. Verrilli, Jr., arguing against the Kiobel claim but pleading to keep the courts open to at least some ATS cases, ran up against arguments that he was switching away unpersuasively from the more clear-cut position taken by the government in the past.

The Sosa ruling came up repeatedly in Monday’s discussion, and the Justices pressed the oil companies’ lawyer on whether the Court would have to overrule that decision in order to rule for those companies.

There also was some discussion of whether an ATS case should be barred if the suing party had not first tried to get some remedy in the country where the alleged international law violations had occurred.

A gut reaction to today's Kiobel arguments
Posted Mon, 2012-10-01 17:29 by Rick Herz

No one on the court seemed willing to overturn the precedent set in Sosa to find that the ATS does not apply abroad.  Justice Kagan actually read from the Sosa opinion today, reminding us that yesterday’s pirate is the modern day torturer, and our courts should keep the doors open to victims of these kinds of universally condemned human rights abuses.

Taking One for the Country By Thomas L. Friedman


Taking One for the Country
By THOMAS L. FRIEDMAN  June 30, 2012

IN my mind, there are two lessons from the Supreme Court’s 5-to-4 decision to support President Obama’s health care plan: 1) how starved the country is for leadership that puts the nation’s interest before partisan politics, which is exactly what Chief Justice John Roberts Jr. did; and 2) the virtue of audacity in politics and thinking big. Let’s look at both.

It was not surprising to hear liberals extolling the legal creativity and courage of Chief Justice Roberts in finding a way to greenlight Obama’s Affordable Care Act. But there is something deeper reflected in that praise, and it even touched some conservatives. It’s the feeling that it has been so long since a national leader “surprised” us. It’s the feeling that it has been so long since a national leader ripped up the polls and not only acted out of political character but did so truly for the good of the country — as Chief Justice Roberts seemingly did.

I know that this was a complex legal decision. But I think it was inspired by a simple noble leadership impulse at a critical juncture in our history — to preserve the legitimacy and integrity of the Supreme Court as being above politics. We can’t always describe this kind of leadership, but we know it when we see it and so many Americans appreciate it.

This is still a moderate, center-left/center-right country, and all you have to do is get out of Washington to discover how many people hunger for leaders who will take a risk, put the country’s interests before party and come together for rational compromises. Why do we all jump up and applaud at N.B.A. or N.F.L. games when they introduce wounded Iraq or Afghan war veterans in the stands? It’s because the U.S. military embodies everything we find missing today in our hyperpartisan public life. The military has become, as the Harvard philosopher Michael Sandel once put it, “the last repository of civic idealism and sacrifice for the sake of the common good.”

Indeed, I found myself applauding for Chief Justice Roberts the same way I did for Al Gore when he gracefully bowed to the will of the Supreme Court in the 2000 election and the same way I do for those wounded warriors — and for the same reason: They each, in their own way, took one for the country.

To put it another way, Roberts undertook an act of statesmanship for the national good by being willing to anger his own “constituency” on a very big question. But he also did what judges should do: leave the big political questions to the politicians. The equivalent act of statesmanship on the part of our politicians now would be doing what Roberts deferred to them as their responsibility: decide the big, hard questions, with compromises, for the national good. Otherwise, we’re doomed to a tug of war on the deck of the Titanic, no matter what health care plan we have.

I see no sign of Mitt Romney being ready for such a “Roberts moment.” I still have hope for Obama. He’s entitled to a victory lap for daring to go big — ignoring his advisers — to bring health care to the whole country. It’s a huge achievement.

But he needs to go just as big on the economy if he wants the Affordable Care Act to be something we can actually afford. That requires economic growth. Yet Obama’s campaign has been all small-ball wedge issues, trying to satisfy enough micro-constituencies to get 50.1 percent of the vote.

Listen to the broad reaction to Roberts. Look at the powerful wave he has unleashed for big, centrist, statesmanlike leadership. That all tells me that people are also hungry for a big plan from the president to fix the economy, one that will bite and challenge both parties at the scale we need, fairly share the burdens and won’t just be about “balancing the budget,” but about making America great again.

The opportunity for such a plan is hiding in plain sight. America today is poised for a great renewal.

Our newfound natural gas bounty can give us long-term access to cheap, cleaner energy and, combined with advances in robotics and software, is already bringing blue-collar manufacturing back to America. Web-enabled cellphones and tablets are creating vast new possibilities to bring high-quality, low-cost education to every community college and public school so people can afford to acquire the skills to learn 21st-century jobs. Cloud computing is giving anyone with a creative spark cheap, powerful tools to start a company with very little money. And dramatically low interest rates mean we can borrow to build new infrastructure — and make money.

“We are at a transformational moment in terms of our potential as a country, and we have two candidates playing rope-a-dope,” said David Rothkopf, author of “Power, Inc.”

If we can just get a few big things right today — a Simpson-Bowles-like grand bargain on spending and tax reform that unleashes entrepreneurship, a deal on immigration that allows the most energetic and smartest immigrants to enrich our country and a plan on energy that allows us to tap all these new sources in environmentally safe ways — no one could touch us as a country. Connect the dots for people, Mr. President — be the guy taking the risk to offer that big plan for American renewal, and Romney will never be able to touch you.

Strip-search at jail entry approved by U.S. justices


Strip-search at jail entry approved by U.S. justices;
5-4 court rules procedure permissible in all cases, even for minor offenses

BYLINE: ADAM LIPTAK, April 4, 2012 Wednesday, The International Herald Tribune

The Supreme Court ruled 5 to 4 that people arrested for any offense, however minor, could be forced to strip before being jailed, even if no reasonable suspicion of contraband exists.

The U.S. Supreme Court has ruled by a 5-to-4 vote that officials may strip-search people arrested for any offense, however minor, before admitting them to jails, even if the officials have no reason to suspect the presence of contra-band.

Justice Anthony M. Kennedy, joined by the court's conservative wing, wrote that courts were in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs, but also public health and information about gang affiliations.

''Every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed,'' Justice Kennedy wrote, adding that about 13 million people were admitted each year to U.S. jails.

The procedures endorsed by the majority are forbidden by statute in at least 10 states and are at odds with the policies of the U.S. government. According to a supporting brief filed by the American Bar Association, international human rights treaties also ban the procedures.

U.S. appeals courts had been split on the question, though most of them prohibited strip-searches unless they were based on a reasonable suspicion that contraband was present. The Supreme Court did not say Monday that strip-searches of every new arrestee were required; it ruled, rather, that the Fourth Amendment's prohibition of unreasonable searches did not forbid them.

Daron Hall, the president of the American Correctional Association and sheriff of Davidson County, Tennessee, said the association welcomed the flexibility offered by the decision. The association's current standards discourage blanket strip-search policies.

The sharply divided decision Monday came from a court whose ideological differences are under intense scrutiny after last week's arguments on President Barack Obama's health care law. The ruling came less than two weeks after a pair of major 5-to-4 decisions on the right to counsel in plea negotiations, though there Justice Kennedy had joined the court's liberal wing.

The majority and dissenting opinions on Monday agreed that the search procedures the decision allowed - close visual inspection by a guard while naked - were more intrusive than being observed while showering but did not involve bodily contact.

Justice Stephen G. Breyer, writing for the four dissenters, said the strip-searches the majority allowed were ''a serious affront to human dignity and to individual privacy'' and should be used only when there was good reason to do so.

Justice Breyer said that the Fourth Amendment should be understood to bar strip-searches of people arrested for minor offenses not involving drugs or violence, unless officials had a reasonable suspicion that they were carrying contraband.

The decision Monday endorsed a recent trend - coming from appeals courts in Atlanta, San Francisco and Philadelphia - of allowing strip-searches of everyone admitted to a jail's general population. At least seven other appeals courts, on the other hand, had ruled that such searches were proper only if there was a reasonable suspicion that the arrested person had contraband.

According to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to ''the humiliation of a visual strip-search'' after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.

A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration.

Justice Kennedy responded that ''people detained for minor offenses can turn out to be the most devious and dangerous criminals.'' He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. ''One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,'' Justice Kennedy added.
The case decided Monday, Florence v. County of Burlington, No. 10-945, arose from the arrest of Albert W. Florence in New Jersey in 2005. Mr. Florence was in the passenger seat of his BMW when a state trooper pulled his wife, April, over for speeding. A records search revealed an outstanding warrant for Mr. Florence's arrest based on an unpaid fine. (The information was wrong; the fine had been paid.)

Mr. Florence was held for a week in jails in Burlington and Essex Counties, and he was strip-searched in each. There is some dispute about the details but general agreement that he was made to stand naked in front of a guard who required him to move intimate parts of his body. The guards did not touch him.

''Turn around,'' Mr. Florence, in an interview last year, recalled being told by jail officials. ''Squat and cough. Spread your cheeks.''

''I consider myself a man's man,'' said Mr. Florence, a finance executive for a car dealership. ''Six-three. Big guy. It was humiliating. It made me feel less than a man.''

Justice Kennedy said the most relevant precedent was Bell v. Wolfish, which was decided by a 5-to-4 vote in 1979. It allowed strip-searches of people held at the Metropolitan Correctional Center in New York after ''contact visits'' with outsiders.

As in the Bell case, Justice Kennedy wrote, the ''undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the more invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband.''

The majority and dissenting opinions drew differing conclusions from the available information about the amount of contraband introduced into jails and how much strip-searches add to pat-downs and metal detectors.
Justice Kennedy said one person arrested for disorderly conduct in Washington State ''managed to hide a lighter, tobacco, tattoo needles and other prohibited items in his rectal cavity.'' Officials in San Francisco, he added, ''have discovered contraband hidden in body cavities of people arrested for trespassing, public nuisance and shoplifting.''

Justice Breyer wrote that there was very little empirical support for the idea that strip-searches detect contraband that would not have been found had jail officials used less intrusive means, particularly if strip-searches were allowed when officials had a reasonable suspicion that they would find something.

For instance, that standard was used in a study of 23,000 people admitted to a correctional facility in Orange County in New York, and there was at most one instance of contraband detected that would not otherwise have been found, Judge Breyer wrote.

Justice Kennedy said that strict policies deter people entering jails from even trying to smuggle contraband.
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Justice Breyer's dissent. Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr. joined all of Justice Kennedy's majority opinion, and Justice Clarence Thomas joined most of it.

In a concurrence, Chief Justice Roberts, quoting from an earlier decision, said that exceptions to the Monday ruling were still possible ''to ensure that we 'not embarrass the future.'''

Justice Alito wrote that different rules might apply for people arrested but not held with the general population or whose detentions had ''not been reviewed by a judicial officer.''

The president declared Monday that he was confident the Supreme Court would uphold his health care law, saying it would be an ''unprecedented, extraordinary'' step to overturn legislation passed by the ''strong majority of a democratically elected Congress,'' Mark Landler reported from Washington.

In his first public comments since court questioning last week suggested that it might find the Affordable Care Act unconstitutional, Mr. Obama offered both a robust defense of the law and a barbed warning to justices thinking of striking it down.

''For years, what we've heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law,'' Mr. Obama said after meeting at the White House with the leaders of Mexico and Canada. ''Well, there's a good example,'' he continued, ''and I'm pretty confident that this court will recognize that and not take that step.''

Kiobel case to be expanded and reargued


Supreme Court Expands Corporate Human Rights Case, Avoids Corporate Liability Question
03/05/12 06:10

The Supreme Court on Monday afternoon took the unusual action of ordering reargument in the case heard last weekthat has been brought against a multinational oil corporation for aiding and abetting human rights violations in Nigeria.

Monday's order, however, pushes aside the question of corporate liability to address a less politically explosive, but much more consequential question: whether any entity -- individual, state, corporation -- can be brought to justice in U.S. courts for abuses committed abroad.

That question, though, was not before the justices last week. In fact, mining giant Rio Tinto has submitted a petition to the justices in a similar case that asks the Court to take on the extraterritoriality issue.
Kiobel's corporate liability question, thus, created a quandary for the Court: If the justices were to rule for corporate immunity in Kiobel, then they would have to dispose of Rio Tinto on the same grounds -- and that would prevent the Court from taking on the broader question of the law's overseas reach.

Monday's order wriggles the Court out of that pickle while also serving to avert the public relations disaster that a ruling for corporate immunity would foist upon the Court, given its ruling two years ago in Citizens United that determined corporations were persons entitled to the First Amendment right to spend unlimited sums during political campaigns.

Feldman said, now that the conservative Justice Samuel Alito has replaced the moderate Justice Sandra Day O'Connor.

Briefing will be completed by the end of June. No reargument date has been set. The specific question the justices put to the parties is "[w]hether and under what circumstances the Alien Tort Statute ... allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States."


The order is here.

The Court gave no reason for its action, but at its private Conference last week, it had examined a new case involving that 223-year-old law that raised directly the question of whether it applied to overseas conduct — that is, the issue of “extraterritoriality.”   That other case was Rio Tinto PLC, et al., v. Sarei, et al. (11-649).   When the orders from Friday’s Conference were released Monday morning, there was no mention of that case.  Four hours later, the new order emerged.   The Justices faced the option of granting the Rio Tinto case and essentially starting over in interpreting the ATS, or expanding the review of the Kiobel caseThey chose the second option, with the effect of putting the case over to the Term starting October 1.

 The Kiobel parties are to file their brief by May 3, with the oil companies involved due to file their response by June 4.  A reply brief is due by June 29.  Amici also may file added briefs as dictated by Court rules.

In addition to the extraterritoriality question, the Court also seemed to be promising a ruling on another issue under ATS: can a party that is being sued be challenged not for directly engaging in human rights abuses, but for “aiding and abetting” someone else who did so.  That question appears to be within the part of Monday’s order that called for briefs to address “what circumstances” can be alleged under ATS.   That was another of the questions that had been posed in theRio Tinto case, and it was a question posed by Justice Antonin Scalia at last week’s oral argument.  A ruling on the “circumstances” that may be the target of an ATS case would also potentially include whether corporations may be targeted, it would appear.

While the question the Court raised for lawyers appeared to focus explicitly on the meaning of the law, it is at least conceivable — if not very likely — that the Court might go so far as to question in the new round whether Congress has the constitutional authority to pass a law authorizing a lawsuit in which both sides are non-citizens and the misconduct occurred entirely overseas.  At last week’s argument, Justice Samuel A. Alito, Jr., asked: “Is there an Article III source of jurisdiction for a lawsuit like this?…What’s the constitutional basis for a lawsuit like this, where an alien is suing an alien?”   The Court, of course, has a long tradition of not deciding constitutional issues if it can decide a case on other grounds, and it may well follow that tradition in this instance.

(DO- if Luis Henkin were around … )

The new order was another, vivid illustration of the tendency of the “Roberts Court” to take on the broadest kind of controversy in cases brought to it.    The current Term of the Court is quite literally filled with cases of a broad sweep, including the constitutionality of the new federal health care law and the power of states to restrict the activities within their borders of undocumented immigrants.  And, for next Term, the Court had already taken on the abiding question of whether it is unconstitutional for public colleges and universities to use race in selecting their entering classes of students.   In addition, there is a strong chance that the Court next Term could be reexamining its controversial ruling in Citizens United v. Federal Election Commission in a new case from Montana — that is, if it does not dispose of that case by a summary ruling this Term, which is a possibility.

The Court’s order in the Kiobel case made no mention of another case on corporate liability for human rights violations that also was argued last Tuesday —Mohamad v. Palestinian Authority (docket 11-88).  That case, however, involves an entirely different law — the Torture Victim Protection Act of 1992 — and the issue is whether a U.S. citizen can sue a foreign political organization for such atrocities.  The Mohamad case asks the Court whether the word “individual” as the target of a TVPA lawsuit includes a political organization or another non-human entity, including a corporation.   Presumably, the Court can go ahead and decide that issue without waiting for its review of the scope of the Alien Tort Statute.  In fact, at last Tuesday’s argument, there were strong indications that the Court was unmoved by the notion that “individuals” means anything other than human beings.

It is quite unusual for the Court, after briefing and argument on a case, to put it over until its next Term.  But it is not unprecedented: in fact, the Court’s Citizens United ruling on campaign finance was put off to a following Term, and expanded in scope.  The result was a much more sweeping case than the one that reached the Court initially.

Monday’s order almost certainly have the support of at least five Justices, although this is not spelled out in the formal rules of the Court.   The Court does not reveal how its members vote on such an issue.  It takes the votes of four Justices to hear a case in the first instance, but disposition after that very likely depends upon majority support; the reasoning, if not spelled out in the order, may vary among the Justices in such a majority, however.

The Judiciary Committee voted in favor of a bill allowing US Supreme Court proceedings to be televised


The Senate Judiciary Committee voted in favor of a bill that would allow televising of US Supreme Court proceedings

Friday, February 10, 2012, Sung Un Kim

Senate Judiciary Committee  approves bill to televize Supreme Court proceedings  

[JURIST] The Senate Judiciary Committee [official website] on Thursday voted 11-7[CSPAN video] in favor of a bill [S 1945 text, PDF] that would allow televising of US Supreme Court [official website] proceedings.  Currently, only few citizens can hear the proceedings in person, and audio recordings are released after the proceedings are over. However, the bill would not make televising proceedings mandatory: "The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court." A similar bill, The Cameras in the Courtroom Act of 2011 [HR 3572, PDF] is still pending in the House Judiciary Committee [official website].
This bill, when first proposed, faced numerous criticism as well as support and initiated a longstanding debate [JURIST report; hearing materials] among judiciary and congressional officials. Supporters argued that the bill would create a more transparent government and secure citizens' right to access governmental materials. On the other spectrum, there was concern that parts of the proceedings could be taken out of context and be abused creating misrepresentations of the court.

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The bill that allows the Court proceeding to be televised was introduced before. It is not the first of the kind.

To be clear, the US Supreme Court is not kept secret. Whoever is interested in watching the Court proceeding can go visit the Court. There are four ways to secure the seat: (i) 5 minute line where you don’t have to wait in long line until being admitted to the Court room and watching about 5 minutes, (ii) camp out in case of high profile – if you want to sit as long as you want, you have to wait in line; from 5 or 6 am if a high profile case, (iii) insider ticket that is given to each party to the case that is argued, and (iv) if you know the Supreme Court Justice … you know.  More to the point, the decision made by the Court is made public.

There are three reasons against the idea of televising the proceeding. The Justices argue that (i) approval rating to the Court is higher than executive and legislative branch. No legitimate reason to subject the Court under scrutiny. In any event, the Court decision is made public. The proceeding is open to public; (ii) we are good (e.g. in terms of integrity) enough to make televising unnecessary, and (iii) if televised, it will change the attitude of attorneys as well as Justices.

However, Supreme Court Approval Rating Dips to 46% (October 3, 2011), down 15 percentage points from 2009. See http://www.gallup.com/poll/149906/supreme-court-approval-rating-dips.aspx

There is no practical incentive for the Justices to support televising. President and legislative branch need public support to secure their job, whereas the Justices can sit as long as they want. Whether or not people hate them, they can continue to do their job in a way they want.

What if the bill is passed into law?

The Court still can craft the rules under which proceedings are allowed to televised. In which case, how can the rule be challenged?
(i), Government can petition for review of the rule. The Justices are not necessarily required to recuse themselves, as there have been the US Supreme Court cases where the Court was a party. In addition, there is no statute or rule that articulate the recusal. The recusal is, in essence, up to Justice themselves.
(ii), public interest group can petition if it meets the requirement of organizational standing.
(iii) there seem to be a mechanism where Congress may strike down a rule that is mandated to implement statute.