Fall 2005

Supreme Court Update

The legal community mourns the death of Chief Justice William H. Rehnquist on Sept. 4, 2005. Justice Rehnquist’s death, along with the notice of Justice Sandra Day O’Connor’s intended retirement, leaves two vacancies on the Court. At press time, Senate confirmation hearings for Chief Justice Nominee John G. Roberts, Jr. are currently underway.

On June 27, the Court handed down two rulings dealing with the Establishment Clause of the First Amendment. In Van Orden v. Perry (No. 03-1500), the Court held (5-4) that the display of the Ten Commandments on the grounds of the Texas State Capitol grounds does not violate the First Amendment’s Establishment Clause. Writing for the majority, Chief Justice Rehnquist stressed two points in applying the Establishment Clause to the 22-acre display, which contains 17 monuments and 21 historical markers. He distinguished between the role played by religion and religious traditions throughout our nation’s history, and the principle that governmental intervention in religious matters can itself endanger religious freedom.

In McCreary County, Kentucky v. American Civil Liberties Union of Kentucky (No. 03-1693), the Court held (5-4) that the display of framed copies of the Ten Commandments in state courthouses does violate the Establishment Clause of the First Amendment. When suits were filed in response to posted versions of the Ten Commandments on the courthouse walls of two counties in Kentucky, the legislative bodies of each county attempted to create exhibits emphasizing the Ten Commandments as Kentucky’s “precedent legal code.” Writing for the majority, Justice Souter, while acknowledging the influence the Commandments have had on the law, noted that the original text viewed in its entirety “is an unmistakably religious statement dealing with religious obligations and with morality subject to religious sanction.”

On June 27, in Town of Castle Rock, Colorado v. Gonzales (No.04-278), the Supreme Court ruled (7-2) that law enforcement officials are permitted to use discretion when enforcing a personal restraining order. Ms. Gonzales requested that the police enforce the restraining order she obtained against her estranged husband. The police failed to do so and the children were killed by their father. Ms. Gonzales claimed that, by failing to act, law enforcement had deprived her of her right to Due Process under the Fourteenth Amendment. Reversing the decision of the Court of Appeals for the Tenth Circuit, the Court stated that Colorado law does not mandate the enforcement of a restraining order, but rather calls for discretion by police officers. The Court opined that Ms. Gonzales did not, as she claimed, have a property interest in the enforcement of her restraining order. Thus, the Due Process Clause of the Fourteenth Amendment did not apply. The ABA adopted a resolution on this issue at the 2005 Annual Meeting. The Section co-sponsored the policy, which urges federal, state, territorial, and local governments to enforce protection orders as required by law and urges state and local governments to enact appropriate remedies for failure to enforce criminal and civil protection orders.

In an opinion issued on June 27, the Court held (5-4) in Bell v. Thompson (No. 04-514), that extraordinary action by the Court of Appeals for the Sixth Circuit in reopening death penalty cases infringes on the state’s right to execute convicted capital defendants. Thompson was convicted of abduction and murder and sentenced to death, which was scheduled for Aug. 19, 2004. On June 23, after the U.S. Supreme Court had already denied Thompson’s petition for certiorari, the Court of Appeals for the Sixth Circuit remanded the case for an evidentiary hearing on Thompson’s ineffective-assistance-of-council claim. Justice Kennedy, writing for the majority, noted that at issue in this case is the scope of the Court of Appeals’ authority to withhold the mandate pursuant to Federal Rule of Appellate Procedure 41. The Court found that there was an abuse of discretion by the Court of Appeals for the Sixth Circuit and reversed the decision.

On June 23, the Court held (5-4) in Kelo v. City of New London (No. 04-108), that local governments’ seizure of private residences for the purpose of constructing business complexes for private companies does not violate the “public use” restriction in the Fifth Amendment’s Taking Clause. In 2000, the city of New London approved a development plan that was, “projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city.” In assembling the land needed for the project, the city’s development agent purchased property from willing sellers and used the power of eminent domain to acquire the remainder of the property from unwilling owners in exchange for just compensation. Writing for the majority, Justice Stevens noted that the disposition of this case turns to the question of whether the city’s development plan serves a “public purpose.” The Court gave deference to the assessment of the local government finding that this plan does serve a “public purpose.”

On June 20, the Court held (5-4) in Rompilla v. Beard (No. 04-5462), that a defense counsel’s query to family members regarding possible mitigating circumstances in capital cases is not a reasonable substitute for an examination of prior conviction files. A jury found Rompilla guilty of murder and sentenced him to death. Rompilla appealed, citing ineffective assistance by trial counsel in failing to present significant mitigating evidence about Rompilla's childhood, mental capacity, health, and alcoholism. While the Court of Appeals for the Third Circuit denied this claim, the dissenting opinion noted that trial counsel's failure to obtain relevant records on Rompilla's background contributed to the defense counsel’s unreasonable reliance on family members to tell them what records might be useful. Writing for the majority, Justice Souter agreed with the lower court’s dissent and reversed the judgment. Souter opined that this case calls for specific application of the standard of reasonable competence required on the part of defense counsel by the Sixth Amendment. The ABA filed an amicus brief in this case.

On June 23, In Halbert v. Michigan (No. 03-10198), the Court struck down a Michigan statute that held that appellate counsel need not be appointed to indigent defendants who were convicted by a plea of nolo contendere. After entering a plea of nolo contendere, Antonio Halbert attempted to reverse his plea, but was advised by the court that he must bring his case to the Michigan Court of Appeals. Mr. Halbert’s request for appointed counsel to assist him in such an appeal was denied. In its decision (6-3), the Court ruled that the refusal to appoint counsel to handle his first-tier appeal violated both the Due Process and Equal Protection clauses of the Fourteenth Amendment.

On June 13, the Court held (8-1) in Johnson v. California (No. 04-6964) that the trial court applied the incorrect standard of proof used in determining whether there was a prima facie case of purposeful discrimination under the California state standard established in People v. Wheeler. During jury selection, prosecutors used peremptory challenges to excuse the only three remaining black jurors from a pool of 43 people. When defense counsel objected on the ground that the strikes were based on race, the trial judge, rather than requiring prosecutors to explain their strikes, required defense counsel to establish there was a strong likelihood that the challenges were based on group bias. The California Court of Appeals set aside the verdict but in reinstating it, the California Supreme Court held that Batson v. Kentucky allows states to establish their own standards in evaluating instances of purposeful discrimination in jury selection. The Court established that the current California standard was “at odds with the prima facie inquiry mandated by Batson,” and that the fact that all three prospective Black jurors were removed was sufficient to establish a prima facie case of purposeful discrimination.

Granted Cert Petitions:

The Court also granted certiorari to several cases of interest to the Section.

On Nov. 9, the Court will hear oral arguments in United States v. Georgia (04-1236) and Goodman v. Georgia (04-1203), where the questions address whether, and to what extent, Title II of the Americans with Disabilities Act validly abrogates state sovereign immunity for suits by prisoners with disabilities challenging discrimination by state-operated prisons. The Section sponsored an ABA amicus curiae brief in support of petitioner Goodman in this case.

On Oct. 3, in Wagnon, Sec., Dept. of Revenue v. Prairie Band Nation (04-631) the Court will consider questions regarding tribal rights and whether the White Mountain Apache interest-balancing test should be abandoned in favor of a preemption analysis based on the principle that Indian immunities are dependent up on congressional intent.

On Oct. 5, the Court will hear two cases. In Gonzales v. Oregon (04-623), the Court will decide whether the U.S. Attorney General has permissibly construed the Controlled Substances Act to prohibit the distribution of federally controlled substances for the purpose of facilitating an individual’s suicide, regardless of state law purporting to authorize such distribution. In Schaffer v. Weast, the Court will hear oral arguments in a case dealing with parents of a disabled child and a local school district who reached an impasse over a child’s individualized education program. The question presented is whether, under the Individuals with Disabilities Education Act, both sides have the right to bring the dispute to an administrative hearing officer for resolution and, if so, with whom the burden of proof lies?

On Oct. 12, the Court will consider the scope of the First Amendment when it hears oral arguments in Garcetti, et al. v. Ceballos (04-473). The question presented is whether or not a public employee’s purely job-related speech, expressed strictly pursuant to the duties of employment, be cloaked with First Amendment protection simply because it touches on a matter of public concern, or whether the protection also requires the speech to be engaged in “as a citizen”, in accordance with the Court’s holdings in Pickering v. Board of Education and Connick v. Myers.

In Ayotte v. Planned Parenthood of Northern New England (04-1144), the Court will consider on Nov. 30, whether the U.S. Court of Appeals for the First Circuit applied the correct standard in a facial challenge to a statute regulating abortion when it ruled that the undue burden standard established in Planned Parenthood of S.E. Pa. v. Casey applied rather than the “no set of circumstances” standard set forth in U.S. v. Salerno.

On Dec. 9, the Court will hear arguments in Rumsfeld v. Forum for Academic and Institutional Rights (04-1152). The question presented is whether the lower court erred in holding that the Solomon Amendment’s equal access condition on federal funding likely violates the First Amendment to the Constitution.

In Oregon v. Guzek (04-928) the Court will hear oral arguments on Dec. 12, concerning whether or not a jury in a penalty-phase proceeding of a capital case is permitted, under the Eighth and Fourteenth Amendments, to consider doubt about the defendant’s guilt in deciding whether or not to impose the death penalty.

In House v. Bell (04-8990), the Court will consider the question of whether the lower court erred in holding that Petitioner’s compelling new evidence, though presenting at the very least a colorable claim of actual innocence, was as a matter of law insufficient to excuse his failure to present that evidence, merely because he had failed to negate each and every item of circumstantial evidence that had been offered against him at trial. The Court will also consider what constitutes a “truly persuasive showing of actual innocence” so as to warrant freestanding habeas relief.

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