Winter 2007

Supreme Court Update

The Supreme Court’s October 2006 Term so far has featured several cases of interest to the Section, including the areas of capital punishment, criminal sentencing, abortion, affirmative action in education, the First Amendment, and the Establishment Clause.

On Nov. 13, in Ayers v. Belmontes, No. 05-493, the Court upheld by a 5-4 vote (opinion by Kennedy; dissent by Stevens) a California statutory jury instruction regarding consideration of mitigating evidence that bears upon a defendant’s future prospects as a life prisoner. In the penalty phase of his capital murder trial, Belmontes introduced mitigating evidence to show he would lead a constructive life if incarcerated rather than executed. The trial judge instructed the jury to consider "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime," an instruction known as "factor (k)" under California's then-applicable statutory scheme. Respondent was sentenced to death; on direct review and in federal habeas proceedings, he contended that factor (k) and the trial court's other instructions barred the jury from considering his forward-looking mitigation evidence in violation of his Eighth Amendment right to present all mitigating evidence in capital sentencing proceedings. The federal district court denied relief, but the U. S. Court of Appeals for the Ninth Circuit reversed, invalidating respondent's sentence.

The Supreme Court reversed, holding that the factor (k) instruction is consistent with the constitutional right to present mitigating evidence in capital sentencing proceedings. The Court explained that it previously had found that factor (k) does not preclude consideration of constitutionally relevant evidence, and that the proper inquiry to be whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence. The Ninth Circuit erred in finding a "reasonable probability" that the jury did not consider evidence of respondent's future potential.

The Court also has heard or soon will hear arguments in the following cases:

Cunningham v. California, No. 05-6551 —- Whether California's Determinate Sentencing Law, by permitting sentencing judges to impose enhanced sentences based on their determination of facts not found by the jury or admitted by the defendant, violates the Sixth and Fourteenth Amendments.

Gonzales v. Carhart, No. 05-380; Gonzales v. Planned Parenthood, No. 05-1382 — Whether, notwithstanding Congress' determination that a health exception was unnecessary to preserve the health of the mother, the Partial-Birth Abortion Ban Act of 2003 is invalid because it lacks a health exception or is otherwise unconstitutional on its face.

Parents Involved in Community Schools v. Seattle School District , No. 05-908 — (1) How are the Equal Protection rights of public high school students affected by the jurisprudence of Grutter v. Bollinger, 539 U.S. 306 (2003), and Gratz v. Bollinger, 539 U.S. 244 (2003)? (2) Is racial diversity a compelling interest that can justify the use of race in selecting students for admission to public high schools? (3) May a school district that is not racially segregated and that normally permits a student to attend any high school of her choosing deny a child admission to her chosen school solely because of her race in an effort to achieve a desired racial balance in particular schools, or does such racial balancing violate the Equal Protection Clause of the Fourteenth Amendment?

Meredith v. Jefferson County Board of Education , No. 05-915 — Whether a race-conscious Student Assignment Plan featuring a mechanical and inflexible requirement of not less than 15 percent nor more than 50 percent of African American students, without individual or holistic review of any student, serves a compelling government interest and is narrowly tailored.

Gary Davenport, et al. v. Washington Education Association , No. 05-1589; Washington v. Washington Education Association, No. 05-1657 — (1) Do labor union officials have a First Amendment right to seize and use for politics the wages of employees who have chosen not to become union members? (2) Does a state campaign finance law that prohibits labor unions and their officials from seizing and using the wages of nonmembers for partisan political campaigns without obtaining the nonmembers’ affirmative consent violate the First Amendment rights of labor unions?

Morse v. Frederick , No. 06-278 — Whether a student’s speech-based suspension from school violates the student’s First Amendment rights where the student’s speech occurred at an off-campus event, was not plainly offensive, and did not create the threat of a disruption.

Hein v. Freedom From Religion , No. 06-157 — Whether taxpayers have standing under Article III of the Constitution to challenge, on Establishment Clause grounds, the actions of Executive Branch officials pursuant to an Executive Order, where the plaintiffs challenge no act of Congress; the Executive Branch actions at issue are financed only indirectly through general appropriations; and no funds are disbursed to any entities or individuals outside the government.

Decisions in these cases are expected by July 2007.

 

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