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supreme court update

The 2007–2008 Supreme Court term was perhaps most remarkable for the varying and unexpected coalitions of justices that decided the most controversial cases. During the previous 2006-2007 term, many of the most controversial cases had come down to a "conservative" bloc (Chief Justice John Roberts and Justices Alito, Scalia, and Thomas) vs. “liberal” bloc (Justices Breyer, Ginsburg, Souter, and Stevens) scenario that left Justice Kennedy as the sole swing vote. However, this term featured a number of unexpected bedfellows, sometimes even in those cases that were most divisive.


Voter ID Laws

For example, it was Justice Stevens who wrote the majority opinion in Crawford v. Marion County Election Board rejecting a constitutional challenge to Indiana’s voter I.D. law. The suit challenged a state law that requires citizens who seek to vote in person at their designated polling place to present a driver’s license or other government-issued photo identification. Although the law’s supporters say the requirement is intended to deter voter fraud, skeptics note that there have been no recorded instances of in-person voter impersonation having ever taken place in Indiana. They contend that in reality the law is a purely partisan electoral gimmick—“a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic,” as a Seventh Circuit judge wrote in dissenting from the court of appeals’ decision upholding the law.

While most adults either already possess a valid photo I.D. or can easily obtain one, the plaintiffs in this case point out that some groups—specifically “the poor, the old, and the immobile”— will in fact face economic and logistical hurdles in obtaining this documentation and that this is likely to discourage them from voting. Thus, they reasoned, the law unconstitutionally and disproportionately burdens the right to vote, and should be struck down.

But Justice Stevens, agreeing with the arguments of the Indiana Republican party, accepted that the state’s four justifications for the law—modernizing election procedures, combating voter fraud, addressing the consequences of the state’s bloated voter rolls, and protecting public confidence in the integrity of the electoral process—outweighed the burden of requiring these voters to obtain a valid photo I.D. Even though Crawford easily could have come down along ideological lines, it was in fact a case that generated unusual alliances. Only three justices dissented: Souter, Ginsburg, and Breyer.

In Irizarry v. United States (holding that a court need not give notice when it contemplates an upward variance from the sentencing guidelines range), Justice Stevens again joined the "conservative" bloc while Justice Kennedy dissented, while in Ali v. Federal Bureau of Prisons (holding that the bureau is exempt from claims under the Federal Torts Claim Act ) it was Justice Ginsburg who joined the Chief Justice and Justices Scalia, Thomas, and Alito to make five-justice majority while Justices Stevens and Kennedy both joined the dissenters. Even Justice Souter got into the act in United States v. Santos (a case interpreting the federal money-laundering statute) when he joined Justices Stevens, Scalia, Thomas, and Ginsburg to limit the federal law’s reach to transactions using criminal profits rather than criminal receipts.


Gun Rights

When the old familiar 5-4 lineup did show up last term—as it did in the Second Amendment gun rights case, D.C. v. Heller—it almost always left the door open for further litigation.

The gun law at issue in Heller was the toughest in the nation. It banned almost all private handguns, and required that all firearms be kept in an inoperable condition. Writing for the majority, Justice Scalia struck down both the handgun ban and the safe-storage requirement on Second Amendment grounds. Equally controversially, however, he went on to endorse several kinds of gun control (disarming of convicted felons, enforcement of “gun-free zones,” and bans on short-barreled shotguns) that were not at issue in the case, a move certain to help fuel the future litigation that will need to take place in order to clarify exactly what local gun restrictions remain viable.


The New Term

The new term that opens October 6, 2008, looks like it will be busier and—in an election year—even more controversial than ever. Whereas last term the Court typically only heard arguments in two cases on any given argument day, it has already booked three cases for each available day on the October and November oral argument calendars. Among the cases to watch as the new term unfolds: FCC v. Fox Television Stations (examining the scope of federal law regulating the single or fleeting use of “indecent” words on radio and TV); Pleasant Grove City v. Summum (considering the right to display a religious monument on government property); and Altria Group v. Good (evaluating the right to sue tobacco companies over their marketing of “light” cigarettes).


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Legislative Update


The Future of Education: A Look At the Candidates’ Education Plans

As the 2008 presidential election nears, LawMatters is taking a closer look at the education plans of the two principal candidates, Senators John McCain (R-AZ) and Barack Obama (D-IL). Each candidate addresses the No Child Left Behind (NCLB) law and each offers a plan for creating and maintaining successful schools, but they have very different approaches.

Sen. McCain centers his education policies on “accountability and responsibility.” McCain views the requirements NCLB places on schools as a positive step towards school accountability and a useful tool for assessment. He sees the NCLB assessment process as focusing on the realities of students’ performance and finally allowing the federal government to see what is happening to students who previously were invisible to the system.

According to Sen. McCain, students should have access to all schools that have “demonstrated excellence” including home-schools. It is “beyond hypocritical that many of those [member of Congress] who would refuse to allow public school parents to choose their child’s school would never agree to force their own children into a school that did not work or was unsafe,” notes Senator McCain. This stance on school choice is in line with the senator’s view that schools shouldn’t be “safe havens for the uninspired and unaccountable.”

Senator McCain believes competition can help parents hold educators accountable and enable students to make informed decisions. The Arizona senator asserts that schools should be able to “compete for the most effective, character-building teachers, hire them, and reward them.” In McCain’s view, this competition, when combined with school choice and the assessments inherent in NCLB, will force schools to take responsibility for the education they provide, a factor Sen. McCain states is key to successful education.

Senator Obama, on the other hand, asserts that although NCLB has a worthy goal, it is under-funded and focusing on the wrong issues. Sen. Obama indicates that he would start reforming NCLB by changing the way it is funded. Next, he would eliminate assessments based on standardized tests, and instead implement “assessments used to track student progress to measure readiness for college and the workplace and improve student learning in a timely, individualized manner.”

According to Sen. Obama, schools should begin to focus more on math and science and find a way to address the needs of the most vulnerable students. In order to strengthen math and science education at all grade levels, the Illinois senator would work with schools to recruit professionals in those fields to teach both the teachers and the students. In order to address the needs of vulnerable students, Sen. Obama would like to lower dropout rates by providing funding to those districts that invest in intervention strategies starting in middle school. These strategies include “personal academic plans, teaching teams, parent involvement, mentoring, intensive reading and math instruction, and extended learning time.” Further, Sen. Obama would like to see expanded after-school and summer learning opportunities and would provide more federal support to such programs.

Sen. Obama also expresses a desire to address the rising costs of college education. According to his Web site, college costs have risen by nearly 40 percent in the past five years. The Illinois senator also has outlined plans for an American Opportunity Tax Credit. This credit would be universal and fully refundable and would “ensure that the first $4,000 of a college education is completely free for most Americans and will cover two-thirds of the cost of tuition at the average public college or university and make community college tuition completely free for most students.” Lastly, Sen. Obama has indicated that he would like to simplify the application process for financial aid by having an applicant simply check a box on tax returns.

Regardless of which candidate ends up in the Oval Office, it is clear that he will need to address the needs of teachers and students across the country.

Note: All statements were taken directly from the candidates’ Web sites ( and on 7/7/08 and should not be seen as an endorsement of either candidate or their policies.


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Law Matters, which reports on developments, ideas, programs, and resources in the field of public education about the law, is disseminated three times yearly (fall, winter, spring) by the American Bar Association Standing Committee on Public Education.

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