October 23, 2012

IRR News Report

Fall 2003

Supreme Court Update

2003-04 Term Features First Amendment, Enemy Combatants, Disability,

Criminal Procedure Cases

The U. S. Supreme Court's 2003-04 docket includes numerous cases of interest to the Section, including First Amendment challenges to campaign finance reform and the Pledge of Allegiance; two challenges to the detention of suspected terrorists without charge or hearing at Guantanamo Bay, Cuba; access to public facilities under the Americans with Disabilities Act (ADA); "reverse discrimination" under the Age Discrimination in Employment Act (ADEA); state funding of religious instruction; and a spate of criminal procedure cases.

The term got off to an early start when, on Sept. 8, 2003 (rather than on the traditional first Monday in October), the Court met in a special two-hour session to hear oral arguments in seven cases brought under the Bipartisan Campaign Reform Act (BCRA). Parties include Sen. John McCain (R-AZ), a co-author of the BCRA, and one of its staunchest opponents, Sen. Mitch McConnell (R-KY). At issue is whether Congress' attempt to limit perceived excesses in the influence of well-financed interests in national political campaigns infringes First Amendment free speech rights of political parties, special interest organizations, minors, corporations, and trade unions.

The Court also has agreed to hear two cases involving the detention of suspected terrorists without charge or hearing at Guantanamo Bay, Cuba. The first case, Rasul v. Bush (No. 03-334), was brought by the parents of two British citizens, Shafiq Rasul and Asif Iqbal, and two Australians, Mamdouh Habib and David Hicks. The second case, al-Odah v. United States (No. 03-343) was brought by the relatives of 12 Kuwaiti nationals. Both the U. S. District Court in Washington, D. C., and the U. S. Court of Appeals for the District of Columbia dismissed the cases without dissent, citing Johnson v. Eisentrager, 339 U. S. 763 (1953), in which the Court denied a writ of habeas corpus to German espionage agents who had been captured by U. S. forces in China in 1945 and later jailed in occupied Germany. The Bush administration had urged the Supreme Court not to take an appeal of the case, in part to avoid "judicial interference with military affairs."

A prominent First Amendment case before the Court this term is Elk Grove Unified School District v. Michael A. Newdow, et al . (No. 02-1624), which asks first whether the father of a school-aged child, has standing to challenge as unconstitutional a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance. If so, the Court then will decide whether the phrase "under God" in the pledge violates the Establishment Clause of the First Amendment.

At issue in Gary Locke, Governor of Washington, et al. v. Joshua Davey (No. 02-1315), another First Amendment case, is whether the Free Exercise Clause requires a state to fund religious instruction, despite a state constitutional provision that no public money shall be appropriated or applied to religious instruction, if the state provides college scholarships for secular instruction. Davey was awarded a state-funded scholarship, but lost it pursuant to this state constitutional provision when he declared a major in Pastoral Ministries at Northwest College in Washington State. The U. S. Court of Appeals for the Ninth Circuit held that Washington's interest in avoiding conflict with this state constitutional constraint is not a compelling reason to withhold such scholarship funds.

In State of Tennessee v. George Lane, et al . (No. 02-1667), the Court will decide whether states may be held liable for damages resulting from due process violations under Title II of the Americans with Disabilities Act (ADA). Lane, a paraplegic, was arrested after failing to appear for a criminal case on the second floor of a courthouse unequipped with elevators or ramps. Having crawled up the stairs the first time, he refused to do so a second time, and was arrested and prosecuted for failure to appear in court. The ABA has filed a Section-sponsored amicus curiae brief in the case. In another ADA case, the Court heard arguments on October 8 in Raytheon Co. v. Hernandez (No. 02-749) to decide whether the ADA allows employers to reject applications from former employees seeking rehire after being discharged for alcohol or drug use.

In another major case involving federal anti-discrimination laws, the Court will decide in General Dynamics Land Systems, Inc. v. Dennis Cline, et al . (No. 02-1080) whether the U. S. Court of Appeals for the Sixth Circuit erred in holding, contrary to decisions of the First and Seventh Circuits, that the Age Discrimination in Employment Act (ADEA) prohibits "reverse discrimination," i.e., employer actions, practices, or policies that treat older workers more favorably than younger workers who are at least 40 years old.

The Court also has or will decide the following criminal procedure cases, among others: Yarborough v. Gentry (No. 02-1597) (per curiam) (Sixth Amendment guarantees reasonable, but not perfect, competency of counsel in representing criminal defendants); Mitchell v. Esparza (No. 02-1369) (per curiam) (federal habeas corpus review is appropriate only where the state courts have applied harmless-error review in an "objectively unreasonable" manner); and Delma Banks, Jr. v. Janie Cockrell, Director, Texas Dept. Criminal Justice (No. 02-8286) (whether the U. S. Court of Appeals for the Fifth Circuit erroneously rejected Banks's suppression of evidence claim; whether the court weighed Banks's mitigating evidence at sentencing improperly; and whether the court erred in holding Fed. R. Civ. P. 15(b) does not apply to habeas corpus proceedings because "evidentiary hearings" in those proceedings are not similar to civil trials.) (In June, the ABA filed a Section-sponsored amicus curiae brief on behalf of Banks in this case.)