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Prof. A. E. Dick Howard moderated the panel.

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Posted September 16, 2004
Traditional Supreme Court Review Kicks Off New Academic Session

Professors David Martin, Anne Coughlin, and Dean John Jeffries summarized decisions from the Supreme Court’s last session to a packed and appreciative crowd at Caplin Pavilion Sept. 9 in a review of key rulings that traditionally starts the Law School’s new academic year. Constitutional scholar and inveterate Supreme Court watcher A. E. Dick Howard moderated the panel.

Executive Power Gets Detained

Martin called the Court’s last term “action packed” and said that among the most important cases were a trio that involved the “executive’s authority to detain what the administration has called enemy combatants,” a term whose designation he controls and, were it not for the Court’s intervention, he might apply at his whimsy.

The risk of the president assuming “sweeping executive detention power” challenged the concept of habeas corpus, which has roots in the Anglo-American legal tradition going back to the Magna Carta, and which the Court reaffirmed, Martin said. The writ of habeas corpus allows someone being held in jail to force authorities to justify their reasons for holding him in court, he explained. “It’s a very important protection,” Martin said. “You simply can’t just disappear some place. Somebody on your behalf can file a habeas corpus.”

The Constitution says the protection of habeas corpus can’t be suspended except in times of rebellion and it would require a legislative act to suspend it, Martin explained.

”The central issue in the cases was a breathtakingly sweeping claim of executive authority to detain people indefinitely and potentially incommunicado . . . without meaningful accountability to the courts.” The Court’s rulings placed limits on detentions, but left some questions open.

The case of Rasul v. Bush involved some 600 foreign nationals held at the U.S. Navy base at Guantanamo, Cuba. In its 1950 Johnson v. Eisentrager ruling, Martin said, the Supreme Court said that the United States has no jurisdiction over such detentions when the persons are held in territory over which the U.S is not sovereign. The Guantanamo base situation is “absolutely unique,” he said, because a treaty gives the United States an indefinite lease, with “complete jurisdiction and control,” but also stipulates that Cuba has “ultimate sovereignty.”

But since 1950, case law has developed so that such cases can be heard when the person held is outside the immediate judicial district, and last term the Court ruled 6-3 that jurisdiction does exist.

The question remains, does it apply to Guantanamo only? And what standards must be met to justify detention? Meanwhile, the decision forced the use of military tribunals to consider status issues, and one person was recently released after having been held two years.

The cases involving two U.S. citizens, Yaser Hamdi (who was captured in Afghanistan but discovered to have been born in Louisiana when his father, who is from Saudi Arabia, was in graduate school there) and Jose Padilla (arrested at O’Hare airport) “posed extraordinary risks to civil liberties, particularly if the government can detain the person with virtually no communication with family or with an attorney,” Martin said.

The government wanted the court to take its assertion that the detention was valid at face value without investigating further, Martin said.

The court ruled that Padilla’s case was in the wrong court and should be filed in South Carolina rather than New York. ”Maybe they are worried about forum shopping,” Martin speculated. “So that case is starting over.”

Congress’s 1971 non-detention act aimed at preventing the mistake the United States made of imprisoning Japanese-Americans during World War II. The act requires Congress to pass a law to allow such detentions should they be necessary in the future.

Profs. Martin, Coughlin, and Jeffries
R-L, Professors Martin, Coughlin, and Dean Jeffries.

The court ruled that terms of the 1971 act were satisfied in the detention of Hamdi and Padilla, but that they were further entitled to due process to determine if they met customary wartime standards for detention, including a timely chance to dispute the claim of their enemy combatant status. Martin said he was troubled by the opinion in the ruling, which suggested that the burden of proof could shift to the detained person, rather than the government, once the government asserted that the detention was valid.

The Court decided these cases “in a way that leaves the court in the central role,” Martin said. It did not throw the problem of the definitions in the non-detention act back to Congress to develop them better. Martin said the court could have forced the checks-and-balances system to work better.

“This is a court that knows not the passive virtues. They are happy to assert that they can set it up right.” Martin said that Justice Antonin Scalia, reacting negatively to the decision, accused the court of having a “Mr. Fix-It mentality.”

Sentencing Guidelines Get Wobbly

If the president’s detention powers seemed ominous for civil liberties to professor Martin, the court’s 5-4 decision in the case of Blakely v. Washington seemed no less so for criminal sentencing guidelines to professor Anne Coughlin. The ruling “calls into question criminal sentencing as it’s being carried out in federal courts and state systems,” she said. “The Washington state scheme knocked down by the decision appears impossible to distinguish from federal sentencing guidelines.”

Coughlin called Blakely a “blockbuster case, really earth shattering.” Judges she’s talked to describe the decision as “Delphic” and say they have no idea what it means, except that tens of thousands of sentences are now in doubt.

She said the decision is an instance of the court “rediscovering the Sixth Amendment” which protects the rights of the accused by having a jury decide on the elements of a crime, but the ruling also seems to have invented “a new right of uncertain scope.”

Coughlin said the ruling has an “Alice-in-Wonderland kind of quality because the solutions the court seems to apply don’t seem satisfactory either.”

Blakely is a very significant extension of the four-year-old Apprendi v. New Jersey case, in which the court said that sentences that go beyond the usual instructions of sentencing guidelines to account for aggravating circumstances in the crime must be decided by a jury.

“In Apprendi the court held that except for prior convictions, every fact that raises a defendant’s sentence above the statutory maximum is an element of the crime,” Coughlin explained. “This means they have to charged and proven to the jury beyond a reasonable doubt.” In the Apprendi case, a judge added to the sentence because he found that the crime—firing into an African-American home—also had racist motives.

In Blakely’s case, he and his wife were in the midst of nasty divorce and custody hearings when he violently kidnapped her. She was freed unharmed and he ultimately pled guilty to second-degree kidnapping. The judge added 37 months to Blakely’s sentence, raising it from 53 to 90 months—still less than the 10 years the statutory guidelines allow—after finding that Blakely had “acted with deliberate cruelty.”

Blakely argued that his sentence violated Apprendi because a judge, not a jury, made the finding of deliberate cruelty that was the basis for adding to the sentence and the Court agreed.

States had hoped the Court would use the case to cut down the reach of Apprendi, Coughlin said, because the judge had not gone beyond Washington's state guidelines, but the ruling only made their anxieties worse.

The case matters especially because of the history of criminal sentencing in the United States, she said. For about 200 years, the nation had indeterminate sentencing. Judges could sentence criminals from “anywhere from zero to 50 years.” That system saw “tons of variation and arbitrariness, unfairness and, we now know, serious discrimination based on factors we know are impermissible,” she said. The movement to restrain judges’ discretion instituted the current guidelines.

“What’s the fix Blakely has in mind?” Coughlin wondered, “to go back to indiscriminate sentencing,” but with a jury finding all the elements of the crime?

Judges can have some discretion, but apparently legislators are not allowed to channel it, she summed up. Meanwhile, some federal courts are considering the federal guidelines dead, she said, and they are trying to figure out what to do instead. Jury sentencing is one alternative, but 95 percent of cases are resolved by guilty pleas, she noted, so that’s an implausible solution.

An undesirable outcome, she said, would be to have harsher statutory minimum sentences and also raise the maximums. The Court has granted expedited review to a case that challenges the constitutionality of federal sentencing guidelines directly and proponents of guidelines are hoping for further clarification.

Ceremonial Deism Gets Invoked

Dean John C. Jeffries Jr. described two cases bearing on the boundaries between religion and government authority.

In Locke v. Davey [Gary Locke is the governor of Washington], Joshua Davey, a student at a Christian college studying to be a minister, claimed the refusal by the state of Washington to provide a scholarship for him under a state program that offered support for any area of study except theology violated the free exercise of religion clause.

The Supreme Court rejected the claim. Since a 1986 Supreme Court decision, it has been permissible for states to fund religious education with public money on the same neutral terms that it funds education in other subjects. Jeffries said the case illustrates the shift in attitude over the last 35 years from a policy of preventing public money from supporting religious study to the current era in which it is not just allowed but, as Davey asserted, perhaps even required. In the last generation, the question over whether it is unconstitutional to fund religious education has changed from “are you absolutely forbidden from doing something, to now, are you required to do so?” Jeffries said.

The court is focused on the point of the funding being neutral, he explained. The problem with that is determining if government funding is neutral, which depends on what baseline one begins from. “If you start form the historical norm the government doesn’t fund private activity, then the refusal to pay for studying to be a minister is neutral. It doesn’t encourage religion. It doesn’t penalize religion. It’s just neutral. But if you start from the proposition that the government funds all other forms of study except devotional theology, then the refusal to fund study religious study starts to look like a penalty.”

Jeffries said that Scalia’s view, in dissenting from the ruling, was that when the state makes a benefit publicly available, that benefit becomes part of the baseline against which burdens are measured, and when it withholds that benefit from an individual solely on the basis of religion, it violates the free exercise clause. For the court majority, on the other hand, the failure to fund is simply neutral on religion. Jeffries said there is no way to tell analytically which view is better. “They are both logically airtight starting from the baseline, and the entire dispute depends on the choice of the baseline.”

The case Elk Grove Unified School District v. Newdow is more curious. Michael Newdow, “an ordained atheist minister,” objected to his daughter repeating the phrase “under God” in the Pledge of Allegiance. The words were added in 1954 “to underline the difference between the United States and Godless communism,” Jeffries explained. Oregon law says students are free to remain silent while the pledge is recited if they have objections to it.

The U.S. Court of Appeals for the Ninth Circuit agreed that the phrase violated the Establishment Clause, but the Supreme Court ruled 5-4 that because Newdow was separated from his wife and daughter, he did not have standing to make his complaint. Worse yet for him, his daughter declared that she is Christian and that she likes saying the pledge and the “under God” part.

“As a matter of doctrine, the court’s standing decision is very, very odd,” Jeffries said, “This is a case where the Supreme Court blinked and intentionally did not decide an issue that would be terribly controversial.” The dissenting side, Chief Justice William Rehnquist and Justices Sandra O’Connor and Clarence Thomas, said that Newdow did have standing and that the pledge is “just fine,” Jeffries said, which removes any doubt about where their future votes lie.

Justice O’Connor’s position was particularly interesting, he added. “For years she has been saying that the Establishment Clause is chiefly aimed at government endorsement of religion. What it’s really against is the government saying it’s good to be religious. . . . She says that’s unconstitutional.” That explains her position in the school prayer cases, Jeffries said, because government endorsement of religion might be coercive of those who do not share such a belief.

The court’s toleration for nativity scenes and other religious references on government property is explained by O’Connor, Jeffries said, through the concept she espouses called “ceremonial deism,” which says that government references to religion “are not really endorsements of religion because they are not really serious. They are just designed to make the occasion seem important,” he said. “Examples of ceremonial deism, I guess, would be the pledge of allegiance, the 'In God We Trust’ on coins, or when the Supreme Court marshal opens the day by saying ‘God save the United States and this honorable court,’” he said.

Just as the court “blinked“ at answering Newdow’s contention, the concept of ceremonial deism seems destined for a showdown too. “I just want to note,” Jeffries said, “that there are plenty of people in this country who really do believe in God who might not be comfortable with the notion that we say ‘under God’ simply to indicate its nonreligious meaning and who might think that references to God are to be taken seriously.”
• Reported by M. Marshall

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