Professors Analyze Cases in 7th Annual Supreme Court Roundup

In front of a standing-room-only crowd of students and faculty in Caplin Pavilion, a panel of Law School professors broke down some of the most important decisions from the past U.S. Supreme Court term.

A. E. Dick HowardDuring last week’s annual Supreme Court Roundup, an event sponsored by the Student Legal Forum, professors David Martin, Christopher Sprigman and Richard Bonnie analyzed recent decisions on cases ranging from gun rights to the death penalty.

The 2007-08 term was the first full term of the “Roberts Court” that included both Chief Justice John Roberts and Justice Samuel Alito, said Professor A. E. Dick Howard, who moderated the panel. As such, it offers a chance to analyze the most recent incarnation of a court that has changed dramatically over the past 40 years, Howard said.

“It would be possible to argue a year ago that we were beginning to see the fruits of the conservative efforts to change the court,” Howard said, citing the Supreme Court appointments of each Republican president since Richard Nixon.

However, midway through its most recent term, the court seemed to be working to achieve some middle ground and blur ideological lines, Howard said, citing a voting rights case from Indiana and a challenge to the death penalty from Kentucky in which justices seemed to cross ideological lines to join the majority. But “any thought that the court would end on a non-ideological note was dispelled by the end of the term,” he said.

The court divided sharply in a series of high-profile cases, splitting on issues such as whether Guantanamo Bay prisoners have the right to habeas corpus appeals, whether District of Columbia residents have the right to own handguns and whether child rape should be punishable by the death penalty.

“And though the splits were ideological, conservatives didn’t win all these cases,” Howard said.

Here is a look at how Law School professors characterized some of those contested decisions.


Professor David Martin
Boumediene v. Bush

In Boumediene, the Supreme Court took a big step toward preserving fundamental rights inherent in our justice system, according to Professor David A. Martin.

In the case, the court ruled that a prisoner held in at the U.S. facility in Guantanamo Bay, Cuba, has the right to challenge the legality of his detention in court.

The decision also suggests that ruling applies beyond Guantanamo, “to other places beyond our shores where the U.S. exercises complete jurisdiction and control,” Martin said.

“It’s a deeply important ruling,” he said. “It preserves some very fundamental liberties and it holds the promise of a needed check on executive action.”

The Supreme Court’s decision grants detainees held outside the country the right to appeal under the writ of habeas corpus, which entitles prisoners to challenge in court whether their jailers have sufficient authority to hold them.

The ruling is one in a series of moves since 2002 aimed to reign in “sweeping impositions on individual liberty,” that were enacted in the wake of Sept. 11, 2001, Martin said.

Two of these actions in particular presented major liberty questions, he said. The first was a November 2001 executive order that established a military commission to try terrorists in front of tribunals, with more limited procedures than those used in U.S. courts.

Controversy over that measure somewhat obscured a second set of steps, which included an assertion of the authority to detain enemy combatants indefinitely, Martin said.

“By the time the Boumediene case had come to the Supreme Court, many checks had been applied to these procedures and the Supreme Court had played a significant role in doing that,” Martin said, citing the creation of hearings for detainees to challenge their status as enemy combatants.

But in Boumediene, the court ruled that existing procedures were not enough, and that they didn’t present as ample a scope of review as a habeas court would have. The court has to have the authority to be able to hear new evidence and to make findings of fact based on what is submitted, the decision said.

The ruling doesn’t necessarily pave the way for immediate action, Martin said, because many questions remain on issues such as the right to counsel, the ability to confront adverse witnesses and the appropriate standards for settling whether a prisoner is an enemy combatant.

“These are large questions, and I expect the Supreme Court will have to revisit these issues in the next few years in order to settle this,” Martin said.


Professor Christopher Sprigman 
District of Columbia v. Heller

Aside from the public policy questions it raises, the Supreme Court’s decision on the District of Columbia’s handgun ban makes for an interesting look at the court’s methodology, Professor Christopher Sprigman said.

The case revolved around whether the District of Columbia’s law banning handguns and requiring that all other firearms either have a trigger lock or be kept disassembled and unloaded violated the Second Amendment.

The creation of the Second Amendment was prompted by the actions of the English, who had attempted to suppress the revolutionary militia by restricting the rights of its member to carry weapons, Sprigman said.

“What’s really happened in the Second Amendment is that the intents of the framers have become completely anachronistic,” Sprigman said. “They put in some kind of protection of weaponry ownership to ensure the continuation of something that, despite all their intents, is dead. This highlights a really interesting question about judicial review. Do we announce a fairly broad individual right to own guns based on our desire to protect something that can’t really be protected: that is, the existence of the militia?”

In Justice Antonin Scalia’s majority decision, the court said the Second Amendment guarantees an individual the right to bear arms, and that the district’s ban and trigger lock law violate that right.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Sprigman said Scalia’s first methodological step was to divide the amendment in half.

“[Scalia] goes right to operative clause: ‘…the right of the people to keep and bear arms shall not be infringed,’” Sprigman said.

Taken by itself, that clause does seem to establish a right to own firearms, Sprigman said.  However, he said the clauses of the amendment could be looked at as two parts of the same whole, with each informing the meaning of the other.

“That’s not how Scalia does it; he severs the clauses,” Sprigman said.

After establishing in the decision that the amendment’s second clause guarantees a person’s right to own guns, Scalia asks whether the first part of the amendment, which asserts the importance of the militia, diminishes that right in a way that would allow the D.C. gun ban to be constitutional, Sprigman said.

“The relationship between the two clauses is where Justice Scalia ends up,” Sprigman said. “He says [the prefatory clause] doesn’t limit the right in the operative clause, it merely provides the purpose.”

Sprigman also questioned justice’s logic in asserting that the term “the right of the people,” refers to the rights of the individual as opposed to the people as a whole, and said the accepted definition of the militia the amendment was designed to protect may never have existed.  

“What Justice Scalia has done is try to keep faith — admirably so — with the framers’ purposes, but sometimes you just can’t keep faith. Sometimes there’s nothing to revive. I look at this opinion as a very strong exercise of the power of judicial review in the pursuit of something that probably was a dream, and in any event is certainly one now.”


Professor Richard Bonnie 
Baze v. Rees 
Kennedy v. Louisiana

In the more than 30 years since the reinstatement of the death penalty, Supreme Court decisions on the topic have failed to satisfy anyone, regardless of ideological perspective, said Professor Richard Bonnie.

“I am absolutely confident that nobody gets any satisfaction out of viewing these records or thinking about these capital cases. It’s a tar baby,” he said.

Instead, the decisions promote “sloppy and highly unsatisfying jurisprudence,” and have yielded predictable divisions, he said.

“But having said all that, I don’t think they had any choice except to muddle through on this,” Bonnie said of the Supreme Court justices. “This is a genuine constitutional problem. The court needed to pay attention to this.”

During the 2007-08 term, the court dealt with two prominent death penalty cases. One concerned whether lethal injection violates constitutional protection against cruel and unusual punishment. The other tackled whether the death penalty can be expanded to apply to the crime of child rape.

In the first case, two inmates from Kentucky claimed that lethal injection could be cruel and unusual if the first of three drugs used to administer the punishment failed or was incorrectly administered.

The first drug renders the inmate unconscious. The second paralyzes and the third stops the heart.

“The problem here is that there is a risk by the improper administration of the first drug. They are paralyzed, and can’t express that they are still conscious,” Bonnie said.

In a 7-2 decision, the court rejected this claim and essentially said that there is no evidence that such a situation has ever occurred, Bonnie said.

“The court basically upheld the protocol and doesn’t want to deal with this issue anymore,” he said.

The most interesting part of the decision, he said, was the admission by Justice Paul Stevens in his concurrence that he believes the death penalty itself would be a violation of the 8th Amendment if the decision to reinstate it were being considered today.

In the second recent capital case, the Supreme Court decided 5 to 4 to reject the idea that child rape should be considered a capital offense.

This effectively made certain types of murder the only crimes against individuals that can result in the death penalty, Bonnie said.

“The real problem is arbitrariness,” he said. “Each year, there are 5,000 rapes per year of children under 12. So if the states are all going to create the death penalty for these cases, how do you decide which to carry out the death penalty for?”

The court’s decision seems to send a signal that the majority believes the death penalty should be limited, not expanded, Bonnie said.

“The death penalty, I think, is basically an albatross for the Supreme Court and has been since 1976,” he said.

That decision upheld the idea that “death is different,” Bonnie said, which forced the court to create a new set of rules that apply only to the death penalty. The result is years of difficult decisions that have yielded very little progress, he said.

“They had no exit strategy to deal with this, and I think are essentially trapped in an unsuccessful situation, and continue to be trapped.”

In general, Bonnie said justices tend to drift to more liberal positions on the death penalty, a trend that appears to be continuing with Stevens.

He praised the court for rejecting the expansion of the death penalty to include child rape.

“This would have opened it up even further, when the agenda has got to be to try and contract the death penalty,” Bonnie said. “It is a sore in our criminal justice system, and something needs to be done about it.”

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