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Ending one rodeo of a term

By MICHAEL KIRKLAND   |   July 4, 2010 at 3:30 AM   |   Comments

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WASHINGTON, July 2 (UPI) -- The U.S. Supreme Court arguably affects the lives of average Americans far more than the White House or Capitol Hill where power seems to dissipate in partisan rancor and political reality.

The president tries to get Congress to do his bidding. Congress tries to escape the strangulation of its own rules and party conflicts stand in the way of getting something, anything, done. But the Supreme Court, like the Lord, both giveth and taketh away.

The 2009 Term, which began in October, ended last Monday with the "rising" of the court for the summer recess. Several decisions from the just-ended term could be considered historic. Justice John Paul Stevens retired after nearly 35 years on the high court. Meanwhile, Justice Anthony Kennedy confirmed his position as the most powerful member of the court, acting as the swing vote in a number of rulings that will have long-term effects.


Two years after the Supreme Court ruled that individuals have a constitutional right to bear arms -- at least for protection in the home -- in federal enclaves such as the District of Columbia, the justices ruled last Monday that right extends across the country.

Justice Samuel Alito wrote the prevailing opinion of the court, and four other conservatives joined in the judgment, though they signed on only to parts of the plurality opinion. The ruling said in part, "The 14th Amendment" -- as the guarantor of the Bill of Rights, the first 10 amendments -- "makes the Second Amendment right to keep and bear arms fully applicable to the states."

A plurality of four justices, including Alito, concluded the 14h Amendment's "due process" guarantee "incorporates" the individual's right to keep and bear arms under the Second Amendment.

It "is clear that the framers and ratifiers of the (post-Civil War) 14th Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty," the opinion said. Arguments by Chicago and its suburb Oak Park, unsuccessfully trying to save their handgun possession bans, "are at war with our central holding in (the 2008 District of Columbia case): that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home."

Stevens, sitting for the last time on the high court, was one of the four dissenters.

"The fact that the right to keep and bear arms appears in the Constitution should not obscure the novelty of the court's decision to enforce that right against the states," Stevens wrote. "By its terms, the Second Amendment does not apply to the states; read properly, it does not even apply to individuals outside of the militia context. The Second Amendment was adopted to protect the states from federal encroachment. And the 14th Amendment has never been understood by the court to have 'incorporated' the entire Bill of Rights."

He added that although "the court's decision in this case might be seen as a mere adjunct to its decision in (the 2008 case), the consequences could prove far more destructive -- quite literally -- to our nation's communities and to our constitutional structure. Thankfully, the Second Amendment right identified in (the District of Columbia decision) and its newly minted 14th Amendment analogue are limited, at least for now, to the home."

The decision sent Chicago scrambling to revise its ordinance, imposing numerous limitations and restrictions, even revising the definition of a home to exclude garages and porches from areas where having a gun would be legal.


On Jan. 21, a narrow court majority led by Kennedy took a baseball bat to the pinata of the American political system, overturning restrictions on corporate and union campaign contributions.

The 2002 Bipartisan Campaign Reform Act banned corporations and unions from using their general treasury funds to make independent expenditures for an "electioneering communication" or for speech that expressly advocates the election or defeat of a candidate.

Corporations could still set up a political action committee, but PACs are subject to even more restrictions and disclosures.

But in Citizens United vs. FEC, a 5-4 majority said the "restrictions on such expenditures are invalid," overruling an earlier high court precedent and part of another.

"Although the First Amendment provides that 'Congress shall make no law ... abridging the freedom of speech,'" Kennedy wrote for the majority, the law's "prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an essential mechanism of democracy -- it is the means to hold officials accountable to the people -- political speech must prevail against laws that would suppress it by design or inadvertence."

The court's four-member liberal bloc signed on to parts of the majority opinion, but not the core ruling on corporate contributions.

The reaction in Congress was immediate.

Sen. Charles Schumer, D-N.Y., chairman of the Senate Rules Committee and the third-ranking member of the Senate Democratic leadership, said he would conduct hearings to look into ways to limit corporate spending on elections.

"The bottom line is this: The Supreme Court has just pre-determined the winners of next November's elections," Schumer said. "It won't be Republicans, it won't be Democrats, it will be corporate America."

President Barack Obama said the ruling meant a "new stampede of special interest money" in politics, and he asked Congress "to develop a forceful response to this decision. The public interest requires nothing less."

Obama even scolded the Supreme Court during his State of the Union address a few days later, with some of the stone-faced justices sitting not 20 feet from the podium. At least some justices, including Chief Justice John Roberts, hinted it was the last time they would attend a State of the Union Address.


As the term wound to a close, the court, in a 6-3 ruling June 21, determined the U.S. government's ability to criminalize material support for terrorists is constitutional, sending humanitarian groups scrambling to determine what the ruling would mean to their operations.

The ruling keeps intact a provision of the Patriot Act despite arguments it threatened free speech of organizations wanting to assist non-violent activities of groups listed on the U.S. terror watch list -- in this case the Kurdistan Workers' Party, identified as PKK for Partiya Karkeran Kurdistan, and the Liberation Tigers of Tamil Eelam in Sri Lanka.

The Humanitarian Law Project and similar groups argued they were involved in peaceful, legal activities of the PKK and the LTTE, but the court said providing money for non-violent purposes could free up resources for terrorist acts. The high court concluded that, as applied in this case to these individuals and groups, the Patriot Act statute in question does not violate the free speech clause of the First Amendment.


On June 1, another 5-4 majority, again led by Kennedy, handed down another stunner.

The court ruled a suspect must unequivocally claim his right to remain silent to have that right, a concept a dissenter said "turns Miranda (vs. Arizona) upside down."

Miranda requires police to advise suspects of their right to remain silent and the right to a lawyer, a free one if necessary. Once those rights are invoked by a suspect, police must end their questioning until a lawyer is present.

The case involved a murder suspect out of Michigan, Van Chester Thompkins, convicted of shooting Samuel Morris to death outside a mall in Southfield, Mich., in 2000. Another shooting victim survived and later testified.

Thompkins fled, but was arrested a year later in Ohio. Two Southfield officers traveled to Ohio to question him. They advised Thompkins of his Miranda rights, and the suspect remained largely silent for 3 hours. At no point did he invoke his Miranda rights, court records say.

But near the end of the interrogation, the suspect answered "yes" when asked whether he prayed to God to forgive him for the shooting.

Though his lawyers tried to suppress the statement, Thompkins was convicted and sentenced to life.

Kennedy said Thompkins' silence during his interrogation did not invoke his right to remain silent. If a suspect makes an ambiguous or equivocal invocation of that right, police are not required to end their questioning, he said.

"Today's decision turns Miranda upside down," Justice Sonia Sotomayor said in dissent. "Criminal suspects must now unambiguously invoke their right to remain silent -- which, counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so."


On June 18, in a unanimous judgment, the justices ripped the lid off one area of workplace privacy, ruling that an employer may search through employees' text messages on employer-supplied equipment, when the employer has a reasonable excuse for doing so.

The ruling did not cite e-mails, but presumably they would be as vulnerable as text messages.

In the case, Ontario, Calif., acquired pagers for its police officers, but the contract with the wireless service provider said any texting exceeding a monthly limit would cost extra. When Sgt. Jeff Quon and others exceeded their limit for several months, the police chief started an investigation to see if the contracted character limit was too low, court records say.

But the service provider gave the city transcripts of Quon's messages, many of them not work-related and some sexually specific. An internal affairs investigation found few of Quon's on-duty textings related to police work, court records say.

After he was disciplined, Quon and others filed suit, saying his Fourth Amendment protection against "unreasonable searches" had been violated. Eventually, a federal appeals court agreed, saying Quon and others had a reasonable expectation of privacy.

The Supreme Court reversed.

The prevailing opinion, written by Kennedy said the search of the texts was constitutionally reasonable because, among other things, it was motivated by a legitimate work-related purpose.

"Because the search was reasonable," Kennedy wrote, "petitioners did not violate respondents' Fourth Amendment rights, and the court below erred by concluding otherwise."


On May 17, the high court ruled 7-2 federal judges may order a sexually dangerous prisoner held beyond his or her release date.

The ruling supported current federal law, including parts of Adam Walsh Child Protection and Safety Act, which allows U.S. judges to order some sexually dangerous, mentally ill prisoners into civil commitment after their sentences are served.

Writing for the majority, Justice Stephen Breyer said the law is constitutional under the "necessary and proper" clause of the Constitution, which says Congress has the power to make any law necessary and proper for carrying out the government's powers.

"There are sound reasons for (the law's) enactment," the opinion says. "The federal government, as custodian of its prisoners, has the constitutional power to act in order to protect nearby (and other) communities from the danger such prisoners may pose."


Also on May 17, the court ruled 6-2 it is unconstitutional to sentence someone to life for a non-homicide committed as a juvenile.

Writing for the majority, Kennedy said sentencing someone to life for a non-lethal crime committed before the age of 18 violates the Eighth Amendment's ban on cruel and unusual punishment.

The ruling affects most of the country. Thirty-seven states, the District of Columbia and the federal government permitted sentences of life without parole for a juvenile non-homicide offender in some circumstances, Kennedy said. However, he added, an examination of the actual practice in those states shows it is little-used.

The case involved two Florida juveniles who were 13 and 16 when they were sentenced to life in prison for violent crimes.


In a high-profile murder case, the court on Jan. 19 threw out a lower-court ruling that negated the death sentence of Mumia Abu-Jamal for the killing a Philadelphia police officer in 1981.

The justices ordered a lower appeals court to take another look at the case.

Abu-Jamal was convicted of murdering police officer Daniel Faulkner, 25, in Philadelphia after Faulkner had pulled over Abu-Jamal's brother in a traffic stop.

He has spent decades on death row writing books, sometimes acting as a journalist and attracting an international list of supporters.


On April 28, a 5-4 majority again led by Kennedy ruled that a war memorial cross in California can stay put since the remote public land is being transferred to private ownership.

In Salazar vs. Buono, Kennedy wrote the lower federal court in California did not take into full account the federal government's decision to transfer the land. The move, endorsed by Congress, was designed to remove any constitutional concern about a religious symbol on public land.

The small cross, with several replacements, has stood in the Mojave National Preserve since 1934 in honor of soldiers who died in World War I. Litigation seeking its removal has gone on for years. Recently, the cross apparently was stolen.


On June 8, the high court temporarily blocked subsidy payments to Arizona candidates running for state offices with public financing.

An unsigned order by the court said the stay order would be lifted if the entire court decided not to review the issue.

Earlier, Arizona's public financing system had been struck down by a federal judge, who said the subsidies put an unconstitutional burden on state candidates running only with private funds. Under the system, increased fundraising and spending by privately financed candidates triggers higher subsidies for candidates who choose public financing.

A federal appeals court reversed the judge but the Supreme Court put the appeals court decision on hold.

State candidates have received only about a third of their subsidies. State campaign financing is expected to stay on hold through the primary election in August and the general election Nov. 2.


On May 24, the high court agreed to decide whether inmates, including death row inmates, can ask for DNA testing under federal civil rights law.

The question is raised by lawyers for Texas death row inmate Henry W. Skinner, who has consistently maintained his innocence and whose imminent execution was stayed at the last hour by the Supreme Court in March. The justices agreed to hear the case without comment.


The Supreme Court also agreed to review a lower-court order that would force California to release 46,000 inmates to ease prison overcrowding.

The lower-court order, which would apply to about a fourth of the state's prison population, is on hold until the outcome of the Supreme Court case.


On June 24, former Enron Chief Executive Officer Jeffrey Skilling won a partial victory when the Supreme Court overturned his conviction under the "honest services law," a federal fraud statute.

The high court vacated, or threw out, a portion of Skilling's conviction for violating the law, saying the law covers only bribery and kickback schemes, whereas Skilling was accused of denying corporate shareholders and pensioners -- many of whom lost their life savings -- his "honest services."

Critics had said the honest services law was so broad and vague that it could be used as a catch-all for prosecution in situations where it would be difficult to bring a criminal case under other types of charges.

While Skilling argued he didn't have a fair trial on conspiracy charges, the high court refused to dismiss Skilling's conspiracy conviction and instead sent the case back to the 5th U.S. Circuit Court of Appeals to determine whether there was, in fact, any evidence of bribery or kickbacks in Skilling's case.

The Skilling decision is unlikely to have much of an impact on the federal corruption trial, currently under way, of former Illinois Gov. Rod Blagojevich.

The Supreme Court had earlier denied Blagojevich's request to delay his trial pending the ruling on the honest services law.

While some of the 24 counts against Blagojevich are based on the honest services law, he faces charges based on other laws. Such counts include conspiracy and racketeering charges related to alleged schemes to use his office to bargain for a high salary or a large campaign contribution in exchange for the U.S. Senate seat vacated by Barack Obama when he became president.

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