Five Supreme Court Cases to Watch This Term

[snopes]

The U.S. Supreme Court reconvenes for its 2009-10 term on Oct. 5, with most of the attention going to the court's freshest face, newly confirmed Justice Sonia Sotomayor. But Sotomayor and her eight colleagues won't have a lot of time for orientation: the court will start immediately on a docket of controversial cases that will call on Justices to consider new facets of the Establishment Clause, gun ownership and prison terms for minors, among other issues. In total, the Justices have already agreed to hear 55 cases in the new term. Here are five to keep an eye on.

http://news.yahoo.com/s/time/2009100...08599192776000

[bjohn13]

Salazar v. Buono interests me a great deal. I have, for the most part, agreed with the Supreme Court's decisions when it comes to religion in the past, and as you can see from my signature, I'm as anti-religious as they come.

We currently have a rather big Ten Commandments debate brewing locally, and the local freethinkers group has been waiting for cases like Salazar v. Buono and Pleasant Grove v.Suummum to clear the docket before escalating the local case to that status.

Salazar v. Buono adds an few interesting twists to the debate. First and formost, I do not have a legal issue with religious symbology on public grounds. A cross is a cross, and it can symbolize many different things to many different people. I do, however, specifically object to the words in the Ten Commandments because they specifically contradict the establishment clause of the First Amendment. In a case like Van Orden v. Perry, I agree with the court's logic that the Ten Commandments, as part of a much larger display, are perfectly Constitutional.

With that background, it can be seen that the cross in question in the Salazar v. Buono case is not a problem. I'm perfectly okay with that cross being there. However, a differing religion has since been denied the opportunity to place a memorial there. I still don't have much of an issue with that, however, the case becomes muddied since the federal government has since passed legislation protecting the cross from removal. It is at this point where I believe that the establishment clause has been violated..

I'm axiously awaiting the Supreme Court's decision because it will greatly impact the local decision regarding the Ten Commandments monument. Our municipal government has passed laws protecting this monument from removal, and it has also declined to allow a dissenting viewpoint sit on adjacent land.

[Winged Monkey]

Originally Posted by bjohn13

Salazar v. Buono interests me a great deal. I have, for the most part, agreed with the Supreme Court's decisions when it comes to religion in the past, and as you can see from my signature, I'm as anti-religious as they come.

...

With that background, it can be seen that the cross in question in the Salazar v. Buono case is not a problem. I'm perfectly okay with that cross being there. However, a differing religion has since been denied the opportunity to place a memorial there. I still don't have much of an issue with that, however, the case becomes muddied since the federal government has since passed legislation protecting the cross from removal. It is at this point where I believe that the establishment clause has been violated..

Now I'm not sure that case law necessarily agrees that the cross is okay in the first place, it seems to me that lower courts have already found the cross an establishment clause violation, I suspect it lacks the secular purpose some argue for 10 commandments statues.

It seems to me that the issue is the transfer of land to a private party to avoid a valid court order. While I think Buono will be an interesting case, I doubt, especially given the Court's embrace of judicial minimalism these days, that it will do much to clarify the religious statuary on public lands issue. I doubt the court will overturn the underlying cases here, but one never knows - they did take the case after all.

Originally Posted by bjohn13

I'm axiously awaiting the Supreme Court's decision because it will greatly impact the local decision regarding the Ten Commandments monument. Our municipal government has passed laws protecting this monument from removal, and it has also declined to allow a dissenting viewpoint sit on adjacent land.

The difference in you local situation seems pretty serious, in that the land with the protected monument is public, and by preventing other monuments in the area it would appear that the locality is eliminating the defense used in the Texas courthouse case that the statute was part of a larger statute garden (I think that was the TX case).

Personally I'm interested in the Chicago cases as a matter of Constitutional law.

-Winged Monkey

[Broken Sword]

The NRA and juvenile life imprisonment cases interest me the most. The NFL one might have really interesting consequences though - not so much for merchandising issues (which I could care less about), but whether an anti-trust lawsuit could be brought to bear against the BCS system in college football, which some schools have threatened to do in the past. If the NFL loses this case then I'm almost certain that someone will sue the NCAA for their BCS contract.

[Winged Monkey]

Originally Posted by Winged Monkey

It seems to me that the issue is the transfer of land to a private party to avoid a valid court order. While I think Buono will be an interesting case, I doubt, especially given the Court's embrace of judicial minimalism these days, that it will do much to clarify the religious statuary on public lands issue. I doubt the court will overturn the underlying cases here, but one never knows - they did take the case after all.

Yeah I'm quoting myself - but I was 1/2 wrong above, the analysis below indicates that the transfer as itself a violation of Establishment is one issue, but that there's a standing issue as well. Anyway, for anyone interested here's a good link a nice analysis of the issues in Buono.

Also orals for it are tomorrow, so check back on the cite linked for more info come Wed the 7th.

SCOTUS BLOG analysis of Salazar v. Buono.

-Winged Monkey

[keokuk]

Justice Samuel A. Alito Jr. wanted to know if Congress could ban a “Human Sacrifice Channel” on cable television.

Justice Ruth Bader Ginsburg asked about videos of cockfighting.

“What about hunting with a bow and arrow out of season?” Justice John Paul Stevens asked.

“What if I am an aficionado of bullfights,” Justice Antonin Scalia wondered, “and I think, contrary to the animal cruelty people, they ennoble both beast and man?”

And Justice Stephen G. Breyer asked about “stuffing geese for pâté de foie gras.”

The rapid-fire inquiries came in an exceptionally lively Supreme Court argument on Tuesday in the most important free speech case this term.

The case concerns the constitutionality of a 1999 federal law that bans commercial trafficking in “depictions of animal cruelty.” The number and variety of questions suggested that most of the justices thought the law was written too broadly and thus ran afoul of the First Amendment.

http://www.nytimes.com/2009/10/07/us/07scotus.html


Congress’ attempt ten years ago to ban animal cruelty, by banning video and other depictions of it, had its first constitutional test in the Supreme Court Tuesday, and appeared to have failed. Despite efforts by an Obama Administration lawyer to show that Congress wrote carefully and narrowly, most of the Justices strongly implied that the law probably goes too far — or at least was so vague that no one can know just what is illegal. Only one Justice, Samuel A. Alito, Jr., seemed tempted to support the law as is.

http://www.scotusblog.com/wp/analysi...aw-in-trouble/

[MapleLeaf]

In Maryland v. Shatzer, Michael Shatzer was questioned by police about sexual abuse of his 3-year-old child, and after being told he had the right to counsel as part of his Miranda rights, declined to answer any questions without an attorney present. The officer never pursued Shatzer further, but nearly three years later, a different detective questioned Shatzer, at which point he admitted abuse. Shatzer now argues this confession is inadmissible because the second police officer, who was unaware of Shatzer's original Miranda request, questioned him without an attorney present.

When arguments like these are made in court, do they stuff the jury away somewhere first? Because I would think a great many jurors would be hardpressed to "ignore" evidence such as this if it came to light.

[keokuk]

Originally Posted by MapleLeaf

When arguments like these are made in court, do they stuff the jury away somewhere first? Because I would think a great many jurors would be hardpressed to "ignore" evidence such as this if it came to light.

Yes. It probably says in the briefs, but usually with something as important as a confession with questionable admissibility, the matter will be settled before the trial even begins.

[Ali Infree]

More on Salazar v. Buono, and I admit to being intrigued by the fact that the lead plaintiff (nonlawyer, so corrections are appreciated) is a former federal supervisor of the Mojave and a devout Catholic is drawing a clear line between public endorsement of religion and private faith. In the NPR, the VFW side is claiming that all crosses will be removed from national cemeteries, etc. What rot! Can anyone just argue the facts without the hysteria?

The question of standing to bring a suit may be the most critical issue with this case.

Ali "DOYC? None please." Infree

[Mr. Billion]

I also wonder whether depictions of the production of meat in concentrated animal feeding operations or slaughterhouses might conceivably be banned under this law.

I mean, obviously not, since such things get distributed in films like Food Inc. http://www.foodincmovie.com/

But still, might they violate the "spirit" or "letter" of the law? Or maybe depictions like what you see in Food Inc are OK because they're relatively tame.

[keokuk]

Originally Posted by Ali Infree

In the NPR, the VFW side is claiming that all crosses will be removed from national cemeteries, etc. What rot! Can anyone just argue the facts without the hysteria?

In cases where constitutional arguments are being made, the "parade of horribles" approach is often effective. It's not uncommon for the Court to craft a rule which is designed not just for the current circumstance but for future applications as well. (As an example, when Justice O'Connor cast a pivotal deciding vote in an affirmative action case involving the University of Michigan, her opinion cited amicus briefs from service academies which made arguments for a diverse military being beneficial to their operation, even though the case did not directly involve that question.)

To say that all crosses would be removed from national cemeteries is clearly hyperbolic, but the question remains: If this particular cross is unconstitutional, then why would those crosses not be? Is it the size? The nature of the cross here as a standalone symbol as opposed to appearing as a sign of one's personal conviction on the tombstone? These are the kinds of considerations that the Court will ultimately evaluate in its opinion, and focusing attention to them is often an effective strategy to ensure that if there is a loss, it is not as major of a loss as it could have been.

[Illuminatus]

Originally Posted by MapleLeaf

When arguments like these are made in court, do they stuff the jury away somewhere first? Because I would think a great many jurors would be hardpressed to "ignore" evidence such as this if it came to light.

Yes, definitely. It's reversible error to discuss the admissibility of evidence (especially confessions) in open court.

[Winged Monkey]

Originally Posted by Ali Infree

More on Salazar v. Buono, and I admit to being intrigued by the fact that the lead plaintiff (nonlawyer, so corrections are appreciated) is a former federal supervisor of the Mojave and a devout Catholic is drawing a clear line between public endorsement of religion and private faith. In the NPR, the VFW side is claiming that all crosses will be removed from national cemeteries, etc. What rot! Can anyone just argue the facts without the hysteria?

The question of standing to bring a suit may be the most critical issue with this case.

Ali "DOYC? None please." Infree

Orals happened today on this and it doesn't look like either the Standing issue (which I'm not really too astounded by given that establishment challenges tend to have pretty broad standing). Heck establishment clause grants taxpayer standing if I remember right, and I just remembered that the general attitude towards standing in land use/environmental cases regarding national parks has been pretty good about giving standing to park users who object to types of uses/limitations on use.

The core issue of if the cross is acceptable, focusing on its religious significance and hence the government entanglement with religion vs. its use as a war memorial also seem to be being ignored in orals. The lower court rulings are being allowed to stand on this issue I guess.

Anyway the orals make this out to be turning into a pretty boring case, focused only on Congress' action of passing the land off to avoid lower court rulings. My own suspicion is that no make how pro-limited establishment clause this Supremes is, I don't see them saying it's okay for Congress to take specific sneaky actions to avoid specific court rulings. One does not let the legislative disrespect the judicial that way.

-Winged Monkey

[keokuk]

Originally Posted by Winged Monkey

Orals happened today on this and it doesn't look like either the Standing issue (which I'm not really too astounded by given that establishment challenges tend to have pretty broad standing). Heck establishment clause grants taxpayer standing if I remember right, and I just remembered that the general attitude towards standing in land use/environmental cases regarding national parks has been pretty good about giving standing to park users who object to types of uses/limitations on use.

The core issue of if the cross is acceptable, focusing on its religious significance and hence the government entanglement with religion vs. its use as a war memorial also seem to be being ignored in orals. The lower court rulings are being allowed to stand on this issue I guess.

Anyway the orals make this out to be turning into a pretty boring case, focused only on Congress' action of passing the land off to avoid lower court rulings. My own suspicion is that no make how pro-limited establishment clause this Supremes is, I don't see them saying it's okay for Congress to take specific sneaky actions to avoid specific court rulings. One does not let the legislative disrespect the judicial that way.

I tend to agree. After reading the transcript of oral arguments, there seemed to be broad agreement that none of the justices had any real interest in the standing argument. They can hear it on first impression at the Supreme Court, but basically seemed to say, "If you didn't argue it thoroughly in the lower courts, then there's no reason for you to do it here."

There was some discussion of the Establishment Clause issue, but not a whole lot. It seems that this case is instead going to turn on whether the action of Congress, in granting away the land in a manner specifically designed to evade the original court order, was a violation of the original order imposed.

I suspect that there will be interesting concurring and/or dissenting opinions from the case, but it seems that the Court was really trying to find a way to just get rid of the case on the narrowest and most technical grounds possible.

[Winged Monkey]

Originally Posted by keokuk

I suspect that there will be interesting concurring and/or dissenting opinions from the case, but it seems that the Court was really trying to find a way to just get rid of the case on the narrowest and most technical grounds possible.

They've been doing that a lot lately, giving very narrow decisions, and as someone who is embraces a very different method of Constitutional interpretation and set of values then the 'conservative block' that seems to dominant today's Supremes this gives me some hope.

Obviously, some of justices, like Scalia (who discussed the Establishment clause in orals here most vigorously) would like to make some larger changes, but it seems that Roberts and Kennedy are likely not having that. Anyway as I can't see any court but the 'Roberts' Court' existing during my professional career (what little there is of it) these tendency towards judicial minimalism gives me some relief.

Of course you have the odd case coming out of nowhere like Ricci that does make a larger change, but on most issues I'm hopeful that the underlying structure of post civil rights era Constitutional law won't be twisted into something in line with Thomas or Scalia's heroic nostalgia for 18th-19th century fantasy republic.

-Winged Monkey

[Illuminatus]

Originally Posted by Broken Sword

The NFL one might have really interesting consequences though - not so much for merchandising issues (which I could care less about), but whether an anti-trust lawsuit could be brought to bear against the BCS system in college football, which some schools have threatened to do in the past. If the NFL loses this case then I'm almost certain that someone will sue the NCAA for their BCS contract.

The NCAA has already been sued (and lost) on Antitrust grounds for its horrible TV contract, so the precedent has already been established. As for the BCS, as this article notes, the problem with the BCS isn't really the BCS system, but the inherent biases of the poll voters. There's no rule that prevents an undefeated Utah (or Hawaii, or Boise) from getting into the title game, but if no one is willing to put them in their power poll then they aren't going.

Don't get me wrong, the BCS system is flawed, but for what it attempts to do (create exciting games), it succeeds.