Tag Archives: Supreme Court

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Cameras: The Paper Bag Solution

by Stuart Taylor, Jr.

Last week, while nodding my head at the cogency of the 9,000th New York Times editorial on "the public’s right to observe" the Supreme Court’s oral arguments. I fell to musing about whether the justices’ aversion to letting cameras into their courtroom could ever be overcome.

Then I had an epiphany.

But first, some background. It is obvious to all thinking people (or. at least, journalists), excepting the nine justices, that we have a constitutional right to watch the Supreme Court on television.

Aside from the public’s right to know just about everything reporters might ever want to tell them- from how to construct a nuclear bomb to the sex lives of our politicians- the Court’s oral arguments are a vital governmental process. Powerful public officials doing the public’s business have a duty to expose themselves to the broad scrutiny that can only come through television. It would be a great educational thing-better for the kids than Big Bird and Goosebumps. Sunshine is the best disinfectant. Et cetera, et cetera, et cetera, as Yul Brynner (or was it Yogi Berra?) used to say.

And, of course, Justice Antonin Scalia especially should stop carping at cameras because he’d come across so much cuter and wittier on TV than he does in those nasty dissents calling his colleagues a bunch of ignorant, irrational, sneaky, democracy-destroying couch potatoes, or whatever. He would be all the more telegenic with that great new beard, which was better two hours after his last shave than Yasir Arafat’s after 50 years of rubbing Rogaine into his cheeks.

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NewsHour: Supreme Court Action: Mandatory Drug Testing – January 14, 1997

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ELIZABETH FARNSWORTH: The case before the Supreme Court comes from Georgia. It concerns drug testing and political candidates. We get a briefing on today’s arguments from NewsHour regular Stuart Taylor, correspondent for the American Lawyer and Legal Times. Thanks for being with us, Stuart.

STUART TAYLOR, The American Lawyer: Nice to be here.

ELIZABETH FARNSWORTH: What are the facts in this case?

STUART TAYLOR: The Georgia state legislature in 1990 prompted in part by the federal indictment of Washington, D.C. Mayor Marion Barry on drug charges, passed a new law that required anyone who wanted to run for election for any high office in the state of Georgia, governor, lieutenant governor, secretary of state, commissioner of agriculture, state legislature, including judges from the Supreme Court on down had to pass a drug test first, specifically they had to submit a certificate showing that they are going to a state-approved laboratory, a doctor’s office, given a urine specimen, passed the test within 30 days of filing for the election. Two Libertarian candidates for state office in the 1994 election sued, claiming that this drug testing law violated their rights, their Fourth Amendment rights against unreasonable search and seizures, and their First Amendment rights of free speech. And the lower courts projected that claim, the Court of Appeals by a two to one vote. The candidates approved to the appeal to the Supreme Court and the Supreme Court will now decide whether it’s constitutional.

ELIZABETH FARNSWORTH: In the lower court cases the state of Georgia acknowledged that there was no evidence that people running for office had particular drug problems, right? So that’s not an issue here.

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Compassion Breeding Hubris

by Stuart Taylor, Jr.

About 3 a.m. one night last April, after reading the two federal appellate decisions creating a new right to assisted suicide, and being pulled one way by concerns about judicial imperialism, and the other way by heart-rending anecdotes of people dying in excruciating pain-or blowing their brains out or jumping off bridges-because they lacked the more humane option of lethal medication, I settled on an ingenious solution.

It was a "constitutional remand," proposed by Judge Guido Calabresi of the U.S. Court of Appeals for the 2nd Circuit, in his concurrence in one of the cases now before the Supreme Court. (That case, Vacco v. Quill, and the case of Washington v. Glucksberg, in which the 9th Circuit struck down another statute barring assisted suicide, were argued Jan. 8.)

Judge Calabresi’s idea was to hold New York’s long-standing ban on assisting suicide to be semi-unconstitutional as applied to physicians who honor requests for lethal medication by mentally competent patients in the last stages of terminal illness.

Because the statute seemed anachronistic, and at least "close to violating" substantive due process or equal protection, Calabresi said, the court should strike it down for now, but should reserve the possibility of upholding a similar (or even identical) law if the legislature were to re-enact it while articulating persuasive policy justifications.

"That makes sense to me, at least at first blush," I concluded ("Life, Death, and Imperial Judges," April 15, 1996, Page 23). At second blush, it doesn’t make sense. Rather, it seems clear that the Supreme Court should uphold the long-standing line against assisted suicide, as most of the justices seem inclined to do.

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NewsHour: Stuart Taylor on a Supreme Court Case – January 8, 1997

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ELIZABETH FARNSWORTH: Let’s get one thing clear. This is about–the Supreme Court heard these cases that are about a doctor giving a patient, who is an adult, competent person, medication to take their own lives, right? This is not about a doctor administering an injection to somebody who’s wasting away?

STUART TAYLOR: That’s exactly what it’s about. And a patient–the lower courts held it would–this right would only apply if the patient was terminally ill and mentally competent, and that the patient would administer the medication him or herself. This case, it relates to large issues of other kinds, but strictly speaking, that’s what it’s about.

ELIZABETH FARNSWORTH: Okay. We just heard about the case in Washington State. Tell us about the New York case.

STUART TAYLOR: In the New York case it was rather similar–three doctors who want to be able to help their patients end their lives with dignity and with less pain. And three patients who were terminally ill and wanted that kind of help and who have all died since the litigation began sued to strike down a New York law that bars anyone from assisting in a suicide, anyone including a physician. All 50 states have laws like this, unless one accepts Oregon, which recently repealed it by referendum, but that’s tied up in litigation. In any event, that case went up to the U.S. Court of Appeals for the 2nd Circuit, and they struck down the law in a three-nothing vote, but by a different rationale, a substantially different rationale than the 9th Circuit and the case we just heard about.

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NewsHour: Supreme Court On Predators – December 10, 1996

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JIM LEHRER: We go first tonight to the Supreme Court argument on sexual predators. The case comes from Kansas, where five-time convicted child molester LeRoy Hendricks remains behind bars even though he has completed his criminal sentences. He was found to be mentally abnormal and dangerous. Under the Kansas Sexually Violent Predators Act, that’s enough to prevent his release. He’s challenging the constitutionality of the legislation. NewsHour regular Stuart Taylor, legal correspondent for The American Lawyer and Legal Times, covered the hearing today. Stuart, welcome. First, how does this Kansas law actually work?

STUART TAYLOR, The American Lawyer: It states that after a convicted sex offender, sexual predator, finishes his term, or as he’s about to finish his term, the prosecutor can go to the court and say this man is still dangerous, he’s got a mental abnormality that makes him a continuing threat to commit sexually violent acts, in particular to children in this case, and we want him locked up indefinitely, as long as he’s dangerous. And he has a right to a jury trial, and if a jury finds beyond a reasonable doubt that he’s got a mental abnormality, not to be confused, by the way, with a mental illness in the traditional sense, and that he’s likely to continue molesting children or committing sexually violent acts because of it, he can be confined in a "mental institution" for so long as that remains the case, or until he can come in and prove that he’s no longer ill or dangerous.

JIM LEHRER: Do there have to be repeat offenses, or can this happen after just one?

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NewsHour: A Look At Several High Court Cases – December 4, 1996

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SPENCER MICHELS: Nine years ago, former immigration officer Robert Park lobbied the Arizona legislature to pass a bill mandating that official government business be done in English only. The bill failed, but Park and his group, Arizonans for Official English, qualified an initiative for the 1988 ballot, an amendment to the state constitution. It passed by less than 1 percent of the vote.

SPOKESMAN: (talking to gentleman) You have to be able to lift up to 50 pounds.

SPENCER MICHELS: According to Park, the measure was designed not to stop the speaking of Spanish in government offices like this job center, but rather to make sure government actions, laws, decrees, and documents be written only in English. It also declared English the official language of Arizona, a policy now embraced by 22 other states.

ROBERT PARK, Arizonans for Official English: All it requires is that anything that’s binding on the state, any law, regulation, ordinance, whatever the case may be, must be in the English language to be enforceable.

SPENCER MICHELS: Park says he worked to pass the measure because he was disturbed that high levels of immigration put pressure on the government for bilingual ballots, education, and routine business.

ROBERT PARK: Official bilingualism. It’s dangerous. It’s not what we need in this country. We’ve got enough problems with ethnic groups and other people. All we have to do is look to our neighbors to the North in Canada and see what divisions are created by official bilingualism, where you have two official languages. It’s tearing the country apart.

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NewsHour: Brady Bill Tested in Supreme Court. – December 3, 1996

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BETTY ANN BOWSER: In 1981, when a lone gunman attempted to assassinate President Ronald Reagan, his press secretary, James Brady, was also seriously wounded. The fallout from that shooting and from several other widely publicized shooting incidents brought calls for federal legislation that would require criminal background checks on people who want to buy handguns. After much legislative controversy, a bill named after Brady was signed into law in November of 1993.

PRESIDENT CLINTON: It will be step one in taking our streets back, taking our children back, reclaiming our families, and our future.

BETTY ANN BOWSER: Under the Brady Bill, states could refuse to sell handguns to anyone indicted or convicted of a felony, and to those who had ever had a restraining order placed against them. The work of checking those backgrounds was given to state and local chief law enforcement officers. They were required to review the forms within five days, destroy applications of those declared eligible, and inform in writing those who were denied. But at the Graham County Sheriff’s Department in Arizona, Sheriff Richard Mack said he was too busy to do those jobs.

SHERIFF RICHARD MACK, Graham County, Arizona: We have gun problems here, gang problems here. Am I supposed to know those problems so I can check a criminal background check on someone who’s never committed a wrong in their life? Can’t do it.

BETTY ANN BOWSER: Sheriff Mack organized a gun rally to raise money to sue the federal government. He said the requirements were an infringement on states’ rights, a violation of the 10th amendment, which reserves to the states those powers not specifically given to the federal government in the Constitution.

SHERIFF RICHARD MACK: We cannot allow our constitutional rights to be trampled on like our federal government seems to be trampling on them.

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Is Innocence Irrelevant?

by Stuart Taylor, Jr.

On Nov. 7, at about noon, the Supreme Court casually cleared the way for an execution at 9 o’clock that night-in the face of overwhelming evidence that the man to be killed was probably innocent of the prison murder for which he had been condemned.

All nine justices knew or had reason to know of Joseph Payne’s probable innocence. It would have been apparent to any fair-minded reader of the briefs and lower court opinions. These show that Payne’s conviction-charge of burning fellow prisoner David Dunford to death in his cell in 1985-hinged on the uncorroborated testimony of "an appalling and known prevaricator" (in the words of the U.S. Court of Appeals for the 4th Circuit) named Robert Smith, who was released from prison 15 years early, mainly for fingering Payne, and who has himself been named as the killer by four eyewitnesses and two others who heard Smith brag of having burned Dunford directly after it happened. (See "Innocent? Execute Anyway," Sept. 30, 1996, Page 29.)

Yet Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, and Stephen Breyer were prepared to let the commonwealth of Virginia kill Joe Payne anyway. Only Justices John Paul Stevens and Ruth Bader Ginsberg dissented from their colleagues’ no-comment denial of a stay of execution.

This willingness to allow the execution of a man who had proven his innocence-by at least a preponderance of the evidence-was a first in recent history. It provides a grim harbinger of what is to come.

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NewsHour: Supreme Court – Abortion – October 16, 1996

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ELIZABETH FARNSWORTH: Now more on this case and other action at the court this week from NewsHour regular Stuart Taylor, correspondent for the American Lawyer and Legal Times. Thanks for coming, Stuart. Tell us about the arguments in the court today about this case.

American Lawyer: They were very lively arguments today. The issue before the court focused on the so-called 15-foot floating buffer zone. The, the protesters did not appeal the order that said they can’t block people, grab people, shove people. They were saying, we ought to have a right to go up to people and speak to them, hand them literature and so forth, and this 15-foot zone prevents us from doing that. Uh, the all–eight of the nine justices were jumping in during the arguments on one side or the other, and there are about three on each side, you can tell, and about three in the middle arguing back and forth with each other, using the justices as props. And it was an exceptionally lively argument that way, a difficult one to call. I mean, in, in this case the court is fine-tuning a precedent it already laid down a couple of years ago in terms of it’s fairly clear that they can do–that the courts can do something to prevent protesters from unduly harassing women who want to go into the clinics. It’s also fairly clear they–they don’t–the courts don’t have carte blanche just to say you’ve got to stay 300 feet away, and the court is trying to decide in this case, you know, where to draw the line.

ELIZABETH FARNSWORTH: Does it make a difference that this is a case about an abortion clinic, if it were a heart clinic or something else, would it make a difference, do you think?

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The Court at the Crossroads

by Stuart Taylor, Jr.

While you would hardly know it from the tenor of the campaign, this year’s presidential election could have a far more dramatic impact than most on the political-philosophical orientation of the Supreme Court, and thus on the direction of constitutional law.

That’s because the Court is now so closely divided on such vital Issues that the replacement of one of the conservative justices with a liberal, or vice versa, could make an enormous difference-above all, on questions of race, congressional power, and states’ rights.

For this reason, the next confirmation battle could well be reminiscent of the 1987 donnybrook over Robert Bork. The stakes were high then mainly because the pivotal justice whom Bork would have replaced, Lewis Powell Jr., had sided with liberal majorities in so many critical 5-4 decisions.

Of course, it’s entirely possible that all nine justices will stay on for four more years, or that any who step down will be replaced with people of similar orientation. But two scenarios could bring epochal change:

Scenario 1: Bob Dole wins; a liberal retires (most likely 76-year-old Justice John Paul Stevens, the Court’s oldest and most liberal member); Dole replaces him with a conservative; and suddenly we have the most conservative Court in modern history.

Scenario 2: President Clinton wins (as seems far more probable); a conservative retires (most likely 72-year-old Chief Justice William Rehnquist); the president replaces him (or elevates Justice Ruth Bader Ginsburg and then replaces her) with a liberal or moderate liberal; and suddenly we have the most liberal Court since (at least) Earl Warren.