After a month-long hiatus, the Supreme Court resumes hearing oral arguments this week. Those arguments will involve such areas as employment discrimination, the ability of the elderly and disabled to get legal assistance, the ability of Americans to speak with and about oppressed minorities in other countries, and what constitutes the illegal application of criminal laws to conduct that occurred before the laws were enacted.
This wide range of issues, all of which have some bearing on our lives, serves as a reminder why it is so important to be aware of what the Supreme Court is doing. It also serves as a reminder that an important reason to support a Democratic president, despite concerns about how progressive he is willing to be, is the power of that president to appoint Supreme Court justices.
These are the cases that will be argued before the Supreme Court on February 22-24, 2010.
Astrue v. Ratliff:
Under the Equal Access to Justice Act, if a person sues the United States government and wins, and if the position that the government took in the litigation was not substantially justified, the trial court is required to award attorneys' fees to the winning litigant. Catherine Ratliff is an attorney who represented Ruby Ree in her successful battle over the Federal government's denial of SSI benefits. However, because Ms. Ree owed the government money, the Feds kept the attorney's fees awarded by the court, leaving Ms. Ratliff with nothing. Ms. Ratliff then filed suit, arguing that the law provides that the fees be paid to the attorney, not the plaintiff, and thus they could not be used to repay a debt of the plaintiff's. That suit is the subject of this week's oral argument.
Why you should care: You should care for the same reason that AARP, the National Disability Rights Network, and the National Senior Citizens Law Center, among other similar groups, have filed an amicus brief in support of Ms. Ratliff - because if attorneys have to worry that they won't even recover the pitifully small amounts of fees and reimbursements to which they are entitled under the Equal Access to Justice Act, they will not represent the elderly, sick, and/or disabled who are wrongfully denied benefits. Ms. Ree, a Lakota Indian living on the Pine Ridge reservation, sought SSI benefits because she suffered from, inter alia, diabetes, arthritis, and borderline intellectual functioning. The fees awarded by the court to Ms. Ratliff for her work for Ms. Ree? $2112.60. The number of people who would represent Ms. Ree for that amount is small; the number of people who would represent her if there was a risk that the Federal government would seize this paltry amount to pay a debt of Ms. Ree's is zero. Thus, a ruling in favor of the government will dry up the already shallow pool of attorneys willing to battle on behalf of those in the greatest need.
Lewis v. City of Chicago:
Title VII of the Civil Rights Act governs the filing of lawsuits alleging employment discrimination. The statute provides that a suit must be filed within 300 days of the discriminatory practice. In 1995, the city of Chicago gave a test to all aspiring firefighters. The cutoff score for qualification to be hired was 65. However, the city arbitrarily decided that it would not hire anyone who scored under 89. There was no reason for picking that number, other than the fact that it disqualified most of the African-American candidates. The city announced the fact that it was unlikely that anyone with a score below 89 would be hired on January 26, 1996, but the subsequently hiring of firefighters, predominately white ones, took place from 1996 to 2002. The first claim of discrimination was filed on March 31, 1997, which was 430 days after the city announced its hiring practice, but only 181 days since the last time the city had used that practice to hire firefighters. The city conceded that picking an artificial test score which excluded most of the black applicants was discriminatory, but argued that the claimants were too late. The only issue in this litigation is whether the suit was filed in time - did the clock start running on the day that the city announced its practice, or on the last day that it implemented that practice?
Why you should care: As Lily Ledbetter unfortunately discovered, the last refuge of discriminating employers is the strict enforcement of time limits on lawsuits. The justices who held that Ms. Ledbetter had to file suit within 180 days of the date she first began to be paid less than her male co-workers, even though she did not know about the pay discrepancy until years later, still form a majority of the Supreme Court bench. Thus, the African-Americans illegally blocked from consideration for employment as firefighters probably have an uphill battle to convince the Court that their claim should be heard. Essentially, they will have to convince Justice Kennedy to switch sides. This case, along with Ms. Ledbetter's, serves as a reminder that America is not post-racial enough to be assured that entities as varied and powerful as Goodyear and the city of Chicago will not discriminate against women and people of color without strong and effective Federal law that severely punishes them for such conduct.
Holder v. Humanitarian Law Project:
Federal law makes it a crime to train, give expert advice or assistance to, and/or provide service and/or personnel to groups designated by the Secretary of State as terrorist organizations. This ban extends to support or assistance for nonviolent and humanitarian efforts of such groups. The Secretary's decision to label a group as a terrorist organization is not subject to judicial review. The Humanitarian Law Project, a human rights organization, had been working with the Kurdistan Workers' Party (PKK), providing them training in nonviolent resolution of disputes and how to petition world bodies like the UN, and advocating for Kurds in Turkey (the PKK is the principal organization representing the Kurdish population in Turkey.) Similarly, the Project had been assisting the Liberation Tigers of Tamil Eelam (LTTE), the principal group representing Tamils in Sri Lanka, by training them in how to present claims for tsunami relief and to negotiate with the Sri Lanka government, and by politically advocating for them. Both the Kurds in Turkey and the Tamils in Sri Lanka are minority populations which have been subject to discrimination and abuse. Unfortunately, both the PKK and the LTTE have been designated as terrorist groups (an honor not bestowed upon such groups as the Irish Republican Army and the Palestine Liberation Organization.) The position of the Federal government is that these activities conducted by the Humanitarian Law Project are crimes. In the litigation leading up to the Supreme Court case, one Federal attorney stated the government's position thusly: "We do not want American persons to be assisting terrorist organizations in making presentations to the U.N., to television, to a newspaper..." The Humanitarian Law Project is arguing that these statutes criminalize speech promoting lawful, nonviolent activities in violation of the First Amendment.
Why you should care : It is one thing to criminalize financial or logistical support of terrorist activities. It is quite another to criminalize speech or political advocacy in support of oppressed minorities, or the teaching of those minorities how to peacefully advocate for themselves. The truth is that terrorism is the weapon of the powerless, and thus, many organizations of political minorities who are being subjected to human rights abuses may also have some members who engage in violent actions that can be characterized as acts of terror. Thus, the statutes at issue create a great risk that Americans can be criminally prosecuted for verbally assisting groups that, despite the actions of some of its members, serve important purposes in the protection of oppressed population groups. There is the additional point that these statutes punish political speech. Let us hope that the Court is as protective of speech that assists persecuted minorities throughout the world as it is of speech propagated by Shell Oil and Blue Cross.
United States v. O'Brien and Burgess:
In the landmark 2004 case of Blakely v. Washington, the Supreme Court ruled that before a criminal defendant can be punished for something, a jury has to find him guilty beyond a reasonable doubt of that something. At issue was a Washington law which allowed a judge to increase a defendant's sentence beyond the statutory maximum if the judge found that the crime was perpetrated with deliberate cruelty. The Court held that a jury had to decide that Mr. Blakely acted with deliberate cruelty before he could be jailed for an extra three years for so acting. U.S. v. O'Brien is the latest of the cases which have followed in the wake of Blakely, dealing with the distinction between sentencing factors that a judge can decide on his own by a preponderance of the evidence (a legal standard of proof, meaning that if the evidence favors one side by over 50%, that side wins) in choosing what punishment is appropriate, and sentencing factors that must be treated as elements of the crime and thus proved to a jury beyond a reasonable doubt. At issue is a Federal law which makes commission of a crime with a firearm (in the case of these defendants, the attempted robbery of an armored car) punishable by a sentence of no less than 5 years, but commission of a crime with a machine gun punishable by a sentence of no less than 30 years. The question is whether the government must prove that the weapon used was a machine gun to a jury, using a standard of proof beyond a reasonable doubt, or can it just prove it to a judge by a preponderance of the evidence. The question is particularly interesting in this case, because the gun at issue was manufactured as a semi-automatic, not as a machine gun, and the modifications that the FBI found converted the weapon to a machine gun were not visible. Thus, a secondary issue in the case is whether the defendant had to know that he was using a machine gun in order to be subject to the increased penalty.
Why you should care: A several decades-long trend toward increasing punishment for reasons never submitted to a jury was halted by Justice Scalia's opinion in Blakely (born from his predecessor opinion in Apprendi v. New Jersey.) O'Brien represents yet another opportunity for the Supreme Court to ensure that trial courts adhere to the basic constitutional requirement that before someone can be imprisoned for conduct, he has the right to have the prosecution prove that conduct beyond a reasonable doubt and to have a jury determine whether the prosecution has succeeded. One of the things that will make this particular oral argument interesting is that the defendants are represented by brilliant constitutional litigator Jeffrey Fisher who argued and won Blakely six years ago.
Carr v. United States:
In 2006, Federal law established a national sex offender database, and required all sex offenders to register. In 2007, the law was broadened to require those convicted of sex offenses prior to 2006 to register. Failure to comply by someone who travels in interstate or foreign commerce carries a penalty of up to 10 years in prison. The element of interstate travel is necessary to give the Federal government the constitutional authority to impose a registration requirement on people who have violated state laws. In 2004, Thomas Carr was convicted of molesting a 14-year-old. He registered as a sex offender in Alabama, where he was then living. In 2004 or 2005, prior to the passage of the national registration law, Mr. Carr moved to Indiana. In 2007, while he was still living in Indiana, he was indicted for failing to register on the Federal level as a sex offender. Mr. Carr argued that the law did not apply to him because he had not traveled between states since the legislation was passed. The government argued that his prior interstate travel caused him to to be subject to the law. The case, therefore, presents two questions: (1) Does the law apply to those who were convicted of sex offenses before, and traveled between states before, but not since, the law went into effect? and (2) If the law does apply to those people, does that application violate the Ex Post Facto Clause of Article I, section 9 of the Constitution? The Ex Post Facto Clause prohibits punishing people for conduct that was legal when it was committed, but was subsequently made illegal. It also prohibits applying increased penalties for criminal conduct if those penalties were increased after the conduct occurred. In other words, if John Jones committed a robbery on January 1 when the punishment was 5 years, and the punishment was increased by a February 1 statute to 10 years, then when John is found guilty on March 1 he can only get 5, not 10 years. Thus, Mr. Carr's argument here is that he cannot be punished by being forced to register when the act that made him registerable occurred before the law requiring registration was passed.
Why you should care: There are a couple of reasons why you should care about Mr. Carr's plight. One is that the case raises the issue of the breadth of the Federal government's reach under the Commerce Clause. Because the Commerce Clause has been broadly interpreted in the modern era to give the Federal government the ability to regulate areas that are generally considered local, such as hiring practices and environmental concerns, legal conservatives, such as Chief Justice Roberts and Justice Alito, have been anxious to narrow its scope. This case gives them a vehicle to do so, albeit a less than attractive one. The second reason is that state courts have held that registration as a sex offender is not punishment, and hence not subject to the prohibition on ex post facto punishment. Given the fact that sex registration goes a long way toward destroying an registrant's ability to earn a living or find a place to live, the notion that it is not punitive is absurd. A finding by the Supreme Court that registration is subject to the protections of the Ex Post Facto Clause would have an enormous impact on state laws. It is, however, unlikely that the Court will choose that route to resolving the case.
United States v. Marcus:
This is another case involved the Ex Post Facto Clause, but with the emphasis on procedure. Mr. Marcus met a woman on a sadomasochistic chat room. Although their relationship started on a consensual basis, when the woman tried to break it off, Mr. Marcus used coercion and force to keep her from leaving him. A Federal statute against sex trafficking and forced labor, called the Trafficking Victims Protection Act (TVPA) became law on October 28, 2000. Mr. Marcus was subsequently indicted for violating that act. However, the conduct which was alleged to have violated the law occurred between January 1999 and October 2001. Mr. Marcus never raised the ex post facto issue in the trial court, and the prosecutors introduced evidence of Mr. Marcus' behavior covering time periods both before and after the effective date of the TVPA. The issue on appeal is not whether Mr. Marcus' subsequent conviction violates ex post facto principles. It is what Mr. Marcus has to show to get relief for any ex post facto violation since he did not raise it at trial. Mr. Marcus says that if the jury could have found him guilty solely on pre-TVPA behavior, he should win. The government says that if the jury could have found him guilty solely on post-TVPA behavior, the government should win.
Why you should care: Limitations on when legal issues never raised in the trial court can still be raised post-conviction are grounded in the fundamental beliefs that the trial court is usually the best situated to deal with such issues, and that allowing litigation of new issues on the appellate level has a negative impact on the efficient operation of the courts and on the finality of judgments. On the other hand, criminal defendants are at the mercy of their counsel, and it is not uncommon for these limitations to prevent a defendant from raising a legitimate issue that was forfeited by a lazy or incompetent attorney. This is particularly true in the arena of capital case litigation. Thus, the question of whether the protection of constitutional rights outweighs the system's interest in efficiency is always of importance to those of us who care more about the quality of the decisions made in criminal cases than the speed or smoothness with which such decisions are made.