User namePassword 

 Print this Issue Home  •  Archive  •  About Us  •  Contact  •  Advertise  •  Merchandise Subscribe  •  Free Trial
Roger Fitch Esq
14 September, 2009  
Our Man in Washington

Roger Fitch surveys the forthcoming Supreme Court term, with new justice Sonia Sotomayor in harness … She’s probably not as liberal as the conservatives are conservative … Major national security appeals on the docket


imageThat (feeble) judicial engine, the US Supreme Court, is starting up again, this time with a new member, former 2nd circuit judge Sonia Sotomayor.

At her Senate confirmation, Sotomayor was given a bad time by Jeff Sessions, the ranking Republican on the Judiciary Committee and a man still smarting from being denied a federal judgeship himself.

But that’s nothing. A long-serving Florida Democrat, Alcee Hastings, was elected to Congress after being impeached and removed as a federal judge.

In the end, only nine Republicans voted for Sotomayor.

Still, the vote of 68 to 31 was better than the 58 to 42 that Justice Samuel Alito got three years ago. The New York Times has more.

Justice Sotomayor will replace the “liberal” David Souter, so her confirmation shouldn’t upset the present liberal/conservative balance of the court.

Even so, progressives worry that the court’s liberals never seem as liberal as their conservative colleagues are conservative, e.g. Nino Scalia and Clarence Thomas.

imageFew judicial candidates have had their records so exhaustively examined as Justice Sotomayor (seen here).

NYU Law School’s Brennan Center analysed nearly 1,200 appellate cases she had decided during her 2nd circuit tenure.

The New York Times has a summary here.

Opinions are divided on Justice Sotomayor.

In her confirmation hearings, she succeeded in appearing mainstream and moderate. Indeed, she wasn’t activist enough for Republican Senators, according to Michael Dorf.

For some, such as The American Prospect, Sotomayor’s appointment heralds a new day for progressives.

Others fear that Obama can’t be trusted to appoint a progressive justice, for instance in the event Justice John Paul Stevens retires this term.

* * *

imageWill the Supreme Court’s jurisprudence change?

Precedents were upset by the resignation of Justice Sandra Day O’Connor, when she was replaced by the “movement conservative” and former Republican Party functionary Sam Alito (pic).

An early test will be the major case on election financing, Citizens United v Federal Election Commission.

A holdover from the last term, Citizens United was reargued on September 9, before the official opening of the court, after a majority of justices decided to reconsider the validity of long-standing precedents imposing limits on corporate cash in elections.

Scotus Blog has the transcript and audio, and an analysis here.

The oral argument doesn’t bode well for the supporters of campaign finance restrictions, especially if you apply the principles of a new academic article called “Inferring the Winning Party in the Supreme Court from the Pattern of Questioning at Oral Argument”.

The Citizens’ case stirred up powerful emotions.

One headline read, “How a Legal Case Over an Idiotic Right-Wing Anti-Hillary Film Might End Up Destroying Our Democracy”.

* * *

In another action taken before it began its 2009 term, the Supreme Court remanded the internationally notorious Troy Davis death penalty case, a rare exercise of the court’s original habeas corpus jurisdiction.

The resulting decision on remand could close one of the biggest gaps in Supreme Court jurisprudence – the lack of any constitutional precedent preventing the execution of an actually innocent person who otherwise received a fair trial.

Scotus Blog has more.

Slate is not optimistic about the eventual outcome despite the recent revelation that an innocent man, Cameron Willingham, was put to death in Texas in 2004.

The initial conference of the justices for the 2009 term will be on September 29, before the official opening on October 5 and the court’s docket for the first arguments in November has been announced.

The New York Times has a summary of the cases Sotomayor faces and the American Bar Association has a site with briefs that have been filed.

There will be major appeals flowing from the government’s “national security” actions.

Notably, the government has appealed against the FOI decision ordering release of photographs that show prisoner abuse in Afghanistan and Iraq.

The Supreme Court will also hear two appeals by the long-suffering Chinese Uighurs – Kiyemba I and Kiyemba II – that may be the next blockbusters in the court’s Guantánamo jurisprudence.

Scotus Blog has more.

The new term will hear the second appeal of the Rasul v Myers civil torture case (press release here).

imageTwo of the petitioners, the Britons Shafiq Rasul and Asif Iqbal, were David Hicks’ co-petitioners in the case that led to the Supreme Court’s 2004 Rasul decision.

Although the Brits have been released, their civil suit continues. Scotus Blog has the sorry history.

Fortuitously, Gen. Richard Myers (pic), the former Joint Chiefs of Staff chairman and defendant in Rasul v Myers, has just published his memoirs.

A fitting companion appeal for the Myers’ case is Al-Kidd v Ashcroft, a new 9th circuit ruling against Bush AG John Ashcroft.

The Los Angeles Times and Glenn Greenwald have more on Al-Kidd.

* * *

Legal savants, including The Washington Post are still parsing the decisions of the Roberts court in the term just ended.

The Los Angeles Times found the only progressive trend in a shift on consumer issues.

The New York Times also noted that environmentalists had lost all five of the causes they took to the court.

See: Environment Groups Find Less Support on Court.

imageThe Progress Report saw a rapid move to the right, while the National Law Journal’s Tony Mauro described a “narrow road to the right”.

The New York Times identified Justice Anthony Kennedy (pic) as the man who will lead the court in a new tack to the right, and Balkin Blog provided Kennedy’s vital vote statistics.

* * *

The real battle will be in the lower courts where Obama has a good chance of changing the right-wing complexion imposed over the Bush years.

It’s basically what the Republicans did – undermine the Supreme Court by ideologically packing the lower courts and then persuading the Supremes to hear fewer appeals.

Jeffrey Toobin surveys appeals court vacancies in the latest New Yorker.

This circuit chart may provide some help.