The U.S. Supreme Court
& 21st Century Freedom
Artemus Ward
Department of Political Science
Northern Illinois University
New Ideas in History Conference
October 22, 2007
The U.S. Supreme Court
& 21st Century Freedom
• We will review the 2006-2007 Term of the Court via statistics and some
controversial decisions.
• We will then look ahead to the current Term and see what issues the Court
will be deciding in the coming months.
• Throughout, I will suggest that Justice Anthony Kennedy is perhaps the most
powerful person and the Supreme Court is the most dangerous branch in
America.
Number of Dissenting Votes:
2006-2007 Term
30
25
20
15
10
5
Th
om
as
Sc
al
ia
Al
ito
St
ev
en
s
G
in
sb
ur
g
Br
ey
er
So
ut
er
Ke
nn
ed
y
Ro
be
rts
0
The Court’s four liberals dissent most often.
Kennedy followed by Roberts and Alito are less extreme than their colleagues.
Percent in Majority in 5-4 Decisions:
2006-2007 Term
Th
om
as
Sc
al
ia
Ro
be
rts
Al
ito
Br
ey
er
Ke
nn
ed
y
So
ut
er
St
ev
en
s
G
in
sb
er
g
100
90
80
70
60
50
40
30
20
10
0
Justice Anthony Kennedy is the decider, regardless of whether the majority
includes Conservatives or liberals.
5-4 Decisions: 1995-2006 Terms
35
30
25
20
15
10
5
20
06
20
05
20
04
20
03
20
02
20
01
20
00
19
99
19
98
19
97
19
96
19
95
0
The Court has never been more divided in terms of 5-4 decisions.
It’s Justice Kennedy’s World
and You Just Live in It
• Justice Sandra Day O’Connor
was often considered the
“swing vote” during her tenure
(1981-2005). But she was only
in 5-4 majorities about 2/3 of
the time.
• Kennedy had been in 5-4
majorities ½ to 2/3 of the time.
• Now Kennedy is in all of them.
• Let’s look at some issues from
the last Term and the current
one to see how Kennedy
makes the difference.
Gonzales v. Carhart (2007)
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In Stenberg v. Carhart (2000), the Court struck down,
5-4, a state law that banned, so-called “partial-birth”
abortion—a specific method of late-term abortion
where part of the fetus enters the birth canal before it
is aborted. Doctors testified that they only used this
procedure when it ensures the health and safety of
the woman. Justice O’Connor agreed and struck
down the ban as Roe v. Wade (1973) requires
exceptions for maternal health.
The federal Partial-Birth Abortion Ban Act of 2003 also
banned the procedure. But unlike the Nebraska
statute, the legislation included lengthy sections
explaining how the procedure was unnecessary for
maternal health.
By a vote of 5-4 the Court upheld the law—the first
time the justices upheld a prohibition on a specific
method of abortion.
Justice Kennedy wrote the opinion, deferring to the
congressional findings on the procedure.
O’Connor’s replacement, Justice Alito, voted to uphold
the ban demonstrating how judicial appointments can
have an important effect on judicial policymaking.
President George W. Bush
and Judge Samuel Alito
Parents Involved in Community Schools
v. Seattle School District No. 1 (2007)
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By a vote of 5-4 the Court struck down voluntary
school integration plans which use a student’s race
to govern the availability of a place at a desired
school, even for the purpose of preventing
resegregation.
Chief Justice Roberts said that while governments
may take race into account under certain
circumstances, such as making up for specific past
discrimination and as one of many factors to
achieve diversity, race cannot be determinative as it
was in this case: “under each plan when race
comes into play, it is decisive by itself.”
Justice Kennedy, a member of the conservative
majority, refused to sign the more far-reaching parts
of the chief justice’s opinion that he felt would have
barred even more general considerations of race.
Reading his dissent from the bench, Justice Breyer
remarked on the Court’s shift to the right with the
appointments of Roberts and Alito: “It is not often in
the law that so few have so quickly changed so
much.”
Alito voted to invalidate the schemes, while it is
likely that O’Connor would have upheld them.
Chief Justice John Roberts
Panetti v. Quarterman (2007)
• In a 5-4 decision the Court held
that a mentally ill convicted
murderer who was delusional and
lacked a “rational understanding” of
why the state had sentenced him to
death could not be executed.
Therefore capital defendants can
challenge their sentences on
mental illness grounds at any point
prior to their execution.
• Kennedy wrote the opinion and
joined the four liberals in yet
another example of his skepticism
about the reach of the death
penalty.
• This coalition also struck down the
death penalty for juveniles and the
mentally ill in two previous cases.
Justice Anthony Kennedy
2007-2008 Term:
Baze v. Rees
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Do death sentences carried out by lethal injection violate the Eighth Amendment ban on cruel
and unusual punishment?
The Kentucky Supreme Court affirmed the constitutionality of lethal injection last year, noting
that of the 38 states that permit capital punishment, the majority use the injection method
because it is "universally recognized as the most human method of execution and the least apt
to cause unnecessary pain."
The lethal injection method calls for the administration of four drugs: Valium, which relaxes the
convict, Sodium Pentathol, which knocks the convict unconscious, Pavulon, which stops
breathing, and potassium chloride, which essentially puts the convict into cardiac arrest,
ultimately causing death.
Two inmates are challenging Kentucky's four-drug lethal injection protocol.
The Kentucky Supreme Court noted that only one person has been put to death under the
state's lethal injection method. It observed that the convict went to sleep within a minute of the
first injection and did not move or show any evidence of suffering during the remainder of the
process.
The Court has been issuing stays on pending executions since it granted the case on
September 25, 2007. Therefore, states that use the lethal injection method will have to wait until
the Court’s decision is announced sometime before July 2008.
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In 2006, 53 persons in 14 States were executed -- 24 in Texas; 5 in Ohio; 4 each in Florida,
North Carolina, Oklahoma, and Virginia; and 1 each in Indiana, Alabama, Mississippi, South
Carolina, Tennessee, California, Montana, and Nevada.
Of persons executed in 2006, 32 were white and 21 were black.
All 53 inmates executed in 2006 were men.
Lethal injection accounted for 52 of the executions and electrocution for one.
Currently lethal injection is the method used or allowed in 37 of the 38 states which have the
death penalty. Nebraska requires electrocution. Other states also allow electrocution, the gas
chamber, hanging and firing squad.
The gas chamber was last used in Arizona in 1999. A convict chose death by firing squad in
Utah in 1996 (Idaho and Oklahoma also allow firing squads as the backup method to lethal
injection. The last public hanging (and also the last public execution) occurred in 1936 in
Kentucky.
2007-2008 Term:
Boumediene v. Bush
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The Suspension Clause of Article I of the Constitution
says “The privilege of the Writ of Habeas Corpus shall
not be suspended, unless when in Cases of Rebellion
or Invasion the public Safety may require it.”
In Rasul v. Bush (2004) the Court held that the
Constitution’s habeas corpus statute extends to noncitizen detainees at Guantanamo Bay, Cuba.
Congress responded to the Rasul decision by passing
the Detainee Treatment Act of 2005 (DTA), which
essentially stripped courts of jurisdiction over habeas
cases filed by Guantanamo detainees.
The detainees insisted that the DTA did not apply to
their cases, which were pending before its passage.
The Supreme Court ultimately agreed, in Hamdan v.
Rumsfeld (2006).
Congress went back to the drawing board and
passing the Military Commissions Act of 2006 (MCA).
The Act eliminates federal courts' jurisdiction to hear
pending habeas applications from detainees.
In the current case, the detainees argue that the MCA
is unconstitutional under the Suspension Clause.
2007-2008 Term:
District of Columbia v. Parker?
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The District of Columbia has asked the Supreme Court to uphold its strict 30year ban on keeping handguns in the home, setting up what could be a test of
the Second Amendment with broad ramifications.
The Second Amendment states: "A well regulated militia, being necessary to the
security of a free state, the right of the people to keep and bear arms, shall not
be infringed."
The last Supreme Court ruling on the issue, Miller v. the United States (1939), is
considered by many to define the right to bear arms as being given to militias,
not to individuals.
Initially U.S. District Judge Emmet G. Sullivan dismissed the lawsuit several
years ago, ruling that the amendment was tailored to membership in a militia.
But in a 2 to 1 decision in March 2007, a panel of judges for the U.S. Court of
Appeals for the D.C. Circuit ruled that the city's prohibition against residents
keeping handguns in their homes is unconstitutional. Two judges said that while
the District has a right to regulate and require registration of firearms it could not
ban them in homes. The ruling also struck down a section of the law that
required owners of registered guns, including shotguns, to disassemble them or
use trigger locks.
If the Court takes the case and strikes down the ban, similar gun laws in major
cities, including New York, Chicago and Detroit, may be vulnerable.
"Any accurate, unbiased reading of American history is going to come down to
this being an individual right," said Wayne LaPierre, executive vice president of
the National Rifle Association. "To deny people the right to own a firearm in their
home for personal protection is simply out of step with the Constitution."
Former acting solicitor general Walter E. Dellinger III, who would argue the case
before the Court, said, “This is not a law which takes away the rights to keep and
bear arms. It regulates one kind of weapon: handguns.”
Wayne LaPierre
Walter Dellinger
The Most Activist
Supreme Court in History
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The Court is unafraid to decide the great
issues of the day—even taking a presidential
election away from the political process.
In an August 11, 2007 speech to the
American Bar Association, Justice Breyer
explained that even when the Court makes
unpopular decisions, the nation abides by
them. In the 2000 election case of Bush v.
Gore, Breyer noted, "there were no
paratroopers, no rocks. ... People accepted
it.“
Commenting on the 2006-2007 Term, Breyer
said, “I had a difficult year. I was in dissent
quite a lot, and I wasn’t happy.” In talking
about the school decision, he said: “I wish I
had won.” But he said that he was proud that
this and other divisive issues are decided “in
the courts, not in the streets.”
Is Breyer right? Is it good that the Courts
decide issues rather than the people?
Consider…
The Most Activist
Supreme Court in
History
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Justice Sandra Day O’Connor wrote a plurality opinion in the case of American citizen Yasser Hamdi
who was captured in Afghanistan, designated an enemy combatant, held in a military brig in the U.S.,
and denied due process—despite the government’s failure to declare war or suspend habeas corpus.
In Hamdi v. Rumsfeld (2006), O’Connor said that Hamdi could be held as long as hostilities continued
in Afghanistan, but he must be granted an attorney and given the opportunity to go before a “neutral
decision-maker” and given a chance to prove his innocence.
Justice Scalia railed against what he saw as blatant judicial activism: “There is a certain harmony of
approach in the plurality's making up for Congress's failure to invoke the Suspension Clause and its
making up for the Executive's failure to apply what it says are needed procedures--an approach that
reflects what might be called a Mr. Fix-it Mentality. The plurality seems to view it as its mission to
Make Everything Come Out Right, rather than merely to decree the consequences, as far as
individual rights are concerned, of the other two branches' actions and omissions. Has the Legislature
failed to suspend the writ in the current dire emergency? Well, we will remedy that failure by
prescribing the reasonable conditions that a suspension should have included. And has the Executive
failed to live up to those reasonable conditions? Well, we will ourselves make that failure good, so that
this dangerous fellow (if he is dangerous) need not be set free. The problem with this approach is not
only that it steps out of the courts' modest and limited role in a democratic society; but that by
repeatedly doing what it thinks the political branches ought to do it encourages their lassitude
and saps the vitality of government by the people.
Further Reading
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Keck, Thomas M., The Most Activist Supreme Court in History (University of Chicago
Press, 2004).
Rosenberg, Gerald N., The Hollow Hope: Can Courts Bring About Social Change?
(University of Chicago Press, 1993).
Tushnet, Mark, Taking the Constitution Away from the Court (Princeton University
Press, 2000).