Author: Lyle Denniston

The Bush Administration’s advocacy in the Zacarias Moussaoui case in the Supreme Court (docket 04-8385) shows that it is still smarting over the Fourth Circuit’s decision to give the terrorism suspect even a partial victory. But Moussaoui’s lawyers have turned the government’s abiding discontent into another argument for the Justices to review his appeal now, before any trial occurs. (An earlier post, below, provides links to papers filed in the case, but not to the Moussaoui defense team’s reply brief, which is here.) At this stage, of course, the Court has not agreed to hear Moussaoui’s multi-faceted constitutional challenge to the planned trial on conspiracy charges related to the September 11, 2001, terrorist attacks. Whether the Court will do so probably will be known after the case comes up in the private session of the Justices on March 18. At this point, then, the primary focus of the appeal and the government’s opposition is on the question of hearing the case now, or letting it go to trial without Supreme Court intervention. Trying to keep the Court on the sidelines, at least for the time being, the Justice Department has put most of its emphasis on the claim that the appeal is premature; its opposition brief makes a variety of arguments focusing on the pre-trial timing of the appeal, and the claim of a lack of finality on key issues. But that brief also threw in a side issue, an argument on the merits claiming that the Fourth Circuit should have given Moussaoui nothing at all. That is what Moussaoui’s lawyers are trying to turn to their advantage in seeking review now – albeit, at some risk to their overall case.

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With only Justice Antonin Scalia seeming dead-certain of his views on government display of the Ten Commandments, the Supreme Court on Wednesday spent two hours ambiguously exploring just how far to let public officials go to place religious monuments or plaques on public buildings or grounds. The end result of this exploration seemed to be that context may mean everything to the constitutional equation, and that, as a result, some displays will be allowed, and others not. An initial impression was that a Ten Commandments monument on the state capitol grounds in Austin, Texas, might pass a variety of constitutional tests the questioning Justices posed, but that a framed display of the Decalogue amid other Kentucky courthouse wall decorations, hastily added to neutralize the religious effect, might be in trouble. It was not evident that the Court would be able to speak definitively on a much-litigated facet of the culture war. Justice Sandra Day O’Connor, very likely to cast a decisive vote on the issue in the two cases, left the impression that she might have little difficulty permitting government displays of the Decalogue “packaged in a museum-like setting and displaying a whole lot of things,” but that she was quite troubled about a county governing board’s decision to put up the Ten Commandments to make the point that “Jesus Christ was the Prince of Ethics.”

The Supreme Court ruled 5-4 on Tuesday that the death penalty "is a disproportionate punishment for juveniles," and thus it violates the Eighth Amendment to impose a death sentence on a youthful murderer who committed the crime before age 18. Today, the Court said, "society views juveniles as categorically less culpable than the average criminal." While conceding that drawing the line against capital punishment at age 18 might be debatable, the Court said: "The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest." Justice Anthony M. Kennedy announced the decision in Roper v. Simmons (docket 03-633). The case involved a Missourian, Christopher Simmons, who was 17 at the time of a crime that led to a death sentence. "The differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability," Kennedy wrote. "When a juvenile offender commits a heinous crime, the state can exact forfeiture of some of the most basic liberties, but the state cannot extinguish his life and his potential to attain a mature understanding of his own humanity." His opinion was joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens. Justice Stevens wrote a brief concurring opinion, praising the Court for modernizing its view of the Eighth Amendment. Both Justices Sandra Day O'Connor and Antonin Scalia wrote dissenting opinions. Scalia's dissent was joined by Chief Justice William H. Rehnquist and Justice Clarence Thomas. Scalia recited at length from his dissent after Kennedy announced the ruling.

This is a followup to the Supreme Court's rulings on June 28, 2004, in Rumsfeld v. Padilla and Hamdi v. Rumsfeld. A federal judge in South Carolina, rejecting President Bush's broadest claims of war powers, on Monday ordered the release of Jose Padilla, a U.S. citizen who has been held for 33 months as an "enemy combatant." U.S. District Judge Henry F. Floyd also ruled, however, that the federal government could avoid releasing Padilla if it filed criminal charges against him, or acted to hold him as "a material witness." Judge Floyd's 23-page ruling can be found here.. The power to suspend the writ of habeas corpus, Judge Floyd ruled, "belongs solely to Congress," under the Constitution. "Since Congress has not acted to suspend the writ, and neither the President nor this Court have the authority to do so," Padilla must be released. "It is true that there may be times during which it is necessary to give the Executive Branch greater power than at other times. Such a granting of power, however, is in the province of the legislature and no one else -- not the Court and not the President...Simply stated, this is a law enforcement matter, not a military matter." This marks the second time that a federal court has found that President Bush lacked constitutional authority to hold a U.S. citizen as an "enemy combatant" for an indefinite period, without legal rights and without any criminal charges filed. The Second Circuit did so in 2003 in an earlier phase of Padilla's case, but that ruling was set aside when the Supreme Court ruled last June that Padilla had filed his habeas challenge in the wrong court. The case was shifted to South Carolina, and Padilla filed a new habeas petition. He is being held in Charleston, S.C., in a U.S. Naval brig. Judge Floyd, nominated to U.S. District Court by President Bush in May 2003, has been on the bench since September of that year. His ruling Monday was issued in Spartanburg, S.C. .

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The Supreme Court, returning from a four-week recess, stepped into another angry cultural controversy, agreeing on Tuesday to hear the Bush Administration’s challenge to Oregon’s doctor-assisted suicide law – the Death With Dignity Act. At issue in the case is whether the federal government has the authority to bar doctors from prescribing the drugs that patients may use to end their lives. The case is Gonzales v. Oregon (docket 04-623). The cases granted review Monday will be heard in the new Term starting in October. On a day when the Court, once more, failed to take any action on the constitutionality of presidential appointments during brief recesses of the Senate, and refused to reopen Roe v. Wade by turning aside a new appeal by the original “Jane Roe,” the Justices granted review in two other disputes in addition to the Oregon case. The Court consolidated two cases, both testing the definition, for wage purposes under federal law, of when a worker’s day on the job actually begins. The questions to be reviewed test whether workers are entitled to be paid for activities at a plant before or after their work at their actual station. One issue is whether they are to be paid for time walking to places in the plant where they obtain special gear or clothing used in their jobs, and the other question is whether they are to be paid for time waiting in line to receive those items. Federal courts are split on the walking and waiting time issues, both of which arise with great frequency under federal wage-and-hour law. The Court will face those issues in IBP Inc. v. Alvarez (03-1238) and Tum v. Barber Foods (04-66). In the third case granted Tuesday, Schaffer v. Weast (04-698), the Court will be deciding whether parents of a disabled child or the school board have the burden of proof when the two sides have reached an impasse over the child’s educational plan, and the dispute goes to a hearing officer for resolution. The Fourth Circuit, ruling in a case from Montgomery County, Maryland, ruled that the parents must show that the plan proposed by the school district is inadequate, under the federal Individuals with Disabilities Education Act. The Court returned to its public session without Chief Justice William Rehnquist on the bench. He is continuing treatment for thyroid cancer. Justice Sandra Day O’Connor presided at the opening and at the Tuesday hearings into two important “takings” case because, she said, the senior Justice, John Paul Stevens, was delayed by air travel. Stevens did not reach the Court in time to hear the cases, but both he and the Chief Justice plan to take part in the decisions in the two cases -- one involving city takeover of private land for private economic redevelopment, the other involving state rent controls. Before beginning the oral arguments, the Court issued two decisions: In Smith v. Massachusetts (03-8661), the Court ruled by a 5-4 vote that it is unconstitutional double jeopardy for a judge, in mid-trial, to grant a not guilty verdict on one of the criminal charges, then reinstate the charge later in the trial. The issue has divided lower courts. The Chief Justice participated in the case, joining in the dissent. Justice Antonin Scalia wrote the decision, Justice Ruth Bader Ginsburg the dissent. In a second decision, without the Chief Justice participating, the Court ruled 8-0 that a dredge or other special purpose watercraft is a “vessel” within the meaning of the federal law that allows seamen to sue for damages for job-related injuries. The ruling came in a case involving a Pennsylvania man injured while working on a scow attached to a dredge that was working on the Big Dig harbor project in Boston. The Supreme Court had not sought to define the word “vessel” since 1903.

The Justice Department chose to bring its terrorism case against Zacarias Moussaoui in Alexandria, VA, precisely because it believed that venue would significantly enhance its chances of getting a conviction and a death sentence in the only case in the U.S. charging an individual with crimes related to the September 11, 2001, attacks. Now, the Department, determined to keep the Supreme Court from reviewing the case before a trial could start, is relying upon Moussaoui’s long-shot chance of being acquitted or, at least, of avoiding the death penalty. It is a predictable strategy in a pre-trial case, but it hardly reflects the government’s real expectations. Moussaoui “has not yet been tried or sentenced, and the course of proceedings below, let alone the outcome of his trial, cannot be definitively predicted,” the Department said in its just-released opposition to Moussaoui’s appeal. (The response was filed February 10, but its public release was held up while classified portions were being edited out.) Denial of review now, the government said, would not bar him from raising his claims after a trial, “if he is convicted on the charges against him.” It added that he ”has not been found eligible for the death penalty or received a death sentence.” It did not note that the government has strenuously resisted taking the death penalty off the table in the case. Alexandria’s federal courthouse has been good to the Bush Administration in the legal side of its war on terrorism, just as the government expected. The most sweeping victory there, of course, came last year, when three Muslim men were convicted of training for a “jihad” – holy war – over the long-simmering dispute over Kashmir between India and Pakistan. They were charged with planning to aid a Pakistani terrorist group. The case became famous because a key part of the prosecution’s evidence was that the men had played paintball games on the weekends in a Virginia park. Prosecutors said this was “paramilitary training.” The sentences ranged from eight years in prison to life. They were convicted in a bench trial and sentenced by the same judge who is to try Moussaoui -- U.S. District Judge Leonie M. Brinkema. (Brinkema protested the length of the sentences that she said the Sentencing Guidelines compelled – a situation that could be altered now that the Supreme Court has declared the Guidelines to be advisory, not mandatory.)