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Commentary and Analysis Tag

By on Jun 1, 2010 at 11:42 am
Analysis More than four decades after the Supreme Court ordered police to warn suspects about their rights before questioning them, the actual day-to-day practice has not turned out to be a simple ritual under clear ground rules.  Encounters in interrogation rooms still and often are a test of wills, with detectives trying to get answers and suspects trying to avoid talking themselves into deeper trouble.  As a result, the Court often has had to reinterpret its 1966 decision in Miranda v. Arizona.  It did so again on Tuesday, and this time the result decisively tilted the warnings procedure toward the police. By a 5-4 vote, the Court for the first time made two things clear about Miranda rights: first, if a suspect does not want to talk to police -- that is, to invoke a right to silence -- he must say so, with a clear statement because it is not enough to sit silently or to remain uncooperative, even through a long session; and, second, if the suspect finally answers a suggestive question with a one-word response that amounts to a confession, that, by itself, will be understood as a waiver of the right to silence and the statement can be used as evidence.  Police need not obtain an explicit waiver of that right. The net practical effect is likely to be that police, in the face of a suspect's continued silence after being given Miranda warnings, can continue to question him, even for a couple of hours, in hopes eventually of getting him to confess.

By on May 17, 2010 at 1:47 pm
Analysis In state prisons scattered across ten states, and in a handful of federal penitentiaries, a group of 129 prisoners on Monday gained a new constitutional right from the Supreme Court, but not one of them yet knows whether the ruling will lead to freedom.  Each of them, convicted as minors and sentenced to life in prison without the chance of release, learned that it would no longer be possible for any juvenile to get that sentence in the future if the crime did not involve murder.  But the Court did not rule that any of those 129 must now be released, or even that any of them must be re-sentenced.  That was not what they won. Instead, each of the 129 must be given some chance to show, at some point in the future, that they have matured enough while in prison that they might then be ruled "fit to rejoin society" (in the Court's phrase) rather than staying in prison for the rest of their lives.   And, while every other juvenile who commits a serious "non-homicide" crime from now on has won a right not to be sentenced to life without potential release; the decision leaves open the possibility that conviction for such a juvenile might lead to a definite prison sentence of perhaps 40 or more years, thus stretching their confinement long into the future, perhaps to old age.

By on May 10, 2010 at 12:54 am
Analysis Elena Kagan was not quite four years old when Bob Dylan's studio album, "The Times, They Are a-Changin'," was released 46 years ago.  But that might well be the theme song for the Supreme Court, when Solicitor General Kagan, as now seems likely, takes the seat soon to be vacated by Justice John Paul Stevens.  The third woman on the bench, and the youngest of three Justices in their fifties, Kagan could well be an agent of that change.  A glaring fact: she is nearly three generations younger than the man she would replace. As the days wound down this past week toward Kagan's selection by President Obama, the nation could look West and East and see cultural conventions on the verge of change, much along the lines of Dylan's title track.  At the Salt Palace Convention Center in Salt Lake City, a  Republican U.S. Senator who is a Mormon and has absolutely solid conservative credentials was dumped by his own party.  In Boston, some 2,400 miles -- and perhaps a world -- away, the gay rights movement got a serious hearing in the Moakley U.S. Courthouse on  its plea to change the nation's legal perception of marriage. What those events have in common, though, is that both will figure in the fight over the future of the Supreme Court that begins later this morning with the announcement of Kagan's nomination, and both will influence, in coming months and years, the political pressures on the Court.

By on May 9, 2010 at 6:44 pm
The Administration plans to identify its nominee in “guidance” at 7:20 tomorrow morning, with a formal announcement by the President at 10 a.m. If the nominee is Elena Kagan, then Mike Allen of Politico will go down as the reporter with the best information on the Administration’s thinking, bar none. In the event of a Kagan nomination, here is how the nomination process is likely to play out.  I divide it into process and substance. First, the process:  Note the relationship between Monday’s announcement and the Senate calendar.  There are seven weeks between Monday and June 28.  Six to seven weeks is traditionally regarded as the minimum amount of time between a nomination announcement and hearings before the Senate Judiciary Committee.  June 28 marks the last week the Senate is in session before its July 4 recess, which runs from Saturday, July 3 to Sunday, July 11.  So, tomorrow’s announcement is timed to permit hearings to be conducted prior to the recess, if (and it’s a big if) the Senate Judiciary Committee agrees. Whether they will agree will depend on a number of factors.  Kagan’s relatively short paper trail – note the contrast with the nearly two decades of decisions by Sonia Sotomayor – means there is less to review, and thus less time is required prior to the start of hearings.  Kagan was also recently confirmed by the same Committee as Solicitor General.

By on May 7, 2010 at 2:19 pm
The widely read Playbook from Politico leads with an item that readers should "look for" the President to nominate Elena Kagan on Monday, reporting that the sense of top White House aides about the pick is strong enough that they would "be shocked if it is otherwise."  The firewall between that being the sense of aides to being an actual decision by the President was jumped by an ensuing headline in a story reporting on the Playbook item at the top of Huffington Post that "Elena Kagan Said To Be Obama's Supreme Court Pick."  (The title on the linked story says even more strongly "Will Be," rather than "Said to Be.") I obviously share the view that General Kagan is the most likely nominee.  But over the course of the day, this has taken on an unjustified level of confidence and certainty.  If the President has in fact made his decision -- and I would put the odds at better than even that he has -- then he has told almost no one else.  Probably Rahm Emanuel and Bob Bauer would know.  The candidates themselves, the communications shop, the rest of the White House Counsel's Office, and the Office of Legal Policy do not know.  And because the information has not been disseminated, the White House has not put into effect its plan for the announcement and for communicating with external groups.  Any actual information on a decision that has been made, if it has been, is extremely tightly held.

By on May 4, 2010 at 10:10 am
In the wake of the Supreme Court’s Citizens United decision, supporters of campaign finance reform, with the vocal support of the President, have considered additional regulatory measures.  The most prominent legislative proposal is the DISCLOSE Act, which is summarized here. Title II of the DISCLOSE Act governs disclosure by corporations, unions, and political committees of advertising of most substantial campaign advertising.  Several provisions are most noteworthy.  Donors who give more than $1,000 must be disclosed.  The head of the organization must personally state in the advertisement that s/he “approves the message.”  The top funder of an advertisement must state her/his approval, and the top five donors to the organization must be disclosed.  In addition, under Title III, expenditures must be disclosed to shareholders and members.

By on Apr 28, 2010 at 4:10 pm
I happened to be in the courtroom today for the argument in Doe v. Reed, which was Justice Stevens’ last argued case.  Early reporting and commentary on the decision – with which I agree entirely – has been that the Court will affirm by a wide margin the Ninth Circuit’s refusal to grant the particular injunction now before the Court. But it does not follow, as some have thought, that the courts will in fact allow the lists of petition signatories to be released.  In fact, I think there is a significant chance they will not. The lopsided tone of the argument in favor of the State of Washington today depended very much on two factors:  Justice Scalia’s strong views that disclosure does not implicate any constitutional interest, and the case’s procedural posture.  The latter point is critical.  As the Justices understood the case, it came to them presenting only a categorical, “facial” question: whether the signatories to an initiative can ever be disclosed consistent with the First Amendment.  That issue – presented by Count I of the plaintiffs’ complaint – was decided below.

By on Apr 28, 2010 at 1:44 pm
Analysis A spectator in the Supreme Court chamber Wednesday morning could well have understood that the Justices had just made a major new pronouncement on the constitutionality of placing religious monuments on government property.  Justice Anthony M. Kennedy, announcing his opinion and the Court's ruling in Salazar, et al., v. Buono, spoke with obvious approval of erecting such monuments as tributes to those who died in military combat, and of the overall civic virtue in having religious symbols displayed on government grounds. Kennedy was paraphrasing an opinion that said "The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm....The Constitution does not oblige government to avoid any public acknowledgment of religion's role in society."  The problem, though, is that those expressions had only three votes in support, and thus did not speak for the Court.  A tangled case, which had been through four separate stages in court and had led to a new law passed by Congress, ended in a tangled set of six opinions from the Supreme Court, not one representing a majority.  The ruling, though, can be sorted out, and, in the end, it does not reach any final outcome.

By on Apr 28, 2010 at 11:45 am
Analysis Justice Antonin Scalia, using history, sarcasm and political taunts, laid down a barrage of objections Wednesday to a plea that the Supreme Court create a new constitutional right of anonymity for individuals who sign petitions to get policy measures onto election ballots.  When he was finished, the strong impression was that it might be exceedingly hard to gather a five-vote majority to establish such a right, even though the plea got the fervent support of Justice Samuel A. Alito, Jr., and some implied help from Chief Justice John G. Roberts, Jr.  The oral argument was in John Doe # 1, et al., v. Reed, et al. (09-559). Declaring that the rough-and-tumble of democracy is not for the faint-hearted, what Scalia referred to as the "touchy, feely" sensitivity of some political activists, the Justice said "you can't run a democracy" with political activity behind a First Amendment shroud.  "You are asking us to enter into a whole new field," Scalia told James Bopp Jr., the lawyer for Washington State signers of an anti-gay rights petition.  Politics, the Justice went on, "takes a certain amount of civic courage.  The First Amendment does not protect you from civic discourse -- or even from nasty phone calls."

By on Apr 27, 2010 at 3:31 pm
Shortly after 10 a.m. on Wednesday, after decisions are released, the Supreme Court will hear one hour of oral argument in John Doe # 1, et al., v. Reed, et al. (09-559). Arguing for the ballot measure proponents will be James Bopp, Jr., of Bopp, Coleson & Bostrom in Terre Haute, Ind., and for Washington State officials will be the state's Attorney General, Robert M. McKenna, of Olympia.  This is the only case scheduled for argument that day and, unless another case is given unusually expedited treatment later in the Term, this will be the last case argued this Term. The Supreme Court has sometimes found it necessary to provide anonymity for political activists.  The scope of that protection will be tested anew as the Court examines a plea by signers of a petition supporting a ballot measure that they, too, may need to keep their identities secret in order to avoid retaliation, perhaps even a violent response from their opposition.  The new case arises in the volatile contact of same-sex marriage.