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2005 Term
Supreme Court Ends Term by Striking Down Military Tribunals at Guantánamo Bay (6/29/2006)
FOR IMMEDIATE RELEASE
CONTACT: media@aclu.orgJustice Kennedy Emerges as Critical Swing Vote on
the Roberts Court WASHINGTON -- The
Roberts Court ended its first year today by holding that the system of military
tribunals established by the Bush Administration to try Guantánamo detainees
violates the Geneva conventions and U.S. law. The American Civil Liberties
Union, which filed a friend-of-the-court brief in Hamdan v. Rumsfeld, said the
ruling was yet another rebuke to the Administration's efforts to rewrite the
legal rules in the guise of fighting terrorism.
"The
government's misuse of military tribunals is consistent with a larger pattern of
abuse of power," said Steven R. Shapiro, the ACLU's national legal
director. "This is an Administration that prefers to act outside the law
and without judicial scrutiny. The Court properly rejected that
anti-democratic view."
"Our own soldiers benefit, as much as the
Guantánamo detainees, by the Court's insistence that the Administration comply
with the Geneva Conventions and the rule of law," Shapiro
added.
The Court also rejected the Administration's effort to have
the case dismissed based on a congressional statute enacted last year.
Instead, the Court upheld its right to review the legality of the military
tribunals.
Chief Justice Roberts did not participate in the Supreme
Court proceedings because he had previously ruled on the case while still
sitting on the court of appeals. Justice Alito dissented, along with
Justice Scalia and Thomas.
This was a transitional year for the
Court, with the death of Chief Justice Rehnquist and the retirement of Justice
O'Connor. After a decade without any changes on the Court, a great deal of
attention has understandably focused on their replacements, Chief Justice
Roberts and Justice Alito.
"Thus far, Roberts and Alito have pretty
much performed as expected," Shapiro observed. "But in the short run, at
least, their votes may be less important on a range of critical issues than
Justice Kennedy, who now holds the balance of power on a closely divided
Court."
That influence was apparent this year in cases involving
partisan redistricting, the exclusionary rule, the death penalty, and
federalism, among others. Justice Kennedy's role is likely to be even more
pivotal next Term given the Court's decision to hear cases involving affirmative
action and abortion.
With elections looming next fall, the Court
decided two cases during its final week with potentially significant political
consequences. In Randall v. Sorrell, an ACLU case, the Court reviewed a
Vermont law that imposed both campaign expenditure limits and the lowest
contribution limits in the country. Reaffirming its 1976 holding in
Buckley v. Valeo, the Court struck down the expenditure limits as a clear
violation of the First Amendment. For the first time ever, the Court also
struck down the state's contribution limits, noting that low contribution limits
"harm the electoral process by preventing challengers from mounting effective
campaigns against incumbent officeholders, thereby reducing democratic
accountability."
Two days later, in LULAC v. Perry, the Court
delivered a far more muddled message when it addressed the issue of partisan
gerrymandering in a closely watched challenge to a Texas redistricting scheme
that the lower court found was motivated solely by partisan
considerations. A majority of the Court concluded that a partisan purpose
is not enough to invalidate a redistricting plan, but it could agree on little
else. It is the third time that the Court has considered the
constitutional limits on partisan gerrymandering in the past two decades, and
for the third time the Court concluded that the problem was beyond its capacity
to solve. The absence of a judicial solution preserves the political
status quo, which has largely immunized the vast majority of House members from
serious political competition, although in this case one district drawn to
protect an incumbent was struck down under the Voting Rights Act because it
diluted minority voting strength.
In general, it was not a great
year for the First Amendment. In Garcetti v. Ceballos, the Court held that
the Constitution does not protect public employees who report wrongdoing in the
course of their public duties, creating a perverse incentive for public
employees to go to the press before they go to their superiors. In Rumsfeld v. FAIR, the Court rejected a First Amendment challenge to the Solomon
Amendment, which requires universities to allow military recruiters on campus or
else forfeit federal funding, even if the military's "don't ask, don't tell"
policy violates university rules barring discrimination. And, in Beard v.
Banks, the Court held that maximum security prisoners could be denied access to
newspapers and magazines as an incentive to improve their
behavior.
Two other high-profile cases this year produced brief and
cryptic decisions. In Wisconsin Right to Life v. FEC, the Court held that
a federal law banning the use of corporate funds to pay for broadcast ads during
a designated pre-election period could be challenged on an as-applied basis by
groups like the ACLU, but its two-and-a-half page opinion said nothing about
what a successful challenge must show. Absent that guidance, the lower
courts have thus far been unsympathetic to the as-applied challenges that the
Supreme Court ostensibly endorsed.
Similarly, in Ayotte v.
Planned Parenthood of Northern New England, another ACLU case, the Court
unanimously ruled that New Hampshire's parental notification law was
unconstitutional because it lacked a medical emergency exception. The case did
not develop into the major clash on abortion that many had anticipated.
Justice O'Connor's final opinion for the Court was only 10 pages long and began
by noting that "[w]e do not revisit our abortion precedents today." The
Court then sent the case back to the lower court to determine whether the law
should be struck in its entirety or whether a medical emergency exception should
be written into the law.
Hudson v. Michigan was the third ACLU case
argued this Term and the most disappointing. By a 5-4 vote, the Court held
that the exclusionary rule does not apply to violations of the Fourth Amendment
requirement that the police knock and announce their presence before entering a
home - a requirement that dates back to the 13th century. Even more ominously,
Justice Scalia's majority opinion seemed to lay the groundwork for a broader
attack on the exclusionary rule by questioning its continuing need as a
deterrent to police misconduct. Justice Kennedy joined in that majority
opinion but also expressed some reservations about its broad sweep in a separate
concurrence. By contrast, Justice Alito joined in the majority opinion
without reservation. His vote is significant because Hudson was initially
argued while Justice O'Connor was still on the bench and then reargued after she
stepped down. While it is impossible to be certain, it appears likely that
the result would have been different if Hudson had been decided while Justice
O'Connor was still on the Court.
The Court's record on the
death penalty was a mixed one. In Hill v. McDonough, the Court made it
easier for death row inmates to challenge the standard drug protocol used during
lethal injection, which has come under increasing attack by medical
professionals as an unnecessarily cruel method of execution. In House v.
Bell, the Court cited DNA evidence for the first time as a basis for allowing a
death row inmate to reopen his case based on a plausible claim of actual
innocence. DNA evidence also figured prominently in Kansas v. Marsh, where
the majority held that a defendant could be sentenced to death even when the
jury concludes that the aggravating and mitigating circumstances that must be
weighed at sentencing are evenly balanced. In dissenting from that
conclusion, Justice Souter (joined by three others) emphasized the "repeated
exonerations of convicts under death sentences, in numbers never imagined before
the development of DNA tests." Marsh was reargued after Justice O'Connor's
retirement, like Hudson, and Justice Alito cast the deciding vote in favor of
the death penalty. Despite that disappointing outcome, the Court's death
penalty decisions during the past few years suggest an increasing discomfort
with the fairness and accuracy of the death penalty as it is presently
administered in the United States.
The Court's approach to
federalism is evolving, as well. After a series of decisions that began in
the mid-90's narrowly construing the legislative power of Congress and broadly
construing the sovereign immunity of states, the Court has recently shifted
gears. That trend continued this year. In United States v. Georgia,
the Court held that state officials could be sued by prisoners under the
Americans with Disabilities Act, at least in cases in which the claimed ADA
violation also violates the Eighth Amendment. In Central Virginia
Community College v. Katz, the Court held that the federal bankruptcy laws apply
to the states. In Northern Insurance Co. of New York v. Chatham County,
the Court rejected the claim that counties are broadly immune from federal
suit. And, in Rapanos v. United States, Justice Kennedy's concurring
opinion, which provided the crucial fifth vote, refused to accept either the
plurality's cramped interpretation of the Clean Water Act or its view that
deference to the federal government's more expansive construction of the
statutory language would raise serious constitutional questions under the
Commerce Clause.
At first blush, the decision in Gonzales v. Oregon
might seem to point in the opposite direction. There, the Court ruled that
the Attorney General had exceeded his authority under the federal Controlled
Substances Act by threatening to suspend the federal license of any doctor who
prescribed narcotic drugs as part of a physician-assisted suicide under Oregon's
Death with Dignity Act. In his opinion for the Court, however, Justice
Kennedy made clear that his quarrel was not with Congress but with the Attorney
General's assumption of powers that Congress had never granted, a recurring
theme with this Administration. Thus, the issue was not what Congress
could do, but what Congress did do. More specifically, Justice Kennedy
held that Congress did not "delegate[] to a single Executive officer the power
to effect a radical shift of authority from the States to the Federal Government
to define general standards of medical practice in every
locality."
The Court also rejected the Administration's position in
two important discrimination cases. In Gonzales v. O Centro Espirita
Beneficente Uniao de Vegeal, a small Brazilian religious sect sought permission
from the federal government to import a hallucinogenic tea used as a sacrament
in its religious ceremonies. When the government refused, the church sued
under the Religious Freedom Restoration Act (RFRA), which prohibits the
government from burdening religion without a compelling interest. The
government acknowledged the burden but argued that it had a compelling interest
in the uniform enforcement of the drug laws. As Chief Justice Roberts
pointed out for a unanimous Court, however, that rationale is circular and, if
accepted, would defeat every claimed exemption. It is therefore
inconsistent with the strict judicial scrutiny that Congress intended when it
adopted RFRA and that the Court regularly applies in constitutional cases
involving fundamental rights.
In Burlington Northern and Santa Fe
Railway Co. v. White, the Court clarified the rules for proving retaliation
under Title VII of the Civil Rights Act the principal federal statute
prohibiting employment discrimination. Supporting the corporate defendant,
the Administration had argued that an employee alleging retaliation must show
that she suffered some materially adverse employment action after reporting
discrimination in the workplace. The Court disagreed in another unanimous
opinion, holding that it is sufficient to show that a reasonable employee would
be deterred from reporting discrimination by the employer's
response.
Davis v. Washington and Hammon v. Indiana arose in the
context of criminal prosecutions rather than discrimination cases, but the
problem of spousal abuse was very much on the Court's mind when it considered
whether and under what circumstances out-of-court statements by a battered
spouse could be introduced at trial without violating the Confrontation
Clause. The answer, the Court ruled, turns on whether the out-of-court
statements are made for the purpose of requesting police assistance during an
emergency or gathering evidence after the emergency has ended. Applying
that test in Davis, the Court allowed the prosecution to introduce portions of a
911 phone call asking the police to respond to a domestic violence threat that
was still ongoing. In Hammon, on the other hand, the immediate threat was
over by the time the police arrived on the scene. Accordingly, the police
were barred from introducing statements made by the victim to the police as part
of their criminal investigation.
"It is too early to measure the
ultimate influence that Roberts and Alito will have on the Court," Shapiro said,
"but it is not too early to recognize Justice Kennedy's pivotal role in the
Court's changing dynamics. As the Administration pushes the legal
envelope, however, there is reason to hope that even a conservative Court will
insist on its role in the system of checks and balances that the current
Administration would prefer to ignore."
A summary of all of the
Court's civil liberties-related cases from this Term is available at www.aclu.org/scotus. The full summary is available at: www.aclu.org/scotus/2005/26054pub20060629.html
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