Update: McJoan at Daily Kos and the ACLU has just issued a press release.

The Supreme Court today declined to review a case by the ACLU and other groups and individuals, including criminal defense lawyers, over Bush's warrantless NSA wiretapping. A lower court had dismissed the case holding the ACLU and other plaintiffs hadn't established they were directly affected by the wiretapping.

The high court's action means that Bush will be able to disregard whatever legislative eavesdropping restrictions Congress adopts as there will be no meaningful judicial review, the ACLU attorneys said.

The Sixth Circuit decision in ACLU v. NSA is here (pdf). Some explanatory quotes are below:

If you've forgotten what happens when Republican Presidents appoint Supreme Court Justices, and why it's so important we not elect another one in November, check out this BBC interview with Justice Anton Scalia.

In a wide-ranging discussion, he defends his often controversial positions on issues like Guantanamo Bay, argues that torture may be legal and attacks the "sick" practice of televising trials.

...Justice Scalia says that it is far from clear that torture is unconstitutional and says that it may be legal to "smack [a suspect] in the face" if the suspect is concealing information which could endanger the public.

On abortion and the death penalty:

He says there is nothing in the Constitution that grants women the right to an abortion.

The death penalty, he argues, is not covered by the 8th Amendment's ban on "cruel and unusual punishment."

John McCain promises to appoint more judges in the mold of Scalia, Roberts and Alito. We get the Government we elect.

In a 5 to 4 split decision, the Supreme Court has held that inmates can't sue prison guards for destruction of property under the Federal Tort Claims Act. The case is Ali v. Federal Bureau of Prisons, 06-9130.

Chief Justice John Roberts and Justices Samuel Alito, Ruth Bader Ginsburg and Antonin Scalia joined Thomas. The dissenters were Justices Stephen Breyer, Anthony Kennedy, David Souter and John Paul Stevens.

"The seizure of property by an officer raises serious concerns for the liberty of our people and the act should not be read to permit appropriation of property without a remedy," Kennedy said.

Background on the case is here and the Court's opinion, authored by Clarence Thomas, is here.

Bump and Update: The New York Times reports that the Justices seemed inclined to uphold voter ID laws.

Original Post (1/9/08):
Supreme Court Hears Arguments in Voter ID Card Cases

The Supreme Court today will hear oral arguments in the Indiana voter identification card cases.

The justices will hear diametrically opposite depictions of Indiana's toughest-in-the-nation voter identification law, which requires every voter to present a photo ID card.

Democrats and civil rights groups charge that the law is a Republican ploy to prevent thousands of poor, elderly and minority citizens from casting ballots. Republicans say that it won't prevent any qualified person from voting. Instead, they say, it guards against vote fraud and heightens public confidence in the integrity of elections.

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The Supreme Court today affirmed rulings of two district court judges in cases in which they had granted downward departures from the federal sentencing guidelines. One case involved crack, the other ecstasy.

The cases are Kimbrough v. U.S., 06-6330 (opinion here, pdf) and Gall v. U.S., 06-7949, opinion here (pdf).

In Kimbrough, the Court had imposed a 15 year sentence instead of the 19 to 22 years called for by the guidelines. In Gall, the Court granted probation instead of a 30 to 37 month sentence.

Scotus Blog explains the decisons. Law Prof Doug Berman of Sentencing Law and Policy is very excited and will have a lot of commentary as soon as he's digested the opinions.

Tomorrow, the U.S. Sentencing Commission will announce its decision on whether its recent crack cocaine guideline reduction will be retroactive and thus apply to the 19,500 crack offenders now in federal prison.

Update: Two quotes from Kimbraugh on the difference between mandatory minimums and guidelines and ability of judges to consider the disparity between crack and powder cocaine penalties:

Finally. After almost 70 years, the Supreme Court has agreed to decide a case that may decide, once and for all, whether the Second Amendment confers an individual right to bear arms.

I believe it does. The Second Amendment provides:

"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."

There are three principal views: The individual view, collective view and an intermediate one.

Under the individual view, a person has a personal right to bear weapons or arms regardless of whether they are members of any militia or engaged in military service or training. We therefore may bring claims or defend claims based on that right, just as we can with other provisions of the Bill of Rights, such as the right to free speech or right to be free from unreasonable searches and seizures.

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The Supreme Court heard oral argument today in U.S. v. Williams, a case challenging the constitutionality of the pandering provision of the PROTECT Act.

The American Constitution Society has a good explanation of the issues in the case.

At issue is the “pandering” provision in the 2003 Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”). The provision makes it illegal to solicit, distribute, present or offer “actual child pornography” — a sexually explicit visual representation of a real minor — or any visual representation of a minor engaging in obscene behavior.

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Scotus Blog reports:

The Supreme Court agreed on Monday to spell out when an individual engaged in “laundering” of crime proceeds has illegally concealed their real source — in effect, what it means to “launder” money. The issue arises in Cuellar v. U.S. (06-1456). This was the only case granted Monday. Click the following links to read the petition for certiorari, brief in opposition, reply brief, and amicus brief on behalf of the National Association of Criminal Defense Lawyers.

The question:

The Supreme Court will hear oral arguments today in two drug cases, Gall v. United States and Kimbrough v. United States.

The Kimbrough case will bring the disparate penalties for crack and powder into full focus. U.S. News today has some numbers on the sentencing disparity. The Gall case will define the circumstances under which a judge can sentence below strict federal sentencing guidelines.

In a nutshell, Gall's guidelines were 30 to 37 months for minor participation of limited duration in an ecstasy conspiracy. The Judge deviated from the Guidelines to a sentence of probation, the Government appealed and the 6th Circuit reversed the trial court.

The question in Gall (pdf):

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I have not read Justice Clarence Thomas' new memoir, "My Grandfather's Son." I do not know if I will. But one thing seems clear, Justice Thomas' book has reawakened the Anita Hill controversy. Perhaps that was not a wise thing for Justice Thomas to do. Hill responds to Thomas in the NYTimes:

ON Oct. 11, 1991, I testified about my experience as an employee of Clarence Thomas’s at the Equal Employment Opportunity Commission.

I stand by my testimony.

Justice Thomas has every right to present himself as he wishes in his new memoir, “My Grandfather’s Son.” He may even be entitled to feel abused by the confirmation process that led to his appointment to the Supreme Court.

But I will not stand by silently and allow him, in his anger, to reinvent me.

Strange that Justice Thomas would repick this fight. Anita Hill has been reawakened.

The first Monday of October marks the start of a new Supreme Court term. A New York Times editorial reviews some of the important issues soon to come before the Court and offers a useful tip for divining the likely outcome of those cases:

The best predictor of how they will vote is to ask: What outcome would a conservative Republican favor as a matter of policy?

Of course, conservative Republicans don't inevitably agree amongst themselves; e.g., the moneyed Republicans differ from the Christian-focused Republicans on immigration policy. Sadly, the Times predictor will probably work well for criminal justice and civil liberties (including voting rights) issues. Here are some of the important questions the Court has agreed to consider:

Rounding out the first two weeks of oral argument are a group of criminal cases, addressing the gulf between sentences for crack and powder cocaine, the latitude sentencing judges have to reduce prison time in routine cases, and whether trading drugs to obtain a gun fits the definition of gun "use" barred in the federal drug law. The Court will also weigh the constitutionality of New York's judicial selection system and the appeal of a Mexican death row inmate.

Briefs for cases to be argued in October are available here.

Think kind and healthy thoughts for Chief Justice Roberts, who suffered a seizure yesterday.

Doctors called Monday's incident "a benign idiopathic seizure," Arberg said. The White House described [a similar] January 1993 episode as an "isolated, idiosyncratic seizure." Both descriptions indicate that doctors could not determine the seizure's cause or link it to another medical condition.

Update (TL): Justice Roberts has fully recovered. And yes, he did tell the Senate Judiciary Committee about his 1993 seizure.

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