Category Archives: Supreme Court News

Well that didn’t take long – Abortion Case May Be Alito’s First


US Supreme Court Nears Crucial Abortion Ruling
By Suzanne Goldenberg for The Guardian UK.

The US supreme court moved a step closer yesterday to taking up its first case on abortion since the appointment of two judges of President George Bush’s choosing, after two federal appeals courts ruled that a ban on a termination procedure was unconstitutional.
The rulings, in courts in California and New York, were handed down on Tuesday, the same day that the deeply conservative Samuel Alito was sworn in as a supreme court justice, and underlined how quickly his appointment could change federal abortion law.
“This is likely to be the next abortion case before the court and probably the first one Alito will hear,” said Lorraine Kenny, a spokeswoman for the American Civil Liberties Union, which fought the case in New York. “We are concerned.”
Both rulings said the ban on the procedure, which involves partly removing an intact foetus from the body after the first trimester before aborting it, was unconstitutional because it failed to provide an exception when alternative methods could endanger the woman’s health.
The ban, which was signed into law by President Bush in 2003 but never enforced because of legal challenges, would make what the anti-abortion movement calls partial birth abortion punishable by up to two years’ jail for doctors who carry it out.
In a unanimous ruling, the court in San Francisco said the law placed an unfair burden on a woman’s right to an abortion, and put doctors at risk of criminal liability for virtually all abortion procedures after the first 12 weeks of pregnancy…
The twin rulings make it increasingly likely that the federal ban on the procedure would be the next abortion case before the US supreme court, and the first that Justice Alito will hear. The issue is already before the supreme court after a court in Missouri became the first to strike down the ban by Congress last year.

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New Songs From The Commons Up – A Better Introduction to Grokster – A Modern Day Sony Betamax Case

This show takes a shot at explaining the similarities between the landmark Universal vs. Sony (Betamax) case of 1984 and the current MGM vs. Grokster case that went in front of the Supreme Court last summer.
I only touch upon it briefly in my show. There’s a more complete explanation on the website.
Songs From The Commons #6

The point then, and now, is that, historically, in this country, we choose to criminalize the misuse of a technology, rather than criminalizing the technology itself. Guns, for example, are only made for killing. Killing and maybe target practice. It’s what they do. Depending on the circumstances surrounding when the killing takes place, such killing is legal or not. But do we hold gun manufacturers responsible for when gun technology is misused? Of course not. The concept is comical. In fact, legislation was recently passed to protect gun manufacturers from such liability. According to White House Press Secretary Scott McClellan, even President Bush “believes that the manufacturer of a legal product should not be held liable for the criminal misuse of that product by others.”
Unfortunately, when the Supreme’s had a chance to decide MGM vs. Grokster on these grounds, it chose to do something else – to avoid these issues entirely, and create a new kind of indirect infringement: active inducement. Active Inducement takes place if someone intends to make another person infringe and then takes active steps to encourage it.
The court basically said there were two types before (contributory and vicarious) and now there’s a new, third kind, called “inducement.” That’s what the court sent back to the Central District of California Court (9th Circuit) to determine if the defendants were actively inducing infringement.
So there used to be just two kinds of “indirect” infringement, vicarious and contributory.
“Vicarious” is when you’re supervising people and making money from it, like at the Flea Market, if the owners of the Flea Market knew that stolen goods were being sold there. (A CA court ruled that Napster did this.)
“Contributory” infringement is where you’re supplying the means with knowledge that it will be used illegally. Like if I rented a bunch of CD burners to a bootleger and knew what he was going to do with them. Now, after Grokster, there’s a third, where I intend to make you infringe and take active steps to encourage it. That’s the test laid out by the decision…
Note: Although there was a development last week in MGM vs. Grokster, where Grokster settled, agreed to shut down, and agreed to pay $59 million in damages, Grokster was not the only named defendant in the case. StreamCast, Sharman Networks (distributor of Kazaa), and the founders of Kazaa are still in litigation.

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Supreme Court Comes Through On Due Process For “Enemy Combatants”

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And off in the distance, we see a tiny glimmer of hope, and my faith in the system is temporarily renewed. (For an instant…)

Supreme Court Affirms Detainees’ Right to Use Courts
By David Stout for the NY Times.

The Supreme Court ruled today that people being held by the United States as enemy combatants can challenge their detention in American courts

Enemy Combatant Protest In San Francisco On Tuesday

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Hope I can make it. I wanted to let you guys know about it.

CAN THE RIGHTS OF THE PEOPLE SIMPLY DISAPPEAR BY PRESIDENTIAL ORDER?
NO TO THE “ENEMY COMBATANT” STATUS!
WHEN: TUESDAY, APRIL 20TH, 12 NOON
WHERE: FEDERAL BUILDING, SAN FRANCISCO, GOLDEN GATE & POLK
WHAT: PRESS CONFERENCE IN SOLIDARITY WITH THE DEMONSTRATION AT THE SUPREME COURT IN WASHINGTON D.C., WHERE ORAL ARGUMENTS WILL BE HEARD ON BEHALF OF GUANTANAMO BAY PRISONERS BEING HELD AS “ENEMY COMBATANTS”
Press contacts: 510-610-7070 or 510-684-8270
General information: Larry, 510 684-8270
Bay Area participants and endorsers:
Bob Kearney of ACLU of No. California
American Muslim Voice
Blue Triangle Network
California Interfaith Alliance For Prison Reform
Cecilia Chang of Justice for New Americans*
Global Exchange
Grace Shimizu, Japanese American Community organizer
Gray Panthers
Stacy Tolchin, National Lawyers Guild, Immigration Committee
Not In Our Name
Riva Enteen, Chair KPFA Board*
Refuse and Resist
Reverend Michael Yoshi, Buena Vista Methodist Church*
Sara Olson, Indep. Radio Journalist, author of “Under Attack” 30 min. audio documentary
about attacks on the Muslim, Arab, S. Asian community
Shashi Dalal, Board of Trustees, *Fellowship Church
Rev. Dorsey O. Blake, Sr. Pastor
* Organizations mentioned for identification purposes.
Below is a national call and a list of national endorsers for actions
at the Supreme Court in opposition to the use of Guantanamo Bay as a torture center/prison camp and against the ability of the president to designate persons, including citizens, as in the cases of Yaser Hamdi and Jose Padilla, as ‘enemy combatants’ and then lock them away incommunicado indefinitely without charges or judicial review:
Can the Rights of People Simply Disappear by Presidential Order?
What does it mean when the President of the United States can on his own designate a citizen in the U.S. as an “enemy combatant” and order the military to hold that person incommunicado, indefinitely, and without charges? The U.S. Supreme Court is now deciding whether the courts even have the right to question the President’s action.
What does it mean when the U.S. military internationally can literally snatch people off the street, designate them as “enemy combatants,” and assert that they are beyond the reach of either U.S. or international law? Many are transported to a facility under total U.S. control and funded by Congressional appropriations, where they are held incommunicado, indefinitely, without charges, and some are threatened with trials before a military commission that falls short of basic standards of justice.
If the Supreme Court upholds these actions, it will condone the President’s claim of virtually unlimited “wartime powers” without a formal declaration of war by the Congress, and with no or extremely limited oversight by the courts or the Congress.
On April 20 the U.S. Supreme Court will hear oral arguments on the President’s alleged right to create a “law free zone” at the Guant

Protest Against “Enemy Combatant” Designation In Front Of The Supreme Court On April 20

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This just in from:
Amnesty International USA
Bill of Rights Defense Committee
Blue Triangle Network
First Amendment Foundation
Guantanamo Human Rights Commission
National Committee Against Repressive Legislation (NCARL)
National Lawyers Guild
Refuse & Resist!
Solidarity USA
Communities United Against Police Brutality (Minneapolis)
Greensboro Justice Fund
Elaine Cassel, Civil Liberties Watch
Stephen Rohde, Civil liberties lawyer
Website: http://www.nlg.org/eccases/

On April 20 the U.S. Supreme Court will hear oral arguments on the President’??s alleged right to create a ‘??law free zone’?? at the Guantanamo detention center in Cuba. And on April 28, the Court will hear oral arguments on the President’??s asserted right to designate citizens as ‘??enemy combatants,’?? hold them at the U.S. Navy base in Charleston, SC, and deny them the ability to challenge the lawfulness of their detention.
We believe that the President cannot be allowed to create a ‘??legal Black Hole’?? into which people are dropped with no recourse to the courts or to international law. Among us we hold many varied views on how and why this situation has arisen and what is ultimately needed to ensure justice. But we all agree that this dangerous new presidentially-designated category of ‘??enemy combatants’?? who have no legal rights is unjust, illegal, and immoral, and cannot be allowed to stand.
The silence over this perilous issue must be broken, and public opposition must be manifested. Join us in front of the U.S. Supreme Court on April 20 and April 28 to declare a resounding NO! Legally permitted, non-violent demonstrations will occur on both days from 9:30 am to 12:30 pm with a program of speakers beginning at 11:am.
Our future and the future of hundreds of anonymous detainees now hang in the balance. This is a watershed event in history. What is at stake is just how much the President will be allowed to get away with. Your silence will be taken as assent.
To endorse this call, e-mail eccases@nlg.org.

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Constitutionality of Secret 911 Cases Headed For The Supreme Court

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Secret 9/11 Case Before High Court
By Warren Richey for The Christian Science Monitor.

It’s the case that doesn’t exist. Even though two different federal courts have conducted hearings and issued rulings, there has been no public record of any action. No documents are available. No files. No lawyer is allowed to speak about it. Period.
Yet this seemingly phantom case does exist – and is now headed to the US Supreme Court in what could produce a significant test of a question as old as the Star Chamber, abolished in 17th-century England: How far should a policy of total secrecy extend into a system of justice?
Secrecy has been a key Bush administration weapon in the war on terrorism. Attorney General John Ashcroft warns that mere tidbits of information that seem innocuous about the massive Sept. 11 investigation could help Al Qaeda carry out new attacks.
Yet this highly unusual petition to the high court arising from a Miami case brings into sharp focus the tension between America’s long tradition of open courts and the need for security in times of national peril. At issue is whether certain cases may be conducted entirely behind closed doors under a secret arrangement among prosecutors, judges, and docket clerks.
While secret trial tactics have reportedly been used by federal prosecutors to shield cooperating drug dealers, it’s unclear whether the high court has ever directly confronted the issue. But that may change if they take up MKB v. Warden (No. 03-6747).
This is among the first of the post-Sept. 11 terrorism cases to wend its way to the nation’s highest tribunal. There was no public record of its existence, however, until the appeal was filed with the clerk of the US Supreme Court.
A federal judge and a three-judge federal appeals-court panel have conducted hearings and issued rulings. Yet lawyers and court personnel have been ordered to remain silent.
“The entire dockets for this case and appeal, every entry on them, are maintained privately, under seal, unavailable to the public,” says a partially censored 27-page petition asking the high court to hear the case. “In the court of appeals, not just the filed documents and docket sheet are sealed from public view, but also hidden is the essential fact that a legal proceeding exists.”…
The case is significant because it could force a close examination of secret tactics that are apparently becoming increasingly common under Attorney General Ashcroft. In September 2001, he ordered that all deportation hearings with links to the Sept. 11 investigation be conducted secretly. In addition, the Justice Department has acknowledged that at least nine criminal cases related to the Sept. 11 investigation were being cloaked in total secrecy.
MKB v. Warden is the first indication that the Justice Department is extending its total secrecy policy to proceedings in federal courts dealing with habeas corpus – that is, an individual’s right to force the government to justify his or her detention.
The case offers the Supreme Court an opportunity for the first time to spell out whether such secret judicial proceedings violate constitutional protections. It may also offer the first insight into how much deference a majority of justices is willing to grant the government in areas where the war on terrorism may tread upon fundamental American freedoms…
Federal judges have the authority to order sensitive documents or even entire hearings sealed from public view when disclosure might harm national security. Such rulings are usually issued after the judge has explained the need for secrecy in a decision available to the public.
In addition, judges can order that an individual be identified in public court filings only by a pseudonym or by initials, as happened when the MKB case arrived at the US Supreme Court.
What is highly unusual in MKB v. Warden is that lower court judges ordered the entire case sealed from the start – preventing any mention of it to the public.
In her petition to the court, Miami federal public defender Kathleen Williams says the judges’ actions authorizing the secrecy without any public notice, public hearings, or public findings amount to “an abuse of discretion” that requires corrective action by the justices.
“This habeas corpus case has been heard, appealed, and decided in complete secrecy,” Ms. Williams says in her petition.
A government response to the petition is due Nov. 5. It will mark the first time the Justice Department has publicly acknowledged the existence of the habeas corpus action. The justices are set to consider the case during their Nov. 7 conference.
Justice Department officials have defended the blanket secrecy policy, saying that public hearings and public dockets would undermine efforts to recruit detainees as undercover operatives to infiltrate Al Qaeda cells in the US. According to press reports, similar secret trial tactics have been used by federal prosecutors to shield cooperating drug dealers from mention in public court documents that might blow their cover and end their use as operatives in ongoing undercover narcotics sting operations.

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Group Of Ex-Judges, Diplomats, and Former Military Lawyers Takes Due Process For Guantanamo Detainees To The Supreme Court

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Things are finally heating up around the Guantanamo Bay Prison/Death Camp Situation and the lack of Due Process for its terrorist suspects. This article is the first of several I’ll be putting up today.

‘Justice denied’ at Guantanamo
By Rachel Clarke for BBC News.

A diverse group of ex-judges, diplomats and former military lawyers is urging the US Supreme Court to intervene on behalf of hundreds of men being held without trial by the government…
They hope the top court will agree to review the detention of suspected al-Qaeda and Taleban members in the US military camp at Guantanamo Bay in Cuba.
US officials insist there are reasons for holding the alleged fighters and say they will get a fair legal hearing in due course.
But opponents say it is already nearly two years since most of the detainees were captured and they should be afforded more rights now.
John Gibbons, a former appeals court judge, said justice was being “totally denied” to the detainees in Guantanamo.
“They don’t have access to lawyers; they have had no hearings; they are just in limbo. That’s as clear an example of justice denied as you can find,” he said.
A key issue is that the detainees are foreign citizens being held on foreign soil and as such may not come under the jurisdiction of the civil courts.
Mr Gibbons said he found it “repugnant” that the administration could order the imprisonment of people possibly beyond the reach of law, especially as he said the US clearly ruled over Guantanamo Bay, even if it was technically part of Cuba.

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More Info On The Supreme Court’s Overturning Of Texas Anti-sodomy Law

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Supreme Court Strikes Down Texas Law Banning Sodomy
By The Associated Press for the NY Times.

The 6-3 ruling reverses course from a ruling 17 years ago that states could punish homosexuals for what such laws historically called deviant sex.
Laws forbidding homosexual sex, once universal, now are rare. Those on the books are rarely enforced but underpin other kinds of discrimination, lawyers for two Texas men had argued to the court.
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The men “are entitled to respect for their private lives,” Justice Anthony M. Kennedy wrote.
“The state cannot demean their existence or control their destiny by making their private sexual conduct a crime,” he said.
Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer agreed with Kennedy in full. Justice Sandra Day O’Connor agreed with the outcome of the case but not all of Kennedy’s rationale.
Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas dissented.

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Howard Dean On The Supreme Court’s Decision To Overturns Texas Anti-Sodomy Law

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Yippie Kai-yay! Consenting adults are allowed to have sex however they want in the privacy of their own homes!
It almost seems like we’re living in a democracy in the 21st Century!
And Howard Dean steps up to the plate to make a statement on the subject:
Statement on Supreme Court’s Decision on Lawrence vs. Texas

WASHINGTON, DC