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Author Topic:   Recent Conservative Court Rulings
Mirandee
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posted May 13, 2006 09:55 AM           Edit/Delete Message   Reply w/Quote
These rulings are all from March, 2006


Alliance for Justice
Location:Washington, DC

Through its Judicial Selection Project, Alliance for Justice has worked for more than 20 years to raise public awareness about the importance of the federal judiciary at all levels.

To complement our ongoing work and to demonstrate more concretely the effect that judges favored by so-called “movement” conservatives are having on American law and life, AFJ will begin publicizing noteworthy decisions through a new project called Full Court Press.

Full Court Press will keep you up-to-date about the rapidly increasing number of judicial opinions that unjustifiably restrict rights, undermine legal protections, and adversely affect real people. We will pay particular attention to opinions written or joined by Supreme Court justices and lower court judges whose appointments have been part of the right wing’s on-going effort to dramatically reshape the law.

Full Court Press is part of AFJ’s broader effort to help the American people and their elected representatives understand that the courts address an expansive range of issues that have a real effect on all of our lives. The vital role the courts play in our constitutional democracy must command the public’s attention



The Padilla Case: A Subtle Rebuke to the Administration, But Whither Justice Alito?

Yesterday, long-detained U.S. citizen and alleged “enemy combatant” Jose Padilla fell one vote short of persuading the Supreme Court to hear his challenge to the Bush administration’s effort to hold him indefinitely without court review. Padilla needed four votes to have his case heard and mustered only three – from Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer. But three other justices, including Chief Justice John Roberts, appeared ready to rebuff the Bush administration’s thumbing its nose at the concept of judicial review. And one other justice, Antonin Scalia, already has said that indefinitely detaining American citizens, even in the war on terror, is unconstitutional. That probably leaves only two justices – Justices Thomas and Alito – potentially poised to back the administration’s rather breathtaking assertion that our system of checks and balances isn’t really so checked and balanced after all.

We already know Justice Thomas’ view from a 2004 case, Hamdi v. Rumsfeld, an 8-1 decision where he issued the lone dissent. A true believer in the radical theory that the president basically can do whatever he wants, without judicial oversight, simply by saying it somehow implicates his commander-in-chief powers, Justice Thomas is the Bush administration’s best friend. And the Constitution’s worst. Justice Alito’s silence in Padilla ominously – but not conclusively – suggests he may follow suit if given the chance. Were he to do so, all of the fears, expressed during recently-concluded confirmation hearings, about Justice Alito being excessively deferential to presidential authority would quickly be realized.

Jose Padilla, as you’ll recall, is the American citizen arrested at O’Hare International Airport in 2002, accused of plotting to plant a dirty bomb by then-Attorney General John Ashcroft, and held without charges by the military for more than three years as an “enemy combatant” while the government claimed that he had no right to challenge his detention and, for much of that time, that he had no right even to see a lawyer. Then in 2006, as his claims of unlawful detention were pending before the Supreme Court, the Bush administration suddenly transferred Padilla to civilian custody and charged him with crimes unrelated to the alleged dirty bomb plot – and presto, a legally dubious, years-long detention suddenly becomes a perfectly legal, perfectly ordinary criminal prosecution.

Most observers believe that the Bush administration transferred Padilla in order to avoid a Supreme Court confrontation that might well undermine its claims of expansive executive power. Reading the tea leaves from yesterday’s ruling, the Bush Administration was probably wise to have done what it did.

It knows where Justices Ginsburg, Breyer, Souter and John Paul Stevens probably are – against it, given their rulings in past cases. It knows where Justice Scalia probably is, since two years ago, in the Hamdi case, he eloquently asserted that “[t]he very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the executive.” And now, to their credit, it’s somewhat (but only somewhat) clearer where Justice Kennedy and Chief Justice Roberts are, too.

In their unusual opinion explaining why they were declining to take the case, Justices Kennedy, Roberts and Stevens reasoned that Padilla had already received the tangible result that he sought – being released from military custody. Nevertheless, they expressed deep concern about Padilla’s prior military detention, the possibility of future military detention, and the “fundamental issues [his claims raise] respecting the separation of powers, including consideration of the role and function of the courts ….” Further emphasizing that the administration’s dismissive view of the courts was pushing the envelope, they warned that the federal courts, including the Supreme Court itself, stood poised “promptly to ensure that the office and writ of habeas corpus are not compromised” if “the government [were again] to seek to change the status or conditions of Padilla’s custody.” That the Court would remind the administration of its rarely available “original” habeas corpus jurisdiction is particularly noteworthy, showing just how seriously these justices would view the administration’s continued use of procedural shenanigans to defeat Padilla’s requests for judicial review.

Given his earlier dissent in the Hamdi case, it was entirely unsurprising that Justice Thomas declined to join Justice Kennedy’s explanatory opinion. We know he doesn’t agree. But the fact that Justice Alito refused an easy opportunity to question the administration’s arrogant behavior does not exactly inspire confidence. We hope we’re wrong, but the country may find out sooner, rather than later, that the president got just what he wanted with Justice Alito.

Padilla v. Hanft, No. 05-533, 2006 U.S. LEXIS 2705 (U.S. Apr. 3, 2006). Also, see Justice Kennedy's concurrence and Justice Ginsburg's dissent.

Court Restricts Free Speech: Pro-choice Told No Way, Confederate Flag and Choose Life are O.K.

On March 17, the Sixth Circuit issued a split 2-1 decision allowing the state of Tennessee to discriminate against the political views of some if its citizens. The two Republican appointees (appointed by Reagan and Bush II) in the majority said it was OK for the state to produce “Choose Life” license plates requested by abortion opponents, but to refuse to produce pro-choice license plates requested by reproductive rights supporters.

This decision is so out-of-step with First Amendment law that even the conservative Fourth Circuit – including J. Harvie Wilkinson and J. Michael Luttig, both on President Bush’s “short list” of Supreme Court nominees – reached the opposite conclusion when the issue came before their court.

Tennessee authorizes more than 150 “specialty” license plates requested by private organizations, including the “Choose Life” plate. These plates contain a variety of political and sometimes controversial messages, including one featuring a Confederate flag requested by the Sons of Confederate Veterans. Despite its rather permissive approval practices, the Tennessee legislature refused to authorize a request for a pro-choice license plate, despite authorizing the “Choose Life” plate in the same proposed legislation.

The ACLU, a Planned Parenthood affiliate and three individuals filed suit claiming that Tennessee was violating their First Amendment rights by improperly discriminating against their views. The district court had little problem finding in their favor.

The district court decision was so clear-cut that the state declined to appeal. But an anti-abortion group that championed the “Choose Life” plate intervened and took the case to the Sixth Circuit. Reversing the district court ruling, Bush II appointee John Rogers, joined by Reagan appointee David Nelson, found that by making the “Choose Life” plates available, Tennessee was doing something the Supreme Court allows a state to do – namely, disseminate its own views, even if through private citizens acting voluntarily.

Boyce Martin, a Carter appointee, issued a dissent ridiculing the majority’s ruling, saying it reflected “a conclusion that only judges banished to our ivory towers and shut off from the real world could reach.” Examining Tennessee’s rather free-wheeling license approval practices, he found that the state clearly has been offering up specialty plates not to disseminate its own messages but rather to create a public forum facilitating private speech. And in such public forums, the Supreme Court says, the state may not discriminate against any group’s views.

Judge Martin proved his point ever-so-gently by noting, among other things, that Tennessee had approved a license plate bearing the logo of the University of Florida, the arch-rival of the state’s flagship university, the University of Tennessee. And just to be sure the point was not lost on anyone, he cited a website called Gator Hater, “run by University of Tennessee fans dedicated to their rivalry with the University of Florida, including news, jokes, and recipes for cooking alligator meat.”

In the Fourth Circuit case raising the same issue, which Judge Martin cited as precedent, Judge Wilkinson rhetorically asked what, besides favoring the “Choose Life” message, a state can do if it can allow citizens to use public forums to express their agreement, but not their disagreement, with supposedly official state views: “May a state issue plates touting one candidate, but not another?” By the logic of Judges Rogers and Nelson, the answer apparently is yes.

ACLU v. Bredesen, No. 04-6393, 2006 U.S. App. LEXIS 6603 (6th Cir. Mar. 17, 2006).


Gutting a Law Intended to Protect Children with Disabilities

Recently, a federal judge ignored contrary decisions from other courts and ruled that a Medicaid-dependent, Florida girl with severe disabilities had no right to challenge a state agency’s decision to deny her a power wheelchair, even though her doctors had deemed it medically necessary. The girl’s disabilities include paraplegia, developmental delay, scoliosis, Arnold Chiari Malformation, cloacal exstrophy, hydrocephalus, caudal regression, spina bifida and a tethered spinal cord.

Relying on protections spelled out in the Medicaid Act, the girl sued after the Florida agency responsible for dispensing Medicaid benefits refused her request for the wheelchair. Federal District Court Judge William Hodges, appointed by Richard Nixon, threw the case out of court. Refusing to reach the merits of the girl’s claim to the wheelchair, he ruled that Medicaid recipients don’t have the right to enforce the section of the Medicaid Act providing for necessary medical devices. The logical question, of course, is that if Medicaid recipients can’t enforce that provision, who can or will? The court’s decision leaves the girl and indigent people like her remediless.

Judge Hodges said he was bound by a 2002 Supreme Court opinion signed by the Court’s five most conservative members – the late Chief Justice William Rehnquist, Justices Scalia, Thomas and Kennedy, and recently retired Justice Sandra Day O’Connor. That decision, Gonzaga v. Doe, has substantially curtailed the ability of individuals, especially poor people, to enforce federal safety net laws against state officials. But as rights-restricting as Gonzaga has proven to be, other courts have not found it to be as Draconian as Judge Hodges. In decisions interpreting the same provision of the Medicaid Act – decisions that Judge Hodges failed to acknowledge – another Florida judge and even the staunchly conservative Fifth Circuit have held that Medicaid recipients with disabilities possess the right to force state agencies to provide necessary medical equipment.

Judge Hodges concluded his opinion by stating that he “sympathize[d]” with the girl, but that “sympathy cannot be indulged to create bad law.” Yet by ruling in the girl’s favor, Judge Hodges would not have been indulging sympathy to create bad law; to the contrary, he would have been carrying out the legislature’s intentions. And by ruling against the girl, what he actually “indulged” was the hard Right’s antipathy toward meaningful enforcement of Congressional protections for society’s most vulnerable people.

A.G. v. Arnold, No. 5:05CV2790C10GRJ, 2006 WL 334218 (M.D.Fla. Feb. 13, 2006).


Giving a Pass to Decades of Blatant Discrimination

On March 9, 2006, the Fourth Circuit issued a split 2-1 decision that effectively denied over a million “low income, impoverished, and disadvantaged African-Americans” an opportunity to remedy decades of racial injustice. The opinion was authored by Bush I appointee Karen Williams – often mentioned as a potential Bush II Supreme Court nominee – and joined by a Bush II district court appointee sitting by designation. Starting in 1911, and continuing until 2000, when the practice officially ended, the Jefferson-Pilot company charged African-Americans higher rates than whites for low-value life insurance policies. Despite the plain prohibitive language of post-Civil War anti-discrimination laws, Jefferson-Pilot boldly argued that the practice was “a wise business decision based on mortality tables showing that African-Americans had shorter life expectancies and were thus higher life-insurance risks than similarly situated whites.”

Four African-American policy holders filed a class action lawsuit on behalf of 1.4 million individuals, charging that Jefferson-Pilot’s practice constituted unlawful racial discrimination. This is precisely the kind of case for which the class action mechanism was created. In fact, it is the kind of case that realistically can be maintained only as a class action because the rather small amount of damages suffered by each individual does “not provide the incentive for any individual to bring a solo action prosecuting his or her rights,” according to the Supreme Court. That’s where Judge Williams’ ruling comes in. She refused to certify the case as a class action, and thus effectively gutted it. Her reason? The class members’ claims might not be sufficiently similar for adjudication within the same case. Not because Jefferson-Pilot didn’t have a uniform, discriminatory practice, mind you. And not because all class members didn’t suffer the same kind of harm. But rather because, despite Jefferson-Pilot’s best efforts at concealment, intermittent media reports about discrimination within the insurance industry through the years might have exposed some class members, but not others, to Jefferson-Pilot’s wrongdoing outside the statute of limitations. In other words, Judge Williams gutted the case because Jefferson-Pilot might not have been uniformly successful in hiding its decades-long discrimination.

This reasoning is ... well ... twisted. On the one hand, as the dissenting judge, Clinton appointee Blaine Michael, pointed out: since there is no proof that there were individual differences in what class members could have known about Jefferson-Pilot’s practices, the fact that all could have been exposed to the same media reports only bolsters their case for class-wide adjudication. On the other hand, and more fundamentally, Judge Williams’ logic automatically bars class actions – and as a practical matter, any kind of justice – for any concealed discriminatory practice that endures longer than the period of the applicable statute of limitations. Put differently, the longer a company discreetly discriminates, the better off it is. The Fifth Circuit noted the absurdity of this reasoning in a recent case involving a similar issue:


To hold that each class member must be deposed as to precisely when, if at all, he learned of defendants’ practices would be tantamount to adopting a per se rule that civil rights cases involving deception or concealment cannot be certified [as class actions] outside a two- or three-year period. … Such a result would foreclose use of the class action device for a broad subset of claims, a result inconsistent with the efficiency aims of [the rule authorizing class actions].

Needless to say, the Fifth Circuit came to a different conclusion than the Fourth.

In his dissent, which cited the Fifth Circuit case as precedent, Judge Michael correctly observed that because of the majority opinion, Jefferson-Pilot “will never be held to account if it discriminated against 1.4 million African-Americans by charging them higher premiums for industrial life insurance than it charged whites.” What he proceeded to say, albeit in a far more judicious manner, was equally apt: judges like Karen Williams should stop misusing otherwise salutary procedural rules to improperly close the courthouse doors to claims of long-lasting, egregious misconduct.

Thorn v. Jefferson-Pilot Life Insurance, 438 F.3d 376 (4th Cir. 2006).

The 4th Circuit Erodes Environmental and Public Health Restrictions on Mountaintop Removal … Again

Last month, by a 5-3 vote, the full Fourth Circuit refused to reconsider the decision of an all Republican-appointed three-judge panel in Ohio Valley Environmental Coalition v. Bulen. The panel decision, which reversed a lower court ruling, makes it substantially easier for mining companies to engage in the environmentally hazardous practice of blasting away mountaintops to extract coal. The five judges who chose not to disturb the panel decision? All conservative Republican appointees. The three who voted to rehear it? All Democratic appointees. Perhaps that says something about the importance of the party of the nominating president.

Under Ohio Valley, the Army Corps of Engineers can issue what was previously thought to be an exceptional “general” or “nationwide” permit, rather than standard “individual” permits, to mining companies that want to dump removed mountaintops into valley streams. Unlike the standard permits, which safeguard public health and the environment by subjecting dumps from each individual project to public notice, public comment and particularized approval, the general permit allows dumping from all mountaintop removal projects country-wide without notice or comment. The problem with Ohio Valley is that while the Clean Water Act exclusively reserves the fast-track general permit for categories of projects with only “minimal environment effects,” the mountaintop dumping condoned by the Fourth Circuit already jeopardizes upwards of 25 miles of vulnerable valley streams, and it won’t stop there. Not exactly “minimal effects.” Dissenting from the full court’s refusal to re-examine the case, Judge Robert King accused the three-judge panel of “rendering [the pertinent provision of the Clean Water Act] a nullity” and observed:

[T]his case is of exceptional importance to the nation and, in particular, to the states in the Appalachian region. The Appalachian mountains, the oldest mountain chain in the world, are one of the nation's richest, most diverse, and most delicate ecosystems, an ecosystem that the mountaintop coal mining authorized by the Corps' general permit may irrevocably damage or destroy.
Unfortunately, Ohio Valley was not the first Fourth Circuit decision reversing a West Virginia district court opinion that enforced legal restrictions on mountaintop removal. Nor was it the second. It was the third. Arch-conservative Bush I appointees J. Michael Luttig (a Bush II Supreme Court short-lister) and Paul Niemeyer were part of the three-judge panel in each case, and in each case a third Republican-appointed judge joined them.

In the first of these cases, Bragg v. West Virginia Coal Association, 248 F.3d 275 (4th Cir. 2001), Luttig, Niemeyer and Karen Williams (another Bush II Supreme Court short-lister) ruled that the doctrine of state sovereign immunity completely barred West Virginia citizens from going to federal court to challenge the state’s decision to issue mountaintop removal permits that violated federal law. The ruling has come under withering criticism for, among other things, flouting the plain language of the Surface Mining Control and Reclamation Act, overlooking a key contrary opinion from the Interior Department and ignoring both circuit and Supreme Court precedent. In the second case, Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003), Luttig, Niemeyer and Reagan appointee Clyde Hamilton overturned the district court’s finding that the Clean Water Act prohibited the Army Corp of Engineers from continuing to grant permits that allowed mountaintop removal debris to be dumped directly into valley streams.

Mountaintop removal mining has had devastating effects, not only on the natural environment, but also on nearby communities. As one West Virginia newspaper reported, “fill in valleys leach poisonous heavy metals into the water supply,” which in high enough concentrations “are poisonous to humans.” Children in the vicinity of a Pine Mountain, Kentucky mine “suffer from an alarmingly high rate of nausea, diarrhea, vomiting, and shortness of breath – symptoms of something called blue baby syndrome – that can be traced back to sedimentation and dissolved minerals that have drained from mine sites into nearby streams.” In the West Virginia town of Rock Creek, where “coal dust settles like pollen” over the elementary school playground, “fifteen to twenty students went home sick every day because of asthma problems, severe headaches, blisters in their mouths, constant runny noses, and nausea.” The long term health implications of mountaintop removal mining may be even worse, and include liver, kidney, and spleen failure, bone damage, and cancers of the digestive track. Read more here.

It is for these reasons that the practice of mountaintop removal is subject to rather rigorous legal restrictions. And it is for these reasons that the almost willful non-enforcement of such restrictions by certain Fourth Circuit judges raises grave concerns for Appalachian ecosystems and communities.

Ohio Valley Environmental Coalition v. Bulen, 429 F.3d 493 (4th Cir. 2005), reh’g en banc denied, 437 F.3d 421 (4th Cir. 2006)

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AcousticGod
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From: Pleasanton, CA
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posted May 13, 2006 03:30 PM     Click Here to See the Profile for AcousticGod     Edit/Delete Message   Reply w/Quote

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