Judicial Review

West facade of the Supreme CourtAs I’ve already mentioned here and here, last Thursday, the University of Washington and Lee‘s branch of the American Constitution Society hosted a great Supreme Court Discussion Panel, Looking Back and Moving Forward, to recap the US Supreme Court’s 2006-2007 term and to preview its 2007-2008 term. This post looks at three more of the presentations, covering abortion, elections, detention, and sentencing.

First up, Prof Anne Massie discussed last term’s very controversial decision in Gonzalez v Carhart 550 US – (2007), which held that restrictions contained in the Partial Birth Abortion Ban Act of 2003 neither were void for vagueness, nor imposed an undue burden on a woman’s right to abortion based, despite the absence of an exception for the health of the mother.

As seemed almost inevitable last term, this was a 5-4 decision in which Kennedy J not only joined but also wrote for the majority, and he sought to bring his analysis within the standards set out in Planned Parenthood of Southeastern Pa v Casey 505 US 833 (1992) (a decision in which he played a crucial role). Massie pointed out that Court had regularly invalidated previous statutes that did not contain an exception for the health of the mother, but they upheld upheld this one on its face, despite the absence of such an exception. She also pointed out that this approach left room for a challenge against the statute as it might be applied in an individual case. Ginsburg J dissented strongly, pointing out that, seven years earlier, in Stenberg v Carhart 530 US 914 (2000), the Court had struck down a very similar Nebraska statute.

Massie also previewed the appeal from Crawford v Marion County Election Board 472 F 3d 949 (7th Cir. 2007) (pdf) in which Posner J for the majority upheld the requirement of a photo ID in order to vote. Opponents of such laws, now found in more than 20 states, argue that they overstate the problems associated with voter fraud, understate the problems with getting access to such ID, and unjustifiably reduce voter access to the polls. The question is whether such requirements place an unconstitutional burden on the right to vote. There is excellent coverage of this case on Rick Hasen’s Election Law Blog (especially here and here and here and here) and on SCOTUSblog wiki.

Next up was Prof Caprice Roberts (also here) who discussed the Guantanamo detention cases, which in her view will go far in defining the fledgling Roberts Court. Whilst some protection were afforded to the Guantanamo detainees in the earlier Hamdan v Rumsfeld 548 US — (2006), the Military Commissions Act of 2006 sought to reverse its effect, and in Boumediene, Lakhdar et al v Bush and Al Odah, Khaled A F et al v US (see pdf | wikipedia), the DC Circuit upheld that Act (see Balkin | Jurist).

The main question before the Supreme Court (see SCOTUSblog wiki) includes whether the 2006 Act strips federal courts of jurisdiction over habeas petitions filed by foreign citizens detained at Guantanamo. This will turn both on the power of Congress to regulate the federal courts and also on the second sentence of section 9 of Article 1 of the US Constitution, which provides that

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

The writ of habeas corpus is a legal action (ie, writ) by which a person can have a determination of whether a detention is lawful (which has traditionally been seen as an important bulwark against arbitrary state power, and which many now argue is at present missing without a trace in the US). However, the Supreme Court has held that Article 1, section 9 is not infringed where the legislation in question provides for a means of review functionally equivalent to habeas corpus, and one of the questions here therefore is likely to be whether the military commissions do in fact provide such a functional equivalent.

If they are entitled to challenge their detention, then the Guantanamo detainees’ main question is whether they are entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions. Roberts considered both sides of the issue but in the end did not venture a prediction. However, I am not very sanguine that the Supreme Court will overrule the DC Circuit on this. And if that is indeed what happens, then it will be a dark day for the principles of liberty.

Finally for this post, Prof Lawton Cummings discussed some Federal Sentencing Guidelines cases. She explained that the Guidelines work by setting a baseline sentence, which is combined with mitigating or aggravating factors, to generate a sentencing range. In Apprendi v NJ 530 US 466 (2000), the Court held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. And last term, in Cunningham v California 549 US — (2007) , applying Apprendi, the Court held that California’s Determinate Sentencing Law, by placing sentence-elevating fact-finding within the judge’s province, violated the Sixth Amendment right to trial by jury. In US v Booker 543 US 220 (2005) the Court held that such guidelines cannot be mandatory, but merely advisory, though it can still review setences for reasonableness. And last term, in Rita v US, the Court held that a Court of Appeals may apply a presumption of reasonableness to a lower court sentence within the Guidelines. In two cases before the Court this year, the question arose as to when lower sentences than those suggested by the Guidelines can be reasonable.

First, in Gall v US (see SCOTUSblog wiki), the question for the Court is whether it can be reasonable for a judge, faced with a sentencing range of 30 to 36 months, to give probation; the Court of Appeals for the 8th Circuit (446 F 3d 884 (8th Cir. 2006) pdf) reversed the setence on the grounds that an extraordinary reduction had to be supported by extraordinary circumstances which were not present on the facts (the LII preview is here). Second, in Kimbrough v US (see SCOTUSblog wiki), the sentence of 15 years was below the 19 years recommended by the Guidelines, substantially because the judge disagreed with the legislative disparity between crack cocaine and powder cocaine penalties. The 4th Circuit (9 May 2006, pdf) held that it was per se unreaonable to give a lower sentence simply on basis of a disagreement with sentencing policy (the LII preview is here).

Cummings concluded by betting on the defendants and trial judges here, because she feels it likely that the Supreme Court will as a matter of policy afford the judges some discretion. However, she admitted that it is hard to see precisely how the Court might arrive at this conclusion – which is, in fact, a particularly apt sentiment, widely shared amongst those who watch this inscrutable institution closely!