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US Civil Liberties

Court Procedures and Verdicts

Project: US Civil Liberties
Open-Content project managed by Paul, KJF, mtuck, paxvector

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During the Mexican-American War, Army General Winfield Scott forms a military commission to try 42 Irish-born deserters from the US military who had joined their fellow Roman Catholics in the Mexican army. All 42 are convicted. Twenty-seven are executed, 14 are flogged and branded, and one is pardoned. [USA Today, 11/15/2001]

Entity Tags: Winfield Scott

Category Tags: Court Procedures and Verdicts, Expansion of Presidential Power, Other Legal Changes

The US Supreme Court rules in Dred Scott v. Sandford that African-Americans are not citizens regardless of their status as free or slave, and therefore cannot sue for redress in federal courts. The Court also rules that Congress has no power to ban slavery in US territories, and that the rights of slaveowners are protected by the Fifth Amendment because slaves are categorized as property. The origins of the case date to 1833 when Army surgeon Dr. John Emerson purchased Dred Scott, a slave, and moved him to a military base in Wisconsin. Slavery was banned in territories made free by the Missouri Compromise, and Wisconsin was one of these territories. However, Scott did not assert his freedom at that time. Instead, he lived in Wisconsin for four years, sometimes hiring himself out for work. In 1840, Scott moved with his family to Louisiana and then to St. Louis, Missouri, with Emerson. After Emerson died, Scott attempted to buy his family’s freedom from Emerson’s wife Eliza Irene Sanford, but was refused. (Sanford’s name was misspelled ‘Sandford’ in court documents.) Scott then sued Sanford in a state court, arguing that he and his family were free because they lived in a territory where slavery was illegal, and that he was owed back wages. A state court found in Scott’s favor in 1850, but Sanford’s brother John appealed the decision. The Missouri Supreme Court overturned the original decision. Scott, alleging physical abuse, then sued John Sanford for damages in a federal court, but a jury disallowed Scott’s right to file a case in federal court. Scott appealed this decision to the Supreme Court. In a majority opinion written by Chief Justice Roger B. Taney, the Court finds that it lacks jurisdiction to take the case because Scott is not a US citizen. Taney writes that Scott is “a negro, whose ancestors were imported into this country and sold as slaves,” and, therefore, he is not a “member of the political community formed and brought into existence by the Constitution.” Taney also dismisses Scott’s assertion that his residence in a free state automatically grants him freedom and status as a US citizen, reasoning that states may choose to recognize the rights of freed slaves as citizens, but the federal government is under no obligation to do so. Lastly, the Court finds that, because slaves are property, Congress’s ban on slavery in the territories violates the Fifth Amendment’s protection of property rights. Justice Benjamin Curtis issues a powerful dissent to the Taney opinion. The Court’s decision will exacerbate tensions between Northern and Southern states, being widely seen as validating the South’s view of national power. It will also embolden pro-slavery Southerners and others to try to extend slavery into other areas of the nation, and will infuriate abolitionists, who will become powerful voices within the newly formed Republican Party. The three “Reconstruction Amendments”—the Thirteenth, Fourteenth, and Fifteenth (see February 26, 1869)—will render the Scott decision invalid. In modern times, all people born or naturalized in the US will be considered citizens who have the right to bring suit in federal court. [PBS, 12/2006]

Entity Tags: Republican Party, Benjamin Curtis, Dred Scott, Eliza Irene Sanford, John Emerson, US Supreme Court, Roger B. Taney, Missouri Supreme Court, John Sanford

Category Tags: Citizenship Rights, Impositions on Rights and Freedoms, Court Procedures and Verdicts, Election, Voting Laws and Issues, Voting Rights, Voter Fraud/Disenfranchisement

During the Civil War, some 13,000 soldiers and civilians are tried before 5,000 military commissions. Among them are eight civilians with ties to the Confederacy. President Andrew Johnson, President Lincoln’s successor, signs the order for the commissions based on the recommendation of Attorney General James Speed, who argues that Lincoln’s assassination was an act of war against the US’s commander in chief. Historian Edward Steers will later argue that Johnson wants a military trial to avoid a jury of potential Confederate sympathizers drawn from the Washington, DC, populace. A panel of seven generals and two colonels finds all eight of the civilians with Confederate ties guilty of conspiring to assassinate Lincoln. Four are executed and four are jailed for lengthy prison terms. The proceedings are swift; the hangings take place less than three months after Lincoln’s assassination. Historian James Hall will later say of the commissions: “That’s the beauty of the thing… from the government’s perspective. Things move quickly, and from a legal standpoint it’s all self-contained.” [USA Today, 11/15/2001]

Entity Tags: Andrew Johnson, James Speed, James Hall, Edward Steers

Category Tags: Court Procedures and Verdicts, Expansion of Presidential Power, Other Legal Changes

In the case of Ex parte Milligan, the Supreme Court strikes down a military tribunal used by former President Lincoln to prosecute Northern civilians, ruling that the Constitution limits a president’s power even during times of emergency. “The Constitution of the United States is a law for rulers and people,” the Court writes, “equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism.” The defendants, the Court rules, must be tried in civilian courts. [Coleman, 2005 pdf file; PBS, 12/2006; Savage, 2007, pp. 17]

Entity Tags: Abraham Lincoln

Category Tags: Expansion of Presidential Power, Court Procedures and Verdicts

The Fourteenth Amendment, one of the so-called “Reconstruction Amendments,” is ratified. This amendment makes all persons born or naturalized in the US citizens. It also overturns the Supreme Court decision in Dred Scott v. Sandford, which denied African-Americans, slave or free, the right to citizenship (see March 6, 1857). The amendment also places restrictions on state laws: “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” It grants the US Congress the power to enforce, through legislation, the provisions of the amendment. Beginning in the 1920s, the Supreme Court will begin applying the Fourteenth Amendment to enforce the provisions of the Bill of Rights in states as well as in matters concerning the federal government. [PBS, 12/2006]

Entity Tags: US Congress, US Supreme Court

Category Tags: Citizenship Rights, Court Procedures and Verdicts, Election, Voting Laws and Issues, Voting Rights

The US Supreme Court uses the “Slaughterhouse Cases” to narrowly interpret the Fourteenth Amendment (see July 9, 1868). The combined cases have nothing to do with the rights of freed African-Americans, but center on disputes brought to court by white businessmen. The Court rules 5-4 that distinctions exist between federal and state citizenship rights, and that states have no obligation to provide their citizens with the same “privileges and immunities” they enjoy as national citizens. [PBS, 12/2006]

Entity Tags: US Supreme Court

Category Tags: Citizenship Rights, Court Procedures and Verdicts, Election, Voting Laws and Issues, Voting Rights

The US Supreme Court strikes down the provision of an 1875 civil rights law that prohibited racial discrimination by owners of hotels, theaters, and other forms of public accommodation. The Court consolidates a number of cases from four states into the “Civil Rights Cases,” and rules that the Fourteenth Amendment (see July 9, 1868) does not give the federal government the power to ban private discrimination. Further, the court rules that the denial of public accommodation does not constitute a “badge of slavery” and is therefore not prohibited by the Thirteenth Amendment, which ended slavery in the US. [PBS, 12/2006; U.S. Supreme Court, 2012]

Entity Tags: US Supreme Court

Category Tags: Court Procedures and Verdicts, Election, Voting Laws and Issues, Impositions on Rights and Freedoms

In Elk v. Wilkins, the US Supreme Court restricts Native American voting rights by denying Native American John Elk the right to vote. According to the Court, Elk cannot vote in his home state of Nebraska because his intention to become a citizen requires approval from the government. Additionally, the Court finds that Elk is not a citizen because he does not “owe allegiance to the United States,” and thusly the Fifteenth Amendment (see February 26, 1869) does not apply to him. [American Civil Liberties Union, 2012]

Entity Tags: US Supreme Court, John Elk

Category Tags: Court Procedures and Verdicts, Election, Voting Laws and Issues, Voting Rights, Voter Fraud/Disenfranchisement

Justice Henry Brown.Justice Henry Brown. [Source: Wikimedia]The US Supreme Court rules 7-1 in Plessy v. Ferguson that a Louisiana law requiring “equal but separate accomodations for the white and colored races” is constitutional. Homer Plessy, a light-skinned black man who sometimes “passed” as white, took part in a plan by a small number of black professionals seeking to have a court overturn the Louisiana Separate Car Act of 1890. Plessy boarded a whites-only railroad car and was arrested, as per arrangement, by a private detective. The group intended to use Plessy’s light skin tone to demonstrate how arbitrary and unconstitutional the law was. Plessy’s lawyers argued that Louisiana’s segregation law violated both the Thirteenth Amendment, which bars slavery, and the Fourteenth Amendment, which guarantees all Americans equal protection under the law (see July 9, 1868). Louisiana courts consistently found against Plessy, and the case moved all the way to the Supreme Court. Writing for the Court’s majority, Justice Henry Brown rules that the law does not “discriminate” among legal rights by race, but merely recognizes a “distinction” between races “which must always exist so long as white men are distinguished from the other race by color.” He adds: “Legislation is powerless to eradicate racial instincts or to abolish distinctions based on physical differences, and the attempt to do so can only result in accentuating the differences of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane.” The ruling establishes the “separate but equal” doctrine that informs many states’ decision to segregate public facilities—schools, railcars, even drinking fountains. Justice John Marshall Harlan, a former slave owner and a pro-slavery politician, writes a fiery dissent that refutes Brown’s assertion that the Louisiana law discriminates equally among whites and blacks. Harlan writes, “Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons.” He disagrees with the majority opinion’s finding that segregation on railcars does not violate African-Americans’ constitutional rights under the Fourteenth Amendment. But Harlan does not advocate social equality among the races. Instead, he argues that legally imposed segregation denies political equality. Harlan writes: “The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” Harlan’s dissent becomes the underpinning of the 1954 Brown v. Board of Education decision (see May 17, 1954). [PBS, 12/2006; PBS, 12/2006]

Entity Tags: Homer Plessy, Henry Billings Brown, US Supreme Court, Louisiana Separate Car Act of 1890, John Marshall Harlan

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Election, Voting Laws and Issues, Voting Rights, Voter Fraud/Disenfranchisement

The US Supreme Court upholds a Mississippi law requiring citizens to pass a literacy test before being allowed to vote. The Williams v. Mississippi decision holds that such tests do not violate the Fifteenth Amendment (see February 26, 1869) as long as they are applied equally to all prospective voters. The literacy test stemmed from a state “Constitutional convention” that codified a “compromise” between white slaveowners and those who opposed their iron control of the Mississippi state government. The compromise would declare all illiterate Mississippi citizens as ineligible to vote, but the real purpose of the convention—to disenfranchise blacks—was well known. James Kimble Vardaman, who would later become governor, said of the convention: “There is no use to equivocate or lie about the matter. Mississippi’s constitutional convention was held for no other purpose than to eliminate the n_gger from politics; not the ignorant—but the n_gger.” White Republican Marsh Cook challenged the Democrats for a seat to the convention and was murdered in response. The only African-American delegate to the convention, Isaiah Montgomery, was invited because of his willingness to support disenfranchisement. The convention established the literacy test, establishing as a proper test the reading of any selected section of the Mississippi Constitution, or giving a valid explanation of it once it was read to the voter. Registrars would interpret the success or failure of the voters’ attempts to pass the test. Since all Mississippi registrars are white, the likelihood that even a literate African-American would pass the test was slim at best. However, the Court ignores the intent of the law to disenfranchise blacks, writing: “[T]he operation of the constitution and laws is not limited by their language or effects to one race. They reach weak and vicious white men as well as weak and vicious black men, and whatever is sinister in their intention, if anything, can be prevented by both races by the exertion of that duty which voluntarily pays taxes and refrains from crime.” Other states, mainly Southern, will quickly adopt their own version of literacy tests. [PBS, 2002; PBS, 12/2006]

Entity Tags: James Kimble Vardaman, Marsh Cook, US Supreme Court, Isaiah Montgomery

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Election, Voting Laws and Issues, Voter Fraud/Disenfranchisement

The US Supreme Court overrules Oklahoma’s “grandfather clause” law in the case of Guinn v. United States, finding the law unconstitutional. The Oklahoma law is similar to laws passed in Louisiana and other states (see 1896) in order to ensure that African-Americans cannot legally vote regardless of the Fifteenth Amendment (see February 26, 1869). Illiterate males can vote only if they can prove their grandfathers had the right to vote. Since almost all African-Americans were slaves during that time, it is impossible for almost all African-Americans to prove their grandfathers had the right to vote. Illiterate white men, however, can often prove their grandfathers could vote. [PBS, 12/2006; American Civil Liberties Union, 2012]

Entity Tags: US Supreme Court

Category Tags: Court Procedures and Verdicts, Election, Voting Laws and Issues, Voting Rights

1921: Supreme Court Weakens Campaign Finance Laws

In US v. Newberry, the Supreme Court finds some amendments to campaign finance laws (see 1911) unconstitutional, weakening the body of campaign finance law even further. The campaign finance laws in force (see 1907 and June 25, 1910) were already ineffective and rarely enforced by state attorneys general. And corporations and other special interests find it quite simple to circumvent the laws via loopholes. The case involves a Northern Republican primary race for the US Senate. Popular and powerful businessman Henry Ford (R-MI) lost the race due to enormous campaign expenditures and advertising by his opponent, and asked the US attorney general to intervene. The case stemming from Ford’s request results in the Court decision. The Court finds that the amendments are invalid because neither political parties nor election primaries are mentioned in the Constitution. The Founders had not considered having a two- or three-party system in place, and had envisioned the US as being governed by a single party that represented all interests. A two-party system did not emerge in American politics on a national scale until 1828. The Court, by maintaining a strict constitutional interpretation, sorely weakens campaign finance regulation. [Campaign Finance Timeline, 1999]

Entity Tags: US Supreme Court, Henry Ford

Category Tags: Campaign Finance, Court Procedures and Verdicts

The US Supreme Court, ruling in the case of Takao Ozawa v. United States, finds that persons of Japanese ancestry are prohibited from becoming naturalized citizens under a law limiting eligibility to “free white persons and to aliens of African nativity and to persons of African descent.” According to the Court, Takao Ozawa is “a graduate of the Berkeley, California, High School, had been nearly three years a student in the University of California, had educated his children in American schools, his family had attended American churches, and he had maintained the use of the English language in his home. That he was well qualified by character and education for citizenship is conceded.” [American Civil Liberties Union, 2012]

Entity Tags: Takao Ozawa, US Supreme Court

Category Tags: Citizenship Rights, Impositions on Rights and Freedoms, Court Procedures and Verdicts, Election, Voting Laws and Issues, Voter Fraud/Disenfranchisement

The US Supreme Court rules that “high caste Hindus” from India are not eligible to become US citizens because, under naturalization law, persons of Hindu ancestry are not “white.” Bhagat Singh Thind came to the United States in 1913, served in the US Army, and was granted permission to become a citizen by an Oregon official. However, a naturalization examiner objected and took the case to court. In Bhagat Singh Thind v. United States, the Court finds that Thind may not be naturalized because of his Hindu ancestry. Thind presented evidence that South Asians such as himself are scientifically classified as Aryans or Caucasians, and thusly should be classified as “white.” The Court rules that scientific evidence is secondary to the public perception of who is white and who is not. “It may be true that the blond Scandinavian and the brown Hindu have a common ancestor in the dim reaches of antiquity,” the Court finds, “but the average man knows perfectly well that there are unmistakable and profound differences between them today.” In essence, the Court contradicts its findings from a ruling three months ago, where it accepted scientific proof that a Japanese man applying for American citizenship could not be classified as “white.” In 2003, documentarians for California Newsreel will write: “The justices never said what whiteness was, only what it wasn’t. Their implied logic was a circular one: Whiteness was what the common white man said it was.” Many South Asians who had been naturalized will be stripped of their citizenship and property as a result of the ruling. One, successful businessman Vaishno das Bagai, kills himself. He leaves a suicide note for his family and another one for the public that reads in part: “But now they come and say to me I am no longer an American citizen. What have I made of myself and my children? We cannot exercise our rights, we cannot leave this country. Humility and insults… blockades this way, and bridges burned behind.” The Court will later reverse itself and rule in Thind’s favor. [California Newsreel, 2003; United States v. Bhagat Singh Thind - 261 US 204, 2011; American Civil Liberties Union, 2012]

Entity Tags: California Newsreel, Bhagat Singh Thind, US Supreme Court, Vaishno das Bagai

Category Tags: Citizenship Rights, Impositions on Rights and Freedoms, Court Procedures and Verdicts

President Calvin Coolidge stands with four Osage Indians after he signs the Indian Citizenship Act into law.President Calvin Coolidge stands with four Osage Indians after he signs the Indian Citizenship Act into law. [Source: Library of Congress]Congress passes the Indian Citizenship Act of 1924, which makes all non-citizen Native Americans born within the US citizens, thus granting them the right to vote. It will be signed into law by President Calvin Coolidge. Before the act takes effect, Native Americans had an unusual status under the law. Some had acquired citizenship by marrying white males, others received citizenship through military service, allotments, or through special treaties or statutes (see May 26, 1920). The act was less of a response to Native Americans petitioning for citizenship than an effort by the federal government to “absorb” Native Americans into mainstream America, a policy known by some historians as “assimilation.” Before the act is passed, Dr. Joseph K. Dixon, a proponent of “assimilation,” wrote: “The Indian, though a man without a country, the Indian who has suffered a thousand wrongs considered the white man’s burden and from mountains, plains, and divides, the Indian threw himself into the struggle to help throttle the unthinkable tyranny of the Hun. The Indian helped to free Belgium, helped to free all the small nations, helped to give victory to the Stars and Stripes. The Indian went to France to help avenge the ravages of autocracy. [Dixon is referencing many Native Americans’ service in the US military during World War I.] Now, shall we not redeem ourselves by redeeming all the tribes?” However, many states will ignore the act and use their statutes to deny Native Americans the vote. Many Native Americans will not be allowed to vote until 1948. [Nebraska Studies, 2001; American Civil Liberties Union, 2012]

Entity Tags: Indian Citizenship Act of 1924, Calvin Coolidge, US Congress, Joseph K. Dixon

Category Tags: Citizenship Rights, Court Procedures and Verdicts

The US Supreme Court reverses the conviction of the “Scottsboro Boys,” nine black men from Scottsboro, Alabama, who had been convicted of raping a group of white women and sentenced to death. In the case of Powell v. Alabama, the Court finds that the men had been granted inadequate representation—they had been given a court-appointed lawyer only on the morning of their trial, and thusly that lawyer had no time to prepare an adequate defense. The case is sent back to the Alabama state court, where despite testimony from one of the alleged victims that no rape had taken place, all are convicted again. The Supreme Court will again overturn their convictions, this time because no blacks were on the jury. The nine are tried for a third time: four are convicted, one pleads guilty, and four have charges against them dropped. [PBS, 12/2006]

Entity Tags: US Supreme Court

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts

The Supreme Court rules in United States v. Curtiss-Wright, a case revolving around Curtiss-Wright’s illicit sale of machine guns to Bolivia in violation of a joint resolution passed by Congress. The Court finds that Congress did not cede undue powers to the president in the resolution, and that the president has a wide array of powers in the area of foreign policy making that he does not have in the domestic arena. Justice George Sutherland, who writes the majority opinion, notes the distinctions between foreign and internal affairs, arguing that because “the president alone has the power to speak or listen as a representative of the nation,” Congress may provide the president with a special degree of discretion in external matters which would not be afforded domestically. In an aside to the decision, Sutherland notes what he calls the “plenary and exclusive power of the president as the sole organ of the federal government in the field of international relations,” a power which, if correctly cited, gives the executive branch sole authority to conduct foreign relations in everything from treaties and trade agreements to launching and conducting wars. However, Sutherland’s statement is written as an adjunct to the majority opinion, or dicta, and therefore has no legal stature. In later examinations of Sutherland’s work, many legal scholars will determine that Sutherland is misquoting his original source, the Supreme Court’s first Chief Justice, John Marshall, who as a House member argued that the president has the duty to carry out the nation’s treaty obligations and is the exclusive channel for diplomatic communications. Marshall did not argue that the legislative or judicial branches had no authority over foreign policy, and never espoused that argument once ascending to the high court. Many advocates of the so-called “unitary executive theory” of presidential power will cite Sutherland’s erroneous dicta in making their own arguments for untrammeled presidential power. [Savage, 2007, pp. 141; Oyez (.org), 6/2007]

Entity Tags: George Sutherland, Curtiss-Wright, John Marshall, Roosevelt administration, US Supreme Court

Category Tags: Court Procedures and Verdicts, Expansion of Presidential Power

The US Supreme Court, ruling in Breedlove v. Settles, finds a poll tax implemented in Georgia law to be constitutional. The Court decision effectively abrogates the right of most African-Americans in Georgia to vote, as most of them cannot pay the poll tax. The Court ruling serves to disenfranchise many African-Americans for decades. Some Southern states will employ poll taxes well into the 1960s. [PBS, 12/2006; American Civil Liberties Union, 2012]

Entity Tags: US Supreme Court

Category Tags: Court Procedures and Verdicts, Election, Voting Laws and Issues, Voting Rights, Voter Fraud/Disenfranchisement

President Roosevelt, using what he calls his inherent power as commander in chief, creates a military commission to try eight Nazi saboteurs captured inside the US in the case of Ex parte Quirin. The eight are quickly found guilty and sentenced to death. The Supreme Court later backs Roosevelt’s authority to have them tried by a commission. The Court’s decision is unusually hasty, and several of the justices who voted in Roosevelt’s favor later express regret for their approval. Roosevelt himself is unsure of the procedure’s legality, the Court’s decision and his own powers as president notwithstanding. When more Nazi saboteurs are captured later in the war, they are tried in criminal courts. [Savage, 2007, pp. 136]

Entity Tags: US Supreme Court, Franklin Delano Roosevelt

Category Tags: Court Procedures and Verdicts, Expansion of Presidential Power

The US Supreme Court upholds by a 6-3 vote the legitimacy of Executive Order 9066 issued by President Franklin Roosevelt on February 19, 1942 that mandated all Americans of Japanese heritage to report to internment camps during World War II. Writing for the Court in the case of Korematsu v. United States, Justice Hugo Black finds that an executive order based on race is “suspect,” but says that the “emergency circumstances” of wartime make the order necessary and constitutional. Forty-four years later, in 1988, Congress will formally apologize and issue monetary reparations to Japanese-American families who had been forced into the camps. [PBS, 12/2006; Los Angeles Times, 5/24/2011] In 2011, acting Solicitor General Neal Katyal will state that his predecessor during the case, Charles Fahy, deliberately hid evidence from the Court that concluded Japanese-Americans posed no security or military threat. The report from the Office of Naval Intelligence (ONI) found that no evidence of Japanese-American disloyalty existed, and that no Japanese-Americans had acted as spies or had signaled enemy submarines, as some at the time believed. Katyal will say that he has a “duty of absolute candor in our representations to the Court.” Katyal will say that two government lawyers informed Fahy he was engaging in “suppression of evidence,” but Fahy refused to give the report to the Court. Instead, Fahy told the Court that the forced internment of Japanese-Americans was a “military necessity.” Fahy’s arguments swayed the Court’s opinion, Katyal will state. “It seemed obvious to me we had made a mistake. The duty of candor wasn’t met,” Katyal will say. [Los Angeles Times, 5/24/2011]

Entity Tags: Neal Katyal, Office of Naval Intelligence, US Supreme Court, Charles Fahy, Franklin Delano Roosevelt, Hugo Black

Category Tags: Citizenship Rights, Impositions on Rights and Freedoms, Court Procedures and Verdicts, Detainments in US

A federal court rules in King v. Chapman that whites-only primary elections in Georgia are unconstitutional. The court rules, “The exclusions of voters made by the party by the primary rules become exclusions enforced by the state and when these exclusions are prohibited by the Fifteenth Amendment (see February 26, 1869) based on race or color, the persons making them effective violate under color of state law a right secured by the Constitution and laws of the United States within the meaning of the statute.” [American Civil Liberties Union, 2012]

Category Tags: Court Procedures and Verdicts, Election, Voting Laws and Issues, Voting Rights

A federal court invalidates South Carolina’s effort to save its whites-only primary elections (see April 1, 1946). South Carolina attempted to remove federal court jurisdiction from its primaries, and save its discriminatory primary system, by repealing all of its primary laws. However, the court ruling in Elmore v. Rice invalidates the whites-only system. George Elmore, one of the plaintiffs in the case, is an African-American elector forbidden by South Carolina law from voting in the Democratic primary election. NAACP lawyer Thurgood Marshall is one of the lead attorneys for the plaintiffs. [ELMORE v. RICE, 2010; American Civil Liberties Union, 2012] Elmore and his family are persecuted by members of the Ku Klux Klan after the ruling. [South Carolina African American History Calendar, 2007 pdf file]

Entity Tags: Thurgood Marshall, National Association for the Advancement of Colored People, George Elmore, Ku Klux Klan

Category Tags: Court Procedures and Verdicts, Election, Voting Laws and Issues, Voting Rights

Federal judge William H. Kirkpatrick rules that the US government must turn over the disputed, and supposedly highly classified (see September 14, 1950), accident reports from a 1948 B-29 crash (see October 6, 1948)—not to the plaintiffs in the lawsuit over the crash (see July 26, 1950), but to Kirkpatrick himself. He wishes to review the reports to determine if they contain any information that might threaten national security, and, before turning the documents over to the plaintiffs’ lawyers, will personally remove that information. In mid-October, when the government again refuses to turn over the documents, Kirkpatrick will find in favor of the plaintiffs (see October 12, 1950). [Siegel, 2008, pp. 133-134]

Entity Tags: US Department of Justice, William H. Kirkpatrick

Category Tags: Court Procedures and Verdicts, Expansion of Presidential Power, Government Acting in Secret, Government Classification, State Secrets

Federal judge William H. Kirkpatrick rules in favor of the plaintiffs in a wrongful death lawsuit against the US government (see October 6, 1948, June 21, 1949, and July 26, 1950), after the government refuses to turn over classified accident reports that have a direct bearing on the plaintiffs’ case (see September 21, 1950). Judge Kirkpatrick orders the government to pay the plaintiffs, three widows who lost their husbands in a 1948 plane crash, a total of $225,000. The plaintiffs’ lawyer, Charles Biddle, expects the government to balk at paying out the money, and to instead continue to challenge the court’s attempt to compel it to turn over the accident reports (see October 19, 1951). [Siegel, 2008, pp. 134-139]

Entity Tags: Charles Biddle, William H. Kirkpatrick

Category Tags: Court Procedures and Verdicts, Expansion of Presidential Power, Government Acting in Secret, Government Classification, State Secrets

The US Supreme Court rules that the federal government cannot seize the nation’s steel mills. In April, President Truman, fearing a nationwide strike that could impact the US war effort in Korea, ordered the seizure of all US steel mills; the lawsuit that resulted, Youngstown Sheet & Tube Co. v. Sawyer, quickly made its way to the Supreme Court.
Rejection of 'Inherent Powers' Claim - During oral arguments, the justices grilled Acting Attorney General Philip Perlman, demanding to know what statutes he had relied on for his arguments and asserting that the president had limitations both on his emergency wartime powers and on his ability to claim that he is the “sole judge” of the existence of, and remedies for, an emergency. The justices are not convinced by the government’s arguments for the president’s “inherent powers.” They are also troubled by repeated refusals of the government to provide facts and documentary backing for its legal arguments, and its reliance instead on claims of “national security.” The attorney for the steel industry, John Davis, quoted Thomas Jefferson in his argument: “In questions of power, let no more be said of confidence in man, but bind him down from mischief by the chains of the Constitution.” Justice William O. Douglas noted that if the government’s claims were valid, there would be “no more need for Congress.”
Court Rejects Argument - In a 6-3 vote, the Court rules that the president has no inherent power to seize the steel mills. Writing for the majority, Justice Hugo Black states: “In the framework of our Constitution, the president’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.… The founders of this nation entrusted the lawmaking power to the Congress alone in both good and bad times.… This is a job for the nation’s lawmakers.” In a concurring opinion, Justice Robert Jackson writes, “No penance would ever expiate the sin against free government of holding that a president can escape control of executive powers by law through assuming his military role.” In his dissent, Chief Justice Fred Vinson (see March 1952) argues that “the gravity of the emergency” overrides the Constitutional arguments accepted by the majority of the Court. “Those who suggest that this is a case involving extraordinary powers should be mindful that these are extraordinary times. A world not yet recovered from the devastation of World War II has been forced to face the threat of another and more terrifying global conflict.” [Savage, 2007, pp. 123; Siegel, 2008, pp. 163-164] In 2007, reporter and author Charlie Savage will observe that the Youngstown decision “turned out to be only a pause in the movement toward an increasingly authoritarian presidency.” [Savage, 2007, pp. 19]

Entity Tags: William O. Douglas, John Davis, Hugo Black, Charlie Savage, Fred Vinson, Harry S. Truman, Philip Perlman, US Supreme Court

Category Tags: Court Procedures and Verdicts, Expansion of Presidential Power, Government Acting in Secret, Government Classification

Chief Justice Fred Vinson.Chief Justice Fred Vinson. [Source: Kansas State Historical Society]The US Supreme Court upholds the power of the federal government’s executive branch to withhold documents from a civil suit on the basis of executive privilege and national security (see October 25, 1952). The case, US v Reynolds, overturns an appellate court decision that found against the government (see December 11, 1951). Originally split 5-4 on the decision, the Court goes to 6-3 when Justice William O. Douglas joins the majority. The three dissenters, Justices Hugo Black, Felix Frankfurter, and Robert Jackson, refuse to write a dissenting opinion, instead adopting the decision of the appellate court as their dissent.
'State Secrets' a Valid Reason for Keeping Documents out of Judicial, Public Eye - Chief Justice Fred Vinson writes the majority opinion. Vinson refuses to grant the executive branch the near-unlimited power to withhold documents from judicial review, as the government’s arguments before the court implied (see October 21, 1952), but instead finds what he calls a “narrower ground for defense” in the Tort Claims Act, which compels the production of documents before a court only if they are designated “not privileged.” The government’s claim of privilege in the Reynolds case was valid, Vinson writes. But the ruling goes farther; Vinson upholds the claim of “state secrets” as a reason for withholding documents from judicial review or public scrutiny. In 2008, author Barry Siegel will write: “In truth, only now was the Supreme Court formally recognizing the privilege, giving the government the precedent it sought, a precedent binding on all courts throughout the nation. Most important, the Court was also—for the first time—spelling out how the privilege should be applied.” Siegel will call the Reynolds ruling “an effort to weigh competing legitimate interests,” but the ruling does not allow judges to see the documents in order to make a decision about their applicability in a court case: “By instructing judges not to insist upon examining documents if the government can satisfy that ‘a reasonable danger’ to national security exists, Vinson was asking jurists to fly blind.” Siegel will mark the decision as “an act of faith. We must believe the government,” he will write, “when it claims [the accident] would reveal state secrets. We must trust that the government is telling the truth.”
Time of Heightened Tensions Drives Need for Secrecy - Vinson goes on to note, “[W]e cannot escape judicial notice that this is a time of vigorous preparation for the national defense.” Locked in the Cold War with the Soviet Union, and fighting a war in Korea, the US is, Vinson writes, in a time of crisis, and one where military secrets must be kept and even encouraged. [U. S. v. Reynolds, 3/9/1953; Siegel, 2008, pp. 171-176]
Future Ramifications - Reflecting on the decision in 2008, Siegel will write that while the case will not become as well known as many other Court decisions, it will wield significant influence. The ruling “formally recognized and established the framework for the government’s ‘state secrets’ privilege—a privilege that for decades had enabled federal agencies to conceal conduct, withhold documents, and block civil litigation, all in the name of national secrecy.… By encouraging judicial deference when the government claimed national security secrets, Reynolds had empowered the Executive Branch in myriad ways. Among other things, it had provided a fundamental legal argument for much of the Bush administration’s response to the 9/11 terrorist attacks. Enemy combatants such as Yaser Esam Hamdi (see December 2001) and Jose Padilla (see June 10, 2002), for many months confined without access to lawyers, had felt the breath of Reynolds. So had the accused terrorist Zacarias Moussaoui when federal prosecutors defied a court order allowing him access to other accused terrorists (see March 22, 2005). So had the Syrian-Canadian Maher Arar (see September 26, 2002), like dozens of others the subject of a CIA extraordinary rendition to a secret foreign prison (see After September 11, 2001). So had hundreds of detainees at the US Navy Base at Guantanamo Bay, held without charges or judicial review (see September 27, 2001). So had millions of American citizens, when President Bush, without judicial knowledge or approval, authorized domestic eavesdropping by the National Security Agency (see Early 2002). US v. Reynolds made all this possible. The bedrock of national security law, it had provided a way for the Executive Branch to formalize an unprecedented power and immunity, to pull a veil of secrecy over its actions.” [Siegel, 2008, pp. ix-x]

Entity Tags: William O. Douglas, Zacarias Moussaoui, US Supreme Court, Yaser Esam Hamdi, Robert Jackson, Jose Padilla, Felix Frankfurter, Bush administration (43), Fred Vinson, Barry Siegel, George W. Bush, Hugo Black, Maher Arar

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Expansion of Presidential Power, State Secrets, Government Classification

One of the first schools to implement desegregation is Barnard Elementary in Washington, DC. This photo shows black and white children in the same classroom.One of the first schools to implement desegregation is Barnard Elementary in Washington, DC. This photo shows black and white children in the same classroom. [Source: Library of Congress]The landmark US Supreme Court case Oliver Brown v. Board of Education of Topeka, Kansas, rules that racial segregation in public schools violates the Fourteenth Amendment. The unanimous decision overturns the doctrine of “separate but equal” education codified in the 1896 Plessy v. Ferguson ruling (see 1896). The case was argued by the Legal Defense and Educational Fund, the legal arm of the National Association for the Advancement of Colored People (NAACP). The organizations filed the suit as a challenge to the “separate but equal” doctrine, and combined five separate cases under the one Brown v. Board of Education rubric. The Supreme Court heard arguments on the case three different times in three years. In a unanimous decision, the Court finds that the “separate but equal” doctrine violates the equal protection and due process clauses of the Fourteenth Amendment, and orders desegregation “with all deliberate speed.” Chief Justice Earl Warren wants to send a powerful signal to the nation in the ruling, and works to craft a unanimous decision with no dissents or even concurrences. He writes the Court’s opinion himself, but seeks the input of the other justices in two draft opinions that he tailors into his final opinion. One of the compromises he is forced to make is to put off the question of actually implementing desegregation until a later time, inadvertently allowing many states to keep segregationist practices in place for decades. Warren says the opinion should be “short, readable by the lay public, non-rhetorical, unemotional, and, above all, non-accusatory.” Justice William O. Douglas is delighted by Warren’s opinion, and in a note to Warren, writes: “I do not think I would change a single word in the memoranda you gave me this morning. The two draft opinions meet my idea exactly. You have done a beautiful job.” Justice Harold H. Burton writes a memo to Warren reading in part: “Today I believe has been a great day for America and the Court.… I cherish the privilege of sharing in this.… To you goes the credit for the character of the opinions which produced the all important unanimity. Congratulations.” In an internal memo, Justice Felix Frankfurter writes of the practice of segregation: “That it is such has been candidly acknowledged by numerous accounts & adjudications in those states where segregation is enforced. Only self conscious superiority or inability to slip into the other fellow’s skin can fail to appreciate that.” Frankfurter says the ruling makes for “a day of glory.” Some right-wing and segregationist organizations condemn the ruling; Warren is forwarded a letter from an official of the Sons of the American Revolution claiming the ruling is attributable to “the worldwide Communist conspiracy” and that the NAACP is financed by “a Communist front.” President Eisenhower will take strong action to reduce segregation in America, but refuses to endorse the Court’s ruling. In 1967, one of the NAACP’s lead attorneys in the case, Thurgood Marshall, will go on to serve on the Supreme Court. [Library of Congress, 1994; American Civil Liberties Union, 2012]

Entity Tags: National Association for the Advancement of Colored People, Earl Warren, Dwight Eisenhower, Felix Frankfurter, Legal Defense and Educational Fund, Thurgood Marshall, Harold H. Burton, William O. Douglas, US Supreme Court, Sons of the American Revolution

Category Tags: Citizenship Rights, Court Procedures and Verdicts

In the case of United States v. Auto Workers, the Supreme Court reverses a lower court’s dismissal of an indictment against a labor union accused of violating federal laws prohibiting corporations and labor unions from making contributions or expenditures in federal elections (see June 23, 1947). Justice Felix Frankfurter writes the majority opinion; Chief Justice Earl Warren and Justices William O. Douglas and Hugo Black dissent. In a 5-3 decision, the Court finds the International Union United Automobile, Aircraft, and Agricultural Implement Workers of America liable for its practice of using union dues to sponsor television commercials relating to the 1954 Congressional elections. [UNITED STATES v. AUTO. WORKERS, 2011; Moneyocracy, 2/2012] Law professor Allison R. Hayward will later write that in her opinion the Court finding created “a fable of campaign finance reform… dictated by political opportunism. Politicians used reform to exploit public sentiment and reduce rivals’ access to financial resources.… [J]udges should closely examine campaign finance regulation and look for the improper use of legislation for political gain instead of simply deferring to Congress. Undue deference to the Auto Workers fable of reform could lead to punishment for the exercise of political rights. Correcting the history is thus essential to restoring proper checks on campaign finance legislation.” Hayward will argue that Frankfurter used a timeline of Congressional efforts to curb and reform campaign finance practices as an excuse to allow powerful political interests to exert restrictions on political opponents with less access to large election finance contributions. The case is used uncritically, and sometimes unfairly, to influence later campaign reform efforts, Hayward will argue. [Hayward, 6/17/2008 pdf file]

Entity Tags: US Supreme Court, Earl Warren, Allison R. Hayward, Felix Frankfurter, International Union United Automobile, Aircraft, and Agricultural Implement Workers of America, William O. Douglas, Hugo Black

Category Tags: Campaign Finance, Court Procedures and Verdicts

The US Supreme Court rules in Lassiter v. Northampton County Board of Elections that literacy tests for voting in North Carolina are constitutional. The case was brought by an African-American voter who argued that his right to vote was being unconstitutionally constrained. The Court rules that because the literacy test applies to all voters, it is legal (see April 25, 1898). The American Civil Liberties Union will call the ruling “a major setback to voting rights.” [PBS, 12/2006; American Civil Liberties Union, 2012]

Entity Tags: US Supreme Court

Category Tags: Election, Voting Laws and Issues, Voting Rights, Court Procedures and Verdicts, Voter Fraud/Disenfranchisement

In a landmark ruling, the US Supreme Court, in the case of Baker v. Carr, finds that courts can order state legislatures to redraw district boundaries to ensure citizens’ political rights. The case pertains directly to Tennessee, which still uses 60-year-old district boundaries that give minorities less representation than would be the case if districts were redrawn to more equally represent populations. Hence, Tennessee has an outsized white majority in its state legislature. The Court rules that courts can order such districts to be redrawn. The ruling is a major advancement for minority voting rights. [American Civil Liberties Union, 2012]

Entity Tags: US Supreme Court

Category Tags: Court Procedures and Verdicts, Election, Voting Laws and Issues

The US Supreme Court, in the case of Gray v. Sanders, rules that Georgia’s “county unit” system of voting is unconstitutional, and codifies the concept of “one person, one vote.” Georgia’s “county unit” voting system is unfairly weighed to maximize votes from largely white rural areas and to dilute votes from urban districts with larger minority populations. Georgia voter James Sanders brought a suit challenging the system; his suit named James H. Gray, the chairman of the State Executive Committee of the Democratic Party, as one of the defendants. The Court agreed to hear this case though it had refused to hear previous challenges to the “county unit” system in the past. The Court rules 8-1 that the system violates the Fourteenth Amendment, which grants equal protection under the law. In the majority opinion, Justice William O. Douglas writes, “The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.” The lone dissenter, Justice John Marshall Harlan II, says the case should be sent back to lower courts for retrial. [American Civil Liberties Union, 2012]

Entity Tags: William O. Douglas, James H. Gray, James Sanders, US Supreme Court, John Marshall Harlan II

Category Tags: Court Procedures and Verdicts, Election, Voting Laws and Issues, Voting Rights

The US Supreme Court applies the concept of “one person, one vote” (see March 18, 1963) to legislative bodies. The Court, ruling in Reynolds v. Sims, forces Alabama to redraw legislative boundaries that had remained unchanged since 1900 (see March 26, 1962). The Court rules that “the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights,” finding that Alabama’s legislative boundaries unfairly underrepresented minority voters. [American Civil Liberties Union, 2012]

Entity Tags: US Supreme Court

Category Tags: Court Procedures and Verdicts, Election, Voting Laws and Issues, Voting Rights

Deputy Cecil Price and Sheriff Lawrence Rainey lounge in the courtroom during a hearing on charges brought against them in the murders of three civil rights workers. Rainey is chewing tobacco.Deputy Cecil Price and Sheriff Lawrence Rainey lounge in the courtroom during a hearing on charges brought against them in the murders of three civil rights workers. Rainey is chewing tobacco. [Source: University of Missouri-Kansas City]A federal grand jury in Jackson, Mississippi, indicts 19 Ku Klux Klan members and others for the 1964 murders of three civil rights workers, James E. Chaney, Andrew Goodman, and Michael Schwerner. The indictments mark the first time in Mississippi history that white men have faced serious charges for committing race-related crimes. Deputy Sheriff Cecil Price will be sentenced to six years in jail. KKK leader Sam Bowers and KKK member Wayne Roberts will receive 10 years apiece. [American Civil Liberties Union, 2012] Investigators conclude that Bowers, the Imperial Wizard of the White Knights of the Ku Klux Klan of Mississippi, instigated the murders of Chaney, Goodman, and Schwerner. Klan members had attempted to kidnap Schwerner on June 16, 1964, but when they were unable to find him, instead set fire to a black church and systematically beat a group of black churchgoers. Schwerner, along with Chaney and Goodman, were in Ohio at the time and returned to Mississippi after hearing of the incident. Both Price and his superior, Neshoba County Sheriff Lawrence Rainey, are members of the KKK, and have a reputation for being “tough” on blacks, and officials of the Congress of Racial Equality (CORE), the organization that sponsors the three civil rights workers, were worried about their safety. On June 21, while asking about the fire and the beatings, the three workers were notified that a group of white men was looking for them. They were arrested by Price while driving to the CORE offices in Meridian, allegedly on suspicion of being involved in the church arson, and taken to the Neshoba County jail. Price met with KKK recruiter (kleagle) Edgar Ray Killen to discuss what to do with the three. Price and the other police officers pretended to release the three, and let them drive away, but Price followed them in his police cruiser. Price pulled the car carrying the three over, placed them in his police cruiser, and drove them down a lonely dirt road, followed by at least a dozen Klan members. The three were beaten by the various Klan members, then shot to death by Klan member Wayne Roberts. The bodies were taken to a dam site at a nearby farm and buried under tons of dirt by earthmoving equipment. It is almost certain that Price informed Rainey of the murders and the burials upon returning to his office. Justice Department and FBI agents began investigating the disappearance of the three workers (giving the case the name “Mississippi Burning,” or MIBURN), and soon found the burned-out hulk of the station wagon driven by Chaney during the three’s final moments. Federal agents found it difficult to find witnesses willing to talk, but FBI agent John Proctor found that children were often knowledgeable and willing to speak in return for candy. A $30,000 reward offering led agents to the buried bodies. Informants from within the Klan itself finally broke open the case, particularly John Jordan, a Meridian speakeasy owner who cooperated with agents rather than face a long prison term. In December 1964, 19 men, including Price, Bowers, Roberts, and Killen, were arrested and charged under Mississippi law. Initially, a US commissioner threw out all of the charges against the 19, claiming that no evidence linked them to the crimes, but the 19 will be charged under federal laws instead. Segregationist Judge William Harold Cox will again dismiss the charges against all but Rainey and Price, but the US Supreme Court will reinstate the charges in February 1966. Cox will impose the extraordinarily lenient sentences, and will later say, “They killed one n_gger, one Jew, and a white man—I gave them all what I thought they deserved.” Price will only serve four years of his sentence before rejoining his family in Philadelphia, Mississippi. In 1999, Mississippi will reopen the investigation, and in 2005 will reindict Killen, who escaped conviction in the first trial because of the jury’s refusal to “convict a preacher.” Killen will be sentenced to 60 years in jail on three counts of manslaughter. [Douglas O. Linder, 2005]

Entity Tags: Sam Bowers, US Department of Justice, William Harold Cox, Wayne Roberts, US Supreme Court, Michael Schwerner, Ku Klux Klan, John Proctor, Lawrence Rainey, Congress of Racial Equality, Andrew Goodman, Edgar Ray Killen, James E. Chaney, Federal Bureau of Investigation, John Jordan, Cecil Price

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Detainments in US

President Lyndon Johnson signs the Voting Rights Act (VRA) into law. Based on the Fifteenth Amendment (see February 26, 1869), the VRA is a potent set of statutes that permanently bars direct barriers to political participation by racial and ethnic minorities. It bans any election practice that denies the right to vote due to race, and requires areas with a history of racial discrimination to get federal approval of changes in their election laws before they can take effect. The VRA forbids literacy tests (see 1896, April 25, 1898, and June 8, 1959) and other barriers to registration that have worked to stop minority voters from exercising their rights (see 1888, June 21, 1915, and February 4, 1964). Sections 2 and 5 of the VRA work together to prohibit states from establishing voting qualifications or standards that interfere with a citizen’s right to vote on a racial basis. Section 5 requires states with a history of racial discrimination to obtain “preclearance” from the Justice Department before altering any laws pertaining to voting—this includes changing electoral districts, voter qualification rules, and even changes in government structure such as making a formerly elective office appointive. If the changes can be seen as possibly “diluting” minority voting strength, they can be disallowed. States wishing to challenge the VRA restrictions have the opportunity to have their cases heard in federal court. Section 2 has similar, if less restrictive, provisions that apply nationally. Section 10 of the VRA takes direct aim at the Breedlove ruling from the Supreme Court (see December 6, 1937), which had legitimized poll taxes used to disenfranchise minority voters. That portion of the VRA finds that poll taxes “impose… unreasonable financial hardship” and “precludes persons of limited means from voting.” The VRA also forbids the use of literacy tests, good character tests, and other such tests used in the past to suppress minority voting. The law urges the attorney general to urge the Court to overrule Breedlove; minutes after Johnson signs the bill into law, he directs the attorney general “to file a lawsuit challenging the constitutionality of the poll tax.” The Court will find poll taxes unconstitutional in its Harper v. Virginia Board of Elections ruling (see March 24, 1966). The US Department of Justice and the federal courts now have the power to monitor problem jurisdictions and assist private citizens in seeking redress through the courts if their voting rights are infringed. Months later, the Supreme Court will uphold the constitutionality of the VRA. [eNotes, 2004; American Civil Liberties Union, 2012; Yale Law School, 2/8/2012]

Entity Tags: US Supreme Court, Voting Rights Act of 1965, Lyndon B. Johnson

Category Tags: Court Procedures and Verdicts, Election, Voting Laws and Issues, Voting Rights

The US Supreme Court, in the case of Harper v. Virginia Board of Elections, finds Virginia’s law upholding “poll taxes” to be unconstitutional. The 7-2 decision finds that poll taxes—fees demanded of voters, which have been used for over a century to disenfranchise minority voters (see February 4, 1964 and December 6, 1937)—violate the Constitution by imposing discriminatory restrictions on voting. Justice William O. Douglas writes the majority opinion, with Justice Hugo Black and John Marshall Harlan II dissenting. Douglas cites the landmark Brown v. Board decision (see May 17, 1954) and the recently passed Voting Rights Act (see August 6, 1965) in his ruling. [Legal Information Institute, 2011]

Entity Tags: Hugo Black, William O. Douglas, US Supreme Court, John Marshall Harlan II

Category Tags: Court Procedures and Verdicts, Election, Voting Laws and Issues, Voting Rights

The California Supreme Court, ruling in the case of Otsuka v. Hite, provides a strict interpretation of the phrase “infamous crimes” in the state Constitution. That phrase has been used to strip citizens convicted of “infamous crimes” of the right to vote (see 1802-1857). The California high court rules that only those “deemed to constitute a threat to the integrity of the elective process” should be disenfranchised. [Otsuka v. Hite, 5/24/1966 pdf file; ProCon, 10/19/2010]

Entity Tags: California Supreme Court

Category Tags: Voting Rights, Court Procedures and Verdicts, Election, Voting Laws and Issues, Voter Fraud/Disenfranchisement

A federal appeals court rules in Green v. Board of Elections of New York that New York State’s criminal disenfranchisement statutes (see 1802-1857) are legal under the state Constitution. The ruling finds that “a man who breaks the laws he has authorized his agent to make for his own governance could fairly have been thought to have abandoned the right to participate in further administering the compact.… It can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing the legislators who make the laws.” The New York Supreme Court will uphold the verdict. [Green v. Board of Elections of New York, 6/13/1967 pdf file; ProCon, 10/19/2010]

Entity Tags: New York Supreme Court

Category Tags: Voting Rights, Court Procedures and Verdicts, Election, Voting Laws and Issues, Voter Fraud/Disenfranchisement

At the behest of President Nixon (see June 15, 1971), the Justice Department files a motion with the US District Court in New York requesting a temporary restraining order and an injunction against the New York Times to prevent further publication of articles stemming from the “Pentagon Papers” (see June 13, 1971). The landmark case of New York Times Company v. United States begins. The government’s argument is based on the assertion that the publication of the documents jeopardizes national security, makes it more difficult to prosecute the Vietnam War, and endangers US intelligence assets. The Times will base its defense on the principles embodied in the First Amendment, as well as the argument that just because the government claims that some materials are legitimately classified as top secret, this does not mean they have to be kept out of the public eye; the Times will argue that the government does not want to keep the papers secret to protect national security, but instead to protect itself from embarrassment and possible criminal charges. The court grants the temporary restraining order request, forcing the Times to temporarily stop publishing excerpts from the documents. [Herda, 1994; Moran, 2007]

Entity Tags: New York Times, Richard M. Nixon, US Department of Justice

Timeline Tags: Nixon and Watergate

Category Tags: Court Procedures and Verdicts, Government Classification

The Supreme Court rules 6-3 not to permanently enjoin the New York Times and other press organs from publishing articles derived from the Pentagon Papers (see June 26, 1971). Three justices, William O. Douglas, Hugo Black, and Thurgood Marshall, insist that the government can never suppress the publication of information no matter what the threat to national security; the other three in the majority, Potter Stewart, Byron White, and William Brennan, use a more moderate “common sense” standard that says, though the government can suppress publication of sensitive information under circumstances of war or national emergency, this case did not meet the criteria for such suppression. Chief Justice Warren Burger is joined by Harry Blackmun and John Harlan in dissenting; they believe that the president has the unrestrained authority to prevent confidential materials affecting foreign policy from being published. The Times’s lawyer says that the ruling will help ensure that a federal court will not issue a restraining order against a news outlet simply because the government is unhappy with the publication of a particular article. [Herda, 1994]

Entity Tags: Thurgood Marshall, Harry Blackmun, Byron White, Hugo Black, John Harlan, New York Times, Potter Stewart, William O. Douglas, Warren Burger, William Brennan, US Supreme Court

Timeline Tags: Nixon and Watergate

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Government Classification

The US Supreme Court overturns Tennessee’s “Duration Residency” law that prohibits some residents from voting. In the case of Dunn v. Blumstein, Tennessee’s law requiring voters to live in the state for a year before voting, and in a given county for 90 days before voting, is challenged. Tennessee law requires voters to register 30 days before an election in order to vote in that election, but has more stringent residency requirements. A lower court held the law unconstitutional because it interfered with a citizen’s right to vote and created what the court called a “suspect” classification of citizens, resulting in some Tennessee residents being unfairly penalized. Tennessee’s position is that the requirements are needed to ensure the integrity of voting, and to ensure that voters are knowledgeable about what they are voting on. The Supreme Court finds that the “durational residency” requirements violate the Equal Protection Clause of the Fourteenth Amendment. [American Civil Liberties Union, 2012; US Supreme Court Center, 2012]

Entity Tags: US Supreme Court

Category Tags: Court Procedures and Verdicts, Election, Voting Laws and Issues, Voting Rights

The US Supreme Court, in what becomes informally known as the “Keith case,” upholds, 8-0, an appellate court ruling that strikes down warrantless surveillance of domestic groups for national security purposes. The Department of Justice had wiretapped, without court warrants, several defendants charged with destruction of government property; those wiretaps provided key evidence against the defendants. Attorney General John Mitchell refused to disclose the source of the evidence pursuant to the “national security” exception to the Omnibus Crime Control and Safe Streets Act of 1968. The courts disagreed, and the government appealed the decision to the Supreme Court, which upheld the lower courts’ rulings against the government in a unanimous verdict. The Court held that the wiretaps were an unconstitutional violation of the Fourth Amendment, establishing the judicial precedent that warrants must be obtained before the government can wiretap a US citizen. [US Supreme Court, 6/19/1972; Bernstein and Woodward, 1974, pp. 258-259] Critics of the Nixon administration have long argued that its so-called “Mitchell Doctrine” of warrantlessly wiretapping “subversives” has been misused to spy on anyone whom Nixon officials believe may be political enemies. [Bernstein and Woodward, 1974, pp. 258-259] As a result of the Supreme Court’s decision, Congress passes the Foreign Intelligence Surveillance Act. [John Conyers, 5/14/2003]
Opinion of Justice Powell - Writing for the Court, Justice Lewis Powell observes: “History abundantly documents the tendency of Government—however benevolent and benign its motives—to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the government attempts to act under so vague a concept as the power to protect ‘domestic security.’ Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.” [US Supreme Court, 6/19/1972]
Justice Department Wiretapped Reporters, Government Officials - In February 1973, the media will report that, under the policy, the Justice Department had wiretapped both reporters and Nixon officials themselves who were suspected of leaking information to the press (see May 1969 and July 26-27, 1970), and that some of the information gleaned from those wiretaps was given to “Plumbers” E. Howard Hunt and G. Gordon Liddy for their own political espionage operations. [Bernstein and Woodward, 1974, pp. 258-259]
Conyers Hails Decision 30 Years Later - In 2003, Representative John Conyers (D-MI) will say on the floor of the House: “Prior to 1970, every modern president had claimed ‘inherent Executive power’ to conduct electronic surveillance in ‘national security’ cases without the judicial warrant required in criminal cases by the Fourth Amendment to the Constitution. Then Attorney General John Mitchell, on behalf of President Richard Nixon sought to wiretap several alleged ‘domestic’ terrorists without warrants, on the ground that it was a national security matter. Judge [Damon] Keith rejected this claim of the Sovereign’s inherent power to avoid the safeguard of the Fourth Amendment. He ordered the government to produce the wiretap transcripts. When the Attorney General appealed to the US Supreme Court, the Court unanimously affirmed Judge Keith. The Keith decision not only marked a watershed in civil liberties protection for Americans. It also led directly to the current statutory restriction on the government’s electronic snooping in national security cases.” [John Conyers, 5/14/2003]

Entity Tags: Lewis Powell, US Supreme Court, John Mitchell, E. Howard Hunt, US Department of Justice, G. Gordon Liddy, ’Plumbers’, Damon Keith, Richard M. Nixon

Timeline Tags: Nixon and Watergate

Category Tags: Court Procedures and Verdicts, Impositions on Rights and Freedoms, Government Acting in Secret, Other Surveillance, NSA Wiretapping / Stellar Wind

In the case of Pipefitters Local Union No. 562 et al v. US, the Supreme Court overturns a criminal conviction of the Pipefitters Union for violating the Smith-Connally Act (see June 25, 1943) and the Federal Corrupt Practices Act (FCPA—see 1925). That law bans labor unions from contributing to political campaigns, and Pipefitters Union officials had administered a political action committee (see 1944). The Court, citing the newly passed Federal Election Campaign Act (FECA—see February 7, 1972), overturns the conviction, ruling that FECA “plainly permits union officials to establish, administer, and solicit contributions for a political fund.” The decision is later codified by the amendments to the law (see 1974). [Campaign Finance Timeline, 1999; US Supreme Court Center, 2012]

Entity Tags: Pipefitters Union, US Supreme Court, Federal Election Campaign Act of 1972

Category Tags: Campaign Finance, Court Procedures and Verdicts

Headline from the New York Times regarding the ‘Roe’ decision.Headline from the New York Times regarding the ‘Roe’ decision. [Source: RubeReality (.com)]The US Supreme Court, in a 7-2 decision, legalizes abortion on a federal level in the landmark case of Roe v. Wade. The majority opinion is written by Justice Harry Blackmun; he is joined by Chief Justice Warren Burger and Justices William O. Douglas, William Brennan, Potter Stewart, Thurgood Marshall, and Lewis Powell. Justices Byron “Whizzer” White and William Rehnquist dissent from the opinion. Blackmun’s majority opinion finds that the 14th Amendment’s guarantees of personal liberty and previous decisions protecting privacy in family matters include a woman’s right to terminate her pregnancy. White’s dissent argues that the Court has “fashion[ed] and announce[d] a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invest[ed] that right with sufficient substance to override most existing state abortion statutes.” The decision does not make abortion freely available to women in any stage of pregnancy. It places the following constraints:
bullet No restrictions on availability are made during the first trimester (three months) of a woman’s pregnancy.
bullet Because of increased risks to a woman’s health during the second trimester, the state may regulate the abortion procedure only “in ways that are reasonably related to maternal health.”
bullet In the third and final trimester, since the rate of viability (live birth) is markedly greater than in the first two trimesters, the state can restrict or even prohibit abortions as it chooses, “except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
Originally brought to challenge a Texas law prohibiting abortions, the decision disallows a host of state and federal restrictions on abortion, and sparks an enormous controversy over the moral, religious, and legal viability of abortion that continues well into the 21st century. [ROE v. WADE, 410 US 113 (1973), 1/22/1973; CNN, 1/22/2003; National Abortion Federation, 2010] In a related case, Roe v. Bolton, the Court strikes down restrictions on facilities that can be used to provide abortions. The ruling leads to the establishment of so-called “abortion clinics.” [CBS News, 4/19/2007]

Entity Tags: Potter Stewart, Byron White, Lewis Powell, Harry Blackmun, William Rehnquist, US Supreme Court, William O. Douglas, Warren Burger, William Brennan, Thurgood Marshall

Timeline Tags: US Health Care

Category Tags: Court Procedures and Verdicts, Privacy

The US Supreme Court rules in Richardson v. Ramirez that states may deny convicted felons the right to vote. The case originated when felons who had completed their sentences sued the California secretary of state and election officials, challenging a state constitutional provision and related statutes that permanently denied them the right to vote unless their rights were restored, on an individual basis, by court order or executive pardon. The burden is generally on the state to show a “compelling state interest” in denying a citizen the right to vote. The plaintiffs argued that California had no compelling state interest in denying them their right to vote. The plaintiffs won their case in California’s Supreme Court. However, the US Supreme Court rules that a state does not have to prove that its felony disfranchisement laws serve a compelling state interest. The Court finds that the Fourteenth Amendment exempts felony disenfranchisement laws from the burden placed on states in voting rights matters. [American Civil Liberties Union, 2012; RICHARDSON v. RAMIREZ, 418 US 24 (1974), 2012] The Court writes: “[I]t is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened one, presumably the people of the State of California will ultimately come around to the view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument.” [ProCon, 10/19/2010; RICHARDSON v. RAMIREZ, 418 US 24 (1974), 2012]

Entity Tags: US Supreme Court, California Supreme Court

Category Tags: Voting Rights, Court Procedures and Verdicts, Election, Voting Laws and Issues, Voter Fraud/Disenfranchisement

The Supreme Court case Buckley v. Valeo, filed by Senator James L. Buckley (R-NY) and former Senator Eugene McCarthy (D-WI) against the Secretary of the Senate, Francis R. Valeo, challenges the constitutionality of the Federal Election Campaign Act (FECA—see February 7, 1972 and 1974) on free-speech grounds. The suit also named the Federal Election Commission (FEC) as a defendant. A federal appeals court validated almost all of FECA, and the plaintiffs sent the case to the Supreme Court. The Court upholds the contribution limits set by FECA because those limits help to safeguard the integrity of elections. However, the court overrules the limits set on campaign expenditures, ruling: “It is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions… limit political expression at the core of our electoral process and of First Amendment freedoms.” One of the most important aspects of the Supreme Court’s ruling is that financial contributions to political campaigns can be considered expressions of free speech, thereby allowing individuals to essentially make unrestricted donations. The Court implies that expenditure limits on publicly funded candidates are allowable under the Constitution, because presidential candidates may disregard the limits by rejecting public financing (the Court will affirm this stance in a challenge brought by the Republican National Committee in 1980).
Provisions of 'Buckley' - The Court finds the following provisions constitutional:
bullet Limitations on contributions to candidates for federal office;
bullet Disclosure and record-keeping provisions; and
bullet The public financing of presidential elections.
However, the Court finds these provisions unconstitutional:
bullet Limitations on expenditures by candidates and their committees, except for presidential candidates who accept public funding;
bullet The $1,000 limitation on independent expenditures;
bullet The limitations on expenditures by candidates from their personal funds; and
bullet The method of appointing members of the FEC, holding that as the method stands, it violates the principle of separation of powers.
In May 1976, following the Court’s ruling, the FEC will reconstitute its board with six presidential appointees after Senate confirmation. [Federal Elections Commission, 3/1997; Federal Elections Commission, 1998; Campaign Finance Timeline, 1999; Center for Responsive Politics, 2002 pdf file; Casebriefs, 2012]
No Clear Authors - The opinion is labeled per curiam, a term usually reserved for brief and minor Court decisions when authorship of an opinion is less relevant. It is unclear exactly which Justices write the opinion. Most Court observers believe Justice William Brennan writes the bulk of the opinion, but Brennan’s biographers will later note that sections of the opinion are authored by Chief Justice Warren Burger and Justices Potter Stewart, Lewis Powell, and William Rehnquist. The opinion is an amalgamation of multiple authors, reflecting the several compromises made in the resolution of the decision. [New Yorker, 5/21/2012]
Criticism of 'Buckley' - Critics claim that the ruling enshrines the principle of “money equals speech.” The ruling also says that television and radio advertisements that do not expressly attack an individual candidate can be paid for with “unregulated” funds. This leads organizations to begin airing “attack ads” that masquerade as “issue ads,” ostensibly promoting or opposing a particular social or political issue and avoiding such words as “elect” or “defeat.” [National Public Radio, 2012] In 1999, law professor Burt Neuborne will write: “Buckley is like a rotten tree. Give it a good, hard push and, like a rotten tree, Buckley will keel over. The only question is in which direction.” Neuborne will write that his preference goes towards reasonable federal regulations of spending and contributions, but “any change would be welcome” in lieu of this decision, and even a completely deregulated system would be preferable to Buckley’s legal and intellectual incoherence. [New York Times, 5/3/2010] In 2011, law professor Richard Hasen will note that while the Buckley decision codifies the idea that contributions are a form of free speech, it also sets strict limitations on those contributions. Calling the decision “Solomonic,” Hasen will write that the Court “split the baby, upholding the contribution limits but striking down the independent spending limit as a violation of the First Amendment protections of free speech and association.” Hasen will reflect: “Buckley set the main parameters for judging the constitutionality of campaign finance restrictions for a generation. Contribution limits imposed only a marginal restriction on speech, because the most important thing about a contribution is the symbolic act of contributing, not the amount. Further, contribution limits could advance the government’s interest in preventing corruption or the appearance of corruption. The Court upheld Congress’ new contribution limits. It was a different story with spending limits, which the Court said were a direct restriction on speech going to the core of the First Amendment. Finding no evidence in the record then that independent spending could corrupt candidates, the Court applied a tough ‘strict scrutiny’ standard of review and struck down the limits.” [Slate, 10/25/2011] In 2012, reporter and author Jeffrey Toobin will call it “one of the Supreme Court’s most complicated, contradictory, incomprehensible (and longest) opinions.” [New Yorker, 5/21/2012]

Entity Tags: Federal Election Campaign Act of 1972, Federal Election Commission, James Buckley, Jeffrey Toobin, US Supreme Court, Eugene McCarthy, Lewis Powell, Potter Stewart, Burt Neuborne, William Rehnquist, Warren Burger, Richard L. Hasen, William Brennan

Category Tags: Campaign Finance, Freedom of Speech / Religion, Court Procedures and Verdicts, Election, Voting Laws and Issues

Amendments to the 1971 Federal Election Campaign Act (FECA—see February 7, 1972 and 1974) passed by Congress after the controversial Buckley ruling by the Supreme Court (see January 30, 1976) bring FECA into conformity with the Court’s decision. The amendments repeal expenditure limits except for presidential candidates who accept public funding, and revise the provisions governing the appointment of commissioners to the Federal Election Commission (FEC). The amendments also limit the scope of PAC fundraising by corporations and labor unions. The amendments limit individual contributions to national political parties to $20,000 per year, and individual contributions to a PAC to $5,000 per year. [Federal Elections Commission, 1998; Center for Responsive Politics, 2002 pdf file] However, the Constitution restricts what Congress can, or is willing, to do, and the amendments are relatively insignificant. [Campaign Finance Timeline, 1999]

Entity Tags: Federal Election Commission, Federal Election Campaign Act of 1972, US Supreme Court

Category Tags: Court Procedures and Verdicts, Election, Voting Laws and Issues

The Supreme Court, in the case of First National Bank of Boston v. Bellotti, rules 5-4 that corporations have the First Amendment right to make contributions in order to influence political processes. Writing for the majority, Justice Lewis Powell finds that under the recent Buckley ruling (see January 30, 1976), corporate political donations are protected speech. Powell’s opinion finds that a Massachusetts criminal statute prohibiting corporations from spending money for the purpose of “influencing or affecting” voters’ opinions is not legitimate. The split among the justices is unusual, with Powell, a conservative, being joined by two more conservatives, Chief Justice Warren Burger and Potter Stewart, and liberals Harry Blackmun and John Paul Stevens. The four dissenters are liberals William Brennan and Thurgood Marshall, and conservatives Byron White and William Rehnquist. [FIRST NATIONAL BANK OF BOSTON v. BELLOTTI, 2012; Moneyocracy, 2/2012] Rehnquist’s standalone dissent advocates for far stricter controls on corporate spending in elections than most of the other justices’ dissents, with Rehnquist writing that such spending could “pose special dangers in the political sphere.” [Reclaim Democracy, 4/26/1978; FIRST NATIONAL BANK OF BOSTON v. BELLOTTI, 2012]

Entity Tags: Lewis Powell, Byron White, John Paul Stevens, William Rehnquist, Warren Burger, Harry Blackmun, William Brennan, US Supreme Court, Potter Stewart, Thurgood Marshall

Category Tags: Freedom of Speech / Religion, Campaign Finance, Court Procedures and Verdicts

The US Supreme Court guts a significant portion of the Voting Rights Act (VRA—see August 6, 1965, 1970, and 1975) by ruling that voters must prove racially discriminatory intent in order to prevail in litigation under the VRA. In the case of City of Mobile v. Bolden, the Court rules 6-3 that the previous standard of proving discriminatory results is no longer adequate. Disenfranchised voters must now prove intent, a far higher standard, before receiving redress. The case originates in Mobile, Alabama’s practice of electing city commissioners under an at-large voting scheme. No African-American had ever been elected to the commission, and a number of Mobile citizens challenged the constitutionality of the at-large scheme. The Court found that at-large schemes such as that employed by the city of Mobile only violate the Constitution if they deliberately serve to minimize or cancel out the voting potential of minorities. Justice Potter Stewart, writing for the plurality, finds that the right to equal participation in the electoral process is aimed not for the protection of any political group. Moreover, he writes that the evidence fails to show that Mobile operates a voting system with the intent to discriminate. The conservative justices largely side with Stewart. The liberals are split. Justices Harry Blackmun and John Paul Stevens concur with Stewart’s ruling for different reasons than those expressed by Stewart. Justices William Brennan, Thurgood Marshall, and Byron White dissent, with Brennan and White arguing that the burden of proof had been met, and Marshall arguing that the burden of proof should be on Mobile to show that it refused to modify its voting scheme despite the evidence of discrimination. [MOBILE v. BOLDEN, 446 US 55 (1980), 4/22/1980 pdf file; Casebriefs, 2012; American Civil Liberties Union, 2012]

Entity Tags: John Paul Stevens, Byron White, Harry Blackmun, William Brennan, Potter Stewart, Voting Rights Act of 1965, US Supreme Court, Thurgood Marshall

Category Tags: Campaign Finance, Court Procedures and Verdicts, Election, Voting Laws and Issues, Voter Fraud/Disenfranchisement

Congress passes the Competition in Contracting Act. President Reagan signs the bill but issues a signing statement instructing the executive branch that a portion of the bill is unconstitutional, and directs agencies not to obey the law created by that section. A losing bidder who would have won a contract under that portion of the bill files a lawsuit, and a federal judge rules that the Reagan administration has no choice but to follow the entirety of the law. Attorney General Edwin Meese insists that the executive branch has the inherent power to interpret the Constitution as it sees fit, and declares the administration will not obey the judge’s ruling. An appeals court upholds the judge’s ruling and criticizes the Reagan administration for trying to seize a sort of line-item veto power without going through Congress. The House Judiciary Committee votes to cut off funding for Meese’s office unless the White House obeys the court rulings, and Meese withdraws his objections. [Savage, 2007, pp. 231-232]

Entity Tags: Ronald Reagan, House Judiciary Committee, Edwin Meese, Reagan administration

Category Tags: Court Procedures and Verdicts, Expansion of Presidential Power

The DC Court of Appeals rejects a claim by civilian plaintiffs to force the government to disclose classified information as part of a lawsuit, citing the “state secrets” privilege (see March 9, 1953). Furthermore, the court broadens the definition of “state secrets” to include “disclosure of intelligence-gathering methods or capabilities and disruption of diplomatic relations.” [Siegel, 2008, pp. 197]

Category Tags: Court Procedures and Verdicts, Expansion of Presidential Power, Government Acting in Secret, Government Classification, State Secrets

The Supreme Court, in the case of Federal Election Commission v. NCPAC, rules that political action committees (PACs) can spend more than the $1,000 mandated by federal law (see February 7, 1972, 1974, and May 11, 1976). The Democratic Party and the FEC argued that large expenditures by the National Conservative Political Action Committee (NCPAC) in 1975 violated the Federal Election Campaign Act (FECA), which caps spending by independent political action committees in support of a publicly funded presidential candidate at $1,000. The Court rules 7-2 in favor of NCPAC, finding that the relevant section of FECA encroaches on the organization’s right to free speech (see January 30, 1976). Justice William Rehnquist writes the majority opinion, joined by fellow conservatives Chief Justice Warren Burger, Sandra Day O’Connor, and Lewis Powell, and liberals Harry Blackmun, John Paul Stevens, and William Brennan. Justices Byron White and Thurgood Marshall dissent from the majority. [Oyez (.org), 2012; Moneyocracy, 2/2012]

Entity Tags: Federal Election Commission, William Brennan, William Rehnquist, Byron White, Federal Election Campaign Act of 1972, US Supreme Court, Warren Burger, Sandra Day O’Connor, Harry Blackmun, John Paul Stevens, Thurgood Marshall, National Conservative Political Action Committee, Democratic Party, Lewis Powell

Category Tags: Freedom of Speech / Religion, Campaign Finance, Court Procedures and Verdicts

In the case of Hunter v. Underwood, the US Supreme Court rules that states have the right to legally strip convicted criminals of the right to vote as long as no “racially discriminatory intent” is in effect, and strikes down a portion of Alabama law that is found to be discriminatory. The Court rules unanimously, 8-0 (Justice Lewis Powell does not participate in the case). The two plaintiffs—one black and one white—were barred from voting in Alabama after being charged with a misdemeanor crime, and filed a lawsuit against the state. A district court ruled against them, denying that Alabama’s Constitution disenfranchises citizens convicted of crimes in a discriminatory fashion (see 1802-1857 and 1901). The Supreme Court overturns that decision, finding that Alabama’s law violates the Fourteenth Amendment. The fact that the relevant portion of the Alabama Constitution “may have been adopted to discriminate against poor whites as well as against blacks would not render nugatory the purpose to discriminate against blacks, it being clear that the latter was a ‘but-for’ motivation.… There is no evidence that the disenfranchisement of those convicted of crimes involving moral turpitude was a motivating purpose of the 1901 Convention” (referring to the 1901 revision of the Alabama Constitution to use disenfranchisement as a tool to prevent blacks from voting—see 1901). [Hunter v. Underwood - 471 US 222 (1985), 4/16/1985; ProCon, 10/19/2010; Oyez (.org), 2012; Marcus McClellan, 5/14/2012]

Entity Tags: US Supreme Court, Lewis Powell

Category Tags: Voting Rights, Court Procedures and Verdicts, Election, Voting Laws and Issues, Voter Fraud/Disenfranchisement

The Supreme Court rules in Federal Election Commission v. Massachusetts Citizens for Life that an anti-abortion organization can print flyers promoting “pro-life” candidates in the weeks before an election, and that the portion of the Federal Election Campaign Act (FECA—see February 7, 1972, 1974, and May 11, 1976) that bars distribution of such materials to the general public restricts free speech. In September 1978, the Massachusetts Citizens For Life (MCFL) spent almost $10,000 printing flyers captioned “Everything You Need to Vote Pro-Life,” which included information about specific federal and state candidates’ positions on abortion rights, along with exhortations to “vote pro-life” and “No pro-life candidate can win in November without your vote in September.” The Federal Election Commission (FEC) ruled that MCFL’s expenditures violated FECA’s ban on corporate spending in connection with federal elections. A Massachusetts district court ruled against the FEC, finding that the flyer distribution “was uninvited by any candidate and uncoordinated with any campaign” and the flyers fell under the “newspaper exemption” of the law. Moreover, the court found, FECA’s restrictions infringed on MCFL’s freedom of speech (see January 30, 1976 and April 26, 1978). An appeals court reversed much of the district court’s decision, but agreed that the named provision of FECA violated MCFL’s free speech rights. The FEC appealed to the Supreme Court. By a 5-4 vote, the Court affirms that FECA’s prohibition on corporate expenditures is unconstitutional as applied to independent expenditures made by a narrowly defined type of nonprofit corporation such as MCFL. The Court writes that few organizations will be impacted by its decision. The majority opinion is written by Justice William Brennan, a Court liberal, and joined by liberal Thurgood Marshall and conservatives Lewis Powell, Antonin Scalia, and (in part) by Sandra Day O’Connor. Court conservatives William Rehnquist and Byron White, joined by liberals Harry Blackmun and John Paul Stevens, dissent with the majority, saying that the majority ruling gives “a vague and barely adumbrated exception [to the law] certain to result in confusion and costly litigation.” [Federal Election Commission, 2011; Moneyocracy, 2/2012]

Entity Tags: Federal Election Commission, William Rehnquist, Antonin Scalia, Federal Election Campaign Act of 1972, US Supreme Court, William Brennan, Sandra Day O’Connor, Harry Blackmun, John Paul Stevens, Thurgood Marshall, Massachusetts Citizens for Life, Byron White, Lewis Powell

Category Tags: Freedom of Speech / Religion, Campaign Finance, Court Procedures and Verdicts

A federal appeals court rules 2-1 in favor of Theodore Olson, the former head of the Justice Department’s Office of Legal Counsel, who has refused to comply with a subpoena issued as part of an independent counsel’s investigation into political interference at the Environmental Protection Agency (EPA). Olson’s position is that the independent counsel is illegal under the Constitution, as interpreted by the so-called “unitary executive theory” (see April 30, 1986). One of the appellate court judges, Carter appointee Ruth Bader Ginsberg, argues that the independent counsel law is perfectly constitutional, and fits with the Founding Fathers’ vision of a system of “checks and balances” among the three governmental branches. But Reagan appointees Laurence Silberman and Stephen Williams outvote Ginsberg. Silberman, who writes the majority opinion, is a longtime advocate of increased executive power, and calls the independent counsel law “inconsistent with the doctrine of a unitary executive.” The Supreme Court will strike down Silberman’s ruling (see June 1988), but the independent counsel will not bring charges against Olson. [Savage, 2007, pp. 46-49]

Entity Tags: Office of Legal Counsel (DOJ), Environmental Protection Agency, Laurence Silberman, Stephen Williams, Theodore (“Ted”) Olson, US Supreme Court, Ruth Bader Ginsberg

Category Tags: Court Procedures and Verdicts, Expansion of Presidential Power

In a 7-1 ruling, the Supreme Court rules that the independent counsel law is Constitutional and valid. The ruling overturns a recent appeals court ruling striking down the law because it conflicts with the “unitary executive” theory of government (see January 1988). The ruling stuns the Reagan administration, who had fiercely argued against the independent counsel law, in part because conservative justice William Rehnquist authors the majority opinion. Only Reagan appointee Antonin Scalia votes in favor of the unitary executive. [Savage, 2007, pp. 46-49]

Entity Tags: Antonin Scalia, US Supreme Court, William Rehnquist, Reagan administration

Category Tags: Court Procedures and Verdicts, Expansion of Presidential Power

Congress reauthorizes the 1965 Voting Rights Act (VRA—see August 6, 1965, 1970, and 1975) for 25 years, until 2014. It also overturns via legislation the Supreme Court’s decision to force voters to prove discriminatory intent before receiving redress (see April 22, 1980). President Reagan signs the bill into law. The reauthorization also adds protections for blind, disabled, and illiterate voters. Reagan calls the right to vote a “crown jewel” of American liberties. [American Civil Liberties Union, 2012]

Entity Tags: Voting Rights Act of 1965, US Congress, Ronald Reagan, US Supreme Court

Category Tags: Campaign Finance, Court Procedures and Verdicts, Election, Voting Laws and Issues

A lawsuit against the FBI’s investigation of a sixth-grade boy and his school project to create an “encyclopedia of the world” is stopped when an appeals court rules that the agency is shielded by the “state secrets” privilege (see March 9, 1953). Unable to secure information from the FBI as to why it investigated him, the child had therefore “failed to sustain his burden of proof [and] the cause of action was properly dismissed.” [Siegel, 2008, pp. 197]

Entity Tags: Federal Bureau of Investigation

Category Tags: Freedom of Speech / Religion, Court Procedures and Verdicts, Government Acting in Secret, State Secrets

The Supreme Court, in the case of Austin v. Michigan Chamber of Commerce, rules that the Michigan Chamber of Commerce (MCC) cannot run newspaper advertisements in support of a candidate for the state legislature because the MCC is subject to the Michigan Campaign Finance Act, which prohibits corporations from using treasury money to support or oppose candidates running for state offices. The Court finds that corporations can use money only from funds specifically designated for political purposes. The MCC holds a political fund separate from its other monies, but wanted to use money from its general fund to buy political advertising, and sued for the right to do so. The case explored whether a Michigan law prohibiting such political expenditures is constitutional. The Court agrees 7-2 that it is constitutional. Justices Antonin Scalia and Anthony Kennedy dissent, arguing that the government should not require such “segregated” funds, but should allow corporations and other such entities to spend their money on political activities without such restraints. [Public Resource (.org), 1990; Casebriefs, 2012; Moneyocracy, 2/2012] The 2010 Citizens United ruling (see January 21, 2010) will overturn this decision, with Scalia and Kennedy voting in the majority, and Kennedy writing the majority opinion.

Entity Tags: Michigan Chamber of Commerce, Anthony Kennedy, Michigan Campaign Finance Act, US Supreme Court, Antonin Scalia

Category Tags: Campaign Finance, Impositions on Rights and Freedoms, Court Procedures and Verdicts

A US appellate court refuses to find a number of military contractors liable in the death of Earl Patton Ryals, who died with 36 of his fellow crewmen in the Iraqi attack on the USS Stark (see May 17, 1987 and After). Ryals’s estate claims that he and his fellows died in part because of negligence on the part of the contractors who designed, manufactured, tested, and marketed the weapons system on board the Stark, including the Phalanx anti-missile system. In turning down the estate’s claim, the court cites the government’s “state secrets” privilege (see March 9, 1953), saying that the facts of the issue could not be resolved without examining classified Navy documents. And even without this reason, the court rules, Ryals’s estate cannot see the documents because the case presents “a political question” about military decision-making that is not subject to judicial review. [Zuckerbraun v. General Dynamics Corp., 6/13/1991; Siegel, 2008, pp. 197-198] A year later, a similar case will be dismissed on the grounds that a trial might conceivably reveal “state secrets” (see September 16, 1992).

Entity Tags: Earl Patton Ryals, US Department of the Navy

Category Tags: Court Procedures and Verdicts, Government Acting in Secret, Government Classification, State Secrets

A federal appeals court upholds the dismissal of a lawsuit filed on behalf of 23 Navy sailors killed in the attack on the USS Stark (see May 17, 1987 and After) against a number of defense contractors. A similar lawsuit on behalf of one of the sailors killed in the attack was dismissed a year before (see June 13, 1991). This time the plaintiffs file over 2,500 pages of unclassified documentary evidence supporting their claims that the contractors were negligent in their design and implementation of the weapons systems aboard the Stark. The appeals court finds that regardless of the amount of evidence entered, to allow the trial would be to potentially infringe on the US government’s “state secrets” privilege (see March 9, 1953). “[N]o amount of effort could safeguard the privileged information,” the court rules. The court adds that “classified and unclassified information cannot always be separated, and therefore courts must restrict access not only to classified material, but to “those pieces of evidence” that “press so closely upon highly sensitive material that they create a hgh risk of inadvertent or indirect disclosures.” [Siegel, 2008, pp. 198]

Entity Tags: US Department of the Navy

Category Tags: Court Procedures and Verdicts, Government Acting in Secret, Government Classification, State Secrets

In the case of Shaw v. Reno, the US Supreme Court rules 5-4 that white residents in majority-black electoral districts can file lawsuits to challenge the drawing of those districts if they feel “traditional redistricting principles” were subordinated to racial concerns. The Court rules that legislative districts drawn to comply with the Voting Rights Act (VRA—see June 29, 1989) cannot consider race any more than is necessary, and must not be “bizarrely shaped.” The case turned on efforts by the North Carolina General Assembly (NCGA) to redistrict the state in an unusually irregular fashion; the plaintiffs brought suit charging that the only possible reason North Carolina could have had in such a redistricting was to segregate races for the purpose of voting. After the 1990 census, North Carolina earned a 12th seat in the US House of Representatives. The NCGA drew up a new map that created a majority-black district, and, after the attorney general objected to the mapping under Section 5 of the VRA, redrew the map to create a second majority-black district. The plaintiffs called the map an example of unlawful gerrymandering. The Court agrees that the redistricting is unlawful gerrymandering, and sends the case back to the NCGA for new mapping. Redistricting can use race as a factor without overtly discriminating against a particular race, the Court finds, but the irregular, “bizarrely shaped” districts created by the NCGA constitute what is, essentially, “political apartheid.” Justice Sandra Day O’Connor writes the majority opinion, joined by Chief Justice William Rehnquist and Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas. The dissenters include Justices Harry Blackmun, David Souter, John Paul Stevens, and Byron White. The dissenters claim that the plaintiffs failed to present a legitimate claim because they did not claim a cognizable injury. However, the dissenters note, the gerrymandering of the North Carolina districts is apparent, though “benign,” as it was done to, at least some extent, facilitate the election of black representatives to Congress. In 2012, Casebriefs will observe, “This case involved two of the most complex and sensitive issues the Court has faced in recent years: the meaning of the constitutional ‘right’ to vote and the propriety of race-based state legislation designed to benefit members of historically disadvantaged minority groups.” [American Civil Liberties Union, 2012; Casebriefs, 2012; Oyez (.org), 7/21/2012]

Entity Tags: David Souter, Antonin Scalia, Anthony Kennedy, Clarence Thomas, William Rehnquist, Sandra Day O’Connor, US Supreme Court, John Paul Stevens, Harry Blackmun, Byron White, Voting Rights Act of 1965, North Carolina General Assembly

Category Tags: Court Procedures and Verdicts, Election, Voting Laws and Issues

Perry Hooper.Perry Hooper. [Source: Shelby County, Alabama Republican Party]The Business Council of Alabama (BCA), an organization made up of state Republicans and business figures, hires political consultant Karl Rove of Texas to help elect a slate of Republican candidates to the Alabama Supreme Court. Alabama’s Supreme Court has been comprised of Democrats for over a century. However, Rove worked to get a slate of Republicans elected to the Texas Supreme Court a few years ago, and the BCA feels he can do the same thing in Alabama. Of the four Republican candidates for the high court, the most important is retired Judge Perry O. Hooper, an icon among Alabama Republicans. He runs against Democratic incumbent Ernest “Sonny” Hornsby. Until now, judicial races in Alabama have been what Atlantic Monthly reporter Joshua Green will later call “low-key affairs,” with almost no campaigning and judicial candidates often just passing the seats from one to the next. Democrats often ran unopposed for the positions.
Statewide Campaign, 'Jackpot Justice' - Rove brings a harsh, confrontational strategy, characterizing Democrats as pawns of trial lawyers and telling voters tales of outrageous verdicts. Rove has Hooper and the other candidates focus on a single case, that of a wealthy Alabama doctor who sued the car manufacturer BMW after discovering that his new car had been damaged by acid rain before delivery and repainted, diminishing its resale value. The trial revealed that BMW had done this many times before, and rewarded the doctor with $4 million in punitive damages. Alabama Republican political consultant Bill Smith, trained by Rove, will later say: “It was the poster-child case of outrageous verdicts. Karl figured out the vocabulary on the BMW case and others like it that point out not just liberal behavior but outrageous decisions that make you mad as hell.” Hooper and the other judicial candidates campaign relentlessly throughout the state, harping on the case as an example of “jackpot justice” perpetuated by “wealthy personal-injury trial lawyers.” (Green will write that Rove coined those phrases and will use them effectively in other races and other areas.) Rove is also successful at convincing conservative Democrats to abandon their traditional support for Democratic candidates and vote for his Republican candidates. Rove also uses targeted, nuanced language to attract conservative voters. His candidates attack “liberal activist judges” and present themselves as “people who will strictly interpret the law and not rewrite it from the bench.” A Rove staffer will later explain that the term “activist judges” motivates all sorts of people for very different reasons. Green writes: “If you’re a religious conservative, he said, it means judges who established abortion rights or who interpret Massachusetts’s equal-protection clause as applying to gays. If you’re a business conservative, it means those who allow exorbitant jury awards. And in Alabama especially, the term conjures up those who forced integration.” The staffer continues, “The attraction of calling yourself a ‘strict constructionist’ [as Rove has his candidates label themselves] is that you can attract business conservatives, social conservatives, and moderates who simply want a reasonable standard of justice.”
'Dialing for Dollars' Television Ad - Rove highlights the fact that the Democratic justices routinely solicit campaign donations from trial lawyers, while downplaying the Republicans’ solicitations from business interests. He airs one particularly damaging “Dialing for Dollars” television ad, depicting a lawyer receiving an unwanted telephone solicitation from an actor portraying Hornsby. The ad implies that Hornsby will intervene on a case the lawyer has pending. The ad draws considerable attention and criticism, and is featured on NBC Nightly News. The campaign has the desired effect, and the race begins to tighten. Rove escalates, filling the airwaves with negative ads in the last two weeks of the campaign.
Recount, False Stories - When the results are tallied from the November 9 election, Hornsby wins the race for chief justice by an unofficial tally of 304 votes. Rove immediately calls for a recount. A former Rove staffer will later say: “Karl called the next morning. He said: ‘We came real close. You guys did a great job. But now we really need to rally around Perry Hooper. We’ve got a real good shot at this, but we need to win over the people of Alabama.‘… Our role was to try to keep people motivated about Perry Hooper’s election and then to undermine the other side’s support by casting them as liars, cheaters, stealers, immoral—all of that.” Rove successfully obtains the recount, and places campaign workers in each of the polling places to observe the counting, harass the election officials, and find evidence of “voter fraud.” Some legitimate errors are uncovered, such as a probate judge in one county erroneously excluding some 100 votes for Hooper, and voting machines in two other counties failing to tally all the votes. Rove spreads false stories throughout the state about poll watchers being threatened with arrest, probate judges locking themselves in their offices and refusing to meet with campaign workers, votes being cast in absentia on behalf of comatose nursing home patients, and Democrats caught in a cemetery writing down the names of dead people in order to cast votes for them by absentee ballot. On November 12, Hooper declares in a press conference, “We have endured lies in this campaign, but I’ll be damned if I will accept outright thievery.” By November 21, the unofficial tally has Hornsby ahead by only nine votes.
Absentee Ballots Challenged in Court - Hornsby’s campaign fights to include some 2,000 late-arriving absentee ballots that had been excluded, and the campaign goes public with the claim of a man who says his son, serving overseas in the military, is in danger of having his absentee ballot not counted. A Rove staffer will later say: “The last marching order we had from Karl was: ‘Make sure you continue to talk this up. The only way we’re going to be successful is if the Alabama public continues to care about it.’” Initially, a judge rules that the absentee ballots should be counted, and Hooper and Rove, knowing the absentee ballots will give Hornsby the votes he needs to win, take the case to federal court while Rove shellacks the state with advertisements accusing Hornsby of trying to steal the election. The Hooper campaign files lawsuits against each and every probate judge, circuit clerk, and sheriff in Alabama, alleging discrimination. The Alabama Supreme Court, stocked with Democrats, orders the absentee ballots to be counted, while the federal court continues to consider the matter.
Republican Declared Winner - In October 1995, a federal appeals court rules that the absentee ballots cannot be counted, and orders Alabama to certify Hooper as chief justice. Hornsby’s campaign appeals to the US Supreme Court, but the high court refuses to overturn the verdict. With the absentee ballots discarded, Hooper wins the vote tally by 262 votes. Hooper will later tell a reporter, “That Karl Rove was a very impressive fellow.” [Atlantic Monthly, 11/2004]

Entity Tags: Business Council of Alabama, Bill Smith, Alabama Supreme Court, Perry O. Hooper, Joshua Green, Karl C. Rove, Texas Supreme Court, US Supreme Court, Ernest (“Sonny”) Hornsby

Category Tags: Court Procedures and Verdicts, Voter Fraud/Disenfranchisement

The US Supreme Court adds further restrictions to the electoral district mapping procedures adopted in the 1965 Voting Rights Act (VRA—see June 29, 1989). In the case of Miller v. Johnson, the Court rules that Georgia’s majority-black 11th Congressional District is unconstitutional because race was the “predominant factor” in drawing district lines, and that Georgia “subordinated” its traditional redistricting principle to race without a compelling reason (see June 28, 1993). Race, the Court rules, can no longer be a “predominant factor” in crafting electoral districts. [American Civil Liberties Union, 2012]

Entity Tags: Voting Rights Act of 1965, US Supreme Court

Category Tags: Campaign Finance, Court Procedures and Verdicts, Election, Voting Laws and Issues

The Supreme Court rules in the case of Colorado Republican Federal Campaign Committee v. Federal Election Committee. The case originated with advertisements run by the Colorado Republican Party (CRP) in 1986 attacking the Colorado Democratic Party’s likely US Senate candidate. Neither party had yet selected its candidate for that position. The Federal Election Commission (FEC) sued the CRP’s Federal Campaign Committee, saying that its actions violated the “party expenditure provision” of the Federal Election Campaign Act (FECA—see February 7, 1972, 1974, and May 11, 1976) by spending more than the law allows. The CRP in turn claimed that FECA violated its freedom of speech, and filed a counterclaim. A Colorado court ruled in favor of the CRP, dismissing the counterclaim as moot, but an appeals court overturned the lower court’s decision. The Supreme Court rules 7-2 in favor of the FEC. The decision is unusual, lacking a clear majority, but being comprised of a “plurality” of concurrences. The majority opinion, such as it is, is authored by Justice Stephen Breyer, one of the Court liberals, and is joined by fellow liberal David Souter and conservative Sandra Day O’Connor. Conservatives Anthony Kennedy, William Rehnquist, and Antonin Scalia go farther than Breyer’s majority decision, writing that the provision violates the First Amendment when it restricts as a “contribution” a political party’s spending “in cooperation, consultation, or concert, with a candidate.” In yet another concurrence, conservative Clarence Thomas argues that the entire provision is flatly unconstitutional. Liberals John Paul Stevens and Ruth Bader Ginsburg dissent, agreeing with the appeals court. [Oyez (.org), 2011; Moneyocracy, 2/2012] In 2001, the Court will revisit the case and find its initial ruling generally sound, though the later decision will find that some spending restrictions are constitutional. In the revisiting, four of the Court’s five conservatives will dissent, with the liberals joined by O’Connor. [Oyez (.org), 2011; Moneyocracy, 2/2012]

Entity Tags: Colorado Republican Party, Colorado Democratic Party, Antonin Scalia, Anthony Kennedy, US Supreme Court, Stephen Breyer, William Rehnquist, Clarence Thomas, Federal Election Campaign Act of 1972, David Souter, Colorado Republican Party Federal Campaign Committee, Sandra Day O’Connor, Ruth Bader Ginsburg, Federal Election Commission, John Paul Stevens

Category Tags: Campaign Finance, Court Procedures and Verdicts

The US Supreme Court follows up on a 1976 ruling (see March 30, 1976) by finding that electoral redistricting plans can indeed be drawn with racial discrimination in mind, as long as the redistricting does not make conditions worse for minority voters (retrogression). In the case of Reno v. Bossier Parish School Board, the Court rules 5-4 that even if the redistricting violates the Constitution or Section 5 of the Voting Rights Act (VRA—see June 29, 1989), the government can give permission for the redistricting to take place (“preclear”) as long as the ability of minority communities to elect candidates of their choice is not weakened. The Court is split along ideological lines, with the majority opinion written by conservative Justice Antonin Scalia and joined by his fellow conservatives. Scalia writes, “As we have repeatedly noted, in vote-dilution cases [Section 5] prevents nothing but backsliding, and preclearance under [Section 5] affirms nothing but the absence of backsliding.” The four liberals and moderates on the court dissent. Justice David Souter writes, “Now executive and judicial officers of the United States will be forced to preclear illegal and unconstitutional voting schemes patently intended to perpetuate discrimination.” [American Civil Liberties Union, 2012; Oyez (.org), 2012] A 2006 law will invalidate this ruling (see July 27, 2006).

Entity Tags: Voting Rights Act of 1965, Antonin Scalia, US Supreme Court, David Souter

Category Tags: Court Procedures and Verdicts, Election, Voting Laws and Issues, Voter Fraud/Disenfranchisement

Disbarred lawyer and convicted Watergate figure Charles Colson (see June 1974), now the head of the Christian Prison Fellowship ministry, writes that “the Constitution does not give the Supreme Court final say on constitutional questions.” Colson, a traditional social conservative, makes this startling claim in an op-ed about the recent Boerne v. Flores decision of the Court, in which the Court struck down the Religious Freedom Restoration Act (RFRA) as an unconstitutional encroachment on the fundamental concept of the separation of church and state. Colson writes that the decision has “precipitat[ed] what may be the greatest constitutional crisis of our age.” Colson, a supporter of the RFRA, says the striking down of the act makes “religious liberties… once again vulnerable.” The overarching question Colson raises is whether the Supreme Court is the final judicial arbiter of the Constitution. Colson gives a blunt answer: “Contrary to what most Americans think, the Constitution does not give the Supreme Court final say on constitutional questions. And the Founders resisted the idea.” Colson cites the landmark 1803 case of Marbury v. Madison, in which the Court, he says, took up the power of judicial review, then gives three examples of presidents defying Court orders. However, fellow convicted Watergate figure John Dean, a former White House counsel, refutes Colson’s arguments. In 2006, Dean will write that “Colson, like [televangelist Pat] Robertson and others on the religious right, is seeking, in effect, to nullify Supreme Court decisions of which he does not approve.” Dean will note that although Colson has long since lost his license to practice law, he is considered a scholar of some importance by his conservative contemporaries, and therefore has some influence.
'Marbury' and Judicial Review - Dean notes that Colson’s interpretation of the bedrock Marbury case is wrong. Judicial review by federal courts of Congressional legislation was a long-established principle by the time the Court issued its ruling. Even before the Constitutional Conventions, state courts had routinely overturned state legislative acts. The assumption of most during the debates over the contents of the Constitution was that federal courts, and most specifically the Supreme Court, would have similar power over federal legislation.
Thomas Jefferson and the Alien Imposition Act - Colson writes that “Thomas Jefferson refused to execute the Alien Imposition Act.” Colson is wrong: there was never such an act. Dean writes, “If Colson is referring to the infamous Alien and Sedition Act of 1798, it had nothing to do with a court order, and the example is therefore very misleading.” Jefferson’s predecessor, John Adams, enforced the law, which Jefferson considered unconstitutional. Jefferson pardoned those convicted of sedition under the statute when he gained the presidency. He never “refused to execute” it because it expired the day before he was inaugurated, March 4, 1801.
Andrew Jackson and the Bank of the United States - Colson writes that Andrew Jackson “spurned a Court order in a banking case.” Again, as Dean notes, the citation is misleading. Dean believes Colson is referring to Jackson’s 1832 veto of a bill to recharter the Bank of the United States. The Court had not issued an opinion on the rechartering of a federal bank, so Jackson did not defy a Court order.
Abraham Lincoln and the 'Dred Scott' Decision - Colson concludes his historical argument by saying that Abraham Lincoln “rejected the Dred Scott decision. Lincoln even asked Congress to overrule the Court—which it did, passing a law that reversed Dred Scott (1862).” Dean calls Colson’s argument “a stunning summation, not to mention distortion, of history.” The infamous 1857 Dred Scott v. Sanford decision found that slaves were neither citizens nor persons under the Constitution, that Congress could not prohibit slavery in the territories, and that the Declaration of Independence’s statement that “all men are created equal” applied only to white men. Lincoln argued passionately against the decision during his 1858 debates with his Senate opponent, Stephen Douglas, and swore that he would seek to reverse the decision. But, as Dean will note, “Seeking reversal is not defiance of the law.” Lincoln did defy the Court in 1861 by suspending the writ of habeas corpus, and explained his unprecedented action to Congress by arguing that he did so to save the Union from dissolution. Dred Scott was overturned, not by Congressional legislation, but by the Thirteenth and Fourteenth Amendments to the Bill of Rights.
The Danger Inherent in Colson's Arguments - Dean will note: “Colson’s baseless arguments are unfortunately typical of those that authoritarian conservatives insist on making, using facts that are irrelevant or misleading, if not demonstrably wrong. The self-righteousness of authoritarians [such as] Colson and Pat Robertson… has become so pronounced that at times it seems as if they believe themselves actually to be speaking ex cathedra [a sardonic reference to the infallibility of the Pope]. Their contention that the president of the United States is not bound by rulings of the Supreme Court, or, for that matter, by the laws of Congress, when these rulings or laws relate to the functions of the presidency, has gained increasing currency with authoritarian conservatives, both leaders and followers.” Such acceptance “is truly frightening in its implications.” [Christianity Today, 10/6/1997; Dean, 2006, pp. 111-115; Catholic Encyclopedia, 2008]

Entity Tags: Charles Colson, Andrew Jackson, Abraham Lincoln, Thomas Jefferson, Religious Freedom Restoration Act, Pat Robertson, US Supreme Court, John Dean

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Expansion of Presidential Power

The 2000 federal census awards Texas two additional seats for its US Congressional delegation. Ten years ago, when the census awarded Texas three additional seats, Texas Democrats allegedly “gerrymandered” the state’s electoral district map to ensure that Democrats sent a majority of Democrats to the US Congress (see 1990 - 1991). Now, Republicans control the governorship and the Texas Senate, but Democrats retain control of the Texas House. The divided legislature is unable to pass a redistricting scheme as mandated by the Constitution, and as a result the entire redistricting affair is decided in court. A three-judge federal district court attempts to draw a “neutral” district map, attempting to produce a map that does not clearly favor one party over another. The court produces Plan 1151C, places the two new seats in high-growth areas, and favors county and voting precinct boundaries in the map. The new map results in a 17-15 Democratic majority in the Texas delegation to the US House, contrasting with a 59 percent to 40 percent Republican voting pattern in the state. Critics complain that the court’s plan essentially leaves the Democrats’ 1990 “gerrymander” in place. [FindLaw, 6/28/2006] Critics’ assertions are bolstered by the fact that Texas Representative Martin Frost, a Democrat, was primarily responsible for the previous map that was used by the court. [New York Times, 5/15/2003]

Entity Tags: Martin Frost, Texas Republican Party

Category Tags: Voting Rights, Court Procedures and Verdicts, Election, Voting Laws and Issues

Michael Creppy, the chief US immigration judge—actually an executive branch official in the Justice Department, the title of “judge” notwithstanding—orders that all deportation hearings be closed to the public, the press, and even family members. Creppy also prohibits immigration court administrators from listing the detainees’ names or cases on public dockets. The reason is not because there is reason to believe any particular detainee is a suspected terrorist. Instead, the administration asserts, national security demands blanket secrecy because terrorist cells might read about the deportation hearings in the press, piece together bits and pieces of information, and in doing so deduce valuable information about the government’s investigation into the 9/11 attacks and terrorism in general. In 2007, author Charlie Savage will write: “Thus, the public would just have to trust that the government had arrested and deported the right people, even though their names were kept a secret and the decision to expel them from the country was made behind closed doors. By invoking the chance that the enemy might detect a pattern in otherwise harmless information, the government would be justified in withholding everything. The implication of its theory was that the public had no right to know anything, no matter how innocuous, because any tidbit of trivial information could potentially be stitched together with other minor bits of information to conceivably provide some useful insight for terrorists.” In separate proceedings, the Detroit Free Press and several New Jersey media organizations will challenge the Justice Department’s decision in court (see August 26, 2002 and October 2, 2002). [Savage, 2007, pp. 94]

Entity Tags: Charlie Savage, US Department of Justice, Michael Creppy

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Detainments in US, Government Acting in Secret

Less than two weeks after 9/11, White House counsel Alberto Gonzales sets up an interagency group to design a strategy for prosecuting terrorists, and specifically asks it to suggest military commissions as one viable option for prosecution of suspected terrorists.
Membership - The initial participants include Gonzales; White House lawyer Timothy Flanigan; Pentagon general counsel William Haynes; the vice president’s chief counsel, David Addington; National Security Council lawyer John Bellinger; and State Department lawyer Pierre-Richard Prosper, a former career prosecutor who now serves as State’s ambassador at large for war crimes issues and who will head the group.
Various Options - The group spends a month in a windowless conference room at State, bringing in experts from around the government, including military lawyers and Justice Department lawyers. The Justice Department advocates regular trials in civilian courts, such as the trials of the 1993 World Trade Center bombers (see February 26, 1993). However, many in the group object, noting that terrorist trials in regular courthouses on US soil pose security risks. The military lawyers propose courts-martial, which can take place anywhere in the world and would have military protection. A third option, military commissions, would offer the security of courts-martial without the established rules of evidence and procedure courts-martial have; setting up such a system might offer more flexibility in trying suspected terrorists, but many in the group wonder if President Bush would require Congressional authorization. Prosper will later recall, “We were going to go after the people responsible for the attacks, and the operating assumption was that we would capture a significant number of al-Qaeda operatives.” In addition to the use of military commissions, the group begins to work out three other options: ordinary criminal trials, military courts-martial, and tribunals with a mixed membership of civilians and military personnel. The option of a criminal trial by an ordinary federal court is quickly brushed aside for logistical reasons, according to Prosper. “The towers were still smoking, literally. I remember asking: Can the federal courts in New York handle this? It wasn’t a legal question so much as it was logistical. You had 300 al-Qaeda members, potentially. And did we want to put the judges and juries in harm’s way?” Despite the interagency group’s willingness to study the option of military commissions, lawyers at the White House, according to reporter Tim Golden, grow impatient with the group. Some of its members are seen to have “cold feet.” [New York Times, 10/24/2004; Savage, 2007, pp. 135]
Parallel Process at White House - Unbeknownst to Prosper’s group, the White House is crafting its own version of military commissions or tribunals (see Late October 2001). When President Bush issues his executive order creating military tribunals (see November 13, 2001), Prosper and his group will first learn about it by watching the nightly news. [Savage, 2007, pp. 138]

Entity Tags: US Department of Justice, US Department of State, William J. Haynes, Timothy E. Flanigan, Pierre-Richard Prosper, John Bellinger, Beth Nolan, Alberto R. Gonzales, Scott McClellan, Jay S. Bybee, John Ashcroft, David S. Addington

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

For 13 years, Texas Republicans have complained that Texas Democrats have “gerrymandered” the state’s electoral district to give Democrats an undue representation in the state’s US House delegation (see 1990 - 1991 and 2000-2002). Now, with Republicans in control of both houses of the state legislature, they decide to redistrict the state to favor Republican representation in Congress. In 2002, Democrats hold a 17-15 edge in US Representatives. The decision is unusual inasmuch as states usually only redraw their district boundaries once a decade, in concurrence with the federal census. Democrats wage a bitter battle against the Republican redistricting efforts, even fleeing the state for a time to prevent the legislature from reaching a quorum (see May 12-15, 2003), but Republicans, led by House Majority Leader Tom DeLay (R-TX), eventually win out, and the Texas legislature enacts a new redistricting plan, Plan 1347C, that concentrates large numbers of Democrats, including minority voters, in a relatively small number of districts and gives Republicans a majority of prospective voters in a much larger number of more sparsely populated districts. In the November 2004 elections, the plan works as envisioned: Republicans have a 21-11 majority in the US Congressional delegation, and obtain a 58 percent to 41 percent edge in statewide voting results. Even before the elections, a number of organizations and individuals file a lawsuit challenging the legality of the redistricting map under the Voting Rights Act (VRA—see August 6, 1965, 1970, 1975, April 22, 1980, and June 29, 1989), charging that the plan unlawfully dilutes racial minority voting strength and is designed to maximize partisan advantage at the voting booths, in essence gerrymandering the state’s electoral districts. A district court finds the redistricting plan is essentially legal, but the Supreme Court vacates that decision and remands the case for reconsideration; the court again finds in favor of the plaintiffs, affirming the map as lawful. [Austin American-Statesman, 5/14/2003; Washington Post, 12/2/2005; FindLaw, 6/28/2006; Oyez (.org), 2012] That decision will be substantially affirmed by the Supreme Court (see June 28, 2006). DeLay says that President Bush, the former governor of Texas, is squarely behind the redistricting efforts. After a Congressional leadership breakfast in May 2003, DeLay says he spoke briefly with Bush: “As I was walking out, I said, you know, that redistricting is ongoing. And he said, ‘Well, good, I’d like to see that happen.’” [Dallas Morning News, 5/14/2003] During the battle over the redistricting, Texas Democrats insist that the new districts will not only illegally protect Republican majorities, but will dilute the impact of votes from outside cities and suburban areas. US Representative Max Sandlin (D-TX) tells a reporter: “This plan doesn’t just destroy Democratic representation… it destroys rural representation. East Texas has had tremendous battles with Dallas over water rights. It is absolutely ridiculous to have a Dallas Congress member represent East Texans concerning water rights. And you can go issue by issue.” Republicans from rural districts say they have no such worries. [Austin American-Statesman, 5/14/2003]

Entity Tags: Tom DeLay, Texas Republican Party, George W. Bush, Max Sandlin, Voting Rights Act of 1965, Texas Democratic Party

Category Tags: Voting Rights, Court Procedures and Verdicts, Election, Voting Laws and Issues

The Foreign Intelligence Surveillance Court (FISC) turns down the Justice Department’s bid for sweeping new powers to monitor and wiretap US citizens. FISC judges rule that the government has misused the law and misled the court dozens of times. The court finds that Justice Department and FBI officials supplied false or misleading information to the court in over 75 applications for search warrants and wiretaps, including one signed by then-FBI director Louis Freeh. While the court does not find that the misrepresentations were deliberate, it does rule that not only were erroneous statements made, but important information was omitted from some FISA applications. The judges found so many inaccuracies and errors in FBI agent Michael Resnick’s affidavits that they bar him from ever appearing before the court again. The court cites “the troubling number of inaccurate FBI affidavits in so many FISA applications,” and says, “In virtually every instance, the government’s misstatements and omissions in FISA applications and violations of the Court’s orders involved information sharing and unauthorized disseminations to criminal investigators and prosecutors.” The court is also unhappy with the Justice Department’s failure to answer for these errors and omissions, writing, “How these misrepresentations occurred remains unexplained to the court.” The court finds that in light of such impropriety, the new procedures proposed by Attorney General John Ashcroft in March would give prosecutors too much control over counterintelligence investigations, and would allow the government to misuse intelligence information for criminal cases. The ruling is a severe blow to Ashcroft’s attempts since the 9/11 attacks to allow investigators working in terrorism and espionage to share more information with criminal investigators. (These limitations were put in place after the Church Commission’s findings of massive fraud and misuse of domestic surveillance programs during the 1950s, 60s, and 70s. See April, 1976, January 29, 1976, and December 21, 1974). The Justice Department says of the decision, “We believe the court’s action unnecessarily narrowed the Patriot Act and limited our ability to fully utilize the authority Congress gave us.” Interestingly, the Justice Department also opposed the public release of FISC’s decision not to grant the requested powers. Stewart Baker, former general counsel of the NSA, calls the opinion “a public rebuke. The message is you need better quality control. The judges want to ensure they have information they can rely on implicitly.” Bush officials have complained since the 9/11 attacks that FISA requirements hamper the ability of law enforcement and intelligence agents to track terrorist suspects, including alleged hijacking conspirator Zacarias Moussaoui (see August 16, 2001). Those requirements mandate that agents must show probable cause that the subject of a search or wiretap is an agent of a foreign government or terrorist group, and, because FISA standards for obtaining warrants is far lower than for ordinary criminal warrants, mandate strict limits on the distribution of information secured from such investigations. The FBI searched Moussaoui’s laptop computer and other belongings without a FISA warrant because some officials did not believe they could adequately show the court that Moussaoui had any connections to a foreign government or terrorist group. In its ruling, FISC suggests that if the Justice Department finds FISA too restrictive, they should ask Congress to update the law. Many senators on the Judiciary Committee say they are willing to enact such reforms, but have complained of resistance from Ashcroft and a lack of cooperation from the Bush administration. [Washington Post, 8/23/2002] In November 2002, the Foreign Intelligence Surveillance Court of Review will overturn the FISC decision and give the Justice Department what it asked for (see November 18, 2002).

Entity Tags: Foreign Intelligence Surveillance Court, Federal Bureau of Investigation, Charles Grassley, US Department of Justice, Stewart Baker, Zacarias Moussaoui, National Security Agency, John Ashcroft, Church Commission, USA Patriot Act, Louis J. Freeh, Michael Resnick

Category Tags: Court Procedures and Verdicts, Privacy, Impositions on Rights and Freedoms, Government Acting in Secret, Government Classification, Database Programs, Other Surveillance

A federal judge rules that the Bush administration must reveal the identities of the hundreds of people secretly arrested after the 9/11 attacks within 15 days. [Washington Post, 8/3/2002] The judge calls the secret arrests “odious to a democratic society.” The New York Times applauds the decision and notes that the government’s argument that terrorist groups could exploit the release of the names makes no sense, because the detainees were allowed a phone call to notify anyone that they were being held. [New York Times, 8/6/2002] Two weeks later, the same judge agrees to postpone the release of the names until an appeals court can rule on the matter. [New York Times, 8/16/2002]

Entity Tags: Bush administration (43)

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Category Tags: Detainments in US, Court Procedures and Verdicts, Gov't Violations of Prisoner Rights

The Third US Court of Appeals in Philadelphia rules 2-1 to uphold the Bush administration’s claim of blanket secrecy regarding immigration deportation hearings (see September 21, 2001). The ruling directly contradicts a ruling by the Sixth Appeals Court on the same issue (see August 26, 2002). Chief Judge Edward Becker, a Reagan appointee, rules that if a president or his top advisers decide that blanket closure of immigration deportation hearings is needed to protect national security, then the courts should defer to their judgment. “We are quite hesitant to conduct a judicial inquiry into the credibility of these security concerns, as national security is an area where courts have traditionally extended great deference to executive expertise.” Usually when two appellate courts conflict in their rulings, the Supreme Court settles the issue. However, the Bush administration does not appeal the loss in the other case, as the 9/11-related immigration sweeps are already concluded. In 2007, author Charlie Savage will write, “As a result, even though four of the six appeals court judges who reviewed the… directive rejected it as unconstitutional, the administration managed to create a precedent for a presidential power to impose blanket secrecy over immigration hearings that stands in forty-six states—everywhere except the Sixth Circuit’s Kentucky, Michigan, Ohio, and Tennessee.” [Savage, 2007, pp. 95-96]

Entity Tags: Charlie Savage, Edward Becker, Bush administration (43)

Category Tags: Expansion of Presidential Power, Court Procedures and Verdicts, Government Acting in Secret

The Foreign Intelligence Surveillance Court of Review, in its first-ever ruling, overturns a ruling by the Foreign Intelligence Surveillance Court (see May 17, 2002) that stopped the Justice Department from being granted sweeping new powers to conduct domestic surveillance on US citizens. [American Civil Liberties Union, 11/18/2002; FindLaw, 11/18/2002 pdf file]
'Rubber Stamp' - The ACLU’s Ann Beeson says of the ruling, “We are deeply disappointed with the decision, which suggests that this special court exists only to rubberstamp government applications for intrusive surveillance warrants. “As of today, the Attorney General can suspend the ordinary requirements of the Fourth Amendment in order to listen in on phone calls, read e-mails, and conduct secret searches of Americans’ homes and offices.” The ACLU and other civil liberties organizations filed a friend-of-the-court brief asking that the original ruling stand. The ACLU and its partners are considering appealing the decision to the Supreme Court, as well as asking Congress to legislate tighter restrictions on the Justice Department’s ability to conduct domestic surveillance. Beeson notes that appealing the FISA Review Court’s decision might be impossible: “This is a major Constitutional decision that will affect every American’s privacy rights, yet there is no way anyone but the government can automatically appeal this ruling to the Supreme Court. Hearing a one-sided argument and doing so in secret goes against the traditions of fairness and open government that have been the hallmark of our democracy.” The FISC Review Court is a special three-judge panel appointed by Chief Justice William Rehnquist in accordance with provisions of the Foreign Intelligence Surveillance Act. The judges include appellate court justices Laurence Silberman, Edward Leavy, and Ralph Guy, Jr. [American Civil Liberties Union, 11/18/2002]
Law Professor Slams Ruling - Law professor Raneta Lawson Mack is highly critical of the ruling. Mack writes that the court twisted its reasoning upon itself in order to give the Justice Department what it asked for. It misrepresented the facts and legal arguments of the case. It gratuitously insulted the ACLU and other “friends of the court” in its ruling. It wrote that the entire FISA law is constitutional even though its standards conflict with the Fourth Amendment. To justify its ruling from a legislative standpoint, the Review Court cherrypicked statements by legislators that supported the Justice Department’s stance while ignoring those from other viewpoints. It called the Bush administration’s efforts to challenge the “firewall” between law enforcement and foreign intelligence as “heroic,” even though the Justice Department, Congress, and FISA itself recognizes and accepts the dichotomy. It accepted without question or evidence the government’s contention that false, misleading, or inaccurate FBI affidavits in numerous FISA applications were a result of “confusion within the Justice Department over implementation” of the firewall procedures that the Justice Department itself drafted and implemented. Mack writes that the court failed entirely to grapple with one key question that, if considered, would, in her opinion, “easily have laid bare the Executive Branch’s thinly-veiled quest for unconstrained authority to invade the privacy of US citizens with minimal oversight.” The question is, “why would the government need to alter procedures for obtaining FISA warrants when the lower FISA court had never rejected an application? Indeed, according to the lower FISA court opinion the court had ‘reviewed and approved several thousand FISA applications, including many hundreds of surveillances and searches of US persons [and had] long accepted and approved minimization procedures authorizing in-depth information sharing and coordination with criminal prosecutors.’” The lower court ruling provided for coordination and sharing of information between law enforcement and government agencies, Mack notes, and writes that in light of that finding, “can the government seriously contend that the minimization procedures that it drafted in 1995, which the lower FISA court dutifully adopted, were too restrictive, warranting a still more lenient approach?” Mack considers the ruling to be “legally unsound.” She is appalled by the Review Court’s groundless implication that FISA hindered the ability of the FBI to anticipate and perhaps prevent the 9/11 attacks. “What the lower FISA court recognized and, indeed, what all Americans should legitimately fear is that the Executive branch is disingenuously using its September 11th failures in conjunction with the hastily drafted and poorly crafted Patriot Act to ‘give the government a powerful engine for the collection of foreign intelligence information targeting US persons.’ By adhering to the minimization procedures, the lower FISA court merely sought to assure that the balance between legitimate national security concerns and individual privacy was not disturbed by seemingly unconstrained executive power.… [T]here is… no question that a secret FISA appellate court structure, with judges hand selected by the Chief Justice of the US Supreme Court, that hears only the government’s evidence, and grants only the government a right to appeal is a singularly inappropriate forum to resolve issues that threaten the fundamental rights and values of all US citizens. The only question that remains is how much further our justice system will be derailed in pursuit of the war on terrorism.” [Jurist, 11/26/2002]

A federal judge in New York rules that Jose Padilla, a US citizen who has been accused of being an al-Qaeda “dirty bomber,” has the right to meet with a lawyer (see June 10, 2002; June 9, 2002). Judge Michael Mukasey agrees with the government that Padilla can be held indefinitely as an “enemy combatant” even though he is a US citizen. But he says such enemy combatants can meet with a lawyer to contest their status. However, the ruling makes it very difficult to overturn such a status. The government only need show that “some evidence” supports its claims. [Washington Post, 12/5/2002; Washington Post, 12/11/2002] In Padilla’s case, many of the allegations against him given to the judge, such as Padilla taking his orders from al-Qaeda leader Abu Zubaida, have been widely dismissed in the media. [Washington Post, 9/1/2002] As The Guardian puts it, Padilla “appears to be little more than a disoriented thug with grandiose ideas.” [Guardian, 10/10/2002] After the ruling, Vice President Cheney sends Deputy Solicitor General Paul Clement to see Mukasey on what Justice Department lawyers call “a suicide mission.” Clement, speaking for Cheney, tells Mukasey that he has erred so grossly that he needs to immediately retract his decision. Mukasey rejects the government’s “pinched legalism” and adds that his order is “not a suggestion or request.” [Washington Post, 6/25/2007] The government continues to challenge this ruling, and Padilla will continue to be denied access to a lawyer (see March 11, 2003).

Entity Tags: US Department of Justice, Richard (“Dick”) Cheney, Al-Qaeda, Jose Padilla, Abu Zubaida, Michael Mukasey, Paul Clement

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Category Tags: Court Procedures and Verdicts

District Court Judge John Bates rules against the General Accounting Office (GAO), the investigative arm of Congress, in its attempt to force Vice President Cheney to disclose some of his Energy Task Force documents (see January 29, 2001 and May 16, 2001). The judge writes, “This case, in which neither a House of Congress nor any congressional committee has issued a subpoena for the disputed information or authorized this suit, is not the setting for such unprecedented judicial action.” [Associated Press, 12/9/2002] Bates is a Republican who worked as the deputy independent counsel to Kenneth Starr in the Whitewater investigation, and was appointed to the bench by President Bush in 2001. [Savage, 2007, pp. 112] The GAO later declines to appeal the ruling (see February 7, 2003). In a similar suit being filed by Judicial Watch and the Sierra Club, the Bush administration has successfully delayed deadlines forcing these documents to be turned over. [Associated Press, 12/6/2002] That case will eventually be decided in the administration’s favor (see May 10, 2005).
Cheney Pushes Back - Unfortunately, the ruling’s claim of no Congressional involvement is somewhat misleading. The original request for information came from two ranking House members, Henry Waxman (D-CA) of the Committee on Government Reform and John Conyers (D-MI) of the Energy and Commerce Committee (see April 19 - May 4, 2001). Waxman and Conyers followed standard procedure by writing to David Walker, head of the GAO, to request information about who was meeting with the task force and what the task force was doing (May 8, 2001. Instead of complying with the request, Cheney’s legal counsel, David Addington, replied that the task force was not subject to the Federal Advisory Committee Act, and therefore not bound by law to provide such information (see May 16 - 17, 2001). Addington later challenged the GAO’s authority, saying that it was trying “to intrude into the heart of Executive deliberations, including deliberations among the President, the Vice President, members of the President’s Cabinet, and the President’s immediate assistants, which the law protects to ensure the candor in Executive deliberation necessary to effective government.” The GAO was not asking for such information; former Nixon White House counsel John Dean will write in 2004, “It was clear [Addington] was looking to pick a fight.”
Tug of War - The GAO advised Addington that it did indeed have the legal power to examine the deliberations of such entities as the task force, and provided Addington both the statutory law and the legislative history, which flatly contradicted Addington’s refusal. The GAO also noted that it was “not inquiring into the deliberative process but [was] focused on gathering factual information regarding the process of developing President Bush’s National Energy Policy.” The GAO even narrowed the scope of its original request, asking only for the names of those who had worked with the task force, and the dates (see July 31, 2001). But this provoked further resistance from Cheney and his office, with Cheney publicly stating on numerous occasions that the GAO was unlawfully trying to intrude into the deliberative process. Walker’s patience ran out in January 2002, and he notified the White House and Congress that the GAO was taking the administration to court (see February 22, 2002).
Hardball in Federal Court - Usually the case will be handled by lawyers from the Justice Department’s Civil Division. But this case is much more important to the White House to be left to the usual group of attorneys. Instead, this lawsuit is one of the very few to be handled by a special unit operating under the direct supervision of Deputy Solicitor General Paul Clement and Clement’s boss, Solicitor General Theodore Olson. Olson, the lawyer who spearheaded the team that successfully argued the December 2000 Bush v. Gore case that awarded George W. Bush the presidency. Dean later learns that this special team was created specifically to find and handle cases that they can take to the Supreme Court in order to rewrite existing law, mostly laws that restrict the power of the presidency (see January 21, 2001). Many career attorneys at the Justice Department will become so offended by the existence and the agenda of this special legal team that they will resign their positions. The administraton sent a strong signal to Judge Bates when it sent Olson, who has argued many times before the Supreme Court, to argue the government’s case in his court. Dean will write that Bates, a recent Bush appointee and a veteran of the Whitewater investigation, “got the message.” He knows this case is slated to go to the Supreme Court if it doesn’t go the way the White House wants.
Standing the Law On Its Head - According to Dean, Bates turns the entire body of statutory law overseeing the GAO and its powers to compel information from the executive branch on its head. He rules that the GAO lacks the “standing to sue,” saying that it doesn’t have enough of a legal stake in the controversy to have a role in trying to compel information. Bates, flying in the face of over eight decades of law and precedent, rules that, in essence, the GAO is merely an agent of Congress, and because neither the GAO nor Walker had suffered injury because of the task force’s refusal to comply with its request, the GAO has no legal recourse against the executive branch. Bates hangs much of his ruling on the fact that Congress has not yet subpoenaed the White House for the task force information. Thusly, Bates guts the entire structure of enforcement authority the GAO has as part of its statutory mandate. Bates does not go as far as the Justice Department wants, by not specifically ruling that the entire GAO statute is unconstitutional, but otherwise Bates’s ruling is a complete victory for the White House. [Dean, 2004, pp. 76-80] Authors Lou Dubose and Jake Bernstein later write that “Bates’s ruling creates a legislative Catch-22 for Democrats.” Because the GOP is the majority party, and because GOP Congressional leaders refuse to subpoena the White House on virtually any issue or conflict, no such subpoenas as Bates is mandating are likely to ever be granted by Republican committee chairmen. [Dubose and Bernstein, 2006, pp. 14] In 2007, author and reporter Charlie Savage will write that Bates’s ruling severely eroded the GAO’s “ability to threaten to file a lawsuit [and] damaged the congressional watchdog’s capability to persuade executive branch agencies to comply with its requests for information.… Bates had established a principle that, if left undisturbed, could change the attitudes of executive branch officials when the GAO asked for documents they did not want to disclose.” [Savage, 2007, pp. 112-113]

Entity Tags: John Dean, Lou Dubose, Paul Clement, Sierra Club, John Conyers, US Supreme Court, US Department of Justice, Theodore (“Ted”) Olson, Richard (“Dick”) Cheney, John Bates, Judicial Watch, Henry A. Waxman, Bush administration (43), Charlie Savage, David Walker, David S. Addington, Government Accountability Office, Energy Task Force, Jake Bernstein, Federal Advisory Committee Act

Timeline Tags: US Environmental Record

Category Tags: Court Procedures and Verdicts, Government Acting in Secret

Jay Bybee, the head of the Office of Legal Counsel (OLC) and the signatory on a number of memos authorizing torture and expanded presidential powers (see March 13, 2002 and August 1, 2002), is confirmed by the Senate to become a federal appeals court judge. The Senate Judiciary Committee scheduled Bybee’s confirmation hearing for the same day that Secretary of State Colin Powell was slated to give his presentation to the UN on Iraq’s weapons of mass destruction (see February 5, 2003); most of the committee’s Democrats choose to watch Powell’s presentation, thus only friendly Republican Senators are in the hearing. Bybee is confirmed easily. [Savage, 2007, pp. 182]

Entity Tags: Senate Judiciary Committee, Jay S. Bybee, Colin Powell, Office of Legal Counsel (DOJ)

Category Tags: Court Procedures and Verdicts, Other Legal Changes

Wanted poster for John Doe #2, left, and Jose Padilla, right.
Wanted poster for John Doe #2, left, and Jose Padilla, right. [Source: Public domain, via Village Voice]A judge reaffirms the right of Jose Padilla, a US citizen being held as an “enemy combatant,” to meet with a lawyer (see June 10, 2002; December 4, 2002). The same judge ruled that he could meet with a lawyer in December 2002, but the government continues to challenge the ruling and continues to block his access to a lawyer. [Associated Press, 3/11/2003] Later in the month, the government tells the judge it is planning to ignore his order and will appeal the case. [Associated Press, 3/26/2003] While it may be completely coincidental, the Village Voice has noticed that Padilla is a “dead ringer” for the never found “John Doe #2” of the 1995 Oklahoma City bombing, and other evidence could tie him to it. [Village Voice, 3/27/2002; Village Voice, 6/13/2002]

Entity Tags: Jose Padilla

Timeline Tags: Torture of US Captives

Category Tags: Court Procedures and Verdicts, Detainments in US, Gov't Violations of Prisoner Rights

Constitutional lawyers and experts believe that the Supreme Court will not accept the petition to reopen the landmark US v Reynolds case (see February 26, 2003 and May 30, 2003). Kate Martin of the Center for National Security Studies says that the petition is essentially frivolous, and says of the claim that Reynolds was decided on the basis of a fraudulent government presentation: “That the facts of the original case are not true is irrelevant to the state secrets privilege (see March 9, 1953). The idea that it undercuts the privilege is ridiculous. Often in cases, after they’re decided, the facts are proven not to be true. That’s the nature of the legal system. Sometimes people lie. Sometimes there’s new information.” Law professor Jonathan Turley is more sympathetic to the petition, but agrees that the Supreme Court will probably not hear it: “For the Supreme Court to address the fact clearly that it had been lied to would open difficult issues.… The Court used the facts of Reynolds to say the government could be trusted.… Reynolds was based on trust, on willful blinders. There’s much danger in going back now, in recognizing that the government routinely lies. They’re not going to face that. They won’t reopen this. I think Reynolds is like discovering an unfaithful wife after fifty years of marriage. You’re hurt by the betrayal, but you can’t turn back half a century. You preserve the marriage for the children’s sake” (see December 1980, September 1982, November 1984, January 1990, June 13, 1991, and September 16, 1992). [Siegel, 2008, pp. 266-267]

Entity Tags: US Supreme Court, Jonathan Turley, Center for National Security Studies, Kate Martin

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Government Classification, State Secrets

In the case of Federal Election Commission v. Beaumont, the Supreme Court rules that the ban on direct corporate donations by the Federal Election Campaign Act (FECA—see February 7, 1972) is constitutional. The case concerns a challenge to the law by Christine Beaumont and North Carolina Right to Life (NCRL), an anti-abortion advocacy group that sued for the right to donate directly to political candidates under the First Amendment. Beaumont and the NCRL were twice denied in lower courts, and have appealed to the Supreme Court. In a 7-2 decision, the Court upholds the ban. The majority opinion is written by Justice David Souter, who rules that the ban on direct contributions is consistent with the First Amendment. The Court cannot find in favor of NCRL, Souter writes, “without recasting our understanding of the risks of harm posed by corporate political contributions, of the expressive significance of contributions, and of the consequent deference owed to legislative judgments on what to do about them.” Two of the most conservative justices on the Court, Antonin Scalia and Clarence Thomas, dissent, arguing that the ban is not constitutional. [Brennan Center for Justice, 6/16/2003; Oyez (.org), 2009]

Entity Tags: David Souter, Antonin Scalia, Christine Beaumont, Federal Election Campaign Act of 1972, Clarence Thomas, US Supreme Court, North Carolina Right to Life

Category Tags: Campaign Finance, Court Procedures and Verdicts

The Supreme Court refuses to hear a petition to reopen the 1953 state secrets case US v Reynolds (see February 26, 2003). It issues a one-sentence ruling: “The motion for leave to file a writ of error coram nobis is denied.” Plaintiff Judy Palya Loether says: “Maybe the law isn’t about right or wrong. The concept that the government lied to the Supreme Court (see February 2000) seemed to me a terrible thing to do. It appears that the justices were not as appalled as I was.” Further attempts to reopen the case in lower courts will also fail. [Siegel, 2008, pp. 267-298]

Entity Tags: US Supreme Court, Judy Palya Loether

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Government Classification, State Secrets

Lawyers for accused terrorist Zacarias Moussaoui, battling to force the US government to allow them to depose other accused terrorists as part of their defense (see May 14, 2003), contact Jeff Almeida, the lawyer for the plaintiffs who sought to reopen the 1953 state secrets case US v Reynolds. They ask how his petition for coram nobis—a request for the court to “right a wrong”—went. Almeida tells them that the Court turned the petition down without comment (see June 23, 2003). Moussaoui’s lawyers tell Almeida that the government prosecutors were so reliant on Reynolds that “they had been waving it around the courtroom any chance they got.” Plaintiff Susan Brauner later says that she is glad Moussaoui’s lawyers contacted Almeida, and says she finds their interest “most encouraging.” She will add, “If we eventually walk away with nothing more than one concrete example where the case was of possible use to someone else… then I will believe we have done some good in impacting or at least raising the issue.” [Siegel, 2008, pp. 272-273]

Entity Tags: Zacarias Moussaoui, US Supreme Court, Jeff Almeida, Susan Brauner

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Government Classification, State Secrets

The Supreme Court rules in the case of McConnell v. Federal Election Commission. The case addresses limitations on so-called “soft money,” or contributions to a political party not designated specifically for supporting a single candidate, that were imposed by the Bipartisan Campaign Reform Act of 2002 (BCRA), often known as the McCain-Feingold law after its two Senate sponsors (see March 27, 2002). A three-judge panel has already struck down some of McCain-Feingold’s restrictions on soft-money donations, a ruling that was stayed until the Court could weigh in. Generally, the Court rules that the “soft money” ban does not exceed Congress’s authority to regulate elections, and does not violate the First Amendment’s free speech clause. The ruling is a 5-4 split, with the majority opinion written by liberal Justice John Paul Stevens and his conservative colleague Sandra Day O’Connor. The opinion finds that the “minimal” restrictions on free speech are outweighed by the government’s interest in preventing “both the actual corruption threatened by large financial contributions and… the appearance of corruption” that might result from those contributions. “Money, like water, will always find an outlet,” the justices write, and the government must take steps to prevent corporate donors from finding ways to subvert the contribution limits. The majority is joined by liberal justices Stephen Breyer, Ruth Bader Ginsburg, and David Souter, and the four other conservatives on the court—Anthony Kennedy, William Rehnquist, Antonin Scalia, and Clarence Thomas—dissent. [Legal Information Institute, 12/2003; Oyez (.org), 2011] The case represents the consolidation of 11 separate lawsuits brought by members of Congress, political parties, unions, and advocacy groups; it is named for Senator Mitch McConnell, who sued the FEC on March 27, 2002, the same day the bill was signed into law. Due to the legal controversy expected to be generated by the law and the need to settle it prior to the next federal election, a provision was included in the BCRA that provided for the case to be heard first by a special three-judge panel and then appealed directly to the Supreme Court. This District of Columbia district court panel, comprised of two district court judges and one circuit court judge, was inundated with numerous amicus briefs, almost 1,700 pages of related briefs, and over 100,000 pages of witness testimony. The panel upheld the BCRA’s near-absolute ban on the usage of soft money in federal elections, and the Supreme Court agrees with that finding. However, the Court reverses some of the BCRA’s limitations on the usage of soft money for “generic party activities” such as voter registration and voter identification. The district court overturned the BCRA’s primary definition of “noncandidate expenditures,” but upheld the “backup” definition as provided by the law. Both courts allow the restrictions on corporate and union donations to stand, as well as the exception for nonprofit corporations. The Court upholds much of the BCRA’s provisions on disclosure and coordinated expenditures. The lower court rejected the so-called “millionaire provisions,” a rejection the Supreme Court upholds. A provision banning contributions by minors was overturned by the lower court, and the Court concurs. The lower court found the provision requiring broadcasters to collect and disclose records of broadcast time purchased for political activities unconstitutional, but the Court disagrees and reinstates the requirement. [Legal Information Institute, 12/2003] McConnell had asked lawyer James Bopp Jr., a veteran of anti-campaign finance lawsuits and the head of McConnell’s James Madison Center for Free Speech, to take part in the legal efforts of the McConnell case. However, before the case appeared before the Supreme Court, McConnell dropped Bopp from the legal team due to a dispute over tactics. [New York Times, 1/25/2010] The 2010 Citizens United decision will partially overturn McConnell (see January 21, 2010).

Entity Tags: Federal Election Commission, David Souter, Bipartisan Campaign Reform Act of 2002, Antonin Scalia, Anthony Kennedy, William Rehnquist, US Supreme Court, Stephen Breyer, Sandra Day O’Connor, National Rifle Association, Mitch McConnell, John Paul Stevens, Ruth Bader Ginsburg, James Bopp, Jr, Clarence Thomas

Category Tags: Campaign Finance, Court Procedures and Verdicts

The US Supreme Court agrees to hear Vice President Cheney’s appeal of a lower court ruling that found he must reveal documents pertaining to his 2001 energy task force (the National Energy Policy Development Group—see January 29, 2001 and May 16, 2001). Cheney lost the case, filed by the conservative government watchdog group Judicial Watch and the environmentalist organization the Sierra Club, in two lower courts, and has ramrodded the case into the Supreme Court with unusual alacrity—filing the Supreme Court appeal even before the appeals court had finished the case. Cheney’s lawyers from the Justice Department will argue that because of the Constitutional provision of separation of powers, the executive branch can and should keep all such information secret if it so chooses. Judicial Watch and the Sierra Club insist that because energy executives and lobbyists were involved in the task force policy deliberations, federal law mandates that lists of participants and details of the meetings should be made public. Over a year ago, District Court Judge Emmet Sullivan ruled that the White House should either turn over the documents or provide a detailed list of the documents it was withholding, and explain why. The White House has done neither, and instead appealed the decision. The US Court of Appeals refused to overturn Sullivan’s decision and ruled that Cheney had no legal standing to refuse the judicial order. Cheney disagreed, and appealed to the Supreme Court. The Court will hear arguments in the spring of 2004 (see April 27, 2004). Thousands of documents concerning the task force from the Department of Energy, the Environmental Protection Agency, and other federal agencies have already been turned over (see July 17, 2003), but no White House documents have been released. The Sierra Club has accused the Bush administration of trying to delay release of the information until after the November 2004 presidential elections. [Reuters, 12/15/2003]

Entity Tags: US Supreme Court, US Department of Justice, Sierra Club, Environmental Protection Agency, Emmet Sullivan, Bush administration (43), US Department of Energy, Judicial Watch, Richard (“Dick”) Cheney, National Energy Policy Development Group

Timeline Tags: US Environmental Record

Category Tags: Expansion of Presidential Power, Court Procedures and Verdicts

FISC Presiding Judge Colleen Kollar-Kotelly.FISC Presiding Judge Colleen Kollar-Kotelly. [Source: Washington Post]James Baker, counsel for intelligence policy in the Justice Department’s Office of Intelligence Policy and Review (no relation to the former Secretary of State James A. Baker), informs the Foreign Intelligence Surveillance Court (FISC) that the government has, at least twice, improperly used excluded evidence from NSA domestic wiretaps to obtain warrants from FISC. Colleen Kollar-Kotelly, the senior FISC judge, is angered by this as both she and her predecessor, Royce Lambeth, have insisted that no evidence obtained from warrantless wiretaps can be used to obtain warrants for further surveillance from FISC. The Justice Department assured them that the administration would never attempt to secure warrants in such a manner. By using the excluded information, the Justice Department rendered useless the federal screening system put in place to keep such evidence from reaching FISC, which did not want to receive it due to the questionable legality of the domestic surveillance program (see December 15, 2005). Kollar-Kotelly’s complaint about the use of tainted evidence results in a brief suspension of the NSA wiretapping program. But the practice will continue (see 2005). [Washington Post, 2/9/2006]

Entity Tags: US Department of Justice, James Baker, Foreign Intelligence Surveillance Court, National Security Agency, Office of Intelligence Policy and Review, Bush administration (43), Royce Lambeth, Colleen Kollar-Kotelly

Category Tags: Court Procedures and Verdicts, Privacy, Impositions on Rights and Freedoms, Government Acting in Secret, Government Classification, NSA Wiretapping / Stellar Wind

The Supreme Court hears oral arguments for and against the release of records pertaining to Vice President Cheney’s energy task force (the National Energy Policy Development Group—see May 16, 2001). The case is Cheney v. US District Court for the District of Columbia (03-0475) (see December 15, 2003). Two public interest groups, the environmentalist Sierra Club and the conservative government watchdog organization Judicial Watch, have joined to argue for the release of the records, saying that because the task force deliberations included energy industry executives and lobbyists, the task force is subject to the Federal Advisory Committee Act (FACA), which requires disclosure of the work of advisory groups that include non-federal employees. Bush administration lawyers, spearheaded by Solicitor General Theodore Olson, argue that releasing those records would violate the concept of “separation of powers.” The administration also argues that releasing the records, most pertinently the meetings between Cheney, his aides, and officials from energy corporations and lobbying firms, would damage the White House’s ability to receive candid advice. “This case is about the separation of powers and the president’s discretion to receive the opinions of subordinates,” Olson tells the court; Olson has resisted submitting task force documents even to the Court, saying that even that so-called “discovery” process would violate the Constitutional separation of powers. Lawyers for the Sierra Club and Judicial Watch argue that Cheney’s contacts with industry executives and lobbyists were improper while he was developing government policy that benefited their businesses. They are demanding to know whether energy lobbyists helped shape the government’s long-term energy policies. Lower courts agreed with Judicial Watch and the Sierra Club, and Cheney, with the Justice Department, has successfully ramrodded the case into the Supreme Court with unprecedented speed.
Justices Question Breadth of Requests - Justice Antonin Scalia, who refused to recuse himself from deliberations after accompanying Cheney on a duck-hunting trip in January, is one of the justices most favoring the government’s case. But even more moderate justices such as Stephen Breyer and Ruth Bader Ginsburg question whether the information request is too broad and inclusive. As for the White House, it argues that neither the courts nor Congress have any right to make any inquiries into the decisions of federal agencies and officials. Sierra Club lawyer David Bookbinder says the White House appears to have violated laws supporting open government: “What the panel said to energy executives was: Help us decide what the energy policy should be. A line has been crossed because the process should have been transparent. The panel was inordinately influenced by the energy industry.” Cheney has said that the executive branch must defend itself against the “continual encroachment by Congress.” The White House has already turned over some 40,000 documents from the task force after a lower court ruling compelled it to do so (see July 17, 2003), but the lawsuit before the Supreme Court says that another 100,000 potentially relevant documents and files remain secret. [MSNBC, 4/26/2004; New York Times, 4/28/2004; CNN, 6/24/2004]
Cheney 'Beyond the Reach of the Law?' - In a legal analysis of the case, former Nixon White House counsel John Dean calls the case “extraordinary,” and notes that Cheney “contends that he is, in essence, beyond the reach of the law. It began as a set of rather pedestrian discovery matters in two consolidated civil lawsuits. Now, however, because of Cheney’s stance, it could be a landmark Constitutional decision.” Dean sees the case as an opportunity for Cheney, with the assistance of Olson and Scalia, “to expand executive powers.” [FindLaw, 3/26/2004]
Case Sent Back to Lower Court - The Court will vote to send the case back to the District of Columbia Appeals Court for further adjudication (see June 24, 2004). That court will rule in Cheney’s favor (see May 10, 2005).

Entity Tags: Stephen Breyer, Sierra Club, US Department of Justice, Ruth Bader Ginsburg, Theodore (“Ted”) Olson, US Supreme Court, Richard (“Dick”) Cheney, Judicial Watch, Antonin Scalia, David Bookbinder, Bush administration (43), John Dean, Federal Advisory Committee Act, National Energy Policy Development Group

Timeline Tags: US Environmental Record

Category Tags: Expansion of Presidential Power, Court Procedures and Verdicts

Deputy Solicitor General Paul Clement appears before the Supreme Court to argue for the administration in Hamdi v. Rumsfeld (see June 28, 2004). Clement argues that the Court has no role in the White House’s decision to hold suspected terrorists designated as “enemy combatants” without trial or charge. During oral arguments, several of the justices ask Clement if the Bush administration considers itself bound by the Convention against Torture (see October 21, 1994). Clement replies, “The United States is signatory to conventions that prohibit torture and that sort of thing, and the United States is going to honor its treaty obligations.” He continues: “I wouldn’t want there to be any misunderstanding about this. It’s also the judgment of those involved in this process that the last thing you want to do is torture somebody or do something along those lines.” That evening, CBS’s 60 Minutes II airs the first photos of tortured prisoners at Abu Ghraib (see April 28, 2004). [Oral Arguments, Hamdi v. Rumsfeld, 4/28/2004 pdf file; Savage, 2007, pp. 188-189]

Entity Tags: Convention Against Torture, Paul Clement, US Supreme Court, Bush administration (43)

Category Tags: Court Procedures and Verdicts, Expansion of Presidential Power, Government Acting in Secret

David Hicks.David Hicks. [Source: Associated Press]In the case of Rasul v. Bush, involving Guantanamo detainees Shafiq Rasul, Mamdouh Habib, David Hicks, and Asif Iqbal, the Supreme Court holds in a 6-3 ruling that the US exercises “complete jurisdiction and control” over Guantanamo Bay, and thus, that the Guantanamo prisoners have the right to challenge their detentions before a judge. Under the habeas corpus statute, Justice John Paul Stevens writes for the majority that “aliens held at the base, no less than American citizens, are entitled to invoke the federal courts’ authority.” [Supreme Court opinion on writ of certiorari. Shafiq Rasul, et al. v. George W. Bush, et al., 6/28/2004] It is unclear whether the court’s ruling is intended to extend to detainees held in other parts of the world, but given the court’s reasoning, it appears that decision applies to detainees both in Guantanamo and elsewhere. [New York Times, 6/29/2004]
Conservative Dissent - The three dissenting justices are conservatives William Rehnquist, Antonin Scalia, and Clarence Thomas. Scalia says the decision is “an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field.” He acknowledges that the location of Guantanamo has in fact been intended to keep detainees outside of the reach of the judiciary. “Today, the court springs a trap on the executive, subjecting Guantanamo Bay to the oversight of federal courts even though it has never before been thought to be within their jurisdiction, and thus making it a foolish place to have housed alien wartime detainees,” Scalia writes. Stevens writes that it does not matter what status the Guantanamo inmates have regarding the question of whether they should have access to a US court. “What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” And this, he writes, they do. The case is subsequently sent back to a lower court to consider the prisoners’ claims. [Guardian, 6/28/2004]
Side-Stepping the Ruling - The media characterizes the decision as a rebuke for the Bush administration, which had argued that the courts have no right to interfere in the commander in chief’s decisions involving wartime policies. However, the decision says nothing about what rights the detainees might have once they get inside a courtroom, and therefore actually places little real restraint on the government. White House officials will decide that the detainees have no rights in the courtroom whatsoever—although the Court has ruled that they can file lawsuits, those lawsuits must be dismissed out of hand because the detainees have no right to actually present a case. The Republican-led Congress will later pass a law stripping courts of jurisdiction over Guantanamo lawsuits. [Savage, 2007, pp. 192]

Entity Tags: William Rehnquist, Shafiq Rasul, Mamdouh Habib, Antonin Scalia, David Hicks, Asif Iqbal, John Paul Stevens, Clarence Thomas

Timeline Tags: Torture of US Captives

Category Tags: Court Procedures and Verdicts, Expansion of Presidential Power, Detainments Outside US, Gov't Violations of Prisoner Rights

In the case of Jose Padilla v. Donald Rumsfeld (see June 9, 2002), the Supreme Court votes 5-4 in favor of the government, declining to rule on the basis of a technicality. The majority argues that Padilla’s petition was incorrectly filed in New York rather than in South Carolina, where he is currently held. While Padilla was held in New York in preparation for an appearance before a grand jury, Defense Secretary Rumsfeld designated him an enemy combatant. Padilla was thereupon transferred to military custody and sent to a naval brig in South Carolina to be detained indefinitely. His lawyer meanwhile, unaware of her client’s transfer, filed a habeas corpus petition in New York against Rumsfeld (see June 11, 2002). This was erroneous, says the majority, which rules that Padilla has to re-file his petition in South Carolina. Four dissenting judges condemn the “secret transfer” of Padilla. Justice John Paul Stevens, writing for the minority, declares, “At stake in this case is nothing less than the essence of a free society.” Stevens also condemns the use of “incommunicado detention for months on end” as a means “to extract information” and places it among the “tools of tyrants.” [Supreme Court opinion on writ of certiorari. Shafiq Rasul, et al. v. George W. Bush, et al., 6/28/2004] Therefore, in essence, the majority declines to rule on the merits of the case. [Savage, 2007, pp. 193]

Entity Tags: Jose Padilla, John Paul Stevens, Donald Rumsfeld

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Expansion of Presidential Power, Detainments in US, Gov't Violations of Prisoner Rights

Wisconsin Right to Life logo.Wisconsin Right to Life logo. [Source: Dane101 (.com)]After the passage of the Bipartisan Campaign Reform Act of 2002 (BCRA—see March 27, 2002), also known as the McCain-Feingold law after its original sponsors, and the 2003 McConnell Supreme Court decision that upheld the law (see December 10, 2003), corporations and labor unions are prohibited from airing ads that attack candidates but avoid specific language that turns the ads from general commercials into “campaign” ads within 30 days of a primary election or 60 days of a federal election. Wisconsin Right to Life (WRTL) comes to anti-abortion and anti-campaign finance lawyer James Bopp Jr. (see November 1980 and After) with a dilemma. The WRTL wants to run ads attacking Senator Russ Feingold (D-WI), a powerful advocate of abortion rights, for his record of opposing President Bush’s judicial nominees. It intends to use the ads as campaign attack ads against Feingold, but skirt the BCRA’s restrictions by not specifically discouraging votes for him, thereby giving the appearance of “issue” ads and thusly not running afoul of the BCRA. Bopp is worried that the McConnell decision, just rendered, would make the Court reluctant to reverse itself so quickly. Bopp knows that the McConnell decision was in response to a broad challenge to the BCRA that argued the law was unconstitutional in all circumstances. Bopp decides to challenge the BCRA on behalf of the WRTL on narrower grounds—to argue that the specific application of the BCRA in this instance would violate the group’s First Amendment rights. He decides not to file a complaint with the Federal Election Commission (FEC) because of that agency’s notoriously slow response time, but instead files a preemptive challenge in court objecting to the BCRA’s ban on “issue advertisements” in the weeks before elections. Bopp is encouraged by the prospects of a court challenge that may wend its way to the Supreme Court, as the “swing” vote in McConnell was Justice Sandra Day O’Connor, who has been succeeded by the more conservative Samuel Alito (see October 31, 2005 - February 1, 2006). [New Yorker, 5/21/2012] Bopp will prove to be correct, as the Supreme Court will find in WRTL’s favor (see June 25, 2007).

Entity Tags: Russell D. Feingold, Federal Election Commission, Bipartisan Campaign Reform Act of 2002, George W. Bush, Samuel Alito, James Bopp, Jr, Wisconsin Right to Life, US Supreme Court, Sandra Day O’Connor

Timeline Tags: 2004 Elections

Category Tags: Campaign Finance, Court Procedures and Verdicts, Election, Voting Laws and Issues

The Supreme Court declines without comment to hear an appeal by “enemy combatant” Ali Saleh Kahlah al-Marri (see December 12, 2001 and June 23, 2003). Al-Marri has filed a civil suit, Al-Marri v. Rumsfeld, challenging his detention and his status as an enemy combatant. Previously, courts ruled that al-Marri’s lawyers should have filed the suit in South Carolina, where al-Marri is being held in a Charleston naval brig, not in Illinois, where al-Marri was attending college. The Supreme Court refused to overturn that decision. Al-Marri’s lawyers intend to refile the suit in South Carolina (see August 8, 2005). [Al-Marri v. Rumsfeld, 6/2004; Associated Press, 10/4/2004; Slate, 4/20/2006]

Entity Tags: US Supreme Court, Ali Saleh Kahlah al-Marri

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

British Guantanamo prisoner Feroz Abbasi argues during his Combatant Status Review Tribunal hearing that he should be granted POW status in accordance with the Geneva Conventions. One of the three Tribunal members, an Air Force colonel, replies: “Mr. Abbasi, your conduct is unacceptable…. I don’t care about international law. I don’t want to hear the words ‘international law’ again.” [Sunday Times (London), 11/21/2004]

Entity Tags: Feroz Abbasi, Geneva Conventions

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Gov't Violations of Prisoner Rights

Accused terrorist Yaser Esam Hamdi returns to Saudi Arabia aboard a US military jet. Earlier in 2004, the US Supreme Court ruled that the US government could not continue to hold Hamdi, a US citizen, as an enemy combatant without allowing him to challenge that status (see June 28, 2004). The US government was still free to bring charges against him but instead chose to negotiate with his attorneys about a release. In exchange for his release, Hamdi agrees to renounce his US citizenship and pledge never to travel to Afghanistan, Iraq, Israel, Pakistan, Syria, the Palestinian West Bank, or Gaza. He must also report any intent to travel outside Saudi Arabia. [CNN, 10/14/2004]
'Shocking Admission' of Lack of Criminal Case against Hamdi - Andrew Cohen comments in the Los Angeles Times, “If Hamdi is such a minor threat today that he can go back to the Middle East without a trial or any other proceeding, it’s hard not to wonder whether the government has been crying wolf all these years.” He calls the release “a shocking admission from the government that there is not now, and probably never has been, a viable criminal case against Hamdi.” [Los Angeles Times, 8/16/2004]
Hamdi Case Used to Set Favorable Precedent? - Author and reporter Charlie Savage will agree with Cohen. “Hamdi’s release meant that a prisoner who the White House had once sworn was too dangerous to be allowed access to a lawyer was now going free—just like hundreds of prisoners from Guantanamo who were held without trial for years and then quietly released,” Savage will write. He will note that many administration critics believe Hamdi’s case had been used as a tool by the administration to get a favorable judicial precedent and, once that precedent had been put in place, the administration had no more use for Hamdi and threw him out of the country rather than actually continue with a problematic trial or legal proceeding. [Savage, 2007, pp. 199-200]

Entity Tags: Charlie Savage, Yaser Esam Hamdi, Andrew Cohen

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

Fawzi Khalid Abdullah Fahad al-Odah.Fawzi Khalid Abdullah Fahad al-Odah. [Source: Cageprisoners]US District Judge Colleen Kollar-Kotelly rules on a lawsuit filed by three Kuwaiti detainees at Guantanamo: Mohammed Ahmed al-Kandari, Khalid Abdullah Mishal al-Mutairi, and Fawzi Khalid Abdullah Fahad al-Odah. She rules that detainees should be permitted to communicate with their lawyers without the government listening in on their conversations. She says the government’s attempt to wire-tap detainee-attorney communications threatens to “erode [the] bedrock principle” of attorney-client privilege. She says the government is defending its position with “a flimsy assemblage” of arguments. “The government has supplied only the most slender legal support for its argument, which cannot withstand the weight of the authority surrounding the importance of the attorney-client privilege.” [Reuters, 10/20/2004] The three Kuwaitis, Judge Kollar states, “have been detained virtually incommunicado for nearly three years without being charged with any crime. To say that their ability to investigate the circumstances surrounding their capture and detention is ‘seriously impaired’ is an understatement.” [Associated Press, 10/21/2004] She does concede, however, that lawyers for the Guantanamo detainees are required to disclose to the government any information from their client involving future threats to national security. [Reuters, 10/20/2004]

Entity Tags: Fawzi Khalid Abdullah Fahad al-Odah, Mohammed Ahmed al-Kandari, Khalid Abdullah Mishal al-Mutairi, Colleen Kollar-Kotelly, James L. Pohl

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Other Surveillance, Gov't Violations of Prisoner Rights

Judge Susan J. Dlott, of Federal District Court in Cincinnati, blocks the election boards of six Ohio counties—Franklin, Lawrence, Medina, Cuyahoga, Scioto, and Trumbull—from holding voter verification hearings (see October 23, 2004-October 29, 2004). [WTOV 9 (Steubenville, OH), 10/27/2004; New York Times, 10/29/2004]

Timeline Tags: 2004 Elections

Category Tags: Court Procedures and Verdicts, Voting Rights, Voter Fraud/Disenfranchisement

In Akron, Ohio, the Summit County Democratic Party goes to the federal district court in an attempt to block the Republicans’ plan to station some 3,500 “challengers” at voting sites in 65 different Ohio counties (see 4:00 p.m., October 22, 2004). They say that the 1953 vote-challenge law—which critics say is rooted in a blatantly racist 1886 statute that emerged from the Civil War—jeopardizes people’s fundamental right to vote. The law allows citizens to be denied the right without an opportunity to be represented by an attorney or rebut evidence. The case will be decided Monday morning (see Early Morning, November 1, 2004) [Cincinnati Enquirer, 11/1/2004; Columbus Dispatch, 11/1/2004; Los Angeles Times, 11/2/2004]

Timeline Tags: 2004 Elections

Category Tags: Election, Voting Laws and Issues, Court Procedures and Verdicts, Voting Rights, Voter Fraud/Disenfranchisement

The United States Court of Appeals for the Sixth Circuit upholds Judge Susan Dlott’s October 28 ruling (see October 28, 2004) halting voter registration hearings (see October 23, 2004-October 29, 2004) in six Ohio counties. [New York Times, 10/29/2004]

Timeline Tags: 2004 Elections

Category Tags: Voting Rights, Court Procedures and Verdicts, Voter Fraud/Disenfranchisement

Judge Susan Dlott issues an injunction halting challenge hearings (See October 23, 2004-October 29, 2004) in all of the state’s 88 counties. [New York Times, 10/29/2004]

Entity Tags: Susan J. Dlott

Timeline Tags: 2004 Elections

Category Tags: Voting Rights, Court Procedures and Verdicts, Voter Fraud/Disenfranchisement

Ohio Attorney General Jim Petro, a Republican, files a suit in the 6th US Circuit Court of Appeals asking for a stay of the court decisions in Akron (See Late October 2004) and Cincinnati (See Evening, October 31, 2004). Petro claims that the two federal judges, one of whom was appointed by George Bush in 2002, are “injecting themselves” into the presidential elections and rewriting Ohio’s election laws. [Plain Dealer (Cleveland), 11/2/2004] The court will grant the stay early the following morning (See 1:24 a.m., November 1, 2004).

Entity Tags: Jim Petro

Timeline Tags: 2004 Elections

Category Tags: Voting Rights, Voter Fraud/Disenfranchisement, Court Procedures and Verdicts

In Cincinnati, Donald and Marian Spencer, go to federal district court to resume their challenge (see October 29, 2004) of a 1953 Ohio law that permits poll watchers to challenge voters (see 4:00 p.m., October 22, 2004). The couple contends that most of the Republican challengers will be working in the heavily black precincts in the Cincinnati area in order to suppress minority voters. The court decides early Monday morning (see 1:24 a.m., November 1, 2004). [Los Angeles Times, 11/2/2004]

Entity Tags: Marian Spencer, Donald Spencer

Timeline Tags: 2004 Elections

Category Tags: Voting Rights, Voter Fraud/Disenfranchisement, Court Procedures and Verdicts

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