Trialbriefs.com
Analyzing Legal Cases and Issues which Impact You
September 2008
June 4, 2008: The Presidential election is on. It is Barack
Obama v John McCain.
If elected John McCain has vowed to appoint Justices to the Supreme Court
who will overturn Roe v Wade.
If elected Barack Obama has vowed to support
a woman's right to choose.
Commentators have observed that this election will be the best test of
opposing views of Presidential candidates in their lifetime. Nowhere are
the differences more clear than in the candidate's positions on
appointment of federal judges including the Supreme Court. Trialbriefs
began following politics and the Supreme Court in the summer of 2000.
Today we resume coverage with Roe v Wade. Yes, despite 8 years and
2 new Supreme Court appointments, Roe v Wade is a major
consideration in the presidential election of 2008.
March 1, 2008: Is another Supreme Court decision, ala Bush v Gore
on the horizon? Would McCain's vow to appoint Justices who do not
legislate mean that his appointments would not permit him to run for
office? Who would have standing to challenge his eligibility? Another
candidate, or one citizen so long as he or she is registered to vote in
the presidential election?
The Constitution states "No person except a natural born
Citizen,...shall be eligible to the Office of President;" John
McCain, the presumptive Republican candidate for President was born in
Panama while his father was stationed there in the military. Senator McCain's staff as well as prominent Democrats believe that
the Constitution should be interpreted in his favor because he was born in
Panama presumably on a military base because his father was in the
military. Non-activist justices, however, do not believe in interpreting
the Constitution to fit current circumstances. Originalists such as
Justice Scalia will be hard pressed to find an "exception" to
include Senator McCain. Perhaps, for this decision Justices Roberts, Alito,
Scalia, Thomas, and Kennedy will see there way clear to being
"activists".
October 1, 2007: The first Monday in October.
The US Supreme Court opens the 2007 session on the first Monday in
October. This year's opening was preceded by interviews, books and efforts
to shape individual justice's legacies. Yet, there is no more transparent
profession than appellate judges since their decisions and reasoning are a
matter of public record. We shall report the decisions as they occur.
July, 2007: Roberts' Court under scrutiny.
Justice Roberts' first full term as Chief Justice is being evaluated
now. According to law the official end of the 2006 term is the first
Monday of October when the 2007 term begins. Because the Supreme Court's
sessions normally end in late June or early July, this is high
season of analysis. The decisions have been rendered. If there were an
ESPN of Trialbriefs.com this would be that time in the fall when
baseball play-offs are underway and football and basketball are
ratcheting up.
What was the impact of Rehnquist's death and Sandra Day O'Connor's
retirement? Most analysts agree it is more conservative. That is not so
much because Roberts replaced Rehnquist as Chief Judge, as it is because
Kennedy replaced Justice O'Connor as the swing vote. "Swing"
vote refers to the 5 in 5-4 decisions. There was an extraordinary number
of 5-4 decisions this term, 24. Also extraordinary is the fact that
Justice Kennedy voted with the majority in every one of those
decisions.
Conventional wisdom argues that there are 4 conservative stalwarts:
Scalia, Thomas, Roberts, and Alito and 4 liberal stalwarts: Stevens, Ginsburg, Souter, and Breyer.
The headline decision is Gonzales
v Carhart.
Decided on April 18, 2007, (5-4 with Kennedy in the majority) the
court upheld the ban on partial birth abortion.
This decision effectively reverses Sternberg
v.Carhart decided in late June of 2000 (5-4 with Kennedy in the
majority). Sandra Day O'Connor voted with the majority to declare
Nebraska's partial birth abortion ban unconstitutional in Sternberg. Any
one who followed the Senate Judiciary hearings for Alito and particularly
Roberts realized that abortion rights were critical to how Senators voted.
Who could forget Pennsylvania Senator Spectre's chart and his use of
the term "super precedent" referring to Roe v.Wade?
President Bush campaigned in 2000 and 2004 on the fact that given a
vacancy on the Supreme Court, he would nominate people who were
non-activists, buzz word for conservative. Senatorial candidates did
likewise. So politics and the Supreme Court converged in 2005 when the
Senate Judiciary Committee recommended Roberts and Alito to the Republican
controlled Senate which voted to approve their nominations.
It is important to be aware that there is no constitutional imperative for
a state to enact a partial birth abortion statute. Ultimately the people
can make this decision.
We will analyze other ideologically based cases. The next case to be
analyzed will be : Bowles
v Russell.
The Supreme Court ruled 5-4 (Kennedy in the majority) to overturn
precedents from 1960's which allowed special circumstances to allow filing
after a deadline. Thomas wrote for the majority that it would deny the
filing of a Federal Appeal after the deadline even though the inmate's
attorney was given the wrong date by a judge. Yes, that is right even
though a federal judge made a mistake. How can this be?
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