15 October 2009

Deciding “What the Law Is”

 

In the justices’ conference room, President Obama and Vice President Biden pose with members of the Court.

In the justices’ conference room, President Obama and Vice President Biden pose with members of the Court.

By David G. Savage

David G. Savage writes about the Supreme Court for the Los Angeles Times and the Chicago Tribune. He is also the author of The Supreme Court and the Powers of the American Government and The Supreme Court and Individual Rights, both published in 2009 by CQ Press in Washington, D.C.

Savage identifies the kinds of cases that achieve Supreme Court review and outlines some of the cases the Court will consider in the 2009–2010 term.

The U.S. Supreme Court opens its annual term in October, facing an intriguing array of cases and legal questions, all having bubbled up from state and federal courts across the nation. Some turn on the meaning of federal law. The others call for interpreting the Constitution.

For example, can federal prosecutors put in prison a man who sold videos showing farm animals being bitten and killed by vicious dogs? All the states have laws against animal cruelty, including dog fighting. Congress went further and made it a crime to sell photos or videos of animals being tortured and killed.

But when Robert Stevens was convicted for selling dogfighting videos, a U.S. appeals court in Philadelphia freed him and ruled the law violated the First Amendment to the Constitution. It says, “Congress shall make no law … abridging the freedom of speech.” On October 6, 2009, the Supreme Court justices heard the case of U.S. v. Stevens to decide whether a dog-fighting movie deserves to be protected as free speech.

The next day, in the case of Salazar v. Buono, the Court considered whether a cross honoring fallen soldiers can be maintained in a national park. Last year, a U.S. appeals court in San Francisco said the cross must be removed because this Christian symbol on public land violates the First Amendment’s ban on “an establishment of religion” by the government.

Not all the cases involve such abstractions. Chermane Smith wanted the Chicago police to return her car — and soon. It was seized when her boyfriend was arrested in it and was found to be carrying illegal drugs. The Illinois Drug Asset Forfeiture Procedure Act allows the state to seize vehicles used in the commission of drug crimes. As an innocent owner, Smith was entitled to have her car returned, but the city could take up to six months to hold a hearing to decide how to dispose of this seized property. She and other Chicagoans sued, citing the Constitution’s clause that says the government may not take property “without due process of law.” In Alvarez v. Smith, heard on October 14, the justices will consider whether these car owners are due a prompt hearing.

In all, 45 cases are set to be heard between the first Monday of October and the early weeks of January. During that time, the justices also will be sifting through the roughly 150 appeal petitions that arrive every week. A few of them — about 1 percent of the total — will be accepted for review, and argument of those cases will be scheduled in three or four months.

Deciding “What the Law Is”

The Supreme Court sits atop a federal court system that includes magistrates and U.S. district judges, and above them, 12 regional appeals courts and a specialized court that reviews patents and international trade claims. Most Supreme Court cases reach the justices after moving up through the system. Cases also come to the High Court from a state supreme court if the dispute turns on an issue of federal law or the Constitution.

To win a review in the High Court, you must be a loser. The Court hears appeals only from persons or parties who have lost a case, or at least a significant part of a case, in a lower court. The case also must present a live dispute with real consequences. Article III of the U.S. Constitution has been interpreted as allowing federal courts to hear only cases posing an “actual controversy” — no advisory opinions allowed. Most importantly, however, the case must present a significant legal question that is in dispute. The first reason for accepting the case, according to the justices, is when the U.S. appeals courts have divided on an issue of federal law.

 

Plaintiff and musician Diana Levine won her case before the Supreme Court.

Plaintiff and musician Diana Levine won her case before the Supreme Court.

Plainly it will not do for the same law to be interpreted differently in different parts of the country. It takes the votes of at least four of the nine justices to hear a case. And it takes a majority of the justices participating, or five if all nine participate, to decide a case.

Throughout its history, the Supreme Court’s unique role has been to state the law and to define the powers of the government. “It is emphatically the province of the judicial department to say what the law is,” declared Chief Justice John Marshall in 1803. His opinion in Marbury v. Madison set forth three principles that formed the basis of American constitutional law. First, the Constitution itself stood above ordinary laws, including those passed by Congress and signed by the president. Second, the Supreme Court would define the Constitution and say “what the law is.” And third, the Court would invalidate laws that it believed were in conflict with the Constitution.

To those who are not familiar with America’s democracy — as well as to many who are — it may seem peculiar to rest so much power in the hands of nine unelected judges. They can strike down laws — federal, state, and local — that were enacted by the people and their representatives. A paradox it may be, but this was not an accident or a mistake. The framers of the Constitution placed great faith in the notion of a written plan for government that would stand as the law. It gave specific powers to three branches of government, dividing authority among them. The first 10 constitutional amendments, known as the Bill of Rights, set out the rights reserved for the people. For this grand plan to work, some one or some body independent of political conflicts had to enforce the Constitution as the fundamental law. The Supreme Court is that body.

Federal vs. State Laws

As composed in 1787, the Constitution had only 4,500 words. It left many questions unanswered. Foremost among them was: What about the states? The representatives of 12 states (of the 13 original states, Rhode Island did not participate) wrote and ratified the plan for a new federal government, yet then, as now, most aspects of day-to-day governance remained with states and municipalities. There, citizens register to vote. There, roads, schools, parks, and libraries are built and operated. There, police and fire departments protect the public’s safety. The Supreme Court has devoted much of its time to refereeing conflicts between the national authority and the states. It has not resolved all the conflicts. The Civil War began in 1861 when the southern states asserted a right to secede from the United States.

These disputes, though not so fiery, continue today. Nearly every term, the Court decides one or more cases involving conflicts between federal regulations and state laws. Many products, including prescription drugs, are regulated by the federal government. However, the states have laws that allow injured consumers to sue a manufacturer. Acting under such a law, Diana Levine, a musician from Vermont, won a $7 million verdict after suing drug maker Wyeth. She had been injected with an anti-nausea drug sold by Wyeth, Levine developed gangrene, and had her arm amputated. In its appeal, Wyeth’s lawyers argued that the drug and its warning label had been approved by the U.S. Food and Drug Administration, and that approval should shield it from being sued. The Supreme Court disagreed in Wyeth v. Levine on March 4, 2009. By a 6-to-3 vote, the Court ruled that federal approval of a drug does not “preempt,” or override, a state’s consumer protection law.

Sometimes, a Supreme Court ruling can reshape a whole area of business. In 1980 the Court, by a 5-to-4 vote, upheld a patent for a genetically engineered bacterium that could break down crude oil. Objectors had said a living organism could not be patented. This decision in Diamond v. Chakrabarty is credited with launching the biotechnology industry.

In this term, the Court will decide whether a novel business method can be patented. Bernard Bilski and a co-inventor devised a mathematical formula for hedging the risk of energy costs due to fluctuations in the weather, and it has been used by schools and businesses. But the U.S. Patent and Trademark Office rejected Bilski’s patent application on the grounds that his was an abstract, albeit useful, idea that did not involve a machine or transform physical matter. Lawyers say the outcome in Bilski v. Doll could affect the status of thousands of patents in many areas, including computer software.

But the Court’s best-known recent decisions arose from constitutional claims involving individual rights. Prior to the 20th century, the justices said the Bill of Rights limited only the federal government. After all, the first words of the First Amendment are “Congress shall make no law ….” Beginning in the 1930s, however, the Court decided that the due process clause of the 14th Amendment, which did not apply to the states (“nor shall any State deprive any person of life, liberty, or property, without due process of law”), “incorporated” certain fundamental rights, such as freedom of speech and freedom from unreasonable searches. This notion was a powerful one. It meant the protections of the U.S. Constitution reached into every local police station or jail, every public school and town council. The most controversial rulings of recent decades enforced constitutional rights to upset long-standing practices and customs. These include Brown v. Board of Education (1954), which outlawed racial segregation in public schools; Engel v. Vitale (1962), which prohibited “official prayers” in public schools; Miranda v. Arizona (1966), which told police they must warn crime suspects of their right to remain silent; and Roe v. Wade (1973), which struck down many state laws against abortion.

“Fidelity to the Constitution”

Each Supreme Court term presents new controversies. In fall 2009, the Court will decide whether it is “cruel and unusual punishment” to sentence a juvenile offender to life in prison, without the possibility of parole, for a crime less than murder. Two cases from Florida will be heard on November 9, 2009. Sullivan v. Florida concerns the now 33-year-old Joe Sullivan, who was 13 years old when he was convicted of the rape of an elderly woman and sent to prison for life. Graham v. Florida concerns Terrance Graham, who was given a life term for an armed burglary he committed when he was 16. According to a 2005 Amnesty International report, at least 2,225 people were serving life prison terms in the United States for crimes they committed as juveniles.

Until now, the justices have been wary of setting constitutional limits on prison terms. However, the Court has invoked the Eighth Amendment’s ban on “cruel and unusual punishment” to limit the death penalty, including a 2005 ruling in Roper v. Simmons that ended capital punishment for those under age 18 who commit a murder.

Critics in Congress and elsewhere faulted the Court’s opinion for acknowledging “the overwhelming weight of international opinion” against capital punishment for under-age criminals. “The United States now stands alone in a world that has turned its face against the juvenile death penalty,” wrote Justice Anthony M. Kennedy. He stressed, however, that the Court’s ruling rested on “national consensus” in the United States today that executing a juvenile criminal was both cruel and unusual.

“Over time, from one generation to the next, the Constitution has come to earn the high respect and even, as [framer of the Constitution and subsequently President James] Madison dared to hope, the veneration of the American people,” Kennedy wrote in the closing passage. “It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.”

The opinions expressed in this article do not necessarily reflect the views or policies of the U.S. government.