Tuesday
Jul072009
Prominent Litigators Reflect On Supreme Court Term, Look To Future
Tuesday, July 7, 2009 at 4:30PM
By Learned Foote - Talk Radio News Service
Lawyers who argued some of the year’s most controversial Supreme Court cases reflected on the past term during a panel at the Georgetown Law Center on Monday.
The combined experience of the panelists included work on such cases as the Voting Rights Act, Ricci v. DeStefano, District Attorney’s Office v. Osborne, Wyeth v. Levine, and Pleasant Grove City v. Summum. The issues at stake included free speech, the right to DNA testing after conviction, federal pre-emption, and rase-based hiring practices for firefighters.
Pamela Harris of O‘Melveny & Myers spoke as one of the attorneys who argued on behalf of members of the Summum Church, who wanted to erect a monument containing the Seven Aphorisms in a public park, near a monument to the Ten Commandments. The Supreme Court ruled against the Summum Church 9-0. “We knew we were losing this case going in,” she said. “The question for us was how did we want to lose the case.”
Harris said that the Court thought about the case not as a free speech issue, but rather in terms of the establishment clause, which prevents the government from favoring one religion over another. She said that the ruling means any monument in a public park could now be construed as government speech, and that future suits could use Pleasant Grove City v. Summum in cases that draw upon the establishment clause.
Gregory Coleman, Partner at Yetter, Warden, & Coleman, successfully argued both the Voting Rights Act and Ricci v. DeStefano in the span of one week. Both cases involved issues of race, and some civil rights groups have criticized the majority rulings in both cases.
Coleman said he was not disappointed that the Court made a narrow ruling on statutory grounds, rather than striking down Section V of the Voting Rights Act as Coleman had argued. “It’s kind of a warning shot to Congress,” Coleman said, and suggested that the Court might examine the constitutionality of the Voting Rights Act again if Congress does not act.
Neal Katyal, the Deputy Solicitor General, noted that the decision not to strike down Title V surprised some. He said that the Roberts Court contains many different models of judging, and Roberts often allows judges of separate persuasions to be pleased with a decision. At the same time, he noted that Justice Thomas is “not afraid to be the lone dissenter” in some cases.
Moderator Tony Mauro, Supreme Court Correspondent for Legal Times, asked whether the panelists believed the court was incrementalist and preferred small judicial steps. Harris disagreed, saying it seemed as though “the Chief Justice is going just as far to the right and he’s going there just as fast as Justice Kennedy is prepared to go along with him.”
Lawyers who argued some of the year’s most controversial Supreme Court cases reflected on the past term during a panel at the Georgetown Law Center on Monday.
The combined experience of the panelists included work on such cases as the Voting Rights Act, Ricci v. DeStefano, District Attorney’s Office v. Osborne, Wyeth v. Levine, and Pleasant Grove City v. Summum. The issues at stake included free speech, the right to DNA testing after conviction, federal pre-emption, and rase-based hiring practices for firefighters.
Pamela Harris of O‘Melveny & Myers spoke as one of the attorneys who argued on behalf of members of the Summum Church, who wanted to erect a monument containing the Seven Aphorisms in a public park, near a monument to the Ten Commandments. The Supreme Court ruled against the Summum Church 9-0. “We knew we were losing this case going in,” she said. “The question for us was how did we want to lose the case.”
Harris said that the Court thought about the case not as a free speech issue, but rather in terms of the establishment clause, which prevents the government from favoring one religion over another. She said that the ruling means any monument in a public park could now be construed as government speech, and that future suits could use Pleasant Grove City v. Summum in cases that draw upon the establishment clause.
Gregory Coleman, Partner at Yetter, Warden, & Coleman, successfully argued both the Voting Rights Act and Ricci v. DeStefano in the span of one week. Both cases involved issues of race, and some civil rights groups have criticized the majority rulings in both cases.
Coleman said he was not disappointed that the Court made a narrow ruling on statutory grounds, rather than striking down Section V of the Voting Rights Act as Coleman had argued. “It’s kind of a warning shot to Congress,” Coleman said, and suggested that the Court might examine the constitutionality of the Voting Rights Act again if Congress does not act.
Neal Katyal, the Deputy Solicitor General, noted that the decision not to strike down Title V surprised some. He said that the Roberts Court contains many different models of judging, and Roberts often allows judges of separate persuasions to be pleased with a decision. At the same time, he noted that Justice Thomas is “not afraid to be the lone dissenter” in some cases.
Moderator Tony Mauro, Supreme Court Correspondent for Legal Times, asked whether the panelists believed the court was incrementalist and preferred small judicial steps. Harris disagreed, saying it seemed as though “the Chief Justice is going just as far to the right and he’s going there just as fast as Justice Kennedy is prepared to go along with him.”
Supreme Court Hears Case Of Animal Cruelty And Free Speech
Animal cruelty clashed with first amendment rights today in the U.S. Supreme Court case of United States v. Stevens, which also marked Justice Sonia Sotomayor’s second day sitting as an Associate Justice in the Court’s new term.
In 2004, Robert Stevens was indicted and charged with selling three dogfighting videos to undercover law enforcement agents. Congress enacted the statute in 1999, which deemed that whoever sells depictions of animal cruelty would be fined and/or imprisoned for up to five years.
Steven’s 37-month sentence was 14 months longer than NFL quarterback Michael Vick’s, who had participated firsthand in a dogfighting venture. Although dogfighting is illegal in all 50 states, the practice is legal in Japan, where much of the footage in Stevens’ videos came from.
According to Neal Katyal, the government lawyer defending the law, a “robust market” in animal cruelty exists. Upholding the statute would dry up the market for such material, he argued. It would also add to the precedent set in New York v. Ferber in 1982, when the Court ruled that the First Amendment right to free speech did not forbid states from banning the sale of child pornography.
The Ferber case was the last time that the question of whether or not material was too obscene to receive first amendment protection was addressed.
Patricia Millett argued on behalf of Stevens, suggesting that the statute was drafted too broadly and that it applied to legally protected activity.
Congress had enacted Article 48 in order to outlaw “crush videos,” which depicted close-ups of women inflicting torture on animals such as hamsters, puppies and kittens with their bare feet or while wearing high-heeled shoes.
The Supreme Court will release their decision on the case later this year, although the tone of the hearing implies that the justices are leaning towards affirming the decision of the Court of Appeals in overturning the law.