Prominent Litigators Reflect On Supreme Court Term, Look To Future

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.”

Voting Rights Act Under Serious Scrutiny By U.S. Supreme Court

By Michael Combier-Talk Radio News Service

The U.S. Supreme Court ruled in a 8-1 vote that Section 5 of the Voting Rights Act "is a difficult constitutional question we do not answer today" but questioned whether the section is still significant in modern times.

Section 5 requires states with a history of flagrant voter disenfranchisement to seek the approval of a three-judge Federal District Court in Washington, D.C. or the Attorney General whenever they seek to alter state election procedures. Today’s decision of the court came in the case of Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr, Attorney General, et al., in which it was argued that since the district was not a state, they should not be required to seek Federal approval.

The issues raised in this case were the constitutionality of the Voting Rights Act as well as the possibility for the Austin district to opt out of Section 5’s requirements.

Chief Justice John Roberts delivered the opinion of the Court. “The historic accomplishments of the Voting Rights Act are undeniable...In part due to the success of that legislation, we are now a very different nation,” Roberts wrote.

“Things have changed in the South,” Roberts continued. “[Section 5‘s] formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions...the Act’s preclearance requirements and its coverage formula raise serious constitutional questions.”

Another question raised concerns over the repeated authorization of Section 5, which was only intended to last five years, by Congress. It was extended for another twenty-five years in 2006.

The Court reversed the judgement of the District Court and concluded that the Voting Rights Act “permits all political subdivisions, including the district in this case, to seek relief from its preclearance requirements”. Since the utility district is entitled to apply for bailout, the Court believed there was no reason to decide the constitutional issue.

Justice Clarence Thomas wrote separately, saying he would have struck down Section 5 as unconstitutional.

A Full House

Coffee Brown, University of New Mexico, Talk Radio News

House Majority Leader, Steny Hoyer (D-Md.) presented the House Democrats’ agenda for the economy, energy, education and healthcare.

The economy remains the top item, divided between the budget and legislation to address the crisis. “The economy is continuing to suffer, we’re continuing to see the loss of jobs, many Americans continue to be put at risk,” Hoyer said.

The budget focuses on making “strategic investments” and reversing “years of irresponsible Republican policies,” he said. “We believe all of the bills we’ve passed are consistent with trying to create jobs and invest (in economic recovery).”

Two corrective legislations arebeing proposed. The “Credit Cardholders’ Bill of Rights Act of 2009”, which is designed to require fairer interest rates and practices for consumers. For example, it would require that the highest interest rate-bearing part of a debt be reduced first by payments, rather last, as is now the often the case.

“In addition, the Mortgage Reform and Anti-Predatory Lending Act should come out of committee this week or next,” Hoyer said.

There is a 600 page “discussion document” and four more hearings to shape the American Security and Clean Energy Act, which the House hopes to consider in early summer. He noted that this is this is the 39th anniversary of Earth Day, “I remember because I’ve been working here since the first one.”

The Energy and Commerce, Ways and Means and the Education and Labor Committees are all simultaneously working on healthcare reform. Democrats hope to have healthcare legislation on the House Floor for consideration by the August break. The goal is universal coverage and accessibility, though probably not a publicly funded single-payer model.

Hoyer discussed his recent trip to South America. Mexico seems to be committed to working with the U.S. to fight drug smuggling and related violence. Panama is willing to work on their role as a drug smuggling highway, which has increased as American forces become more successful at interdiction at sea, and on money laundering. Columbia has reduced the power of the drug lords. He described the discussions with Brazil as “positive’” “useful” and “engaging,” and said they are interested in advancing a partnership with the U.S.

Gun control may have to remain in the DC voting rights bill, if it is to pass within this session, according to Hoyer, who said, “The biggest objective is to enfranchise the roughly 600,000 citizens of the United States who happen to live in the District of Columbia.” He called their current lack of voting rights “an egregious hole in the integrity of our democracy.”

Next congress looks at hate crimes legislation