by David G. Savage

Undaunted by election results on Nov. 4, several persistent plaintiffs have pursued lawsuits asserting that President-elect Barack Obama is ineligible to hold the office of president because he is not an "natural born citizen." Their claims were rejected in lower courts, but they have filed motions and appeals at the U.S. Supreme Court.

Q: What do these suits say?

A: One filed by Philip Berg, a lawyer in Lafayette Hill, Pa., asserts that Obama was born in Kenya, even though he has a birth certificate from the state of Hawaii showing he was born there on August 4, 1961. A second, by Leo C. Donofrio of East Brunswick, N.J., asserts that neither Sens. John McCain nor Obama were natural born citizens.

"Even if it were proved (Obama) was born in Hawaii," he was not a "natural born citizen," Donofrio says, because Obama's father was born in Kenya. But under U.S. law, persons born in the U.S. are natural born citizens.

Berg sued Obama, while Donofrio sued New Jersey's secretary of state. Initially, the suits sought a court order to remove Obama's name from the ballot. Since early November, they have lodged appeals and motions saying courts should intervene to block Obama from becoming president.

Q: How have these suits fared?

Theresa Cao speaks about President-elect Barack Obama's proof of U.S. citizenship outside the Supreme Court in Washington, Friday Dec. 5, 2008. (AP Photo/Jose Luis Magana)

by Frank James

No announcement today from the Supreme Court about whether it will hear what I call the Obama-isn't-a-natural-born-citizen-so-he-can't-be-president lawsuit, officially known as Donofrio v. Wells.

As I wrote yesterday, Justice Clarence Thomas had the case listed for the justices' Friday conference where the court's members, among other orders of business, decided what cases to hear arguments on.

Donofrio wasn't announced as one of the two cases the court decided to take. Scotusblog has details on the cases.

I'm told by a Supreme Court watcher that the lack of an announcement doesn't mean the court definitely won't hear Donofrio although he thinks it's safe to say its unlikely the court won't hear the case. The full orders aren't due until Monday.

So we'll just have to stay tuned.

People wait in line to enter the US Supreme Court on October 6, 2008. (Photo: KAREN BLEIER/AFP/Getty Images)

by Frank James

David Savage, who covers the Supreme Court for the Tribune's Washington bureau, has a good piece that looks at what liberals hope to get from President-elect Barack Obama in terms of future justices. The conclusion, they're not likely to get the liberal they seek but a moderate.

The piece makes the salient point that with his background teaching constitutional law, Obama will need less advice on whom to select for the high court than most recent presidents.

by James Oliphant

Barack Obama will be interviewed on the NBC Nightly News tonight, part of his Closing Argument Tour--coming soon to a swing-state near you.

In the interview with Brian Williams, Obama explained the criteria he would employ for selecting justices for the Supreme Court. The next president likely could see one, perhaps two, vacancies in the next four years. And in fact, five justices on the court are 70 or older.

Obama suggests that an originalist such as Justice Antonin Scalia need not apply.

Here's an excerpt. Obama's sit-down will be shown in two parts on Thursday and Friday.

WILLIAMS: Senator, a question about the Supreme Court. Everyone running for President always says, especially on the narrow issue of abortion rights-- no litmus test. It-- it's said on both sides of the issue. And if that's true, if you're not going to call a future Justice into the Oval Office, if you're successful in this endeavor and bring up the subject, how then do you also avoid surprises? I don't think-- George H.W. Bush, 41, ever dreamed that in Justice Souter he was appointing a dependable liberal vote.

OBAMA: Right.

Justice John Paul Stevens jokes with Justice Antonin Scalia at a dinner in Chicago in May. (AP/Charles Rex Arbogast)

by James Oliphant

As South Siders go, they could scarcely be more different.

One born and bred in the city of Chicago, whose roots reach so deep that he attended the 1932 World Series at Wrigley Field, and his family once owned the downtown hotel now known as the Hilton and Towers. The other a relative transplant, a product of Kenya and Kansas, Indonesia and Hawaii, who has become the city's adopted son.

But it's entirely possible that Justice John Paul Stevens' future could be linked to that of Sen. Barack Obama. If Obama wins the presidency next month, the 88-year-old Stevens, who has served on the Supreme Court for more than 30 years, could finally retire and allow Obama to choose his successor.

If that should occur, Stevens' long tenure on the high court would be book-ended by two transformative moments in American history. He was named to the court following the Watergate scandal that forced Richard Nixon from office. And he would leave after the election of the first African-American president.

His departure would also offer Obama the opportunity to slow, if not reverse, the court's conservative drift by replacing an aging member of the court's liberal wing with a fresh face poised to do battle with such justices as John Roberts and Samuel Alito.

by James Oliphant

Lawyers for convicted Texas murderer Jose Medellin filed an emergency application with the Supreme Court Friday in an attempt to stave off his execution, scheduled for Aug. 5.

The application was made to Justice Antonin Scalia, who oversees death penalty appeals from the U.S. Court of Appeals for the Fifth Circuit.

Medellin is the central figure in a long legal tug-of-war between the federal government and the State of Texas, which wants to execute Medellin for the savage murder of a teenage girl in Houston in 1993.

The U.S. government has been attempting to convince Texas officials to delay Medellin's execution until it can satisfy obligations arising from a judgment by the International Court of Justice that Medellin and 50 other Mexican-born defendants on Death Row in America were denied the opportunity to consult with the Mexican government prior to their convictions and sentences.

The application filed Friday says:

There is no dispute that if Texas executes Mr. Medellin in these circumstances, Texas would cause the United States irreparably to breach treaty commitments made on behalf of the United States as a whole and thereby compromise U.S interests that both this Court and the President have described as compelling.

The Vienna Convention, to which the U.S. is a party, requires that foreign nationals arrested in a signatory country be given the right to meet with officials from their representative consulate. That was not done in Medellin's case. Mexico complained to the International Court of Justice, an adjudicatory arm of the United Nations.

Last term, the Supreme Court ruled that President Bush had overstepped his executive authority in ordering Texas officials to comply with the international court directive that Medellin's death sentence and those of the other 50 Mexican nationals be independently reviewed. Efforts are now underway in Congress to adopt legislation that would provide a mechanism for those reviews.

by Aamer Madhani

In the aftermath of the Supreme Court ruling last month that detainees at Guantanamo Bay have a constitutional right to challenge their detention in federal court, Attorney General Michael Mukasey today called on Congress to spell out how the so-called habeas corpus proceedings should be conducted.

Mukasey said the legislation should clearly spell out that the detainees will not be allowed in the United States for their habeas corpus hearings and that detainees who successfully challenge their detention should not be released in the United States.

The attorney general also said that Congress needs to make certain that in affording the Guantanamo detainees their constitutional rights that U.S. national security is not made vulnerable.

"One could say, I suppose, that these questions should be left to the courts to resolve through litigation, but I do not think that is the most prudent course," Mukasey said in a speech at the American Enterprise Institute, a conservative Washington think tank. "Unless Congress acts, the lower federal courts will determine the specific procedural rules that govern themore than 200 cases that are now pending. With so many cases, there is a serious risk of inconsistent rulings and considerable uncertainty."

Mukasey's call for legislation comes after the high court ruled 5-4 last month that Guantanamo detainees were denied their constitutional right to challenge their incarceration before a federal judge.

Mukasey expressed concern that the Boumediene v. Bush leaves many questions open that Congress needs to address.

Will a detainee be able to subpoena a soldier to return from combat duty in Afghanistan or Iraq to testify? How will the courts deal with classified information during the proceedings? Can a detainee call on another detainee to testify?

by James Oliphant

A new poll suggests the U.S. Supreme Court stands squarely in the middle of the electorate, meaning nobody is happy with it.

All right, that's a bit of an overstatement. But a poll conducted by Quinnipiac University say 43 percent of Americans disapprove of the court's performance--the most in five years--and 42 percent say it's moving in the wrong direction.

But what direction do they want? There's the rub.

While 31 percent of those surveyed complain the court is too right-tilting, another 25 percent say it's too liberal. Thirty-three percent gave the Goldilocks answer, saying the court is "about right."

And 39 percent approve of the job the court is doing.

Perhaps most significant in an election year, 87 percent of those polled said the president's power to select Supreme Court justices is "very important" or "somewhat important" to them as they vote. The new president could end up replacing one or even two seats on the nine-member court.

As Joe Jackson sang: "You can't get what you want, 'till you know what you want."

by James Oliphant

Here, on the weekend that we celebrate the successful armed rebellion by America's founders, is the thought question of the day.

For years, anti-gun activists and others have whispered that the National Rifle Association, the most powerful gun lobby in the nation and one of the most powerful Washington lobbies on any issue, has really never wanted the Supreme Court to define the Second Amendment.

Why? Well, the theory went that a ruling such as the one the court handed down last week in District of Columbia v. Heller could dent the group where it hurts the most: fundraising.

After all, the NRA became the powerhouse that it is today largely because of the basic proposition it offered the American voter: The government wants to take your guns away.

by James Oliphant

One point of contention that arose during the annual review of the Supreme Court term conducted by the Federalist Society Tuesday is whether the general public follows the court and in fact considers its makeup when voting for president.

"There are 100 million voters out there and they don't care," said Thomas Goldstein, a Washington lawyer who frequently argues before the high court.

The court is never more in the news than at the end of its term, when it often releases its most high-profile and contentious decisions. That happened again this year, as the court in the last two weeks ruled Guantanamo detainees have habeas corpus rights to challenge their detentions in court, that Americans have a constitutional right to own a gun and that states can't extend the death penalty to child rapists.

All three decisions had legal commentators commenting furiously, had scholars debating, and had the presidential candidates bashing the court--or each other.

By James Oliphant

With his third term as chief justice coming to a close amid three explosive cases last week, John Roberts has proved to be almost everything conservatives hoped and liberals feared.

Despite pledges during his 2005 confirmation hearing to hew to judicial centrism, Roberts has shown himself to be a reliable member of the Supreme Court's right flank--rarely, if ever, disagreeing with its positions on civil rights, gun control, the death penalty, affirmative action and a host of other issues.

That may come as no surprise to those who paid close attention to Roberts' career before his elevation to the high court, but the picture is at odds with the non-ideological face he presented after his nomination.

"I come before this committee with no agenda, no platform," Roberts told the Senate Judiciary Committee in 2005. "I will approach every case with an open mind."

Roberts branded himself then a judicial "umpire" who called the balls and strikes as he saw them, without reference to ideology. He was confirmed by a wide margin, 78-22, with half of the Senate's democrats supporting him.

"Some people will like what Roberts has done and some people will be upset about it, but it is hard to describe it as the work of a 'neutral umpire,' " said Christopher Eisgruber, a professor at Princeton University and an expert on the court appointments process.

by James Oliphant

Reaction in Chicago was fast and mostly furious among city officials to Thursday's Supreme Court decision that found a constitutional right to gun ownership and struck down Washington D.C.'s ban on handguns.

While Mayor Richard M. Daley (who said "the world is laughing at us") and others grapple with how to defend the city's handgun ban from the oncoming legal onslaught, the members of the Chicago Tribune's editorial board had a more radical idea.

In an editorial in Friday's editions, it called for a repeal of the Second Amendment:

by Matthew Hay Brown

Washington Mayor Adrian Fenty expressed disappointment with the Supreme Court decision today to overturn the three-decade-old District of Columbia handgun ban, but said officials would move quickly to comply with the ruling.

"I have already directed the Metropolitan Police Department to implement an orderly process for allowing citizens to register handguns for lawful possession in their homes," Fenty told reporters this afternoon.

He went on to stress that the ruling would be limited in its impact on district statutes.

"This case is about a very narrow issue, and that is about the legal possession of handguns in the homes," he said. "It leaves intact various other laws that apply to private citizens who would purchase handguns or other firearms for home possession."

All firearms still must be registered with the police, Fenty said. Automatic and semi-automatic handguns generally remain illegal and no handguns can be carried outside of the home.

The mayor appeared with district Police Chief Cathy Lanier and Attorney General Peter Nickles.

"Now, let me be very clear," Nickles said. "You cannot go out today, if you have a handgun, and carry it around. This is not open season with handguns."

by Matthew Hay Brown, updated with comments from Pelosi and Shea-Porter

Congressional Republicans have wasted little time in trying to turn today's Supreme Court decision to overturn the District of Columbia handgun ban into a campaign issue.

With the ink on the ruling not yet dry, the National Republican Congressional Committee has issued a series of releases targeting vulnerable Democrats who had signed on to a friend-of-the-court brief in support of the ban.

A sample, circulated by the NRCC, takes aim at Democratic Rep. Carole Shea-Porter of New Hampshire:

"WASHINGTON - Rep. Carol Shea-Porter (D-NH) found herself on the losing end of the Supreme Court's ruling today, as her liberal opposition to Second Amendment rights was defeated. In an historic ruling, the Supreme Court overturned a ban on handguns and on self-defense in the home, in the case of District of Columbia v. Heller.

Opponents of the now overturned law had said it prevents residents from defending themselves. ...

"Shea-Porter also puts herself at odds with dozens of her fellow Democrats who signed onto the amicus brief that expressed support for the overturning of the gun ban.

" 'Shea-Porter's opposition to the Second Amendment puts her at odds with not only members of her own party, but the overwhelming majority her New Hampshire constituents,' said NRCC spokesman Ken Spain.

By James Oliphant

The U.S. Supreme Court Thursday furtively embraced an interpretation of the Second Amendment long advocated by gun-rights supporters, finding for the first time in tghe nation's history that the Constitution guarantees an individudal the right to own a handgun.

The court, in combustible 5-4 ruling, struck down Washington, D.C.'s total ban on handgun ownership. The decision greatly endangers, but not immediately affects, Chicago's similar gun ban.

The landmark decision was written by Justice Antonin Scalia, who, in describing the opinion in open court Wednesday, said the Second Amendment should be read expansively and that it "means pretty much what it means today, to have and carry weapons."

Scalia said people will "not be deprived of the right to keep and bear arms."

The ruling of the court however was, as was expected, narrow in scope, applying only to the specific aspects of Washington's law, which prohibits the ownership of handguns and their registration. The D.C. act also requires that shotguns in the home be disassembled or trigger-locked.

And like other individual rights, Scalia wrote, the right to own a gun is subject to reasonable regulation, including laws preventing felons and the mentally ill from owning guns and those forbidding guns in schools and government buildings. He also suggested that certain types of dangerous or unusual guns could be banned.

The opinion also appears to leave concealed carry laws intact.

He was joined in the opinion by Justices Anthony Kennedy, Clarence Thomas, John Roberts and Samuel Alito.

Justice John Paul Stevens summarized his dissent from the bench, blasting the majority for establishing what he called a "newly discovered" right and accusing the conservative bloc of not staying true to the principles of judicial restraint they frequently espouse.

The court, Stevens said, "is making new law today."

Both Stevens and Justice Stephen Breyer filed dissents in the case. They were joined by Justices David Souter and Ruth Bader Ginsburg.

The decision is 154 pages long and can be viewed here.

The Swamp will have more on this landmark ruling throughout the day.

By James Oliphant

The Supreme Court Wednesday chopped a titanic punitive damage award leveled at Exxon Mobil Corp. over the calamitous 1989 tanker accident and oil spill in Alaska's Prince William Sound.

The court reduced the award from $2.5 billion to $507.5 million, saying that punitive damage awards, even for disasters on the scale of the wreck of the Exxon Valdez, need to reasonably predictable for corporate actors and others and that too massive an award is unfair.

The decision, written by Justice David Souter, held that punitive damages should be awarded in an even ratio to compensatory damages in a given case. In the Exxon case, a jury awarded $507.5 million in compensatory damages to 33,000 fishermen and others who suffered severe economic harm when the Valdez ran aground and dumped millions of gallons of crude oil into the sound.

The court used that figure as a bases for reducing the $2.5 billion award. Souter cautioned that the court was acting as a maritime court in issuing its ruling, which would limit the breadth of its decision.

The Valdez was captained by the now infamous Joseph Hazelwood, who, Souter said, "left the helm at a critical moment." Hazelwood had been drinking. The Exxon supertanker then smashed into a reef.

A trial, a jury originally socked Exxon with punitives of $5 billion, but that number was cleaved in half by a federal appeals court.

At oral arguments in the case, Exxon had pleaded for relief, saying that it spent some $2.1 billion in clean up efforts, paid $900 million in fines to the United States and Alaska and another $303 million in payments to private parties.

Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer filed dissents saying they would have upheld the appeals court award of $2.5 billion.

Thursday will be the final day of the court's 2007-2008 term and the justices are saving perhaps the most dramatic opinion for last: the ruling on whether the District of Columbia's ban on guns violates the Second Amendment of the Constitution. That decision will be handed down shortly after 10 a.m., Eastern Time, Thursday.

By James Oliphant

A divided Supreme Court Wednesday slammed the door on expanding the death penalty to cover violent crimes that do not result in the death of the victim, overturning a Louisiana law that permitted capital punishment for child rapists.

In the 5-4 decision written by Justice Anthony Kennedy, the court held that the law violated the Constitution's prohibition on cruel and unusual punishment.

Allowing the execution of child rapists, Kennedy wrote, runs counter to "evolving standards of decency in a maturing society."

Kennedy said that the court and society has an interest in limiting the application of the death penalty, and noted that 44 states currently prohibit the execution of defendants who are convicted of crimes where a death did not occur.

The case involved Patrick Kennedy, who was convicted and sentenced to death for the 1998 rape of his 8-year-old stepdaughter. The girl was badly injured in the assault and required surgery.

Kennedy has insisted he is innocent. His lawyers have also argued that he is borderline mentally challenged.

The court's decision is in line with its decisions earlier this decade outlawing the execution of the mentally retarded and defendants who were juveniles when the capital offense was committed. Kennedy was the key figure in those cases as well.

Justice Samuel Alito filed a dissent in the case, joined by the other members of the conservative wing of the court, Justices Antonin Scalia, Clarence Thomas and John Roberts. The dissent pointed a small, but growing minority of states that have sought to broaden the death penalty to cover child rape.

"The harm that is caused to the victims and to society at large by the worst child rapists is grave," Alito wrote. "It is the judgment of the Louisiana lawmakers and those in an increasing number of other States that these harms justify the death penalty."

By David G. Savage

Weighing the balance between military readiness and environmental protection, the Supreme Court said Monday that it would decide whether the U.S. Navy must limit its use of high-powered sonar off the California coast to protect whales and other marine mammals.

The justices voted to hear the Navy's appeal of a judge's order that requires ships to turn down their sonar whenever whales or dolphins are spotted within 2,200 yards -- 1.25 miles. A modified version of the judge's order will remain in effect during the appeal, but the high court's decision to hear the case is a victory for the Navy and a setback for environmentalists.

Environmentalists point to studies of dead whales that washed ashore in the Bahamas, Canary Islands and Madeira islands after the Navy conducted war games nearby. Some of the animals appeared to have died of hemorrhages in and around their ears, brains and lungs. They also said the Navy's own studies forecast that training exercises off the California coast would "significantly disturb" an estimated 170,000 marine mammals.

But the Navy said training exercises using sonar have been conducted for 40 years off California, and they "produced no evidence of sonar-related harm to any marine mammal." Of special note, there are no reports of dead whales after these exercises, they said.

Read the full story in the Los Angeles Times.

by James Oliphant

The Supreme Court's flair for the dramatic is intact.

Monday marked the last scheduled day of the term and it came and went without any of the remaining high-profile cases being handed down.

The court has already announced it will release opinions on Wednesday and possibly Thursday or Friday.

What's left? Start with the eagerly anticipated decision on Washington, D.C.'s handgun ban, the first time in almost 70 years the justices have grappled with the meaning of the Second Amendment.

Thomas Goldstein, a Supreme Court advocate who runs a must-read blog for court-watchers called ScotusBlog, plays a bit of a parlor game in trying to figure out which justice is writing which decision. By his reckoning, which you can read here, Justice Antonin Scalia is likely writing the controlling opinion in the D.C. gun case.

That, of course, is bad news for those who who favor strong gun control restrictions. Scalia is likely to take a more absolutist stance on the Second Amendment than say a more moderate justice such as Anthony Kennedy or even Samuel Alito. Which means if Scalia is writing the opinion, you can pretty much bet your bottom dollar that the gun-ban will be overturned.

But on what grounds? And how sweeping will the ruling be? It's entirely possible, for instance, that Scalia may only be writing a plurality opinion and not a majority one. The difference? Justices concur and dissent from sections of opinions. And it's possible there are a majority of votes on the court to overturn the ban, but the reasons for doing so could differ, perhaps wildly. And a plurality opinion carries less weight than a clear, declarative opinion from a majority of the court.

Still, it is the law. And an opinion from Scalia will certainly contain enough Second Amendment jurisprudence to send shockwaves throughout both the gun-rights and gun-control communities, not to mention, perhaps, the presidential campaigns.

We may know as early as Wednesday morning the answer to these questions. Then again, given the court's sense of the dramatic, perhaps not.

by James Oliphant

The Supreme Court Monday upheld a federal law cited by authorities as an important tool to combat online child pornographers.

In the 7-2 ruling, the court dismissed arguments that the PROTECT Act, passed by Congress in 2003, was too broadly written and could make it a crime to possess or pander images that aren't sexually graphic.

In the opinion written by Justice Antonin Scalia, the court acknowledged that the statute also criminalized the pandering of kiddie porn images, not simply the possession of them, meaning that it regulates speech as well as conduct, saying:

Rather than targeting the underlying material, this statute bans the collateral speech that introduces such material into the child-pornography distribution network. Thus, an Internet user who solicits child pornography from an undercover agent violates the statute, even if the officer possesses no child pornography. Likewise, a person who advertises virtual child pornography as depicting actual children also falls within the reach of the statute.

But Scalia said the category of speech the statute addresses is fair game for regulation, writing "that offers to give or receive what it is unlawful to possess have no social value and thus, like obscenity, enjoy no First Amendment protection."

He also rejected an argument that persuaded the federal appeals court in Atlanta to overturn the statute--that the law makes it a crime to simply boast or brag about possessing images that someone else could believe to be child porn without that actually being true.

by James Oliphant

Staying on the course he set last month with the opinion he wrote in the Supreme Court's lethal injection case, Justice John Paul Stevens suggested in a speech this weekend that racehorses are put to death in more humane way than prisoners.

Speaking to a group of lawyers and judges Friday in Chattanooga, Tenn., Stevens received a round of applause when he brought up the euthanasia of Kentucky Derby entrant Eight Bells.

"I had checked the procedure they used to kill the horse," Stevens said, expressing surprise to learn it is against the law in Kentucky to kill animals using one of the drugs in a three-drug lethal injection cocktail that many believe is cruel to humans.

Kentucky's method for executing prisoners was the subject of a legal challenge in the Supreme Court. Last month, in a 6-3 decision, the court held the three-drug protocol did not cause cruel and unusual punishment to prisoners and was constitutional.

Stevens sided with the majority, but wrote a separate opinion in which, for the first time, he declared his opposition to capital punishment, saying the law in the area had become a hopeless muddle.

In Kentucky, a separate, one-drug procedure is used for horses.In Kentucky, a separate, one-drug procedure is used for horses. Critics of the three-drug protocol says that when done incorrectly, it can cause great pain in the prisoner, while a paralyzing agent would prevent him from crying out.

Mildred and Richard Loving, January 26, 1965. (AP Photo)

by Frank James

On this day when people in Indiana and North Carolina are choosing between the Democratic candidates for president, one of whom is the offspring of an interracial union, it's mind-boggling to think that just over 40 years ago, marriages like that which produced Sen. Barack Obama were illegal in many states, including North Carolina where voters are going to the polls.

But all that was changed in 1967 because of two quiet and courageous people who fought for their love by fighting an unjust law, Richard and Mildred Loving of Virginia. Their desire to have their marriage recognized in the eyes of the law in native state led them all the way to the U.S. Supreme Court which struck down all anti-miscegenation laws in the nation.

Mildred Jeter Loving, an African-American, died at 68 last week. Her husband was killed in 1975 by a drunken driver. But she and he will forever have a place in history as the Loving family in ironically perfect legal citation Loving v. Virginia.

A humble woman by all accounts, Loving didn't see herself as a hero akin to Rosa Parks. But she and her husband started something that hasn't ended, for champions of same-sex marriage view the Lovings as a model.

by James Oliphant

It sounds like Justice Antonin Scalia's move toward sunlight may be permanent.

Speaking on the program "Q & A" this weekend on C-SPAN, the acerbic Supreme Court justice addressed why he decided to become more available to the media. His appearance on C-SPAN marked a series of interviews on "60 Minutes," National Public Radio, MSNBC and elsewhere. He said it was more than just promoting his recent book on legal advocacy.

Scalia that friends and family had urged him to become less reclusive, and he said that he believes that the world has changed.

"I sort of came to the conclusion that the old common law tradition of judges not making public spectacles of themselves and hiding in the grass has just broken down," Scalia told host Brian Lamb. "It's no use. I'm going to make a public spectacle of myself whether I come out of the closet or not."

by James Oliphant

Justice Antonin Scalia, marking the rounds on a tour promoting his new book on legal advocacy, will appear on Tim Russert's interview show this weekend.

This isn't "Meet the Press;" it's Russert's other, kind-of-like-Charlie-Rose's show that runs on MSNBC over the weekend.

The MSNBC lists the interview as "very rare," but it's less rare than it was a week ago, as Scalia has already appeared on "60 Minutes" and National Public Radio this week.

Incidentally and apropos of nothing, Justice Samuel Alito attended the Brewers-Cubs game at Wrigley Field Thursday. He did not sing "Take Me Out to the Ballgame." (Here is a pic.)

And next week, Justice Stephen Breyer guests on "CSI:Miami" as a homicide investigator who's hiding a secret -- a secret that could prove explosive for Horatio.*

You can read about Scalia's newfound embrace of the media at chicagotribune.com.

* This isn't true.

by James Oliphant

There's Antonin Scalia chatting with Lesley Stahl on "60 Minutes." There's Scalia speaking at length on National Public Radio. And there he is again, taking questions from high school students on C-SPAN.

Picture Greta Garbo joining Facebook and you get the idea.

Until now, the Supreme Court justice has been notoriously allergic to the press. He has often excluded the media from public appearances, even barring C-SPAN from covering an award he received in 2003 for protecting freedom of speech. A year later, federal marshals guarding Scalia at a speech in Mississippi confiscated and erased a reporter's tape recorder, deleting the justice's comments. Then, in 2006, he brushed away a Boston reporter with a gesture that some claimed was obscene.

But this apparently is a new day, and not just for Scalia, but for other members of the high court.

Seven months ago, Justice Clarence Thomas, a fierce critic of the media since Anita Hill's allegations transformed his confirmation hearing into a lurid circus, also appeared on "60 Minutes," tooling around in his RV with correspondent Steve Kroft. He took ABC's Jan Crawford Greenburg to a football practice at the University of Nebraska and sat down with conservative talk show hosts such as Rush Limbaugh and Sean Hannity.

Thomas' turnaround may be even more stunning than Scalia's. After all, not only has he resisted speaking to the press, he hasn't even said a word during oral arguments in more than two years. But then, Thomas, like Scalia, had a book to promote.

Read the rest of the story at chicagotribune.com.

by James Oliphant

For years, Republicans have shouted from the mountaintops that fraud at the polling place is commonplace.

They've passed laws and formed task forces. Combating voter fraud was a centerpiece of Justice Department efforts under former Atty. Gen. Alberto Gonzales. And it's central to the ongoing controversy over blocked appointments to the Federal Election Commission.

All this has occurred, critics say, with little evidence that the threat is real. Or if it is, that it is, as some suggest, pervasive.

Monday, in a case that some compared to the landmark Bush vs. Gore decision in 2000 that made George W. Bush president, the Supreme Court seemed to say that any lack of proof really doesn't matter.

The court, in a 6-3 ruling, upheld an Indiana law requiring voters to show identification before voting and did so without requiring the state to demonstrate that voter fraud in Indiana was a significant problem.

The justices also largely dismissed concerns that scores of poor and minority voters who might lack an ID could be disenfranchised.

Read the rest of the story at chicagotribune.com.

by Matthew Hay Brown

Congressional Democrats are ripping into the Supreme Court ruling today that upheld Indiana's requirement that voters show identification before they may cast their ballots.

"The Court's decision today places obstacles to the fundamental rights of American citizens - especially the poor, the elderly, and individuals with disabilities - to participate in the electoral process," House Speaker Nancy Pelosi said. "Requiring American citizens pay for underlying documents needed for an identification card and travel to distant motor vehicle locations for processing hinders - and diminishes - their right to vote."

A week before the Indiana primary, the court decided 6-3 to uphold a law the state said was necessary to prevent voter fraud. Senate Majority Leader Harry Reid called such requirements "roadblocks to democracy."

"The fact that every Republican in the Indiana General Assembly supported this law and every Democrat opposed it speaks volumes about the improper partisan motives behind the photo-ID movement," he said.

Indeed, that divide is mirrored at the federal level: House Republican Leader John Boehner praised the court decision.

"No right carries with it more responsibility - or potential for grave abuse - than the sacred right to vote," he said. "With this ruling, the American people can have renewed faith in their government's ability to conduct fair and honest elections.

by James Oliphant

Justice Antonin Scalia, the Supreme Court's most famous justice as CBS News puts it, sat down for a lenghty interview on "60 Minutes" on Sunday.

An engaging and--dare we say even charming--Scalia talked to Lesley Stahl about his originalist view of the Constitution, his personal beliefs ("i'm a law-and-order guy"), and his views on abortion and Bush v. Gore. He also mentiones a period in the late 1990s when he seemed to doubt his ability to effect change on the court.

While none of his answers will surprise anyone who has followed the man, they do reveal a candor atypical of Supreme Court justices or, in fact, anyone who holds a powerful position in American government. But then, Scalia has the luxury of being electorally unaccountable as well as having no need to be a power-broker on the court.

by James Oliphant

Just a week before Indiana's presidential primary, the Supreme Court Monday upheld a state requirement that voters show identification at a polling place before being able to vote.

The 6-3 decision was a fractured one, with three justices taking a moderate course in writing the decision of the court. Justice John Paul Stevens penned that plurality opinion.

Opponents of the law, which included civil rights groups, argued that the requirement was unconstitutional because it burdened the right to vote and will affect the elderly, poor and minority voters disproportionately.

But the state said the measure is necessary to combat voter fraud and to modernize the election process. Indiana's law is considered the strictest in the nation. Other states as Georgia, Missouri and Arizona have enacted similar laws, and Monday's decision could invite more states and counties to do the same, potentially in time for the 2008 general election.

A majority of the justices were persuaded that combating voter fraud and preserving the integrity of the polling place were important enough objectives to justify the ID law.

by James Oliphant

Justice John Paul Stevens, the Chicago native who once was part of a Supreme Court majority that reinstated the death penalty in America in 1976, Wednesday indicated for the first time that he believes capital punishment is unconstitutional.

Writing to concur in the court's judgment in Baze v. Rees, the case out of Kentucky that questioned whether the method used for executing prisoners was unconstitutionally harmful, Stevens said he had become convinced that the death penalty no longer served a legitimate societal function.

Stevens noted that that when the Court reinstated the death penalty in 1976, it did so by identifying three purposes served by capital punishment: 1) incapacitation of the offender; 2) deterrence and 3) retribution.

He wrote that with the advent of longer prisoner sentences and the option of a life term without parole made incapacitation a weaker rationale. He then questioned whether the death penalty deters crime, long a subject of debate among researchers. "Despite 30 years of empirical research in the area, there is no reliable statistical evidence that capital punishment in fact deters potential offenders," he said.

by James Oliphant

The U.S. Supreme Court Wednesday held that the lethal injection method used by the state of Kentucky and more than 30 other states doesn't violate the Constitution's prohibition on cruel and unusual punishment.

The ruling, which could not be considered a surprise given the conservative majority on the court, ostensibly clears the way for states that have imposed a moratorium on executions in light of the case to resume executing prisoners.

Yet there was nothing simple about the decision, despite the 7-2 margin by which Kentucky's method was approved. In fact, in a 91-page, scattershot opinion, the justices disagrees substantially among themselves over when a capital punishment method may be challenged in court, about the medical evidence presented in the case, and even about the constitutionality of the death penalty itself.

by James Oliphant

The state of Louisiana says Patrick Kennedy raped his stepdaughter. The question now is whether he should die for it.

The answer has consequences for the nation's criminal justice system. If the U.S. Supreme Court allows Louisiana to execute Kennedy, he would be the first person in America put to death in almost half a century for a crime that didn't involve taking the life of another person.

Kennedy was convicted in 2003 of assaulting his 8-year-old stepdaughter and sentenced to death. Louisiana is one of a handful of states that have made the rape of a child a capital crime. His challenge to that law comes before the high court on Wednesday.

Kennedy's lawyers argue that the law is a violation of the Constitution's 8th Amendment, which forbids cruel and unusual punishment.

While the law that will guide the court's decision is modern, the justices' inspiration reaches back beyond the Bible. The concept of "an eye for an eye" was written in Exodus and, before that, by the ancient Babylonian ruler Hammurabi. Accordingly, the justices will have to decide whether Kennedy's sentence is "proportionate" to his crime.

For four decades, absent such high crimes against the nation as treason, American law has mostly drawn a line when it comes to the death penalty: Only death warranted death. Any lesser crime, even rape, invited a lesser punishment.

Now the justices may be poised to rewrite that rule, potentially opening a series of questions about what other offenses merit the ultimate, irrevocable penalty, and perhaps inviting states to broaden the class of residents on Death Row.

Read the full story at chicagotribune.com.

Read the briefs in the case here.

by James Oliphant

Supreme Court Justice Antonin Scalia has been showing a higher profile than normal lately. Earlier this week, he was up in Rhode Island speaking at a law school, with the press actually allowed to attend. Wednesday, the famously irascible justice spoke to students from Thomas Jefferson High School in Alexandria, Va. as part of C-SPAN's Students and Leaders series.

Scalia, in an engaging and charitable mood, told the students in his audience he wanted to talk about respect for the Constitution:

"The American people used to have some veneration for that document that seems to have disappeared in recent times," Scalia complained.

And he had his usual strong words for those who believe that the Constitution evolves and changes with the times.

"I don't think it's a living document, I think it's dead," he said. "More precisely, I think it's enduring. It doesn't change. I think that needs to be orthodoxy."

(Associate Justice Antonin Scalia, addressing law students at the Roger Williams University law school in Bristol, R.I., on Monday, said he doubts the Senate would confirm him if he were nominated today. (AP Photo by Stephan Savoia)

by James Oliphant

Supreme Court Justice Antonin Scalia gave a talk at Roger Williams College of Law Monday in Bristol, RI. He used the occasion to complain about the modern process for confirming Supreme Court nominees.

Although Scalia was a well-known conservative appeals court judge in 1986 when he was nominated to the court by President Reagan, he cruised to confirmation by a 98-0 vote.

But “I couldn’t get 60 votes today,” Scalia said, according to the Providence Journal.

“Once upon a time,” Scalia said, justices were chosen on the basis of whether the nominees had the required legal skills, honesty and judicial temperament.

He said his theory of constitutional "originalism" (in which justices attempt to divine the intent of the framers of the constitution) is being displaced by a theory that embraces interpreting a "living," ever-adaptive constitution.

As a result, Scalia said, “You have confirmation hearings where they say: ‘Judge So-and-So, do you think there is a right to’ — you pick it, X, Y, Z, whatever you hate or love — ‘You think there’s a right to that? You don’t? Well, I think it’s there and my constituents think it’s there, and I’m certainly not going to put you on the court.”

“It’s crazy,” Scalia said. “It’s like having a mini constitutional convention every time you select a new justice.”

You can read the full ProJo article here.

by James Oliphant

The Supreme Court Monday let stand an appeals court ruling that curtails the FBI's power to search congressional offices.

The case arose out of the FBI's raid of the offices of Rep. William Jefferson (D-La.) in 2006. Jefferson, who is fighting federal corruption charges, sought the return of the seized materials, claiming they were protected by the constitutional privilege known as the Speech and Debate Clause. That clause is intended to ensure that legislative process is free from interference from the executive branch.

Last year, in a setback for the government, the federal appeals court in Washington, D.C. ruled that some of the materials grabbed by the FBI were likely protected by the privilege--even though agents had properly obtained a search warrant-- and should have been subject to Jefferson's review before they were handed over. The government appealed to the Supreme Court, which Monday declined to hear the case. That lets the appeals court decision stand.

by James Oliphant

Texas has wanted to put Jose Medellin to death for a long time. It looks like the state is going to get its way.

The U.S. Supreme Court Tuesday sided with Texas against the Bush administration in a highly charged dispute over whether international treaty obligations can affect state criminal proceedings.

In a 6-3 decision written by Chief Justice John Roberts, the court rejected the administration's claim that Texas should abide by a ruling from a world court that Medellin merited a new trial. Medellin is a Mexican native who has lived most of his life in the United States.

In 1993, Medellin and a gang of boys in Houston attacked, raped and murdered two teenage girls walking home. He was arrested, found guilty of murder, and sentenced to death.

After Medellin was convicted, Mexico brought suit in the International Court of Justice, the judicial body of the United Nations, charging that the U.S. had violated the Vienna Convention. That treaty requires that foreign nationals arrested in a signatory country be allowed to meet with a consular official from their home country. It's a tool treasured by diplomats, American and otherwise, worldwide.

by James Oliphant

The Supreme Court Wednesday overturned the death sentence of Allen Snyder, a Louisiana man convicted of hacking his wife's lover to death, because an African-American juror was unfairly excluded from the panel.

In a 7-2 decision written by Justice Samuel Alito, the court said that the state trial judge made a mistake when he allowed prosecutors to strike an African-American college student from the jury. Prosecutors said at the time that they thought the student worried too much about missing school to be an effective juror.

But the court ruled that was a pretext, largely because the murder trial itself was to last only two days.

by James Oliphant

Justice Clarence Thomas opened his mouth and spoke in the Supreme Court chamber early Tuesday morning.

False alarm. He was just announcing the court's decision in Washington State Grange v. Washington State Republican Party. (That case, in which the court upheld a Washington state law concerning a blanket primary. You can read the decision here.)

If you are scoring at home, the famously close-mouthed Thomas last asked a question at oral argument on Feb. 22, 2006. That was so long ago that the economy was still doing okay.

Thomas did not speak during today's 100-minute marathon argument today in the D.C. gun-ban case. Which begs the questions, if not now, when? And if not with this case, then which?

by James Oliphant

The Supreme Court announced Monday that it will wade into the culture wars yet again. This time by determining whether the Federal Communications Commission has the power to punish
the use of vulgar language on air even if the word was used just once.

The FCC altered its traditional stance-- which had essentially forgiven quick or accidental uses of profanity on air -- after celebrities such as Bono, Cher, and Nicole Richie (have they considered starting a band?) used profanity during awards shows broadcast in 2002 and 2003.

Fox ended up appealing an FCC citation up to the federal appeals court in New York -- and won, setting the stage for Supreme Court review. The appeals court said the FCC changed its rules without providing an adequate explanation, as called for by federal law. It also suggested that the rule could also run afoul of the First Amendment.

The case will be heard during the Court's next term, in the fall. The question is whether the oral arguments will be on a seven-second delay.

by James Oliphant

NOTE: The following post will not contain the words "Hillary," "Obama," "experience," "change," "3 a.m." or "superdelegate." Proceed at your own risk.

The Senate Judiciary Committee Thursday advanced legislation that would pave the way for TV cameras in federal courtrooms. Right now, those courts are closed -- and many federal judges like it that way.

The bill falls short of a mandate. Instead it allows judges to decide for themselves whether cameras would be appropriate.

The Judicial Conference, which sets policy for the federal courts, hates the idea anyway. In September, Judge John Tunheim of Minnesota told a House panel that cameras could intimidate witnesses and jurors.

by James Oliphant

International oil conglomerate Exxon Mobil appeared before the Supreme Court Wednesday to argue that it's done enough to mitigate the effects of the disastrous Prince William Sound oil spill almost 20 years ago.

Eleven million gallons of crude oil poured into the sea in March 1989 when the Exxon Valdez ruptured after striking a reef, killing thousands of mammals and fish and decimating the local economy. It remains the most notorious environmental disaster in American history.

At issue before the Court was whether Exxon should pay a $2.5 billion punitive damage award an Alaskan jury socked it with 13 years ago. It has been fighting the award ever since. The company says it has already shelled out $3.4 billion to clean up the region and compensate the victims for their financial losses.

"Exxon gained nothing by what went wrong in this case and paid dearly for it," Exxon's lawyer, Walter Dellinger, told the court.

by James Oliphant

On the 35th anniversary of Roe v. Wade, People for the American Way, the liberal interest group, is going after Sen. Susan Collins, the moderate Maine Republican, for siding with the Bush administration on judicial nominees.

Collins is up for reelection next year and PFAW wants to make sure Maine voters know she voted to confirm Justices John Roberts and Samuel Alito to the Supreme Court. The ad, narrated by the now-gravelly-voiced actor Kathleen Turner, is set to run next week on radio stations across Maine.

There's also a video version of the ad here. (You can tell it's an attack ad because Collins' picture is seen first in color and then fades to black and white.) In the ad, Turner says:

Senator Susan Collins says she’s pro-choice, but she voted for George Bush’s Supreme Court nominees.

Now, the Supreme Court is poised to dismantle women's choice piece by piece.

When it came to the Supreme Court, Susan Collins didn’t stand up for our rights. She stood with George W. Bush.

This week, tell Susan Collins to oppose judges who oppose Maine values.

by James Oliphant

A shooting war of sorts has broken out between gun rights advocates and the Bush administration in the D.C. gun-ban case currently before the Supreme Court. Although both support the notion that the Second Amendment creates an individual right to bear arms, the Justice Department isn't going as far as the pro-gun forces would like in embracing that view.

The case before the court involves Washington's ban on handgun ownership, among the strictest in the nation. A federal appeals court last year struck down the ban, saying it violated the Second Amendment and using the kind of unequivocal language that gun rights advocates have long sought from the federal judiciary.

The District of Columbia appealed the case to the Supreme Court, setting the stage for one of the most dramatic constitutional face-offs in years. But in a brief filed earlier this month, the Justice Department called for the case to be returned to the lower court, arguing that the appeals court had used an incorrect judicial standard in its ruling. That shocked gun-ban foes, who thought the Bush administration had been a solid ally since then-Atty. Gen. John Ashcroft officially adopted an expansive view of the Second Amendment early in his tenure.

The brief, filed by Solicitor General Paul Clement, who will present the government's argument when the case is argued this spring, does impart the administration's belief that the Second Amendment creates a constitutional right to own firearms, but stops sort of saying that the right is unlimited. The fear from the government's point of view is that a sweeping ruling from the Supreme Court could invalidate federal gun regulations used in prosecuting illegal gun owners. An expansive ruling could also threaten bans in other cities, such as Chicago.

In an email to the media Sunday, Robert Levy, a libertarian lawyer who helped bring the lawsuit against D.C., said "the Bush administration has no principled intellectual foundation and cannot be trusted."

by James Oliphant

In one of the largest securities decisions in years, the Supreme Court Tuesday sided with big business and against defrauded investors in ruling that securities fraud claims cannot be brought against third parties such as accountants, bankers, and lawyers who did business with the corporation that perpetrated the fraud.

The 5-3 decision represents a victory for corporate America, the business lobby, and the Bush administration, which urged the court to insulate those third parties from so-called “scheme liability,” which attempts to reach outside companies who allegedly played a role in accounting schemes.

“The Supreme Court today handed down a major victory for the U.S. economy and investor welfare,” said Stephen Shapiro, the Chicago lawyer who argued the case. “The court understood that the trial lawyers’ theory of ‘scheme liability’ was simply a scheme to rake in billions of dollars for themselves at the expense of the investors they purported to represent.”

by James Oliphant

The Supreme Court appeared ready Wednesday to keep in place an Indiana law that requires voters to show a photo ID at a polling place in order to vote.

Critics say the measure is the strictest such "voter ID" law in the nation and will bar thousands in Indiana – especially the poor and elderly -- from casting a ballot. A decision from the court endorsing the law could invite other states and counties to quickly pass similar measures in advance of the 2008 general election.

Democrats charge such laws are a Republican-crafted strategy to keep Democratic voters off the rolls. Republicans say most Americans support some sort of voter identification requirement and that it is needed to combat voter fraud.

The partisan divide seemed to extend to the court Wednesday, as conservative justices Antonin Scalia and Samuel Alito expressed strong skepticism of the claims of the Indiana Democratic Party that the law substantially burden the constitutional right to vote and would disenfranchise thousands of residents.

Nov. 17, 2004 file photo shows the Kentucky State Penitentiary execution chamber at the Eddyville, Ky., prison. (AP Photo/The Paducah Sun, Stephen Lance Dennee)

by James Oliphant

The Supreme Court grappled with detailed questions of medical science and the pharmacology of death Monday, all against the backdrop of a larger, more overriding concern: whether inmates have a constitutional right to an execution that is as painless as possible.

The justices heard a challenge brought by two Kentucky prisoners to the state’s lethal injection procedure. The inmates contend that the protocol, which involves the sequential use of three drugs to numb, paralyze, and kill the prisoner, carries with it an unconstitutional risk of extreme pain. (A preview of the case from today’s Chicago Tribune can be found here.)

The claim met with hostility from several members of the court, with Justice Antonin Scalia openly ridiculing it. “This is an execution, not surgery,” he griped.

by James Oliphant

A clash between Congress and the Supreme Court could be coming, and unfortunately, it won’t be televised. Not even on Pay-Per-View.

But Supreme Court proceedings may soon be. The Senate Judiciary Committee Thursday passed a bill that would permit cameras in the august chamber, which few Americans have ever seen. The bipartisan legislation would allow the justices to veto airing a specific argument if a majority believes the due process rights of one of the parties would be violated.

The justices historically have resisted any attempt to televise the workings of the third branch of government, fearing that the nuances of the often-complex arguments would be flattened by the power of the lens. (Although, honestly, it is quite a long leap from a debate over the application of Employee Retirement Income Security Act to the world of David E. Kelley, so they may not have all that much to fear.)

Chief Justice John Roberts Jr. told the committee in 2005 he would keep an open mind on the issue and the senators appear to have seized on that. “The Supreme Court makes pronouncements on Constitutional and federal law that have direct impacts on the rights of Americans,” said one of the sponsors of the bill, Sen. Arlen Specter (R-Pa.). “Those rights would be substantially enhanced by televising the oral arguments of the Court so that the public can see and hear the issues presented. With this information, the public would have insight into key issues and be better equipped to understand the impact of and reasons for the Court’s decisions.” Illinois Sen. Dick Durbin (D) is also a sponsor.

Could a C-SPAN channel devoted to the high court be far behind? If that happens, however, it had better line up some experts to fill the bulk of the air time. There’s but a handful of oral arguments a year, and they only last an hour. Might be better to get Doris Kearns Goodwin to start warming up in the bullpen now.

And if this all does come to pass, one word to the public at large: The justices are shorter than they look in the newspaper.

Artist's rendering shows Atlanta Falcons quarterback Michael Vick, wearing a black-and-white prison suit, along with his attorney's Billy Martin, left, and Lawrence Woodward, right, as he is sentenced in Federal Court in Richmond, Va., Monday, Dec. 10, 2007. (AP Photo/Dayna Verkouteren)

by James Oliphant

Convergence between the Supreme Court and disgraced NFL quarterback Michael Vick is about a rare an event as a flutter pass from Vick’s cannon arm.

But Monday it happened. Even as the justices were handing out two significant opinions on federal sentencing, Vick was having his Day of Reckoning in a Virginia courtroom. The once-elusive quarterback was dragged to earth with a 23-month sentence for dogfighting charges.

The rulings had a direct impact on cases such as Vick’s. In Gall v. United States, the justices, by a 7-2 margin, held that federal judges may hand down sentence more lenient that called for federal sentencing guidelines. In the Gall case, the defendant involved was given probation instead of a three-year sentence because the trial judge was convinced that Gall had stopped selling drugs for good and had successfully rehabilitated his life.

by James Oliphant

In a pair of decisions, the Supreme Court today gave federal judges greater flexibility in sentencing offenders below the advisory federal guidelines set by Congress, particularly concerning the incendiary issue of crack cocaine.

One sentencing expert, Douglas Berman, a law professor at The Ohio State University, said the two opinions reinforce his view that "the U.S. Supreme Court is right now the most pro-defendant appellate court on criminal sentencing issues in the nation. Whatever one thinks about the Court's purported moves to the right on other issues, in the arena of criminal sentencing, federal defendants certainly should be more hopeful arguing before the current justices than before any other group of appellate judges," Berman said in a post on his widely-read sentencing policy blog.

In Kimbrough v. United States, the court held that judges may make a "downward departure" from sentencing guidelines that give a trafficker in crack a sentence 100 times more severe than a trafficker in powder for the same amount. This 100:1 ratio has been attacked by civil rights advocates and others as being discriminatory and overly punitive.

by James Oliphant

Before a charged atmosphere at the Supreme Court Wednesday, lawyers for prisoners held at Guantanamo Bay, Cuba, made a direct appeal to the justices to clear the legal thicket that has prevented the government from determining which detainees pose a threat to the United States and which should be set free.

“The time for experimentation is over,” Seth Waxman, a former solicitor general under President Clinton, told the court.

Outside the court, dozens of protesters, some of them clad in orange jumpsuits, braved the cold and snow in Washington to maintain that the prison at Guantanamo had become an international eyesore for the United States.

The hearing was the latest in a six-year tug-of-war between the Bush administration, Congress and the court over whether some sort of constitutional rights should be given to suspected terrorists at Guantanamo. The administration has consistently argued that it is the exclusive province of the White House, along with the Pentagon, to decide how to treat so-called “enemy combatants” in wartime.

But every time the administration has made that case to the justices, it has lost—resoundingly. And while this case may be a closer call, many followers of the court expect a similar result.

by James Oliphant

Here's more on this week's mini-drama between Fox News Channel and a liberal advocacy group that says Fox wouldn't air its issue ad featuring a replica of the Constitution being put through a shredder.

Fox News says the Center for Constitutional Rights, which sought to buy a 30-second block of time to show the ad last evening, walked away and cried to the media once Fox News asked for some documentation to support the group's contention that the Bush administration was destroying the Constitution.

"These guys never played it straight," says Paul Rittenberg, senior vice president for ad sales for the news channel. Rittenberg believes the center was never serious about placing an ad on Fox, but wanted to use the rejection for publicity purposes.

Supreme Court Justice Antonin Scalia, November 15 2007. (SAUL LOEB/AFP/Getty Images

by James Oliphant

Add Supreme Court Justice Antonin Scalia to those who think O.J. got away with it.

The court this morning heard oral argument in the case of Allen Snyder, a Louisiana man who claims that African-Americans were knocked off his jury so that the prosecutor could compare him to Simpson. Snyder was charged with stabbing his wife and her companion and then claimed mental illness as police closed in. He was convicted by the all-white jury and sentenced to death.

At one point Scalia said that the prosecutor could have made the comparison because the facts were so similar, not to inflame the racial prejudices of the jury.

Of the Simpson case, Scalia said, “It’s a case where a man killed his wife and then feigned mental illness with his escape escapade.”

by James Oliphant

Tuesday the Supreme Court will hear arguments in a case out of Louisiana that involves, of all things, the O.J. Simpson murder trial of more than a decade ago.

A jealous Allen Snyder stabbed his estranged wife and her late-night date on a hot summer night in 1995. Upon his arrest, a prosecutor in Jefferson Parish, a majority-white, solidly Republican community across the Mississippi River from New Orleans, began comparing Snyder to Simpson.

That prosecutor, Jim Williams, then, Snyder’s lawyers allege, engineered an all-white jury in order to be able to raise the specter of Simpson being acquitted by the majority-black Los Angeles jury in that case.

Williams then mentioned the Simpson case in detail during his closing argument, saying that Snyder's case was "very, very" similar to "the most famous murder case, and all of you have heard about it." Williams went on to say that the "perpetrator in that case claimed that he was going to kill himself as he drove in a Ford Bronco and kept the police off of him. And you know what? He got away with it."

The jury came back with a death sentence in 2 1/2 hours for a crime his lawyers say should have resulted in a manslaughter conviction.

The case will be argued Tuesday morning and will examine the kinds of evidence that can be used to establish a prosecutor’s motive for striking jurors. The state of Louisiana will argue that the black potential jurors were properly struck from the jury pool and that the Simpson case had nothing to do with it.

Here’s the full story from the Chicago Tribune.

by James Oliphant

From USA Today comes the rather stunning tale of former Supreme Court justice Sandra Day O’Connor and her husband, who suffers from Alzheimer’s.

John O’Connor, 77, who lives in facility that provides him with full-time care, has apparently found a new romance with a woman who also lives at the Phoenix home.

The item is written by Joan Biskupic, who is Sandra Day O’Connor’s biographer, and cites an Arizona TV report that quotes O’Connor’s son, Scott, saying “Mom was thrilled that Dad was relaxed and happy and comfortable living here and wasn’t complaining.” The woman was referred to as “Kay.” He also compared his father to a "teenager in love."

It isn’t uncommon for Alzheimer’s sufferers to develop romantic attachments to those who are part of their circle, the article says. But anyone who has read about O’Connor’s devotion to her husband (it was the reason she retired from the high court in 2005) and about the high-spirited social life the two shared in Phoenix before O’Connor joined the court couldn’t help but feel some pronounced empathy for her situation.

She appears to be handling it with grace. “Justice O’Connor is certainly to be commended. . . for raising awareness and helping to reduce stigmas,” says Peter Reed, who directs Alzheimer’s programs in Chicago, in the USA Today story.

by James Oliphant

The U.S. Supreme Court has apparently yet to take action on the high-profile handgun-ban case out of Washington, D.C.

While it was believed the justices considered taking up the matter at their regular conference on Friday, today’s list of orders came made no reference to the case, which will test the legality of D.C.’s law prohibiting handgun ownership. The court's next conference is Nov. 21.

Many court-watchers expected the court to accept the case, which would involve the first meaningful test of the scope of the Second Amendment since 1939.

In March, a federal appeals court in Washington struck down the handgun ban, saying it violated the amendment. The case could have bearing on other gun-control measures nationwide, including one in Chicago.

by James Oliphant

Ruth Bader Ginsburg wasn’t the first woman justice on the U.S. Supreme Court, but that doesn’t mean her path to the nation’s highest court was any easier than Sandra Day O’Connor’s.

In a lengthy interview given to Legal Times columnist Debra Bruno, Ginsburg opens up about being one of nine women accepted to Harvard Law School in 1956, and reveals that she has surprisingly little bitterness about past career injustices despite the fact that no large law firm would hire her upon her graduation. (It’s ironic, too, if you consider that much of her legal career prior to joining the court was fighting for women’s equality along on behalf of the American Civil Liberties Union and other civil rights shops.)

As the column notes:

Her very first class, she says, included journalist Anthony Lewis, who was studying at Harvard for one year on a Nieman fellowship. “On the first day, he gave a response that was so brilliant that I said, ‘If they’re all like that, I’ll never make it,’” Ginsburg recalls. And she pauses and adds, “Then I said, ‘He is going to be my model. I’m going to speak in class.’”

It’s that pause, the eyeing of the barrier, and then the forging onward that might be the character trait that carried Ginsburg past all the petty injustices and the greater rebuffs that stopped many other women. In conversation, she seems to have no bitterness about what could have — and did sometimes — hold her back. She recently told an audience at an Atlanta synagogue that if she had been able to get a job in a corporate law firm when she finished law school, she would be a retired partner today, not a Supreme Court justice. In Ginsburg’s experience, adversity can offer some surprising advantages.

You can read more about Ginsburg’s thoughts about her trailblazing career, and about her children, her husband’s battle with cancer, and dealing with the issue of “potty equity” here.

by James Oliphant

The U.S. Supreme Court could announce as early as tomorrow whether it’s going to take up the challenge to Washington, D.C.’s handgun ban.

If it does, it will be the first meaningful Second Amendment case in the court’s modern history. And the case will instantly become the largest lightning rod of the term, even more than the Guantanamo detainee cases to be heard in December.

The District of Columbia bans ownership of handguns, but allows unassembled rifles and shotguns in the home. In March, in a 2-1 decision, a panel of the U.S. Court of Appeals for the D.C. Circuit said the District’s ban violated the Second Amendment. It was the most affirmative embrace of the right to bear arms by a federal appeals court.

The District has appealed the ruling, despite the risk that an expansive reading of the Second Amendment by the high court could doom gun bans in other cities such as Chicago.

The Chicago ban is considered similar to the D.C. law, which prohibits the possession of handguns in the home, but permits ownership of rifles and shotguns. The Chicago ordinance, enacted in 1983, bars the ownership of handguns and assault weapons.

by James Oliphant

There was a time when Supreme Court justices rarely gave interviews, or wrote books. And they didn’t pen letters to the editor either.

Those days are obviously gone. Clarence Thomas’ memoir today shares the bestseller list with Jeffrey Toobin’s “The Nine,” an inside look at the judicial branch.

Now, John Paul Stevens is complaining to the New York Times. Stevens was profiled in the Times magazine last month by Jeffrey Rosen, a writer and professor at George Washington University.

The magazine published a letter Sunday from Justice Stevens, who said that while Rosen’s piece was “well intentioned,” he felt “compelled to correct certain misunderstandings” in the article.

Stevens, who granted Rosen an extended interview, says the writer mistakenly credited him with helping to break a secret Japanese naval code in World War II. (Stevens did serve in the Navy’s communication intelligence unit at Pearl Harbor.)

Stevens also said Rosen wrote that Stevens took sides politically in Chicago against the “corruption of the Daley machine.” The justice says in the letter that he had “never suggested that the Daley machine was corrupt.”

While it isn’t unheard of for a justice to complain to a journalist privately about a mistake, Stevens obviously felt the need to address the issues publicly, perhaps sending a warning to all reporters who cover the court that they aren’t beyond being held accountable by the justices.

(AP Photo/J. Scott Applewhite)

Justice Clarence Thomas at Marshall University in West Virginia, last month. Breaking his 16-year public silence on his bitter confirmation hearings, Thomas says Anita Hill was a mediocre employee used by political opponents to make claims she had been sexually harassed. He writes of this in his autobiography, My Grandfather's Son, which went on sale today. AP Photo by Randy Snyder.

by James Oliphant

It could have been a First Monday in October like most at the Supreme Court. The justices marched in ritualistically. The chamber came to attention. The first advocate of the term shuffled his papers and cleared his throat.

But it wasn't like most. Rarely has one justice sat squarely in the public eye so dramatically as a term began, and even more rarely (try ever) was that justice fresh off a prime-time interview on "60 Minutes."

But there was Clarence Thomas, in his regular seat, second from the left, taking his position with his brethren. And if last night's interview with CBS' Steve Kroft marked a new chapter in his relationship with the world, if he felt lighter and unburdened, he surely didn't show it. Instead, he did what he mostly always does, rock back in his leather seat, stare at the ceiling, and kibbitz slightly with Justice Stephen Breyer, who sits at his right.

Covering the Supreme Court isn't like the Senate, the White House or the Chicago Cubs, for that matter. You don't get reaction. You can't take someone's temperature the day after a controversial episode. The justices embed themselves within the protections of the institution and speak only through the official organs of the court: the give-and-take of oral argument and the written decisions.

That's usually the way it goes. But Thomas is publicizing his new memoir, "My Grandfather's Son," out in hardback today. In it he chronicles his journey from abject poverty in coastal Georgia to living with his strict grandfather to his education at Holy Cross and Yale, a trajectory that ultimately, and some would say surprisingly, took him to the high court.

by James Oliphant

You'll have two chances to see Clarence Thomas in the next few days, likely two more than you've had in a very long time.

The notoriously private justice will be on CBS' "60 Minutes" Sunday and then on ABC throughout the day on Monday, culminating in an extended interview on "Nightline." Monday is the first day of the new Supreme Court term.

Thomas, not coincidentally, has a book coming out, which explains why he's now emerging from the shadows. In years past, he has largely confined himself to giving speeches before sympathetic groups and avoiding the mainstream media. And even if you've come to Washington to see Thomas on the bench, it's highly unlikely that you've ever heard him speak. He has become legendary for keeping silent during oral argument.

Those who have chronicled Thomas on the high court say he holds the press responsible for public pillorying he took in 1991 during his confirmation hearing. His memoir, which will be released Monday, finally provides his take on the tumultuous time, although reportedly it doesn't venture beyond '91 to address his tenure on the court. He has been viewed as the most conservative of all of the justices with which he has served.

Thomas' interview with CBS' Steve Kroft is previewed here, in which Thomas suggests his opponents who rallied against him in 1991 were motivated by a fear over abortion rights, not the sexual harassment allegations Thomas was facing. "Things are out of control," Thomas reportedly says in the interview. "That's not good for the country. It's not good for the court. What are we going to look like years from now if we can't get people confirmed because everybody gets to attack them. They get to draw and quarter them."

On Monday, Thomas will be interviewed by ABC's Jan Crawford Greenburg, who argued in her recent book, "Supreme Conflict," that Thomas has played a more influential role in shaping the court than believed. (Greenburg is a former writer for the Chicago Tribune.)

by James Oliphant

In Washington, popularity is a relative term.

That’s why, among the three branches of government, the Supreme Court has typically earned the highest marks from the American public for the work it has done. But when you are competing against the White House and Congress, two institutions that draw the fiercest criticism from the citizenry, you’ve got a leg up to begin with.

But now there are signs of some slippage in the high court’s approval ratings. According to a recent Gallup Poll, a slim majority of Americans still approve of the court’s performance. But a growing number – nearly a third -- say the court is “too conservative.” Gallup says that’s the highest figure in a decade.

The watershed event dictating the latest numbers appears to be the court’s ruling last term that upheld the federal ban on so-called “partial birth” abortion. After that decision, the court’s approval rating dipped from 60 percent to 51 percent. Still, that’s a bit of a rebound from a recent low of 48 percent, which the court hit after its 2004-2005 term.

That term featured controversial rulings in property rights, medical marijuana and displays of the Ten Commandments. Incidentally, it was also the last term before the two newest justices, John Roberts and Samuel Alito, joined the court. And 7 in 10 Americans still trust the institution, which is easily the highest marks given any branch of government.

Those numbers still lord over the approval ratings the public gives President Bush and Congress. According to Gallup, the president’s approval marks are mired at under 40 percent while the legislative branch wallows in the low 20s. Or to put it another way as the new television season begins: With those returns, those are two shows that would be quickly yanked off the schedule. And probably replaced with more episodes of “America’s Funniest Home Videos.”

by James Oliphant

The lobby group that represents the nation’s manufacturing companies is watching the upcoming Supreme Court term closely, with an eye toward one case in particular.

That case is Stoneridge Investment Partners LLC v. Scientific-Atlanta Inc., and it could have a large impact on vendors, lawyers, consultants, and other third parties that do business with corporations. The issue in the case, which will be argued before the high court Oct. 9, is whether investors can sue third parties as part of a case against a company for securities fraud if they were part of the scheme. Think Enron.

At a briefing yesterday held by the National Association of Manufacturers, officials of the lobby group warned that extending liability to such third parties would chill U.S. commerce, harm the economy, encourage frivolous claims, increase litigation costs, and encourage coercive settlements. (The group is run by former Michigan Gov. John Engler.) NAM argues that current federal securities laws already allow the government to go after third parties if they have a role in aiding a fraudulent enterprise.

by James Oliphant

The District of Columbia probably didn't have much of a choice but to ask the U.S. Supreme Court yesterday to take up the case of its handgun ban, which was invalidated by a lower court here earlier this year.

After all, this is a city where gun crimes sometimes seem to be a staple of summer nights. The law, which had been in place for 30 years, banned ownership of handguns, but allowed people to keep rifles and shotguns in their homes.

But the district's decision could have serious consequences for other cities that have similar bans, like Chicago, New York, and San Francisco.

If the right-leaning Supreme Court takes the case, it's possible that it could deliver the most affirmative endorsement of a broad reading of the Second Amendment in history.

Such a result could knock out gun bans across the country. It's why pro-gun groups also are eager for the high court to hear the matter.

Ralph Neas. People for the American Way photo

by Frank James

Ralph Neas, president of the liberal People for the American Way, or PFAW, is stepping down from that position, the organization has announced.

For years, Neas was at the tip of the spear of liberal efforts in Washington to keep conservatives off the Supreme Court and lower federal courts.

During the Bush years, those efforts have met with repeated disappointment, as President Bush has succeeded in moving the high court to right by naming Chief Justice John Roberts and Justice Samuel Alito to the high court and other staunch conservatives to the federal appellate courts.

It was not always this way for Neas. In 1987, Neas led the successful effort to block President Ronald Reagan's nomination of Robert Bork to the Supreme Court, a victory that was seen as so seminal that thereafter, whenever liberals went after the conservative nominees by questioning their professional writings or judicial opinions, it became known as "borking" a candidate.

FOR IMMEDIATE RELEASE August 17, 2007

NEAS ANNOUNCES DECISION TO STEP DOWN AS ‘PEOPLE FOR’ PRESIDENT

Longtime leader will continue as President Emeritus as search for successor begins

Ralph G. Neas, President and CEO of People For the American Way and People For the American Way Foundation, announced today that he will be stepping down from his office. He is assuming a new position, President Emeritus, and will continue to assist PFAW and PFAWF in their development and policy work. Chief Operating Officer Nick Ucci will oversee day-to-day management during the search for a new president.

by James Oliphant

The U.S. Supreme Court has declined to step in to prevent the transfer of a Guantanamo Bay detainee back to his native Algeria.

Last week, lawyers for Ahmed Belbacha petitioned Chief Justice John Roberts for an emergency stay, arguing that Belbacha would be abused and tortured if he were repatriated to his home country by the U.S. government.

They argued that Belbacha faced a twin threat: That Islamic militant rebels had threatened in the past to harm Belbacha because of his military service while the current Algerian regime would ostensibly label him a terrorist because of his lengthy Guantamamo imprisonment.

by Mark Silva

President Bush checked in on Chief Justice John Roberts this morning, after the chief justice of the Supreme Court suffered a seizure at his summer retreat in Maine.

“The chief justice assured him he is doing fine,’’ Tony Snow, the White House press secretary, said of the president’s phone conversation with Roberts this morning. “ The president was reassured. He sounded in great spirits.’’

The White House had been aware that Roberts had suffered a similar seizure, with no known origin, 14 years ago, when Bush nominated Roberts for the top seat on the Supreme Court.

“If you recall, looking at the medical records, this was a seizure of no known reasons 14 years ago,’’ Snow said, and “obviously knowing about this, there was an evaluation done of it.''

Roberts was resting today at the Penobscot Bay Medical Center in Rockport after falling on an island dock getting out of a boat near his home on Hupper Island, Maine. He had suffered a seizure similar to one that he had experienced in 1993. Doctors in Maine said they had found no evidence of a tumor, stroke of any other explanation for it.

(photo credit: Paul J. Richards/AFP/Getty Images)

by Frank James

If you’re white or Hispanic, you’re more likely to think black children have equal educational opportunities in your community than blacks believe to be the case.

That’s the upshot of a Gallup poll in which the polling outfit updated its annual Minority Rights and Relations survey.

… In its annual Minority Rights and Relations survey, updated June 4-24, 2007, Gallup asked Americans, including large samples of blacks and Hispanics, "In general, do you think that black children have as good a chance as white children in your community to get a good education, or don't you think they have as good a chance?"

by Frank James

Pacific Legal Foundation, which helped prepare the case for the winning side in today's school desegregation decision where the Supreme Court found unconstitutional the integtation method used by school systems in Kentucky and Seattle, praised the high court's decision today.

Here's a statement the group issued following the ruling:

PLF Hails U.S. Supreme Court Decisions on Education Race Cases -- “Most Important Race Decisions Since Brown v. Board of Education

SACRAMENTO, CA; June 28, 2007: Today Pacific Legal Foundation (PLF) hailed the U.S. Supreme Court’s decisions, announced this morning, to strike down public schools’ use of race in student assignments.

The Supreme Court decided that policies in Seattle and in Jefferson County, Kentucky, that use race in determining what public school a child may attend are patently unconstitutional.

by Frank James

Some reviews are coming in on the Supreme Court's school desegregation decision.

The Leadership Council on Civil Rights, a liberal group, actually sees a silver lining in the decision. Justice Anthony Kennedy, in joining the majority, said that race-conscious methods could still be used:

JUSTICE KENNEDY: ... Parts of the opinion by THE CHIEF JUSTICE imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account. The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality’s postulate that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” ante, at 40–41, is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education, 347 U. S. 483 (1954), should teach us that the problem before us defies so easy a solution. School districts can seek to reach Brown’s objective of equal educational opportunity. The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion.

With that in mind, LCCR issued this statement:

“Today’s long-awaited decision in Parents Involved in Community Schools and Meredith v. Jefferson County Board of Education reaffirms the important goals of a diverse and inclusive America in which racial isolation in public schools is condemned.

by Frank James

In a decision surprising to no one who understands how the high court shifted perceptibly to the right with the addition of Justice Samuel Alito Jr., the Supreme Court declared in a 5-4 decision that school districts' voluntary integration policies are unconstitutional.

Chief Justice John Roberts, who wrote the opinion, argued that majority's decision was in the spirit of the court's 1954 Brown v. Board of Education decision which found that the use of race in assigning students violated the 14th Amendment's equal-protection clause.

The parties and their amici debate which side is more faithful to the heritage of Brown, but the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer:

“[T]he Fourteenth Amendmentprevents states from according differential treatment toAmerican children on the basis of their color or race.” Brief for Appellants in Nos. 1, 2, and 4 and for Respondents in No. 10 on Reargument in Brown I, O. T. 1953, p.15 (Summary of Argument). What do the racial classifications at issue here do, if not accord differential treatment on the basis of race? As counsel who appeared before this Court for the plaintiffs in Brown put it: “We haveone fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among itscitizens.” Tr. of Oral Arg. in Brown I, p. 7 (Robert L.Carter, Dec. 9, 1952). There is no ambiguity in that statement.

by Frank James

The Supreme Court issued an opinion today that will likely result in voters seeing more political ads around election time that focus on an “issue” like abortion or immigration that are akin to bank shots in billiards, ads meant to indirectly hurt or help particular candidates.

The decision came in the case Federal Election Commission v. Wisconsin Right to Life Inc.

As Bloomberg News reported:

June 25 (Bloomberg) - The U.S. Supreme Court gave companies, labor unions and interest groups more power to run broadcast ads before elections, limiting the reach of a federal campaign-finance law.

The 5-4 ruling marks a shift for the court, which in 2003 upheld the law, including a provision that restricts pre-election ads. The court today said that provision couldn't be constitutionally applied to three 2004 ads, aired by a Wisconsin anti-abortion group, that called on the U.S. Senate to hold votes on President George W. Bush's judicial nominees.

by Frank James

If you’re a public-school student, while you definitely have First Amendment free-speech rights, they don’t extend to holding a large “BONG HiTS 4 JESUS” banner at a public, school-sanctioned event.

So ruled the Supreme Court today in the case out of Juneau, Alaska in which a high-school senior got in trouble with school officials for unfurling said sign during an event to celebrate the passing of the Olympic Torch through Juneau in 2002.

The Supreme Court ruled in a 5 to 4 decision that school officials have the right to crack down on such speech that appears to invite other students to participate in dangerous or damaging behavior, in this case pot smoking.

Posted by Karoun Demirjian at 3:43 CDT

Tackling their first case involving students' free speech in almost two decades, several Supreme Court Justices seemed concerned today by how far schools can go towards maintaining discipline without infringing on first amendment rights, as they tried to determine whether a teacher who suspended a student for carrying a banner that read “Bong Hits 4 Jesus” had gone too far.

The case involves a student in Juneau, Alaska, who was suspended for unfurling a fourteen-foot banner with the phrase “Bong Hits 4 Jesus” scrawled across it. “If the design had been ‘Bong Stinks for Jesus’, would the reaction have been the same?” asked Ginsburg.

Posted by Mark Silva at 11:55 a.m. CST

Harriet Miers, the president's general counsel, friend and onetime nominee for the US Supreme Court, turned in her resignation today.

President Bush, who had appointed Miers to a vacancy on the high court only to withdraw her in the face of growing criticism from senators who found her lacking, accepted the resignation of a longtime friend from Texas yesterday and it was announced publicly with a letter today.

Posted by Frank James at 9:18 am CST

A sampling of Washington's top Supreme Court reporters found them pretty much unanimous that the high court will strike down the use of race-conscious methods by education officials to maintain diversity in the nation's K-12 classrooms.

"By the time the Supreme Court finished hearing arguments on Monday on the student-assignment plans that two urban school systems use to maintain racial integration, the only question was how far the court would go in ruling such plans unconstitutional," wrote Linda Greenhouse of the New York Times.

Posted by Richard Clough at 6:46 am CST

The U.S. Supreme Court yesteday said it will hear Alaska’s “Bong Hits 4 Jesus” case, a dispute in which a high school principal suspended a student for displaying a controversial banner and I have a story about it in today's Chicago Tribune. The case drew national interest after former Whitewater prosecutor Kenneth Starr joined it in August.

Posted by Frank James at 11:50 am CDT

While President Bush has an approval rating from Americans somewhere around 40 percent, give or take, and Congress’s approval rating is south of 30 percent, the Supreme Court remains the government branch with the highest public favorability, with a 60 percent approval rating, according to a Gallup Poll released today.

That 60 percent is the highest rating for the nine justices since 2003, the Gallup survey indicated. The survey was timed for the start of the court's new term next week.

There's an irony in the approval numbers for the three branches. The two branches that do the most to cater to public opinion have lower ratings than the one branch that is generally impervious to such polls. Maybe there's a lesson in that somewhere.

Posted at 11:30 am CDT

From today's Chicago Tribune...

Michael Tackett
Tribune Washington Bureau Chief

Warren was the kind of "activist judge" that Republicans have so effectively demonized, at least since the Reagan era. From the moment he joined the court and fashioned a unanimous decision in Brown vs. Board of Education, the first of many historic civil rights rulings, Warren and his court often took steps that neither Congress nor the White House would.

Posted by Mark Silva at 3:39 pm CDT

President Bush, calling on Congress to quickly authorize trials of suspected terrorists with military tribunals, acknowledged for the first time today that the Central Intelligence Agency has subjected dozens to "tough'' interrogation at secret prisons abroad and the remaining 14 have been transferred to Guantanamo Bay to await trial.

The 14 accused terrorists recently moved from secret CIA facilities to the Navy's detention center at Guantanamo Bay, Cuba, include high-level al Qaeda operatives who bear responsibility for the terrorist attacks of Sept. 11, 2001 and other bombings targeting American facilities abroad, according to the president and senior administration officials.

Posted by Frank James at 2:27 pm CDT

In its decision handed down today in the case of Hamdan v. Rumsfeld, in which the Supreme Court majority essentially said President Bush didn’t have the authority to use military tribunals to try accused terrorist detainees, it added that to abide by the law, Bush needed to go back to Congress to get that power.

After digesting the high court’s decision, Sen. Bill Frist (R-Tenn.), the Senate’s majority leader, indicated this afternoon that, if he has anything to do with it, Congress will speedily give the president that authority.

Good morning.

Here are a few Washington events of note for Thursday, June 29, as compiled by the Associated Press.

President Bush meets with Japanese Prime Minister Koizumi and later hosts an official White House dinner for him.

The Supreme Court is handing down more decisions.

The Commerce Department is releasing its revised first quarter report on the Gross Domestic Product at 8:30 a.m.

Gpood morning.

Here are a few Washington events of note for Wednesday, June 28, as compiled by the Associated Press.

The Supreme Court may hand down more decisions today as it nears the end of its annual session.

President Bush is campaigning in St. Louis for the re-election of Missouri Sen. Jim Talent.

The House Veterans Affairs Committee holds an oversight hearing on the recent security breach at the VA Department. 10:30 a.m.

Good morning.

Here are a few Washington events of note for Monday, June 26, as compiled by the Associated Press.

Vice President Cheney is campaigning in Nebraska for congressional candidate Adrian Smith and later in the day for Minnesota congressional candidate Michele Bachmann.

The Supreme Court may hand down more decisions.

Good morning.

Here are a few Washington events of note for Thursday, June 22, as compiled by the Associated Press.

President Bush is meeting with Hungarian officials before flying home to Washington.

The Supreme Court is meeting and likely to hand down more decisions as it heads toward the conclusion of its yearly term at the end of the month.

10 a.m. TEEN DRIVERS — The AAA Foundation holds a news conference to release new research showing safety measures that significantly lower death and injury crash rates for teen drivers.
Location: National Press Club.

The Senate Antitrust, Competition Policy and Consumer Rights Subcommittee holds a hearing on the AT&T-Bell; South merger. 3 p.m.

Good morning.

Here are a few Washington events of note for Thursday, June 15, as compiled by the Associated Press.

President Bush speaks at the Initiative for Global Development’s 2006 National Summit.

The Supreme Court meets at 10 a.m. to hand down decisions, and in the afternoon for ceremonies in remembrance of the late Chief Justice William Rehnquist.


10:30 a.m. BIRD FOSSILS — A new discovery of bird-fossil specimens preserved in China’s Changma Basin will be announced a news conference. Research will be published in the Friday, 16 June issue of the journal SCIENCE. Speakers are: Jerald D. Harris, Dixie State College, St. George, Utah; Matthew C. Lamanna, the Carnegie Museum of Natural History, Pittsburgh, Pa.; and Hai-lu You, Chinese Academy of Geological Sciences, Beijing.
Location: AAAS headquarters, 12th and H Streets NW.

Defense Secretary Rumsfeld and Chairman of the Joint Chiefs of Staff Gen. Peter Pace attend ground-breaking ceremony to mark the start of work on the Pentagon Memorial to the victims of the Sept. 11, 2001 attacks. 1:30 p.m.

Good morning.

Here are a few Washington events of note for Monday, June 12, as collected by the Associated Press.

President Bush is meeting at Camp David with key American and Iraqi governmental and military leaders today and Tuesday about future operations in Iraq.

10 a.m. The Supreme Court is meeting and may hand down more decisions as its yearly term nears the end.

Good morning.

Here are a few Washington events of note for Monday, June 5, as collected by the Associated Press.

The Senate resumes debate over the proposed constitutional amendment declaring that marriage is between a man and a woman, while President Bush meets with the amendment supporters at the White House. A Senate vote is expected Tuesday.

Vice President Cheney is speaking at a Republican National Committee reception in Lake Forest.

Good morning.

Here are a few Washington events of note for Monday, May 22, as compiled by the Associated Press.

10 a.m. U.S. SUPREME COURT — Meets to hand down decisions and release orders.

10 a.m. NATURALIZATION CEREMONY — U.S. Citizenship and Immigration Servoices Director Emilio T. Gonzalez swears-in 100 new citizens from 42 nations.
Location: George Washington’s Mount Vernon Estate and Gardens, Fairfax County, Va.

8:30 a.m. - 10 a.m. IMMIGRATION — The Hudson Institute hosts a panel on What Makes an American? Historical Perspectives on Immigration. With Amy Kauffman, Hudson Institute; Mathew Spalding, Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation; Peter Skerry, Brookings Institute and professor of political science, Boston College; Tamar Jacoby, senior fellow, Manhattan Institute; and John Fonte, director of the Center for American Common Culture at Hudson Institute.
Location: Hudson Institute, Betsey and Walter Stern Conference Center, sixth floor, 1015 15th Street, NW.

Good morning.

Here are some Washington events of note for Monday, May 1, as collected by the Associated Press.

Vice President Cheney is speaking at the World Affairs Council of Philadelphia luncheon.

The Supreme Court is meeting and may hand down decisions.

Good Morning.

Here are some Washington events of note for Wednesday, April 26, as collected by the Associated Press.

The Supreme Court meets to hand down decisions and hear arguments. 10 a.m.

1 p.m. RECORDS ACCESS — The National Archives holds a news briefing to announce the results of an audit of the withdrawal of records from public access.
Location: Room 105, National Archives, 700 Pennsylvania Ave. NW.

1:30 p.m. VIDEO GAMING — The Congressional Sex and Violence in the Media Caucus holds a news conference to release a study of video game content and ratings, call for a greater transparency and accountability and discuss the impact of vioelce in video games and interative media on youth.
Location: Cannon Terrace.

Posted by Frank James at 11:53 a.m.

While much of last week's attention was focused on the Senate as it grappled, unsuccessfully, with immigration and border enforcement legislation last week, Supreme Court Justice Anthony Kennedy gave little noticed testimony before a House committee that provided another dimension to the problem.

Appearing before a House Appropriations subcommittee hearing last Tuesday on the federal judiciary's budget, Kennedy was asked by Rep. Todd Tiarht (R-Kan.) if the federal courts had any control over the number of cases they handle.

Kennedy's answer was illuminating. He said the nation’s weak border enforcement is contributing to an explosion of criminal cases, placing an extraordinary burden on federal courts in the nation’s southwest.

Posted by Frank James at 8:42 am CST

Martin Luther King Jr. Day 2006 isn't that far in the rear-view mirror. So I think I still have time to raise a question triggered by something President Bush said in his King Day speech at the Kennedy Center here in Washington on Monday.

The president called the Constitution a "living document."

But is that view truly compatible with another he has stated, that his ideal federal judge is a strict constructionist? Maybe the president needs to discuss the matter with one of his Supreme Court favorites, Justice Antonin Scalia. I think Scalia's answer would be "no."

Posted by Frank James at 12:07 pm CST

This being an important football weekend (Go Bears!) I thought I'd share a gridiron-themed email I received from Rob Whall, a reader of this blog, who thinks he knows what's going through the minds of the leaders at People for the American Way, the Leadership Conference on Civil Rights and other liberal advocacy groups who vow to continue to fight Judge Samuel Alito Jr.'s Supreme Court nomination. (See my "Fight to the Death" posting below.)

From: Rob Whall
Sent: Fri 1/13/2006 8:51 PM
To: James, Frank E.

I really do. That's because I'm a Lions fan. I've sat there. Middle of the 4th quarter, thinking (with no hint of delusion) that "All they need is a touchdown...and an onside kick...and another touchdown. Then a field-goal. Maybe a make-up call from that bad interference call 3 minutes ago...Joey is driving...I have a good feeling about this."

Posted by Frank James at 3:22 pm CST

We Americans tend to reserve a special place in our collective memories for those who fight on even when the cause seems hopelessly lost. Remember the Alamo. Custer’s Last Stand. The Cubs in the World Series. Will the “Stop Alito” campaign be added to the list, at least for liberals?

Liberal advocacy groups say that question is way too premature, that the fight isn’t over and that they could still defeat Samuel Alito Jr.’s confirmation to the Supreme Court.

It isn’t easy to see how. Sen. Arlen Specter, the pro-choice Pennsylvania Republican who chairs Senate Judiciary Committee and ran the Alito hearings, today endorsed the conservative judge after the hearings ended.

Posted by Frank James at 4:36 pm CST

The political fight over the Supreme Court nomination of Judge Samuel Alito Jr. was supposed to have been the biggest knock-down, drag-out high-court battle since the Robert Bork smack down in 1987.

Conservatives had vowed to avenge the Borking of Bork, their strict-constructionist hero. Liberals promised a once-in-a-generation fight for everything they hold dear, a “woman’s right to choose,” minority rights, civil liberties.

Well, at least the liberal activists hanging out in and around the hearing room got to go to lunch after Senate Judiciary Committee questioning of Alito came to a formal end today about noon Chicago time.

posted by William Neikirk at 6:49 pm CST

“I am not a bigot,” Supreme Court nominee Sam Alito asserted at his confirmation hearing before the Senate Judiciary Committee hearing Wednesday.

Furthermore, he said, “I am who I am. I am my own person.” He added that he is not like any person now serving on the Supreme Court or any other judge who has served on the court.
That left a lot of room for members of the committee trying to get a clear definition of who this Bush administration’s choice for the high court is, or more important, what kind of justice he will turn out to be if is confirmed as expected.

Alito neared the end of his hearing on Wednesday by asserting that he is fair-minded and not a clone of controversial Justices Antonin Scalia and Clarence Thomas, or even Robert Bork, a conservative jurist rejected in his Supreme Court bid.

Posted by Mark Silva at 1:40 pm CST

Judge Samuel Alito Jr. will win Senate confirmation for a seat on the Supreme Court, but it won't occur as soon as the Bush administration would like and the Senate vote will fall along partisan lines. That's the reading from Andy Card, the president's chief of staff, delivering a wide ranging look at the year ahead for Bush and the Congress.

"I am confident that Judge Alito will become Associate Justice Alito,'' Card said at a luncheon of the U.S. Chamber of Commerce on Wednesday.

Posted by William Neikirk at 1:00 pm CST

It is polite, it is respectful, yes. But there is little question that Supreme Court nominee Sam Alito finds himself in the middle of a fierce, sometimes tense, contest as he seeks the Senate Judiciary Committee’s approval, the first step in his confirmation.

He has been accused of not looking out for the poor and those who have faced discrimination. He has been criticized for being a member of the Concerned Alumni of Princeton, a group that opposed admitting more women and minorities and for turning his back on conservative statements he made as a young lawyer in the Reagan administration.

Posted by William Neikirk at 9:15 am

Supreme Court nominee Samuel Alito Jr. returned to the Senate Judiciary Committee for a second round of questioning Wednesday as Democrats vented their frustration, saying that he is still too vague about his positions on abortion and executive power.

Sen. Richard Durbin, Democrat of Illinois and a member of the panel, told the Chicago Tribune prior to questioning Alito that despite Alito’s assurances, he wasn’t confident that the Bush nominee “would vote to sustain Roe v. Wade,” the high court’s decision upholding abortion.

Durbin said he hoped to pin Alito down on the abortion issue, particularly as it relates to a person’s right to privacy under the constitution, to get a better clue of how he might vote. “We didn’t get that much from him” on the first day of questioning, he said.

Posted by William Neikirk at 5:55 a.m. CST

Supreme Court nominee Samuel Alito returns to the Senate Judiciary Committee for a second round of questioning today with Democrats seeking more specifics on his legal philosophy after he offered Americans reassurance about his stands on privacy and civil liberties. Republicans said he has acquitted himself well so far and been forthcoming in his answers.

In a long grilling on the witness stand yesterday, Alito said he would approach abortion questions with an open mind although he continued to favor a 1991 vote that women seeking abortions must notify their husbands. He said that a president did not have a "blank check" when it came to use of his wartime powers. Democrats said Alito gave general answers that would be expected of any Supreme Court nominee and pledged to push for more specifics in their questioning Wednesday. Sen. Charles Schumer (D-N.Y.) said Alito spoke in "very broad generalities…Of course, he will keep an open mind on issues. Of course, he will say the president is not above the law."

Posted by Frank James at 7:30 pm CST

Democrats used a one-time disagreement between then-federal judge Michael Chertoff and Supreme Court nominee Judge Samuel Alito Jr. to try and score points President Bush’s latest pick for the Supreme Court.

Alito had dissented in case called Doe v. Groody in which a Pennsylvania couple sued local police for conducting what the plaintiffs said was an unauthorized search for drugs that included a strip search of the couple's 10-year old daughter who was not named in the warrant. They contended the search went beyond the scope of the police search authority.

Posted by Frank James at 6:45 pm CST

“And I hope you'll understand if any of us come before a court and we can't remember Abramoff, you will tend to believe us!”

It was said by South Carolina Republican Sen. Lindsey Graham to federal judge Samuel Alito Jr. The judge had just finished explaining why he hadn’t recused himself from a case involving the Vanguard mutual fund company, in which he had investments, to Wisconsin Democrat Sen. Russ Feingold who appeared unconvinced.

That was followed by perhaps the hearing’s second best line by a senator unidentified in a transcript of the hearing.

“Abramoff who? That’s the guy in the Bible, right?”

Posted by Frank James at 6:14 pm CST

Samuel Alito Jr. spent nearly ten hours testifying before the Senate Judiciary Committee today but that apparently wasn't enough for the Sen. Richard Durbin, the Illinois Democrat, who didn't get to ask his first-round questions before the hearing was gaveled to a close around 7 pm EST. Joe Shoemaker, Durbin's press secretary, sent a press release to reporters on the matter. It said in part. "We're not thrilled about Durbin not getting his turn tonight, but on the bright side, he'll be the lead off or second member to go in the morning around 9:30am EST."

Posted by Frank James at 5:57 pm CST

During Clarence Thomas’s 1991 Senate confirmation hearings, when asked his opinion about Roe v. Wade, Thomas said he didn’t have one, that he had never really thought about the landmark abortion-rights case enough to have reached a conclusion about it. It was an answer few believed.

Today, when asked by Sen. Herb Kohl, the Wisconsin Democrat, his opinion on Bush v. Gore, Samuel Alito echoed Thomas. Specifically, Kohl asked him if the Supreme Court should’ve taken that case as it seemed an instance of the kind of judicial activism conservatives abhor.

Posted by Frank James at 5:08 pm CST

Some Supreme Court nomination hearings are more like prize fights than others, with opposition senators doing their best to pummel the candidate under the lights while supporting senators act as corner men, repairing the damage they can before sending their man back out.

The first day of real questioning of the low-key Samuel Alito Jr. had that rhythm.

Senate Judiciary Democrats aggressively questioned him during his confirmation hearings sometimes to the point of testiness. Little surprise there. They had telegraphed those intentions for weeks, especially since Alito had given them so much ammunition and their liberal-interest group supporters had demanded nothing less.

Posted by Frank James at 2:58 pm CST

Note to Supreme Court nominee Samuel Alito: For those to whom much is given, much is required. At least that was one biblical message I was reminded of by the Justice Sunday III, the pro-Alito rally held last night at the Greater Exodus Baptist Church in North Philadelphia.

What religious conservatives gave through their grass-roots muscle over decades was political power to like-thinking politicians like President Bush, power to make nominations to the federal judiciary, especially the Supreme Court.

They now fully expect that those judges Bush chooses-including Alito-will agree with the Christian conservative agenda to overturn Roe v. Wade and permit open prayer in school. They are very clear about that.

(Read Jan Crawford Greenburg and Jill Zuckman's coverage of Monday's Alito hearing in Tuesday's Tribune.)

Posted by Frank James      6:26 p.m. CST

This was supposed to be the week supporters and opponents of Supreme Court nominee Samuel Alito set the table, as it were, for next week's Senate confirmation hearings for the conservative judge.

But with huge stories like the West Virginia coal mine disaster, former lobbyist Jack Abramoff's guilty pleas and the grave illness of Israeli Prime Minister Ariel Sharon absorbing the attention of those in the nation who follow the news, the fight over Alito's nomination got greatly overshadowed.