For Some, Choice Gets Harder For Some, Choice Gets Harder
Right now, there are three votes on the Court to get rid of Roe altogether and often four or five to impose costly, chilling and burdensome regulations on the exercise of...
Sep 25, 2000 / Feature / Susan Estrich
Bad Boys, Whatcha Gonna Do… Bad Boys, Whatcha Gonna Do…
Christina Hoff Summers is hot with righteous indignation on boys' behalf.
Sep 25, 2000 / Books & the Arts / Mark Edmundson
Color and the Court Color and the Court
The project of racial reconciliation and historical correction is "constitutional" in the deepest, multiple senses of that word.
Sep 25, 2000 / Feature / Christopher Edley Jr.
Holy Joe! A Culture War! Holy Joe! A Culture War!
Instead of kissing babies, this year the pols are bashing youth culture and the companies that promote it.
Sep 25, 2000 / The Editors
Acting for Justice Acting for Justice
The two entertainment unions, already angered over runaway production, have tenaciously met the challenge and escalated the fight.
Sep 25, 2000 / Books & the Arts / Marc Cooper
Hear No Evil, See No Evil Hear No Evil, See No Evil
To the Rehnquist Court, criminal justice is all too often a technical matter best left to the states.
Sep 25, 2000 / Feature / David Cole
The Threat to the Net The Threat to the Net
Open access to the broadband Internet is essential if we are to insure that a diverse range of voices has a chance of reaching out to citizens in the new era of high-speed communic...
Sep 25, 2000 / Jeffrey Chester
The Killing Machine The Killing Machine
For many of the 3,682 men and women on death rows across the nation, and their families, this election is literally a matter of life or death. With one or more appointments to the Supreme Court, the next President will probably change the balance of power in the Court's review of capital cases. The Court could play a greater role in restricting the use of the death penalty, or it could give the states free rein to carry out more and more executions. Neither George W. Bush nor Al Gore is going to appoint Justices like the late William Brennan and Thurgood Marshall, who believed that capital punishment violates the Constitution's prohibition of cruel and unusual punishment. But the next President's appointments will have an enormous impact on how much death is used as a punishment in the next several decades and the fairness of the process by which people are denied their lives and liberty in the criminal courts. Bush has expressed his admiration for Justices Antonin Scalia and Clarence Thomas, who have vigorously maintained that the Constitution allows states to execute just about anyone--children, the mentally retarded, even the innocent--and provides virtually no protections, not even a decent court-appointed lawyer, to a person facing death. Their approach to capital cases is much like the one taken by judges in Texas, which dispatches people to its busy execution chamber in assembly-line fashion. Bush has defended the Texas system, claiming that the condemned had "full access to the law," while presiding over 144 executions during his six years as governor. No other state has carried out more than eighty executions in the past twenty-five years. Al Gore will probably appoint moderates like the two Justices appointed by Bill Clinton, Ruth Bader Ginsburg and Stephen Breyer, whose votes reflect their views that the Constitution restricts the ways in which states may impose death and that the federal courts have a role to play in deciding what those restrictions are and in keeping the death penalty within them. Many of the Court's most important capital decisions have been decided by a 5-to-4 vote. In those cases the outcome has usually been determined by Justices Sandra Day O'Connor and Anthony Kennedy. When they join with Scalia, Thomas and Chief Justice William Rehnquist, the death sentence is upheld--as in two 5-to-4 decisions in Virginia cases this year. In one of these, Weeks v. Angelone, they upheld a death sentence even though the judge misled the jury regarding how it was to reach its sentencing decision. In the other, Ramdass v. Angelone, the defendant was not allowed to tell the jury that he would not be eligible for parole if sentenced to life in prison instead of death. Ginsburg, Breyer, John Paul Stevens and David Souter dissented in both cases. If either O'Connor or Kennedy joins the Court's four moderates, the outcome is different. Just how delicate the balance is was illustrated by the 1989 case of Penry v. Lynaugh. John Paul Penry is a mentally retarded man sentenced to death in Texas. Justices O'Connor and Kennedy were part of a 5-to-4 majority holding that the Constitution does not prohibit the execution of the mentally retarded, but Justice O'Connor cast the critical fifth vote for setting aside Penry's death sentence because the jury was not instructed that his retardation should be considered in mitigation. ]]> ]]>
Sep 25, 2000 / Feature / Stephen B. Bright
Power Shift Down–The Lower Courts Count Power Shift Down–The Lower Courts Count
Much of the debate swirling around the upcoming election focuses on the next President's power to shape the Supreme Court--but it would be a mistake to overlook the enormous impact the next President will have on the appellate courts as well. Each year the Supreme Court decides fewer cases. In the seventies and eighties, it routinely heard about 150 cases a year. The typical docket for the Rehnquist Court is less than 100. This trend toward fewer Supreme Court rulings gives the appellate courts vastly more power. In fact, some experts call the appellate courts "regional Supreme Courts" because so often they become the forums of last resort for plaintiffs bringing civil rights, abortion and environmental litigation. Appellate court appointments are rarely constrained by the kind of senatorial influence and patronage that frequently govern the selection of district court judges, so the President generally has a freer hand in making these appointments. Conservative activists have long been keenly aware of the importance of the appellate courts. Presidents Reagan and Bush both made it a priority to fill appellate court vacancies quickly, ultimately packing them with right-leaning judges whose agendas were to reverse years of progress on civil rights and the environment. Reagan and Bush appellate court appointees include such well-known ideologues as Robert Bork, Daniel Manion, Douglas Ginsburg, Frank Easterbrook and Alex Kozinski. Because of the critical importance of the 179 federal appellate seats, Senate Republicans have deliberately delayed confirmation of nominees during the Clinton era. Of the thirty-four judges confirmed last year, only six were to courts of appeals. This year is unlikely to be better; ultraconservatives in the Senate will do everything possible to avoid filling the twenty-two appellate court vacancies until after the presidential election. Consequently, even after seven years of Democratic rule, nine of the thirteen courts of appeals remain in the control of Republican appointees. Many of these judges, such as those on the Fourth and Seventh Circuits, have shown open hostility to civil rights, striking down such crucial protections as affirmative action, the Violence Against Women Act and the 1966 Miranda decision. Judicial hostility to environmental protections is also common. In 1999 two panels of the Court of Appeals for the DC Circuit handed a victory to polluters, overturning longstanding EPA standards reducing the ozone that exacerbates lung disease and asthma. In that case, the Reagan-appointed judges adopted an argument set forth by a conservative lawyer, even though the argument ran contrary to sixty years of legal precedent. Senate Republicans have also created a judiciary that is shamefully unrepresentative of the public it serves. It wasn't until this past summer that the number of African-American judges serving on the appellate courts reached the same level as when President Carter left office twenty years ago. More than half the country's circuit courts lacked either an African-American or a Latino jurist--or both--at the end of 1999. The conservative Fourth Circuit (which includes Maryland, North Carolina, South Carolina, Virginia and West Virginia) has never had an African-American judge, despite the fact that the region has the largest percentage of African-Americans in the general population of any circuit. While North Carolina Senator Jesse Helms is notable for actively blocking the nominations of African-American judges to the Fourth Circuit Court, other GOP senators have contributed to the delays in appointments across the federal judiciary. In the past year the Senate set a record for the longest delay imposed on a nominee: Ninth Circuit Judge Richard Paez, a Hispanic-American, was forced to wait more than four years before the Senate finally scheduled a vote and confirmed him this year. Unfortunately, in many ways the Clinton Administration has acquiesced in the Senate majority's crusade to strip away presidential appointment power. Clinton's strong desire to avoid confrontation over judicial appointments has led him to draw nominees from a limited pool, for the most part avoiding public interest lawyers and those in private practice with extensive pro bono experience. The regrettable result is that the Clinton Administration has failed to restore balance to the federal court system after twelve years of strongly ideological conservative appointments. Americans deserve better. We count on federal judges to protect our civil rights, our environment and our most basic freedoms. The next President could well appoint fifty or more circuit judges. We need a President who will appoint federal judges--at all levels--who will advance protections against discrimination and environmental destruction. And we need a Senate that will stop using political gamesmanship to delay and block qualified judicial appointees.
Aid for Nuclear Workers Aid for Nuclear Workers
Madame Curie's denial of radiation dangers is emblematic of the legacy we now face as America's romance with the atom draws to a close.
Sep 25, 2000 / Robert Alvarez