Lauren Collins writes in “Number Nine”, in the 11 Jan 2010 issue of the New Yorker: On October 6th, at 10 A.M., Neal Katyal, an attorney for the Department of Justice, rose in front of the Supreme Court to argue the government’s position in the matter of United States v. Stevens. Standing at a mahogany lectern, surrounded by marble friezes of lawgivers—Draco, Hammurabi, Marshall—Katyal began his address, which, he announced, would amount to a four-pronged defense of Section 48 of Title 18 of the federal criminal code. The law, which Congress passed in 1999, had been intended to restrict certain depictions of animal cruelty. Chief among them were “crush videos,” in which small animals such as guinea pigs, kittens, hamsters, birds, and mice are taped or tied to the floor and—as a congressional report put it—stomped to “a bloody mass of fur” by women, often wearing spike heels, who “can be heard talking to the animals in a kind of dominatrix patter” (“What’s wrong, little man? Are you scared?”). The acts shown in the videos—“The Tales of Charlie’s Ankles,” “Smush”—were already illegal, but prosecutors had found it nearly impossible to identify the participants in the videos, and thus to enforce the existing laws. Congress responded by targeting the images, making it illegal, with some artistic and educational exceptions, to “knowingly create, sell, or possess . . . for commercial gain . . . any visual or auditory depiction . . . in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.”
The law went unenforced until January, 2003, when Robert J. Stevens was arrested at his home, in Pittsville, Virginia. Stevens owned a business called Dogs of Velvet and Steel, and operated a Web site, pitbulllife.com, through which he sold dog-training paraphernalia and documentary films about pit bulls. Three of the films incorporated footage of dogs fighting. The government did not allege that Stevens had anything to do with staging or filming the fights. But, under Section 48, a jury found that his production and distribution of the films was criminal, and sentenced him to thirty-seven months in prison. An appeals court overturned the verdict.
The Stevens matter, having reached the Supreme Court, was shaping up to be one of the biggest cases of the term. In briefs, the government, along with animal-rights groups, asserted that depictions of animal cruelty were of such grievous harm to society that they—like depictions of child pornography, which the Court had prohibited with its decision in New York v. Ferber (1982)—were not shielded by the Constitution. Stevens’s lawyers, joined by an unlikely alliance of gun advocates and civil-liberties organizations, argued that the law infringed upon “a broad swath of never-before-regulated speech.” The case was a First Amendment depth bomb. If the Court upheld the statute, it would create a new category of unprotected expression for the first time in twenty-seven years. [...]
The Associated Press reports: U.S. Supreme Court Justice Antonin Scalia says he’s concerned there aren’t more people with varying professional backgrounds being nominated to the nation’s highest court.
Scalia was a federal judge before President Reagan nominated him to the court.
He said there were three justices with no prior judicial experience back then and today there are none.
Scalia said he’s concerned about the practice because “every aspect of your career broadens your outlook” so “it’s good for the court to have people of varying backgrounds.” [...]
More here via Huffington Post.
From the Christian Science Monitor: The US Supreme Court on Monday dismissed a case over whether prosecutors who knowingly procure false testimony that leads to a wrongful conviction can later be sued for damages.
Lawyers announced that the parties in the underlying lawsuit had agreed to end the case in a $12 million settlement.
The two innocent men, Terry Harrington and Curtis McGhee, had spent nearly 26 years in prison for a murder they didn’t commit. After the truth was discovered and they were released, they sued the prosecutors in Pottawattamie County, Iowa.
An investigation revealed that the prosecutors helped assemble and present false testimony that led to their convictions. Messrs. Harrington and McGhee had been sentenced to life in prison at hard labor with no possibility of parole.
The prosecutors fought the civil lawsuit, arguing that they were entitled to absolute immunity from such litigation for actions taken at trial.
The high court heard oral argument in the case on November 4. The case is Pottawattamie County v. McGhee and Harrington.
“Terry Harrington deserves this after his unwavering patience and perseverance as to his innocence,” said one of Harrington’s lawyers, Doug McCalla of Jackson, Wy. “Cases like Terry’s make it very clear that we need the powerful remedies provided by this country’s civil rights statutes.”
- “Prosecutor Conduct Case Before Supreme Court is Settled”. 5 Jan 2010, David Savage, Los Angeles Times.
- “$12 Million Wrongful Conviction Settlement Is Hailed”. 5 Jan 2010, Lee Rood, Des Moines Register.
- “Supreme Court Appears Split on Tackling Rogue Prosecutors”. 5 Nov 2009, Warren Richey, Christian Science Monitor.
From the New York Times Book Review: Love him or hate him, Antonin Scalia has had a greater influence on the way Americans debate the law today than any other modern Supreme Court justice. Conservatives hail Scalia as the founding prophet of their true faith — the Jurisprudence of Original Understanding — and the leader of the opposition to moral relativism and judicial imperialism in the age of Obama. Liberals scorn Scalia as a show-off and intellectual bully who is quick to betray his constitutional principles when they clash with his fervent beliefs as a crusader in the culture wars. It’s hard to write a fair-minded biography of such a polarizing figure, but that’s what Joan Biskupic has done with “American Original.”
Scalia’s social conservative sensibility was shaped at Xavier High School, a Jesuit academy in Manhattan where he attended military drills after school (and fondly recalls carrying his rifle on the subway). He went on to graduate first in his class at Georgetown and then attended Harvard Law School; during a series of interviews, he told Biskupic that the lasting lesson he took from his time with the Jesuits was: “[Do] not . . . separate your religious life from your intellectual life. They’re not separate.”
Scalia’s formative political experience was his tenure as head of the Office of Legal Counsel in the Ford Justice Department, where he zealously defended executive power in the wake of what he viewed as post-Watergate assaults by a Democratic Congress. In 1974, along with Donald Rumsfeld and Dick Cheney, Ford’s chief of staff and his deputy, Scalia persuaded Ford to veto an expansion of the Freedom of Information Act as an intrusion on the president’s “exclusive” authority. Congress promptly overturned the veto; but Scalia maintained his friendship with Cheney who continued, as George W. Bush’s vice president, to assert similarly broad claims of executive secrecy. [...]
The Supreme Court began its new term on Monday with much focus on the new Justice Sonia Sotomayor, the high court’s first Latina member who has drawn much media attention over recent months. More here.
From the New York Times: Elected judges must disqualify themselves from cases involving people who spent exceptionally large sums to put them on the bench, the Supreme Court ruled on Monday in a 5-to-4 decision.
The decision, the first to say the Constitution’s due process clause has a role to play in policing the role of money in judicial elections, ordered the chief justice of the West Virginia Supreme Court to recuse himself from a $50 million case against a coal company whose chief executive had spent $3 million to elect him.
Thirty-nine states, including New York, elect at least some of their judges, and election campaigns, particularly for state supreme courts, have in recent years grown increasingly expensive and nasty. In the last decade, spending on elections for state high courts has reached $200 million, according to Justice at Stake, a group that tracks campaign spending. Elected judges routinely accept contributions from lawyers and litigants who appear before them, and they seldom disqualify themselves for cases involving donors.
Justice Anthony M. Kennedy, writing for the majority in a decision that split along familiar ideological lines, said the Constitution required disqualification when an interested party’s spending had a “disproportionate influence” in a case that was “pending or imminent.” [...]
From the New York Times: President Obama announced Tuesday that he would nominate Sonia Sotomayor, a federal appeals judge in New York, to the Supreme Court, choosing a daughter of Puerto Rican parents who was raised in a Bronx public housing project to become the nation’s first Hispanic justice.
In making his first pick for the court, Mr. Obama emphasized Judge Sotomayor’s “extraordinary journey” from modest beginnings to the Ivy League and now the pinnacle of the judicial system. Casting her as the embodiment of the American dream, he touched off a confirmation battle that he hopes to wage over biography more than ideology.
Judge Sotomayor’s past comments about how her sex and ethnicity shaped her decisions, and the role of appeals courts in making policy, generated instant conservative complaints that she is a judicial activist. Senate Republicans vowed to scrutinize her record. But with Democrats in reach of the 60 votes needed to break a filibuster, the White House appeared eager to dare Republicans to stand against a history-making nomination at a time when both parties are courting the growing Hispanic vote.
“When Sonia Sotomayor ascends those marble steps to assume her seat on the highest court of the land,” Mr. Obama said as he introduced her in the East Room of the White House, “America will have taken another important step towards realizing the ideal that is etched above its entrance: Equal justice under the law.” [...]