All Blog Posts from Courtwatch

Stewarded by some of the most conservative justices in its history, and making a mockery of accusations that it contains a liberal, activist agenda, the good ship “Supreme Court” continued its relentless rightward tack this past term. It entrenched Rehnquist-era notions of limited rights and remedies; set the stage for the further obliteration of Warren-era doctrines and practices; and reminded politicians of all stripes that it alone among the current branches of government hews Republican rather than Democrat.

With only a few exceptions, the Court ruled against employees to the benefit of employers, against environmentalists to the gain of polluters, and against suspects in favor of law enforcement officials. The self-proclaimed “umpire” on the Court, Chief Justice John G. Roberts, Jr., continued his unseemly pattern – first identified by writer Jeffrey Toobin – of calling only balls for one team and only strikes for another. Justice Clarence Thomas shed any pretense of moderation and Justice Anthony M. Kennedy, the Court’s swing vote, demonstrated over and over again that he’s a centrist only in relation to his conservative colleagues.

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In the past 13 months, no fewer than 22 distinguished federal appeals court judges have examined the issues surrounding the now-famous Ricci v. DeStefano employment discrimination case involving New Haven, Connecticut’s firefighter promotion system. Of that number, 11 believe under the law that the City did the best it could in difficult circumstances after black firefighters performed poorly on standardized tests. And 11 believe that white firefighters were discriminated against when the City threw out the results of the tests and tried for a Mulligan.

On the 2nd U.S.Circuit Court of Appeals, the score was 7-6 in favor of the City. At the United States Supreme Court, the score was 5-4 in favor of the challengers. Yes, the Supreme Court gets the final call in matters like this. But let’s not pretend that the Justices are so remarkably brighter and wiser than are their lower federal court colleagues that their votes are seeped in justice and the lower-court votes wallow in ignorance. The fact is that the case generated a series of legal issues that were remarkably close calls given the Court’s past precedent (and the new one it has just adopted).

We particularly care about this case, and this result, because the likely next Supreme Court Justice, 2nd U.S. Circuit Court Judge Sonia Sotomayor, was one of the 22 jurists who took a crack at deciphering what happened in New Haven. Last June, the Supreme Court nominee, in a brief panel ruling, sided with the City in finding that because no firefighters were promoted when the initial test was tossed out there was no valid discrimination claim. Six of her colleagues on the 2nd Circuit, and four of the Court’s most liberal Justices agreed with this view.

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Some initial thoughts from CBS News' Chief Legal Analyst and Legal Editor Andrew Cohen after the announcement of the Supreme Court's 5-4 decision in favor of the white firefighters in the closely watched case Ricci, et al. v. DeStefano, et al. The case is also of note because Supreme Court nominee Sonia Sotomayor was on the three-judge panel that rejected the reverse discrimination complaint that has now been overturned.

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The majority said that the fear of litigation by black firefighters who didn't do well on this test didn't justify tossing the test. So I guess the lesson here is that when you are going to test for promotions you had better make sure the test is race neutral.

The four dissenters found that the white firefighters had no right to be promoted anyway and had not seen black candidates promoted over them-- only the test was tossed out. This, the dissent claimed, did not warrant the court's interference in New Haven's attempt to solve what it considered a legitimate problem with the tests.

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The Supreme Court ruled today in an 8-1 vote that the strip search of a female teen by high school officials for ibuprofen was a violation of the teen's constitutional rights.

CBS News legal analyst Andrew Cohen says that it's "important to remember" that the court didn't illegalize school searches but rather drew a line around necessary conditions for aggressive searches.

Cohen discusses the ruling further below:


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The Supreme Court will also rule on the controversial Connecticut firemen case that Supreme Court nominee Sonia Sotomayor ruled on in the U.S. Court of Appeals.

In the case, the firemen accuse the fire department of reverse discrimination against them. Cohen says the Court ruling of the case could prove "embarrassing" for Sotomayor, given that she ruled against the firemen in court.

Cohen discusses the case further below:


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What kind of world does Justice Clarence Thomas live in? Alone among his colleagues on the Supreme Court, he declared Thursday in dissent in Safford v. Redding that an "abusive" and "humiliating" strip search of a middle school student for prescription Ibuprofen was actually a constitutional exercise by school officials who not only deserved immunity from liability but praise for their zealous dedication to student safety.

Less concerned about a forced and unnecessary intrusion into a young girl's pants and bra than he was about judicial intrusion into school safety policies, Thomas declared that the odious search was legal because administrators could have found what they were looking for. The majority ruling, he wrote, gives "judges sweeping authority to second-guess" school administrators trying to ensure the health and safety of students. His long dissent did not include a single sympathetic remark about the ordeal suffered by the victim in the case.

Fortunately, the other eight Justices on the Court live in the real world, where outrageous conduct by bureaucrats is frowned upon, and so they unsurprisingly agreed that school officials violated the Fourth Amendment in 2003 when they checked (then) 13-year-old Savanna Redding's bra and underwear for pills. "She was told to pull her bra out and to the side and shake it," Justice David H. Souter wrote for the majority, "and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found." Other students were searched in a similar fashion that day.

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Over the generations, the Justices of the United States Supreme Court have conveniently created for themselves a self-serving rule—the “constitutional avoidance doctrine”—which gives them precedential justification (and perhaps political cover) for punting on fundamental questions they do not really want to address in any given case. In laymen’s terms, the doctrine really ought to be called the: “Why Decide Today What You Could Put Off For Tomorrow, Next Year, or Next Decade?” doctrine.

On Monday, the Court voted 8-1 to punt in the most anticipated ruling of the current term. It failed or refused to determine whether a key provision of the Voting Rights Act is still constitutionally necessary to address and preclude diminishing discriminatory practices in the Old South. As a result of the ruling, the Act survives for the foreseeable future, the challenge to the Act (by a Texas district) is successful, and all sides in the complex case get to come away thinking it could have been worse and could have been better.

The most interesting component of the ruling was the dissent, by Justice Clarence Thomas, the only black Justice, who alone among his conservative colleagues was willing to scrap Section 5 of the Act as no longer necessary. “The extensive pattern of discrimination that led the Court to previously uphold Section 5… no longer exists. Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence.”

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