All Blog Posts from Courtwatch

What Walter Lippmann wrote nearly a century ago is even truer today. "It is clear that in a society where public opinion has become decisive," Lippmann wrote in Liberty And The News, "nothing that counts in the formation of it can really be a matter of indifference." So please allow me briefly to share with you some thoughts about the formation of my own opinions about the law, and my coverage of it, as I wind down a rollicking decade of work as the television and online legal analyst for my cherished CBS News.

This column will be my last for CBSNews.com and that means the end of CourtWatch, one of the longest-running, continuously-updated legal blogs ever (indeed, it was a "blog" before that word was even invented). During its run (some 650 full-length columns, some 600,000 words, roughly the length of the Old Testament), CourtWatch relayed in detail large and small the hundreds of chapters which made up the story of American law during the first decade of the 21st Century. If you can remember a legal story from the past ten years, chances are CourtWatch covered it, in whole or in part, as the lawyers say.

Through the years, the column was me and I was the column. Its failings and limitations were (and are) mine and mine alone. Its successes, however, were (and are and will continue to be) shared by my friends and colleagues and bosses at the network, who gave me an opportunity to witness and chronicle some of the biggest legal stories in American history; a presidential impeachment, an election recount, and a terror attack so deadly and unprecedented that its constitutional impact is still uncertain. To be sure, CourtWatch lived through interesting times. That I was able to stick around as long as I did was not just a miracle but a blessing.

There were hundreds of columns about the legal war on terrorism and the death penalty and the politicization of the law. There were columns about the need for judicial independence and about the often murky interaction between the branches of government. There were about a dozen columns over the years calling out politicians for cynically buying into the myth of "judicial activism." There were columns about signing statements and the Posse Comitatus Act. There was even a column or two about good ol' Ruth Jordan. But there was not a single column about Britney Spears' custody problems, unless you count this one and, really, you shouldn't.

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The United States Supreme Court Monday tackles a sensitive legal issue that has taken on both great political and economic relevance this past year.

At a time when budget shortfalls are causing state and local bureaucrats to release prisoners early from over-crowded and expensive jails, the Justices have chosen to decide whether the Eighth Amendment's prohibition against "cruel and unusual punishment" precludes life sentences without parole for juvenile offenders who have not committed capital crimes.

Two Florida cases bring the topic to the High Court. In one, a 17-year-old was sentenced to life without parole after he was convicted for taking part in an armed home invasion while he was on parole for another crime. In the other, a 13-year-old was sentenced to life without parole after he was convicted for raping an elderly woman.

According to the Sentencing Project, an advocacy organization which tracks such things, of the 111 juveniles around the nation currently serving life sentences without parole for non-capital crimes, 77 are in Florida.

Terrance Jamar Graham and Joe Harris Sullivan, the two young men who are challenging the lengths of their sentences, argue simply that the punishment did not fit their crimes given their respective ages. Lawyers for Sullivan, only 13 when he was sentenced, state the core of his case this way: "Life imprisonment without parole sentences for children of 13 are so vanishingly rare as to make their repudiation by contemporary American society unmistakable." They are thus emphasizing the "unusual" in "cruel and unusual" punishment.

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And so it came to pass that on the day before Halloween 2009 we all were reminded that most of the biggest tricks of the past decade were on us.

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Editor's Note: On Monday, come back to CourtWatch to watch live video of the Sonia Sotomayor's confirmation hearings, plus live running commentary from CBS News legal analyst Andrew Cohen via Twitter.

Barring an unlikely implosion inside the Hart Office building on Capitol Hill next week, Supreme Court nominee Sonia Sotomayor is virtually assured of getting enough votes from the Senate Judiciary Committee to guarantee her place on the Court next term. Even her conservative critics are talking now about "conceding" the fight against the nominee.

The only real mysteries going into Monday's confirmation kabuki dance are how well Sotomayor holds her famous temper in check, how windy the Senator's opening statements will be, and how many Republicans will vote for her in the end. The rest will be merely for show, a tradition handed down to us over the past few decades — ever since the Senate and the White House conspired to allow television networks to cover these events live.

But that's not to say that Sotomayor's historic appearance won't or can't generate some insight. She does have some work to do, some questions to answer — not because she needs to sway the already-swayed lawmakers, but because she has an obligation to the White House, her future colleagues on the Court, and the American people to be honest and candid and explanatory. And she must be as tough and thorough in answering questions from her Democratic supporters (who may fault her for being too far to the right) as she is with her Republican opponents (who will fault her for being too far left).

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Judge Sonia Sotomayor’s bid for Supreme Court confirmation got a major boost Tuesday from two unexpected sources. The 7th U.S. Circuit Court of Appeals—led by arch conservatives Richard Posner and Frank Easterbrook—declared in a 3-0 panel decision that the Second Amendment does not apply to state gun regulations, even in the wake of the big gun-rights victory at the Supreme Court last spring. It’s a strong legal position that is the same as the one Judge Sotomayor took when the same issue was presented to her and her 2nd U.S. Circuit Court of Appeals colleagues a few months back.

The 7th Circuit ruling gives nominee Sotomayor grand legal cover as she wends her way through the corridors of the Senate on her way to a confirmation hearing (in September, I bet, not in July). If she is pressed for her views on gun rights by conservative senators, or if the National Rifle Association tries to portray her as soft on gun-control, she can point to right-wing legal titans Posner and Easterbrook and say: “If I am wrong, then they are wrong, too” or perhaps, more appropriately, she can say: “I was right about the constitutional limits on last term’s big gun case and that’s been proven by the fact that Posner and Easterbrook followed me.”

The decision also makes it much more likely that the Supreme Court will have to accept another gun-rights case to decide whether the federal right is and ought to be incorporated down onto a state level. The Justices specifically refused to address that result in District of Columbia v. Heller (check out Footnote 23 if you don’t believe me) and declared that their existing precedent does not recognize such a right. The 2nd Circuit and now the 7th Circuit have refused to recognize such a right without express Supreme Court authority. The 9th Circuit, however, did recognize such a right. The Court now will have to broker that dispute before it gets worse (as more federal circuits chime in). And guess who is likely to be on the Court when that happens? Right. Justice Sotomayor!

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Having established many years ago my bona fides as a critic of the Bush Administration's ham-handed approach to the use of military tribunals against alleged terrorists, I have earned the right to declare now that the American Civil Liberties Union and its allies are wrong, dead wrong, to so quickly and ferociously denounce the Obama Administration's new military commission rules or the government's recommitment to using tribunals for terror suspects.

The administration's suggested changes will not make terror trials perfectly fair to the detainees — no rules of law anywhere for anyone achieve that goal. But from what little we now know about the details of the Obama Administration's revamped policies (tougher hearsay rules, banning the use of evidence obtained through torture, allowing the defendants more leeway in using defense attorneys), the new standards are significantly fairer to terror suspects than were the restrictive rules stubbornly implemented by the last regime.

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Hello and welcome to the third (or maybe the fourth) incarnation of CourtWatch, an online column at cbsnews.com that began in the good old days, a decade ago, right after Al Gore invented the Internet, when Arlen Specter was a Republican, Al Franken was a comedian, and Susan Boyle was just a nice Scottish lady.

Today, CourtWatch moves from being a regular feature in the Opinion section of the website to being a stand-alone blog that will be updated daily (the Good Lord willing) with analysis and commentary on breaking legal news and events. We’ll try to find you good links to the best law pieces around—we’ll trawl through the papers and blogs to do so-- and hopefully we’ll generate interesting conversations and debates about topics you care about. And if there is something you’d like to see covered by CourtWatch by all means let us know.

-Andrew Cohen

More From Andrew Cohen:

CourtWatch Columns Before Today

Andrew Cohen's Posts In Hotsheet