At The Supreme Court It's Kennedy's World

The High Court's Docket This Year Offers Major Cases Likely To Be Decided By One Man

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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If you are, like me, watching the American Movie Channel’s fascinating series “Mad Men,” you know that a recent episode offered a look back at some of the television advertisements used by campaign officials in charge of John F. Kennedy’s 1960 presidential bid.

“Kennedy, Kennedy, Kennedy, Kennedy” went the jingle, then a refreshing break from the dour ads offered by Vice President Richard Nixon, and now an iconic part of the Kennedy mystique.

We all might as well get used to singing “Kennedy, Kennedy, Kennedy, Kennedy” as we embark upon another great crusade that is the 2007-2008 term at the United States Supreme Court. This term, perhaps even more than the last one, Justice Anthony Kennedy is sure to leave his mark in the law as the author (or at least swing vote) in a series of predicted 5-4 decisions.

Forget the hullabaloo over Justice Thomas on the right or Justice Stevens on the left. Ideological alignments being what they are these days, it’s Kennedy’s legal world - we are just living in it.

For example, Kennedy almost certainly will cast the deciding vote in Baze v. Rees, a Kentucky case that will shape the nation’s lethal injection procedures in capital cases for years to come. At issue in the Bluegrass State is whether the Commonwealth’s injection “cocktail” - the mix of drugs given to condemned prisoners on the day of their execution - is administered in the right order with the right dosages to ensure that the prisoner does not run afoul of the 8th Amendment’s ban against “cruel and unusual punishment”

The four more conservative Justices on the Court almost certainly will declare that each state is free to develop its own protocols for putting condemned inmates to death, and that executions by definition cannot be free from pain and suffering on the part of the executed. The Court’s more liberal members, on the other hand, likely will call for stringent requirements that prison officials must meet before they can continue to execute people in this fashion.

I’m betting that where Justice Kennedy comes down in Baze will determine which side wins the case. And, if you are looking to the past for any sense of the future, remember that Justice Kennedy voted to ban the execution of mentally retarded death row inmates as well as those capital murderers who killed before they were 18 years old. It’s a case that has huge national significance - several states, including Florida and California, already have halted capital punishment until they can ensure better injection protocols.

The Justices this term will also tackle several important cases with electoral and political ramifications. Just last week the Court announced that it would hear and decide - in time to make a difference in the 2008 presidential election - a voter fraud case out of Indiana labeled Crawford v. Marion County that will ripple into Michigan and other states with similar legislation. Lawmakers in the Hoosier State passed a new measure that requires voters to show government-issued photographic identification at the polls. Six other states require photo IDs and 20 more require some sort of identification, barriers to voting that did not exist prior to the 2000 election recount fiasco in Florida.

Republican politicians - and inevitably conservative judges - say a state’s interest in ensuring that there is no voter fraud trumps any inconvenience caused by requiring the IDs. Democratic politicians - and inevitably liberal judges - say that the law was passed by Republicans in order to make it more difficult for the poor and minorities (by the way, traditionally Democratic voters) to have their votes counted. The Democrats say that Indiana’s law focuses upon folks who show to vote but does not cover folks (traditionally Republicans) who vote by absentee ballot. Justice Kennedy almost surely will be in the majority here, too.

In fact, politics and the law meet right away - on the first day of the Court’s calendar for the term - when the Justices consider a case out of Washington that involves a challenge to that state’s rules allowing candidates to declare their affiliation to a party without that party’s consent. The Justices also will hear a remarkably similar case out of New York. Should a candidate have a right to “freely associate” with the party of her choice under the First Amendment? Or does that right belong to the party itself? We’ll know in a few months.

Thanks to a Missouri case involving a business deal gone bad we’ll also know in a few months what the Court thinks about allowing investors to sue “third-parties” like lawyers and accountants and bankers when the companies those professionals represent commit securities fraud. In this post-Enron world, a victory for the investors could open up those sorts of professionals to huge liabilities and change the way they interact with publicly-traded companies. A victory for the company would severely limit the ability of investors to recoup their money when a business venture goes south for the wrong reasons.

Speaking of the wrong reasons, we come now to three cases which legal scholars and historians likely will focus upon after this term has come and gone. In one case, the Court will interject itself in a dispute between the White House and (get this) the state courts in Texas (of all places) over the scope of jurisdiction domestic courts must afford to rulings by the International Court of Justice. President Bush says that Texas must comply with an ICJ ruling that directed the Texas courts to reconsider a case of a Mexican national who was convicted and sentenced to death in the Lone Star State without being afforded the right to meet with a consular official. Bet on the President in this one.

But don’t bet on the President when it comes to the two consolidated terror law cases the Court has agreed to consider. The Justices will tackle the legitimacy of certain provisions of the Military Commissions Act of 2006, a shoddy piece of legislation hustled through a lame-duck Congress. The Act stripped vital habeas corpus rights - the right to go to federal court to challenge detention by the government - away from terror suspects and others. With Justice Kennedy leading the way, I suspect a majority of Justices will declare that the legislators overstepped their authority.

What else? The usual stuff. The Court will once again try to figure out federal sentencing rules and in the process sort out a mess the Justices themselves created when they declared a few years ago - again, in a Kennedy opinion - that the Federal Sentencing Guidelines were no longer mandatory. Of particular issue in the case is whether a Reagan-era sentencing policy that requires judges to sentence defendants convicted of crack cocaine crimes at a 100-1 ratio of those convicted of “powder” cocaine crimes.

The Justices also will hear at least one employment discrimination case, several tax cases, and one case out of Louisiana with some particular resonance now that we have endured the saga both of the Jena Six and the latest O.J. Simpson caper. Seems a local prosecutor down there, after striking from the jury pool all black candidates, twice mentioned Simpson’s name and compared "the Juice" with the defendant, a man named Allen Snyder. Not surprisingly, Snyder was convicted and sentenced to death. Also not surprisingly, he sued for help: no doubt Snyder hopes it truly is Justice Kennedy’s world so that he can keep living in it for the rest of his natural days.

[alanrobisch]

Why don%u2019t you just admit it: you neo-cons don%u2019t believe in democracy, or law for that matter. You don%u2019t care how you win, just as long as you win.

Posted by sparks224 at 10:47 PM : Oct 01, 2007
+ report abuse

obviously you have your opinion made up hope in the long run it doesn''t hurt more than help. You can''t change the past. And insulting another person such as me certainly isn''t going to help either. adios

[adventurepa]

I sure hope Moveon.org covers all the bad things the Neo-cons did to this country to remind the voters why they need to vote them all out of office in 2008.
Should start with TV ads coving what OV442 said.

OV442,
I like what you said so much it is worth repeating.
the truths about the illegal constitution breaking by the GOP white house, or the GOP politically motivated acts by the Justice department, the Illegal election fraud by the GOP that many have gone to jail for now, or the No bid contracts wasting our money going to Halliburton, (Cheney''''s company) and all its Subsidiaries and front companies overcharging for the same services to our tax money, Or the Truth about how Iraq was going, instead of the load of SH*T the white house keeps tossing at us, or all the Immoral crimes of financial theft or se xual perversion by the GOP politicians that People like XLib down there support whole heartedly. Or especially the Reverend Ted Haggard the GOP Link to the Evangelicals seeking homose xual prostitution and illegal drugs while married, meeting with Bush, and leading the Evangelical church to the pits, now hes asking for more money. Nice. Good Job Liberal media, Keep doing your job!

[sparks224]

So the neo-cons, by hook and by crook, finally got W installed in the presidency.
And he turned out to be this huge embarrassing disaster, the worst president in the history of the U.S.

If he hadn%u2019t done so much damage, and cost so many lives, it would be hilarious.

[sparks224]

Sorry alanrobisch2, there is no way you%u2019re going to be able to put lipstick on the Florida 2000 pig. A company called Choice Point was hired to purge felons from the voter rolls. It turns out they %u201Cmistakenly%u201D removed 55,000 legitimate voters. That%u2019s just one of the %u201Cirregularities%u201D.

Why don%u2019t you just admit it: you neo-cons don%u2019t believe in democracy, or law for that matter. You don%u2019t care how you win, just as long as you win.

[alanrobisch]

baze vs rees is a stalking horse to void capital punishment nothing more. I am ambivalent about capital punishment but this suit and the fact that it made it this far is the height of silliness.

[cfin5]

As far as I''m concerned about this case (BAZE V. REES) that Justice Kennedy might steer, just give the convict an overdose of morphine for cryin'' out load. No wonder why everybody is sick of the government with camel''swallowing-knat''straining wastes of time on thumbsucking issues like this. Is this whole country full of twits?

[usawatchman]

UNITED STATES SUPREME COURT
Veasaw v. Domingues,et al.
No: 05-1467
Securities and Exchange Commission was giving away and/or selling Govt. jobs,
and Government employees commit CRIMES against the people,
Government employees (SEC DOL EEOC) commit CRIMES
in order to GAIN the upper hand in the Court room
Perjury, mail/wire fraud, conspiracy, obstruction of justice,
and NOT ONLY did the Justice Dept covered it up..
and NOT ONLY did the COURTS COVERED IT UP.
and the GREAT US SUPREME COURT were helping them it COVER UP..!


They are as CORRUPT as the PREVIOUS COURTS,

RESPECT like TRUST is EARNED

And is not casually given.

[alanrobisch]

So I guess when it looks like a Democratic candidate is about to win the 08 election, this neo-con court will stop the election and install the Republican. And thats OK with you.
Posted by sparks224 at 10:21 PM : Sep 30, 2007

I think you are exagerating. Whether you liked it or not it was legal. The last recount that was done by a newspaper syndicate concluded that bush won in Florida. Also note there were several other nail biting finishes that went gore''s way which bush did not challenge. It was whether continued recounts were legal was the issue and the court found that it wasn''t.

also with a ba in american history I have little background here. In 1876 there was a corrupt bagain resulting in naming the loser the winner. In 1960 it is clear that the Daley machine in Chicago reported false totals of votes from Chicago resulting in Nixon''s defeat. None of these things happened in 2000.

[usawatchman]

Did you all see one of these Judges has a book out
WOW a BOOK DEAL...???
I would suspect more like a payoff !!!

They sell out their COURT ROOM ON STAGE
for the whole world to see,
So sophisticated,
no passing envelopes at the corner cafe....
and we are suppose to believe everyone want to know (buying books)
everything about his / their lives...

MY GUESS,
some piece of trash is most likely is buying up all the books
and burning them as fast as they can be printed..!?!

Maybe profits will go to a local charity that a friend of the family runs..???

JUST RULE IN OUR FAVOR...
There is
NOTHING LIKE HONEST GOVERNMENT
FOR ALL OF US TO USE AS AN EXAMPLE


UNITED STATES SUPREME COURT
Veasaw v. Domingues,et al.
No: 05-1467
Securities and Exchange Commission was giving away and/or selling Govt. jobs,
and Government employees commit CRIMES against the people,
Government employees (SEC DOL EEOC) commit CRIMES
in order to GAIN the upper hand in the Court room
Perjury, mail/wire fraud, conspiracy, obstruction of justice,
and NOT ONLY did the Justice Dept covered it up..
and NOT ONLY did the COURTS COVERED IT UP.
and the GREAT US SUPREME COURT were helping them it COVER UP..!

[jaina_heart]

With all due respect, as each judge is appointed their political views do come to light in the media and discussed heavily. Also it appears that politics generally run this country, if you have a problem with what a politician is doing do not vote them back into office. The only way any of us can complain about the government is if we actively participate, for example: vote! So few of us vote, not only nationally, but locally as well. I will say that I totally agree with legislation requiring ID to be presented when voting. This is not meant to keep people from voting, instead to keep people from voting multiple times and other fraudulent voting. At 18 if you do not have a driver''s license you can always go to the dmv and get an ID...it takes only a few minutes and a picture.