New York Cases Emerge as Key in Coming Term

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The New York Sun

When the Supreme Court kicks off its new term next week with two appeals out of New York, judges and education officials based in the city will be paying close attention.

One of the cases could overturn New York’s unusual way of selecting state judges, and, in the process, put new limits on the ability of local political parties across the nation to hold conventions to choose nominees for a wide range of offices. The other case will help decide under what conditions the parents of disabled children can get reimbursement from the government for private school tuition.

The cases, Board of Education of the City of New York v. Tom F. and New York Board of Elections v. Torres are scheduled for argument Monday and Wednesday, respectively. The following week, the Supreme Court will hear Stoneridge Investment v. Scientific-Atlanta, which is being billed as the most significant securities fraud case of the decade. Although out of Missouri, the case is the talk of Wall Street. It will set a standard for who can be held liable for securities fraud, by deciding whether investors can routinely sue attorneys and accountants who do business with the main defendant. Yesterday, the Supreme Court picked up 17 new cases for the upcoming term, making a total so far of 43. Among the new cases is a challenge to Indiana’s requirement that voters display government-issued photo identification before casting ballots. The court will decide whether the rule is a reasonable measure against voter fraud or an unconstitutional burden on voters in a country where people aren’t required to carry identification. The court also agreed to review the claims of two condemned inmates in Kentucky who say their scheduled execution by lethal injection is unconstitutionally cruel.

Also in the course of the term, the Supreme Court will decide whether Guantanamo detainees have a right to habeas corpus, despite a law that bars them from having access to the federal courts. In another case, the court will clarify the level of discretion judges have to impose lesser sentences for possession of crack cocaine, which is punished more severely than possession of powder cocaine under federal law.

The term could also turn out to be one in which the court attempts to decipher the riddle that is the Second Amendment. Not since 1939 has the court taken a case questioning whether that amendment provides individuals with the right to possess firearms or only a collective right for states to organize militias. In the 1939 case, United States v. Miller, the court upheld a firearm registration law but saved the underlying question for a later decade. The court has given no indication of whether it will choose to hear an appeal by the District of Columbia challenging a court ruling from March that struck down the district’s near total ban on handguns.

Amid the conferencing, arguments, and writing, several dramas will unfold among the justices. The most significant will be a tug-of-war between the court’s liberal and conservative wings over Justice Kennedy, whose position in the middle could either force compromises or prompt schism between the justices. Shifts in the court’s jurisprudence will increasingly depend on Justice Kennedy budging in one or another direction. In a significant case last term — one involving school integration plans in Seattle and Louisville, Ky.— Justice Kennedy satisfied neither side. While striking down both plans, he did grant permission for school districts to take the race of students into account when deciding where to situate new campuses or rezone districts.

This term will be Chief Justice Robert’s third. Some who follow the court closely wonder whether his efforts to reach consensus by encouraging narrow rulings will survive the experience of last term, when a streak of important cases were decided 5 to 4. Justice Scalia has belittled this effort, most notably in the context of a decision last year involving a challenge to a federal ban against some corporate-funded political ads. Although both justices found the law had unconstitutionally restricted speech in the case before the court, Chief Justice Roberts did not demand that the relevant section of law be scrapped, prompting Justice Scalia to rebuke him for “faux judicial modesty.”

Last term witnessed “the failure of the Roberts strategy” a law professor at Columbia, Michael Dorf, said. “One thing to watch for will be whether he gives up on the idea that he will get consensus by deciding cases on narrower grounds. You may see him go to the Scalia view on writing broader opinions.”

NEW YORK JUDGES
In New York Board of Elections v. Torres, the Court will decide whether New York State’s method for choosing judges violates the rights of voters and candidates to participate in the selection process. In New York, the Democratic and Republican parties hold nominating conventions during which party delegates pick judicial candidates to run as the party’s nominee on Election Day. Those conventions are widely considered less than a model of republicanism because party delegates often reflexively choose the favorite of the local political boss, and candidates are often not permitted to address the conventions. Both the district court and the circuit court have sided with the plaintiff, a surrogate judge in Brooklyn, Margarita Lopez Torres, who has long sought a place on the state’s general trial court. Both courts said that until the system is fixed, judicial nominees should face a primary election.

The high court’s decision to hear the case suggests that it believes the case has widespread implications for the constitutionality of political conventions outside New York judicial politics. In a brief to the court, the Republican National Committee said ruling against the nominating conventions threatened the First Amendment rights of the party to endorse a candidate. Some 20 state judges are expected to make the trip down to see the arguments.

SPECIAL EDUCATION
In Board of Education of the City of New York v. Tom F., the Supreme Court will decide whether children with disabilities must first attend public schools before asking the school district to pay for a private education. Under the federal Individuals with Disabilities Education Act, the district must pay for disabled children to attend private programs if public schools can’t provide an “appropriate” education. A former Viacom executive, Thomas Freston, is bringing the case on behalf of his son. The city argues that a win for the Freston family will require it to pay for private education even when public schools have appropriate resources. The Frestons argue that disabled children will be squandering time if they first must attend inadequate public programs before they can be reimbursed for a private education.

GUANTANAMO
In Boumediene v. Bush and Al Odah v. U.S., the court will decide whether the detainees held at the naval base at Guantanamo Bay, Cuba, have a right to have their detention reviewed by federal courts stateside. With the 2006 Military Commissions Act, Congress stripped the federal courts of jurisdiction, in what lawyers for the detainees call an unconstitutional denial of habeas corpus. At issue before the court is whether the Pentagon’s combatant status review tribunals are an adequate substitution for habeas.


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