Monday, June 22, 2009

Supreme Court Decisions and InDecisions this week....

Don Zimmerman in front of Jack Stueber's garage, the Texas polling location that prompted the Supreme Court challenge to the Voting Rights Act.

WASHINGTON -- The Supreme Court dodged a constitutional showdown over voting rights by leaving intact a central provision of the 1965 Voting Rights Act.
The court's 8-1 vote, and its opinion by Chief Justice John Roberts, was a break from recent decisions in race-tinged cases that have split its conservative majority from the liberal minority.
Instead, the court chose a narrow path in making it easier for small jurisdictions to end federal supervision of their election procedures. The decision kept intact the framework of a law designed to end the disenfranchisement of black citizens across the South -- and kept the court out of a divisive social and political issue.
Click the following to access the sent link: - Supreme Court Keeps Voting Rights Act Largely Intact*
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The challenged provision of the Voting Rights Act -- Section 5 -- requires state and local governments in areas that once practiced discrimination to "preclear" changes in election procedures with the Justice Department to ensure that minority voters are protected. In 2006, President George W. Bush signed a bill reauthorizing the provision for another 25 years.
Some conservatives chafed under the provision, which they contend stigmatizes regions subject to Section 5, mainly in the South but also including three boroughs of New York City and certain counties in California and New Hampshire. In a nation that has elected a black president, challengers argued that the Constitution should no longer permit intrusive federal supervision of local elections.
In the case before the court, a tiny utility district in Texas that that didn't exist until the late 1980s and which never has been accused of discrimination, sought exemption from Section 5. If it wasn't entitled to exemption, the district argued, Section 5 in its entirety was unconstitutional and should be struck down.
Instead, the court ruled narrowly in holding that all political subdivisions -- not just those that conduct voter registration -- can seek exemption from Section 5 pre-clearance if they can demonstrate a 10-year history free from racial discrimination. Lower courts had interpreted the exemption provision more strictly, meaning that most of the 12,000 units of local government covered by Section 5 could not seek exemptions.
Chief Justice John Roberts, writing for the court, said the larger issue of whether dramatic civil rights gains means the advance approval requirement is no longer necessary "is a difficult constitutional question we do not answer today."
Justice Clarence Thomas, the court's only black member, dissented. He wrote that Section 5 should have been struck down as exceeding congressional power over the states.
The Supreme Court first upheld Section 5 in 1966, when it found as within Congress' 15th Amendment power to protect the right to vote free of racial discrimination. Today, with the court's conservative wing bolstered by the arrival of Chief Justice Roberts and Justice Samuel Alito, Section 5 opponents thought the time was ripe to reconsider the provision.
The chief justice and Justice Alito had sided with fellow conservative Justices Antonin Scalia, Anthony Kennedy and Thomas in several decisions sharply critical of government efforts that expressly consider race in an effort to aid minorities. Those decisions sparked deeply critical dissents from the court's four liberals.

Court Backs Discharge Permit for Coeur d'Alene Mines
Also Monday, the court ruled 6-3 that a unit of Coeur d'Alene Mines Corp. received a valid permit from the U.S. Army Corps of Engineers to deposit mining waste in an Alaska lake.
Justice Kennedy, writing for the majority, said the Army Corps. of Engineers has the authority to issue the permit over the Environmental Protection Agency. "We conclude that the Corps was the appropriate agency to issue the permit and that the permit is lawful," he wrote.
The case came to the Supreme Court to clarify a division of power between the EPA and Army Corps of Engineers in making certain decisions regarding the Clean Water Act.
Central to the case was the question of whether the Army Corps properly issued a permit allowing a mining company to release waste by-products into an Alaskan lake. The Ninth Circuit Court of Appeals invalidated the permit in May 2007, citing sections of the Clean Water Act in which the Environmental Protection Agency broadly prohibits the release of newer pollutants.
Coeur Alaska, Inc. applied for a permit at Kensington Gold Mine, located about 45 miles north of Juneau, Alaska. The permit, issued by the Army Corps of Engineers in 2005, would allow the company to release around 4.5 million tons of mine tailings, a by-product of the gold ore milling process, into nearby Lower Slate Lake over a period of 10 to 15 years.
Justices John Paul Stevens, David Souter and Ruth Bader Ginbsurg dissented.
Justices Pass On Bayer Generic Cipro Suit
The court rejected a lawsuit challenging Bayer AG's deal with Barr Pharmaceuticals Inc. to delay producing a generic version of Cipro, an antibiotic drug.
The case is the latest example of a "pay for delay" dispute that has made it way up to the high court. The Federal Trade Commission has actively opposed the agreements, which it views as anticompetitive, but the high court didn't seek a brief from the government before rejecting the appeal.
Separate litigation on the Cipro agreements brought by drug wholesalers and retailers is still pending in a lower court. The Obama administration intends to file a brief in that case, which is in the 2nd U.S. Circuit Court of Appeals in New York.
Bayer paid $398 million to Barr and other generic drug makers in return for an agreement that they would not market a generic version of Cipro until Bayer's patent on the drug expired. Drug purchasers and advocacy groups challenged the agreement as anticompetitive, saying it violated federal and state antitrust laws as well as state consumer protection laws.
The lawsuit was thrown out by a U.S. trial judge in New York in 2005. Last year the U.S. Court of Appeals for the Federal Circuit affirmed the rejection, agreeing that Bayer's patent rights gave it the ability to enter into agreements limiting generic alternatives to its antibiotic.
Court Says Public Must Pay for Private Special Ed
The court ruled 6-3 Monday in favor a teenage boy from Oregon whose parents sought to force their local public school district to pay the $5,200 a month it cost to send their son to a private school.
Justice Stevens said in his majority opinion that the federal Individuals with Disabilities Education Act requires a school district to pay for private special ed services if the public school doesn't have appropriate services. He said this is "regardless of whether the child previously received special-education services through the public school."
Other Cases
The justices rejected an appeal from the credit card and banking units of Capital One Financial Corp., which has challenged efforts by Massachusetts to tax credit card revenues for the financial firm's customers in the state. Capital One maintains it does not have a physical presence in Massachusetts and that the lack of offices or buildings shields it from state excise taxes under Supreme Court precedent. The lawsuit involves $1.76 million in tax assessments on credit card services and $159,100 for banking services for the years 1995 through 1998. The Supreme Judicial Court of Massachusetts in January 2009 upheld the ability of the state to levy the taxes.
The high court rejected an appeal from a unit of AT&T Corp., which has been trying to stop a class-action lawsuit over cell phone termination policies at the company. AT&T has tried to get the lawsuit, filed in West Virginia state courts, transferred to a federal venue by citing the Class Action Fairness Act of 2005, which sought to make it easier for companies to get lawsuits transferred out of state courts.
The court on Monday refused to hear an appeal from former CIA operative Valerie Plame and her husband, former Ambassador Joseph Wilson. A lower court last year threw out the lawsuit in which Ms. Plame and Mr. Wilson accused former Vice President Dick Cheney and several former high-ranking administration officials of revealing her identity to reporters in 2003. The lawsuit named former presidential adviser Karl Rove; Mr. Cheney's former top aide, I. Lewis "Scooter" Libby; and former Deputy Secretary of State Richard Armitage.
The justices agreed to consider restricting certain whistleblower lawsuits claiming that local governments misused federal money. The court said it would grapple with a technical, though important, aspect of the federal False Claims Act as it relates to local governments. One section of the law prohibits whistleblower lawsuits when public disclosure of the alleged fraud occurs through a court hearing, a news report or congressional or administrative audit.
The court is to decide the constitutionality of a federal law that permits sex offenders to be kept behind bars after they complete their prison terms. The justices said they will consider the Obama administration's appeal of a lower court ruling that invalidated the law.
The justices will take up whether a suspect has to be told that he has a right to have a lawyer present during questioning by police. The court agreed to hear an appeal from Kevin Dwayne Powell, who was convicted of being a felon in possession of a firearm. When he was arrested, police gave Mr. Powell his Miranda warnings, including telling him he had a right to a lawyer before questioning. Mr. Powell's lawyers objected, saying police didn't tell him he had a right to have a lawyer during his police interrogation.
The court refused to hear arguments from a Wal-Mart Stores Inc. cashier who said the fake money she agreed to take from counterfeiters was so poorly made that she shouldn't have been convicted of working with them.
[ where is Jay Leno when you need them for this matter...]

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