PUBLISHED:September 18, 2008

Supreme Court Review provides insight into recent decisions

Sept. 18, 2008 — Three Duke Law professors offered students insight into key decision from the Supreme Court’s last term during a lunchtime event on Sept. 17. Professors Curtis Bradley and Ernest Young, along with Visiting Professor Guy Charles, discussed cases pertaining to Guantanamo detainees, international and treaty law, and voting rights, respectively, during the “Supreme Court Review” sponsored by the Program in Public Law.

Bradley, the Richard and Marcy Horvitz Professor of Law and Professor of Public Policy Studies, discussed the Court’s 5-4 decision in Boumediene v. Bush, which extended the right of habeas review to foreign detainees at Guantanamo Bay.

“The two questions in the case are, do they in fact have a Constitutional right to petition for review, and assuming they do have a Constitutional right, has Congress provided an adequate alternative to that right” in conferring limited review powers on the United States Court of Appeals for the District of Columbia Circuit in the Military Commissions Act of 2006, Bradley said.

“The Court splits quite sharply, 5-4, on both of these questions,” he pointed out. Providing the “swing vote,” Justice Anthony Kennedy joined the majority to say that detainees do have a right to habeas review, and that the D.C. Circuit review provisions were not an adequate substitute for that right.

Bradley noted that the Court expressed grave concern about allowing the government to choose when it wanted to “shut off the Constitution and easily evade the restraints that it would otherwise be subject to by setting up these enclaves that it really did have control over, but which were technically not part of the United States.”

He also pointed out differences between the dissenting opinions penned by Chief Justice John Roberts and Justice Antonin Scalia.

“Roberts’ dissent is very lawyerly, very much focused on process and conserving judicial resources for when they’re needed,” Bradley explained. “Scalia’s is a very different kind of dissent, very dramatic and inflammatory. It starts out by saying that the majority decision ‘will almost certainly cause more Americans to be killed.’”

Visiting Professor Guy Charles, the Russell M. and Elizabeth M. Bennett Professor of Law at the University of Minnesota Law School, reviewed the Court’s ruling in Crawford v. Marion County Election Board, which upheld an Indiana law requiring government issued photo ID to vote.

The case was wholly theoretical, he noted, with opponents claiming the law would have a disproportionate impact on poor and elderly voters and was similar to a poll tax, and the government arguing that it was essential to prevent voter fraud.

In a 6-3 plurality opinion written by Justice John Paul Stevens, the Court found that states have an interest in preventing voter fraud, even when there is no record of any such fraud occurring.

“How do you gauge a case where the government can’t present a single instance of voter fraud, but the plaintiffs can’t present a single individual who is being denied the right to vote as a consequence of the voter ID statute?” Charles asked. “You have to have a balancing test, but there appears to be very little to put in the balance. So I guess one way to think about this is if you have an empty balance, the government wins.” The Court also found that making photo identification mandatory was not an onerous requirement.

“Stevens says the burden here is minimal — you need a government ID to do everything,” Charles explained.

Ernest Young talked about the complex international implications of Medellín v. Texas, a case stemming from the conviction on rape and murder charges of a Mexican national living in Texas.

What seemed to be a fairly open-and-shut criminal case became much more complicated when it was revealed that Houston police never told the suspect that he had a right to speak to the Mexican consulate under a treaty called the Vienna Convention on Consular Relations. Had Medellín been notified of that right, the consulate might have been able to help him during the sentencing phase of his trial, Young explained.

Fifteen years of judicial deliberation on the issue included a ruling by the International Court of Justice at The Hague, ruling that Medellín’s conviction was in violation of international treaties, and an order from the Bush administration that the Texas court reopen the case. The Court ruled 6 to 3 that the president does not have the authority to force states to reconsider a death penalty cases, even if those convictions violate an international court's ruling.

Medellín is a wonderful collision of international courts, the president, and the states,” Young said.

The Program in Public Law will sponsor a preview of the Court’s upcoming session on Oct. 9 in room 3041 at the Law School.