The New Court Term, Clearly

Previewing and anticipating the nature of the coming Supreme Court term on its first day is like forecasting the results of a baseball game at the top of the first inning, before you know which players will take the field. The court has so far chosen only about half of the cases it will hear and decide before next June. And many of the biggest potential controversies have yet to make it onto the docket.

So, instead of an advance read on what the court may or may not do with its cases this term, I want to offer some ideas about what the justices should do in the major cases before them. And, really, my humble advice can be summarized in a single word: clarity. The time for lofty but ambiguous declarations-- like then-Justice Sandra Day O'Connor's 2004 claim that a "state of war is not a blank check for the President"-- is over. The court must do what it has failed to do in recent terms: Provide clear guidance for the lower courts and the other branches of government.

Nowhere has the Supreme Court copped out more than in the area of terror law. Five terrorism-related appeals have reached the justices since the Twin Towers fell. And the court already has issued two namby-pamby rulings that did little to help the White House or Congress figure out how to process the hundreds of detainees still held at Guantanamo Bay.

This term, the court will hear a case about whether "enemy combatants" may challenge their detentions in federal courts under the writs of habeas corpus. I believe that detainees deserve that right. But whether or not the justices agree, they should at least state their view on the latest congressional effort to restrict habeas. Otherwise, Guantanamo will continue to be a recurring feature of each term.

The justices should also provide clarity and consistency in the area of capital punishment. The court this term will hear two death-row inmates' challenge to Kentucky's lethal injection protocols. To resolve confusion, not just in the Bluegrass State but in many of the 36 other states that use lethal injection, the court should offer clear direction on which drugs should be administered, in which order, and under what conditions. Additionally, the justices owe the condemned a series of baseline protections-- cleaner and well-lit death chambers, for example, and better training for the prison officials who administer the lethal cocktail.

Also touching on capital punishment is a case the court will consider for a second time. In Snyder v. Louisiana, prosecutors struck all blacks from the jury and then played the "O.J. Simpson card"- comparing Simpson and African-American defendant Allen Snyder, accused of murdering his wife's companion, allegedly to encourage a death penalty verdict. In 2004, the Supreme Court sent the case back to Louisiana. This time, it must provide greater clarity about race-based jury discrimination.

Yet another area that could use greater clarity is that of federal sentencing, which the justices made all-the-more chaotic in 2005 when they declared sentencing guidelines advisory rather than mandatory. This term, the court will hear Kimbrough v. U.S., a case about the "crack cocaine" sentencing rule that punishes crack cocaine crimes at a 100:1 ratio compared with powder cocaine crimes. Many federal judges are incensed by the rule-- it creates great inequality, even absurdity, in sentencing-- and publicly frustrated by the court's slow response in fixing it. Again, the time has come for unambiguous direction.

What's standing in the way of clarity? Well, the court is made up of nine brilliant men and women who deal in nuances and technical distinctions, it's as ideologically split as it has been in generations, and it traditionally affords "deference" to the more proactive branches of government.

But enough is enough. One of the Supreme Court's most important functions is to help society understand what's within and what's beyond the rules. Now, more than ever, the high court needs to be true to that high ideal.

By Andrew Cohen |  October 1, 2007; 7:00 AM ET
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Comments

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I would prefer a lack of clarity because clear opinions will be harder to overturn when the current Bush majority is replaced by justices more representative of our nation.

Posted by: Eric | October 1, 2007 08:45 AM

One of the surest predictions is that the Court will reverse the 10th Circuit in the Mendelsohn/Sprint case and in so doing materially hamper the ability of employment discrimination plaintiffs to prove their claims of discrimination.

Posted by: Robert | October 1, 2007 10:58 AM

I think by using the word "should" Andrew Cohen subtly reminds us that many think the Supreme Court has the job of approving good laws and striking down bad ones. Although Cohen may not intend it, a reader might not understand what he means is clarity in interpretation of the law, not clarity in terms of governing political philosophy. I think the clarity this court and future courts need, is about its role: is this a super-legislature or is it a scholarly interpretive body free from political influences?

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Posted by: SlatRegue | October 1, 2007 11:07 AM

Eric must not venture far from his palatial San Fran estate. If anything, the court is more representative of the current population than not. Looks like the old montage of, "If you can't beat them with your ideas, then stack the court in your favor" is over. In fact, the current ideological split on the court almost mirrors the last presidential election.

Posted by: Mark | October 1, 2007 11:10 AM

The reason the court is giving so many "unclear" opinions is precisely because it is so split along ideological lines.

Posted by: Anonymoose | October 1, 2007 11:30 AM

If telling everyone what the Supreme Court will do is so difficult, why not just wait until they have a reasoned discussion and announce their results. I would certainly prefer the opinion of a Supreme Court Justice who has been apprised of the facts and arguments to that of a newspaper reporter, however well-meaning and however bent on on painting a picture beforehand. Let's just let the fat lady sing, shall we?

Posted by: Dale Truman | October 1, 2007 11:36 AM

Yes, the SCOTUS mirrors the results of the previous election because they themselves decided the penultimate election.

Who needs a super-legislature when in the SCOTUS we have a super-elector?

Posted by: marc | October 1, 2007 11:57 AM

The untold biggie is that SCOTUS will hear the DC gun ban case, and that is the first major 2nd Amendment case to be heard in almost 70 years, and could lead to a (rigthful) overtrun of the NFA and its bastard children and restore the RKBA and the 2nd Amendment to its rightful statsu as decided in both Emmerson and the DC case.

Posted by: Tannim | October 1, 2007 01:11 PM

I'm shocked -- The Wash Post calling for an activist Supreme Court.....About as shocked as I'll be when the Post endorses a Democrat for President in'08.....

Perhaps the "deference" to the more proactive branches of government is exactly what the Constitution intended.

Posted by: jmack4 | October 1, 2007 01:36 PM

On the other hand perhaps the court will actually read the text of the second, that overlooked part about "militia," so important to the authors that they broke the grammar to put it first, and we can start to join the civilized world that doesn't feel naked without a firearm and doesn't fantasize about going up against the military to defend the Constitution.

Posted by: Chris Fox | October 1, 2007 01:39 PM

Gee, issuing clear rulings is "activist" and/or "liberal"? I didn't realize obfuscation was the conservative position. Oh, wait a minute, yes I did.

Posted by: ALFlanagan | October 1, 2007 01:56 PM

Mr Cohen's analysis reveals exactly what has gone wrong with American jurisprudence in the last half century. To wit, it is decidedly not the job of the Supreme Court to "to help society understand what's within and what's beyond the rules." Their job is to "say what the Law is", recognizing all the while that the Law is independent of their political views and/or desired outcome. SCOTUS would do well to get back to calling balls and strikes and leave the changing of the rules to the democratic institutions which are Constitutionally empowered to do so.

Likewise, it is not their job to provide "guidance" to the other branches of government. Last time I checked, the framers intended coequal branches and not the oligarchy we've become

Posted by: J. Patterson | October 1, 2007 02:46 PM

I better get my Supreme Court filing in. I was jailed to benefit Lloyds of London and Mutual Insurance of Hamilton Bermuda. This also helped Carolyn Lamm, a D.C. lawyer, who describes herself on her resume as one of the 50 most powerful women in the U.S. How much did she get paid for going along with putting me in jail in order to deter and delay my presentment in court? The president, CEO and general counsel of Mutual Insurance of Bermuda, Jerome C. Schaefer, also lives in D.C. I have no criminal record. I was not arrested. There was no warrant. I was not even accused of breaking a law. Never mind, in the U.S. might makes right. They didn't want to meet me in Court, in my civil filings, so they just "asked" Colorado Federal Judge Edward Nottingham, the strip club judge, to put me in jail. And, given the fact that there are effectively no controls in today's judiciary, he was happy to issue an arrest warrant for doing something legal, without a DOJ signature.

Posted by: Kay Sieverding | October 1, 2007 08:58 PM

I happen to be in favor of clarity as well. I also believe that the scope of law should be narrow. And it would be great if Congress wrote the laws clearly with narrow scope, rather than relying on nine justices of the Supreme Court to do their dirty work, or the Federal buraucracy.

That said I have one question and one point. First a question: why is it that the Supreme Court and the legislatures are too ignorant of medicine to specify which medical procedures are appropriate for aborting a fetus, but they are knowledgable enough to specify the drugs required to execute a human. Would this be the same drug mix of "choice" for euthanasia? Shouldn't they be able to address both or leave both to physicians?

Second, a on comment crack cocaine vs. the powdery stuff: I have read that the higher penaltties are racist because most crack addicts are black, but isn't it anti-white racism? That society is more willing to protect black victims more aggresively than white victims in the drug wars? And I would ask, what is the relative social harm of these two drugs? I would like to see statistics on violent crime associated with the merchandising of crack cocaine vs. power cocaine. I knew a lovely lady with two wonderful kids who got hooked on crack, burned down her apartment and basically destroyed her life in a tragic downard spiral. I am sure there are similar stories about "regular" coke users, but what is the overall ratio?

Posted by: Constitutionalist | October 2, 2007 09:50 PM

At almost every ALI-ABA or other CLE seminar where Federal Judges are guest presenters they complain early and often that they want more "bright line" decisions from their Circuit or from the Supremes. Clarity, in that administrative sense, is AOK.

On the "crack" vs. cocaine issue: the same chemical in the same dosage should bear the same penalty.

Congress' job, if they choose to ever get real, is to decriminalize drugs at the Fed level, after losing the "War on Drugs" every year for 30+ years at the cost of more than half a trillion dollars. An ATF regime of regulation would far cost less in tax dollars, and the burden on the federal justice system, and the ruined lives of non-violent offenders. To those who say usage would skyrocket, I say try it for a year and see. Maybe they would prove right; probably not.

Violent crime spinoff would be reduced because a federally regulated market on controlled substances would mean that cost to the addict would be less, and collecting excise taxes on marijuana alone could fund the medicaid gap.

But because that will not happen, let us at least treat the same substance with the same deference.

Posted by: Mark in Austin | October 3, 2007 08:51 AM

Hey Cohen, I hope you're following the Sears Tower "terrorist" trial-I'd really like to know how the AUSAs are doing there-you know, how many misleading and exaggerated statements they've already made to the jury about the defendants in question! DOJ always encourages the AUSAS TO SAY WHATEVER THEY WANT-IF IT'S A TERRORIST TRIAL, DOJ SAYS, ANYTHING GOES!!

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"the court is made up of nine brilliant men and women..."

I'm not sure i buy that. I certainly see no signs of brilliance in Thomas. Since he's hardly expressed an original thought since before his confirmation hearings, and including everything I see about his new book, if he's brilliant he's certainly doing a good job of hiding it.

Stevens and Kennedy are pedestrian at best.

Scalia is brilliant, but in the service of ideology, not the law or the constitution.

I doubt that, in fifty years, history will remember any of these justices with the fondness and respect that we have now for most of the members of the Warren court.

Posted by: harveykek | October 6, 2007 08:58 PM

I read your columns and I do respect your positions, if at times I do not agree with you. I rate myself as a liberal, opposed to almost everything Republican, excessive christianity --pseudo-christianity-- included. As soon as I see a candidate selling how much he/she prays, from both parties, I become skeptical, to say the least. The same happens to me when it comes to the death penalty. Since it appears to me that that is one of the most important legal and moral issues the United States faces, I become skeptical if it appears to me that it is dealt with lightly by a respected writer. "The court should offer clear direction on which drugs, in which order" should be adminstered. And then you add: "Additionally, the justices owe the condemned a series of base-line protections --well-lit death chambers, for example." I know that the constitutionality of the death penalty is not at issue in any of the cases you mention. But your approach reminds me of Alfred Hitchcock. I think that you expressed it escessively matter of factly. (I do oppose the death penalty).

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