Federal Judiciary

Court won’t save porn law, alters immunity rule

By Akin Gump Supreme Court Practice Group

UPDATED

The Supreme Court on Wednesday refused the federal government’s request to salvage a six-year-old law seeking to ban minors’ access to sexually explicit material on the World Wide  Web.  Acting on that law for the third time, the Justices simply declined to review a Third Circuit Court decision last July striking down the Child Online Protection Act of 1998.  The Justices’ action came without comment and with no noted dissents in Mukasey v. American Civil Liberties Union, et al. (08-565).

The Court took that action in one of a series of orders it issued, and then it released four opinion on the merits and one summary decision on the merits.  In those opinions, the Court, among other results, eased a constitutional formula judges are to use in cases in which government officials claim legal immunity to damage lawsuits challenging their actions, it broadened federal judges’ authority to impose less onerous criminal sentences for crack cocaine crimes, and it ruled that a 1972 federal law against sex bias in schools and colleges getting federal funds does not provide the only legal remedy for claims of such discrimination.

In a significant shift in constitutional doctrine in the field of officials’ legal immunity, the Court ruled that the sequence that judges have had to follow in weighing government officials’ claims to be spared liability for their actions is no longer mandatory, thus freeing judges to avoid some rulings on constitutional claims.  The mandatory sequence was laid down in Saucier v. Katz seven years ago.  On Wednesday, the Court ruled in Pearson v. Callahan (07-751) that the Saucier formula “should no longer be regarded as mandatory in all cases.”  Under the formula, judges must first decide whether a government official’s action violated the Constitution. If a violation was found, the judge then turned to whether the constitutional protection was “clearly established” at the time of the violation.

The Court, in an unsigned summary ruling in Spears v. U.S. (08-5721), divided 5-4 in making explicitly clear that federal judges may impose more lenient sentences for crack cocaine offenses than federal Sentencing Guidelines provide, even if they do so simply because they disagree that the Guidelines provision and find it too harsh.  The opinion said the Court was moving to clarify its ruling in 2007 allowing judges to depart from the 100-to-1 ratio that punished crack cocaine crimes 100 times more severely than those involving cocaine in powder form.  Some lower courts, it indicated, had misread that ruling by holding that judges were not free to depart from that ratio of 100-to-1 merely because they disagreed with it, and preferred a lesser ratio.  On Wednesday, the Court majority said “we now clarify that district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.”  Four Justices disagreed — three because they thought the Court should not have acted summarily, and one dissented outright.

Although the ruling was unsigned, it had the support of Justices Stephen G. Breyer, Ruth Bader Ginsburg, Antonin Scalia, David H. Souter, John Paul Stevens.  Chief Justice John G. Roberts, Jr., joined by Justice Samuel A. Alito, Jr., said in a dissenting opinion that there were good reasons not to address the issue “at this time,” and that, in any event, the case should not have been decided summarily.  Justice Anthony M. Kennedy noted briefly that he would have granted full review and argument of the case. Justice Clarence Thomas dissented without writing an opinion.

In Fitzgerald v. Barnstable School Committee (07-1125), the Court, in an opinion written by Justice Alito, ruled that a parent or child may bring a constitutional challenge to sex discrimination in public schools under an 1871 civil rights law, because a 1972 law — Title IX of the Education Amendments — is not the exclusive remedy.  The case involved a plea by the parents of a Hyannis, Mass., kindergartner seeking to revive their cionstitutional claim that their daughter was discriminated against repeatedly when an eight-year-old boy in her school required her to lift her skirt or pull down her panties.

Here are the outcomes in the other two merits decisions:

** The Court ruled unanimously (with three Justices writing a separate concurring opinion) that the Constitution allows a local unit of a labor union to charge workers who are not members fees to help cover lawsuit expenses of the union at the national level, so long as those lawsuits involve issues that could have been pursued if they had involved only local conditions — such as litigation over collective bargaining questions.  The ruling, written by Justice Breyer, came in Locke v. Karass (07-610).

** By a 6-3 vote, the Court in Waddington v. Sarausad (07-772) moved to further limit the authority of federal courts to second-guess the decisions of state courts on instructions given to juries on an accomplice’s role in a crime.  Justice Thomas wrote for the majority.  Justice Souter dissented, joined by Justices Ginsburg and Stevens.

Among the orders issued Wednesday, the Court asked the U.S. Solicitor General for the federal government’s views on whetherf one parent, who has a right to prevent a child’s removal from a country by the other parent, also has a right to have the child returned to the country where he or she had been living.  The case of Abbott v. Abbott (08-645) requires the government to provide its interpretation of the Hague Convention on International Child Abduction.   There is no timetable for the Solicitor General to respond.

Full post as published by SCOTUSBLOG on January 21, 2009 (boomark / email).