As the Supreme Court kicked off its new season last week with a brand new justice on the bench, the cases on the docket provided a fascinating glimpse into the judicial soul of the country.
In the first days alone, there were cases involving dog fighting, a controversial cross on public land, and a number of prickly criminal justice issues.
The months to come will test laws on some of the most controversial issues of our time, including guns, sex offenders and the uniquely American question of whether teenagers can be sentenced to life without parole. The outcomes will tell us a lot about the future direction of the Roberts court, and what it might mean to have Justice Sonia Sotomayor on the bench.
The cases below might seem like an odd assortment: provocative, but not necessarily the ones that will be considered the most significant by court watchers. (Not included are Citizens United v. Federal Election Commission, a crucial case that will have implications for campaign-finance reform, or two Second Amendment cases that have the gun lobby on its toes.) But put together, the decisions will paint a pretty interesting portrait of where the country finds itself in matters of law and justice.
1. U.S. v. Stevens: "Can Congress Ban the Human Sacrifice Channel?"
OK, it's not actually about human sacrifice, but it is a First Amendment doozy. Last Tuesday, the court heard U.S. v. Stevens, which centers on the government's power to outlaw videos and other depictions of animal cruelty.
The case involves the free-speech rights (or not) of a Virginia man named Robert Stevens, who landed in jail for selling videos depicting pit bull fighting. His conviction was based on a 1999 federal law designed to punish anyone who "knowingly creates, sells or possesses a depiction of animal cruelty" for commercial gain -- legislation apparently inspired by sex-fetish videos that show small animals being crushed to death by women in stilettos. Really.
Appalling? Of course. But for the court, that's not the relevant question. Last year, a federal appeals court overturned Stevens' conviction, saying that the law that sent him to prison is too sweeping and could potentially lead to unintended bans on books, documentaries and other legitimate works that happen to contain depictions of animal being injured or killed (even though the law attempted to make an exception for depictions that have "serious religious, political, scientific, educational, journalistic, historical or artistic value").
First Amendment defenders have long maintained that even the most vile and morally reprehensible forms of expression must be allowed if, say, we are to have a free press in this country.
Indeed, among the amicus briefs filed on behalf of Stevens was one on behalf of 14 news media organizations that argued that "the exceptions clause is not nearly broad enough to protect legitimate news coverage."
"The goal of preventing crush videos and other animal cruelty is certainly a worthy one," the brief argued. "It is this very interest in protecting animals from abuse that makes speech about their treatment so valuable."
Indeed, as lawyers for the defendant have pointed out, animal-rights groups (a number of whom have filed amicus briefs in support of the other side) sometimes use disturbing imagery of animal suffering in their own advocacy to raise awareness and support for their work.
Monday's oral arguments didn't get into freedom of the press or animal rights advocacy (although they did note the fact that "animal cruelty" is highly subjective -- just ask a militant vegan). But they were chock-full of colorful hypotheticals -- or as Justice Antonin Scalia put it, "First Amendment horribles" -- including a novel invention by conservative Justice Samuel Alito, who wanted to see just how far Stevens' lawyer would go to defend free speech: Would the First Amendment protect a live, pay-per-view "human sacrifice channel," he asked; a question subsequently revisited by his colleagues throughout the morning.
All told, it looks like the First Amendment will trump animal rights writ large. "By the argument's end, the justices seemed to be weighing two possibilities," wrote David Savage for the Los Angeles Times.
"One was to narrow the reach of the law to focus only on the "crush videos." The other was to strike down the law entirely because it infringed too much on the First Amendment."
"It's not up to the government to decide what are people's worst instincts," Scalia argued at one point. "If the First Amendment means anything, that's what it means."
2. Salazar v. Buono, or the Mojave Cross Case
The next day brought a case that has really riled up the ACLU-bashing crowd. And as a bonus, this one involves religion. The story goes like this:
In 1934, a 5- to 8-foot-tall cross (no one seems to know for sure) was erected by a chapter of the Veterans of Foreign Wars in California's Mojave National Preserve, a 1.6 million-acre swath of San Bernardino County.
Built as tribute to veterans of World War I, who apparently also put a memorial plaque at its base, for 65 years it stood, mostly without incident (although the cross was taken down and replaced a couple of times, and the plaque eventually went missing).
Then, in 1999, a National Park Service retiree sought permission to erect a Buddhist shrine -- a stupa -- near the cross, only to be denied permission by his former employer, who informed him that "[a]ny attempt to erect a stupa will be in violation of federal law and subject you to citation and/or arrest."
Perhaps realizing it had some hypocrisy on its hands, the park service also wrote that it intended to remove the cross. But in 2001, Frank Buono, a different Mojave retiree, who worked for the NPS for 25 years, sued, arguing that the cross is a violation of the establishment clause of the Constitution. In 2002, he won.
(Buono, a practicing Catholic, has been vilified by defenders of the cross, who, among other things, has attacked him for the fact that he no longer lives anywhere near the Mojave Preserve and thus has no business trying to get it taken down. This baffles him. Frank Buono, "Whether I'm 500 miles away or 5 feet away from it, the fact of the matter is that that land is land that I own, that's land that you own; that's federal public lands," Buono recently told PBS. "It belongs to everyone, and so it matters to me that the lands that are held in common by the United States do not become the venues for sectarian religious expressions, even of my own religious expressions.")
Over the years, Congress has tried to pass all sorts of legislation, tucked into various defense-authorization bills, to protect the cross by turning it into a "national memorial," like Mount Rushmore.
One bill would have authorized the Secretary of the Interior to spend up to $10,000 to "acquire a replica of the original memorial plaque and cross placed at the national World War I memorial" and install it in a "suitable location on the grounds of the memorial." Another barred the use of federal funds "to dismantle national memorials commemorating United States participation in World War I."
Most recently, Congress decided to solve the problem by transferring the acre of land upon which the cross stands to the Veterans of Foreign Wars, a move decried as a "sham" by California's 9th U.S. Circuit Court of Appeals, which argued that it would leave an absurd "little donut hole of land with a cross in the midst of a vast federal preserve."
The Mojave cross has not come down, but pending a resolution to the case, it has been covered first with a tarp and most recently with a plywood box.
The case has become a cause celebre for the religious right, which has seized on it to show just how bad the left's supposed war on Christianity has gotten.
"The fact that this cross, this memorial, is covered in a box of plywood, is a disgrace!" Kelley Shackleford, chief counsel of the Liberty Legal Institute told attendees of the Value Voters Summit in Washington last month. The organization has even put up a Web site, Don't Tear Me Down (www.donttearmedown.com), on behalf of the cross.
"If they win and succeed in tearing down this monument, what's next? Imagine what could happen at the Arlington National Cemetery. Will they put bags over all the crosses that mark the graves of our fallen heroes?"
In a statement this week, ACLU attorney Peter Eliasberg countered that "the cross is unquestionably a sectarian religious symbol, and as a congressionally designated national memorial -- one of only 49 national memorials in the country -- it would convey the message that the military values the sacrifices of Christian war dead over those of service members from other faith traditions."
The controversy over religious symbols in public places might seem like a perennial issue, but if there is a single reason to follow this particular case, it is to see how the new makeup of the court will play out.
"The court has seesawed confusingly on the constitutionality of religious displays on public property," the Los Angeles Times wrote in an editorial this week. "In separate 5-4 decisions on the same day in 2005, it struck down the posting of the Ten Commandments in courthouses in Kentucky but upheld a Ten Commandments monument on the grounds of the Texas Capitol.
Stephen G. Breyer, the only justice to vote for both results, wrote that the latter monument was permissible because it had stood on public land for 40 years without protest. That loose standard could be used to justify the Mojave cross."
Last week's oral arguments didn't seem quite as captivating as those in Sullivan. (At least there was no overt talk of human sacrifice.) But they did introduce a novel view of the cross, as a symbol that is not necessarily particularly religious.
"The cross is the most common symbol of … of … of the resting place of the dead," Scalia sputtered at one point, prompting the ACLU lawyer representing Buono to remind him that, among other things, "there is never a cross on a tombstone of a Jew."
People in the courtroom laughed, but Scalia didn't find it funny. "I don't think you can leap from that to the conclusion that the only war dead the cross honors are the Christian war dead," he snapped. "I think that's an outrageous conclusion."
Dahlia Lithwick wrote in Slate on Thursday: "Far less outrageous is the conclusion that religious symbols are not religious. But that's why these religion cases are always such fun. We believe what we need to believe."
3. Sullivan v. Florida/ Graham v. Florida: Should Some Teenagers Die in Prison?
So here's a dubious distinction: the United States is the only country that metes out punishments of life without parole to kids under the age of 18. But two Florida cases scheduled to go before the court next month could change that. Both cases involve teenagers who were convicted of crimes other than murder.
One of the cases involves Joe Sullivan, who 20 years ago became the youngest person to be sentenced to life without parole in this country.
In 1989, a reportedly mentally disabled Sullivan, who was 13 at the time, and two older teenagers broke into the West Pensacola home of 72-year-old Lena Bruner, stealing some jewelry and cash.
Bruner wasn't home at the time of the burglary, but later that night, one of the teenagers returned to the house and brutally beat and raped her.
The older teenagers confessed to the burglary, pinning the rape on Sullivan. He denied it but was indicted and tried as an adult. (The two other boys did time in juvenile prison and were then freed.)
The facts of the case were grotesque. And strange.
Bruner never saw her attacker -- she was blindfolded during the assault -- and forensic evidence collected from the victim was not presented at trial. (This evidence was destroyed before it could be tested for DNA.)
Bruner identified Sullivan according to his voice in a courtroom exercise rehearsed with the prosecutors. Racism infused the trial; according to Equal Justice Works, "during trial, the prosecutor and witnesses made repeated, unnecessary reference to the fact that Joe is African American and the victim is white; one witness repeatedly said the perpetrator of the assault was a 'colored boy' or 'a dark colored boy.'"
Despite the holes in the case, Sullivan was found guilty and declared by the judge in his case to be "beyond help." He became the youngest person in the country to be sentenced to die in prison for a crime other than murder. At 14, he was sent to an adult prison, where he was repeatedly sexually assaulted.
Sullivan now is 33 years old. Stricken with multiple sclerosis, he is confined to a wheelchair. He still insists he did not commit the rape, but the question of innocence is not for the court to decide.
Instead, the justices will consider whether a sentence of life imprisonment for juveniles is cruel-and-unusual punishment.
It's a highly anticipated case for those who recall the landmark decision in Roper v. Simmons four years ago, which struck down the death penalty for juvenile defendants on Eighth Amendment grounds.
"The essential feature of a death sentence or a life-without-parole sentence is that it imposes a terminal, unchangeable, once-and-for-all judgment upon the whole life of a human being and declares that human being forever unfit to be a part of civil society," Equal Justice attorney Bryan Stevenson argued in court filings on behalf of Sullivan.
"Roper understood and explained why such a judgment cannot rationally be passed on children below a certain age. They are unfinished products, human works-in-progress. They stand at a peculiarly vulnerable moment in their lives.
Their potential for growth and change is enormous. Almost all of them will outgrow criminal behavior, and it is practically impossible to detect the few who will not. To date they are the products of an environment over which they had no real control -- passengers through narrow pathways in a world they never made."
Indeed, Sullivan grew up in a home where he was "regularly subjected to physical and sexual abuse," according to his lawyers.
Like the death penalty, sentences of life without parole have proved to be sharply slanted when it comes to race.
According to a study released by the Sentencing Project -- which has filed an amicus brief in Sullivan's case -- in 22 states, more than 50 percent of the prisoners serving LWOP are African American. In Maryland, Alabama and Virginia, the percentage is more than 80 percent.
A slew of other groups have filed amicus briefs on behalf of Joe Sullivan, including Amnesty International, the American Psychological Association, the American Bar Association and a group of former juvenile offenders, including Ishmael Beah, a former child soldier from Sierra Leone, who in 2007 published the internationally best-selling memoir, A Long Way Gone.
"Children who commit crimes lack the moral and psychological underpinnings of adults," he said, "but they're also more resilient, so it is very possible to change. And it is only through rehabilitating such children and youth that we are able to learn how to prevent a similar situation from happening to others." Roper v. Simmons was a 5-4 decision. Two of the dissenters – justices Sandra Day O'Connor and William Rehnquist -- have since been replaced by Roberts and Alito. Now-retired Justice David Souter joined the majority. Will Sotomayor [who replaced him] follow his lead?
4. United States v. Comstock: Indefinite Detention for Sex Offenders?
Finally, in another criminal justice rarity, at some point this term the Supreme Court will take up United States v. Comstock, a remarkable but widely overlooked case concerning the right of the federal government to keep sex offenders locked up beyond the span of their sentence on the grounds that they still pose a threat to society.
At a time when preventive detention is being pushed by the Obama administration as a suitable way to deal with terrorism suspects, this case seems worth watching
Coverage has been relatively sparse. The case is named after Graydon Comstock, who was sentenced to 37 months in prison for receiving child pornography on his computer. Six days before his prison term was supposed to end, however, the government certified him as a "sexually dangerous person" and kept him in confinement.
Comstock is not alone. A number of other prisoners at North Carolina's Butner Federal Correctional Complex, where he is imprisoned, remain behind bars for similar offenses, despite the fact that their sentences -- ranging from three to eight years -- ended two years ago.
Their continued confinement is thanks to the sweeping Adam Walsh Child Protection and Safety Act of 2006, a federal law that created a National Sex Offender Registry and bolstered laws prohibiting child pornography. Included in the law was a little-noticed provision allowing the federal government to keep prisoners in "civil confinement" after they have paid their debt to society, on the grounds that they are "sexually dangerous" -- a certification determined by the attorney general. It is this provision that has come under fire.
"The Constitution does not empower the federal government to confine a person solely because of asserted 'sexual dangerousness' when the government need not allege (let alone prove) that this 'dangerousness' violates any federal law," ruled the 4th U.S. Circuit Court of Appeals last year, arguing that the power to impose "forcible, indefinite civil commitment" is "among the most severe wielded by any government."
In its petition for a writ of certiorari, submitted in April, Solicitor General Elena Kagan argued that the court of appeals had struck down an "important act of Congress that was adopted to protect the public against the release of federal inmates who suffer from a serious mental illness, abnormality or disorder and are sexually dangerous to others."
The Supreme Court has already shown sympathy to the government's claims. In April, the high court blocked the imminent release of dozens of sex offenders who have served their federal sentences, after the Obama administration claimed that many of them remain "sexually dangerous."
Chief Justice John Roberts ordered that the men be kept in custody while the case worked its way through the high court.
The Justice Department had urged against any early release, with Kagan writing that it "would pose a significant risk to the public and constitute a significant harm to the interest of the United States."
The power to detain a person indefinitely is a dramatic measure, even for a population as derided as convicted sex offenders, whose rights are already the most circumscribed in the country.
Even as this case is likely to be argued in terms of state versus federal power, the doctrine of preventive detention has advanced into the highest levels of the Obama administration as it has adopted and tweaked the policies of the Bush administration before it. What the Supreme Court decides in this case could tell us a lot about how far the court is willing the federal government go when it comes to its imprison people, not for things they have done, but for things they might do.