Posts Tagged ‘Supreme Court’

Well, that didn’t take long

Sunday, July 12th, 2009

Yesterday at McClatchy:
Sotomayor backers urge reporters to probe New Haven firefighter

Supporters of Supreme Court nominee Sonia Sotomayor are quietly targeting the Connecticut firefighter who’s at the center of Sotomayor’s most controversial ruling.

On the eve of Sotomayor’s Senate confirmation hearing, her advocates have been urging journalists to scrutinize what one called the “troubled and litigious work history” of firefighter Frank Ricci.

What is “troubled and litigious work history”, pray tell?

Specifically, the advocates have zeroed in on an earlier 1995 lawsuit Ricci filed claiming the city of New Haven discriminated against him because he’s dyslexic. The advocates cite other Hartford Courant stories from the same era recounting how Ricci was fired by a fire department in Middletown, Conn., allegedly, Ricci said at the time, because of safety concerns he raised.

The Middletown-area fire department was subsequently fined for safety violations, but the Connecticut Department of Labor dismissed Ricci’s retaliation complaint.

Politics of personal destruction didn’t take long: Today at Salon, Dahlia Lithwick is already saying, Fire Proof: The New Haven firefighter is no stranger to employment disputes.

The NYT has an article on Ben Vargas (h/t Volokh, another one of the firefighters who were denied promotion over Sotomayor’s decision. Like Sotomayor, Vargas was born and raised in the Continental US of Puerto Rican parents.

How Ricci almost disappeared:

…by electing on Feb. 15, 2008, to dispose of the case by a cursory, unsigned summary order, Judges Sotomayor, Rosemary Pooler and Robert Sack avoided circulating the decision in a way likely to bring it to the attention of other 2nd Circuit judges, including the six who later voted to rehear the case.

And if the Ricci case — which ended up producing one of the Supreme Court’s most important race decisions in many years — had not come to the attention of those six judges, it would have been an unlikely candidate for Supreme Court review. The justices almost never review summary orders, which represent the unanimous judgment of three appellate judges that the case in question presents no important issues.

Read the rest (and here’s Judge Jose Cabranes bio)

SCOTUS: Strip search was illegal

Thursday, June 25th, 2009

Following up on the Safford Middle School strip search case, an 8-1 decision:

Supreme Court Rules School’s Strip Search of Girl Was Illegal

The Supreme Court ruled today that Arizona school officials violated the constitutional rights of a 13-year-old girl when they subjected her to a strip search on the suspicion she might be hiding ibuprofen in her underwear.

The court ruled 8-1 that such an intrusive search without the threat of a clear danger to other students violated the Constitution’s protections against unreasonable search or seizure.

Lyle Denniston, writing at SCOTUS blog points out that :

The new rule is that searching students’ inner clothing, with exposure of their bodies, will be extremely difficult — though not impossible — to justify.

The other constitutional rule — searches of public school students’ backpacks, notebooks, other belongings, outer clothing, and pockets are generally allowed if they are based on “reasonable suspicion” — remains as it has for a quarter-century, but with a small amount of refinement, the exact scope of which is not quite clear.


Thursday’s decision only applies to future searches, so the Constitution does not provide them a remedy.

And, hopefully, this will prevent cavity searches, too.

You can read the decision here (h/t Reason).

Reading Sotomayor’s thesis

Thursday, June 4th, 2009

I spent this rainy afternoon at Princeton’s Mudd archives, where the senior thesis are kept, reading Sonia Sotomayor’s 1976 senior thesis, La Historia Cíclica de Puerto Rico: The Impact of the Life of Luis Muñoz Marín on the Political and Economic History of Puerto Rico, 1930-1975.

Since I was born and raised in Puerto Rico and I am very familiar with the island’s politics in the 1970s, I thought it would be interesting to read what she had to say.

First for a little background:
Back in the 1970s, the independence movement was relatively popular among a minority of Puerto Ricans. In the referendum prior to Sotomayor’s thesis, the independence movement received 6% of the vote. Young people who studied abroad, particularly those in Ivy League schools (many studying law), were fond of talking about independence and referred to the island as a “colony”. I have never considered myself a “colonial”, and for the most part ignored that rhetoric. That modicum of popularity for independence has declined: In the 2008 election, the Puerto Rican Independence party had so few votes they will need to register the party again if they want to run a candidate for governor.

The thesis:
The thesis is exactly what it says in the title, a political and economic history of the island focused on former governor Luis Muñoz Marín. It has a four-page preface, 148 pages of text and footnotes, and an additional 21 pages of bibliography and reference material.

On page ii of the preface, she says, “I do not disclaim in this thesis that I do not reflect my own bias toward independence for Puerto Rico,” and on page 98, “Unlike the labeled “socialism” philosophy of the 1940s, Operation Bootstrap was based on a negation of self-sufficiency and an acceptance of utter dependency on the colonial master, the United States.”

I pay particular attention to these two statements since Stuart Taylor Jr pointed to them in his Tuesday post (h/t The Corner). Taylor quotes award-winning history professor K.C. Johnson of Brooklyn College and CUNY Graduate Center, who said,

First, I’m curious as to when Sotomayor ceased being a Puerto Rican nationalist who favors independence — as she says she does in the preface. (The position, as she points out in the thesis, had received 0.6 percent in a 1967 referendum, the most recent such vote before she wrote the thesis.) I don’t know that I’ve seen it reported anywhere that she favored Puerto Rican independence, which has always been very much a fringe position….

There is nothing in the thesis that I could find to indicate that the young Sotomayor, while favoring independence back then, would have advocated anything other than legal and democratic means towards that goal.

My question is, how important is that now, 33 years after the fact? Since she was never a resident of Puerto Rico, one can safely assume that she never participated in Puerto Rican politics. Does she favor independence now? How important is that? Under what circumstances would a Justice have any power to decide on the status of Puerto Rico?

Professor Johnson correctly points out that

she asserted that Muñoz Marín’s economic program, called Operation Bootstrap, failed primarily because Puerto Ricans continued to think of themselves as colonials. This … was 1970s-trendy dependency theory rhetoric, but was wholly unsupported by the evidence that she presented in the thesis (and, indeed, by virtually any evidence that has appeared since that time).

However, I must respectfully disagree with Prof. Johnson in this,

her unwillingness to call the Congress the U.S. Congress is bizarre — in the thesis, it’s always referred to as either the ‘North American Congress’ or the ‘mainland Congress.’ I guess by the language of her thesis, it should be said that she’s seeking an appointment to the North American Supreme Court, subject to advice and consent of the North American Senate. This kind of rhetoric was very trendy, and not uncommon, among the Latin Americanist fringe of the academy.

While the Latin Americanists to this day are fond of referring to the USA as the North Americans, Sotomayor, on chapter 2, page 7, is discussing the US Congress and the Puerto Rican Congress in the same paragraph. She differentiates between the two on footnote 1:

North American “mainland” and “federal” throughout this paper will refer to the United States and its fifty states excluding Puerto Rico. This [entomology CORRECTION] etymology is accepted as appropriate labels throughout Latin American and Puerto Rican literature. Puerto Rico will be referred to as “island” or “insular.”

She did need to clarify between the two congresses, as she discussed in her thesis a 1909 confrontation between the Puerto Rican congress and the mainland, which was resolved when the US legislature broke the impasse. However, she does refer to the United States by name throughout the thesis.

And that was thirty-three years ago.

Clearly not a “colonial”, Sandra Sotomayor is now nominated to the SCOTUS.

The issues that I consider most important what is her record on jurisprudence and upholding the Constitution, and let’s ask about what those “wise Latina” statements convey on how she decides on a legal issue.

Absence of conscience: The SCOTUS and the strip-search case

Wednesday, April 22nd, 2009

The NYTimes today reports that the SCOTUS may find it OK to strip search children at school in the absence of their parents and an attorney:

Justice Souter may have summarized the mood of the court near the end of the argument in the case, Safford Unified School District v. Redding, No. 08-479. Several justices appeared troubled by the search, but also seemed loath to second-guess school officials confronted with a variety of dangerous substances.

“My thought process,” Justice Souter said, “is I would rather have the kid embarrassed by a strip search, if we can’t find anything short of that, than to have some other kids dead because the stuff is distributed at lunchtime and things go awry.”

The unserious tone of the NYTimes article is particularly grating but you can read the transcript of the oral arguments here and skip the NYT’s reporter’s snark.

In yesterday’s panel at PU, Lyle Denniston commented that the Court might decide in favor of the school district. Denniston’s analysis at SCOTUS Blog emphasizes that the Court’s decision may be driven by fear that the possibility of a drug overdose overrides a child’s rights:

It was common for members of the Court — and, especially, Justice Ruth Bader Ginsburg — to express discomfort with an Arizona prinicipal’s order for a close-to-naked search of a 13-year-old girl. But that sentiment did not appear to be as strong as the concern that drugs may be so destructive for teenagers that some surer means of detecting them had to be acceptable under the Constitution.

No more telling illustration of the Court’s mood emerged than Justice David H. Souter — whose vote would almost have to be won for student privacy to prevail – expressing a preference for “a sliding scale of risk” that would add to search authority — including strip searching — based on how school officials assessed whether “sickness or death” was at stake.

“If the school official’s thought process,” Souter asked, “was ‘I’d rather have a kid embarrassed rather than some other kid dead,’ isn’t that reasonable under the Fourth Amendment?” Stated in that stark way almost compelled agreement, without regard to whether a student singled out for a strip search was actually adding to such a risk, but was only the target of a classmate’s unverified tip.

As you know, I am absolutely appalled that a school district would conduct

  • a strip search
  • on a child
  • based on another student’s claim that the child gave them
  • ibuprofen.

By the way, according to the transcript, said strip search was performed before they searched her locker or her desk. The child’s parents were not notified before the strip search was performed. She was not allowed any civil protections at all.

This is absolutely outrageous.

To add to my wrath (and words fail me over just how angry this makes me), you can find this exchange between Justice Scalia and Matthew Wright in the transcript:

JUSTICE SCALIA: Could I come back to your distinguishing a strip search from a cavity search. What would you require before you would allow a cavity search?
MR. WRIGHT: Nothing at all. A bright line rule. I would not allow it.
JUSTICE SCALIA: No cavity search in school, no matter what?
MR. WRIGHT: We’re not even clinically trained to do that, Your Honor. I would submit that if a child has something stuffed up one of their cavities — and I assume we mean private parts, the very private parts — that the first thing to do would be to send them to the hospital. I mean, we just don’t have that clinical training.

In plain English, the school district would not allow a cavity search on a minor because they “just don’t have that clinical training.” And later, that it would be up to the “local level” to decide on strip searches.

I can only surmise one thing from this forthcoming “immolation of privacy and human dignity in symbolic opposition to drug use”: you can’t have a conscience and be a SCOTUS justice.

God forgive us all. What a disgrace.

Prior post here.

Betsy has more.

The outrageous case of the ibuprofen strip search

Tuesday, April 21st, 2009

I was on CNN Live‘s Blogger Bunch at noon, with Gina Cooper, Aaron Karo and Vanessa Van Patten, and hosts Reggie Aqui and Naamua Delaney discussed the case of the teen strip-searched for ibuprofen.

This is an outrageous case for many reasons:
First of all, that any kind of search on the person of a minor was done without the parents being a. informed b. present, and c. accompanied by a lawyer.
I specify on the person since schools can and do search school lockers and backpacks. There are schools where security necessitates that lockers and backpacks be searched, and as Delaney and Aqui pointed out, a SCOTUS decision said it was not unconstitutional to search backpacks.

However, any kind of body search, including pat-downs, is a much different thing. The Safford Middle School did an actual strip search, a traumatic incident even to an adult.

The parents have every reason to sue.

Equally outrageous is the fact that the school district has pressed this court case all the way up to the Supreme Court.
The entire school board and all the administrators and employees involved should have been fired. It boggles the mind to realize that the school district has persisted in incurring the kind of expense involved in pursuing this case, even after a federal appeals court deemed the search “excessively intrusive.”

The Bill Of Rights, in the Fourth Amendment specifies (emphasis added),

Amendment 4 – Search and Seizure. Ratified 12/15/1791.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The CNN article reports,

In its appeal to the high court, the school district said requiring a legal standard of “probable cause” to conduct student searches would cast a “roadblock to the kind of swift and effective response that is too often needed to protect the very safety of students, particularly from the threats posed by drugs and weapons.”

So let me ask you something:
Now that the punk Somali pirate has arrived in Manhattan and is awaiting trial, where he will be granted every protection under our Constitution, does that mean he is afforded more rights than our own school children?

As I said in the show, anyone who is a parent or who cares about our children should be outraged.