Court to hear “partial-birth” abortion case
The Supreme Court on Tuesday agreed to rule on the constitutionality of the federal ban on so-called “partial-birth” abortions — the first-ever law passed by Congress to outlaw a method for terminating pregnancy. Three federal appeals courts have ruled that the 2003 law is unconstitutional, mainly because it lacks an exception to the ban when an abortion procedure outlawed is necessary to protect the woman’s health. Congress said there was never a need for the banned procedure for health reasons. The case is Gonzales v . Carhart (05-380).
This case and three others granted on Tuesday will be heard in the new Term starting in October. The Court did not order reargument in any other cases heard before Justice Samuel A. Alito, Jr., took his seat.
On a busy morning after returning from a four-week recess, the Court decided two cases that had been argued and decided three cases summarily, while granting review in the four new cases. After issuing orders and opinions, it began hearing two key cases on the scope of the Clean Water Act — the first hearings in which new Justice Alito took part.
In one of the other newly granted cases, the Court will return to the issue of judges’ power to impose stiffer sentences based on facts not found by a jury or admitted by the accused. The issue is whether California’s determinate sentencing law is invalid because the judge may impose an enhanced sentence based on fact findings by the bench, not the jury. The case is Cunningham v. California (05-6551). (See below for the other new grants.)
The Court postponed until a hearing on March 28 whether to dismiss a constitutional challenge to the war crimes “military commissions” set up at the Navy prison camp at Guantanamo Bay, Cuba. Chief Justice John G. Roberts, Jr., took no part in the order, thus indicating he will continue his recusal from the case. The Bush Administration contends that the newly enacted Detainee Treatment Act requires the dismissal of all pending challenges by Guantanamo detainees. (Hamdan v. Rumsfeld, 05-184).
In another war on terrorism case, the Court took no action Tuesday on the appeal by Jose Padilla, a U.S. citizen challenging his capture and long-term detention as an “enemy combatant” (Padilla v. Hanft, 05-533).
In one of two decisions Tuesday in argued cases, the Court ruled unanimously that the government may not ban a religious sect from using a herbal tea that contains a substance that the government considers to be harmful. The Chief Justice wrote the opinion in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (04-1084).. Only new Justice Alito did not take part.
In the second decision in an argued case, the Court ruled by a 7-1 vote that a challenge to the validity of a contract that contains an arbitration clause must go to the arbitrator, when the entire contract is at issue. Justice Antonin Scalia wrote for the Court; Justice Clarence Thomas dissented. Alito took no part.(Buckeye Check Casshing v. Cardegna, 04-1264).
In a ruling by the Court, without briefing or oral argument, the Justices revived a lawsuit by Colorado Republicans seeking to undo a state Supreme Court decision barring any additional congressional redistricting during the current decade. In an unsigned opinion, the Court by a vote of 8-1 ruled that a three-judge U.S. District Court was wrong in concluding that it had no jurisdiction to hear that challenge. The ruling — the first final ruling by the Court in which Justice Alito did take part — came in the case of Lance v. Dennis (05-555).
The Court also issued a second summary decision, ordering the Ninth Circuit Court to reconsider a case testing whether the Iran Defense Ministry can be ordered by a U.S. court to give up property in the U.S. to satisfy a debt owed an American by the foreign nation. (Ministry of Defense v. Elahi, 04-1095).
In the third summary decision, the Court issued a potentially significant ruling on the scope of protection against race discrimination in the workplace under Title VII. The Court told the Eleventh Circuit to reconsider a ruling that virtually barred evidence that a minority person who did not get hired was better qualified than a white person who was hired — evidence that is offered to show that there was no non-discriminatory reason to justify the actual hiring. The Eleventh Circuit said such evidence would be admitted only if it jumped off the page and slapped the court in the face — a rigid standard that the Supreme Court said was not required. The Justices also told the lower court to reconsider its ruling that the use by a supervisor of the word “boy” is not discriminatory, when used toward a black employee without any qualifying words. That word alone is not always benign, the Court said in ordering a new review of that question by the Eleventh Circuit. The case was Ash v.Tysons Foods (05-379).
Other significant matters on the Orders List follow.
In the two other newly granted cases, the Court agreed Tuesday to decide these issues:
– must the holder of a patent license breach that agreement before suing to challenge the patent’s validity (Medimmune v . Genentech, 05-608).
– does the Communications Act permit a private lawsuit by a provider of payphone services challenging a long-distance carrier over compensation for coinless calls (granted limited to Question 1 in Global Crossing Telecom. v. Metrophones Telecom., 05-705).
Among a lengthy list of cases that were denied review on Tuesday, these were some of the most significant:
– The Court refused to allow the state of Arkansas to sue the state of Oklahoma directly in the Supreme Court to challenge Oklahoma’s attempts to restrict the use of chicken waste as fertilizer on farm fields in the two states. Oklahoma is seeking to reduce pollution in the Illinois River. (Arkansas v. Oklahoma, 133 Original.).
– The Court declined to hear a case testing the free-expression rights of students who edit and write for a newspaper published at a state college or university. The key issue was whether college students have more protection against censorship than do students working on a high school newspaper. (Hosty v. Carter, 05-377).
– It left intact a Sixth Circuit ruling that Congress did not have the power to permit lawsuits against states that refused to allow employees to take medeical leave to care for their own health. The case was a sequel to the Court’s Hibbs decision in 2003 upholding Congress’ power to allow lawsuits against states by employees denied leave to care for a sick family member, not for themselves. The new case under the Family and Medical Leave Act was Touvell v. Ohio, 05-752).
– The Court turned aside without comment an appeal by three tobacco companies seeking to revive their challenge to a California tax levied on cigarette sales, with some of the revenue used to pay for advertising that demonizes the tobacco industry. (R.J.Reynolds Tobacco, et al., v. Shewry, et al., 05-867).
do you mean “Tuesday”? (instead of Monday)
Comment by Subzero91 — February 21, 2006 @ 10:13 am
Is the order list for the Fri. Feb 17th conference out yet, and if so can you post the link?
I am a bit puzzled as to why I have overnighted other pleadings to the Supreme Court by express mail that have been filed the same day received and signed for by their mail processing facility, but in the instance of my Fri. conference case, Docket No. 05-7771, when I express mail overnighted a Supplement to my Petition raising the NSA surveillance issues (Americans With Disabilities Act retaliation by a surveillance Vessel, and subsequent Executive Branch interference to prevent review, including a direct NSA attack that crashed my speech recognition disability device necessary to prepare my pleadings on the eve of filing this Petition), the Supplement to the Petition was received (signed for) two days prior to the conference, but after I alerted a Clerk the Supplement had been received but was not filed, the importance of the issues raised, and inquiring why the Supplement was not filed, my case was sent to conference absent the Supplement.
The Supplement to the Petition still has not been filed now days later — and I am very concerned with fear the Executive Branch’s NSA surveillance reach might extend into the inner sanctum of the Supreme Court (and I truly hope I am wrong), preventing the Justices from knowing issues of National importance that are being raised timely by parties before the Court.
Previously, I was concerned about the
Executive’s control over the Supreme Court’s web site access for the disabled through the GPO (unclassified material indicate the Executive utilizes speech recognition technology in miltary application in the war on terror, and it appears Executive controlled federal web sites are excluding this technology as utilized by the disabled from accessibility to all federal web sites).
I am now wondering if the Executive is regarding speech recognition as a “fundamental incident of war” to justify depriving the disabled who use it as a reasonable accomodation of the same and whether the President’s NSA program is so powerful and the stakes so high to motivate the Executive to prevent review by the Supreme Court at all costs including even to the extent a disabled person who is a victim of this illegal program cannot get pleadings before the Justices to humbly request a remedy?
It is inexplicable.
Comment by Mary — February 21, 2006 @ 11:06 am
I also was wondering why it now takes so long to get orders lists and opinions electronically. It’s 11:21 a.m., and today’s orders list and opinions are still not on the Court’s website, nor are they on SCOTUSBLOG or on Cornell’s LII website. Has something changed in recent months delaying the electronic availability of opinions and orders?
Comment by David Moran — February 21, 2006 @ 11:22 am
Did the US government decline to defend the application of the FMLA in the Touvell case? It is quite unusual for the Court not to grant cert in a case in which a court of appeals has held a federal statute unconstitutional, as the Sixth Circuit did in Touvell.
Comment by Paul Wolfson — February 21, 2006 @ 12:31 pm
I am pretty sure that the Government has not been defending the personal leave provision of the FMLA, either before or after Hibbs.
Comment by Kevin Russell — February 21, 2006 @ 1:34 pm
Now I am extremely perplexed.
After I posted the above-comment, after the Orders list came out, my Supplement to the Petition shows up on the Supreme Court’s web site as filed Feb. 15, 2006 and distributed. However, as of 10 am this morning, before the Orders list was released, the Supplement to the Petition was not on the docket as filed or distributed, and on Thurs. Feb. 16, 2006 at appx. ten minutes of 4:00 pm, when I called the Supplements Clerk at the Court, he had not yet even seen my Supplement, meaning if he had not yet received it from the Court’s mail facility by late the evening before the Feb. 17, 2006 conference, how could it possibly have been distributed, read, researched, and presented to justices by the 10:00 am next morning conference?
I am not only perplexed, but also have autism and a severe communication disability, and it cannot escape my wondering how possibly under the above time frame any meaningful effective communication could have occurred about the merits of my Supplement? Despite the support and encouragement of my many law professors that the law is a worthy profession I am qualified to be a part of, I am quite saddened to realize that people with severe communication disabilities are so devalued that it is quite alright for an autistic to have not once been able to get a real “day in court” in any court anywhere in more than 16 years since graduation from law school. That surely sends the message there will never be a remedy. It also sends a clear message that if the Supreme Court is unwilling to accommodate a disabled person, then no other lower court anywhere need do so either.
I think these circumstances are very discouraging for any American who cares about maintaining the Democracy we have had for more than 200 years, and it is my opinion Americans should just give up on the NSA surveillance and President’s claim to be able to kill even dissenting Americans he does not like who simply assert their civil rights and liberties within the United States on United States soil, because it is hopeless that there is ANY remedy whatsoever.
I just wish someone had performed an abortion on me when I was but a few embryonic cells and before I had any consciousness or any ability to feel pain, rather that create a Government where there were no abortions (1956), requiring all disabled people to be born no matter how severely disabled, then cull us out by systematic barriers to our inclusion in American society, tortured by lack of medical care, no housing, no food, and no remedy against others who prey on us. I know I am not the only person with a disability who feels this way.
The difference is, the Canadian Supreme Court gave the autistic Michelle Dawson review, and our Supreme Court shows no such interest. How do we as a society know that autistics do not hold the super-intelligence genes in DNA our society should want to preserve? (E.g., Albert Einstein, Amadeus Mozart, thomas Jefferson, etc.)
If autistics are the equivalent of cattle in America, not human beings with fundamental Constitutional rights, and our Government plans to relegate all such autistics to a life not worth living, an existence under the less than third world conditions now being imposed every day on this Nation’s adult autistic population, then I wish someone had informed me my place in society before I came to have hopes and dreams of being independent, having a driver’s license, or pursuing my dreams of becoming an lawyer. The greatest cruelty of all is to encourage such dreams, when they will never be allowed by our Government to become achievable.
And THAT’s something the Supreme Court should think about before it decides to ban abortions. No hopes, no dreams, no ability to survive, with a severe disability = no way, even with extremly hard work and effort, to achieve a life anyone would want to live.
But then again, maybe the eradication of autistics like me is part of the President’s expansive plan to surveil, identify, track, and euthanize those of us (wrongly) thought to be worthless (a resurrection of the Holocaust Prescott Bush was unable to complete, like the capture of Saddaam the President’s father was unable to complete).
I, like so many of my disabled bretheran, brought suit for my freedom, and the Supreme Court, the arbitor of last resort, does not seem to care. Every 1 in 166 people born in the United States are autistics, and the lifetime costs of warehousing us is appx. $3 M — and the fate of autistics is not an important national issue central to the economy and financial ability of this Nation to fund it war on terrorism?
This is the saddest day in America since Dred Scot and Virgil Hawkins (denied bar admission ‘until he turns white’ (psychatric disability of drapetomania caused by blackness made up by white men) or ‘the KKK rides out of Gainsville).
Comment by Mary — February 21, 2006 @ 1:51 pm
Mary,
You repeat the assertion you made last fall, that Jefferson was autistic. Could you now respond to my question, posed at the time, as to whether there is any significant evidence that Jefferson was austistic?
Comment by Simon — February 21, 2006 @ 2:07 pm
Since Mary describes her case in such hyperbolic terms – worse than Dred Scott, no less! – I thought it’d be interesting to know what the case is. I’m confused, though. The court’s docket for her case (here) says that the case under appeal was decided by CA11 on June 2, 2005. But the 11th Circuit’s website says otherwise: the only case decided that date was U.S. v. Camacho-Ibarquen. So now I’m thoroughly confused!
So I went looking further (remember, this is important stuff: “[t]his is the saddest day in America since Dred Scot and Virgil Hawkins [was] denied bar admission ‘until he turns white’“). The closest I could find was a state court ruling, Petrano v. State, decided August ‘04. But I know that can’t be the case at issue, because that’s a case wherein Mary’s concern is that the State no longer considers her qualified for a drivers license, and I feel sure that nobody would go so far as to say that the Supreme Court’s disposition vis-a-vis the rescinding of their drivers license “is the saddest day in America since Dred Scot and Virgil Hawkins (denied bar admission ‘until he turns white’ (psychatric disability of drapetomania caused by blackness made up by white men) or ‘the KKK rides out of Gainsville.”
Mary, could you shed some light on this?
Comment by Simon — February 21, 2006 @ 3:04 pm
The 11th Circuit docket lists 12 cases filed by Mary against Florida and California bar officials over the past two years. The two most recent (05-10533 and 04-16623) were dismissed on 6/2/05 for failure to pay docketing and filing fees. Those two cases were the subject of the cert petition. In light of the identity of the defendants, the suits likely were appeals from denial of admission to the Florida and California bars.
Mary: federal courts virtually never are willing to second-guess the bar admissions decisions of state bar examiners, so seeking relief in the federal courts may not be the best approach. Most states have special procedures for handicapped individuals taking the bar exam, to accommodate their needs. I would encourage you to speak with Florida bar officials directly about possible accommodations.
Comment by Rick — February 21, 2006 @ 4:41 pm
Yo, Simon … do I have to do your research for you? Though disputed, Thomas Jefferson diagnosed by some to have had aspergers, a form of autism. See, http://en.wikipedia.org/wiki/People_speculated_to_have_been_autistic.
Simon and Rick, are you not Volokh bloggers? Did you not read the Volokh thread about President Bush’s change to the law that requires bloggers attackin other to post their full identity? Please inform me who you are.
Bullies, attacking an autistic during down time after several pleadings in lower Federal Courts. (Autistics fatigue and take down time, maybe you didn’t know? Or maybe you did and took advantage?).
“Mary: federal courts virtually never are willing to second-guess the bar admissions decisions of state bar examiners, so seeking relief in the federal courts may not be the best approach.” What federal statute are you talking about? 1983? Title II of the ADA is very different.
I guess you shot off your very wrong comments before you bothered to do any research whatsoever. See, Ellen S. v. Fla. Bd. of Bar Examiners, 859 F.Supp. 1489 (S.D.Fla. 1994); Tennessee v. Lane, 2004 U.S. LEXIS 3386 (2004) (ALL State Court services, or are you disputing bar examiners are not “arms” of the State Supreme Courts?
Even judicial candidates can sue on Federal Court. See, Doe v. Judicial Nominating Commission for the Fifteenth Judicial Circuit of Florida, 906 F.Supp. 1534 (S.D.Fla. 1995).
Maybe you forgot to read SCOTUS cases? Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. __ (2005). Allowing Federal suit so long as it is filed before the State Court decision becomes final.
Oh, and I almost forgot, “12 cases filed by Mary against Florida and California bar officials over the past two years…” See, for a contrary view, Wilson v. Pier I Imports (US), Inc., 2006 WL 213823 (E.D.Cal., Jan. 27, 2006:
From all that appears, the number of lawsuits plaintiff has filed does not reflect that he is a vexatious litigant; rather, it appears to reflect the failure of the defendants to comply with the law. Accordingly, the court cannot find that plaintiff has filed frivolous ADA lawsuits.
According to Samuel Baganestros, at the disability blog:
Based on the evidence presented, defendants have not shown that Hubbard is a vexatious litigant. Indeed, they have left the court with the distinct fear that the motion is frivolous.
This seems to me exactly right. If plaintiffs or their counsel have violated ethical rules, they should be punished in due course. But there’s nothing unethical about filing lots of suits when lots of people have violated your legal rights. And the sad fact is that noncompliance with the ADA is widespread. Judge Karlton is to be commended for not letting questions about the number of suits the plaintiff has filed get in the way of the real issue — whether the defendants are violating the law.
“The court’s docket for her case (here) says that the case under appeal was decided by CA11 on June 2, 2005.” “The two most recent (05-10533 and 04-16623) were dismissed on 6/2/05 for failure to pay docketing and filing fees.”
You got that right, but Tennessee v. Lane was decided in May 2004, and the IFP was denied because Judge Carnes failed refused to apply binding United States Supreme Court precedent in Tennessee v. Lane.
See, also A basic proposition in federal law is that an intervening decision of the Supreme Court subjects a prior decision of this Court to reconsideration. See Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir. 1997) (”We are bound to follow a prior panel or en banc holding, except where that holding has been overruled or undermined to the point of abrogation by a subsequent en banc or Supreme Court decision.”) (emphasis supplied); Davis v. Singletary, 119 F.3d 1471, 1482 (11th Cir. 1997) (”[t]o the extent of any inconsistency between our [prior opinions'] pronouncements and the Supreme Court’s supervening ones, of course, we are required to heed those of the Supreme Court.”); United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.1993) (recognizing same); Lufkin v. McCallum, 956 F.2d 1104, 1107 (11th Cir. 1992) (recognizing same).
Why did Judge Carnes refuse to apply Lane? Maybe because he held a General Dynamics financial interest, and General Dynamics invests heavily in NSA surveillance programs? And because at the core of why I was prevented from litigating my ADA suits was the following:
The brouhaha about the Dubai ports sale …
Tell what you have to say about why the SCOTUS staff were wrong not to effectively communicate my cert petition to the Justices to the citizens of Tampa, in the area of the Central Command at McDill, and a MAJOR ports city now approving a contract for the Dubai ports management here — where Federal District Court Judge James D. Whittemore and the Bush Administration FBI have allowed an admitted confessed perjurer who masqueraded as an Ocean Unlimited Master licensed in four different Countries who claimed to be a “Cruise Ship Captain” authorized to operate “any vessel on any seas” to pose a signficant threat to the National Security of America’s ports and waterways.
This perjurer (named Theron Hutto) never possessed any such licenses and to this day is allowed to walk free of a criminal conviction for his perjury masquerade to enable his unfettered access to our ports.
This perjurer could readily have taken his Court papers to a foreign terrorist organization and, with Federal Court and FBI approval of his perjury, used them absent US Coast Guard licensing to aid an enemy organization to bring in nuclear materials by passing off the licenses he did not have (i.e, that are falsely stated in Court papers) to pass thru all security measures. He also claimed to have ties to the Middle East.
See, The Vessel Mistress, M.D. Fla. 05-cv-2534 on PACER.
And Americans should not be extremey concerned?
And when the perjury threatening America’s ports and waterways was revealed, Judge Whittemore stated the perjury was of no consequence.
When will it be of consequence? After a terrorist attack on Tampa by masqueraders allowed to slip through Federal Government oversight with false maritime credentials?
THAT is what was at stake in the ADA retaliation post-petition in my two cases in SCOTUS, Docket Nos. 05-7287 & 05-7771. Of course, a Petition for Rehearing will be filed in the latter.e
I cannot imagine SCOTUS allowing the Bush Administration to NSA surveil U.S. citizens within the U.S., allow the Administration’s Tampa FBI not to prosecute a maritime licensing perjurer who poses a threat to America’s ports and waterways, who … incredibly, partiicpated in retaliation on navigable waters to obstruct a disabled person’s civil rights case.
There is a LOT more involved in my cases that your false accusation “State no longer considers her qualified for a drivers license,” which you posit without mentioning I had not even one parking ticket on my completely clean and safe driver’s license before the ticket, that I was not reasonably accommodated in Court, that I did not get to cross-examine, that I was not informed of the charges against me, that I was convicted on something that was not even an offense under Florida law (Fla. R. Traf. Ct. 6.310), and that a Circuit Judge irrationally misconceived my speech recognition device as a bling man’s screen reader.
Your accusation making amazing assumtions Florida’s qualification standard is A-okay is only the starting point — See, e.g., Lundstedt v. City of Miami, 1995 U.S. Dist LEXIS 21884, at *44 (S.D. Fla. 1995) (holding that defendants’ blanket reliance on National Fire Protection Association standards cannot avoid legal liability under the ADA to provide an individualized assessment). The United States Supreme Court as well as the Eleventh Circuit have declared that the rights sought to be protected here are “fundamental rights subject to the most searching judicial scrutiny.” Lane, 541 U.S. 509 (2004); Ass’n for Disabled Americans, Case No. 02-10360 (11th Cir. 2005). No Court has ever reached this second part of the analysis.
Moreover, SCOTUS said my California bar admission is not final, and absent review I will never be able to gain reasonable accommodations access to file a petition for writ of mandamus in the Supreme Court of California directing the lowers entities to hear the appeal I asked for iin 1998 and enter a final decision. you also left out the part of former Calif. Gov. Pete Wilson’s vetoe of the Calif. State Bar fee bill that shut down the Calif. State Bar and caused the loss of my bar admission case. There was an e-article in the ABA J. about this in 2003.
Finally, I guess you, Rick, paractice law the way you blog — make your conclusions about people’s denial of bar amdission without evenn checking out if they were exclusded from access to apply. “I would encourage you to speak with Florida bar officials directly about possible accommodations.”
I did; they refused to provide the same accommodations California provided me to pass the Calif. Bar Examination, demonstrating I qualify to be an attorney. Florida just doesn’t accommodate speech recognition. Period. So no autistic who uses such accommodations can ever surmount the barriers in Florida to become an attorney, even when qualified.
I stand by what I said. SCOTUS erred and should reconsider. And you both owe me an apology for your statements of prejudice.
I am the only disabled AMerican in the entire Country who does not recive the protections the Supreme Court ordered in TEnnessee v. Lane and Goodman v. Georgia — no different than Virgil Hawkins did not receive the protections of Brown v. Board of Education for decades.
Comment by Mary — February 24, 2006 @ 2:17 pm
“bling man’s screen reader”=Blind man’s screen reader
And here’s another point: there is no difference in the case of an autistic person whose writing is practically unreadable absent the accommodating speech recognition than the maintenance of illiteracy was to oppress African Americans.
Shame on you two.
You have made my point about why the Supreme Court should grant review and put it to rest for once and all that mindsets like yours are at the heart of the discrimination Lane and Goodman were intended to eliminate.
Virgil Hawkins case had to go there twice before Florida got the message.
Comment by Mary — February 24, 2006 @ 2:26 pm