SCOTUS Bruises First Amendment in "Terrorist Aid" Case

On Monday, I was scheduled for admission to the bar of the U.S. Supreme Court; a very formal proceeding.  So first thing Monday morning, I made my way past the security checkpoints of the storied courthouse on the far-side of the Hill, and into Room G-32 (they have an entire suite of offices devoted to bar admissions).

There were only four attorneys slated for individual admission on the Court's docket that day; the last day of the 2009-2010 term.  Good news for us admittees; the Court was issuing 4 opinions so the entire bench would be present for the admission ceremony.

In another piece of extraordinary luck, we were seated in the front row of the courtroom for the day's proceedings.  I actually had a better seat than Nina Totenberg from NPR and Bill Mears of CNN; both were present to hear the opinions read from the bench.

The high-point from that session was Chief Justice John Roberts reading the 6-3 majority opinion in the case of Humanitarian Law Project v Holder; followed by Justice Stephen Breyer reading his dissent (joined by Justices Ginsberg and Sotomayor).  Dissents rarely are read from the bench in the High Court's chamber; this one signaled a strong warning from the Court's liberal wing that the government had gone too far by criminalizing free speech in the name of national security.

This case (actually two cases) involved application of a 1996 federal law banning "material support" to known foreign terrorist organizations black-listed by the Secretary of State.  The terrorist groups in these cases were not Al Qaeda or the Taliban but rather, dissident groups from Turkey and Sri Lanka.

The actions sought to be criminalized in the Holder cases would ordinarily receive First Amendment protection as a form of "pure political speech".  For example, teaching members of the foreign groups how to petition bodies like the United Nations, or hiring an attorney to resolve disputes in a US courthouse.

The federal government has utilized the "material support" law as an effective courtroom weapon in our protracted war on terror.  Justice Roberts emphasized, however, that the Court's holding was narrow and did not criminalize pure speech; just conduct in aid of known terrorist groups.

Prior to Humanitarian Law Project, the Court's terrorist cases were limited to constitutional issues surrounding detainees.  This case, the only "terrorist" case to be decided this term, moved the terrorist jurisprudence outside the detention centers and into our streets; into the heart of our right to free speech.  In so doing, the High Court's decision in this case affects each and every one of us as free thinking individuals.

When the cases were argued before the Court back in February, it was Solicitor General Elena Kagan, subsequently nominated by President Obama to occupy a seat on that very Court, who vigorously defended the law and its effectiveness in combating terror here in the homeland.  She prevailed in the forum where, presumably in October, she will become a mainstay.

The Holder decision evidences the Court's traditional and continuing deference to the political branches (Congress and the Executive) in matters of national security.  In the 21st Century, perhaps like no other time in our history, national security matters are everywhere; even in our own backyards.

After the Holder opinions were read, the Chief Justice turned to the administrative motions of the day, calling my long-time college friend and fellow-attorney, Barak Romanek, to the podium to move for my admission.  Thankfully, his motion was granted and I was duly admitted to the bar of the SCOTUS with a friendly nod from the Chief Justice.

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Posted in: criminal law,First Amendment,free speech,Helena Kagan,Humanitarian Law Project,Justice Breyer,Justice John Roberts,SCOTUS,terrorist

Women To Constitute A Third of the SCOTUS Bench

For the first time in our nation's history, three women will be sitting together on the bench of the United States Supreme Court.  By the time you read this post, President Obama will have conducted his 7:15 am press conference on Monday, May 10, to officially announce that his Solicitor General, Elena Kagan, will be nominated to replace retiring Justice John Paul Stevens.

The nomination requires approval of the Senate, expected later this summer.

Ms. Kagan is used to being first when it comes to the law.  She was the first female dean of the Harvard Law School, where she graduated magna cum laude back in 1986.  During her tenure, however, Kagan sued to prohibit the U.S. Army from recruiting students from the law school to fill the Judge Advocate General Corps.

She also served as an Associate White House Counsel under President Clinton.  She was the first woman to serve in the post of Solicitor General of the United States; the federal government's litigator. In that capacity, she managed the government's SCOTUS docket.

Her judicial experience, however, is limited to a clerkship at the Court of Appeals for the D.C. Circuit, followed by a clerkship with Justice Thurgood Marshall.  Most of her legal career has been spent in private practice and academia.

Kagan was a tenured law professor at the University of Chicago in the mid-1990s and undoubtedly wound-up among President Obama's professional contacts from that era.

Since she has never been a judge, Dean Kagan does not have a long list of decisions for the Senate's Judiciary Committee to pour over.  All the more reason Senate Democrats will be pushing to approve her nomination prior to the summer recess. 

In an era where women now make up a majority of all college graduates and law students, it only seems natural that they should occupy a third of the seats on our nation's high court.  Never much of a "good old boys" club, the Court has always been a vital mix of contemporary politics and long-term principles.

This Blog wonders how Kagan will be voting on the issue of same-sex marriage, likely to come up during her first year on the bench.  Until now, she has, by virtue of her brief tenure as Solicitor General, defended the constitutionality of California's referendum outlawing gay marriage in the Perry v Schwarzenneger case.

She really had no choice but to join that momentous fight on the side of upholding the California ban on gay marriage.  California's Attorney General, Jerry Brown, declined to defend the law, saying it was unconstitutional.  Governor Schwarzenneger likewise declined to wade directly into the legal fray, saying he approved of the litigation as it raised important constitutional legal issues that called for judicial resolution at the national level.

Update:  The official blog of the State Bar of Michigan has posted links to all the numerous blogs covering this nomination.

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Posted in: Helena Kagan,Judge Advocate General,Justice John Paul Stevens,President Clinton,President Obama,SCOTUS,Thurgood Marshall,U. S. Supreme Court