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The Supreme Court Term In Review, Part II: Criminal Justice

By Ian Millhiser on Jul 1, 2009 at 8:30 pm

arrest(The following is the second in a multi-part series on the Supreme Court’s recently-concluded 2008-2009 Term)

This Term featured a handful of contentious criminal cases which showcased both the justices’ unwillingness to recognize the challenges presented by new technologies, and their complete willingness to disregard longstanding precedents.  Moveover, taken together, these cases may foreshadow a sweeping assault on the rights of the accused.

  • Turning Their Backs On The Twenty-First Century

As the Wonk Room recently reported, the Court’s 5-4 decision in District Attorney v. Osborne held that a potentially innocent man has no right to access DNA evidence that could exonerate him of a 1993 rape and kidnapping, even though he offered to pay for DNA testing himself–so it will cost the state literally nothing to let him do so.  According to Chief Justice Roberts’ opinion, the government can’t even be required to take cost-free measures to ensure that innocent people go free.

In Herring v. United States, another 5-to-4 decision, Roberts similarly disregarded the risks presented by poorly-maintained databases tracking arrest warrants and similar information. Since its 1961 decision in Mapp v. Ohio, the Court has understood that the Constitution’s safeguards against illegal searches and seizures mean nothing unless police suffer a consequence for their unlawful actions. Recognizing that virtually no jury would sanction a cop who unconstitutionally uncovers evidence of a crime, the Court endorsed the “exclusionary rule,” which requires illegally obtained evidence to be excluded from criminal trials. Herring, however, creates a new exception to this rule; when a police database falsely indicates that a person is the subject of an arrest warrant, the exclusionary rule does not apply to any evidence gained from an unconstitutional arrest of that person.

As Justice Ginsburg explains in dissent, failure to accurately maintain such databases could lead to countless innocent Americans being falsely arrested or detained. “Police today can access databases that include not only the updated National Crime Information Center (NCIC), but also terrorist watchlists, the Federal Government’s employee eligibility system, and various commercial databases.” In one of the most absurd recent examples of what can happen when those databases are poorly maintained, Senator Edward Kennedy (D-MA) was once detained in an airport because his name appeared on an anti-terrorist “no-fly” list.

  • Disregard for Precedent

The Court’s dismissive attitude towards the exclusionary rule is particularly disturbing in light of two decisions overruling precedents governing the rights of the accused. An unusually pro-defendant decision in Arizona v. Gant significantly rolled back a 28 year-old decision which held that police may always search the passenger component of a vehicle when they constitutionally arrest the vehicle’s occupant. And in Montejo v. Louisiana, the Court expressly overruled a 23 year-old precedent holding that police cannot initiate interrogation of a defendant after the defendant requests counsel at arraignment.

Viewed in light of the Court’s apparent willingness to abandon precedent, the new limitation on the exclusionary rule in Herring may portend significant future incursions on that rule. During Justice Samuel Alito’s first term on the Supreme Court, he cast the key fifth vote in favor of an opinion which ominously claimed that the exclusionary rule “has always been our last resort, not our first impulse.”  Herring is now the second case in four years to place substantial new limits on the exclusionary rule. Although it remains to be seen whether this pattern is merely a coincidence, these two cases could be the beginning of a much larger assault on the exclusionary rule. If they are, the most potent means of ensuring that police comply with the Constitution could cease to exist.

Climate Progress

The Supreme Court Term In Review, Part I: The Environment

By Ian Millhiser on Jul 1, 2009 at 11:00 am

water-pollution(The following is the first in a multi-part series on the Supreme Court’s recently-concluded 2008-2009 Term)

No one fared worse before the Supreme Court this Term than the Earth.  The justices heard five environmental cases, and they sided against defenders of the environment in every single one.  Among these cases, the Court upheld a Bush-era regulation that placed costs to power plants above destruction of aquatic life; it absolved from liability a chemical company that allowed pesticides to spill into the environment for years; it erected new obstacles to environmental organizations challenging federal environmental policy; and it upheld a mining company’s plans to dump literally millions of tons of mining waste into a pristine lake.

Two of these cases in particular highlight the Court’s disregard for laws intended to protect the environment:

  • A New Loophole For Polluters (Coeur Alaska v. Southeast Alaska Conservation Council)

Using a technique known as “froth-floatation,” a mining company in Alaska plans to extract new gold from a mine that has been closed for decades, but this technique would produce approximately 4.5 million tons of “slurry,” thick waste-product laced with toxic elements such as lead and mercury. Even worse, the mining company’s intends to dispose of this waste by dumping it into a nearby lake, a plan which would eventually kill all the lake’s fish and nearly all of its other aquatic life, decrease the depth of the lake by fifty feet, and flood the surrounding 40 acres of land with contaminated water.

Although federal law forbids “[t]he use of any river, lake, stream or ocean as a waste treatment system,” the Supreme Court created a massive new exception to this law. Under Justice Kennedy’s decision in Coeur Alaska, pollutants are exempt from this law so long as they have “the effect of . . . changing the bottom elevation of water.” In other words, polluters now have a free hand to dump whatever they want into pristine waters, so long as their waste products are solid and significant enough to reduce the depth of the lake, river or stream. As Justice Ginsburg wrote in dissent, such a reading of federal law “strains credulity” because it allows “[w]hole categories of regulated industries” to “gain immunity from a variety of pollution-control standards.”

  • Placing Profits Before The Law (Entergy v. Riverkeeper)

Power plants’ cooling systems collectively remove more than 214 billion gallons of water from the nation’s waterways every day, in the process killing over 3.4 billion aquatic organisms per year. The Clean Water Act requires that EPA regulate these cooling systems based on “the best technology available for minimizing adverse environmental impact.” During the Bush administration, however, EPA ignored this direction and instead employed a skewed cost-benefit analysis in deciding how to regulate. As a result, power plants were allowed to forgo the advanced technology required by the plain language of the law in favor of cheaper but far less protective measures.

Ignoring the law’s plain language, Justice Scalia’s decision in Riverkeeper upheld the Bush administration’s action.  As Justice Stevens explained in dissent, Congress determined that the costs of requiring power plants to pay for environmentally friendly technology “are outweighed by the benefits of minimizing adverse environmental impact” when it enacted the Clean Water Act, but the Court substituted the Bush Administration’s judgment for that of the law.

Notably, Riverkeeper reversed a Second Circuit decision by Judge Sonia Sotomayor, a hopeful sign that President Obama’s nominee for the high Court does not share her future colleagues’ willingness to rewrite environmental legislation to benefit big industry.

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