The Progressive States Network sends out weekly reports on issues in state legislatures and state politics. They come from a, well, a progressive angle. Below is there report on Supreme Court decisions this last term. You can see the full report on their site.

Supreme Court and the States: Business Wins, Voting Rights Lose, and a Mixed Bag on Criminal Justice

As the Supreme Court marches to the Right, corporate interests continue to thrive at the expense of state regulatory powers. “This has been a very successful year for the business community,” said Miguel Estrada, a Washington appellate lawyer who represents many key corporate interests before courts in Washington, D.C." This session at the U.S. Supreme Court, as this Dispatch will highlight, had an almost uniform tilt towards business versus state regulatory authority. In other areas like election law, the tilt was against poor voters who faced restrictions on their right to vote, though the term was a more mixed bag on criminal justice and other issues before the Court.

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Business Interests Win Big Against State Regulation

In almost every Supreme Court decision decided this term, state regulation lost out against business claims of federal preemption of state powers.
Consumers Lose in Medical Device Liability Case: As we highlighted in February, Riegel v. Medtronic is potentially one of the most dangerous decisions undercutting state consumer protection laws in decades. Essentially, the court declared that once the Federal Food and Drug Administration (FDA) approves a medical device, however careless or politicized the decision, the companies are then immune to lawsuits under state consumer protection laws authorized by the 1976 Medical Device Amendments. What made this decision especially appalling is that sponsors of that federal law, such as Sen. Edward Kennedy, point out that no such preemption of state law was ever intended, so the Supreme Court created this attack on state powers completely on its own authority. Legislation to reverse this decision has already been introduced into Congress.

Making the decision especially dangerous is its likely expansion to consumer suits over defective prescription drugs. A decision on that exact issue, Warner-Lambert v. Kent, deadlocked 4-4 only because Chief Justice Roberts recused himself because of substantial stock holdings in the drug company involved in the suit. There is the likelihood, though, of Roberts be a deciding vote next term in a similar case about state consumer laws.

Court Compels States to Fund Union Busting by Government Contractors: In one of the most anti-labor decisions in decades, and one of the most bizarre ones, the Supreme Court in Chamber of Commerce v. Brown struck down a California law that prevented government contractors from diverting money meant for health care or other public services to paying union-busting lawyers. Many federal laws, including Head Start and the Workforce Investment Act, prohibit use of federal money for anti-union activities, so it is especially odd that states are helpless to stop public money from being misused for anti-union purposes when the federal government reserves the right to prevent such misuse of its own funds. Despite claims that federal labor law preempts the California law, as Justice Breyer wrote in dissent, legislatures have "broad authority to decide how to spend the People's money." If Californians do not want their tax money used to block unionization, "why should they be conscripted into paying?"
Beyond these two blockbuster decisions, corporate interests won in a series of other cases:

• States Can't Stop Mail Order Cigarette Sales to Minors: In Rowe v. NH Motor Transport Association, the Court found that the Federal Aviation Administration Authorization Act of 1994 preempts a Maine statute requiring tobacco shippers to use delivery companies that verify the age of the customer.
• Arbitration Clauses Void Right to State Administrative Appeals: In its ongoing gutting of state labor laws, the Court declared in Preston v. Ferrer that a California state law requiring an administrative hearing in talent agency disputes was overridden by the Federal Arbitration Act if an arbitration clause had been signed.
• Corporations Win Tax Rulings Against States: In both CSX v. GA Board of Equalization and Meadwestvaco v. Illinois Department of Revenue, state methodologies for taxing the corporation plaintiffs were struck down as preempted by federal law or constitutional rules, in each case likely handing the plaintiff companies a large tax decrease.
  
• Punitive Damages Owed by Corporations Slashed: While focusing on federal maritime law in its details, numerous legal experts expect the Court's Exxon v. Baker decision - which slashed punitive damages owed to the Alaskan victims of Exxon's Valdez oil spill to no more than actual damages - will spill over into state courts, the primary venue for punitive damages against companies.
  

The one major corporate case involving state regulation that had even a mixed result was Morgan Stanley Capital Group, Inc. v. Public Utility District No. 1, which made a strongly pro-corporate legal argument that predatory utility contracts will generally be upheld no matter how unreasonable the rates for consumers, but that in the narrow case of unlawful manipulation of the power market, there might be cause for overturning the power contract.

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Election Law Decisions: Burdening Voting Rights, Upholding Voting Systems and Opposing Campaign Finance Fairness

If the Court was eager to override state laws for the benefit of corporate interests, it bent over backwards in deference to state law when the issue was Indiana's photo ID law gutting the rights of our nation's poorest voters in Crawford v. Marion City Election Board. As we detailed when the decision came down in May, the Court ignored clear evidence that a large majority of voters without ID who came to the polls would be prevented from having their votes counted-- and that the financial and time costs of obtaining a photo ID for many of them would be prohibitive, far more than poll taxes previously struck down as unconstitutional, as Justice Breyer noted in dissent.

Upholding Primary Systems: In two other decisions, the Court deferred to unusual state primary systems:

• In Washington State Grange v. Washington State Republican Party et al., the Court upheld Washington's new ballot system that allows candidates from all parties to compete in a single primary together, with the top two vote-getters going on to a runoff. The court ignored concerns that it violated the parties' associational rights that candidates could identify themselves with a party on the ballot and even advance to the runoff, despite the possibility of that candidate not being the choice of voting members of that party.
• In NY Board of Elections v. Lopez Torre, the Court approved New York state's system of nominating lower court judges at party conventions, rather than through direct elections.

Implications of Davis for State Public Financing Laws? While not directly effecting a state law, the majority in Davis v. Federal Election Commission, struck down the federal "Millionaire's Amendment" which allowed candidates facing self-funding candidates exceeding a certain level of spending to receiving larger campaign contributions to level the playing field. Given clear legal differences, state public financing laws in states like Arizona which increase state funding for candidates facing high-spending opponents should survive challenge, but the animosity by the Court majority to the goal of levelling the electoral playing field between those with and without wealth in our democracy is a general threat to such state campaign finance laws.

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A Mixed Term on Criminal Justice Issues

In terms of both justice and protection of state authority on criminal justice issues, the term was an extremely mixed bag.

• In Baze v. Rees, the Court upheld Kentucky's use of lethal injection for its death penalty.
• In Danforth v. Minnesota, the Court upheld Minnesota's decision to extend stronger retroactive relief for violations of Federal Constitutional rights than even federal courts might grant themselves, since "[f]ederal law sets certain minimal requirements that states must meet but may exceed in providing appropriate relief."
• In Kennedy v. Louisiana, the Court struck down Louisiana's law imposing the death penalty for the rape of a child as violating the Eighth Amendment.
• In Snyder v. Louisiana, the Court tightened scrutiny of state courts that allow government prosecutors to use preemptory strikes against black jurors in a discriminatory manner.
• In Indiana v. Edwards, the Court said that states may require defendants found competent enough to stand trial, but whose mental illnesses may prevent them from representing themselves, to be represented by counsel.
• In Medellin v. Texas, the Court ruled that the President does not have the authority to order a state to follow a World Court decision finding a state had violating an international treaty, in this case Texas denying an immigrant defendant access to his embassy council as required under a treaty signed by the United States. The court essentially made international law and U.S. treaties irrelevant for state governments unless Congress passes a separate law implementing them.
  

Implications of Heller for State Gun Laws: While the District of Columbia v. Heller decision creating a personal right to own a gun under the Second Amendment could have major implications for striking down state and local gun control laws, it is worth noting that the decision, written by Justice Scalia, stated that many existing gun law restrictions are still valid, including those limiting the kinds of weapons people may own, limiting ownership by felons and the mentally ill, limiting possession in schools and government buildings, and regulations on commercial sales. And it's not even clear, since this case was about a District of Columbia law and thus implicates only 2nd Amendment rights versus federal authority, that state gun laws will be restricted at all under the doctrine, a point Justice Scalia made in a footnote where he noted that a number of past Supreme Court cases had "reaffirmed that the Second Amendment applies only to the Federal Government."

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Other Miscellaneous Cases Upholding State Powers

A few other decisions had important implications for state authority:

• State leaders breathed a sigh of relief when the Court in Department of Revenue of KY v. Davis upheld the right of states to offer tax free gains under state law as an incentive for investments in municipal bond funding state and locally-authorized projects without running afoul of the federal Commerce Clause.
• In Kentucky Retirement System v. EEOC, the Court ruled that Kentucky’s pension system, which treats more generously some retired workers who became disabled before rather than after retirement agent, does not violate the Age Discrimination in Employment Act.

The Court's Hostility to Public Employee Rights: Engquist v. Oregon Department of Agriculture was a notable case in emphasizing the double standard of the Court in regards to public employees' constitutional rights. Having in past cases allowed property owners and others effected by state government actions to bring equal protection claims, under the doctrine of a "class-of-one," against arbitrary, vindictive, and malicious treatment, the Court in Engquist denied state employees the right to bring the same kind of constitutional claims when facing similar treatment. In dissent, Justice Stevens noted that this case was following the recent trend of the Court systematically excluding public employees from First Amendment and civil rights protections.

Yesterday I posted a letter from Rep. Phil Gingrey (R-11th District GA) on his outrage over the Supreme Court ruling in Boumediene v. Bush. Gingrey is a supporter of habeas corpus except when it applies to everyone. Below are two articles I pulled off of Portside. Good comments.

Supreme Court Deals Death Blow to Gitmo
By Jonathan Hafetz

June 12, 2008

Today's ruling by the Supreme Court in Boumediene v. Bush delivered a dramatic blow to the President's lawless detention policies and overturned an effort by the previous Congress to eliminate the centuries-old right of habeas corpus. The ruling means that prisoners at the US military base at Guantanamo Bay, who have been held for more than six years without charge, will finally have the opportunity to challenge the accusations against them in a court of law. More broadly, the ruling rejects the premise on which Guantánamo is based: that the President can create a lawless enclave simply by incarcerating people outside the mainland United States.

Boumediene marks the culmination of the quest for due process that began in 2002, when the first habeas corpus petitions were filed by Guantanamo detainees in federal court. In 2004, the Supreme Court ruled in Rasul v. Bush that the detainees had a right to habeas corpus under a statute that dated to the nation's founding. The Administration, however, then sought to block any of the cases from going forward, arguing that the detainees had no rights to enforce beyond filing a piece of paper called "habeas corpus" and that any rights they did have were satisfied by the summary military proceedings it had hastily put in place after the Supreme Court's decision.

Congress, in turn, twice tried to eliminate habeas rights for detainees. The Supreme Court rejected the first attempt in 2006, ruling in Hamdan v. Rumsfeld that the legislation did not apply to pending cases. So Congress tried again with the Military Commissions Act of 2006 (MCA), which made explicit that the elimination of habeas rights applied to all Guantanamo cases, past, present and future. The issue before the Supreme Court in Boumediene was whether the MCA violated the constitutional guarantee of habeas corpus, known as the "Suspension Clause."

The first question the Court addressed in Boumediene was whether the Guantanamo detainees had a right to habeas corpus. The Administration had argued that because the prisoners were foreign nationals held outside the sovereign territory of the United States, they had no rights under the Constitution. As a result, the President and Congress were free to deny them any access to the courts at all.

The Supreme Court rejected this argument in no uncertain terms. As Justice Anthony M. Kennedy explained in his 5-4 opinion for the Court, formal constructs like "sovereignty" do not and cannot dictate the presence or absence of constitutional rights because they are "subject to manipulation by those whose power it is designed to restrain."

Boumediene thus sounded a death-knell to the idea of Guantanamo itself: that the President can imprison people indefinitely without court review simply by bringing them to a US enclave on an island in the Caribbean. Instead, Kennedy's opinion adopts a more flexible and pragmatic approach under which the Constitution's applicability to those beyond America's shores depends on a practical assessment of the circumstances. And under that approach, the application of fundamental constitutional rights at Guantanamo, where individuals have been detained for more than six years in territory under total US control, is a no-brainer.

The ruling that the Guantanamo detainees are protected by the Constitution, however, did not end the case. The government had also argued that the process Congress created in 2005 in place of habeas corpus satisfied all the rights Guantanamo detainees had. This process had two parts: first, the summary military hearing, known as a Combatant Status Review Tribunal (CSRT); and second, limited review of the CSRT's decision by the court of appeals in Washington, DC, pursuant to the Detainee Treatment Act of 2005.

The Supreme Court made clear that Congress can create a constitutionally adequate substitute for habeas corpus without running afoul of the Suspension Clause if that substitute provides what habeas corpus provides. But the Court also ruled that Congress had unmistakably failed to provide an adequate substitute for habeas corpus for Guantanamo detainees.

The reason, the Court explained, was that the habeas itself requires an opportunity for a prisoner to see the allegations against him, to respond to those allegations with the assistance of counsel, and to a determination by an independent judge. The CSRT, by contrast, relied primarily on secret accusations denied prisoners the assistance of counsel and an opportunity to submit evidence showing their innocence, and lacked neutrality. Any court review limited to such a sham hearing, the Supreme Court said, was tantamount to no review at all.

In another decision issued today, the Court reaffirmed the right of American citizens to habeas corpus no matter where they are held. The Court ruled in Munaf v. Geren that two American citizens detained in Iraq have a right to habeas corpus. In so doing, the Court rejected the government's argument that the President could avoid the reach of habeas corpus by claiming that the United States was holding the prisoners under "international authority"--in that case, a UN Security Council Resolution. While the Court agreed with the government that the prisoners could not obtain review of their transfer to Iraqi custody, it made clear that American citizens have the right to habeas corpus as long as they are held by their government, no matter where they are detained or what label is attached to their detention.

Today's ruling in Boumediene does not require the release of any prisoner at Guantanamo. Instead, it merely mandates that the 275 prisoners who are still there must receive what they should have received long ago: an opportunity to challenge their imprisonment in court. In a country committed to justice and the rule of law nothing less is acceptable. While it has taken almost seven years to vindicate this most modest principle, late is better than never.

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Jonathan Hafetz directs litigation for the Liberty and National Security Project of the Brennan Center for Justice. Mr. Hafetz is counsel in several leading post-9/11 detention cases.

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Justice 5, Brutality 4
New York Times Editorial
June 13, 2008


For years, with the help of compliant Republicans and frightened Democrats in Congress, President Bush has denied the protections of justice, democracy and plain human decency to the hundreds of men that he decided to label "unlawful enemy combatants" and throw into never- ending detention.

Twice the Supreme Court swatted back his imperial overreaching, and twice Congress helped Mr. Bush try to open a gaping loophole in the Constitution. On Thursday, the court turned back the most recent effort to subvert justice with a stirring defense of habeas corpus, the right of anyone being held by the government to challenge his confinement before a judge.

The court ruled that the detainees being held in Guantanamo Bay, Cuba, have that cherished right, and that the process for them to challenge their confinement is inadequate. It was a very good day for people who value freedom and abhor Mr. Bush's attempts to turn Guantanamo Bay into a constitutional-rights-free zone.

The right of habeas corpus is so central to the American legal system that it has its own clause in the Constitution: it cannot be suspended except "when in cases of rebellion or invasion the public safety may require it."

Despite this, the Bush administration repeatedly tried to strip away habeas rights. First, it herded prisoners who were seized in Afghanistan, and in other foreign countries, into the United States Navy base at Guantanamo Bay and claimed that since the base is on foreign territory, the detainees' habeas cases could not be heard in the federal courts. In 2004, the court rejected that argument, ruling that Guantanamo, which is under American control, is effectively part of the United States.

In 2006, the court handed the administration another defeat, ruling that it had relied improperly on the Detainee Treatment Act of 2005 to hold the detainees on Guantanamo without giving them habeas rights. Since then, Congress passed another law, the Military Commissions Act of 2006 that tried - and failed horribly - to fix the problems with the Detainee Treatment Act.

Now, by a 5-to-4 vote, the court has affirmed the detainees' habeas rights. The majority, in an opinion by Justice Anthony Kennedy, ruled that the Military Commissions Act violates the Suspension Clause, by eliminating habeas corpus although the requirements of the Constitution - invasion or rebellion - do not exist.

The court ruled that the military tribunals that are hearing the detainees' cases - the administration's weak alternative to habeas proceedings in a federal court - are not an adequate substitute. The hearings cut back on basic due process protections, like the right to counsel and the right to present evidence of innocence.

It was disturbing that four justices dissented from this eminently reasonable decision. The lead dissent, by Chief Justice John Roberts, dismisses habeas as "most fundamentally a procedural right." Chief Justice Roberts thinks the detainees receive such "generous" protections at their hearings that the majority should not have worried about whether they had habeas rights.

There is an enormous gulf between the substance and tone of the majority opinion, with its rich appreciation of the liberties that the founders wrote into the Constitution, and the what-is-all-the-fuss-about dissent. It is sobering to think that habeas hangs by a single vote in the Supreme Court of the United States - a reminder that the composition of the court could depend on the outcome of this year's presidential election. The ruling is a major victory for civil liberties - but a timely reminder of how fragile they are.

I get periodic updates from Rep. Phil Gingrey. He's allegedly my representative from the 11th District in Georgia. I'm reprinting his last update since it talked about habeas corpus. Specifically, Gingrey talked about how the US Supreme Court's ruling that all people in the US, whether a citizen or not, have the right to challenge their own detention. Gingrey is opposed to this right. Apparently 800 years of habeas is more than enough for him. I will also be posting some analysis of the decision in the next day or so.

I was driving home from vacation, listening to Talk of the Nation. I don't usually listen to NPR shows live so it was a treat to hear a talk show while it was actually happening instead of weeks later. The show was about Clinton supporters and what Obama would have to do to get them to support him. Caller after caller kept saying they had supported Clinton, they were lifelong Democrats, but they were going to vote for John McCain. Why? His "experience." Obama just doesn't have the "experience" that McCain has. McCain had this "experience" while they were supporting Clinton though, but they weren't going to vote Republican until after Clinton lost the nomination bid. What could this "experience" be? The experience of being white in the United States, of course. Tim Wise's essay, reprinted below and available at his website or on Counterpunch, explains it nicely.

Your Whiteness is Showing:
An Open Letter to Certain White Women
Who are Threatening to Withhold Support From Barack Obama in November

By Tim Wise

June 5, 2008

This is an open letter to those white women who, despite their proclamations of progressivism, and supposedly because of their commitment to feminism, are threatening to withhold support from Barack Obama in November. You know who you are.

I know that it's probably a bad time for this. Your disappointment at the electoral defeat of Senator Hillary Clinton is fresh, the sting is new, and the anger that animates many of you--who rightly point out that the media was often sexist in its treatment of the Senator--is raw, pure and justified.

That said, and despite the awkward timing, I need to ask you a few questions, and I hope you will take them in the spirit of solidarity with which they are genuinely intended. But before the questions, a statement if you don't mind, or indeed, even if (as I suspect), you will mind it quite a bit.

First, for those of you threatening to actually vote for John McCain and to oppose Senator Obama, or to stay home in November and thereby increase the likelihood of McCain winning and Obama losing (despite the fact that the latter's policy platform is virtually identical to Clinton's while the former's clearly is not), all the while claiming to be standing up for women...

For those threatening to vote for John McCain or to stay home and increase the odds of his winning (despite the fact that he once called his wife the c-word in public and is a staunch opponent of reproductive freedom and gender equity initiatives, such as comparable worth legislation), all the while claiming to be standing up for women...

For those threatening to vote for John McCain or to stay home and help ensure Barack Obama's defeat, as a way to protest what you call Obama's sexism (examples of which you seem to have difficulty coming up with), all the while claiming to be standing up for women...

Your whiteness is showing.

When I say your whiteness is showing this is what I mean: You claim that your opposition to Obama is an act of gender solidarity, in that women (and their male allies) need to stand up for women in the face of the sexist mistreatment of Clinton by the press. On this latter point--the one about the importance of standing up to the media for its often venal misogyny--you couldn't be more correct. As the father of two young girls who will have to contend with the poison of patriarchy all their lives, or at least until such time as that system of oppression is eradicated, I will be the first to join the boycott of, or demonstration on, whatever media outlet you choose to make that point. But on the first part of the above equation--the part where you insist voting against Obama is about gender solidarity--you are, for lack of a better way to put it, completely full of crap. And what's worse is that at some level I suspect you know it. Voting against Senator Obama is not about gender solidarity. It is an act of white racial bonding, and it is grotesque.

If it were gender solidarity you sought, you would by definition join with your black and brown sisters come November, and do what you know good and well they are going to do, in overwhelming numbers, which is vote for Barack Obama. But no. You are threatening to vote not like other women--you know, the ones who aren't white like you and most of your friends--but rather, like white men! Needless to say it is high irony, bordering on the outright farcical, to believe that electorally bonding with white men, so as to elect McCain, is a rational strategy for promoting feminism and challenging patriarchy. You are not thinking and acting as women, but as white people. So here's the first question: What the hell is that about?

And you wonder why women of color have, for so long, thought (by and large) that white so-called feminists were phony as hell? Sister please...

Your threats are not about standing up for women. They are only about standing up for the feelings of white women, and more to the point, the aspirations of one white woman. So don't kid yourself. If you wanted to make a statement about the importance of supporting a woman, you wouldn't need to vote for John McCain, or stay home, thereby producing the same likely result--a defeat for Obama. You could always have said you were going to go out and vote for Cynthia McKinney. After all, she is a woman, running with the Green Party, and she's progressive, and she's a feminist. But that isn't your threat is it? No. You're not threatening to vote for the woman, or even the feminist woman. Rather, you are threatening to vote for the white man, and to reject not only the black man who you feel stole Clinton's birthright, but even the black woman in the race. And I wonder why? Could it be...?

See, I told you your whiteness was showing.

And now for a third question, and this is the biggie, so please take your time with it: How is it that you have managed to hold your nose all these years, just like a lot of us on the left, and vote for Democrats who we knew were horribly inadequate--Kerry, Gore, Clinton, Dukakis, right on down the uninspiring line--and yet, apparently can't bring yourself to vote for Barack Obama? A man who, for all of his shortcomings (and there are several, as with all candidates put up by either of the two major corporate parties) is surely more progressive than any of those just mentioned. And how are we to understand that refusal--this sudden line in the proverbial sand--other than as a racist slap at a black man? You will vote for white men year after year after year--and are threatening to vote for another one just to make a point--but can't bring yourself to vote for a black man, whose political views come much closer to your own, in all likelihood, than do the views of any of the white men you've supported before. How, other than as an act of racism, or perhaps as evidence of political insanity, is one to interpret such a thing?

See, black folks would have sucked it up, like they've had to do forever, and voted for Clinton had it come down to that. Indeed, they were on board the Hillary train early on, convinced that Obama had no chance to win and hoping for change, any change, from the reactionary agenda that has been so prevalent for so long in this culture. They would have supported the white woman--hell, for many black folks, before Obama showed his mettle they were downright excited to do so--but you won't support the black man. And yet you have the audacity to insist that it is you who are the most loyal constituency of the Democratic Party, and the one before whom Party leaders should bow down, and whose feet must be kissed?

Your whiteness is showing.

Look, I couldn't care less about the Party personally. I left the Democrats twenty years ago when they told me that my activism in the Central America solidarity and South African anti-apartheid movements made me a security risk, and that I wouldn't be able to get clearance to be in some parade with Governor Dukakis. Yeah, seriously. But for you to act as though you are the indispensible voters, the most important, the ones whose views should be pandered to, whose every whim should be the basis for Party policy, is not only absurd, it is also racist in that it, a) ignores and treats as irrelevant the much more loyal constituency of black folks, without whom no Democrat would have won anything in the past twenty years (and indeed the racial gap favoring the Democrats among blacks is about six times larger than the gender gap favoring them among white women, relative to white men); and b) demonstrates the mentality of entitlement and superiority that has been long ingrained in us as white folks--so that we believe we have the right to dictate the terms of political engagement, and to determine the outcome, and to get our way, simply because for so long we have done just that.

But that day is done, whether you like it or not, and you are now left with two, and only two choices, so consider them carefully: the first is to stand now in solidarity with your black brothers and sisters and welcome the new day, and help to push it in a truly progressive and feminist and antiracist direction, while the second is to team up with white men to try and block the new day from dawning. Feel free to choose the latter. But if you do, please don't insult your own intelligence, or ours, by insisting that you've done so as a radical political act.

The pun is to humor what Gallagher is to humor: all hype, no substance, and ending in something getting smashed. Still, I couldn't resist. While cruising Youtube I found this video and then visited their site. This was awesome. They make good points about predatory lending and they're funny. You can visit their site at internetscelebrities.com. Here's their latest video.