Supreme Court decisions yesterday

All eyes are still on the court for two potentially politically
explosive decisions from the nation's highest Court in the coming
week.....a decision in the Texas redistricting case and whether
or not any of the Justices has "retirement fever."

Five decisions were handed down on Monday and the most
interesting was the Vermont decision.

But here is the analysis from the brilliant folks at the Heritage
Foundation:

The Supreme Court decided 5 cases today. The 5 cases decided
today addressed campaign finance regulations (Randall), the
Individuals with Disabilities Act (Murphy), the death penalty
(Marsh), a defendant’s right to counsel (Gonzalez-Lopez), and
the impact of a failure to submit a sentencing factor to the jury
(Recuenco).

Note: There are 5 more cases to be decided before the Court
adjourns, including Hamdan and the Texas redistricting case.
The Court will convene next on Wednesday morning.

All opinions are available here:
http://supct.law.cornell.edu/supct/index.html. (If you read only
one opinion, read Justice Scalia’s concurrence in Marsh, in which
he simply obliterates many of the erroneous factual claims that
death penalty opponents have been making over the past 20
years.)

Re: RANDALL v. SORRELL, No. 04-1528 (consolidated
with SORRELL v. RANDALL, No. 04-1697; VERMONT
REPUBLICAN COMMITTEE v. SORRELL, No. 04-1530)
KANSAS v. MARSH, No. 04-1170 U.S. v. GOZALEZ-LOPEZ,
No. 05-352 WASHINGTON v. RECUENCO, No. 05-83
ARLINGTON CENTRAL SCHOOL DIST. BD. v. MURPHY,
No. 05-18
RANDALL. In a fractured decision involving three
consolidated cases, the Court struck down several key
provisions of the Vermont campaign finance statute,
“Act 64.” There were a total of four opinions for the six
justices in the majority and two for the three dissenting
justices. Vermont’s limits on campaign donations and
campaign spending were among the strictest in the nation.
Breyer wrote the plurality opinion, in most of which the
Chief and Alito joined, concluding that Act 64’s expenditure
limits violate the First Amendment as set forth in BUCKLEY
v. VALEO (the Court was urged to overturn its reasoning in
BUCKLEY). Kennedy concurred only in the judgment
because of his declared skepticism with much of the Court’s
campaign finance jurisprudence, including McCONNELL v.
FEC. Thomas (with Scalia) wrote an opinion declaring he would
not base his decision on BUCKLEY because he thought
BUCKLEY insufficiently protective of political speech. They
would apply strict scrutiny to Act 64 and similar statutes.
Stevens’s dissent states that the Court incorrectly equated
money and speech, and he would conclude that the state’s
actions are justified as a means to reduce fundraising efforts,
curb corruption, and protect equal access to the political arena.
Souter’s dissent (joined by Stevens) would conclude that the
contribution limits in this case are not so low as to impinge on
rights of speech and association, especially in comparison to
similar limits previously upheld by the Court.

MARSH. The Court held 5-4 that a Kansas death penalty
statute is not unconstitutional on the ground that it mandates
the death sentence even if the aggravating factors are not
outweighed by the mitigating factors – i.e., if the aggravating
and mitigating factors are in equipoise. Thomas’s majority
opinion concludes that the question is controlled by WALTON
(addressing an Arizona death penalty statute that was virtually
identical in relevant respects). Scalia’s concurrence defends
the Court’s grant of cert. as a measure to defend states’
sentencing rights and responds at length to the arguments
in Souter’s dissent (joined by Stevens, Breyer, and Ginsburg)
that the death penalty is bad policy and unjust. Stevens’s
dissent argues that WALTON is not controlling.

GONZALEZ-LOPEZ. Scalia wrote a 5-4 opinion affirming
the Eighth Circuit, which had vacated Gonzalez-Lopez’s
conviction because he had been denied the counsel of his
choice. The government conceded that the district court
had erred when it refused to admit the attorney pro hac
vice, and the Court emphasized that its decision is not
intended to have any effect on a court’s power to regulate
admissions and practice before it. The Court rejected the
government’s position that the defendant must show that
the attorney who was not his counsel of choice was
ineffective under STRICKLAND as well as the dissent’s
view that the defendant must show an “identifiable
difference” in the quality of the legal representation he
was provided. The Sixth Amendment “commands, not
that a trial be fair, but that a particular guarantee of
fairness be provided—to wit, that the accused be defended
by the counsel he believes to be the best.” The Chief,
Kennedy, and Thomas joined Alito’s dissenting opinion.

RECUENCO. Under APPRENDI and BLAKELY, a failure
to submit a sentencing factor to the jury is constitutional
error. In a 7-2 opinion authored by Thomas, the Court
held that such “Blakely errors” are not “structural” and
may be reviewed for harmless error. The Court thus
reversed the Supreme Court of Washington. Kennedy
wrote a one-paragraph concurrence, and Stevens wrote
a short dissent suggesting that the Washington supreme
court could choose to reinstate its decision on state-law
grounds. Stevens also joined Ginsburg’s dissent.

ARLINGTON. In a 6-3 opinion by Justice Alito, the Court
disagreed with the Second Circuit and held that prevailing
parents in a proceeding under the Individuals with
Disabilities Education Act (IDEA) were not authorized
to receive a reimbursement of expert fees. The majority
opinion found that the text of the statute, in
20 U.S.C. §1415(i)(3)(B), allowed for the recovery of “costs”
which as a term of art does not generally include expert fees.
The text also fails to provide clear notice for the state required
under the Spending Clause. The majority found additional
support in its decisions in CRAWFORD FILING and CASEY
which support the principle that no statute will be construed
to authorize taxation of witness fees as costs unless it does
so explicitly. The Second Circuit misunderstood the meaning
of the footnote from CASEY on which it relied. Ginsburg
concurred in part and concurred in the judgment, expressing
her disagreement with the majority’s use of the “clear notice
requirement” in this case. Breyer, joined by Stevens and Souter,
dissented.

If you want more commentary and analysis, see http://electionlawblog.org/archives/006026.html
(for the campaign finance case) or http://www.scotusblog.com/
movabletype/archives/2006/06/news_on_todays.html
(generally). Another good source throughout the day is
http://howappealing.law.com/.