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• McConnell v. FEC Virtually all of the Bipartisan Campaign Reform Act of 2002 (BCRA) was upheld in a lengthy Dec. 10 decision. The law, known commonly as McCain-Feingold, amended the Federal Election Campaign Act of 1971 and other laws with sweeping changes to the way election-related money and speech are regulated. It banned unregulated “soft money” contributions to parties and candidates and restricted electioneering communications before elections. Plaintiffs claimed that most of the law amounted to unconstitutional censorship at a time when speech matters most — before elections. In upholding the law, the majority stressed Congress’ expertise in regulating campaigns and its interest in preventing corruption. The most significant part of the law struck down was a provision barring donations by minors. Justices Sandra Day O’Connor and John Paul Stevens wrote sections of the main opinion upholding soft money and electioneering speech restrictions; they were joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Chief Justice William Rehnquist and Justice Breyer wrote for the majority in upholding other parts of BCRA. Rehnquist and Justices Antonin Scalia, Clarence Thomas, and Anthony Kennedy dissented. — Tony Mauro • Locke v. Davey On Feb. 25, the Court ruled that states can deny scholarship funding to university students who major in theology. The holding affirmed that under the establishment clause of the First Amendment, the state of Washington could deny Joshua Davey access to state scholarship funds because Davey chose to major in pastoral ministries at Northwest College near Seattle. With a 7-2 majority, the Supreme Court reversed a decision of the U.S. Court of Appeals for the 9th Circuit. Rehnquist wrote for the majority that “majoring in devotional theology is akin to a religious calling.” Rehnquist was joined in his opinion by Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer. “[T]his is a case about discrimination against a religious minority” whose belief “is so strong that they dedicate their study and their lives to its ministry,” Scalia wrote in a dissent joined by Thomas. — Beth Hanson • General Dynamics Land Systems v. Cline In May, the Court held in a 6-3 decision that age discrimination is a one-way street. Souter’s majority opinion declared that the Age Discrimination in Employment Act (ADEA) is “structured and manifestly intended to protect the older from arbitrary favor for the younger.” Souter was joined by Rehnquist, Stevens, O’Connor, Ginsburg, and Breyer. According to the majority, the ADEA does not prevent an employer from favoring an older employee over a younger employee, even if both employees are in the ADEA’s protected class. — Beth Hanson • Tennessee v. Lane The battle in Lane was over whether Congress exceeded its powers in requiring states to provide reasonable access to court facilities under the Americans With Disabilities Act of 1990. On May 17, the Court held that in cases involving the fundamental right of access to the courts, Congress has full authority. Stevens was joined by O’Connor, Souter, Ginsburg, and Breyer in holding that Congress may abrogate a state’s immunity under the 11th Amendment — thus allowing private suits against the state — when fundamental rights are violated. Rehnquist’s dissent was joined by Kennedy and Thomas. Scalia, joined by Thomas, also filed a dissent. — Christine Garton • Republic of Austria v. Altmann On June 7, the Supreme Court opened the door for retroactive lawsuits under the 1976 Foreign Sovereign Immunities Act (FSIA). The 6-3 decision, delivered by Stevens, allows Maria Altmann to proceed with her suit against the Austrian government to recover family paintings seized by Nazis during World War II. Stevens was joined by O’Connor, Scalia, Souter, Ginsburg, and Breyer. Scalia and Breyer filed separate concurrences, and Souter joined Breyer in his concurrence. Kennedy wrote the dissent and was joined by Rehnquist and Thomas. The FSIA prohibits suits against foreign countries in U.S. courts, but there are exceptions. The holding in Altmann means conduct that took place before 1976 can be addressed as exceptions under the FSIA. — Beth Hanson • Elk Grove v. Newdow The Court found that plaintiff Michael Newdow did not have standing to challenge the wording of the Pledge of Allegiance on behalf of his daughter. Newdow, an atheist, brought suit claiming that the phrase “under God” in the Pledge is unconstitutional under the establishment clause. Since the Court did not rule on the merits, the constitutionality of the phrase remains an open question. Stevens wrote for the majority that the “hard questions of domestic relations” that affected Newdow’s case made it unwise to address the constitutional issues. Stevens was joined by Souter, Kennedy, Ginsburg, and Breyer. Rehnquist, O’Connor, and Thomas all filed concurring opinions, but asserted that the Court should have addressed the constitutional issues and upheld “under God.” Scalia, who made public comments about the case before the arguments, recused himself from the proceedings at Newdow’s request. — Beth Hanson • Aetna v. Davila; Cigna v. Calad Striking down a Texas patients’ rights law passed in 1997 under then-Gov. George W. Bush, a unanimous Court held on June 21 that patients cannot sue managed-care companies for deaths or injuries caused by their refusal to pay for treatment. Thomas, writing for the majority in reversing the 5th Circuit, said that the Employee Retirement Income Security Act would be undermined if patients were permitted to sue managed-care companies for negligence or medical malpractice in state courts. Ginsburg filed a concurring opinion joined by Breyer. — Christine Garton • Cheney v. U.S. District Court for the District of Columbia By a 7-2 vote on June 24, the Court refused to order Vice President Dick Cheney to release records of his 2001 energy task force meetings. However, the legal battle continues, as the case has been remanded to the D.C. Circuit for reconsideration. At issue in Cheney is whether the Federal Advisory Committee Act may be used to obtain records of the closed deliberations of the National Energy Policy Development Group. The law requires that advisory committees conduct business publicly unless all the members are government officials. “[S]pecial considerations control when the Executive Branch’s interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications are implicated,” Kennedy’s majority stated. Ginsburg and Souter dissented; Thomas, Scalia, and Stevens filed concurrences. — Beth Hanson • Blakely v. Washington In the past, a judge could lengthen an offender’s sentence without the input of a jury if that judge had “substantial and compelling reasons” to do so. The Court’s June 24 Blakely decision held that this practice violates an offender’s Sixth Amendment right to have a jury determine every fact that could lengthen a sentence. The 5-4 majority opinion by Scalia was joined by Stevens, Thomas, Souter, and Ginsburg. O’Connor, Kennedy, and Breyer all filed dissents. — Beth Hanson • Hamdi v. Rumsfeld; Rumsfeld v. Padilla The June 28 6-3 decision in Hamdi, delivered by O’Connor, gave the president the power to detain “enemy combatant” and U.S. citizen Yaser Esam Hamdi, but also gave Hamdi the right to contest his detention in court. O’Connor was joined by Rehnquist, Kennedy, and Breyer. In his concurring opinion, Souter asserted that Hamdi’s detention was improper in the first place. Ginsburg joined Souter’s concurrence. Scalia, joined by Stevens, and Thomas dissented. The same day, the Court declined to rule on the merits in Padilla, another enemy combatant case. Rehnquist’s majority decision held that Jose Padilla, a U.S. citizen being detained by the government, brought suit in the wrong jurisdiction against the wrong respondent. The Court refused to rule on whether the president has authority to detain Padilla. It remanded the case to a lower court. Rehnquist was joined in his opinion by O’Connor, Scalia, Kennedy, and Thomas. Kennedy filed a concurring opinion joined by O’Connor. Stevens’ dissent was joined by Souter, Ginsburg, and Breyer. — Beth Hanson • Rasul v. Bush On June 28, Guantanamo Bay, Cuba, was held to be within the jurisdiction of U.S. courts, giving citizen or noncitizen prison detainees the right to a legal hearing. Rasul involved about 600 foreigners at the U.S. naval base in Guantanamo Bay who had been captured during the U.S. military campaign in Afghanistan. Although not charged with crimes, the detainees were held for suspected terrorist ties. Stevens’ majority found that nothing in the law or in previous rulings “excludes aliens detained in military custody outside the U.S.” from access to federal courts — especially those who had yet to be charged or convicted. O’Connor, Ginsburg, and Breyer joined Stevens. Kennedy filed a concurrence. Scalia’s dissent was joined by Rehnquist and Thomas. — Christine Garton • Sosa v. Alvarez-Machain On June 29, a 6-3 Court decision held that aliens may in limited circumstances use the Alien Tort Statute of 1789 to challenge international law violations in U.S. courts. In Sosa, Humberto Alvarez-Machain, a Mexican doctor, used the Alien Tort Statute to sue a Mexican who had helped the Drug Enforcement Administration kidnap Alvarez-Machain from Mexico to stand trial in the United States for a murder of which he was later acquitted. The Court unanimously overturned a lower court’s decision that awarded him damages. However, the Court found that common law provides a limited right for others to sue under the Alien Tort Statute. Souter’s majority cautioned courts to sagaciously apply the law, especially in cases dealing with foreign policy. In his dissent, joined by Rehnquist and Thomas, Scalia called the decision an “illegitimate lawmaking endeavor” by judges. — Christine Garton • Ashcroft v. ACLU In its final decision of the term, the Court declared that the 1998 Child Online Protection Act (COPA) probably violates the First Amendment’s freedom of speech guarantee. The case was remanded to a lower court for further proceedings. The majority opinion by Kennedy encouraged the government to explore “less-restrictive alternatives” to COPA, which calls for Web operators who don’t properly filter sexual material on their sites to be liable for up to $50,000 in fines and six months of jail. Kennedy was joined by Stevens, Souter, Thomas, and Ginsburg. Breyer’s dissent, joined by Rehnquist, O’Connor, and Scalia, said that while the law was flawed, the goal of protecting children from pornography was legitimate. — Beth Hanson

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