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The U.S. Supreme Court ruled, 7-2, that a company had waited too long to complain in court that the government had taken the firm’s property. John R. Sand & Gravel Co. v. U.S., No. 06-1164. The decision came in a suit by the John R. Sand & Gravel Co. of Lapeer County, Mich., which sought compensation for the loss of some of the land it had leased from the property owners. The case involves a takings claim filed against the government under the Tucker Act, which carries a six-year statute of limitations. The act allows lawsuits against the government for claims involving federal contracts and the taking of private property without fair compensation. The government waived the issue of timeliness, but, on appeal, the U.S. Court of Appeals for the Federal Circuit ruled that the lawsuit should be dismissed because it was not filed within the statute of limitations. The owners of the 158-acre site in Metamora Township, Mich., had used part of the property for a landfill for tens of thousands of drums of toxic industrial waste. In the 1990s, the Environmental Protection Agency began blocking access to portions of the property because the agency was overseeing the cleanup of a landfill under the federal Superfund law. Justice Stephen G. Breyer said courts are right to raise the deadline question without being asked to do so, and to rule that the company had missed the deadline. In reaching his conclusion, Breyer relied on precedents dating back to the 1880s. Breyer said “basic principles of stare decisis . . . require us to reject [the] argument” to overturn these cases. Breyer quoted the old saw by Justice Louis Brandeis that “in most matters it is more important that the applicable rule of law be settled than that it be settled right.” Breyer continued, “To overturn a decision settling one such matter simply because we believe that the decision is no longer ‘right’ would inevitably reflect a willingness to reconsider others. And that willingness would itself threaten to substitute disruption, confusion and uncertainty for necessary legal stability. We have not found here the factors that might overcome these considerations.” Chief Justice John G. Roberts Jr. and justices Antonin Scalia, Anthony M. Kennedy, David H. Souter, Clarence Thomas, and Samuel A. Alito Jr. joined Breyer. Justices John Paul Stevens and Ruth Bader Ginsburg dissented. The justices also heard arguments about Indiana’s strict law requiring voters to show current photo identification at the polls. Crawford v. Marion County Education Board, No. 07-21, and Indiana Democratic Party v. Rokita, No. 07-25. The court’s conservative majority raised potentially fatal concerns about whether the challengers had standing to sue, and whether the law should be attacked on its face before it takes effect and its “as-applied” impact on voters can be assessed. Some of the justices, including Kennedy, also questioned whether more than a trivial number of voters would be deterred from voting by the law. “You want us to invalidate a statute on the ground that it’s a minor inconvenience to a small percentage of voters?” Kennedy asked. No matter what the burden, replied Paul Smith, a partner at Jenner & Block of Chicago who represented the plaintiffs, “Those burdens vastly outweigh any incremental state interest that is being served.” Under the 2005 law, which legislators said was aimed at preventing voter fraud, voters must show a government-issued photo ID card in order to cast a ballot. Those without the necessary ID can cast a provisional ballot, but, for the vote to count, they must go to a county office within 10 days and produce required identification. The Indiana Democratic Party and the American Civil Liberties Union challenged the law as an unconstitutional barrier to voting, especially for poor, minority and elderly voters who are less likely to have licenses. Lower courts, including the 7th U.S. Circuit Court of Appeals, upheld the law. Stevens asked U.S. Solicitor General Paul Clement whether the court should consider the fact that the Indiana Legislature in 2005 passed the law along strict party lines, with Republicans supporting it and Democrats opposing it. Clement suggested that, in light of the 2006 national election results, in which Democrats bested Republicans, any plan by Republicans to deter Democratic votes “went pretty far awry.” In the end, the challenge to the Indiana law may fall victim to twin trends that are emerging from the Roberts court: concern about standing and an aversion to “facial” attacks to laws that have not taken effect yet. Scalia expressed concern that the state Democratic Party, rather than individual Democrats, has challenged the law. Smith noted that the lower courts had found sufficient standing for the suits to proceed. As for facial challenges, court conservatives have shown increasing frustration that they are asked to assess statutes that are challenged and enjoined as soon as they are passed, without a clear idea of the nature and extent of their impact in the real world when they actually take effect. That was a major concern as justices pressed lawyers to quantify how many actual voters would be deterred by the Indiana law. Smith replied that an indigent person in Gary, Ind., would have to take a bus 17 miles to county offices in Crown Point, Ind. “If you’re indigent, that is a significant burden.” Scalia described facial challenges as “an immense dictum on the part of this court . . . .This court is sitting back and looking at the ceiling and saying, ‘Oh, we can envision not the case before us, but other cases.’ . . . We can imagine cases in which this law could be unconstitutional, and therefore the whole law is unconstitutional. That’s not ordinarily the way courts behave.”

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