Full Court Press

This week, Full Court Press examines two new cases.  In "Three's Company," we discuss a Supreme Court death penalty decision and what, to no one's surprise, appears to be the newly emerging conservative bloc forming on the Court.  "Unchecked and Unbalanced" examines a decision by the DC Circuit upholding a Bush administration initiative that circumvented Congress.

Three's Company: Roberts Again Sides with Scalia and Thomas

This week, the Supreme Court issued a much-anticipated decision in a hotly contested death penalty case. Writing for a narrow 5-3 majority--Justice Alito didn't participate because the case was argued before he took his seat--Justice Kennedy held that Paul House had brought forward sufficient evidence of his innocence to entitle him to a hearing in federal court on otherwise procedurally barred claims that his trial suffered from serious constitutional shortcomings.

Justices Thomas and Scalia were entirely unpersuaded. Notably, however, they were joined by our new Chief Justice, John Roberts. A number of commentators have written recently that, as evidenced by the unusual number of unanimous decisions issued thus far this term, Roberts is striving mightily -- and often successfully -- for consensus on the court. But like the divided Oregon assisted suicide and Fourth Amendment decisions from earlier this term, today's decision shows that in the difficult cases, consensus may prove impossible. And in those cases, as conservative legal scholar Douglas Kmiec stated, Roberts can be expected to side "with his friends" -- i.e., Scalia, Thomas and Alito. (Click here for more)

House v. Bell, No. 04-8990, slip op. (US Supreme Court June 12, 2006).

Last Friday, a divided 2-1 panel of the D.C. Circuit let the Bush administration get away with one of its seemingly countless efforts to circumvent Congress' lawmaking authority, dealing a blow to privacy interests in the process. Written by Reagan appointee David Sentelle and joined by controversial Bush II appointee Janice Rogers Brown, the majority opinion upholds an administration-requested Federal Communications Commission order saying that an act of Congress - the Communications Assistance for Law Enforcement Act (CALEA) - forces broadband internet providers to make it easier to tap into broadband transmissions. In a heated dissent, Carter appointee Harry Edwards persuasively showed that Congress and CALEA had done no such thing. He called the order "gobbledygook," said the FCC was "trying to squeeze authority from a statute that does not give it" and accused the agency of "manufactur[ing] broad new powers out of thin air." If that weren't enough, the decision immediately raised the hackles of CALEA's chief Congressional sponsor.

The chief sponsor of CALEA, Sen. Patrick Leahy (D-VT), agreed with Judge Edwards, saying the court flouted congressional intent and stretched a law written for "the telephone system of 1994 to cover the Internet of 2006." (Click here for more)

American Council on Education v. Federal Communications Commission, No. 05-1404, slip op. (D.C. Circuit June 9, 2006).