Supreme Court’s Last Term

What was most striking about the Supreme Court’s last term was how much this has become the Roberts Court. Clearly the Chief Justice has taken control of the Court, and this last term, he was in the majority a staggering 92 percent of the time, more than any other justice. While it might be tempting to think of the Chief Justice as having replaced Justice Kennedy as the swing vote, the better analysis is that the Chief Justice, always skillful at forgoing a majority consensus, now drives the Court’s agenda to focus on issues of central importance to him.

In this issue of Mass Dissent, we first look at a case that reflects the Chief Justice’s activist and conservative agenda, and likely the term’s most important decision, Citizens United v. FEC, where the court wiped away decades of election reform with the notion that corporations – those artificial “persons” – have First Amendment rights (will corporations next be given the vote?). Guild member and voting rights activist John Bonifaz writes about this decision.

But the news was not all bad. In Graham v. Florida, Justice Kennedy, writing for the five-member majority found that life imprisonment without chance of parole for non-homicide offenses by minors violates the eighth amendment (the Chief Justice concurred). Patty Garin writes about this important decision, a decision that we hope can be of use to her and Jonathan Shapiro when they challenge under the Massachusetts constitution life imprisonment without the possibility of parole for juveniles found guilty of first degree homicide in this state.

Next, Ruthy Taranto explores how the recent case of Holder v. Humanitarian Law Project may affect long protected First Amendment rights and prevent groups like the Humanitarian Law Project from trying to direct “terrorist” organizations towards legal and more peaceful resolutions.

While of course this term was mixed, we should make no mistake. The conservatives are increasingly in control and increasingly activist – as the Chief Justice’s concurrence on Citizens United makes clear, even recent Court precedent will not stand in the way if the new majority considers that precedent wrong. With the departure of the Court’s leading liberal, Justice Stevens, even giving all benefit of the doubt to his replacement, Elena Kagan, we cannot expect things to get better in the near future.

On a brighter note, we are also presenting a report from Jeff Feuer on the recent work of our Mass Defense Committee. If you are a criminal defense lawyer, you should join the Committee; we need you for our good work.

- David Kelston & Tony Benningfield -