(September 2005)
David Kelston, issue editor, writes:
As is our tradition, the September Mass Dissent focuses on the just-concluded Supreme Court term and presents articles with analysis of cases which, we hope, might be of special interest to progressive lawyers.
Our first article, by Patty Garin, examines what may be the most positive decision by the Supreme Court last year in Roper v. Simmons, where the Court struck down the death penalty for juveniles.
As Patty explains, the Roper majority has set an important precedent that brings our country into conformance with international law while opening doors well beyond its subject matter for lawyers to argue for special treatment of juveniles. Our next article reviews two establishment clause cases, McCreary and Van Orden, where the different majorities struck down a Kentucky Courthouse "Ten Commandments" display while upholding a Texas monument seemingly more offensive to the first amendment. While the cases together may have limited precedential value (one essentially nullifying the other), they do show starkly just how divided the current Court is.
Jonathan Shapiro, who has lived with the federal sentencing guidelines for the last two decades in his criminal practice, writes about United States v. Booker, where the Stevens majority (including Justices Scalia and Thomas!) struck down the most onerous provisions of the guidelines, only to have Justice Breyer pull together a different majority to resurrect, at least in part, those same provisions.
Next is Marjorie Cohn's insightful review of Supreme Court nominee John Roberts, reprinted with the authorís permission from t.r.u.t.h.o.u.t. With a Court so closely divided, we all have a real stake in this nomination.
Our Supreme Court issue concludes with Eleanor Newhoff revisiting the Supreme Court's decisions in Hamdi, Basal, and Padilla and updating developments concerning military tribunals and enemy combatants. The article includes the D.C. Circuit's important and unfortunate decision (by, inter alia, Judge Roberts) in the Hamdah case, where the Circuit reversed the district court's enjoining the Secretary of Defense from conducting any further military commission proceedings against Salim Hamdan, a Yemeni national captured in Afghanistan.
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