Now that the Senate Judiciary Committee has voted along party lines to confirm Solicitor General Elena Kagan for a seat on the U.S. Supreme Court (and full approval by the Democratic-controlled Senate seems like a shoo-in), a new chapter in the court’s history will begin.
Kagan will join a court whose conservative majority has aggressively taken and decided cases that are transforming the constitutional landscape in ways that will have far-reaching effects. Some Supreme Court analysts have rated the court’s actions in the just-concluded term as unremarkable. But for average Americans and for minority communities, the 2009-2010 term of the court is a significant one.
The court’s review of several cases involving the Sixth Amendment is especially important. The Sixth Amendment includes, among other guarantees, the right to effective assistance of counsel, the right to a jury made up of a fair cross-section of the community and the right to an impartial tribunal. When the court decides nearly half a dozen cases involving this constitutional amendment in a single term, it can hardly be described as unremarkable.
The Supreme Court took other bold steps, too. The court chipped away at the landmark Miranda case. And then there was the decision on interpreting the Second Amendment and striking down limitations on corporate campaign donations. Indeed, some of the most important cases decided by the court this term demonstrate how the cases pursued (in some cases, aggressively) by the court’s conservative majority, could have far-reaching implications for African-American communities. And in some instances, conservatives on the court have indicated that they may not be through reworking decades-old interpretations of key constitutional provisions in ways that restrict congressional decision-making, limit constitutional protections for criminal defendants, and that give increased power to corporate interests. As Kagan helps forge a new Supreme Court bench, the stakes will be particularly high. Here’s is an analysis of some of the court’s best and worst decisions this past term and their potential effect on minority communities.
The Worst Decisions
Citizens United v. Federal Elections Commission: The Supreme Court reached out for this one, ordering a re-argument after initially hearing the case in the 2008 term, and instead deciding whether the McCain-Feingold campaign finance law on its face is unconstitutional.
In striking down the restrictions imposed by McCain-Feingold, the five-member conservative majority has invited a veritable free-for-all in corporate campaign donations and influence. More important, the court slapped back the efforts of a bipartisan Congress to stem the corrosive influence of big money in federal election campaigns. In doing so, Congress developed a voluminous record documenting the dangers of corruption and lack of public confidence when corporate money is given free rein in political campaigns. The majority of the court rejected Congress’ findings out of hand.
One of the most disturbing effects of this decision, other than the obvious, may be the extension of corporate and special-interest influence on judicial elections. More than 35 states still elect at least some of their judges, and judicial elections have grown contentious, ugly and highly partisan in the past decade. Black judges may be particularly vulnerable in a climate where corporate and special-interests money has free rein in judicial campaign contests.
Wood v. Allen: One of the court’s worst decisions this term can’t be blamed on the conservative majority. In a 7-2 decision written by Justice Sonia Sotomayor, the court rejected a capital defendant’s claim that he received ineffective counsel when he was represented at the penalty phase of his capital murder trial by a lawyer who had only been licensed to practice law for five months. The lawyer regularly sought guidance and assistance from two experienced lawyers who had represented Wood at his criminal trial. The young lawyer assigned to the sentencing phase of the trial complained that he was in over his head and distressed by the lack of guidance from his experienced co-counsel. The inexperienced lawyer failed to put forward any evidence of mitigating factors about Wood’s difficult childhood and mental deficiencies that might have influenced the jury. Instead, the jury sentenced Wood to death. The Supreme Court found no violation of the Sixth Amendment and concluded — despite evidence to the contrary — that the young lawyer’s failure to present evidence of Wood’s mental deficiencies at the penalty phase might have been a ”strategic” decision. For criminal defendants — many of them minorities — who are often represented by underfunded and sometimes underskilled court-appointed attorneys, the implications of the court’s decision in Wood are staggering. Only Justices Anthony Kennedy and John Paul Stevens dissented.
The Best Decisions
Graham v. Florida and Sullivan v. Florida: In two cases from the Sunshine State, the Supreme Court ruled that it constitutes cruel and unusual punishment to sentence juveniles to life in prison without the possibility of parole for non-homicide cases. Terrance Graham was a 16-year-old when he was convicted of armed robbery and sentenced to life in prison. Joe Sullivan was convicted of sexual battery when he was 13.
In one of the most watched decisions of the term, the Supreme Court said that the application of such a hopeless sentence on a teenager convicted of non-homicide offenses violates the Eighth Amendment. Even Chief Justice John Roberts abandoned his conservative colleagues and joined the majority on this case. It is estimated that nine individuals are serving life terms without parole in U.S. prisons for crimes committed when they were teenagers. Eight of the nine are black. But the decision has far-reaching implications for the runaway charging and sentencing practices in many states that brand teenage criminals as irredeemable.
Padilla v. Kentucky: In a 7-2 decision, the Supreme Court concluded that a criminal defendant who had lived as a lawful resident alien in the United States for 40 years and had served in active duty in Vietnam was denied his Sixth Amendment right to effective counsel when his attorney assured him that he would face no immigration consequences if he pleaded guilty to distributing marijuana. In fact, a guilty plea carried with it the guarantee that Jose Padilla would be deported.
The court held that Padilla’s attorney provided ineffective counsel because he not only failed to warn about the consequences of Padilla’s guilty plea but even advised his client that he needn’t worry about possible deportation. Criminal defendants need to know that pleading guilty to a crime can result in forfeiture of their right to vote, their right to live in public housing, and their ability to obtain federal student loans or, in some jurisdictions, to obtain a professional barber’s license. These ”collateral consequences” are often the hidden penalties that criminal defendants take on when they are convicted or plead guilty. The willingness of the court to recognize at least the obligation of criminal defense attorneys to provide competent, accurate information about deportation to immigrant criminal defendants is a positive step in recognizing the significance of collateral consequences for criminal defendants. It’s worth noting that Elena Kagan as solicitor general argued that ineffective assistance of counsel should not attach to the attorney’s advice about collateral consequences. Justice Clarence Thomas dissented, along with Justice Antonin Scalia.
It’s no accident that Justice Clarence Thomas dissented from the Supreme Court’s best decisions this term. What was more startling was Thomas’ willingness to take an extreme stand, even further to the right than other members of the conservative majority.
One Thomas opinion in particular should get close attention. The most ominous concurrence of the term goes to Justice Thomas in Berghuis v. Smith, a case striking down the Sixth Amendment challenge by a criminal defendant who argued that women and African Americans had been excluded from his jury. The African-American defendant argued that the all-white jury was convened using a process that violated his right to be tried before a jury drawn from a ”fair cross-section of the community.” The ”fair cross-section” requirement has been recognized by the Supreme Court since 1975. In Berghuis, a majority of the court found that the procedures for jury selection did not violate the defendants’ right in that case. But Justice Thomas — in a one-paragraph concurrence — offered a startling take on the case. He contended that the Sixth Amendment does not contain a fair-cross-section guarantee, and had the state raised this argument, Thomas implied that he would have decided the case on that ground. Thomas’ willingness to read the guarantee out of the Sixth Amendment goes against a line of decisions that has ensured the inclusion of women and racial minorities in juries throughout this country. It’s an astonishing position, one that chillingly foreshadows the willingness of at least one member of the Supreme Court’s conservative majority to dismantle wholesale guarantees that have become part of the mainstream of criminal constitutional law.
It’s often said that the Supreme Court nominations and confirmations have little to do with the lives of average people. But as the court’s decisions showed this past term, the stakes are high indeed for the poor, the marginalized and minorities. As Justice Kagan takes her seat, she joins a court aggressively engaged in a struggle over constitutional interpretation that will shape the lives of average people for decades to come.
Sherrilyn Ifill is a civil rights lawyer and professor at the University of Maryland School of Law.
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