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The term’s oral arguments are now finished and the Justices of the United States Supreme Court find themselves busy writing and delivering the opinions that will complete the court’s work by the end of June.
Four opinions were handed down by the Court last Monday, 17 May. In United States v Comstock the Court upheld, by a 7-2 majority, a law passed by Congress to order the civil commitment (i.e. an order that a patient undergo mental health treatment) of a mentally ill federal prisoner where the civil commitment is to continue beyond the date the sex offender would have otherwise been released. In Abbott v Abbott the court held that under the Hague Convention on International Child Abduction a parent has a ne exeat right of custody to give consent before the other parent can remove a child from the country where the child is living. The court explained that the only remedy for the violation of a ne exeat right is an order of return of the child to the jurisdiction. Any other result, it emphasized, would “render the Convention meaningless in many cases where it is most needed.” The case of Sullivan v Florida was dismissed as improvidently granted. Lastly, in the long-awaited judgment in Graham v Florida, Justice Kennedy wrote for a majority of 6 Justices, holding that sentencing a juvenile offender to life in prison without parole (for a crime other than murder) is in violation of the Constitution’s ban on “cruel and unusual punishment.” The Supreme Court looked to the international legal community for guidance and its decision was supported by the fact that this sentencing practice is generally rejected the world over. Readers of this blog will be interested to note that The Law Society of England & Wales acted as amicus curiae, submitting their own arguments against such sentencing and co-ordinating the response of various international lawyers’ organisations. Law Society President Robert Heslett commented, “We are dedicated to continually fight for the cause of human rights. The Law Society rightly stepped in to back this case, and we will continue to back other instances where we feel human rights are compromised.”
Much buzz surrounds the retirement of Justice John Paul Stevens this summer, making way for his successor to be appointed in time for autumn term. Article II of the United States constitution provides that the President shall nominate Supreme Court Justices subject to the “advice and consent” of the Senate. A majority vote of the Senate is needed to confirm the appointment. President Obama faces testing times following his nomination of US Solicitor General Elena Kagan to replace the markedly liberal Justice Stevens. Kagan is expected to face confirmation hearings in late June during which she will be questioned at length by the Senate who will aim to probe her views, testing her neutrality on issues that might come before the Court. Kagan has openly criticised the hearing process in the past leading many to theorize that her own hearings may be more rigorous than usual. An excellent explanation of the full process of appointment to the United States Supreme Court can be found here on ScotusBlog. Alex Bailin QC gives his thoughts on the nomination to this blog here. The nomination of a female candidate has once again stirred up the age-old debate on diversity (or lack thereof) in the judiciary. Read our post on the issue here. The BBC has reported that if Kagan is confirmed then all of the Justices will have attended either Harvard or Yale law school.
In other Supreme Court related news, the United States Justice Department attempted last Thursday, 20 May to put an end to one of the most significant cases seeking to preserve federal judges’ authority to limit the transfer of detainees out of Guantanamo Bay. Around two months ago the Supreme Court refused to hear the latest of the Guantanamo cases to reach it. The case concerned the Algerian national Ahmed Belbacha who fears torture or death by the Algerian government if sent home. Belbacha’s lawyers are attempting to turn his case into a direct challenge to the Kiyemba II decision, which held that federal judges could not “second-guess” government decisions on transfers of Guantanamo prisoners. Now the Justice Department has argued that the District of Columbia Circuit Court should dismiss outright any attempt to reopen the case before its full en banc court of nine judges. Dismissal of this case would enhance the United States government’s power to decide the fate of Guantanamo detainees without the supervision of the court.
Now that oral arguments for this term are over the judgments of the US Supreme Court will be delivered in abundance. Expect another update from UKSC Blog in the next few weeks.
