Jenner & Block

200 Attend ACS Supreme Court Review at Jenner & Block

Jenner & Block hosted an audience of over 200 summer associates and Chicago-area attorneys on July 7 to hear a review of the recently concluded U.S. Supreme Court term.  The event was co-presented by the Chicago Lawyer Chapter of the American Constitution Society (ACS) and the Firm.  Partner Barry Sullivan served as moderator for the discussion, while Partner Barry Levenstam was one of the six panelists.  Both are Co-Chairs of the Firm’s Appellate and Supreme Court Practice. 

Mr. Sullivan began the discussion by mentioning two articles that appeared in The New York Times and The Washington Post during the past week. The first, Linda Greenhouse’s Supreme Court wrap-up on in Monday’s Times, questioned whether the last term may become known as the term in which the Chief Justice lost control of his court.  Mr. Sullivan also noted that the Chief Justice did not write in either of the two major enemy combatant decisions, but only in the jurisdictional decision in Padilla

The moderator also pointed to an article in the July 4 Washington Post by Supreme Court correspondent Charles Lane:  “Courting O’Connor: Why the chief justice isn’t the Chief Justice.”   “People have been referring to this Court as O’Connor’s court,” Mr. Sullivan said, “because of her nimbleness and apparent gift for putting together five votes, four votes, three votes—whatever it takes to speak for the Court in a particular case.”  Thus, Mr. Sullivan suggested, “the pragmatic cast to some of the Court’s decisions, which has caused Justice Scalia to complain that ‘the Court never says never.’”

Mr. Levenstam discussed Blakely v. Washington, a 5-4 decision that struck down a Washington State sentencing guideline system.  “When Mr. Blakely, a man with a history of mental illness, made a decision to kidnap his estranged wife at knifepoint to talk her out of divorcing him, it is unlikely that he knew he would be setting in motion a chain of events that would lead to a decision in the District Court of Utah that the federal sentencing guidelines are unconstitutional,” Mr. Levenstam said.  “It is also unlikely that he decided that the kidnapping was worth risking a 50-month sentence but not a 90-month sentence.  Yet the notion of a criminal defendant evaluating his maximum penalty for an offense was a significant factor in the majority’s assessment of what is and is not permissible under the Sixth Amendment,” Mr. Levenstam noted.

He also observed that the majority’s historical view of the importance of the jury’s participation in the judiciary was not persuasive in light of the fact that the jury has had no participation historically in indeterminate sentencing, which has been held constitutional.  Ultimately, though, Mr. Levenstam expressed agreement with the view that defendants should not be sentenced for crimes neither charged nor proven guilty beyond a reasonable doubt, as the guidelines allow.     

Carolyn Frantz, who is a professor at The University of Chicago Law School, discussed Locke v. Davie, a somewhat unexpected victory for those who oppose public financial support for religion.  She also discussed Vieth v. Jubelirer, which Jenner & Block argued before the Court on December 10, 2003.  On April 28, the Justices released their decision upholding the lower court’s decision and chose not to intervene in the state’s controversial redistricting plan that was adopted by the legislature.

Michele Goodwin, a professor and Director of Health Law at the Institute and Center for the Study of Race & Bioethics at DePaul University College of Law, discussed Sosa v. Alvarez-Machain et al., which denied relief to Alvarez but left open the door some suits in U.S. courts under the Federal era Alien Torts Act.  She also discussed Tennessee v. Lane, which upheld ADA suits with respect to courthouse access, a narrow but important departure from recent Eleventh Amendment case law.

Andrea D. Lyon, professor and Director of the Center for Justice in Capital Cases at DePaul University College of Law, gave what she called “the defense attorney’s perspective” on the term.  She discussed the Court’s hearsay decision in Crawford v. Washington, which she described as “a sea-change as to what is deemed permissible to be used as evidence in court.”  She also talked about Illinois v. Lidster and Iowa v. Tovar. 

Jeffrey W. Sarles, a Partner at Mayer, Brown, Rowe & Maw LLP, talked about campaign finance reform and the voluminous opinions in McConnell v. F.E.C., which upheld the McCain-Feingold campaign finance law.  “The primary tools of this act were to put restrictions on so-called soft money,” he explained to the audience.  He carefully parsed the various opinions, guiding the audience through the various Justices’ analyses. 

Finally, Benjamin S. Wolf, Director of the Institutionalized Persons Project at the ACLU of Illinois, analyzed in depth the recent “enemy combatants trilogy” of Hamdi, Padilla, and Rasul cases (to read more click here) and discussed the diversity of opinions from the Justices in each of the three cases.  He said that despite the variety of views on the issues, the majority of Justices agreed that those designated as enemy combatants must be afforded the basic elements of due process.

A short, but lively, question and answer period followed.  The event was organized by Associate Derek S. Witte and by Amy M. Gardner of Skadden, Arps, Slate, Meagher & Flom LLP.  Jenner & Block Managing Partner Robert L. Graham provided the introductory remarks.