Guantánamo, Voter Rights and the Current Session of the Roberts Court Reviewed


Steven Shapiro, ACLU Legal Director and a lecturer-in-law at Columbia Law School, on challenging voter ID law.

Shayana Kadidal, senior managing attorney of the Guantánamo Global Justice Initiative at the Center for Constitutional Rights, on habeas corpus protections for Guantánamo detainees.

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The Annual Supreme Court Roundup
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Columbia faculty and legal experts discussed a variety of cases under consideration by the fourth Roberts Court, including those involving voter rights, the death penalty, gun laws, Guantánamo detainees, and employment law.
For the past 14 fall semesters, the Law School has invited faculty and other leading authorities to analyze the decisions of the highest court’s previous term and likely upcoming cases. Hosted by Columbia Law School's Social Justice Initiatives, the October 14th Supreme Court Roundup characterized the Roberts Court as conservative, though loosening on occasion around employment law and habeas corpus.
Panelists included ACLU Legal Director Steven Shapiro; Senior Managing Attorney of the Guantánamo Global Justice Initiative Shayana Kadidal; Karen Cacace a partner with Vladeck, Waldman, Elias & Engelhard; and Columbia Law School Professors Jeffrey Fagan and Jamal Greene.
Shapiro noted Justice Anthony Kennedy's pivotal role as a swing vote on a Court divided between four conservatives and four moderates. Shapiro described Justice Kennedy's view of the Constitution as both moral and legal.  That view, Shapiro said, often leads to opinions that are written in broad language and with a clear moral tone.  They are very different, Shapiro observed, than the fact-based and incremental opinions of Justice Sandra Day O'Connor, who frequently cast the deciding vote on the Supreme Court before her retirement.
Justice Kennedy's approach to the law was evident this past June when he wrote the majority opinion in a 5-4 decision holding that detainees at Guantánamo Bay have a right to invoke the habeas corpus protections of the Constitution. "The laws and Constitution are designed to survive, and remain in force, in extraordinary times," Justice Anthony Kennedy wrote for the majority.
Shayana Kadidal, senior managing attorney of the Guantánamo Global Justice Initiative at the Center for Constitutional Rights, was part of a team that successfully argued in 2004 that detainees in Guantánamo and Iraq could challenge their detention by the U.S. military. He wonders about future court interventions, and vowed to challenge the efforts to shut down Guantánamo if it means prisoners will be sent back to home countries that support torture.
On domestic matters, Professor Jeffrey Fagan, director of the Law School’s Center for Crime, Community and Law, noted the Court’s 35-year dance regulating capital punishment. He advised to “look for cases that will allow rulings on methods of execution,” because the Court is unlikely to tackle the question of whether the death penalty itself is constitutional.

Professor Jamal Greene discussed last term’s overturn of the District of Columbia’s restrictions on owning handguns and requirement that all firearms have trigger locks. Greene noted that this case involved the Fifth Amendment and said to watch whether the Fourteenth Amendment will be construed to allow similar restrictions imposed by cities or states. One case involving a ban in suburban Chicago and another in the city of San Francisco may present these issues to the Court. He doubted that common-sense restrictions were vulnerable to court challenges, such as prohibiting firearms in schools and post offices or banning ownership by felons or the mentally ill.

Most panelists agreed that the Roberts Court is one in transition. Shapiro suggested that the next ten years will determine the Court’s place in history particularly once the next round of retirements and appointments take place. 

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