Court Cases Checked a President’s Powers

Times Staff Writer

The Supreme Court term that ended last week will be remembered for its declaration that the rule of law stands above the commander in chief, even in times of war and national emergency.

For the first time since the “steel seizure” case of 1952, the high court flatly rejected the president’s claim of wartime powers. When threatened with a steel strike, President Truman ordered the seizure of the nation’s mills to sustain the war effort in Korea.

With support for the military conflict lagging, a majority of the justices -- all Democratic appointees -- rebuked Truman, a Democrat, and ruled that the president’s role as commander in chief of the armed forces did not give him unchecked power on the home front.

Last week, in something of a historical echo, the justices -- mostly Republican appointees -- said that President Bush had gone too far in asserting he had military power in wartime to lock up indefinitely those he deemed to be “enemy combatants.”


There were several other challenges to presidential power in the just-completed term, and the high court did not exactly lay waste to White House authority. It preserved the secrecy of White House meetings, let the president enforce treaties despite environmental concerns, and upheld the government’s overseas abduction of a man facing U.S. criminal charges.

But those actions were dwarfed by the rulings undercutting the president’s powers to deny hearings to detainees. Scholars called the rulings landmarks in preserving basic rights.

“These are the most important cases on the rule of the law and the right to liberty that have been decided in the last half-century,” said Doug Cassel, a Northwestern University law professor.

The justices did not dispute that a national emergency might require the use of emergency powers.


The government may seize suspicious persons who may “become missiles of destruction,” commented Justice John Paul Stevens, the 84-year old World War II veteran who is considered the most liberal member of the court.

But seizing suspects to thwart an attack is one thing. Locking them up for years without a trial or a chance to contest the charges against them is quite another, he said, whether they are foreigners or U.S. citizens.

Stevens joined with conservative Justice Antonin Scalia in rejecting Bush’s view that the commander in chief could order the military to arrest and hold Americans citizens in a brig without giving them a hearing.

“The very core of liberty secured by our Anglo-Saxon system of separated powers has been the freedom from indefinite imprisonment at the will of the executive [branch],” Scalia wrote. “The practice of arbitrary imprisonments ... in all ages is one of the favorite and most formidable instruments of tyranny,” he added, quoting Alexander Hamilton.


In all, eight of the nine justices rejected the Bush administration’s claim of presidential power that had been put forth in the cases of Yaser Esam Hamdi, a Louisiana-born man of Saudi parentage who was captured in Afghanistan, and Jose Padilla, a former gang member and suspected terrorist who was arrested at Chicago’s O’Hare airport.

Both U.S. citizens, they have been locked up in a military brig in South Carolina for nearly two years and denied a chance to speak to their families or to a lawyer or to appear before a judge.

Meanwhile, at Guantanamo Bay, Cuba, about 600 foreigners captured in the war on terror have been held in isolation and kept from pleading their cases before a judge.

Bush’s lawyers insisted before the high court that the justices had no authority to “second-guess” the president’s decision to imprison these men indefinitely.


“The president’s core constitutional powers in time of war ... are not limited to aliens and foreign battlefields. [They] encompass the capture and detention of enemy combatants, wherever found, including within the nation’s borders,” the administration said.

This claim that the commander in chief is above the writ of habeas corpus was roundly rejected by the Supreme Court.

In a 6-3 ruling, the court said the Constitution gave all persons in U.S. custody, even foreign nationals, a right to challenge the basis for holding them. And with only Justice Clarence Thomas dissenting, the court said citizens who were detained had a right to a lawyer and a right to a hearing before a neutral decision-maker.

“It’s an astounding loss. This is a predominantly Republican court and it is inclined to defer to the military and the president. Yet they could get only one justice to agree with their position,” said David D. Cole, a Georgetown University law professor. “It underscores how extreme their claim was.”


“The court basically rejected the idea that Sept. 11 changed everything,” said Deborah Pearlstein, a former court clerk and lawyer for Human Rights First. “This was a raw assertion of power, and they lost.”

Five justices did agree that the military could capture and hold indefinitely U.S. citizens who were shown to be enemy soldiers. The detained men won only a right to a hearing, not a get-out-of-jail pass, the justices said. Administration supporters said that was good enough.

“This in no way handcuffs the administration’s ability to fight the war on terror,” said Richard A. Samp, chief counsel for the Washington Legal Foundation.

Although the cases testing the president’s powers in wartime drew the most attention this year, the pair of rulings that might have the widest effect on the law drew no advance notice. By coincidence, both came from the state of Washington. Perhaps not coincidentally, both were written by Scalia.


In Crawford vs. Washington, Scalia said criminal defendants had an absolute right to confront their accusers in court. Until this year, judges have often allowed juries to hear out-of-court statements that were given to police. But in a 7-2 ruling, the high court reversed earlier decisions that had permitted the use of statements that were seen as reliable -- such as tape-recorded interviews -- and said these witnesses must appear in court.

In Blakely vs. Washington, the court ruled that a judge could not add to a criminal prison term based on a sentencing factor, such as the failure to show remorse, that was not proved before the jury. The 5-4 ruling cast doubt on the sentencing rules used in the federal system and in several states.

“These are the two cases from this term that will have the most important practical impact. They will affect what goes on in every court every day,” said Erwin Chemerinsky, a USC law professor.

Meanwhile, the court remained closely split on states’ rights and the Miranda warnings.


In a 5-4 ruling, the justices upheld the federal law that barred states from discriminating against disabled people. The ruling came in a case in which a paralyzed man in a wheelchair had sued the state of Tennessee because he had to crawl up a flight of stairs to reach a courtroom. The case was narrowly decided to apply only to “fundamental rights” such as voting or access to courts. It was not clear whether a majority would uphold the law in other areas of discrimination against people with disabilities.

The justices also split 5-4 in two cases that tested the Miranda warnings. In one, the court said a confession could not be used because a police detective had questioned a distraught woman in the middle of the night and only warned her of her right to remain silent after she had admitted to covering up a murder.

In the second, the court upheld the use of incriminating physical evidence -- a gun in this case -- that was found when police questioned a suspect without fully warning him of his rights.




U.S. Supreme Court / Major rulings 2003-2004 term

The Supreme Court heard 79 cases in its term ending last week. Its members are Chief Justice William H. Rehnquist and Justices John Paul Stevens, Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy, David H. Souter, Clarence Thomas, Ruth Bader Ginsburg and Stephen G. Breyer. Here’s a partial list of their decisions. The full opinions can be found at

Election law


Campaign money. Congress may bar federal candidates and political parties from collecting huge donations known as “soft money,” and it may forbid pre-election broadcast campaign ads funded by corporations, unions or the wealthy. The 5-4 decision rejected a free-speech challenge to the McCain-Feingold Act. (McConnell vs. FCC. Stevens, O’Connor, Souter, Ginsburg and Breyer in the majority. Dissent by Scalia)

Gerrymandering. Partisan lawmakers may draw election districts favoring their party. The 5-4 decision upheld a Republican plan in Pennsylvania that gave the GOP a 12-7 edge in its Congressional delegation even though state has leaned Democratic recently. (Vieth vs. Jubelirer. Rehnquist, O’Connor, Scalia, Kennedy and Thomas in majority. Dissent by Stevens)


Presidential Power


Foreign detainees. Foreign nationals who were captured abroad and taken to Guantanamo Bay, Cuba, have a right to challenge the legality of their potentially indefinite detention in the U.S. courts. The 6-3 ruling rejects the Bush administration’s view that the president alone, not judges, controlled the fate of alleged foreign fighters. (Rasul vs. Bush. Dissents by Scalia, Rehnquist and Thomas)

Citizen detainees. Enemy soldiers who are U.S. citizens may be held indefinitely during the war on terrorism, but they also have a right to challenge their detention before a neutral judge. The administration won the power to hold such detainees by a 5-4 vote, with O’Connor, Rehnquist, Kennedy, Breyer and Thomas in majority. But an 8-1 majority in Hamdi vs. Rumsfeld said the detainees had a right to due process under the law. Thomas dissented.

Cheney task force. The court set aside a judge’s order that would have required the White House to turn over documents that said who met with Vice President Dick Cheney’s energy policy task force. The 7-2 ruling says presidential confidentiality is due “the greatest protection” from forced disclosures. (Cheney vs. U.S. District Court. Ginsburg and Souter dissented)



Jobs and Discrimination

HMOs. Patients who are harmed when their managed care plan refuses to pay for needed treatment may not sue the plan for damages. In a 9-0 ruling, the court said these state claims are barred by the federal law that regulates employee benefits. (Aetna vs. Davila)

Disabled persons. A wheelchair user who was unable to get to a second-floor courtroom may sue the state for failing to make its facility accessible. The 5-4 ruling upheld a key part of the Americans with Disabilities Act. (Tennessee vs. Lane. The majority was Stevens, O’Connor, Souter, Ginsburg and Breyer)

Older workers. An employer may adopt rules that favor older workers and disfavor those in middle age without violating the law against age discrimination. The 6-3 decision rejected a “reverse bias” claim. . (General Dynamics vs. Cline. Dissents by Thomas, Scalia and Kennedy)


Pensions. Pension plans may not suspend the monthly benefits of a retired worker who has taken another job in the same industry. The 9-0 ruling rejected the Bush administration’s argument that a temporary suspension of benefits is not a reduction in the pension. (Central Laborers Pension Fund vs. Heinz)

Sexual harassment. Victims of “intolerable” harassment may quit and sue their employers for damages, even if they failed to complain about the mistreatment. The 8-1 decision allows employers to defend themselves by showing complaints were acted upon. (Pennsylvania State Police vs. Suders. Thomas dissented.)


Criminal Law


Roadblocks. Police may set up a roadblock to ask motorists if they have information about a recent accident at the same site. The 6-3 ruling held these stops are not an “unreasonable search.” (Illinois vs Lidster. Partial dissent by Stevens, Souter and Ginsburg)

Identification. Police who have reasonable suspicion to stop a pedestrian may require that he give his name. The 5-4 ruling rejected the idea that citizens have a right to remain silent. (Hiibel vs. Nevada. Rehnquist, O’Connor, Scalia, Kennedy and Thomas in the majority)

Sentencing. Judges acting alone may not increase a criminal sentence beyond the range set by law or sentencing guidelines. Juries must make these decisions, the court said in a 5-4 ruling that might have an effect on thousands of cases. (Blakely vs. Washington. Opinion by Scalia, joined by Stevens, Souter, Thomas and Ginsburg)

Miranda warnings. Confessions may not be used in court if detectives decided to question a suspect first and warn him of his right to remain silent after he or she confesses. The 5-4 ruling called this police tactic a deliberate evasion of the Miranda ruling. (Missouri vs. Siebert. Majority was Souter, Stevens, Kennedy, Ginsburg and Breyer)


Police questioning. Police and prosecutors may use physical evidence, such as a gun, that they obtained by questioning a suspect without warning him of his rights. The 5-4 ruling drew a distinction between physical evidence and confessions. (U.S. v. Patane. Majority was Thomas, Rehnquist, O’Connor, Scalia, and Kennedy)

Vehicle inspections. Agents near the U.S. border may stop vehicles and disassemble them to look for drugs even when they have no reason to suspect a particular motorist. The 9-0 ruling reversed the U.S. 9th Circuit Court in California. (U.S. vs. Flores-Montano).


Religion and Speech


Scholarships. A state may deny scholarship aid to a college student who is training to be a pastor without violating the First Amendment. The 7-2 ruling rejected a claim of religious discrimination. (Locke vs. Davey. Dissents by Scalia and Thomas)

Pledge. The words “one Nation, under God” may remain in the Pledge of Allegiance because a California atheist, who did not have custody of his daughter, did not have a legal right to challenge what was said in her school. The 5-3 decision did not finally decide the issue. (Elk Grove Schools vs. Newdow. Stevens, Kennedy, Souter, Ginsburg and Breyer in the majority.)

Internet pornography. Prosecutors may not enforce a federal law that would make it a crime for commercial websites to display sexually explicit material that children could see. The 5-4 ruling says this law appears to violate free-speech guarantees. (Ashcroft vs. ACLU. Majority was Kennedy, Stevens, Thomas, Ginsburg and Breyer)




Mexican trucks. The president, enforcing the North American Free Trade Agreement, can open the way for Mexican trucks to deliver goods throughout the U.S. without first assessing the effect on the environment. The 9-0 decision lifted a court order from California. (Department of Transportation vs. Public Citizen)

Clean air. Air-quality regulators in Southern California may not require owners of “fleet vehicles” to buy only clean-burning models. The 8-1 ruling said the Clean Air Act bars localities from setting “standards” for emissions. (Engine Manufacturers Assn. vs. South Coast Air Quality District. Dissent by Souter.)



Compiled by David G. Savage