Supreme Court

Derecho Constitucional / Constitucional Law

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Brazil Supreme Court criminalizes homophobia and transphobia           

Source: Jurist

June 14, 2019

Brazil’s Supreme Federal Tribunal voted on Thursday to criminalize homophobia and transphobia.

In an 8-3 decision, the court approved a three-point thesis holding that LGBTQ discrimination should be understood to fall within the nation’s prohibition against racism until the National Congress can issue a law specifically addressing this matter. Brazil’s legislature outlawed racism in 1989 with prison sentences of up to five years. The court stipulated certain limits to their decision, holding that the criminalization of homophobia cannot restrict the free exercise of religion, as long as it does not constitute hate speech.

Justice Gilmar Mendes, who voted with the majority, believed the court’s decision was necessary because of persistent violence against LGBTQ people in Brazil, noting that Brazil’s constitution protects the fundamental rights and freedoms of minorities. Likewise, Justice Cármen Lúcia noted that given the high number of homicides and hate crimes against LGBTQ people in Brazil, the legislature’s unwillingness to act was unconstitutional, stating that “[t]he protection of fundamental rights must be full, so that the Constitution does not become a mere sheet of paper.”

In a dissenting opinion, Justice Ricardo Lewandowski expressed his unwillingness to effectively legislate on behalf of Congress, noting that, under Brazil’s constitution, only the legislature has the authority to add to the criminal law.

President Jair Bolsonaro, an evangelical Christian, strongly criticized the court’s decision in a speech on Thursday calling for more evangelical Christian representation on the court.

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Derecho Constitucional / Constitucional Law

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US Supreme Court allows Virginia Uranium mining ban to stand            

Source: Jurist

June 17, 2019

-United States-

 On Monday, the Supreme Court of the United States decided that the Atomic Energy Act (AEA) does not preempt Virginia Law from prohibiting the mining of Uranium. The Supreme Court, in a 6-to-3 plurality judgment, sidedwith the State of Virginia’s right to regulate the Uranium industry.

“But both courts found missing from the AEA any hint that Congress sought to strip States of their traditional power to regulate mining on private lands within their borders. Given the significance of the question presented, we granted review.”

Justice Gorsuch, writing for the plurality with 3 votes, stated that while AEA has provisions for the mining of Uranium on federal land, it is silent on the mining of Uranium on private lands and only triggers after the Uranium has been mined. Justice Gorsuch reinforces the majority view saying that Congress was clearly aware that Uranium might be capable of being mined on private land, and must have purposely left it to the States to resolve. Gorsuch also dismisses any potential need for Uranium by the federal government citing that 90% of US Uranium needs are filled through importation and if there was a need for this specific mine, the federal government could always purchase the land or seize it by eminent domain at that time.

Justice Ginsburg carried the other 3 votes of the plurality and affirmed in the judgment, but would have affirmed only on the rationality that the state law in question does not conflict with the AEA because it regulates only private mining within the boundaries of a particular state. Justice Ginsburg further notes that Virginia’s law conforms to existing Supreme Court precedent regarding federal preemption.

Chief Justice Roberts writes for the dissent and argues that the only question that should have been addressed is whether a state can regulate an industry through non-preempted means as a way of preventing the development of industries which are preempted. Under this question, Chief Justice Roberts would have denied Virginia’s law.

The case came from the rural community of Pittsylvania County that has historically suffered from the collapse of many of it’s industries. Environmentalists have applauded the holding from the Supreme Court.

Derecho Constitucional / Constitucional Law

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Oklahoma Supreme Court strikes down state law restricting drug-induced abortion    

Source: Jurist

May 1, 2019

-United States-

Oklahoma’s Supreme Court on Tuesday ruled that a state law that restricts access to drug-induced abortions unconstitutional.

The decision overturns a 2014 state law that banned “off-label” use of mifepristone, a medication used for abortions, also referred to as RU-486, which made Oklahoma the only state to have such a ban. The statute required physicians to comply with the Food and Drug Administration’s earlier label protocol for medically terminated pregnancies rather than an updated protocol introduced in 2016.

The Center for Reproductive Rights filed suit over the law in September 2014, and a state court blocked it in November 2017. The state then appealed the decision to the high court, which upheld the lower court’s decision Tuesday after previously allowing it to stay in place in 2016 to allow the lower-court litigation to proceed.

The state Supreme Court ruled 7-1 that the requirement “places a substantial obstacle in the path of a woman’s choice and imposes an undue burden on the woman’s rights.” Autumn Katz, Senior Counsel at the Center for Reproductive Rights, characterized the decision as a “critical victory for Oklahoma women and their doctors.” Katz praised the court for placing “science over politics.”

The advocacy group notes that “Oklahoma is already one of the most restrictive states in the country in terms of abortion access.” Since 2011, Oklahoma has passed more than 20 bills restricting access to abortion and other reproductive health care. Recently, Oklahoma enacted SB 614, a bill that requires abortion clinics to post signage that claims it may be possible to “reverse” a medication abortion, and the legislature is currently considering SB 195, a constitutional amendment stating that the Oklahoma constitution does not protect the right to abortion.

Derecho Administrativo /Administrative Law

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Supreme Court rules Alaskan river not under purview of National Park Service             

Source: Jurist

March 26, 2019

-United States-

The US Supreme Court ruled Tuesday that rivers that pass through national parks in Alaska are not federally owned and therefore not subject to the jurisdiction of the National Park Service (NPS).

John Sturgeon, a resident of Alaska and avid moose hunter, was stopped by Park Service rangers for piloting his hovercraft along a section of the Nation River that passes through the Yukon-Charley Preserve, a large wilderness conservation area in rural Alaska. Sturgeon had been following the same route to his preferred hunting location for more than four decades and soon after filed suit alleging that the NPS had no jurisdiction over the Alaskan river under the terms of the Alaska National Interest Lands Conservation Act (ANILCA) and could not prohibit him from piloting his hovercraft along the waterway.

In a unanimous decision, the Supreme Court agreed with Sturgeon. Justice Elena Kagan, writing the opinion, stated that the Nation River was not owned by the US and therefore could not be subject to the rules of the NPS because of the “unique situation of land in Alaska.” Though the ANILCA granted millions of acres of land to the federal government for national parks and monuments, that land did not include the waterways, which were instead granted to the state of Alaska under the Submerged Lands Act. Because the NPS only had jurisdiction over the land, they could not enforce their prohibition against hovercraft on the river in Alaska.

Kagan noted that today’s decision solely affects lands in Alaska, which is “the exception, not the rule” due to the unique way the land grants in Alaska were issued after the territory achieved statehood.

Derechos Humanos / Human Rights

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Supreme Court rules certain immigrants do not have right to bond hearing       

Source: Jurist

March 19, 2019

-United States-

The US Supreme Court ruled Tuesday in Nielsen v. Preap that immigrants who have committed certain crimes are not entitled to a bond hearing and once detained can be held in federal custody until their removal proceedings are resolved.

In an opinion by Justice Samuel Alito, the Supreme Court overturned two Ninth Circuit decisions (Preap v. Johnson and Khoury v. Asher) that held that aliens who were not immediately detained upon release from criminal custody were entitled to a bond hearing.

This class action suit arose under 8 USC § 1226, known as the “mandatory detention provision” of the Immigration and Nationality Act. This provision, in relevant part, mandates that “the Attorney General shall take into custody any alien who … is deportable by reason of having committed any offense covered in section … when the alien is released.”

Plaintiffs, mostly green-card holders, argue that, because they were not immediately taken into custody upon completing their sentences, they are not covered by the mandatory detention provision. Many of the plaintiffs lived and worked in the US for years upon release and argue that they should be considered for bond release, rather than detention, while their removal orders are being processed.

The court’s majority disagreed, finding more persuasive the Trump administration’s argument that the government’s duty to detain aliens who have committed certain crimes is not abrogated if the government fails to detain the individual immediately upon release. In closing his opinion, Alito emphasized that the court did not consider the constitutionality of the mandatory detention provision because that question was not brought by the plaintiffs in this case.

In a brief concurrence joined by Justice Neil Gorsuch, Justice Clarence Thomas wrote that various statutes limit judicial review in this cases, noting that the Districts Courts likely did not have jurisdiction.

Justice Stephen Breyer, in a dissent joined by Justices Elena Kagan, Ruth Bader Ginsberg and Sonia Sotomayor, focused primarily on the statute’s text, finding that:

The language of the statute will not bear the broad interpretation the majority now adopts. Rather, the ordinary meaning of the statute’s language, the statute’s structure, and relevant canons of interpretation all argue convincingly to the contrary.

In announcing his dissent, Breyer also cited concerns with the powers the majority’s opinion grants to the government: “It is a power to detain persons who committed a minor crime many years before. And it is a power to hold those persons, perhaps for many months, without any opportunity to obtain bail.”

Derecho Constitucional / Constitucional Law

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Supreme Court orders lower court to determine competency of death row inmate with dementia      

Source: Jurist

February 27, 2019

-United States-

The US Supreme Court on Wednesday ordered a new state court hearing to determine whether an Alabama death row inmate battling dementia is incompetent to be executed.

The justices ruled 5-3 in favor of inmate Vernon Madison, who was sentenced to death for killing a police officer in 1985. While awaiting execution, Madison suffered a series of strokes and was diagnosed with vascular dementia. The justices have previously said the constitutional ban on cruel and unusual punishment means that people who are insane, delusional or psychotic cannot be executed.

In 2016 Madison petitioned for a stay of execution on the ground that he was mentally incompetent, as he failed to remember committing the crime for which he was sentenced to die. The state responded that even if Madison could not remember the crime, he has a rational understanding of the reasons for his execution.

In its ruling, the Supreme Court confirmed that the Eighth Amendment “may permit executing Madison even if he cannot remember the crime,” and that the Eighth Amendment may prohibit executing Madison even though he suffers from dementia, rather than delusions. Ultimately, “the sole question on which Madison’s competency depends is whether he can reach a ‘rational understanding’ of why the State wants to execute him.”

Justice Elena Kagan delivered the majority opinion. Justices Samuel Alito, Neil Gorsuch and Clarence Thomas dissented. Justice Brett Kavanaugh was not yet on the court when arguments took place in early October.

Derecho Constitucional / Constitucional Law

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Canada Supreme Court allows non-resident citizens to vote    

Source: Jurist

January 11, 2019

The Supreme Court of Canada on Friday struck down a restrictive law that prevented Canadian citizens living outside the country from casting ballots in national elections.

The question before the court revolved around a section of the Canada Elections Act that stated that citizens of Canada have the right to vote as long as they have “been absent from Canada for less than five consecutive years.” This section of the law had the effect of disenfranchising more than a million and a half Canadian citizens who lived outside the country for five or more years, including Gillian Frank and Jamie Duong, two Canadian citizens who teach at universities in the US. The two sued the Canadian government after being barred from voting in the election of 2011, alleging that the five-year limitation was “arbitrary” and blocking their right to vote was unconstitutional. The Canadian government argued that the limitation of voting rights was justified under Section 1 of the Canadian Charter, which allows for constitutional rights to be curtailed in a “reasonable” and “minimally impairing” manner if there is a strong policy reason for doing so.

In its 5-2 decision, the Supreme Court of Canada agreed with Frank and Duong. In the judgment, Chief Justice Richard Wagner stated that the government’s invocation of Section 1 of the Charter “must be carefully scrutinized and cannot be tolerated without a compelling justification.” Without a clear and reasonable policy reason for limiting the rights of non-resident citizens, the court felt that the government’s use of Section 1 to justify the five-year residency limitation on the right to vote of the Charter was improper. “Voting is the cornerstone of our democracy,” Wagner stated, going on to write that “denial of the fundamental right to vote, in and of itself, inflicts harm on affected citizens.” The two dissenting judges stated, however, that the five-year limitation was justifiable, writing that “a five-year time period falls within the range of reasonable options that were open to Parliament, and it is not this Court’s prerogative, let alone within this Court’s expertise, to second-guess the precise location at which Parliament chose to draw the line” in their dissent.