‘Jerusalem’ or ‘Israel?’ Supreme Court case raises trove of constitutional questions

But the Zivotofskys’ request to change Menachem’s passport to say his birthplace is “Israel” rather than simply “Jerusalem” has met firm resistance from the State Department.

“The status of Jerusalem is one of the most sensitive and long-standing disputes in the Arab-Israeli conflict,” the government said in its brief to the court. It is not one in which the United States has been willing to choose sides.

Over the objection of the Obama administration, the Supreme Court last week agreed to review the long-running dispute over Menachem’s passport. The slim petition filed by veteran Supreme Court practitioner Nathan Lewin manages to pack in a trove of constitutional questions for argument next fall.

It raises a broad separation of powers question about Congress’ power to influence the nation’s foreign policy. It broaches the question of when courts may get involved in settling such disputes between the legislative and executive branches. And it even touches on the unsettled question of presidential “signing statements,” in which the president signs a bill while declaring he will ignore parts he considers unconstitutional.

U.S. recognition of Jerusalem is a perennial question for American politicians, but one that American diplomats consider best left for negotiations between Israeli and Palestinian officials. Israel has had control of the once-divided city since the 1967 war, and considers it the capital; the United States maintains its embassy in Tel Aviv.

In 2002, Congress passed a provision in a broader foreign relations act that said Americans born in Jerusalem could request that official documents recognize their birthplace as “Israel.”

President George W. Bush signed the law, but said in a signing statement that U.S. policy regarding Jerusalem had not changed. The provision, he said, would “impermissibly interfere with the president’s constitutional authority to formulate the position of the United States, speak for the nation in international affairs and determine the terms on which recognition is given to foreign states.”

Not long after, Ari and Naomi Zivotofsky, Americans who moved to Israel in 2000, had a baby boy in a hospital in West Jerusalem. Naomi Zivotofsky’s request that her son’s Consular Report of Birth Abroad and his passport list the country of his birth as Israel were denied.

The Zivotofskys sued, but a district judge in Washington dismissed the case, saying it “raises a quintessential political question which is not justiciable by the courts.”

A panel of the U.S. Court of Appeals for the D.C. Circuit agreed. But Senior Judge Harry T. Edwards disagreed, saying the court should have moved on to hear the merits of the arguments. The case, he said, “raises an extraordinarily important question” that “calls into question the role of a federal court in our system of justice.”

(Edwards’ bottom line, though, is of little help to the family: he concluded that while the court should have considered the case, he would have found the 2002 congressional language unconstitutional because it “impermissibly intrudes on the president’s exclusive power to recognize foreign sovereigns.”)

Lewin is encouraged that the Supreme Court asked for a briefing on both questions — whether the courts should hear the case and whether Congress’ actions were unconstitutional.

He believes the D.C. Circuit Court got it wrong. He said the Zivotofskys are not asking the courts to decide a matter of foreign policy, but simply to enforce a law that Congress has passed and the president has signed.

The circuit court’s refusal to even hear the merits of the suit is an “abdication of the court’s duty to determine the lawfulness of governmental conduct that affects the rights of individual citizens,” Lewin said in his brief.

Ari Zivotofsky, a neuroscience researcher at an Israeli university, said he and his wife were aware they were testing the law with their request, “but I can’t say I expected it would end up at the Supreme Court.”

But he said it is important “really for the same reason we moved here — to live in the state of Israel.” He added: “Jews for thousands of years prayed daily to be able to go to Jerusalem.”

The case is M.B.Z. v. Clinton and will be heard in the court’s next term.

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Supreme Court orders California to free prisoners (AFP)

WASHINGTON (AFP) – The US Supreme Court ordered California Monday to free thousands of prisoners, saying chronic overcrowding violated inmates' rights.

But one dissenting judge on the top US court warned the ruling was "outrageous" and California said it was disappointed, while tensions in its jails was underlined by a second prison riot in days.

In a narrow 5-4 majority ruling upholding a lower court's decision, the top US court said the release is the only way to address the constitutional violation of cruel and unusual punishment.

"This case arises from serious constitutional violations in California's prison system. The violations have persisted for years. They remain uncorrected," Justice Anthony Kennedy wrote.

Cash-strapped California has for some years had a problem with prison overcrowding: the western US state has some 148,000 inmates housed in 33 jails designed for some 80,000 people, according to its own figures.

Kennedy said that although the state has reduced the population by at least 9,000 during the appeal process, the decision "means a further reduction of 37,000 persons could be required."

"The state may employ measures, including good-time credits and diversion of low-risk offenders and technical parole violators to community-based programs, that will mitigate the order's impact. The population reduction potentially required is nevertheless of unprecedented sweep and extent."

The order "leaves the choice of means to reduce overcrowding to the discretion of state officials," the ruling read.

"But absent compliance through new construction, out-of-state transfers or other means... the state will be required to release some number of prisoners before their full sentences have been served."

But in a dissenting view, Justice Antonin Scalia said the ruling could translate to the release of 46,000 criminals.

"One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this court would bend every effort to read the law in such a way as to avoid that outrageous result," he added.

He warned that "terrible things (were) sure to happen as a consequence of this outrageous order."

California Department of Corrections and Rehabilitation (CDCR) Secretary Matthew Cate said the state needs more time to ease its overcrowding problem, calling for the "establishment of more appropriate timeframes, if necessary."

"It is disappointing that the court did not consider the numerous improvements made in health-care delivery to inmates in the past five years, as well as the significant reduction in the inmate population," he said.

In August 2009, three federal judges ordered 40,000 prisoners freed within two years. Late last year, California appealed to the top US court to annul the ruling, warning that the freed prisoners could endanger public safety.

The ruling came after at least two inmates were stabbed Friday when some 150 prisoners rioted at a maximum security prison in the state capital Sacramento. Guards used pepper spray and fired a live round of ammunition to regain control.

On Sunday evening, a riot broke out in the dining hall at San Quentin prison, leaving inmates injured with slash and stab wounds, according to prison spokesman Sam Robinson cited by local media.

Dissenting Judge Scalia wrote that the vast majority of inmates who may be affected "do not form part of any aggrieved class even under the Court's expansive notion of constitutional violation."

"Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym," he added.

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Supreme Court says arbitration agreements can ban class-action efforts

Business interests praised the 5 to 4 decision in AT&T Mobility v. Concepcion as a recognition that class-action efforts can defeat the purported advantage of arbitration: quick and efficient settlement of consumer complaints.

AT&T said in a statement that its arbitration program is “free, fair, easy to use and consumer friendly.”

But consumer and public interest groups said the decision is another example of the court under Chief Justice John G. Roberts Jr. — “the Corporate Court,” one group called it — siding with big business.

Deepak Gupta, who argued the case on behalf of cellphone customers Vincent and Liza Concepcion, called the ruling a “crushing blow to American consumers and employees” and said it leaves consumers powerless against arbitration agreements buried in fine print.

“Whenever you sign a contract to get a cell phone, open a bank account or take a job, you may be giving up your right to hold companies accountable for fraud, discrimination or other illegal practices,” Gupta, a lawyer with the public interest group Public Citizen, said in a statement.

The case raised a different class-action issue than the one the court is considering in a discrimination class-action lawsuit brought by female employees of Wal-Mart, which was argued last month.

At issue in Wednesday’s ruling was a California law that does not allow bans on class-action efforts in arbitration or litigation.

But Justice Antonin Scalia, writing for the majority, found the law — similar to ones in 18 states — at odds with the 1925 Federal Arbitration Act, whose “overarching purpose,” he said, was to “facilitate streamlined proceedings.”

He added: “Requiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.”

He was joined by the court’s most consistent conservatives: Roberts and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

Justice Stephen G. Breyer dissented along with the court’s other liberals, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Breyer said that the majority had turned its back on states’ rights and that California’s law “is of no federal concern so long as the state does not adopt a special rule that disfavors arbitration.”

The Concepcions signed up with AT&T Mobility in 2002, taking advantage of a deal for a Motorola cellphone and a free Nokia. But the couple complained that the company charged them $30.22 in sales tax and other fees for the “free” phone.

The couple filed a federal lawsuit, seeking class-action treatment. The company responded that the contract they had signed banned class-action efforts in arbitration and litigation.

A federal district judge and the U.S. Court of Appeals for the 9th Circuit disagreed. They cited a ruling from the California Supreme Court that said complete bans on class-action efforts were “unconscionable” because of the disproportionate power of the company.

But Scalia said such a view conflicts with federal law. He said that although individual arbitration can be a fast and efficient transaction for small claims, the situation is different for a class of claimants.

Arbitration offers less appellate review, and defendants are less likely to participate when faced with a “devastating loss.”

“Arbitration is poorly suited to the higher stakes of class litigation,” Scalia said.

Breyer countered that settling a class of complaints was more efficient than thousands of separate proceedings.

And he said that requiring each complaining customer to go through the process would most likely discourage participation and draw little attention from lawyers willing to help.

“What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim?” Breyer wrote.

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