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Supreme Decisions

Criminal evidence, voting rights, and presidential authority: three critical issues on the Supreme Court's docket this term

By Adam Liptak in Washington, D.C.

Criminal Evidence

When Bennie D. Herring went to an Alabama police station to collect some things from his impounded truck in July 2004, a cop recognized him and started calling around to see if there were any outstanding warrants for his arrest. A neighboring police department said there was indeed a warrant, so the officers set off in pursuit of Herring.

The police pulled him over, arrested him, and then found both methamphetamines and a gun. It was soon discovered, however, that the arrest warrant had been revoked, but the computer database had not been updated.

The resulting case, Herring v. United States, focused on whether evidence obtained through police error can be used in court. It was the most important criminal-procedure case before the Supreme Court this year, and in January, the Court ruled that such evidence is, in fact, admissible.

The 5-to-4 decision substantially narrows the so-called "exclusionary rule," which since 1961 had required the suppression of all evidence obtained through police misconduct or error, regardless of intent.

Chief Justice John G. Roberts Jr., writing for the majority, said that the exclusion of evidence should be a last resort and that judges should use a sliding scale in deciding whether particular misconduct by the police warranted suppressing the evidence they had found. (This is the approach used in places like Canada, Australia, and the European Union.)

"To trigger the exclusionary rule," Roberts wrote, "police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system."

That price, the Chief Justice wrote, "is, of course, letting guilty and possibly dangerous defendants go free." Justice Ruth Bader Ginsburg, writing for the dissent, argued that the exclusionary rule protects defendants' rights and prevents judicial complicity in "official lawlessness."

The ruling could have broad consequences, says Craig M. Bradley, a law professor at Indiana University. "It may well be," he says, "that courts will take this as a green light to ignore police negligence all over the place."

Voting Rights

Is a measure designed to protect against discrimination at the polls still relevant? That's the question the Supreme Court is considering in a case that seeks to end a central provision of the Voting Rights Act of 1965.

The Court will determine whether nine states (and additional localities in seven other states) with a history of discrimination against blacks and other minorities will still need to get permission, or "pre-clearance" from the federal government before making any changes that affect voting.

The plaintiff in the case, a Texas municipal utility district, argues that the requirement is no longer necessary after more than four decades of progress toward racial equality that culminated in the 2008 election of the nation's first black President.

The Court's decision in the case, Northwest Austin Municipal Utility District Number One v. Mukasey, may have significant consequences for elections in 16 states.

"This could be the biggest election-law case on the Court's docket since Bush v. Gore," says Richard L. Hasen, a professor at Loyola Law School in Los Angeles, referring to the ruling that effectively decided the outcome of the 2000 election between Al Gore and George W. Bush.

The pre-clearance requirement applies to nine states—Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia—and to scores of counties and municipalities in other states that Congress found had a history of discrimination at the polls.

Critics of the law call the pre-clearance requirement a federal intrusion on state sovereignty and a badge of shame for the affected jurisdictions that is no longer justified.

The pre-clearance requirement was upheld by the Supreme Court in 1966 as a rational response to the often illegal conduct of Southern officials intent on "perpetuating voting discrimination in the face of adverse federal court decrees." Prior to the Voting Rights Act, many blacks in the South were forced to pay poll taxes or pass literacy tests before being allowed to vote.

Congress has repeatedly extended the pre-clearance requirement, which was originally set to expire after five years. Congress renewed the act most recently in 2006 after holding extensive hearings on the persistence of racial discrimination at the polls, again extending the pre-clearance requirement for 25 years.

The lawsuit challenging the requirement was brought by a municipal utility district in Austin, Texas, established in the late 1980s. The district says it had never been accused of voting discrimination and should not have to ask for federal permission to make changes in voting procedures.

The ruling in this case could also give a clearer picture of the Roberts Court and how it will treat race issues. Chief Justice John G. Roberts Jr. opposed efforts to expand the voting rights law in 1982 as a young lawyer in the administration of Ronald Reagan and has expressed skepticism on the Court about racial classifications made by the government.

Presidential Authority

The Bush administration said Ali al-Marri was an Al Qaeda "sleeper agent" sent to the United States to commit mass murder. Al-Marri, a citizen of Qatar, was legally in the U.S. when he was arrested in December 2001 in Peoria, Ill., where he was living with his family and studying computer science.

Al-Marri, who says he is innocent, has been challenging his detention through the courts.

Last month, the Supreme Court erased a 2008 lower court ruling that had effectively allowed Al-Marri's detention and significantly expanded the power of the President to indefinitely detain terrorism suspects. The Supreme Court's action, which had been urged by the Obama administration, wiped away one of President Bush's greatest legal victories.

The decision to erase the lower court decision came just after the Obama administration filed charges against Al-Marri in federal court. Al-Marri, who remains in custody at the Navy brig in Charleston, S.C., had been held in isolation for more than five years without being charged.

Al-Marri's lawyer, Jonathan Hafetz, is pleased with the Justices' decision to undo the lower court ruling, which he says "should make clear that, in the United States, no President can imprison legal residents or American citizens without charges or trial by calling them 'enemy combatants.' "

Until now, the government has not provided any evidence to back up its charge that Al-Marri is an Al Qaeda sleeper agent; now it will have to do so in federal court.