January 25th, 2021

At the High Court

Ruling virtually, Supreme Court decides cases on capital punishment, discrimination and copyright

 Robert Barnes

By Robert Barnes The Washington Post

Published March 24, 2020

WASHINGTON - Ruling from a virtual bench, the Supreme Court on Monday decided that states may eliminate a widely accepted form of the insanity defense for criminal defendants, that a minority entrepreneur faces a higher hurdle to prove discrimination on the part of media giant Comcast and that states may not be sued for copyright infringement.

With the public barred from the court because of concerns over the coronavirus, the justices stayed away as well. For apparently the first time since handing down its December 2000 opinion in Bush v. Gore, the justices did not take the bench to issue rulings in cases argued earlier in the term.

Instead, opinions were published online in five-minute intervals.

The justices have indefinitely postponed oral arguments in a round of cases that was supposed to begin Monday. On Friday, Chief Justice John Roberts was alone at the justices' private conference table while the rest participated by teleconference, the court's public information office said.

Still to be determined is when or if oral arguments will be scheduled in the remainder of accepted cases, including President Donald Trump's challenges to subpoenas from congressional committees and a prosecutor for copies of his financial records. Oral arguments are a tradition, but not a requirement

The court did not grant any new cases for next term on Monday, and its decisions came in cases that were argued in the fall.

The court ruled 6 to 3 that Kansas is not constitutionally required to compel the acquittal of a defendant because mental illness prevents him from telling right from wrong.

Justice Elena Kagan departed from her usual liberal colleagues and joined conservatives in upholding the Kansas law, and Roberts assigned her the court's majority opinion.

"Defining the precise relationship between criminal culpability and mental illness involves examining the workings of the brain, the purposes of the criminal law, the ideas of free will and responsibility," Kagan wrote, and should be "open to revision" as new medical knowledge emerges and legal and moral norms evolve.

"Which is all to say that it is a project for state governance, not constitutional law," she concluded.

Most states allow a defendant to avoid conviction if he can prove he lacked the required intent to commit a crime, and also if he can show mental illness prevented him from seeing the act was morally wrong. Kansas eliminated the second option, although a convicted defendant can make such a showing at sentencing to avoid a tough sentence or even be admitted to a mental institution instead of imprisoned or put to death.

"Kansas's scheme does not abolish the insanity defense," Kagan wrote, and therefore the court's dissenters are wrong "to suggest that Kansas's law has become untethered from moral judgments about culpability."

The decision came in what Kagan called a "terrible crime." James Kraig Kahler killed four family members, including his estranged wife and two teenage daughters, in 2009. His lawyers said severe depression over the breakup of his marriage rendered him incapable of forming the intent necessary to convict him of capital murder.

But Kansas did not allow such a defense, and the state also pointed out Kahler was aware enough to spare his son, who he thought had not sided with his mother in the divorce. Kahler was convicted and sentenced to death.

Along with Roberts, Kagan was joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh.

Justice Stephen Breyer dissented, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Kansas, Breyer wrote, "eliminated the core of a defense that has existed for centuries: that the defendant, due to mental illness , lacked the mental capacity necessary for his conduct to be considered morally blameworthy."

Breyer offered a hypothetical involving two people: a mentally ill defendant who killed a person because he believed the victim was a dog, and one who killed someone because he believed a dog told him to do it.

"Now ask, what moral difference exists between the defendants in the two examples?" Breyer wrote. "Assuming equivalently convincing evidence of mental illness, I can find none at all."

The case is Kahler v. Kansas.

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In the Comcast case, the court said comedian Byron Allen must allege that his entertainment company would have received a contract if not for racial bias on the part of the media company.

The U.S. Court of Appeals for the 9th Circuit had agreed with Allen that the suit by his Entertainment Studios Network could move forward just on credible allegations that race was an issue in Comcast's decision-making, at least in filing the complaint.

Allen filed his $20 billion lawsuit against Comcast after years of unsuccessful negotiations to carry the channels of his company. Comcast has said it based its decision on "insufficient consumer demand" for the network's programs, but Allen contends that Comcast has constantly shifted its reasoning and made comments that he interpreted as involving his race.

Allen sued under Section 1981 of the Civil Rights Act of 1866, which says "all individuals within the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by its white citizens."

Gorsuch, writing for the court, said Allen needed to show that race was the reason for the Comcast decision, as is the case in other kinds of discrimination cases. To read the law otherwise would "require more than a little judicial adventurism, and look a good deal more like amending a law than interpreting one."

The court sent the case back to the lower court, without an indication of whether Allen would be able to make such a showing.

Allen and civil rights groups said the court was making it harder to press discrimination claims. The court "has rendered a ruling that is harmful to the civil rights of millions of Americans," Allen said in a statement.

Comcast countered: "The nation's civil rights laws have not changed with this ruling; they remain the same as before the case was filed. We now hope that on remand the 9th Circuit will agree that the district court properly applied that standard in dismissing Mr. Allen's case three separate times."

The case is Comcast Corp. v. National Association of African American-Owned Media.

In Allen v. Cooper, the court ruled against filmmaker Frederick Allen, who wanted to sue North Carolina for use of his copyrighted videos of the submerged shipwreck of the pirate Blackbeard's Queen Anne's Revenge.

But all members of the court agreed with the bottom line in Kagan's opinion that the state was protected by sovereign immunity and could not be sued for copyright infringement.