by Richard Prior
Staff Writer
The U.S. Supreme Court will be treading on historic ground this summer as it weighs the security of the nation with the rights of suspects, keeping in mind that the Constitution “is not a suicide pact.”
How appropriate a topic that is for the celebration of Law Week, Judge Kenneth Starr, the former Whitewater prosecutor, told the Jacksonville Bar Association on Monday.
Starr was the keynote speaker before a full house at the annual Law Day luncheon, held this year at the Adam’s Mark Hotel.
This is not the first time the Supreme Court has been asked to weigh Administration decisions made during periods of “national stress,” Starr said.
Most conspicuous were the Alien & Sedition Acts; Abraham Lincoln’s suspension of habeas corpus three times during the Civil War; the U.S. Espionage Act of 1917, by which more than 2,000 opponents of World War I were imprisoned; and the internment of more than 110,000 Americans of Japanese descent during World War II.
Past decisions, however, give no clue to what the court will do in the cases of Yasser Hamdi and Jose Padilla, Starr said.
Though the internment of Japanese-Americans “was widely viewed as unconstitutional,” the court upheld it, largely based on security concerns.
Lincoln’s suspension of habeas corpus, on the other hand, was deemed unconstitutional.
Starr declined to “get into a commentary” about what this Supreme Court will decide by June.
“Whatever I say will be overtaken by the decision,” he said. “The broader point is the court wrestles with these issues. And, as not infrequently happens, we have determined in retrospect that the court got the answer wrong.
“And that’s very important to be open to the possibility that the court may have struck the balance in the wrong way.”
Before Starr’s speech, JBA president Jim Moseley Jr. presented two special awards.
The Public Good Champion Award went to Mills & Carlin, who won the Pro Bono Service Competition established by the 4th Judicial Circuit’s Pro Bono Committee.
Receiving the award was John Mills.
The Liberty Bell Award is presented by the JBA each year to a non-lawyer for outstanding public service. The board of governors selects a person who has promoted a system of justice and respect for the law and the courts, stimulated a sense of civic responsibility and contributed to good government in the community.
This year’s award went to Deborah Gianoulis for her documentary “Reading Minds.”
The documentary dealt with the “profound reading difficulties” among teenagers who break the law and examined some possible solutions.
For her continuing work to reduce illiteracy, Circuit Court Judge Karen Cole was presented the Daily Record’s Lawyer of the Year award by publisher Jim Bailey.
“This year’s recipient exemplifies the qualities of advocacy, professionalism and public service . . . without sacrificing the ideals of professionalism,” said Bailey.
The main speaker was introduced by former Chief Judge Gerald Tjoflat of the U.S. Court of Appeals, who said, “Ken Starr is a man for all seasons. He’s also a man who can stand the heat in the kitchen.”
The cases of Hamdi and Padilla will present the court with two ground-breaking scenarios.
Padilla, an American citizen, was arrested at Chicago’s O’Hare Airport for allegedly planning to detonate a radiological weapon. Though charged with a crime, he has only briefly been allowed to see his lawyer.
When Hamdi, armed with an AK-47, was arrested in Afghanistan, he told his American captors that he was born in Shreveport, La., of Saudi parents. He has been detained in Norfolk, Va., though he still has not been charged with a crime.
The importance of the court’s decisions in these cases, Starr suggested, may lie as much in the dissents as in whatever the majority decisions are. He suggested as much when citing the works of Louis Brandeis, Benjamin Cardozo and Oliver Wendell Holmes Jr., with whom the “grand tradition” of dissent began.
“Holmes was so frequently in dissent,” said Starr. “So dissent should not be dismissed.
“They may not ever be the majority view, but it’s very important to take into account those who are in dissent.”