There’s almost always a real human at the bottom of a Supreme Court case, but the justices’ work this week is notable for the number of easy-to-identify-with personalities whose names will be forever inscribed in law books.
Menachem Binyamin Zivotofsky will be making his second trip to the Supreme Court to present the justices with a major separation of powers case, and he hasn’t even had his bar mitzvah yet.
Florida fisherman John L. Yates is becoming the face of overzealous prosecution — he is protesting his conviction under the Sarbanes-Oxley Act, meant to target corporate giants such as Enron, but used against him for disposing of undersized grouper.
And former air marshal and whistleblower Robert MacLean would rather be somewhere else altogether — he won his case. But the government appealed, and so he’s bringing the wife and kids to Washington for a week of sightseeing even though he’s not optimistic about his fate.
“If their dad’s going to go down in flames, at least my kids should see it for themselves,” MacLean said in an interview last week.
As compelling as their personal stories may be, all three cases carry broader significance.
Zivotofsky’s case “is not really personal, it’s about thousands of others,” said lawyer Nathan Lewin, who represents the boy and his parents, Ari and Naomi Zivotofsky.
“I’m constantly told by people: ‘Your case is very important to me. It affects my son, it affects my grandson.’ ”
There are apparently some 50,000 people like Zivotofsky — born to American parents in Jerusalem. At least some of them want to take advantage of the option that Congress offered them in 2002: that they could list “Israel” as their birthplace on passports instead of simply “Jerusalem.”
But President George W. Bush and President Obama have contended that Congress doesn’t have that power. The official U.S. policy is neutrality over the issue of national sovereignty of the holy city, the administrations have argued, and any such change can be made only by the executive branch
The case started as M.B.Z v. Powell, as in former secretary of state Colin Powell, and has rolled through enough personnel changes in Foggy Bottom that it is now Zivotofsky v. Kerry.
When the case got to the Supreme Court three years ago, the issue was whether the judiciary could even settle the dispute, or whether it was a “political question” that the executive and legislative branches must hash out.
The court ruled 8 to 1 that the judiciary should settle the matter and sent it back to lower courts. An appeals court ruled for the administration, and now the case is back before the justices.
In the fishing captain’s case, the court will be deciding whether part of Sarbanes-Oxley — prohibiting destruction of “any document, record or tangible object” meant to impede a federal investigation — applies to fish.
A U.S. Fish and Wildlife Service officer who had boarded Yates’svessel told him to keep what appeared to be undersized red grouper as evidence that Yates had violated commercial fishing laws. But some of the fish went missing, and the government and lower courts said they met the definition of “tangible object.”
Yates was convicted, but his case has attracted many who believe his is a case of the “overcriminalization” of life’s misdemeanors. Among his supporters: former Ohio Republican congressman Michael G. Oxley, whose name is on the act.
Oxley said the court should find that the destruction prohibition “applies to business records and ‘tangible object[s]’ that store such records, like hard drives and CD-ROMs. Not fish.”
But the government says that if Yates’s prosecution seems too much, the bigger picture is that a federal law against destroying evidence was long-sought and happened to be placed in Sarbanes-Oxley.
“The government has used these provisions to prosecute the destruction of a wide array of physical evidence — including human bodies, bloodstains, guns, drugs, cash and automobiles — in order to cover up offenses ranging from terrorism . . . to violations of environmental and workplace-safety laws,” Solicitor General Donald B. Verrilli Jr. told the court in a brief.
MacLean’s case also pits an individual against the government.
In 2003, he was an air marshal who said he was alarmed by a Transportation Security Administration decision to cut back on overnight trips for undercover officers because of budget constraints.
MacLean said he went to his boss, who told him to keep quiet. Instead, he leaked the information to a reporter for MSNBC. Congress was outraged by the report, and the Department of Homeland Security canceled the order within 24 hours, calling it “premature and a mistake.”
Three years later, MacLean’s identity as the leaker was discovered after he appeared on television in an inadequate disguise, and he was fired.
The U.S. Court of Appeals for the Federal Circuit said MacLean should be able to fight his firing by arguing that he is protected by whistleblower laws and that his disclosure had not been “specifically prohibited by law.”
But the government contends it is enough that MacLean’s leaks violated regulations passed by the agency, and that the lower court’s ruling “effectively permits individual federal employees to override the TSA’s judgments about the dangers of public disclosure.”
MacLean has attracted a number of supporters, including the U.S. Office of Special Counsel, an independent agency charged with looking out for federal employees who are whistleblowers.
MacLean said he is now a door-to-door salesman in California, hawking solar power and water-purification systems. Not surprisingly, he is deeply interested in the court and reads everything about his case.
That does not always give him comfort.
He said he recently read a Washington Post story about Supreme Court enthusiasts on the Internet and discovered FantasySCOTUS, a site where people predict the outcome of cases.
“All of these law students are picking me to lose 9 to 0,” he said.