Supreme Court's Term

[d-ray657]

A most interesting seminar today. Edwin Chermerinsky, Dean of the UC-Irvine Law School spoke on the Supreme Court’s just completed term. As directed by Mr. BHunter, here is my report.

The Supreme Court decided only 65 cases this year. That’s down from an average of around 160 per year in the ‘80s and 200 in the ‘50s. For those of us who aren’t particularly enamored with the leanings of this court, that is good news.

There were a couple of cases decided by the conservative majority that should be of some concern for our libertarian friends – or any friend of liberty.

One case found that police officers were entitled to immunity from civil liability when they completely ignored a homeowner’s denial of permission to search the house. The officers had been tipped that the woman’s son was planning to commit a violent act. The officers visited the house and both the mother and son denied that he had any weapons. The cops asked if they could take a look around the house and she said that they couldn’t without a warrant. They pushed her aside and searched the house – finding nothing. Their justification for conducting the search was that they expected the mother to consent to the search and, when she didn’t they became suspicious.

The family brought suit for violation of their Fourth Amendment Rights, but the Court ruled that the officers had qualified immunity because there was no case on the books that had found a Fourth Amendment violation under similar facts. The standard for qualified immunity is whether at the time of the Constitutional violation, the right was sufficiently established that a reasonable officer should have known that his conduct violated the Constitution. My question is, what reasonable officer would not know that it is illegal to conduct a warrantless search of a person’s home after the person has just denied permission to enter? Where does the castle doctrine fit in here?

The other case of concern is that an investigator was absolutely immune from liability for intentionally testifying falsely to three different grand juries to obtain an indictment against a citizen, when each indictment was thrown out. Does that sound like a police state to you?

A third decision was that prison guards in rent-a-jails are not subject to actions for civil rights violations. They are fulfilling an essential state function, but are not liable for violating the constitutional limitations on state power?

More in another post.

Regards,

D-Ray

[d-ray657]

The Dean also discussed the Arizona immigration decision. His initial comment was that he had never seen a case reported in the media as inaccurately as that one was. It was reported as a split decision. The Court ruled that Constitution preempts state attempts to regulate immigration. This was consistent with prior Supreme Court rulings. The Court upheld the trial court injunction on three of the four grounds:

1. The provision requiring all aliens to carry papers with them was unconstitional.
2. The provision making it a crime for undocumented workers to apply for jobs was unconstitutional.
3. The provision requiring officers to arrest persons believed to be here illegally was unconstititonal.

The court held that the officers can ask to see papers of persons believed to be here illegally, but they cannot arrest such persons for failing to produce such papers. State officers do not have the authority to arrest persons for violations of the immigration laws. That is solely within the jurisdiction of the feds. The Court also noted that if it is shown that if state police utilize their ability to ask for immigration papers in a discriminatory manner, they may be subject to civil liability.

That is not a mixed decision. It clearly upheld the authority of the federal government to maintain exclusive control over the enforcement of the immigration laws, and denied such authority to the states. The prison lobby has pushed legislation similar to the AZ law in several other states, and it now appears that all of those laws will be invalid.

Regards,

D-Ray

[d-ray657]

The Affordable Health Care Act case: The Dean was not surprised by the decision, but maybe by the author. He noted that the Court has consistently upheld social welfare statutes under the Congressional taxing power. He also noted that, although five justices were of the opinion that the Commerce Clause did not permit regulation of the decision not to engage in commerce, he did not see that as a legal precedent, because the ultimate decision was to uphold the statute.

He was also of the opinion that this term has transformed the court from the Kennedy Court to the Roberts Court, because on other opinions this term, Roberts had joined with the “liberal” bloc of the Court. He rejected the suggestion that Roberts was motivated by anything other than his interpretation of the law in reaching his decision. There was also a hint that the Scalia decision, which was joined by the other dissenting justices, was originally written as a majority opinion, but that the majority changed during deliberation over the result.

Finally, the Dean has an interesting prediction on the upcoming term. He expects both the Ninth Circuit decision on gay marriage and the Third Circuit’s decision on the DOMA to make it to the Court next term. He expects that Justice Kennedy will write the majority decision in both cases, upholding the right to gay marriage. The reason for his prediction is that Justice Kennedy would rather his legacy be that he was the author of the modern version of Brown v. Board of Education than Plessey v. Ferguson.

There were a few more interesting thoughts, but I don’t want to bore you guys too much.

Regards,

D-Ray

[Boreas]

Originally Posted by d-ray657

There was also a hint that the Scalia decision, which was joined by the other dissenting justices, was originally written as a majority opinion, but that the majority changed during deliberation over the result.

Yes, I believe there are three places in Scalia's opinion where he makes reference to Justice Ginsberg's opinion. In each of those it appears that Scalia is referring to her opinion as representing the minority position. Since, in the final reckoning, Justice Ginsberg is in the majority, there has been speculation that Chief Justice Roberts changed his vote pretty late in the process. That, in turn is spawning the expected conspiracy theories from the right wing. Obama must have threatened Roberts, etc., etc., etc.

John

[bhunter]

Originally Posted by d-ray657

Finally, the Dean has an interesting prediction on the upcoming term. He expects both the Ninth Circuit decision on gay marriage and the Third Circuit’s decision on the DOMA to make it to the Court next term. He expects that Justice Kennedy will write the majority decision in both cases, upholding the right to gay marriage. The reason for his prediction is that Justice Kennedy would rather his legacy be that he was the author of the modern version of Brown v. Board of Education than Plessey v. Ferguson.

There were a few more interesting thoughts, but I don’t want to bore you guys too much.

Regards,

D-Ray

Thank you for the nice report. That was excellent. I didn't know about the search and seizure case. Also, he thought Roberts switched during or after deliberations. Interesting. BTW, how' the heat out their in Kansas?

[d-ray657]

Originally Posted by bhunter

Thank you for the nice report. That was excellent. I didn't know about the search and seizure case. Also, he thought Roberts switched during or after deliberations. Interesting. BTW, how' the heat out their in Kansas?

We've been at or above 100 for the past several days, and it looks the same for the next week - save for one day when the predicted high is 99. We are paying the price for an incredibly mild winter - as I predicted we would.

I'm not the most sue-happy lawyer that you'll ever meet, but to me the Fourth Amendment case was egregious.

"Ma'am we'd like to search you house, because we have a tip that you son might be planning to commit violence."

"You can't search without a warrant."

"Your son has been accused of something, and you are not willing to let us come in an search your house. That sounds suspicious. We're coming in."

And there is no remedy for this Gestapo activity?

Regards,

D-ray

[Oerets]

Originally Posted by d-ray657

We've been at or above 100 for the past several days, and it looks the same for the next week - save for one day when the predicted high is 99. We are paying the price for an incredibly mild winter - as I predicted we would.

I'm not the most sue-happy lawyer that you'll ever meet, but to me the Fourth Amendment case was egregious.

"Ma'am we'd like to search you house, because we have a tip that you son might be planning to commit violence."

"You can't search without a warrant."

"Your son has been accused of something, and you are not willing to let us come in an search your house. That sounds suspicious. We're coming in."

And there is no remedy for this Gestapo activity?

Regards,

D-ray

We had a referendum on the ballot in May just about this very subject.


http://www.foxnews.com/politics/2011...-police-homes/



THEN!


It was worded to confuse. But it still passed!


http://www.naturalnews.com/036176_In...ice_raids.html

http://www.sfgate.com/nation/article...ce-3612347.php


Wounder how the high court would rule on it when one gets shot?



Barney

[bhunter]

Originally Posted by d-ray657

We've been at or above 100 for the past several days, and it looks the same for the next week - save for one day when the predicted high is 99. We are paying the price for an incredibly mild winter - as I predicted we would.

I'm not the most sue-happy lawyer that you'll ever meet, but to me the Fourth Amendment case was egregious.

"Ma'am we'd like to search you house, because we have a tip that you son might be planning to commit violence."

"You can't search without a warrant."

"Your son has been accused of something, and you are not willing to let us come in an search your house. That sounds suspicious. We're coming in."

And there is no remedy for this Gestapo activity?

Regards,

D-ray

And now we have another SWAT team breaking down another door by mistake.

Imagine you're sitting at home, comfortable on the couch, watching the Food Network, when all of a sudden a heavily armed SWAT team breaks down your door and storms into your living room.

That's what happened to 18-year-old Stephanie Milan, who was watching TV in her family's Evansville, Ind., home last Thursday (June 22), when a team of police officers broke down her storm door — the front door was already open — and tossed a flash-bang stun grenade into the room.
http://www.msnbc.msn.com/id/48018051.../#.T-8YzpKVCy9

One of these mistaken raids will end in a SWAT officer or citizen getting killed and then, hopefully, we will see the whole damn tactic unwind in a court case. I've always thought it was wrong for our civilian law enforcement to acquire military assault weapons and the aggressive policing tactics that are now commonplace. I'm glad you're surviving the heat.

[icenine]

Less amicus curiae (?) friend of the court cases being accepted for judicial review since it became more conservative after Burger left and Rhenquist took over....reflecting a desire to let more lower court decisions stand and a turn away from judicial activism. That is why I think they decide less cases.
I am surprised at the anger and lack of knowledge about the SCOTUS. I used to read alot....I remember Woodward's book the Brethren....very good for knowledge about the good things the Court has done for the USA since Brown vs Boardof Education. Not bored Dray.....

[BlueStreak]

I keep telling people, who constantly want to hammer on Obama for ignoring, or not understanding the constitution.....

Obama is a Professor of Constitutional Law.

I think he might have a better understanding of it than most Americans do.

Seriously.

Dave