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Justices Puzzle Over Indecency

The highlight of yesterday's lively argument over the government's right to restrict offensive language and nudity on broadcast TV came as former Solicitor General Seth Waxman told the Court, "the commission has pending before it…complaints about the opening episode of the last olympics, which included a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks."

As he noticed Justice Scalia glancing up at the courtroom friezes Waxman said, "Well, there's a bare buttock there, and there's a bare buttock here."

The case is FCC v. Fox Television Stations.

Mike Sacks has the story here.

 

Which Way Out of Texas?

As a result of a large growth in population Texas has gained a number of Congressional and State Legislative seats.

When it came time to draw up new electoral maps the Texas Legislature, which is controlled by Republicans, not surprisingly came up with a map favoring Republican candidates.

 Also not surprisingly the Legislatures' maps were challenged in a federal court in San Antonio under Section 2 of the Voting Rights Act. 

 Meanwhile, Texas is one of those States that fall under Section 5 of the Voting Rights Act and are required to get pre-clearance from either the Department of Justice or a special three-judge court in DC.  The Texas Republicans chose to go to the three-judge court for approval, but the court has yet to act.

So, with primaries looming the San Antonio court drew up its own set of electoral maps that strengthen the Hispanic vote, and presumably help Democrats.  

Texas appealed to the Supreme Court to block the court drawn map, and the Justices today heard arguments in the case.

Mike Sacks' take on the arguments is here.

SCOTUS Watercolors

Here are some sketches I did - still working on my watercolor chops - of arguments in two cases before the Supreme Court today.

The first, Mayo Medical Laboratories v. Prometheus Laboratories, is a very complex case about whether you can patent a natural process, in this case monitoring the metabolites a drug.

I can't begin to explain it, but Lyle Denniston can. Click here for his analysis.

In the second case, PPL Montana, LLC v. Montana, the Justices were asked to reference the journals of Lewis and Clark to determine if a river in Montana was once navigable.

It seems that title to the riverbeds beneath commercially navigable waterways belong to the states, and those of non-navigable rivers belong to the nation. I did not know that.

The dispute  is between a Montana power company that operates several dams on the river and the State of Montana which says it is owed over $50 million in rent and interest. 

You can read about it here.

 

 

 

 

 

 

 

Confrontation Clause Arguments

In two recent cases the Supreme Court has expanded Sixth Amendment right to confront a witness to include the lab technician who actually did the test. 

In today's argument the petitioner is challenging his conviction because the lab tech who performed a DNA test was not called to testify, but his report was introduced through the testimony of another expert witness.

Justice Alito asked petitioner's lawyer, Brian Carroll, "Hasn't it long been accepted that experts may testify to the facts that form the basis for their opinions?"

When it was State's Attorney Anita Alvarez's turn at the lectern Justice Scalia said, "We don't know how good the individuals who did the test were. And that's why it's up to the state to bring forward testimony saying what the lab did. And the only testimony they brought forward was the testimony of this witness who was not there."

Nor did Justice Kennedy seemed convinced as Mike Sacks tell it here.

 

 

 

 

 

Unwarranted Warrant?

How far can the police go in procuring a warrant based on an affidavit "so lacking in indicia of probable cause" that the resulting search not only violates the Fourth Amendment, but exposes the officer to civil action? Beats me.

I wasn't in court to cover the story, but rather to try out a new combination of sketching media. Here's what I came away with.

This was not the usual audience of spectators. I don't think they had anything to do with the cases being argued, and in fact they looked a little bored.

The case is Messerschmidt v. Millender.

 

 

 

 

Does Standing Require Injury?

The 1974 Real Estate Settlement Procedures Act bars, among other things, kickbacks by title insurance companies. Under the law a plaintiff can sue without having to show actual injury. At least that was the argument made by the lawyer representing Denise Edwards, the homebuyer in this case who sued First American Financial Corp.

But it was an uphill battle. Justice Scalia questioned, "I'm not even sure it's proper to call it a kickback. It's a commission." And Justice Alito told Edwards' attorney, Jeffrey Lamken, "We are looking for whether there is injury in fact."

In his rebuttal Aaron M. Panner, the lawyer for First American, reaffirmed that "what is required is an injury-in-fact, a harm to the plaintiff who is seeking to obtain redress from the courts.

Mike Sacks brilliant analysis of the argument is here.

 

 

 

The Meat of Preemption

In 2009, in reaction to a disturbing Humane Society video documenting the mistreatment animals at one of its slaughterhouses, California passed a law banning the purchase, sale and butchering of animals that are unable to walk to their demise. 

Such non-ambulatory, "downer" animals were to be immediately euthanized. But the Federal Meat Inspection Act says that for some animals, in this case swine, an inspector should determine if the animal is sick and unfit for human consumption, or merely tired and lazy.

During yesterday's arguments it appeared that the Justices are incline to strike down California's law because Federal law trumps, or preempts, State law.  Still, it's not that simple.

Justice Breyer:  “Do we have to write an 11-part opinion where we treat each of these different things, which are different, separately and analyze it?  To write an 11 part opinion or do we treat each of these differently separately and analyze it.  I’m not trying to get out of work.  I just want to know.” 

Justice Scalia: “I’d like to get out of the work, to tell you the truth.”

WaPo story here.

 

 

 

 

 

Big Brother is Watching

The Supreme Court struggled with privacy rights in the digital age during arguments on warrantless GPS tracking.

DC police investigating a nightclub owner, Antoine Jones, in a drug case put a tracking device on his car and tracked its movements every ten seconds for a month. Stephen C. Leckar, shown above, argued the case for Jones.

Justice Breyer told the government's lawyer, Deputy Solicitor General Michael Dreeben, "if you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States…..sounds like '1984.'"

"The court should address the so-called '1984' scenarios if they come to pass, rather than using this case as a vehicle for doing so," replied Dreeben.

Huff Post's Mike Sacks has the full story here.

 

 

 

 

Passport Case or Foreign Policy?

When the parents of  two-year-old Jerusalem-born Menachem Zivotofsky submitted a passport application for their son who has U.S. citizenship they were told that they could not designate "Israel" as the place of birth.

The case pits the State Department against an Act of Congress that says that a U.S. citizen born in Jerusalem shall "record the place of birth as Israel."

In arguments at the Supreme Court today the lawyer for the parents , Nathan Lewin, said "it's a passport law."

Solicitor General Donald Verrilli took the position that it's a "political question" about who controls foreign policy, congress or the president?

Bob Barnes reports on a "supremely funny moment" here.

 

 

 

 

 

 

Eyewitness Reliability and Due Process

Identification by an eyewitness is notoriously unreliable and yet has a powerful influence on jurors. Testimony that has been intentionally influenced by the police or prosecutor may be barred, but what if the circumstances surrounding the identification were suggestive, but unintended?

The case is Perry v. New Hampshire.  The witness identified Barion Perry as a "tall black man" she saw standing next to a police officer in a dark parking lot, and Perry was convicted of theft based partly on her testimony.

As public defender Richard Guerriero argued to exclude any unreliable witness ID, the Justices seemed unlikely to expand the umbrella of due process.

Richard Guerrierro, arguing for petitioner Perry, is pictured above as Scalia asks, "Why is unreliable eyewitness identification any different from unreliable anything else? So shouldn't we look at every instance of evidence introduced in criminal cases to see if it was reliable or not?"

Pictured below is New Hampshire Attorney General Michael A. Delany, who had an easier time of it.

HuffPost's Mike Sacks does a great job of reporting it here.