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All-purpose 2005-06 SCOTUS Cases Thread

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(1) that the Court is generally reluctant to overturn its own precedents at all, and is even more reluctant to do so to a very recent precedent, and (2) that in general you want to try to go with the narrowest argument possible, i.e. the one that requires the Court to make the least change in the law.

This is not always true. Lawrence v. Texas (the sodomy case) was decided just a few years ago, and it overturned Bowers v. Hardwick, which occured sometime in the 80's.

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I didn't say always. A couple cases overruled even quicker than Lawrence:

Garcia v. SAMTA (1985), overruling Nat'l League of Cities v. Usery (1976).

There was even less time between U.S. v. Jenkins (1975) and the case that overruled it, U.S. v. Scott (1978).

The point stands that it's infrequent. I don't have an exact number for how infrequent, but I'd guess somebody does somewhere.

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Randall v. Sorrell (campaign finance/First Amendment) sounds interesting. I wonder what other decisions have been made on campaign finance reform. The summary sounds very broad in scope.

(1) Whether Vermont's mandatory limits on candidate expenditures violate the 1st and 14th Amendments and the Supreme Court's decision in Buckley v. Valeo? etc...

Daimler Chrysler v. Cuno Charlotte (dormant Commerce Clause) is a good subject: whether states can give companies tax-breaks. I wonder if, with Alito on board, the court has a better chance of doing the right thing.

(1) Whether Ohio's investment tax credit, Ohio Revised Code, sec. 5733.33, which seeks to encourage economic development by providing a credit to taxpayers who install new manufacturing machinery and equipment in the state, violates the Commerce Clause of the U.S. Constitution? (2) Does the dormant Commerce Clause allow a state to attempt to attract new buisness investment in the state by offering credits against the state's general corporate franchise or income taw, where the amount of the credit is based on the amount of the business' new investment in the state? (3) Whether Cuno has standing to challenge Ohio's investment tax credit law?
Rapanos v. U.S. (Commerce Clause) seesm to deal with minutia...
(1) Whether the U.S. Army Corps of Engineers acted reasonably in interpreting the term "waters of the United States" as it appears in the Clean Water Act (CWA), 33 U.S.C. 1362(7), to encompass a wetland area that is separated from a tributary of a traditional navigable water by a narrow man-made berm, where evidence in the record reflected the presence of at least an occasional hydrologic connection between the wetland and the adjacent tributary? etc...
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Rapanos might be pretty limited. However, I think it might be very telling to see what the current Court has to say about the Commerce Clause, since two of three dissenters in Raich are now gone. Those two were also in the majorities in both Lopez and Morrison, the only two cases in the last 70-something years to strike down an act of Congress as unconstitutional under the CC. If either Alito or Roberts would broaden or even maintain the current scope of the CC, that would just make a bad problem worse. Even if this case didn't have much practical application insofar as the specific statute is concerned, I think that in light of the last several decades any slap at Congress' Commerce power is a good thing.

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Georgia v. Randolph came down today. Justice Souter begins the majority opinion as follows:

"The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained. [citation] The question here is whether such an evidentiary seizure is likewise lawful with the permission of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent. We hold that, in the circumstances here at issue, a physically present co-occupant's stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him."

The basic vote was 5-3 (Roberts, Scalia, and Thomas dissenting; Alito didn't partake). My initial reaction is that the result of this case seems strange. I'll see what I think after reading the opinions.

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In re Georgia v. Randolph: Roberts whines that "The Court creates constitutional law by surmising what is typical when a social guest encounters an entirely atypical situation", but then he presumes to create his own failed constitutional law by asserting that when "an individual shares information, papers, or places with another, he assumes the risk that the other person will in turn share access to that information or those papers or places with the government," a conclusion which also isn't stated in The Constitution. The conclusion that "A warrantless search is reasonable if police obtain the voluntary consent of a person authorized to give it" is nowhere stated in The Constitution. So now we have the battle of the judicial opinions, with little constitutional underpinning.

This is a straight up case of identifying the right principle. The overall impression of Matlock, is misleading, because there was no refusal to allow entry, just permission and silence. What distinguishes Randolph is that there was refusal, and thus I blame Matlock's lousy wording -- but not exclusively bad, see Matlock at 170 "more recent authority here clearly indicates that the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared" where the point is made.

Culombe v. Connecticut identifies the relevant principle" "Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process". This test is applicable in the case of Bustamonte, where the court concluded that the defendants will had not been "overborne": that is the fundamental differentiating principle which should have been appealed to in Matlock.

The argument of the majority is slovenly: they touch on Mr. Randolph's refusal on p. 18, and it is as though they don't really care about the underlying principle, and are only interested in the chain of prior holdings, in clear violation of the Austrian constitution but, alas, in compliance with common law tradition.

Roberts' neonihilism should be noted here: "But it seems equally accurate to say—based on the majority's conclusion that one does not have a right to prevail over the express wishes of his co-occupant—that the objector has no 'authority' to insist on getting his way over his co-occupant's wish that her guest be admitted.". This highlights the problem of having no explicit constitutional principle that states the difference between what government and man may, respectively do: to wit, "only that which is expressly allowed" and "only that which is expressly prohibited".

In short, we need justices who adhere to a natural law POV.

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For the current argument session, the only case I find particularly interesting is Hamdan v. Rumsfeld, set for argument on March 28. Among others, the case involves questions of the powers of the President and of Article III courts.

Here's the opinion of the D.C. Circuit which reversed the District Court's holding in favor of Hamdan. Note that Roberts was one of the three judges who decided the case, so we can probably count him as part of the group that votes to affirm. What to do with the rest of the Court, I have little clue and will not without a chunk of research. Some seventy to eighty percent of granted cases get reversed, but my gut reaction is that this one will not.

This case interests me because I find questions of federal jurisidiction to be fascinating (and extremely difficult, but that's another matter). I'm interested to learn how Quirin and Milligan, and more recently Hamdi and Rasul, work their ways into this.

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Note that Roberts was one of the three judges who decided the case, so we can probably count him as part of the group that votes to affirm.

Or we can probably count on him to recuse himself. :D Good thing the MPRE didn't have too many questions on the Code of Judicial Conduct.

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Hamdan oral argument transcript is now out. (A cozy 83 pages.) I find this material to be some of the most difficult subject matter out there.

"A 1992 study reported that the Court granted 88 per cent of petitions [for certiorari] where the SG filed a brief supporting the petitioner and denied 60 percent of petitions where the SG supported the respondent." link

I wonder how the Court decides cases involving the Solicitor General. If it tends to decide in favor of the side the Solicitor General supports (respondent in this case), then that would support my initial reaction that this case will beat the odds by getting affirmed.

Also, note that it's April 24 and the Court has issued only 45 decisions, many of them per curiam. That leaves about 40 more over the next two months, many of which are likely to make some headlines. I feel like the retail industry right before Thanksgiving.

[Edit: Changed "leaves at least" to "leaves about." Sorry for the goof.]

Edited by Groovenstein
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Yesterday the Court handed down Day v. McDonough. One interesting thing was the vote breakdown:

majority: Ginsburg (Roberts, Kennedy, Souter, Alito)

dissenting from judgment: Stevens (Breyer)

dissenting opinion: Scalia (Thomas, Breyer)

Probably won't see that too often.

More interesting, however, was what I perceive as the adversary system's equivalent of a mixed economy. The defendant filed a habeas petition which the State agreed in its answer was timely. The judge determined that the petition was not timely. So the question for the Court was "whether a federal court lacks authority, on its own initiative, to dismiss a habeas petition as untimely, once the State has answered the petition without contesting its timeliness." Generally speaking, statute of limitations is considered a defense which must be pled and can be waived, rather than a jurisdictional defect.

The Court held that the federal court had discretion to correct the State's error and therefore dismiss the petition as untimely. It said the court did not have to dismiss as untimely, only that it could if it wanted to. My thoughts:

1. If we're an adversary system, then let's be an adversary system. If the problem is a jurisdictional defect, that's one thing. If it's a defense, however, then the judge raising it for the State is akin to the judge taking a side. The State screwed up. If we don't like the effects of an adversary system, then let's be an inquisitorial one. This is what I mean when I say I see this case as the equivalent of a mixed economy.

2. Okay, the judge can, but doesn't have to? "When justice so requires"? That really seems to be inviting the arbitrary. I prefer making the judge say something if he knows about it to giving him discretion.

Those of you who care about this--in other words, David Odden--discuss.

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Just kidding.

On your first point, the court’s intervention was clearly not neutral in that it disfavored the defendant, so this is a violation of the neutrality presumption that is essential to the adversarial system. If we had an inquisitorial system, we’d need to establish a purpose, which I suggest should be justice and not maximal punishment. That would mean, in this case, that the 36 days past pull date should be disregarded, because the requirements were not crystal clear. So under any view of the justice system, the inferior court’s decision was dysfunctional.

On the second point, there is a general strategy for turning judges into monarchs: outlaw all actions, and let the courts decide according to whim which actions will actually be penalized. That would not be good, so discretion should be limited. My rather seat of the pants analysis is that since ignorance of the law is a valid excuse when you have arbitrary law, then the justification for allowing the petition lies in what kind of law this is ignorance of. This is not ignorance of objectively justified law or of clearly established statutory law, this is ignorance of judicial arcana (though I don’t in fact know how arcane Coates v. Byrd is. Anyone who says “Bronston who?” deserves a kick in the butt, but I doubt this is a universally-known ruling). The judge can easily identify the basis for invoking discretion, and should do so whenever a discretional issue arises.

A separate issue is the disparity in statutes of limitation. For instance if there is a 1-year statute of limitation on filing murder charges than a 1-year limit on appeals would be just; if there is no time limit on filing murder charges, then there should be no limit on appeals.

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On your first point, the court’s intervention was clearly not neutral in that it disfavored the defendant, so this is a violation of the neutrality presumption that is essential to the adversarial system.

Not only that, but in this particular context (habeas), such a rule will only work against the defendant. Unless there's some weird twist to habeas I'm not aware of where the State files the petition. :o

If we had an inquisitorial system, we’d need to establish a purpose, which I suggest should be justice and not maximal punishment. That would mean, in this case, that the 36 days past pull date should be disregarded, because the requirements were not crystal clear.
I'm not sure I understand. A purpose for what? The timeliness requirement? Do you mean that the judge decides whether the petition is timely with reference to the applicable limitations period but subordinate always to the ultimate rule that justice be done in each case?

What if the requirements were crystal clear? For example, say you get one year from the entry date of the order of judgment and it doesn't toll under any circumstances. One year--period.

When we discuss the inquisitorial system, it might be wise for you to treat me as a little dumber because, well, I am. I'm not familiar with how the mechanics of such a system would work. Cases like this seem to be great fodder for learning that.

A separate issue is the disparity in statutes of limitation. For instance if there is a 1-year statute of limitation on filing murder charges than a 1-year limit on appeals would be just; if there is no time limit on filing murder charges, then there should be no limit on appeals.

Now this is interesting. I've never even considered it. Don't kill yourself looking this up, but if you happen to know offhand any cases, articles, or other sources discussing such an idea I'd love to know about them.

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I'm not sure I understand. A purpose for what?
I meant something grand -- a basic purpose behind an inquisitorial system. The point, which I put rather obliquely, is that if we assume that the purpose of such a judicial system is justice (certainly not a foregone conclusion -- a Scalia-run inquisitorial system would have as its purpose the literal upholding of the law), then justice would tell you that an invocation of lenity is called for.
What if the requirements were crystal clear? For example, say you get one year from the entry date of the order of judgment and it doesn't toll under any circumstances. One year--period.
Then we get into the issue of time limits on appeals, and that I think is open to debate. I don't know the actual arguments that there should be a time limit on an appeal; I can imagine all sorts of invented rhetorical positions about clogging the courts, but I don't see how that relates to time limits. If you're going to file an appeal based on ineffective counsel, then you can do it now or in 5 years, it's still one appeal with whatever its basis is. I can't say that I think that a 1 year limit, especially in a case like this involving ineffective counsel, is reasonable.

I'm not aware of any writing that analogizes statute of limitations and time limits on appeals. The underlying principle is straightforward -- sh*t or get off the pot. If it imposes an undue burden on the state to have to deal with a person objecting to a wrongful conviction after a year or two, with the state claiming "You should have figured that out earlier and filed the appeal", that same impatience should demand that they should charge someone within a year --- "You should have figured that out who dunnit earlier and filed charges". The objection that it takes time to gather evidence and build a case cuts both ways.

The problem with what I say about the inquisitorial system is that as far as I know, I'm proposing a nonexistent hybrid "common law / inquisitorial" system. For a judge to decide that justice is better served in this case by holding that the 36 days should not have been in the computation of time, the judge must have some discretion. Statutory systems at least seem to me (a very uninformed opinion) to be less inclined to granting judges such discretion, and instead holds them to literal enforcement of statutes. (And it is a non-statutory 11th district precedent according to which the time was actually computed as 388 days -- something that could not be the law in e.g. Austria). So this particular monster seems to particularly be the spawn of our rather flexible common law system.

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. . . then justice would tell you that an invocation of lenity is called for.

Understood.

I can imagine all sorts of invented rhetorical positions about clogging the courts, but I don't see how that relates to time limits. If you're going to file an appeal based on ineffective counsel, then you can do it now or in 5 years, it's still one appeal with whatever its basis is.
But, or so I think the argument would go, what you could end up with is a major backlog of appeals which at some point could just overwhelm the system. As a matter of sheer math, say you have 1000 final judgments in years 1 through 10. If all those people wait until year 10 to appeal, then you have 10000 appeals to handle that year. How much this addition actually reflects reality I have no idea. It seems rather silly, as I'd think people would be inclined to appeal sooner rather than later. If I ever happen to stumble across some empirical study, I'll bring it your attention.

I can't say that I think that a 1 year limit, especially in a case like this involving ineffective counsel, is reasonable.

[Thinking out loud] I wonder how this guy could do on the actual* civil side of things in a malpractice case considering he was convicted. (*I say actual because, if memory serves, habeas petitions are considered something like quasi-civil actions.)

If it imposes an undue burden on the state to have to deal with a person objecting to a wrongful conviction after a year or two, . . . that same impatience should demand that they should charge someone within a year . . . . The objection that it takes time to gather evidence and build a case cuts both ways.

I don't think this is a fair comparison. The case-building for both sides is much lighter at the appellate stage. The gathering evidence objection really doesn't apply because for an appeal there will almost never be new facts involved. The only case-building the defendant has to do once he's convicted is get a copy of the transcript (I think he gets a copy by right), hit the library, and write a brief. At the trial stage, the state has the burden of proving its case beyond a reasonable doubt. My guess is that it takes a chunk more time to investigate and put legally sufficient facts together than it does to take an existing record and make legal arguments.

Whether a particular time period for a particular issue is fair I can not generalize.

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The fact that intellectual property rights are not being upheld here. The court's job is to administer justice, not to decide whether it is fair to uphold the IP rights or not.
First, even if there was a violation of property rights, that does not make fascism. Hyperbolic accusations of fascism are easy to make -- all governments are, by that account, fascist, so we can move on since fascism is a meaningless accusation. Tell me what property rights are not being upheld? Note that the court did not overturn the finding that the patent is valid, so I'm trying to see where you think the wrong is.
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Hudson v. Michigan. Exclusionary rule is not an available remedy for a knock-an-announce violation. Some choice words:

"[E]xclusion may not be premised on the mere fact that a constitutional violation was a 'but-for' cause of obtaining evidence."

"[T]he social costs of applying the exclusionary rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrences against them are substantial--incomparably greater than the factors deterring warrantless entries when [Mapp v. Ohio] was decided. Resort to the massive remedy of suppressing evidence of guilt is unjustified."

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Is there a legal means to avoid the knock-and-announce rule for cases where the warning might jeopardize the effectiveness of law enforcement? If so, why do the police violate the rule even though they know evidence will be thrown out (or at least used to be)?

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Is there a legal means to avoid the knock-and-announce rule for cases where the warning might jeopardize the effectiveness of law enforcement? If so, why do the police violate the rule even though they know evidence will be thrown out (or at least used to be)?

If officers have a reasonable suspision that announcing would either a) endanger themselves or :) result in the destruction of evidence, they may enter without announcing themselves.

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