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Justice Ginsburg: Turbulent Times at Supreme Court

Last night, Justice Ruth Bader Ginsburg spoke at a conference hosted by the American Constitution Society. While not giving any clues to how the court will rule on the Affordable Care Act, Arizona's immigration law, or other important cases still to be decided this term, she did say the justices were in "sharp disagreement."

"As one may expect, many of the most controversial cases remain pending," she noted. "So it is likely that the sharp disagreement rate will go up next week and the week after."

In the context of the healthcare law, she described the individual mandate issue this way: [More...]

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On The Mandate: The Taxing Power Escape Route for the SCOTUS

At balkinization, Jack Balkin points to his Atlantic article in which he discusses a 1950 taxing power case that seems clinching to me with regard to whether the individual mandate penalty is constitutional as a valid exercise of Congress' taxing power. I'm surprised it was not discussed more (and feel remiss in not having discussed it myself.) Balkin writes:

It also doesn't matter that the real purpose of the tax is to regulate behavior. Lots of taxes are designed to do just that -- think about taxes on polluters as an example -- and federal taxes on drugs are designed to keep people from buying or selling them. In 1950, the Court upheld a tax on marijuana, explaining that "a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. The principle applies even though the revenue obtained is obviously negligible . . . or the revenue purpose of the tax may be secondary." "Nor does a tax statute necessarily fall," the Court added, "because it touches on activities which Congress might not otherwise regulate" under its other enumerated powers. So even if the mandate is beyond the commerce power, it can still be a constitutional exercise of the power to tax and spend for the general welfare.

The 1950 case Balkin is referring to is U.S. v. Sanchez:

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WaPo Poll: Most Americans Believe SCOTUS Decision on ACA Will Be Political

So says WaPo poll:

More Americans think Supreme Court justices will be acting mainly on their partisan political views than on a neutral reading of the law when they decide the constitutionality of President Obama’s health-care law, according to a new Washington Post-ABC News poll. Half of the public expects the justices to rule mainly based on their “partisan political views,” while fewer, 40 percent, expect their decisions to be rooted primarily “on the basis of the law.” The rest say both equally or do not have an opinion.

This is hardly surprising in light of the partisan oral arguments. Ann Althouse objects:

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The Fight Against The Radical Roberts Court

E.J. Dionne writes:

[I]magine the shock when President Obama decided last week to speak plainly about what a Supreme Court decision throwing out the health-care law would mean [... W]hen Obama went after the right’s willingness to use the power of the Supreme Court for ideological purposes, conservatives were aghast — and never mind that conservatives have been castigating activist judges since at least the 1968 presidential campaign.

Perhaps conservative pundits couldn’t stand the fact that Obama called them out explicitly. “I’d just remind conservative commentators,” he said, “that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example.” Yes, it is.

I've been writing about the subject recently, and yesterday, in my Sunday Daily Kos article, I wrote:

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When The Court Said Congress Could Regulate "Inactivity"

Most Democrats are familiar with the story of FDR's battles with the Supreme Court regarding the constitutionality of his New Deal legislation. In 1937, the Court reversed course and recognized the Commerce power as empowering the Congress to enact the New Deal legislation.

In discussing the constitutionality of the individual mandate in the Affordable Care Act, much has been made of the supposed unprecedented nature of the regulation of "inactivity." I have found the argument to be so specious (particularly when one considers the power conferred by the Necessary and Proper Clause), that I have devoted little time to rebutting this argument. But in passing on another subject, I reread NLRB v. Jones & Laughlin Steel, 301 US Reports 1 (1937), the case that began the the "switch in time saves 9" process. A review of the case is instructive. Follow to the other side for the discussion.

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Supreme Court Okays Visual Strip Searches of All Arrestees

In a 5-4 decision, the Supreme Court today ruled all arrestees may be subjected to visual body searches when entering the general population of a jail, no matter how minor the offense for which they were arrested.

"[E]very detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed."

The opinion in Florence v. Board of Chosen Freeholders, is here. The petitioner in the case had been arrested after a traffic stop because a computer search showed a bench warrant for an old fine. [More..]

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Justice Kennedy's 'revolution'

The transformation of our federal government by FDR was made possible because the Supreme Court made a dramatic shift in view of how it should review congressional legislation. The Court adopted a policy of deference to the legislative judgments of the Congress when it exercised its commerce power, requiring only that the means chosen bear a rational relation to the ends the Congress sought to achieve. Of course, the Congress could not act in a manner that was expressly prohibited by the Constitution, but absent that, its policy choice need only be rational.

With this freedom of action, our federal government has acted countless times to address problems that were national in character. Thus we have an Environmental Protection Agency, a National Transportation Safety Board, a Federal Emergency Management Agency and, yes, a Social Security Administration and Medicare.

This change of approach by the Court was famously described in the 1938 case United States v. Carolene Products.

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Supreme Court Hears Arguments Over Health Care Law

The Supreme Court is hearing six hours of arguments over three days on the Affordable Care Act.

During the first of three days of historic arguments, the justices voiced doubt that a U.S. tax law requiring that people pay first and litigate later should delay the legal challenge to the president's signature domestic legislative achievement.

This morning the court heard 90 minutes of arguments from an outside lawyer about whether it is premature for it to consider the law. It agreed with both parties that it can determine the case now.

Tomorrow the Court will hear argument on the the constitutionality of the provision mandating that individuals obtain insurance. The ruling is expected by June.

Here's a thread to discuss it.

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Supeme Court Extends Right to Counsel to Plea Bargains

The Supreme Court today ruled defendants have the right to effective assistance of counsel during plea bargain negotiations.

The cases are Lafler v. Cooper, No. 10-209, and Missouri v. Frye, No. 10-444.

In Lafler, the court said where a defendant rejects a plea offer on the advice of counsel and proceeds to trial, in order to show counsel was ineffective,

[H]e must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.

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Supreme Court Waters Down Miranda Rights Again

The Supreme Court yesterday, in 6 to 3 decision joined by Justice Elena Kagen, struck another blow at Miranda Rights. The opinion in Howes, Warden v. Fields is here.

The record in this case reveals that respondent was not taken into custody for purposes of Miranda. To be sure, respondent did not invite the interview or consent to it in advance, and he was not advised that he was free to decline to speak with the deputies.

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US Files Brief on Affordable Care Act Mandate

The Supreme Court will decide if the individual mandate of the Affordable Care Act is constitutional. The Government yesterday filed its opening brief, available here.

Under the Affordable Care act, almost every American will have to obtain health insurance by 2014 or pay a financial penalty. The question the court will decide is whether the minimum coverage provision is a valid exercise of Congress’s powers under article I of the Constitution.

Analysis is provided by Scotus Blog and legal analyst Andrew Cohen at The Atlantic.

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Supreme Court Takes Drug-Sniffing Dog Case

The Supreme Court has a chance to keep the Fourth Amendment from going to the dogs. Today it agreed to hear the case of Florida v. Jardines, in which it will decide whether police can use a drug-sniffing dog at the front door to a residence when they suspect the occupants of a drug offense but don't have a warrant.

The constitutional issue at stake is whether police must have probable cause — a belief that evidence of a crime will be found — before they may use a dog sniff at the front door of a suspected “grow house,” or a site where marijuana is being grown. The case grows out of a Miami police officer’s use of a drug-detecting dog, “Franky,” in December 2006 to follow up on a “crime stoppers” tip that the house was being used to grow marijuana plants.

The Florida Supreme Court ruled that police needed to have a probable cause belief in wrongdoing before they could use the dog at the home, on the premise that the drug sniff was a “search” under the Fourth Amendment.

The Florida opinion is here, the state's Petition for Cert is here, and the opposing brief is here. [More...]

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"So The Mandate Falls? Big Deal."

So says Sheldon Whitehouse:

Sen. Sheldon Whitehouse (D-R.I.), a former state attorney general who sits on the Judiciary Committee, said that the individual mandate might very well fall, but that the law’s defenders have gotten “overexcited” about it. The rest of the law will most likely survive, he said, preserving popular provisions that should help Democrats in the 2012 elections.

“So the mandate falls? Big deal,” Whitehouse said. “I think a family able to keep their sick kids on insurance even though they have pre-existing conditions, kids out of college able to stay on their parents’ policies while they look for that first job with healthcare — things like that are what will stick. Irrespective of what the Supreme Court says, that’s the things people really care about and are counting on.”

I think Whitehouse knows better than that. If the conservatives on the Supreme Court are willing to strike down the mandate, they'll take the rest of ACA with it. Other than Medicaid expansion, I'm not as enamored of ACA as others, to say the least. But Whitehouse seems to be readying a political argument against the conservatives on the Supreme Court and off of it.

My prediction remains a 2012 punt by the SCOTUS conservatives, dismissing the case on standing issues (the Anti-Injunction Act argument will be the vehicle I bet.)

Speaking for me only

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Supreme Court Oral Arguments on Warrantless GPS Tracking

Here's the transcript of today's oral argument in U.S. v. Antoine Jones, the case regarding warrantless GPS tracking devices. Basically,

The case concerned Antoine Jones, who was the owner of a Washington nightclub when the police came to suspect him of being part of a cocaine-selling operation. They placed a tracking device on his Jeep Grand Cherokee without a valid warrant, tracked his travels for a month and used the evidence they gathered to convict him of conspiring to sell cocaine. He was sentenced to life in prison.

The DC Court of Appeals reversed his conviction (opinion here.) [More...]

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Supreme Court to Re-Examine Eyewitness Evidence

It's about time. Adam Liptak of the New York Times reports the Supreme Court will revisit eyewitness identifications for the first time in 34 years. Mistaken eyewitness identification is the leading cause of wrongful convictions:

Of the first 250 DNA exonerations, 190 involved eyewitnesses who were wrong, as documented in “Convicting the Innocent,” a recent book by Brandon L. Garrett, a law professor at the University of Virginia.

Many of those witnesses were as certain as they were wrong. “There is absolutely no question in my mind,” said one. Another was “120 percent” sure. A third said, “That is one face I will never forget.” A fourth allowed for a glimmer of doubt: “This is the man, or it is his twin brother.”

[More....]

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