Tuesday, June 10, 2008

Catching Up with SCOTUS (Part One)

So it's been a good while since my last post on the Supreme Court's activities this term, but there's no time like the present to catch up.  The Court has issued several constitutional decisions over the last month and a half.   Although, with the exception of Baze v. Rees, none of these decisions came involved blockbuster cases, several are quite interesting in more narrow ways (and a couple are as dull as paste).  There are too many cases for one post of even remotely reasonable length, so here’s part one of two.


April 15:

Two decidedly unsexy cases were handed down this day.  Fittingly for IRS filing deadline day, both involved the intersection of taxes with constitutional requirements.  In MeadWestvaco Corp. v. Illinois Dept. of Revenue, the Court held (brace yourself) that under the Dormant Commerce and Due Process Clauses a state cannot tax a company's capital gain realized for a sale of a subsidiary at an apportioned rate where the subsidiary served an "operational purpose" in the owner's business but was not unitary with the owner.  (Actually, that's a bit more interesting than it sounds.  Or maybe I just need to get out more.) Justice Alito wrote for a unanimous Court; in a separate opinion Justice Thomas took the opportunity to once again carp about the Dormant Commerce Clause (ie. he doesn't think it really exists in the Constitution) but concurred in the judgment and the main opinion because neither party asked the Court to re-examine its precedents.

In U.S. v.Clintwood Elkhorn Mining Co., the Court rejected an argument that a taxpayer may escape the normal time limitations for gaining a refund of an improperly collected federal duty where that duty was imposed in violation of the Export Clause.  (To refresh memories, the Export Clause says that "“No Tax or Duty shall be laid on Articles exported from any State.")  Chief Justice Roberts wrote for an unanimous Court.  To be honest, the Court's decision doesn't do much in way of constitutional interpretation -the Court basically dismissed the taxpayers' constitutional arguments as irrelevant to the outcome of the case- but I include it because we don't get enough cases from SCOTUS that even tangentially discuss the Export Clause.  So there.


April 16

Here we come to Baze v. Rees, the Kentucky lethal injection case.  I've already written about this one in some depth and don't really have anything to add at this point, so let's move on. 


April 23

Under the Fourth Amendment as  interpreted by the Court, it is constitutionally reasonable for a police officer to arrest without a warrant anyone that he has probable cause to believe has committed a crime in his presence, no matter how minor the crime committed or apparently harmless the suspect.  But what about where an officer makes an arrest with valid probable cause for an offense that state law says cannot trigger arrest?  The Court faced such a case in Virginia v. Moore, where Virginia police officers arrested a man for driving under a suspended license, an offense that Virginia state law says can only (absent special circumstances) result in the issuance of a citation.   Writing for eight Justices, Justice Scalia forcefully side with the state.  Justice Ginsburg concurred only in the judgment.

Although Virginia’s law prohibited arrest for the offense committed by Moore, its courts have not applied a state law exclusionary rule to evidence gained from such arrests.  Thus, Moore was left with challenging his arrest and the subsequent search incident to arrest (which turned up crack cocaine on his person) under the Fourth Amendment.  Regarding the arrest, Justice Scalia wrote that their was no founding-era historical practice of incorporating state law standards into Fourth Amendment “reasonableness” analysis, and application of a general reasonableness balancing test -considering the state’s legitimate governmental interests vs. an individual’s privacy interests- favored the state.  On challenging the search incident to arrest, Moore raised the interesting point that the Court has, on numerous occasions, said that evidence gained from a search incident to an “unlawful” arrest must be suppressed.  However, the Court quickly dismissed that argument, saying that when it said “unlawful” in past cases it really meant “unconstitutional.”

(One may one wonder why past opinions didn't just use the word "unconstitutional" then.  Indeed, I wonder if some of the past Justices who wrote those opinions might say, if they could, "when we said 'unlawful, we meant 'unlawful.'"  But I digress.)

Perhaps the most useful aspect of the opinion is that it lays out a relatively straightforward two-step framework for answering Fourth Amendment reasonableness questions.  First, one looks to evidence   -norms, statutes, common law, etc.- from the era of the framing to see whether the practice was considered reasonable at the time or not.  If that provides no clear answer (whatever "clear" means in this context), one must turn to applying state interests vs. individual privacy interests balancing to reach a determination.  Both of those approaches had been used in lots of past cases before, but I'm not sure that the Court ever directly stated how they fit together until Moore.

I've just really scratched the surface of the case here; if you're at all interested in Fourth Amendment law you really should read the whole thing.

Tune in next time for the rest of the constitutional cases recently decided by the Court, including another Dormant Commerce Clause case (huzzah!) and a decision exploring whether rational basis scrutiny extends to the public employment hirings and firings.  Also, look for an updated Constitutional Cases 2007-2008 feature.  (Eventually.  At some point.)

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