So I originally promised that my preview of the Supreme Court’s October argument docket would be up last Monday (the first day of the Court’s new term, of course). Well, stuff happens. I decided to push ahead with the idea of some sort of October arguments overview, but as the six days of arguments scheduled for the month have already gone by I’ve switched things up a bit, integrating some analysis of how some selected arguments actually played out.
According to the headline writers at the New York Times, this year’s docket is “less meaty” than last year’s, lacking (so far) blockbuster cases like Boumediene (the Gitmo detainees case) and Heller (the D.C. gun rights case). It may be true that the crop of cases on this year’s schedule doesn’t include any that appear likely to trigger that level of popular interest. But, as always, there are a number of cases that will prove very interesting to many lawyers and others who follow the Court. The following cases argued this month caught my eye:
- The most interesting case of the month, to my mind, is Arizona v. Gant. Those readers among you who have had the benefit/misfortune of a legal education will recall the important criminal procedure concept of the Search Incident to Lawful Arrest (“SILA”). The core of the concept is that once the police arrest you for some constitutionally valid reason they can search your person and your immediate surroundings for weapons or contraband without obtaining a warrant or further establishing probable cause. The concept of the SILA has been justified by interest of ensuring officer safety and preventing the destruction of evidence.
It’s fair to say that at this point the need for and legitimacy of such searches of an arrested person’s well, person, are fairly uncontroversial among most constitutional scholars. But the notion of searching an arrestee's surroundings has presented harder problems. This is especially true in instances involving traffic stop arrests and subsequent searches of automobiles. To make a long story short, in New York v. Belton (1981) and later cases in the same line the Court announced a “bright-line” rule that police can thoroughly search the passenger compartment (but not the trunk, of course) of a vehicle after arresting an occupant, no matter whether under the specific facts of a given case there were any plausible safety or evidence preservation concerns actually present. Indeed, under current law the rule extends even to instances where an arrestee has been searched, handcuffed, and put in the back of a police cruiser (but not to the situation where the arrestee has already been removed from the scene, interestingly).
In Gant, argued last Tuesday, the Court essentially took up the issue of whether the “bright-line” aspect from Belton should be overruled. Practically all of the justices heaped distain on the notion that immediate post-arrest vehicle searches are necessary because a subject handcuffed and locked in the back of a police car (as Gant was) presents a real danger of escaping, returning to his vehicle, and grabbing a weapon or destroying evidence hidden inside. However, the justices also seemed to dislike the prospect of replacing the Belton bright-line rule with something that attaches constitutional relevance to highly fact-specific, necessarily spur-of-the-moment decisions about SILA auto searches by police officers in stressful traffic stop arrest situations. And, of course, there is the matter of stare decisis: The Belton rule has been around for almost thirty years, the Court and many lower federal and state courts have used it as any important precedent, and police have come to rely on the vehicle SILA as an important evidence-gathering tool.
From the statements of the Justices during argument, it’s difficult to guess how the case will come out. Despite all its obvious flaws, in the end the Court may decide to reaffirm Belton on stare decisis grounds and as the devil the Court knows. Or a majority might be able to agree on a modified rule that still gives officers a great deal of latitude but cuts back a bit in situations where there are obviously no significant concerns about officer safety and/or destruction of evidence. Or we might get another one plurality, three concurrences, two dissents opinion split. In any event, it’s one worth watching.
(By the way, for those who may be interested in the merits of the Belton rule from an originalist standpoint, read Justice Scalia’s concurrence in Thornton v. U.S. (2004), a case that upheld a vehicle SILA where the arrestee wasn’t even in the vehicle when the arresting officer approached him and the search itself was conducted while the crook was, yes, handcuffed in the back of a cruiser. It reminds one that Scalia has a pretty robust view of the Fourth Amendment’s protections, or at least a more robust view than his critics --many of them ill-informed-- give him credit for.)
- By coincidence or (less likely) design, this October seems to be criminal procedure month at the Court. Aside from Gant, the Court also took up two other cases involving Fourth Amendment issues. In Herring v. U.S., the Court confronted an exclusionary rule case involving an arrest (and subsequent search, which turned up drugs) made because a police clerk in another department incorrectly and negligently informed the arresting department that there was a valid warrant out for Herring’s arrest. In Pearson v. Callahan, the Court heard arguments about whether police need a warrant to enter a home where a civilian confidential informant buys drugs inside just prior to the police search. (Pearson also presents an interesting potential opportunity for the Court to clarify aspects of the doctrine of qualified immunity.) The court also heard a Sixth Amendment case, Oregon v. Ice, on whether facts that lead a judge to impose consecutive instead of concurrent sentences must be found by a jury or admitted by a defendant, and two cases from the Ninth Circuit, Waddington v. Sarausad and Chrones v. Pulido, dealing with aspects of habeas corpus review of allegedly defective jury instructions (both of which, I predict, are headed for the ever-growing “Who the hell do the Ninth Circuit judges think they are?” reversal pile).
- Most overhyped case of the year so far: Altria Group, Inc. v. Good. It received a decent bit of media coverage because it deals with a suit against the tobacco companies because of their misleading promotions of “light” and “low tar” cigarettes. It’s not worth the hype because the suit is very clearly preempted by a federal statute regarding cigarette labeling, no matter whether one is considering the language of the statue directly or the Court’s recent precedents interpreting essentially the same language in other statutes. The vote of the Justices won’t be close.
- In a struggle that pits (potentially) the lives of whales against (potentially) the lives of sailors, the Ninth Circuit has been giving the U.S. Navy fits about conducting training with an advanced sonar system off the west coast. Some environmental groups argue that the active sonar system, developed to hunt for new ultra-quiet diesel submarines, damages the hearing of marine animals. The Navy asserts that the situation meets an “emergency circumstances” exception for not complying with an environmental impact assessment requirement, a stance that the Ninth Circuit didn’t think highly of. This one, Winter v. Natural Resources Defense Council, might be another 5-4 ruling where Justice Kennedy’s vote determines the outcome.
- Finally, a case that deals, if only partly, with an interesting emerging doctrine in federal jurisdiction law. Lawyers in the audience will remember that even though 28 U.S.C. 1331 allows federal district courts to hear suits “arising under” federal law --the same language used in Article III of the Constitution-- the Supreme Court has long interpreted that statute as not granting jurisdiction to federal courts to the full extent the Constitution allows. In particular, for over a century the Court has maintained that only suits where the federal nature of an action is evident on the face of a “well-pleaded complaint” can be heard in federal court (excluding diversity jurisdiction, of course). This means that many suits where an issue of federal law is dispositive (a libel action turning on whether a defendant has a valid First Amendment defense, for example) can’t be heard in federal court. There’s pretty broad agreement among scholars and judges that the 19th century Congress that drafted the language of the statute intended no such thing, but many have taken the position that the well-pleaded complaint rule has now been in effect so long that the Court should leave it to Congress to modify or junk it.
However, ever so slowly a precedential crack has begun to spread in the facade of the rule. Under the doctrine of complete preemption federal courts have, in a limited but growing number of subject areas, announced that federal law so completely supersedes state authority that even causes of action that are explicitly pled as state law claims are inherently federal in nature and can support federal jurisdiction. In Vaden v. Discover Bank, the Court may (the case has lots of procedural baggage related to application of the Federal Arbitration Act) address the question of whether a counterclaim that asserts a purportedly state law claim can be completely preempted. As someone who would like to see the well-pleaded complaint rule further cut back (and has a less reverential view of stare decisis), I hope they reach the issue and continue to chip away.
A lot more info on any or all of these cases can be found at the invaluable SCOTUSWiki, run by the folks who bring you SCOTUSblog. Additionally, the Court’s full argument calendar for October, with links to the questions presented in the various cases can be found here. (No further arguments are scheduled for the month.) Argument transcripts for all the cases mentioned above can be found here.
And that’s quite enough about that for now.