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.)

The Least Reassuringly Named Government Web Site Ever

That would be www.PandemicFlu.gov.

On a slightly lighter note, the site contains what very might be the dumbest and least frequently asked FAQ in history:

Why are pandemics such dreaded events?

The Perils of Not Being Able to Shut Your Arrogant Yap, Demonstrated Yet Again

At Belmont Park today, Kentucky Derby and Preakness winner Big Brown failed to become the first horse since 1978 to win the Triple Crown.  Big Brown's trainer, all-around sleazebag Ron Dutrow Jr., had been spouting off about the horse's invincibility since the Derby, saying most recently that a Belmont win was a "foregone conclusion."

Big Brown was pulled up before the end of the race and finished dead last.

Should West Virginia Have An Intermediate Appellate System?

As all of my in-state readers know (or should know), West Virginia is one of a relatively few states that has no intermediate appellate court system.  The Charleston Gazette had a story regarding this judicial peculiarity on Monday, reexamining the issue in light of the Supreme Court of Appeals' decision to deny certiorari in a case involving a multi-hundred million dollar verdict against Chesapeake Energy, leaving Chesapeake with no appellate avenue.  (Chesapeake subsequently canceled its plans to build a new headquarters complex in Charleston.) 

The article doesn't actually raise any new arguments either for or against the idea that we should create an intermediate court, but it did contain a couple of factual points that struck me as quite interesting and that, admittedly, I hadn't known.  First, though (as far as I know) Hell has not yet frozen over the state Chamber of Commerce and the state trial lawyers advocacy group agree that West Virginia should have some type of intermediate appellate system.  Second, West Virginia is even more idiosyncratic in its appellate setup than I realized:

The Supreme Court has total discretion over accepting appeals. It refused nearly 62 percent of the petitions it considered between 2000 and 2006, the latest year for available figures. In 2006, its rejection rate reached nearly 84 percent.

West Virginia's is also the only "court of last resort" with such complete discretion among the 10 states lacking an intermediate appeals court, according to the nonpartisan National Center for State Courts. Of the rest, all must accept civil [note: I assume the reporter meant criminal here] appeals except New Hampshire, which is mandated to accept only capital murder death penalty cases.

I knew that our Supreme Court has total discretion in hearing appeals -except regarding worker's compensation claims, it should be noted- but I didn't know that we were basically* the only state with such a scheme, even among other states with no intermediate system.

As you might be able to tell, I agree that West Virginia should have an intermediate appellate court system.  Having a right to appeal, at least in criminal and important civil cases, is beneficial to the administration of justice.  Moreover, as it stands I don't think the Supreme Court produces enough precedential decisions, particularly in certain unsexy areas of the law, to give lower courts and administrative agencies the guidance they need to adjudicate consistently, and I highly doubt that solutions focusing only on the Supreme Court's docket -like requiring the Justices to take certain types of cases- would make much of a dent in the problem.  The first objection usually raised in response to proposals to create an intermediate system is cost, and while that's certainly a serious point I'm sure there are reasonable ways to  fund the change.

But what about more purely jurisprudential objections?  Any readers who would object to creating an intermediate appellate court system if the cost issue was off the table?  And for those readers who, like me, favor creation of an intermediate level, what sort of system would you like to see set up?  (For instance, what sort of cases would generate an automatic right of appeal?)  My inquiring mind wants to know....

 

*  Yes, I realize that if New Hampshire didn't have the death penalty it would be in our class as well.  Although once New Hampshire politicians realized that their state was the only state besides West Virginia in the category they might well feel an urge to change their system.

 

Correction:  Turns out The Charleston Gazette was basically wrong about New Hampshire’s Supreme Court: it has a de facto policy of automatically accepting appeals in most types of cases that are appealed from trial courts.  I regret passing along the error.  Hat tip to court-o-rama for a link to a correct discussion of the New Hampshire Supreme Court’s role.

Evil Wal-Mart Strikes Again

Dastardly Wal-Mart is in the news again, this time for putting the squeeze on suppliers of food products to the mega-chain:

With gas, grain, and dairy prices exploding, you'd think the biggest seller of corn flakes and Cocoa Puffs would be getting hit by rising food costs. But Wal-Mart has temporarily rolled back prices on hundreds of food items by as much as 30% this year. How? By pressuring vendors to take costs out of the supply chain.

"When our grocery suppliers bring price increases, we don't just accept them," says Pamela Kohn, Wal-Mart's general merchandise manager for perishables. To be sure, Wal-Mart  isn't the only retailer working to cut fat from the food chain, but as the largest grocer - Wal-Mart's food and consumables revenue is nearly $100 billion - it has a disproportionate amount of leverage.

Just another example of this malicious corporation throwing around its heft to hurt those who have to deal with it.  And for what purpose?  To keep food prices low for its red state, gun owning, morbidly obese, white trash  "customers"?  I fully expect and demand that Democratic leaders denounce this move with all the force that they can muster, just like they have denounced Wal-Mart "price consciousness" in the past.  In the meantime, I look forward to paying six dollars for a gallon of milk at my locally-owned store. 

A Bit Humbling

You may have heard about the air crash that occurred yesterday in at Toncontin International Airport in Tegucigalpa, Honduras; an Airbus A320 skidded off the end of the runway in bad weather.  That Torcontin airport is in the middle of the city (which in turn is ringed by mountains) and has a far-too-short-for-comfort runway probably didn't help either.  Here's what a successful landing of a large jet there looks like:

 

It's a little odd realizing that the difficulty of that single one-minute long feat pretty much trumps any task I'll ever encounter in the legal profession.

Memorial Day

While we should of course keep in mind the various sacrifices of all those who have served and served our country in the armed forces, and do so throughout the year, it is fitting that we should give particular thought today to those who have given "the last full measure of devotion" to their comrades and their nation.  It is impossible to pay adequate respect to those who have given their lives on a blog such as this, but allow me to point to a just a couple of Memorial Day articles worth your time.  This editorial from the Boston Globe outlines the heroic deeds of the five servicemen who have been awarded the Medal of Honor (all posthumously) for actions in Iraq and Afghanistan.  This column from Bill Kristol encourages us to remember the nearly incredible progress that our forces in Iraq have brought about in the last 18 months.

And one final thing: the Gettysburg Address, as read by actor Sam Waterston in Ken Burns's The Civil War:

Where Oh Where Is Liberal Outrage About Privacy Now?

You know all the criticisms (some justified, some not) that privacy advocates on the left have leveled at various anti-terrorism measures undertaken by the Bush Administration?  Well, it seems that commitment to privacy changes a bit when it comes to issues outside of the national security context.  From a post on Openmarket, the Competitive Enterprise Institute's blog:

Fingerprints are considered to be among the most personal of information, and fingerprint databases created and proposed in the name of national security have generated much debate. Recently, “Server in the Sky” — a proposed international database of the fingerprints of suspected criminals and terrorists to be shared among the U.S., U.K. and Canada — has ignited a firestorm of controversy. As have cavalier comments by Homeland Security Secretary Michael Chertoff that fingerprints aren’t “personal data.”

Yet earlier this week, a measure creating a federal fingerprint registry totally unrelated to national security passed a U.S. Senate committee almost without notice. The legislation would require thousands of individuals working even tangentially in the mortgage and real estate industries — and not suspected of anything — to send their prints to the feds. The database and fingerprint mandates were tucked into housing and foreclosure assistance bills that on Tuesday passed the Senate Banking Committee by a vote of 19-2.

Hillary's Last Hope

In case you haven't seen it, here's what she said today when asked by a newspaper editorial board about calls for her to drop out of the race:

My husband did not wrap up the nomination in 1992 until he won the California primary somewhere in the middle of June, right? We all remember Bobby Kennedy was assassinated in June in California. You know I just, I don't understand it.

I'm sure she didn't intend to say that she was staying in the race so that she would be ready to assume the Democratic mantle if Obama was assassinated -she's not that politically stupid- but that's about as bad as a gaffe can sound.  Mike Huckabee's off the hook for worst Obama assassination reference.