About Me

My photo
This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, April 21, 2009

Court Watch

And Also: A good summary of Obama's foreign policy platform.


The Ninth Circuit, upholding the immediate regulation per the "sensitive places" exception found in Heller itself, held that the Second Amendment should be deemed incorporated into the Fourteenth. A judge appointed by Clinton provided a strong concurrence. The law a gun show on public property (parade grounds) with the distributors wanting to have the guns available for demonstration. Not just a simple sale akin to cases tying sale of contraceptives to the right to use them in the first place. Not quite an "assault weapon" ban case, but the incorporation part is utterly logical.
When Savana Redding was just 13 years old, she was strip-searched by school officials for allegedly possessing prescription-strength ibuprofen. This traumatizing search was based solely on the false and uncorroborated accusation of a classmate who was caught with similar pills.

-- ACLU Email Update (video here)

Dahlia Lithwick over at Slate has more, agreeing with Scotusblog that even in this blatant case, the SC might decide relatively narrowly. Contra, Sandy Levinson providing a broader point that this suggests a certain mentality that can be applied to the torture cases too. I commented more over there, but Charles Gittings's point on basic rights for all suits me just fine. Others also thought such a line was "self-evident," but others were somewhat more selective.

Meanwhile, the Supremes today decided Arizona v. Gant, that actually strengthened the privacy rights of those stopped in automobiles, even when drugs are involved. Breyer dissented because of precedent, even though he agreed with the reasoning of the majority on the basics, and five other justices a few years back in Thornton v. United States (O'Connor and four justices in the majority here) also argued the current law in the area was taken too far. Justice Stevens wary about the taking the underlining precedent, New York v. Belton, too far from its inception in 1981.

As suggested by both Stevens and more strongly by Scalia (Thomas joining the majority opinion alone), this is not a great reason to stick with precedent, particularly precedent in lower courts that went further than Belton requires. The majority held that if you are arrested during an automobile stop that your car can only be searched for two reasons: safety, when you can seize the item in the area searched; and evidence collection, when the search is reasonably pursuant to the reason you were arrested in the first place. Scalia disagreed with Stevens' interpretation of precedent and didn't think the safety rationale generally is necessary in practice.*

Here the guy was stopped for driving with a suspended license and was in custody. No reason to search the car. Given privacy concerns, doing so would be particularly egregious. As Scalia notes, joining an opinion whose reasoning he found questionable at spots just for that reason, it also can be unconstitutional. And, given the Supreme Court is in place to decide broad questions, not simply individual cases, it was perfectly correct to reach out to clarify the rule in question here for the reasons given in the opinion. The opinion also noted, applying a principle relevant in other cases, that a "reasonable reliance" on the broader rule in place before would warrant qualified immunity for officers involved.

Alito (jointed by CJ and Kennedy in full, Breyer mostly) dissented. In Thornton, O'Connor voiced support with Scalia's stance, but Alito's alternate view provided Scalia a chance to challenge the stance of the "O'Connor seat." Meanwhile, the main opinion noted that "Justice Stevens concurred in the judgment in Belton," you know, the writer of the opinion here. Talk in third person much? No problem. If you are going to help defend privacy, you can speak in whatever person you want!

But, Thomas and other justices are less gung ho about defending the rights of schoolchildren, so let's see how the strip search case goes. And, what is up next? A federal law against dogfight videos? The lower court struck it down on First Amendment grounds.

---

* Here Scalia's jurisprudence had a libertarian result and his opinion has a satisfactory feel to it:
To determine what is an "unreasonable" search within the meaning of the Fourth Amendment, we look first to the historical practices the Framers sought to preserve; if those provide inadequate guidance, we apply traditional standards of reasonableness

In the case that provided the path to this one, he sounded almost like Brennan or Marshall in determining those standards. A Scalia/Ginsburg opinion is unique enough to note by itself. Compared to his playing around with facts in the no knock warrant case, of course, this underlines a certain uh subjectivity to his judging at times.