January’s arguments: In Plain English

By Lisa Tucker
on Jan 22, 2011 at 9:08 pm

Many of you have written to me to express your views about my last Plain English post, which covered this month’s opinions, not to mention the Ninth Circuit reversal rate.  If you think you’re passionate, you should watch an oral argument sometime (you can stand in line at the Court – just get there really early for the “big” cases); advocates before the Court are especially passionate about their causes, and even the Justices can sometimes get a bit testy when it comes to arguments or decisions with which they disagree.

A case in point:  The Court’s decision last week to deny cert. in Alderman v. United States gave rise to a vociferous dissent from Justices Scalia and Thomas, who believed that the Court should have heard the case.  At issue in the Ninth Circuit case was a federal law that prohibited convicted felons from owning body armor.  But at the heart of the case was the Commerce Clause, a constitutional provision known and feared by every first-year law student.  Essentially, the Commerce Clause is an extremely broad source of power for Congress; as the Court has interpreted it, Congress can regulate any activity that involves interstate commerce.  (Okay, all you Constitutional Law junkies out there, yes, that’s a simplification, but that’s the meat of it, anyway.)  For many years, Congress treated the Commerce Clause as a free for all, regulating anything and everything in the name of commerce.  Several years back, however, in a case that any first-year law student will also know (the mighty United States v. Lopez), the Court put the brakes on the Commerce power, holding that Congress can only regulate when there really is a relationship between the regulated activity and interstate commerce, not a manufactured or tangential one.

Court watchers largely viewed Alderman as a logical follow-up to Lopez and the case that followed it, United States v. Morrison.  So many – Justices Scalia and Thomas among them – were surprised when the Court denied cert.  But, you might comment, the Court does not hear most of the cases it’s asked to hear – in fact, it only grants about one percent of the cert. petitions it receives each year – so what’s the big deal?  That is usually the way the Justices look at the denials of cert. petitions, too.  Because it is not at all unusual for the Court to deny cert – and perhaps because the Justices’ usual practice is to display respect for their colleagues – dissents from denial of cert. have traditionally been quite unusual, a sign that a Justice felt so strongly about a case that she could not wait for the issue to reach the Court again in another case.  This Term, however, we’ve seen quite a few such dissents from the denial of cert., most notably from Justice Sotomayor.  Will the trend continue?  Court watchers will certainly be interested to see.

On to the notable arguments from this month.  Let’s start with a case that might seem a little dull to most, but has one exciting element:  Vickie Lynn Marshall, better known to most of us as Anna Nicole Smith.  Yes, it’s true, she’s dead, but the controversy about her late husband’s estate churns on.  As Lyle describes quite cannily here,  Stern v. Marshall is an ongoing legal soap opera – after all, how many Playboy models can say that they’ve had a case before the Supreme Court not once, but twice?  (The first case involving Smith’s tycoon husband’s estate reached the Court in 2006, garnering much media attention; although the detail did not make the news, Court insiders disclosed that the reality TV star asked to bring her small dog to court with her (a request that was presumably denied).) This iteration of the case takes on bankruptcy issues related to the disposition of the many millions of dollars involved and will decide how exactly to interpret a major federal bankruptcy statute.

And you thought the Supreme Court could never be exciting.

Not exciting enough for you?  Well, then maybe state secrets will grab you.  In Boeing v. United States, the Court considered the doctrine for the first time in decades, reviewing how and when the government can stop litigation because it would reveal a classified government information.  In this case, the Navy contracted with two private companies to build a bomber aircraft, but then it declared that they were in default.  When the two companies sued, however, they could not make their case because the government claimed that state secrets were involved.  Now, you might ask, doesn’t it make sense that the government should be able to withhold this information in the interest of national security?  But, the companies countered, the government started this dispute by demanding money from them when it accused them of defaulting.  When they sought to defend themselves and demand more money, the government would not give them the documents they needed to defend themselves.  Will the Court agree with the companies that the government’s rule is “pretty convenient” for it (as Chief Justice Roberts put it) and a “tails you win, heads you win” way of interpreting the law (Justice Kagan).  We’ll see who actually wins within the next few months.

Criminal law and procedure always make up a large portion of the Court’s docket, whether the issues stem from the Constitution (such as in cases involving the exclusionary rule, or the rule that evidence resulting from illegal searches and seizures is usually inadmissible in court) or from federal statutes (such as those defining and prescribing punishment for crimes).  Last week, the Court heard argument in two such cases, Kentucky v. King and Sykes v. United States.

Let’s start with Kentucky v. King, a case about warrantless searches.  Usually, the Fourth Amendment requires the police to have a warrant before they can enter and search a home or other place where someone has a “reasonable expectation of privacy.”  To get a warrant, the police must give a judge good reason to believe that a crime has been (or is being) committed, a legal concept called “probable cause.”  There are various exceptions to the warrant requirement, but the Court in King is considering the “exigent circumstances” rule, which allows the police to enter a home if they reasonably believe that an emergency –  like an imminent danger to someone’s life or property –  exists.  But if police conduct creates the emergency, are they still entitled to enter a home without a warrant?  Or, as Justice Kagan seemed to suggest during the argument, would such a rule essentially allow the police to enter a residence at will whenever they reasonably believed that drugs were being used?

In this case, after chasing a suspected drug dealer into an apartment, the police smelled marijuana behind an apartment door.  Because they did not know whether the fleeing suspect was in that apartment or the one across the hall, the police knocked on the  door and announced themselves.  When they heard movement inside the apartment, they believed that the occupants might be destroying evidence, and so they entered the apartment without first getting a warrant.  The apartment turned out to belong to Hollis King, and the suspect was not inside.  However, they found King and drugs in the apartment and arrested him.  King challenged the admission of the evidence, claiming that the exigent circumstances rule did not apply because the police themselves created the emergency with their knock.  At oral argument, this point was debated for most of the allotted hour; while some Justices seemed content to allow the police to enter in any emergency, even if they themselves created it, others – like Kagan and Sotomayor –  seemed genuinely troubled by the idea of giving police so much power and called on the Court to look to precedent which prohibited such warrantless searches.

In Sykes v. United States, on the other hand, the criminal defendant was responsible for creating something of an emergency circumstance – or at least a highly dangerous one – when he fled from the police in his car, leading to a high-speed chase.  At issue in the case was a federal statute, the Armed Career Criminal Act (“ACCA”); under this statute, if Marcus Sykes’s previous three convictions were for “violent” felonies, he would receive an enhanced sentence for illegal weapon possession.  Sykes argued that fleeing from the police after the police ordered him to stop was not such a felony because it was not “purposeful, violent, and aggressive,” as required by a previous Court holding.

The case brings up several interesting questions, many of which explored by the advocates and the Justices during the argument: Can running away be said to be “aggressive”?  (Chief Justice Roberts).  Does prompting a high-speed chase result in a serious risk of injury? (Assistant to the Solicitor General Jeffrey Wall).  And what does the term “violent felony” encompass, anyway?  Such a statutory interpretation exercise, in which the Court must define an ambiguous statutory term, is common fare for the Court.

Because the Court is a court of general jurisdiction (meaning that it reviews cases about many legal topics, unlike a tax court or bankruptcy court, for example), it hears many different types of cases involving federal and constitutional law – as evidenced by the argument in FCC v. AT&T this week.  Many Court watchers view this case as a logical follow-up to the provocative Citizens United decision of last Term; it, too, involves the rights of corporations, this time to privacy normally afforded human beings.  AT&T has argued that, under its right to privacy, the federal government should not release the communication giant’s confidential documents.  But, as Bob Barnes noted here, the Justices didn’t seem to be buying the argument that corporations had privacy rights.

So what is it like to be an advocate with an uphill battle in persuading the Justices?  For an attorney who argues regularly before the Court, part of the fun is in convincing the Nine that her case holds water.  Still, even the best advocate loses at least occasionally; Georgetown law professor Richard Lazarus is fond of one particular story about how his law school friend – none other than Chief Justice Roberts,  once one of the most highly respected members of the Supreme Court bar – had to tell his client that they had lost their case by a vote of nine to zero.  How could that happen?  asked the client.  How could we lose nine-nothing?  Well, the future Chief Justice replied, there are only nine of them.

Last but not least, in Montana v. Wyoming, the Court heard arguments in its only original case of the Term.  Although the Court usually has appellate jurisdiction to hear cases – that is, it reviews cases coming from state or federal appellate courts – it has original jurisdiction (which means that it serves as the case of first and only resort) in cases in which a state is suing a state, as well as in rare cases involving foreign dignitaries.  Once again, Lyle hit the nail on the head when he commented that this river compact case is murky in its depths; while the Justices seemed to enjoy debating which state had first dibs on the water in the Yellowstone River, the issues of fair river water use left most of us feeling somewhat, well, underwater.  We’ll see how the opinions flow – dry, rapid, or calm – by the end of June.