Court rejects campaign ad case
UPDATED to 10:50 a.m.
The Supreme Court on Monday summarily rejected an appeal by a conservative advocacy group seeking a chance to use radio and TV ads to promote a movie critical of presidential candidate Hillary Clinton. In a brief order, the Court dismissed the appeal in Citizens United v. FEC (07-953) “for want of jurisdiction.” Justice Stephen G. Breyer noted he would have summarily upheld a three-judge District Court ruling refusing to clear the way for the ads. The case has yet to go to trial, and Citizens United could still ask for more time to pursue an appeal to the D.C. Circuit Court on its plea for a preliminary injunction against enforcing campaign finance laws that restrict its promotional ads. The group’s film, “Hillary: The Movie,” is now in circulation in venues other than radio and TV; the only issue in the case at this point involves broadcast promotional ads for the film. The group also is preparing a critical movie about presidential candidate Barack Obama.
The Court granted two new cases for review, including one in which the Justices told lawyers to argue whether it should overrule the 2001 decision in Saucier v. Katz. That question was added to the grant in Pearson v. Callahan (07-751), a case involving a police search of a home without a warrant. In Saucier, the Court laid down a two-step procedure for analyzing claims by police and other government officials for immunity to civil rights lawsuits. Under that procedure, a court first determines whether there was a violation of a constitutional right and, if there was, then to determine whether it was “clearly established” at the time of the incident. In the Saucier decision, three of the present Justices — Breyer, Ruth Bader Ginsburg and John Paul Stevens — dissented from the creation of that two-step inquiry. Justice Anthony M. Kennedy wrote the main opinion in Saucier. Current members joining in that part of the ruling were Justices Antonin Scalia, David H. Souter and Clarence Thomas. The Saucier case involved a claim of immunity by military officers against a lawsuit asserting they used excessive force in arresting an animal rights advocate for his protest demonstration during a speech by then-Vice President Al Gore at a San Francisco army base.
The petition in Callahan raised two questions: whether police may enter a home without a warrant immediately after an undercover informant bought drugs inside — an issue that has divided lower courts — and whether qualified immunity was properly denied to the police officers involved. The Court agreed to hear those, but then added the Saucier question.
In the second grant Monday, the Court agreed to hear a Justice Department appeal in U.S. v. Hayes (07-608), urging it to clarify the federal law that makes it a crime to have a gun after being convicted of a misdemeanor crime of domestic violence. The specific issue is whether the federal ban at issue requires that the convicted individual and the victim in the underlying crime have a domestic relationship — that is, as a spouse, parent or guardian.
The Court took no action Monday on another government appeal, testing whether the Constitution shields members of Congress from an FBI search of their offices, when the agents are seeking only non-legislative records. The case is U.S. v. Rayburn House Office Building Room 2113 (07-816) and involvsd the criminal investigation of Democratic Rep. William Jefferson of Louisiana. His trial in federal court is on hold while he pursues a pre-trial appeal in the Fourth Circuit Court on other issues. The issue in the case pending in the Supreme Court is the scope of lawmakers’ protection under the Constitution’s Speech or Debate Clause.
Among the cases the Court on Monday refused to hear were these:
** A test of whether prison or jail inmaes have any right to be transported to clinics or hospitals for abortions that are not medically necessary. State courts in Arizona struck down a policy adopted by the Maricopa County sheriff that denies requests of inmates to be transported to outside medical facilities for any procedure that was not medically required. The case was Arpaio v. Doe (07-839).
**A plea for the Court to clarify the federal government’s power to excuse employers from obeying requirements of he federal law against age bias in he workplace. The case was a test of an EEOC policy relaxing requirements of the Age Discrimination in Employment Act on the relationship between retirees’ health benefits and their Medicare rights. The case was AARP v. EEOC (07-662).
So was the 9th Circuit actually right in Saucier? Haha. Or do the Supremes intend to make police immunity from liability absolute (on the grounds that if they can’t agree on what the 4th amendment means, how can a cop)? Looks like a power law at work — the 4th amendment gets half the protection of the 2nd, the 8th gets 1/3 (only applies in punitive damage cases), and OMG the court is picking holes in the 16th (Boulware)
Comment by Roger Friedman — March 24, 2008 @ 10:33 am
I’d be interested in hearing from a 4th Amendment expert regarding why the Court is considering overruling Saucier. I am bewildered. It is hard to believe that the concurring justices in Saucier (Ginsburg, Stevens, and Breyer) want to overrule it. They objected to the Saucier majority’s use of a two-step inquiry in determining good-faith immunity when (as in Saucier) the claim is that police used excessive force; Justice Ginsburg argued that the second step was superfluous because because the inquiry is essentially the same at both stages: was the officer’s use of force reasonable under all the circumstances? Ginsburg contrasted Saucier to previous cases (such as Anderson) involving the reasonableness of a search; in that category of cases, she deemed a two-step inquiry entirely appropriate.
Because Pearson is a 4th Amendment case involving search of a home, one would suppose that Justices Ginsburg, Stevens, and Breyer believe that the two-step inquiry mandated by Saucier is entirely appropriate in this case. So it seems improbable that they would seek to use Pearson as a vehicle for overturning Saucier. If so, who is it that wants to overturn Saucier? Is it possible that more conservative justices think that the current structure of good-faith immunity is insufficiently protective of police officers and are considering re-writing the law in a way that dramatically expands the scope of good-faith immunity?
Comment by RichardSamp — March 24, 2008 @ 11:43 am
Richard,
I am no Fourth Amendment expert, but my guess is that the Supreme’s are considering overruling the requirement from Suacier that, in qualified immunity cases, the lower federal courts consider the constitutional prong of the two-step analysis before they decide the clearly established law prong. For example, in Pearson, the Tenth Circuit simply could have said “we don’t need to address whether the consent once removed doctrine applies because neither we nor the Supreme Court has addressed the question and thus there is no way that the officers’ actions could have been in contravention of clearly established law.” Under Saucier, however, the Tenth Circuit had to address the constitutionality of the search first. Several justices have griped about this requirement and I am guessing they will overturn it. This will make lower courts’ job in qualified immunity cases much easier but will mean that most constitutional law (at least in the criminal context) will be created on direct review.
Comment by Jessica Lamb — March 24, 2008 @ 12:59 pm
It is understandable why we have Saucier, but isn’t it a little goofy? First, the “creating law” rationale smells a little bit like creating advisory opinions. Second, at the end of the day, courts are in the business of making judgments–the reasoning behind them is somewhat secondary–so it seems that the “this is how you’ll do your opinion” mandate seems out of place.
Comment by Sean O'Brien — March 24, 2008 @ 8:30 pm