SupremeCourt2011-2012

U . S . S U P R E M E C O U R T D O C K E T 2 0 1 1 - 2 0 1 2

IMMIGRATION, TOO
What a session! Health Care, wetlands, slaughterhouses and guns: All relate to basic question of role of government in your life. And even more issues, including GPS/Orwellian ones.

Do-Over Season
Linda Greenhouse on the Supreme Court and the law.
By LINDA GREENHOUSE
February 22, 2012, 9:00 pm

Is there really a chance that the Supreme Court might reconsider Citizens United?

A week ago, I wouldn’t have thought so, and I still think it’s an extreme long shot. But a provocative statement last Friday by Justices Ruth Bader Ginsburg and Stephen G. Breyer makes this crazy idea worth pondering – which is undoubtedly what the two justices intended.

Their three sentences were attached to an order issued by the full court granting a stay in a case from Montana on the right of corporations to make independent political expenditures. We all know, from the Citizens United decision two years ago, that corporations have a robust First Amendment right to spend as much as they want on politics, a right they are exercising to the hilt in the current election season.

However, the Montana Supreme Court saw things quite differently in a decision it issued two months ago. Voting 5 to 2, the state court rejected a constitutional challenge to a century-old Montana law that bans corporate political contributions and expenditures unless made through a tightly circumscribed political action committee.

A majority acknowledged the United States Supreme Court precedent, as it had to. But it then went on to say that “Citizens United does not compel a conclusion” that Montana’s law is unconstitutional. “While Citizens United was decided under its facts or lack of facts,” the state court said pointedly, Montana is different: although the Citizens United majority could find no evidence that corporate political spending led to corruption, Montana’s history is replete with proof. Mining interests controlled the state judiciary and legislature for decades, at one point buying a United States Senate seat for a favored candidate, W.A. Clark, through such flagrant bribery that the Senate, after an investigation, actually threw him out. (In the days when legislatures appointed United States senators, he was later able to buy his way back.)

This history led Montana voters to adopt the corporate ban by referendum in 1912. The state’s lasting vulnerability “to continued efforts of corporate control to the detriment of democracy,” the state Supreme Court said, provides the “compelling interest” that makes the law constitutional today.

Unsurprisingly, James Bopp Jr., the lawyer who represented Citizens United and who now represents the three non-profit corporations challenging the Montana law, asked the justices in Washington for a stay while he could prepare a formal appeal, which he suggested would be a mere formality. “The lower court’s refusal to follow Citizens United is such an obvious, blatant disregard of its duty to follow this court’s decisions that summary reversal is proper,” Mr. Bopp wrote in the introduction to his 36-page stay application in American Tradition Partnership Inc. v. Bullock.

The justices didn’t take up the lawyer’s invitation to simply overturn the state court ruling, at least not now, but they did grant the stay, without any noted dissents. In their separate statement, Justices Ginsburg and Breyer seemed not to buy the “Montana is different” rationale, instead viewing the state court’s ruling, despite its protestations to the contrary, as simple defiance of Citizens United. “Lower courts are bound to follow this court’s decisions until they are withdrawn or modified,” the two justices observed.

Their point, rather, was that the Supreme Court itself should use this case as a vehicle to reconsider Citizens United. “Montana’s experience and experience elsewhere,” they said, “make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’ ” (The words they quoted are from Citizens United.) They went on to say that the appeal “will give the court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”

That would be a huge leap for the Citizens United majority – which included neither Justices Ginsburg nor Breyer. Justice Anthony M. Kennedy, who wrote the decision, and the four justices who joined him are all still on the court, while three of the four dissenters remain: Justices Ginsburg, Breyer and Sonia Sotomayor.

Furthermore, their reference in their statement to “corruption or the appearance of corruption” lacks the full context in which the majority suggested that proof of either could provide the requisite justification for limiting corporate speech. Justice Kennedy’s opinion made clear that the majority was talking about corruption in a very particular sense, specifically “quid pro quo corruption,” defined as “dollars for political favors.” Justice Kennedy went on to say that “the fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt.” In other words, to find a compelling interest in limiting corporate political spending, the Citizens United majority wants to see proof that huge corporate expenditures are not only queasy-making but indictable.

Nonetheless, Justices Ginsburg and Breyer are savvy players, and their statement, gratuitous as a legal matter, has to be taken as strategic. So what was the strategy? To keep the public conversation going? To encourage a broader pushback? To induce Justice Kennedy to re-examine his basic assumptions in light of what’s happened since the day in January 2010 when Citizens United burst upon the political landscape? All of the above?

No one likes to admit a mistake, and being a Supreme Court justice means never having to say you’re sorry – or almost never. True, the court reversed itself on gay rights in the 2003 Lawrence v. Texas decision, but three of the five justices comprising the anti-gay rights majority 17 years earlier in Bowers v. Hardwick had left the court. Repudiations of precedent are nearly always the result of a change in membership rather than a change in perception.

More directly relevant, I think, is one of the most fascinating episodes in Supreme Court history, the court’s rapid reversal during the early 1940s on the question of whether Jehovah’s Witness children had a constitutional right to refuse to salute the flag. Only three years separated the 8-to-1 decision in Minersville School District v. Gobitis, in which the court held that “national cohesion” justified requiring the patriotic gesture by schoolchildren whose religion forbade it, from West Virginia State Board of Education v. Barnette, which upheld the children’s right under the First Amendment to “differ as to things that touch the heart of the existing order.” The second decision, with a majority opinion by Justice Robert H. Jackson, is one of the most eloquent endorsements of free expression the court has ever issued. The vote was 6 to 3.

What happened? Two members of the new majority, Justice Jackson and Justice Wiley B. Rutledge, had joined the court since the Gobitis decision. But three others – Justice Hugo L. Black, William O. Douglas, and Frank Murphy – simply changed their minds. The first decision, issued as World War II was raging in Europe, was widely, if mistakenly, viewed as an official labeling of Jehovah’s Witnesses as traitors. Mobs burned down the religion’s Kingdom Halls, and thousands of children were expelled from schools around the country. Children were beaten and bullied.

Recounting these events, Professor Douglas E. Abrams of the University of Missouri Law School wrote recently that “the intensity of the post-Gobitis brutality surprised and likely shocked justices who had not anticipated such a bloody backlash against the small, peaceable religious group that had summoned their protection.” The court’s about-face was widely hailed. “Blot Removed” was the headline that Time magazine – hardly a liberal organ in the 1940s – put on its report of the second decision.

I have no idea whether Justices Ginsburg and Breyer had the flag-salute cases in mind when they called on the court last week to take account of the real-world impact of Citizens United. For all I know, Justice Kennedy, a wordsmith in his own right, regards his Citizens United opinion as the most ringing endorsement of free expression he has ever written. If so, then the Ginsburg and Breyer statement will have no greater effect than the thwarted effort by members of the Occupy movement to claim the Supreme Court’s plaza on the decision’s second anniversary last month.

As I said, a long shot, but an intriguing one. And no matter what the justices do next about Citizens United and the Montana Supreme Court, the conservative members of the court have their own do-over target. The court’s decision this week to hear a constitutional challenge to the affirmative-action admissions plan at the University of Texas raises the unmistakable prospect that diversity as a rationale for taking race into account in higher education will soon be history.

It’s nine years since the court, in Justice Sandra Day O’Connor’s majority opinion in Grutter v. Bollinger, upheld a race-conscious admissions plan at the University of Michigan Law School and declared that affirmative action had 25 more years to run. The crucial date, it turns out, proves to have arrived rather sooner: Jan. 31, 2006, when Justice O’Connor left the court and Justice Samuel A. Alito Jr. took her place. Since then, the Roberts court has bided its time, waiting for the right case. The do-over season has dawned.

Politics and the Supreme Court
NYTIMES Editorial
February 4, 2012

The Supreme Court underscored its power to shape American life when it took major cases about the health care reform law, Arizona’s anti-immigrant law and the Voting Rights Act in an election year. But this is not simply a case of the court thrusting itself into politics.

The way these cases developed and made their way to the highest court also illustrates the reverse — how politics shape the court. Each case grows out of a struggle between left and right where politics have pushed the law: between a quest for universal coverage and the defense of big health care providers; between an emphasis on openness and hostility toward immigrants; and between a promise of access to the voting booth made nearly 50 years ago and the unyielding opposition to keeping that promise.

Each party has its program and works to turn it into law. The great example of political change through legal change was the long, methodical effort to whittle away at segregation from within the legal mainstream that culminated in the court’s decision in Brown v. Board of Education. The conservatives’ legal-political strategy draws from Brown, but it is also vastly different in nature and design.

The struggle for school desegregation was waged by and on behalf of oppressed minority groups seeking to make good on the Constitution’s promise of equal rights. They faced strong opposition from the most powerful people in our society, in courts that were not necessarily sympathetic or overtly hostile to their cause. And they fought a long, incremental campaign.

When Lewis Powell Jr. energized conservatives by writing in 1971 that “the judiciary may be the most important instrument for social, economic and political change,” he was himself an incrementalist and expected others to be.

But the conservative legal battles of our modern times are being waged by the most powerful, often against the weak and oppressed. They began with a carefully planned and successful effort to reshape the courts to be sympathetic to conservative causes. They are largely aimed at narrowing rights, not expanding them — except where property and guns are concerned. And beginning with the Reagan administration, conservatives became impatient with the pace of change brought about from within the mainstream. They sought to remake law into a weapon of aggressive action.

The court’s health care reform case arose from a decision by Judge Roger Vinson of Federal District Court in Pensacola, Fla., striking down the Affordable Care Act as unconstitutional. It demonstrates the enduring influence of the Reagan administration, which put a premium on picking judges who would carry out its ideology and on countering liberalism with pointed conservatism any way possible.

Besides nominating Judge Vinson and getting him confirmed by a Republican-controlled Senate, the Reagan Justice Department published conservative positions on states’ rights and other issues in executive-branch opinions to promote them before courts took them seriously.

Citing conservative scholarship about the narrow meaning of the Constitution’s commerce clause, the Vinson opinion presents the Reagan view of economic liberty — an idea that was judged faulty by established scholars during the Reagan era but now carries great influence.

The Bush administration revived this practice, which led directly to the Arizona case. One of its most notorious opinions asserts the power of states “as sovereign entities” to crack down on illegal immigration even if the federal government has not delegated them that power. The author of the Arizona law cited the authority granted in the 2002 memo as a basis for it, and the memo underlies similar efforts in a growing list of other states.

The Reagan administration expressed its antipathy to the Voting Rights Act in politics and law — in its effort to persuade Congress not to strengthen the act in 1982, for example, though Congress did, and in a 1985 Supreme Court test of the extension of the act that was passed.

The case has defined the sides in many battles since about control of American democracy — between Democrats’ interest in protecting minority voters and their representation and Republicans’ insistence that the law is being misused to create racial quotas in government.

In 2009, the Supreme Court ducked ruling on the constitutionality of the Voting Rights Act in an opinion by Chief Justice John Roberts Jr. that nonetheless laid out arguments for its unconstitutionality. The opinion is widely read as a warning that the law is vulnerable to being struck down by the conservative court.

The political influences on these major cases are important by themselves, but also as a reminder that the makeup of the court for the next generation, and thus the law’s direction, are likely to be determined by the 2012 election.

Obama challenges high court on health care
DAY
By ANNE GEARAN Associated Press
Article published Apr 6, 2012

Washington - President Barack Obama is laying groundwork to make the majority-conservative Supreme Court a campaign issue this fall, taking a political page from Republicans who have long railed against liberal judges who don't vote their way.

The emerging Democratic strategy to paint the court as extreme was little noted in this week's hubbub over Obama's assertion that overturning his health care law would be "unprecedented."

His statement Monday wasn't completely accurate, and the White House backtracked. But Obama was making a political case, not a legal one, and he appears ready to keep making it if the high court's five-member majority strikes down or cuts the heart out of his signature policy initiative.

The court also is likely to consider several other issues before the November election that could stir Obama's core Democratic supporters and draw crucial independent voters.

"We haven't seen the end of this," said longtime Supreme Court practitioner Tom Goldstein, who teaches at Stanford and Harvard universities. "The administration seems to be positioning itself to be able to run against the Supreme Court if it needs to or wants to."

This can be dangerous ground, as Obama discovered. Since Franklin Delano Roosevelt, few presidents have directly assailed the Supreme Court. In Obama's case, he issued an indirect challenge, but the former constitutional law professor tripped over the details.

Obama told a news conference on Monday that he was "confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

The Supreme Court does sometimes overturn laws passed by Congress. Obama later clarified that he was referring to a narrow class of constitutional law, but even then Republicans and some court scholars took issue. What's not in question is that the law wasn't approved by a strong, majority - the vote was a slim 219 to 212 in the House.

A Republican-appointed federal judge took umbrage at the suggestion that federal courts might be powerless to overturn such laws, and ordered the Justice Department to provide written assurance. He insisted the response be at least three pages, single-spaced.

Attorney General Eric Holder took on that task himself, telling the judge Thursday that "the longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed."

He also took the opportunity to cite Supreme Court case law supporting the premise that laws passed by Congress are "presumptively constitutional."

The Supreme Court heard a rare three days of argument on the 2010 health care overhaul last week, and the court's conservative majority appeared deeply skeptical of the key provision, a requirement for individual health insurance. Justice Antonin Scalia, for one, appeared strongly in favor of striking down the entire law. A decision is expected by July.

Also Thursday, Senate Republican Leader Mitch McConnell had his say on presidents and the Supreme Court.

"The president did something that as far as I know is completely unprecedented. He not only tried to publicly pressure the court into deciding a pending case in the way he wants it decided; he also questioned its very authority under the Constitution," McConnell said.

The constitutional issue aside, Obama made it clear that the thrust of his argument is political. He ticked off popular elements of the law that are already in force, and said the consequences of losing those protections would be grave for young people and the elderly, in particular.

"I'd just remind conservative commentators that for years what we've heard is, 'The biggest problem on the bench was judicial activism or a lack of judicial restraint,' - that an unelected group of people would somehow overturn a duly constituted and passed law," Obama said. "Well, this is a good example. And I'm pretty confident that this court will recognize that and not take that step."

Obama narrowed and clarified his original statement on Tuesday, under questioning at The Associated Press annual meeting. His spokesman spent the next two days explaining and defending both statements on both legal and political grounds.

As a former law professor, "the president understands judicial precedent. He has a little experience with it, and the importance of judicial review," White House press secretary Jay Carney said Thursday.

University of Texas Law School professor and Supreme Court scholar Lucas Powe said Obama's original statement suggests he probably knows the law is in trouble and is seeking political high ground.

"My instinct is that he was laying predicate for a campaign statement," Powe said. "People said he was threatening the court. You can't threaten the Supreme Court."

It wasn't the first time Obama criticized the court. He blasted the court's then-fresh campaign finance ruling in his 2010 State of the Union address.

"The Supreme Court reversed a century of law to open the floodgates for special interests, including foreign corporations, to spend without limit in our elections," Obama said then.

That earned an on-the-spot rebuttal from conservative Justice Samuel Alito. Alito, sitting in the front row, was seen to mouth, "Not true."

Democrats and many constitutional scholars were also appalled by the court's actions in 2000, when it took on the disputed presidential election and effectively called the race for Republican George W. Bush. Justice John Paul Stevens, a lifelong Republican appointed by President Gerald Ford, warned in a bitter dissent that the court risked undermining its own authority by appearing nakedly political.

The current back and forth turns a standard Republican campaign rallying cry on its head. Over the past three decades, Republicans have increasingly criticized judges as liberal and unaccountable, charging "judicial activism" has infected the court system.

The Supreme Court was a regular target, even during the tenure of conservative Chief Justice William H. Rehnquist.

The court has had a conservative majority for more than a decade. But while the court was far from a rubber stamp for Bush, it took the election of Democrat Obama to draw a sharp contrast between the court and the executive.

Both Democrats and Republicans are being disingenuous by using the court as a political instrument, said Orin Kerr, a prominent conservative Supreme Court expert.

"Judicial activism is a two-way street, and when the politics switch most people reverse arguments," said Kerr, a professor at George Mason University School of Law. "Liberals are sounding like conservatives and conservatives are sounding like liberals."

Supreme Court to Hear Health Care Case in Late March
By ADAM LIPTAK, NYTIMES
December 19, 2011, 12:27 pm

The Supreme Court announced on Monday that it would devote three days in late March to hearing arguments in challenges to the 2010 health care overhaul law. A decision in the case is expected by the end of June.

The court agreed to hear the case on Nov. 14, saying it would put aside five and half hours for arguments and specifying how much time it would devote to each of four issues. Monday’s announcement assigned those issues to particular days, giving a sense of the logical sequence in which the justices will approach them.

On March 26, the court will hear arguments on the threshold issues of whether a federal law called the Anti-Injunction Act makes challenges to the mandate premature until 2015. Since neither side is pressing the point, the court has appointed Robert A. Long, a Washington lawyer, to argue it as a friend of the court. The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., accepted that argument in September, and in November a dissenting judge on the United States Court of Appeals for the District of Columbia Circuit agreed.

In a letter to the court this month, the solicitor general, Donald B. Verrilli Jr., wrote that he understood that the time allotted to the threshold issue “could be expanded to 90 minutes.” But there was no indication in Monday’s announcement that the argument on that issue, the only argument scheduled for March 26, would exceed the usual hour.

The court put aside two hours on March 27 for arguments on the central issue in the case, whether Congress exceeded its constitutional authority in requiring people to buy insurance or pay a penalty. The provision is often called the individual mandate; the announcement called it the minimum coverage provision.

The court will hear arguments on two issues on March 28. First, it will consider for 90 minutes whether the provision may be severed from the balance of the statute. That is what the United States Court of Appeals for the 11th Circuit held when it struck down the provision.

But lawyers for the Obama administration have said the provision is intertwined with two other important parts of the law — one forbidding insurers to turn away applicants, and the other barring them from taking account of pre-existing conditions. If the mandate falls, the administration argued, those provisions must fall with it.

Since side (? - how's that again?) endorses the part of the 11th Circuit’s decision concerning severability, the court invited a second Washington lawyer, H. Bartow Farr III, to make the argument that the provision “is severable from the entirety of the remainder of the act.”

The court will also hear an hour of argument on March 28 on whether Congress was entitled to expand the scope of Medicaid.

Democrats to intercept Supreme Court ruling on immigration
Schumer says law doesn’t belong to 50 different states
The Washington Times
By Stephen Dinan
Tuesday, April 24, 2012

The Supreme Court hears arguments Wednesday over Arizona's immigration-crackdown law, but Democrats are already preparing for a potential loss by saying they'll try to pass legislation stripping states of the power to enact their own immigration rules. Sen. Charles E. Schumer, New York Democrat, said his legislation would establish federal primacy in immigration by blocking states from taking any action. That would not only preclude state law enforcement efforts like the Arizona model now before the court, but also would overturn a Supreme Court ruling last year that upheld a different Arizona law requiring businesses to verify their workers' legal status.

"I believe it is simply too damaging to our economy and too dangerous to our democracy to have 50 states doing 50 different things with regard to immigration policy," said Mr. Schumer, chairman of the Senate Judiciary Committee's immigration subcommittee, as he convened a hearing on Arizona's crackdown law, known as S.B. 1070.

Under that law, which Arizona Gov. Jan Brewer signed in 2010, police are required to check the legal status of those who they reasonably suspect are in the country illegally. The law also requires legal immigrants to carry their papers with them at all times when in the state. The Obama administration has sued to block the law, arguing that it interferes with the federal government's right to set immigration policy. Courts at both the district and appellate levels agreed with the Obama administration, and the justices announced late last year that they would take the case.

Last year, the justices upheld a 2007 Arizona law requiring all businesses to use E-Verify, the federal government's electronic system that checks Social Security numbers, to make sure workers are in the country legally. The system is voluntary for most at the federal level, but several states, led by Arizona, have required it for businesses. In a 5-3 ruling, the court said Congress specifically allowed for states to have a role in licensing businesses based on their compliance with immigration checks.

But Wednesday's case is more complex. Backers of S.B. 1070 said it just tries to give local police a hand in enforcing what the federal government already says is illegal.

"It's modeled after federal law," former Arizona state Sen. Russell Pearce, chief sponsor of both S.B. 1070 and the E-Verify law, told Mr. Schumer at his hearing Tuesday.

Mr. Pearce said the need for such restrictions was underscored by the fact that some of the Sept. 11 hijackers had contact with police ahead of their attacks but were never questioned about their immigration status, which he said could have led to their detainment. Mr. Schumer and the Obama administration say S.B. 1070 goes beyond mirroring federal law to instead try to set a state immigration policy — an area where Congress has claimed exclusive jurisdiction. If the court ends up siding with Arizona, Mr. Schumer said, he will introduce a bill to make it clear that Congress doesn't want states acting on any level of immigration enforcement.

"States like Arizona and Alabama will no longer be able to get away with saying they're 'simply helping the federal government,' quote, unquote, to enforce the law when they are really writing their own laws and knowingly deploying untrained officers with the mission of arresting anyone and everyone who might fit the preconceived profile of an illegal immigrant," he said.

His legislation would not only combat a future court ruling but would undo the court's decision last year upholding states' mandatory E-Verify laws. No Republicans attended the hearing. Sen. Jon Kyl, who represents Arizona and is the second-ranking Republican in the Senate, said the hearing seemed designed to pressure the Supreme Court rather than to find out information.

"The timing of the hearing on the eve of the Supreme Court argument, and the fact that the chairman of the committee did not consult with any of us, did not consult with either Sen. [John] McCain or me, for example, about this Arizona law, about what witnesses he would ask from Arizona, for example, suggested to us this was either an attempt to influence the court decision, which would be improper, or simply to create a political sideshow," Mr. Kyl told reporters.

Mr. Schumer invited Mrs. Brewer to testify, but she declined. The senator said Mr. Pearce was the only one who would agree to come before the panel to defend the law. He said that indicated a broader reluctance of Republicans to try to work out an immigration agreement with Democrats.

"We don't have anyone sitting down and saying, 'Here's what we want to do to solve this immigration problem,' " Mr. Schumer said.

One issue that will not be before the Supreme Court this week is racial profiling under the law. While President Obama and other top administration officials said they feared that S.B. 1070 would lead to profiling, their lawsuit is purely about federal versus state power. Still, several witnesses said Tuesday, profiling is already happening even though most of the law has been blocked.

"If you have brown skin in my state, you're going to be asked to prove your citizenship," said former Sen. Dennis DeConcini, a Democrat who represented Arizona for 18 years before giving up his seat, which Mr. Kyl won.

"I'm embarrassed for my state. I apologize for Arizona's actions," Mr. DeConcini said.

Decision could play role in 2012 election, similar legislation is pending in other states
YAHOO
ABC NEWS
By Ariane de Vogue ( @arianedevogue)
12 Dec. 2011

The Supreme Court has added another hot button issue to its docket this term agreeing today to hear a challenge to Arizona's strict immigration law.

The case will be argued sometime this spring, and Justice Elena Kagan will take no part in the decision presumably because she dealt with the issue in her previous job as Solicitor General of the Obama administration.

Today's announcement means that by June the court will have decided three major controversial issues that could have an impact on the next election. Besides the immigration case, the Court will hear a challenge to the Obama administration's health care law as well as a dispute regarding Texas redistricting maps.

Arizona's immigration law was passed in April of 2010, and was immediately challenged by the Obama administration. The administration argued that the state law interferes with existing federal law.

"Federal law and policy do not adopt such a one-size-fits all approach to enforcement," Solicitor General Donald B. Verrilli argues in court briefs. "The officials who enforce the Nation's immigration laws require significant discretion in order to balance numerous goals and purposes… including law enforcement priorities, foreign -relations considerations and humanitarian concerns."

Lower courts sided with the Obama administration and blocked several key provision of the law from going into effect.

The lower court's decision outraged Arizona Governor Jan Brewer who released a statement at the time saying the law "represents another tool for our state to use as we work to address a crisis we did not create and the federal government has actively refused to fix. The law protects all of us, every Arizona citizen and everyone here in our state lawfully." Arizona argues that the State had to move aggressively to pass the controversial provisions because the federal government was not doing its duty to control immigration.

Lawyers for the State asked the Supreme Court to step in to reverse the lower Court's action.

"Arizona bears the brunt of the problems caused by illegal immigration," writes lawyer Paul Clement, a lawyer for the State in court briefs. "Arizona has repeatedly asked the federal government for more vigorous enforcement of the federal immigration laws, but to no avail."

One of the blocked provisions provides that a law enforcement officer can ask the person he has stopped, detained or arrested for his papers if the officer has a reasonable suspicion that the person is in the country illegally. Another section makes it a state crime for someone to work or seek work without proper authorization.

Critics of the law are pleased that the high court has agreed to step in and decide the issue.

"I think the Court intends to clarify any dispute about the meaning of its legal precedent regarding the ability of states to regulate immigration." says Karen Tumlin, and attorney at the National Immigration Law Center.

"This case boils down to a question of whether Arizona can mandate that its officers interrogate individuals about their immigration status and attempt to enforce federal civil immigration law" she says.

Although deeply opposed to the law, the Obama administration had asked the Supreme Court to refrain from taking up the case at this juncture. Verrilli argued that so far only one appellate court has dealt with the law and the Supreme Court should wait until more cases from other states have had a chance to make their way through the lower courts.

Similar legislation is pending in Utah, South Carolina, Indiana, Georgia and Alabama.

Supreme Court limits police use of GPS to track suspects
YAHOO
By James Vicini | Reuters
23 January 2012

WASHINGTON (Reuters) - The Supreme Court for the first time ruled on Monday that police attachment of a GPS device to monitor a suspect's vehicle was a search protected by constitutional privacy rights, a test case involving new surveillance technology. The high court's ruling was a defeat for the Obama administration, which defended the use of global positioning system devices without a warrant and without a person's knowledge as a legal way to monitor a vehicle on public streets.

The justices upheld a precedent-setting ruling by an appeals court that the police must first obtain a warrant to use a GPS device for an extended period of time to covertly follow a suspect. The high court unanimously held the government's placement of the GPS device to a vehicle and using the device to monitor the vehicle's movement was covered by U.S. constitutional protections against unreasonable searches and seizures of evidence.

Civil liberties groups were concerned that vast amounts of personal data can be collected from GPS devices and police might use other technologies such as beepers, cellphones, computers, surveillance cameras and satellites to monitor people. They voiced alarm at giving the government unlimited and unprecedented new power to track people in public through the use of GPS devices or other surveillance technology without court permission.

The case began in 2005 when the police went to a public parking lot in Maryland and secretly installed a GPS device on a Jeep Grand Cherokee used by a Washington, D.C., nightclub owner, Antoine Jones. Jones was suspected of drug trafficking and the police tracked his movements for a month. The resulting evidence played a key role in his conviction for conspiring to distribute cocaine. The appeals court had thrown out Jones' conviction and his life-in-prison sentence, and ruled prolonged electronic monitoring of the vehicle amounted to a search.

"We hold that the government's physical intrusion on the Jeep for the purpose of obtaining information constitutes a 'search'," Supreme Court Justice Antonin Scalia said in summarizing the opinion from the bench.

The administration had argued that even if it was a search, it was lawful and reasonable under the Constitution. The Supreme Court's narrow opinion did not decide that issue. The Supreme Court agreed to decide the GPS case after U.S. appeals courts around the country issued conflicting rulings on whether a warrant was required.

The Supreme Court case is United States v. Antoine Jones, No. 10-1259.

High court troubled by warrantless GPS tracking
YAHOO
By MARK SHERMAN - Associated Press
8 Nov. 2011

WASHINGTON (AP) — The Supreme Court invoked visions of an all-seeing Big Brother and satellites watching us from above. Then things got personal Tuesday when the justices were told police could slap GPS devices on their cars and track their movements, without asking a judge for advance approval.

The occasion for all the talk about intrusive police actions was a hearing in a case about whether the police must get a search warrant before using GPS technology to track criminal suspects. The outcome could have implications for other high-tech surveillance methods as well. The justices expressed deep reservations about warrantless GPS tracking. But there also was no clear view about how or whether to regulate police use of the devices.

The justices were taken aback when the lawyer representing the government said police officers could install GPS devices on the justices' cars and track their movements without a warrant. To get a warrant, investigators need to convince a judge that there is reason to believe a suspect is involved in criminal activity.

"So your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?" Chief Justice John Roberts said.

Not only that, government lawyer Michael Dreeben replied, but FBI agents wouldn't need a warrant either if they wanted to rummage through the justices' trash, use a low-tech beeper to track them or tail them around-the-clock with a team of agents. Dreeben said the court has previously ruled that people have no reasonable expectation of privacy in those circumstances.

Justice Samuel Alito captured the essence of the court's concern when he said, "With computers around, it's now so simple to amass an enormous amount of information. How do we deal with this? Just say nothing has changed?"

Justice Stephen Breyer alluded to George Orwell's novel "1984" when he said surveillance in the past depended on human beings and their sometimes flawed memories. But computers don't have that problem, he said.

"The question that I think people are driving at, at least as I understand it and certainly share the concern, is that if you win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States," Breyer said.

Roberts drew a comparison with artwork to explain his perception of the power of GPS surveillance. "You're talking about the difference between seeing a little tile and a mosaic," Roberts said.

But Dreeben said it would be better for lawmakers rather than judges to set limits. Dreeben said the concerns expressed Tuesday were similar to those in the earlier high court case. Thirty years ago, Dreeben said, "Beeper technology seemed extraordinarily advanced."

The court shouldn't make special rules for GPS devices just because they allow the police to be more efficient in capturing and analyzing data, Dreeben said. GPS devices are especially useful in early stages of an investigation, when they can eliminate the use of time-consuming stakeouts as officers seek to gather evidence, he said.

The issue arose after the federal appeals court in Washington threw out the drug conspiracy conviction of nightclub owner Antoine Jones. FBI agents and local police did not have a valid search warrant when they installed a GPS device on Jones' car and collected travel information for a month.

The GPS device helped authorities link Jones to a suburban house used to stash money and drugs. He was sentenced to life in prison before the appeals court overturned the conviction. The appellate judges said the authorities should have had a warrant and pointed to the length of the surveillance as a factor in their decision.

For all the unease the justices voiced in questions to Dreeben, they seemed equally torn in questions to Stephen Leckar, Jones' lawyer, about how to impose limits on the police. Justice Ruth Bader Ginsburg asked whether the use of video surveillance cameras is so different from getting information from a GPS device on a car. In London, Justice Elena Kagan noted, cameras are everywhere.

"It's pretty scary," Leckar said.

Justice Antonin Scalia responded with evident sarcasm. "Well, it must be unconstitutional if it's scary," Scalia said.

More gently, Breyer pointed out that English authorities have used video footage to prevent terrorist attacks. The point of the questioning was to get Leckar to offer a principled way to draw a line that would still allow police to do their jobs without compromising people's rights. Leckar said perhaps police could use the GPS device to follow someone for one day or one trip, without first getting a warrant. But that didn't appear to satisfy much of the court, either.

An unusual array of interest groups backs Jones, including the Gun Owners of America, the Council on American-Islamic Relations, the American Civil Liberties Union and an association of truck drivers. The groups say GPS technology is much more powerful than the beeper technology police once employed in surveillance.

Other appeals courts have ruled that search warrants aren't necessary for GPS tracking.

The justices are considering two related issues, whether a warrant is needed before installing the device or using the GPS technology to track a vehicle. They could determine that the installation requires a warrant, leaving the knottier issues relating to tracking to another day.

A decision should come by spring.

The case is U.S. v. Jones, 10-1259.

Good article, even if you don't agree with the opinions of this e-newspaper.
Supremely Consequential: The High Court begins a term that could be its most significant in decades
Washington Times
Jonathan Adler
October 3, 2011 4:00 A.M.

Today marks the opening of what could be a blockbuster Supreme Court term. When the Court adjourned in June, it had already agreed to hear a number of important cases implicating everything from “fleeting expletives” on television and the application of civil-rights laws to religious employers to GPS surveillance of criminal suspects and the ability of Congress to direct executive action in foreign affairs. Additional high-profile cases, such as those concerning same-sex marriage and Arizona’s notorious immigration law, were already waiting in the wings. Then, in August, a divided panel of the U.S. Court of Appeals for the Eleventh Circuit invalidated the individual mandate. This decision virtually ensured that a challenge to the recently enacted health-care-reform law would reach the High Court, but when? It appears the time is now. Last week, the Obama administration declined to seek additional review before the Eleventh Circuit, filing a petition for certiorari with the Supreme Court instead. The stage is set for what could be the term of the decade — if not also for many more decades to come.

Because the petition for certiorari was just filed, the Court will not officially decide whether to hear the individual-mandate case for several months yet. Assuming certiorari is granted, as everyone now expects, the case will be heard next spring, and a decision will be unlikely before late June or July. In the meantime, the Court faces a healthy diet of meaty cases, including several implicating the First Amendment and other constitutional guarantees.

The Roberts Court has already distinguished itself as a highly speech-protective court by striking down a wide swath of government restraints on expression. Last term the Court extended First Amendment protection to offensive protests at military funerals, violent video games, and pharmaceutical-company marketing practices. It also reinforced the constitutional protection of campaign expenditures and political expression from government regulation, as it had in Citizens United. This is a Court that rarely considers speech or expression to be unworthy of judicial protection.

If this speech-protective trend continues, the Court will be likely to reject the Federal Communications Commission’s effort to regulate “fleeting expletives” — such as those sputtered by celebrities on live awards shows — in FCC v. Fox Television. Even if the Court finds that regulation of “indecency” over the airwaves is acceptable in principle, as it has in the past, it is likely to conclude that the FCC’s policy is unconstitutionally vague and, as a consequence, unnecessarily chills otherwise protected expression. In another First Amendment case, Knox v. SEIU (yes, that SEIU), the Court will consider what sort of notice non-union government employees must receive before they are forced to pay union dues that could subsidize political activity. Again it is likely those claiming First Amendment protection will prevail.

One of the criminal-law cases before the Court this term concerns whether use of a GPS tracking device on a criminal suspect’s vehicle constitutes a “search” under the Fourth Amendment. In United States v. Jones, police attached a GPS receiver to a car owned by Antoine Jones, a nightclub owner suspected of dealing drugs. The problem is that the police did not have a valid warrant. The police nonetheless monitored the vehicle’s movements for several weeks before eventually arresting Jones on several drug charges. After trial, Jones successfully challenged his conviction, arguing that use of the GPS device without a warrant was an unreasonable search and violated his Fourth Amendment rights. Although the Supreme Court has long held that people do not have a reasonable expectation of privacy in their travels on public roads, some question remains as to whether this principle allows the police to engage in continuous surveillance of a vehicle’s movements for an extended period of time. This case presents an important test of how traditional Fourth Amendment principles apply to the state’s use of modern technology.

Zivotsky v. Clinton is a potentially significant separation-of-powers case in which the justices will have to decide whether federal courts can even hear the question at hand. It has long been official U.S. policy not to recognize Jerusalem as the capital of Israel. As a consequence the U.S. embassy is in Tel Aviv and passports for American citizens born in Jerusalem do not list Israel as their country of birth. Congress disagreed with this policy and, in 2002, enacted legislation directing the State Department to identify Americans born in Jerusalem as having been born in Israel if they so desire. President Bush signed the law, but the State Department still objects, and has declined to enforce the law as an unconstitutional intrusion on the executive branch’s control over foreign affairs. Litigation ensued, but lower courts refused to resolve the dispute on the grounds that it raises a “political question” not amenable to resolution in federal court. If the justices agree, it will be a useful reminder that there are some issues, particularly those implicating foreign affairs, the judiciary just should not touch.

Federalism issues also return to the Court as the justices will consider whether federal law preempts state regulation of certain slaughterhouse practices and whether sovereign immunity protects states from private suits under portions of the Family and Medical Leave Act. As if that were not enough, the Court will also consider the scope of the “ministerial exception,” which generally protects religious organizations from employment-discrimination suits, as well as whether Congress may implement a treaty removing works from the public domain, and whether private landowners have a right to challenge an EPA determination that their property contains wetlands before applying for a permit or risking prosecution.

This year’s docket is just over half full, and there’s already enough on it to keep Court-watchers busy — and then there’s Obamacare. Yet the constitutionality of the individual mandate is not the only hot-button issue the Court may add to this year’s roster. Pending petitions for certiorari ask the Court to reconsider the constitutionality of race-based affirmative action in college admissions and to begin defining the scope of the individual right to bear arms protected by the Second Amendment. Additional petitions seek Court rulings on the constitutionality of applying state sales taxes to product purchases made on the Internet from out-of-state vendors and the liability of corporations for allegedly tortious actions overseas. There’s also some chance the Court will consider whether federal law preempts Arizona’s infamous immigration law and whether the Defense of Marriage Act is constitutional. Any one of these cases would add substantially more fuel to an already explosive docket, but this term the Court might hear them all — and in an election year no less.

President Obama and President Bush were each able to name two justices to the current Court. This term, more than any other thus far, should tell us what these nominations have wrought. Are Chief Justice Roberts and Justice Alito as committed to constraining the scope of federal power and protecting state prerogatives as were Chief Justice Rehnquist and Justice O’Connor? Are Justices Sotomayor and Kagan as reliably liberal as Justices Souter and Stevens had become before they retired? Can the current chief justice build consensus when big questions are at stake? Or will the current Court break predictably on issue after issue along ideological lines? This term will provide some answers, while also resolving the most pressing question of federal power considered in the past ten years. In short, the October 2011 term is not one to miss.