Supreme Court Sampler

It’s that season, when all of us watch, with nailbiting expectation, to see who the winners and losers are.

No, I’m not referring to World Cup Soccer. That’s for normal households. In the Spherical Model household, we’re watching the Supreme Court rulings come in. (If I had a graphic arts team here at Spherical Model, I'd have justices in robes kicking around a soccer ball in a grand stadium. Please imagine that here.)

The biggies for this session (Hobby Lobby and others who don’t want Obamacare to force them to purchase things against their religious views) have not shown up yet. There are still a few more days.

But there are a few things that appeared so far this week.

Recess appointments--Canning v. NLRB (National Labor Relations Board)

This was a 9-0 decision, slapping the president’s hand for reaching into the power cookie jar. But it isn’t as strong a rebuke as it could have been. The Constitution expects presidential appointments to be subject to Senate approval or disapproval (advise and consent). The president doesn’t like to submit to that—even though he has a Democrat Senate, because there are enough Republicans that might bring up the inappropriateness of many of his appointees. He is not the first president to misuse the recess appointment procedure.

It’s in the law because, at the time of the founding, when the legislative branch took a break and people returned to their home districts, it could take weeks to call them back to reassemble. If a need came up during their absence, it made sense to make a temporary appointment, so work would not be held up.

It doesn’t take weeks to recall the Senate now. But the Constitution doesn’t include reasons and intentions, so presidents have used this clause for their own political purposes—more so as transportation becomes less and less an issue. The SCOTUS today ruled that, while the president can indeed appoint during breaks in session, he can’t decide that a long weekend is a break. Even 10 days is probably too short a break. The justices fell short of defining the length of the break, but clearly ruled that the president shouldn’t be doing what he’s been doing.

The more conservative members of the Court held that the rule should be when the legislature is actually not in session—probably just during their annual August break. I’m with them. My son Political Sphere suggests that they ought to have also added the requirement that the appointment be urgent, couldn’t have been made in time before the legislative session ended, or couldn’t wait until the legislative session was to meet again. And of course such appointments ought to be approved or disapproved as soon as the legislature meets again—rather than just letting the appointment stand. In other words, change the expectations for Senate approval of appointments back to what the Constitution requires. What a concept.

I heard several times today that this ruling was the 12^th (maybe 13^th) time SCOTUS has ruled unanimously against Obama’s executive power overreach.

Buffer Zones at Abortion Clinics—McCullen v. Oakley

In this Massachusetts case, there was a rule that within a 35-foot buffer zone, no one could enter the space near an abortion clinic except patients, workers, and anyone with business in the vicinity. In other words, no one could approach someone who might be going for an abortion and offer them “counseling,” or information that might sway their behavior.

This is a free speech argument. We’re talking about public sidewalks, which are traditionally places where demonstrations of speech are legal. And here the restriction is on specific speech on a specific topic—to prevent anti-abortion speech. Why that speech? Why is that targeted, but other speech could be allowed other similarly public locations? What makes the public space around an abortion clinic a non-free-speech zone?

The Obama administration supported censorship. The plaintiff asked for support of free speech rights. While there could be a safety issue to consider, the government must choose the least intrusive alternative. The Court could see that banning all free speech in a specified area, mainly to prevent speech on a specific issue, was not the least intrusive means. (A good discussion was on Hugh Hewitt's The Smart Guys segment Thursday--available by subscription.)

Here are a couple more of the rulings, with links to read further:

·         EPA Greenhouse Gas Regulation—Utility Air Regulatory Group v. Environmental Protection Agency (read here and here).

·         Cell phone searches require warrant—Riley v. California (read here and here).

Meanwhile, in the Tenth Circuit Court, the state of Utah has been disallowed to define marriage. You’ll probably read errant headlines that the state’s ban on same-sex marriage has been found unconstitutional. That’s not really accurate. The 3-judge panel of the 10^th Circuit ruled against the state, in a 2-1 split, based on the Windsor ruling of June 2013, which decided that the US DOMA law was wrong to define marriage as between one man and one woman if other entities (i.e., state governments) defined it differently. In other words, the Supreme Court was leaving the defining of marriages to the states. But every time it has come up since then, some court has decided that states do not have the right to define marriage as between one man and one woman, because it’s unconstitutional. Hmm.

So, the courts are ruling that defining a term in a contract cannot be done at the federal level nor at the state level. That is very troubling. So how can governments define terms in a contract? The way the unelected and nebulous but powerful politically correct police say they can, according to the whims of the day—of course.

In this case, Kitchen v. Herbert, the steps may include appeal to the 10^th Circuit en banq (the full panel of 10^th Circuit Court judges). That may or may not be tried or accepted. If it is, then that court will hear the case first. If not, it could go to the Supreme Court as early as this coming fall. In the meantime, the Court stayed its ruling (will not in the meantime allow same-sex “marriages” to take place while the issue isn’t ultimately settled).

On the Court

During last week’s look at the Best of the Spherical Model (Part I, Part II, and Part III), I left out one piece that is actually among the most re-read: Supreme Court Voting Patterns. My son Political Sphere had collected data to look at the Supreme Court’s voting record up to the point just before the Obamacare vote. It was topical, which is why I didn’t include it last week. But enough has come up about the Court this week that I’m thinking it would be good to update the voting record chart in the near future.

In the meantime, a couple of recent rulings are worth looking at.

Monday, June 16, the Court ruled on an Arizona Voter ID case, about whether a state can require verification of citizenship for voter registration when federal law does not require such verification. The short answer you’re hearing in the news is that the Court favored the federal government’s view, and limiting states. But the more complicated, actual ruling is that on one of five issues (the least relevant), the Court sided with the federal government, but on the other four issues, the Court verified states’ rights—which is a good thing. J.Christian Adams, former DOJ attorney and author of Injustice, has been working with voter integrity issues for a long time. His assessment is an excellent summary.  The Heritage Foundation also covers the ruling.

Back on June 3^rd, the Court ruled on the collection of DNA evidence. Justice Scalia dissented from the majority—along with three of the liberals on the Court. Nevertheless, I think as usual Scalia is right.

Here’s the scenario from the case: a man was taken into custody for assault in Maryland in 2009.  DNA taken during his arrest for the assault became evidence in new charges against him from a 2003 rape, because his DNA matched a rape kit kept from that earlier case. An evildoer is caught; that should be a good thing.

Here’s the problem: the Court ruled that DNA could be taken at the time of arrest, because it is essentially an identifier, like fingerprints. What they could foresee was that, if a prisoner needed to be moved, the DNA would prove that the correct person was being transported. But that isn’t actually how ID-ing a prisoner would work. His fingerprints would indeed be a quick and accurate identifier. Taking a fresh fingerprint and using a fingerprint database would take no more than half an hour. But taking a DNA sample for that purpose would never be done. The sample would need to go to a lab, where it could take, at best, hours (and more likely weeks) to compare to the existing record of that prisoner’s DNA. In the case in question, the DNA wasn’t looked at until four months after arraignment.

And even then it wouldn’t be infallible. DNA results show whether there’s a high likelihood that two DNA samples match. It’s a matter of probabilities, not certainty. We can’t say no two humans have the same DNA. Identical twins occur in about 11 births per thousand, and they share identical genetics. But even identical twins have different fingerprints.

So, for greater expense, longer time, and less accuracy, why use DNA instead of fingerprinting?

The Court seemed to agree that collecting the DNA for the purpose of using it as a fishing expedition to tie the suspect to other crimes was not right. The DNA, when collected for use in the case where the person is a suspect is a reasonable gathering of evidence. But what if the suspect is exonerated of that crime? Should his DNA be kept, and used to compare to other crimes? Is he required to provide evidence against himself for unknown, unsuspected crimes, on the off chance that something might be found someday? The Court halfway said that couldn’t be the reason. But, if you think of the DNA not as evidence, but as just an ID, like a fingerprint, then it was OK. (And then, if it happened to be used in some other way, that wasn’t the Court’s concern.)

If one were to assume a corrupt government (just hypothetically speaking), it would be difficult and improbable for some official to place a political enemy’s fingerprints at a crime scene in order to frame the person. But placing DNA at the scene could be in the form of a hair, a fingernail, a bit of saliva left on a drinking glass. The person kind of has to be there to leave his fingerprints, but he doesn’t necessarily have to be there to have his DNA placed there.

Even without a corrupt government, we do have a fourth amendment protection that is at issue. As Scalia summed it up: "Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail." Yes, those amendments—they keep coming up.

Meanwhile, in a slightly related issue, Senator Mike Lee (R-UT) has just come out with a book, Why JohnRoberts Was Wrong on Obamacare.  He lays out the case that the Chief Justice changed his opinion midstream concerning Obamacare, coming up with the tortured ruling that it was OK if it was a tax, which it was declared not to be by federal government lawyers on days it was convenient to say that, but declared as a tax—by the same lawyers on other days when that was convenient.

available here

I haven’t read the book yet. From what I’ve seen covered, I think it implies there may have been pressure on Roberts to change his opinion. Most of us who were looking on at the time thought that was the case. There was quite a lot of evidence, just in the way the dissent was written, as if it had been the majority opinion, that he had changed his mind. So the question we all had was why. I think we’d all still like to know: was Justice Roberts coerced? Were there threats to his reputation or his person or his family? Was he more subject than we thought to political pressure or the desire to be liked in Washington? We’d like to know, because his vulnerability to pressure, for whatever reason, coupled with the power to determine binding law, has consequences for all of us.

Even when our justices are wrong, we want their opinions to come from their best understanding of the Constitution, not some tortured effort to reach a pre-desired outcome.