The Supreme Court chamber was packed today as lawyers argued, in NLRB v. Canning, the Constitution’s Article II clause on recess appointments. White House spokesman, Jay Carney, lately sporting a beard, sat on the same bench , though at different ends,as Senate Minority Leader Mitch McConnell.
At the conclusion of the arguments, as spectators and lawyers exited and the lawyer for the next case to be argued took his place at the lectern Chief Justice Roberts said, “We’re still here”.
Below are a few more sketches from the argument.
You can read about it here.
A family emergency has me out of town. I hope to be back at the Court next week. In the meantime here’s a doodle from the 2011 Term.
When professional gamblers Gina Fiore and Keith Gipson passed through the Atlanta airport on their way home to Nevada after a gambling trip to Puerto Rico a search of their bags turned up $97,000 in cash. The DEA was contacted and Fiore and Gipson were detained for questioning. They told Anthony Walden, a local police officer deputized as DEA agent, that they learned the cash legitimately at the gambling tables. Nevertheless the cash was seized and Walden told them that they would get it back once they provided proper documentation.
Upon their return to Las Vegas they sent the necessary documentation, but the DEA continued to hold on to the cash based on a questionable affidavit drafted by Walden. Eventually the money was returned and the gamblers filed a lawsuit against officer Walden in Nevada federal court.
The question before the Supreme Court at Monday’s argument in Walden v. Fiore is whether the court in Nevada has jurisdiction over an officer doing his job in Georgia and where should the case be tried. The above sketch shows Walden’s lawyer, Jeffrey S. Bucholtz, arguing that the case belongs in Georgia.
Tom Goldstein, on the other hand, argued that the injury occurred in Nevada and, as the Ninth Circuit concluded, should be tried there. He concluded by warning, “. . . if that’s not enough, you are closing the door absolutely to all internet cases . . . where someone sits at the computer and targets someone in another State.
Prayer at public government sessions was back before the Supreme Court this morning. It’s been thirty years since the Court last visited the issue when it ruled that it was constitutional for the Nebraska legislature to begin the day with a prayer. This time the prayer is at local government meetings of the Town of Greece, New York.
There was enough interest in the case for a group of law students spent the night in line outside the Court. Once they finally got their seat passes this morning, the Court’s cafeteria was a good place for a nap.Also in the cafeteria were several clergy, and I spied a group of nuns in the courtroom admiring the friezes, buttocks and all.
Attorney Thomas Hungar argued for the Town of Greece. As Hungar began Justice Kagan interrupted him to read an overtly Christian prayer from the record and asked if that would be permissible here at the Supreme Court.
University of Virginia law professor Douglas Laycock, representing the two women who are challenging the town’s prayer, Susan Galloway and Linda Stephens, was asked by Justice Alito to give an example of a prayer that would not offend anyone. “I don’t think it’s possible,” said Alito, “to compose anything that you could call a prayer that will be acceptable to all of these groups.” “You can’t treat everyone equally without getting rid of prayer altogether,” Laycock responded.
The case is Town of Greece v. Galloway
When Carol Anne Bond’s best friend gave birth to a baby fathered by her, Bond’s, husband, she sought revenge. She applied toxic chemicals to her friend’s mailbox, doorknobs, etc. She was caught on video surveillance and arrested, but the local authorities choose not to press charges. Instead she was charged in federal court under the Chemical Weapons Convention because she put postal workers at risk.
Arguing for Bond, Paul Clement told the justices that prosecutors had overreached; that the treaty should only apply to “warlike” uses of chemicals, and not to attempts to poison a “romantic rival”.
Solicitor General Verrilli had a harder time at the lectern trying to convince the Court to not put limits on the implementation of international treaties.
Among the many hypotheticals posed to the Solicitor General was a statement from Justice Alito that he and his wife had passed out “chemical weapons” to children -i.e., Halloween chocolate. Why, he asked, would that not fall under the Chemical Weapons Convention since the treaty bans any chemical harmful to animals as well as humans, and, he noted, “chocolate is poisonous to dogs”.
The case is Bond v. U.S.
Lyle Denniston covers the argument here.
My sketch of a panel discussion hosted by The Reporters Committee for Freedom of the Press on transparency – read cameras – in the Supreme Court that took place at The National Press Club this morning.
The panel, from right to left, was composed of Alan Morrisson, Pete Williams, Neal Katyal, Maureen O’Connor, Ken Starr and moderator Tony Mauro. They all pretty much agreed – with a teeny bit of reservation from Katyal – that cameras are inevitable and belong in the Supreme Court.
Scott Cheever, a long time user of crystal meth, shot and killed an officer while high. At trial he used the defense that in his intoxicated state he could not have formed the “intent to kill” that would get him the death penalty.
He was found guilty and sentenced to death, but during the trial in state court the prosecution called to the witness stand a psychiatrist who had earlier examined the defendant under a federal court order, before the case was transferred to state court. The Kansas Supreme Court ruled unanimously that the state violated Cheever’s Fifth amendment right against self-incrimination by calling the psychiatrist to testify.
The question before the U.S. Supreme Court today, are statements made by a defendant during a court-ordered mental evaluation protected under the fifth amendment?
Several times during the argument reference was made to “peering into the defendant’s mind”. Does it seem fair, as Cheever’s attorney, Neal Katyal, put it “that the government can peer into someone’s mind and extract information . . . un-Mirandized . . . and have that used against them”? . . . After all isn’t it just a little bit like cheating on your metaphysics final by looking into the soul of the boy sitting next to you ? . . . (apologies to Woody Allen)
By the end of the argument it wasn’t looking good for Scott Cheever as Justice Sotomayor asked his lawyer, “Mr. Katyal, assuming the incredulity of my colleagues . . . which way would you rather lose?
The Supreme Court this afternoon heard arguments on Michigan’s “Proposal 2”, a voter-approved law that forbids the use of race in college admissions, as well as public employment and contracting. The case is Schuette v. Coalition to Defend Affirmative Action (note that I’ve labeled my drawings “Schuette v. BAMN” because it’s shorter. BAMN stands for “By Any Means Necessary”, and comes from the challenger’s full title, Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary). But enough from me. Here are the sketches.
Lyle Denniston has the full story here.
Can the Daimler AG’s subsidiary, Mercedes-Benz USA, be in sued in California courts for human rights violations committed over thirty years ago during Argentina’s “Dirty War”? The Ninth Circuit said yes, but the Supreme Court clearly does not agree.
The lawyer for the victims of Argentine state terrorism, Kevin Russell, had an uphill battle. The best he may hope for is that the case is sent back to the lower courts.
Lyle Denniston’s analysis of the argument is here.
A long line of spectators and a smattering of demonstrators, some with halloween themed placards – as well as two suspected C-span interns with a crappy banner that demanded “Cameras in the Court NOW!” – were on the Supreme Court plaza this morning for the Court’s latest go at campaign finance.
The case, McCutcheon v. FEC, is brought by a wealthy Alabama businessman who is challenging the limit on total contributions during a two-year election cycle. Current law limits individual contributions to candidates to $48,600 and $74,600 to parties and PACs during the two-year cycle. That the law limits the number of candidates to whom he could donate $1776 Shaun McCutcheon considers a violation of his First Amendment right to free speech.
A lawyer for Senator Mitch McConnell argued that limits on the aggregate contributions should meet the test of strict scrutiny to pass constitutionality.
While Solicitor General Donald Verrilli warned that without the limits elections could be dominated by wealthy donors.
Lyle Denniston’s story here.