SCOTUS Watch

[Isgrimnur]

CNN

The Supreme Court, 4-3, upheld the race-conscious admissions program at the University of Texas Thursday, saying that the plan, that takes race into consideration as one factor of admissions, is constitutional.

[Isgrimnur]

Drunk driver screening

The Supreme Court on Thursday placed new limits on state laws that make it a crime for motorists suspected of drunken driving to refuse alcohol tests.

The justices ruled that police must obtain a search warrant before requiring drivers to take blood alcohol tests, but not breath tests, which the court considers less intrusive.

The ruling came in three cases in which drivers challenged so-called implied consent laws in Minnesota and North Dakota as violating the Constitution's ban on unreasonable searches and seizures. State supreme courts in each state had upheld the laws.
...
In all three cases before the high court, the challengers argued that warrantless searches should be allowed only in "extraordinary circumstances." They said routine drunk driving stops count as ordinary law enforcement functions where traditional privacy rights should apply.

Justices Sonia Sotomayor and Ruth Bader Ginsburg said they would have gone further and required search warrants for both breath and blood alcohol tests. Justice Clarence Thomas dissented, saying he would have found both tests constitutional.

Of course, that ruling is effectively irrelevant. Thanks, NHTSA!

The No Refusal program is an enforcement strategy that allows jurisdictions to obtain search warrants for blood samples from suspected impaired drivers who refuse breath tests. Many jurisdictions allow officers to request warrants via phone from on-call judges or magistrates. This enables law enforcement to legally acquire a proper blood sample from drivers who refuse to give a breath sample. During these specified enforcement efforts, prosecutors and judges make themselves available to streamline the warrant acquisition process and help build solid cases that can lead to impaired driving convictions. The No Refusal program should also be highly publicized to let the public know that their chances of being caught, arrested, and convicted increase during these efforts.

[El Guapo]

SCOTUS 4-4 deadlock leaves 5th Circuit's opinion in place striking down Obama immigration order.

WASHINGTON — The Supreme Court on Thursday announced that it had deadlocked in a case challenging President Obama’s plan to shield millions of immigrants from deportation and allow them to work. The 4-4 tie left in place an appeals court ruling blocking the plan, dealing a sharp blow to an ambitious program that Mr. Obama had hoped would become one of his central legacies. Instead, even as the court deadlocked, it amplified the already contentious election-year debate over the nation’s immigration policy and presidential power.

The case, United States v. Texas, No. 15-674, concerned a plan to allow as many as five million unauthorized immigrants who are the parents of citizens or of lawful permanent residents to apply for a program that would spare them from deportation and provide them with work permits. The program was called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.

Mr. Obama has said he took action in 2014 after years of frustration with Republicans in Congress who had repeatedly refused to support bipartisan Senate legislation to update immigration laws. A coalition of 26 states, led by Texas, promptly challenged the plan, accusing the president of ignoring administrative procedures for changing rules and of abusing the power of his office by circumventing Congress.

[Blackhawk]

And the Republicans again bring the government grinding to a halt.

[El Guapo]

Here's what I don't understand about how this immigration thing works out. With a 4-4 deadlock like this, the lower court's opinion remains in place without creating Supreme Court precedent. Which means the import and binding nature of the 5th Circuit ruling only governs within the 5th Circuit. But how does that work with a national immigration plan like this? Could the Obama administration say "the Fifth Circuit decision is law within the 5th circuit, so we will instruct our immigration officers there to follow it, but elsewhere we will continue to apply it."

Of course, in addition to that issue, if the Obama administration could find a way to get this issue before another Circuit Court, they would be free to say no the Fifth Circuit is wrong, this program is constitutional. But splits like that on an immigration decision with national effects would be a crazy situation for the Supreme Court to not intervene, though we could plausibly wind up there.

And then, if Clinton wins the general and gets a justice seated then presumably she could just re-issue the program, probably with some slight tweaks, and probably have it get upheld.

[Pyperkub]

Oregon has a very interesting Supreme Court ruling here:

Under the law, dogs and other animals are, by and large, considered to be property—on more or less equal footing with tables and chairs, purses and chests of drawers. What that means is that they can be bought and sold, and have few standards as to how they must be treated (outside of some minimal abuse and neglect protections).

But while Oregon law and the 4th Amendment of the U.S. Constitution prohibit law enforcement from looking inside a purse without a warrant, last week the court unanimously ruled that a dog may have his blood drawn—and be given some other exams and treatments—without a warrant, under some circumstances...

...At her trial, the defendant tried to suppress the blood-draw evidence. She argued that because Juno is a pet, and pets are property, the blood draw was an illegal warrantless search—just like it would be illegal for investigators to open up a chest of drawers, without a warrant...

...To get there, the court relied on the Oregon legislature and judiciary both having recognized animals’ special status, somewhere between human beings and tables and chairs—protected from abuse and neglect, but also able to be bought and sold, and killed for food.

“Reflected in those and other laws that govern ownership and treatment of animals is the recognition that animals ‘are sentient beings capable of experiencing pain, stress and fear,'” the court wrote in the unanimous opinion—and so humans’ “dominion” over the animals, the opinion continues, also has nuanced contours, as do the humans’ privacy interests in the animals.

In this case, the court reasoned, “when Dr. Hedge tested Juno’s blood, defendant had lost her rights of dominion and control over Juno, at least on a temporary basis.”

[Isgrimnur]

To me, the quoted portion leaves off some important context:

This case began in 2010, when an animal cruelty investigator for the Oregon Humane Society was called out to look into reports that a Portland resident, Amanda Newcomb, was beating and starving her dog Juno, and keeping the dog in a kennel for many hours per day.

According to Oregon Live, the investigator found Juno in a bad state, with “no fat on his body.” The dog “was kind of eating at random things in the yard, and trying to vomit.” Newcomb told the investigator that she was out of dog food, and was planning to buy more that night.

Juno was brought to the Oregon Humane Society, where a veterinarian gave him a “body condition score” of 1.5, on a scale of 1 (meaning emaciated) to 9 (meaning overweight).

Then, to find out if Juno was skinny due to malnutrition or for some other reason, the vet drew blood, which revealed no parasites or other condition that would have caused Juno’s poor condition, and led to Newcomb being charged with second-degree animal neglect.
...
Yes, a pet is property, which gives an owner certain rights over the animal. But under Oregon law, pets are not just property—they are living things, who must be afforded basic, minimum care. The obligation to provide that care falls on their owner, or the person who has control over the animal.
...
The court specifically limited the reach of its quite lofty-sounding ruling to these facts: It applies only when a dog or other animal has been lawfully seized, due to the animal’s likely abuse or neglect. And then, “is also confined to the general kind of intrusion that occurred in this case—a medically appropriate procedure for diagnosis and treatment of an animal in ill-health.”

Then, a dog or other animal’s blood may be drawn, or other tests or treatments provided, without violating the owner’s right to privacy or to be free from unlawful search and seizure.

[Defiant]

Not Scotus, but I figured it fits here:

Judge says the FBI can hack your computer without a warrant

Basically, the judge argued, computers are hacked every day and no one should expect privacy while operating online.

"The rise of computer hacking via the internet has changed the public's reasonable expectations of privacy," he wrote. "Now, it seems unreasonable to think that a computer connected to the web is immune from invasion. Indeed, the opposite holds true: In today's digital world, it appears to be a virtual certainty that computers accessing the internet can -- and eventually will -- be hacked."

[msteelers]

There's no way other judges would agree to that. In college they taught us that if someone has to go out of their way to get info on you then that is an invasion of privacy. An example would be if I'm standing on the sidewalk and you are in your house screaming with the windows open, I can use that without it being a violation of your privacy. But if I have to use a high tech listening device in order to hear and record you, now I've violated your privacy. You don't lose your right to privacy in your own home just because there is a rash of peeping Toms on the loose.

Hacking is no different. I expect/hope that this gets overturned relatively quickly.

[Rip]

Not Scotus, but I figured it fits here:

Judge says the FBI can hack your computer without a warrant

Basically, the judge argued, computers are hacked every day and no one should expect privacy while operating online.

"The rise of computer hacking via the internet has changed the public's reasonable expectations of privacy," he wrote. "Now, it seems unreasonable to think that a computer connected to the web is immune from invasion. Indeed, the opposite holds true: In today's digital world, it appears to be a virtual certainty that computers accessing the internet can -- and eventually will -- be hacked."

So that should mean if law enforcement or the government hook computers up to the internet they should expect to be hacked as well.

So I'm guessing the judge has no problem with them going through the phones/computers of him and his family?

What a load of crap.

[Max Peck]

So that should mean if law enforcement or the government hook computers up to the internet they should expect to be hacked as well.

Obviously the judge in question is a Clinton operative who is setting a legal precedent to provide a defense for the emailgate server, if that ever goes to trial.

[gilraen]

SCOTUS strikes down Texas abortion restriction law

...which will have wide precedent for several southern states that have such laws currently either blocked or litigated.

[Isgrimnur]

We're over in the Wendy Davis thread on that one.

[gilraen]

We're over in the Wendy Davis thread on that one.

And yet this is the appropriate thread to at least have it mentioned for posterity.

[GreenGoo]

We're over in the Wendy Davis thread on that one.

And yet this is the appropriate thread to at least have it mentioned for posterity.

It's not inappropriate in this thread. Isgrim was just saying that if you wanted to discuss it, the other thread is active on the topic.

[Max Peck]

Ginsburg doesn't want to envision a Trump win

Justice Ruth Bader Ginsburg says she doesn't want to think about the possibility of Donald Trump winning the White House, and she predicts the next president - "whoever she will be" - will have a few appointments to make to the Supreme Court. In an interview Thursday in her court office, the 83-year-old justice and leader of the court's liberal wing said she presumes Democrat Hillary Clinton will be the next president. Asked what if Republican Donald Trump won instead, she said, "I don't want to think about that possibility, but if it should be, then everything is up for grabs." That includes the future of the high court itself, on which she is the oldest justice. Two justices, Anthony Kennedy and Stephen Breyer, are in their late 70s.

"It's likely that the next president, whoever she will be, will have a few appointments to make," Ginsburg said, smiling.

[PLW]

Can Garland challenge the Senate's failure to have a hearing? I was listening to Radiolab's new podcast about the Supreme Court, Almost Perfect, and the Marbury in Marbury vs. Madison was essentially challenging the (next) executive's withholding of his judicial commission.

[AWS260]

Ginsburg doesn't want to envision a Trump win

Justice Ginsberg has inspired a bipartisan breakthrough:

New York Times Editorial Board: Donald Trump Is Right

[tgb]

Ginsburg doesn't want to envision a Trump win

Justice Ginsberg has inspired a bipartisan breakthrough:

New York Times Editorial Board: Donald Trump Is Right

I don't think it necessarily calls for retirement (at least until she starts yelling at the mess boys for eating her strawberries), but yeah, she really should keep her trap shut on this matter.

[PLW]

I agree. She might need to rule on a case related to this election. It's not like it's unprecedented.

[Scraper]

Ginsburg doesn't want to envision a Drumpf win

Justice Ginsberg has inspired a bipartisan breakthrough:

New York Times Editorial Board: Donald Drumpf Is Right

I don't think it necessarily calls for retirement (at least until she starts yelling at the mess boys for eating her strawberries), but yeah, she really should keep her trap shut on this matter.

With the exception of the late Justice Scalia most of our 9 Judges have traditionally kept quiet about politics and headline news in general, this is definitely a slip up for her. I wonder if the other Judges will say something to her? I'm not sure how that works.

[Scraper]

More importantly this is Trumps response via Twitter:

"Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot - resign!"

This highlights the difference between someone who is worthy of the Presidency and someone who is not. A person ready for the Presidency doesn't call it a dumb political statement and they most certainly don't say her mind is shot. Trump only knows how to insult those who disagree with him, he has no idea how to actually respond in an intelligent manner.

[Zarathud]

The notorious Ruth Bader Ginsburg doesn't give a shit. It's known she plans to retire.

Scalia's death has probably affected her because they were friends despite being political opposites. Scalia was even more political.

[Grifman]

More importantly this is Trumps response via Twitter:

"Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot - resign!"

This highlights the difference between someone who is worthy of the Presidency and someone who is not. A person ready for the Presidency doesn't call it a dumb political statement and they most certainly don't say her mind is shot. Trump only knows how to insult those who disagree with him, he has no idea how to actually respond in an intelligent manner.

She had no business rendering an opinion on a presidential candidate. But as you note, Trump's response so typical. Anyone criticizing him is insulted. This time he insults the elderly by saying that "her mind is shot".

Who's left, other than conservative white males to offend?

[RunningMn9]

While I agree that she should not have rendered an opinion, I don't buy the "she has no business rendering an opinion on a candidate". She has every right to render an opinion. As long as she understands the consequences (how could she not recuse herself if something like Bush v Gore happened again).

[Enough]

The notorious Ruth Bader Ginsburg doesn't give a shit. It's known she plans to retire.

Scalia's death has probably affected her because they were friends despite being political opposites. Scalia was even more political.

Agreed on both counts. I would have been fine if she didn't go there, but she does not care on iota at this point what I think heh.

[Grifman]

While I agree that she should not have rendered an opinion, I don't buy the "she has no business rendering an opinion on a candidate". She has every right to render an opinion. As long as she understands the consequences (how could she not recuse herself if something like Bush v Gore happened again).

But that's the point. As a SCJ, she has no business intentionally putting herself in a position where she might have to recuse herself. Once appointed to the bench she has certain rights and responsibilities - and not thrusting herself into partisan political debate is one of them.

[Smoove_B]

But that's the point. As a SCJ, she has no business intentionally putting herself in a position where she might have to recuse herself. Once appointed to the bench she has certain rights and responsibilities - and not thrusting herself into partisan political debate is one of them.

Whoa, now -- let's not get crazy. It's not like she is taking free trips or something.

[Isgrimnur]

I love it when everyone but the people making the rules have to abide by them.

[RunningMn9]

Once appointed to the bench she has certain rights and responsibilities - and not thrusting herself into partisan political debate is one of them.

One of the "certain rights" she has is to open her mouth and say words during an interview. Whether she has the "responsibility" to not do it is debatable. And while I personally believe she shouldn't do it, the decision is hers and not mine (or yours).

Again, as long as she understands and is willing to deal with the consequences. At her age though, maybe love of country is more important to he than what I think she should be saying?

I give her frowny faces, but she's a US citizen that will have to live with decision too.

[Enough]

And in addition to Scalia, don't forget Thomas refusing to recuse on multiple cases where it appeared he should. Let's just be honest, once on the SC you can become virtually untouchable.

[GreenGoo]

Shrug. She's allowed to have opinions on things, and requiring her to never comment on anything because one day she might have to rule on it is idiotic.

That said, it's common sense to keep your mouth shut during an active election cycle.

And THAT said, she was being interviewed and was asked a question. She didn't volunteer it.

[El Guapo]

Shrug. She's allowed to have opinions on things, and requiring her to never comment on anything because one day she might have to rule on it is idiotic.

That said, it's common sense to keep your mouth shut during an active election cycle.

And THAT said, she was being interviewed and was asked a question. She didn't volunteer it.

To me the issue is not with recusal (honestly I doubt that having expressed opinions about Trump as a candidate would merit recusal from a case), but with traditions of judicial independence from political campaigns. This is a good summary of the problems with Ginsburg's comments from that perspective.

It's not the end of the world, and something like this was probably inevitable as political norms break down over time. But it's not great either.

[tgb]

My mother is 90. My mother-in-law is 85. Both of my grandmothers lived well into their late 90's. If there's one thing I can say with assurance, it's that old Jewish ladies don't come with a filter. Or an off button.

[PLW]

On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them.

[Zarathud]

Lifetime appointment or not, RBG was called down to the Chief Justice's office.

[Kurth]

Lifetime appointment or not, RBG was called down to the Chief Justice's office.

Love her, but deservedly so.

[em2nought]

I love it when everyone but the people making the rules have to abide by them.

At least back in the old days you had to resign, and let Ford take your place.

[Isgrimnur]

Texas voter ID law allowed to remain in place for now.

The Supreme Court has refused for now to block a strict voter identification law in Texas that critics say will make it harder for as many as 600,000 registered voters who lack driver's licenses to cast a ballot this year.
...
But the law has remained in force while the full U.S. 5th Circuit Court in New Orleans weighs the state's appeal.

In Friday's order, the high court said it would be open to considering another emergency appeal if the 5th Circuit has not ruled by July 20.

Is that today?

A federal appeals court struck down Texas' tough voter identification law as discriminatory Wednesday, giving civil rights advocates a crucial victory in advance of the 2016 election.

The 9-6 ruling from the U.S. Court of Appeals for the 5th Circuit, a generally conservative court, represents the third consecutive decision against the Texas law and sets up a potential Supreme Court showdown over the contentious issue of state photo ID rules.
...
The appeals court majority said the law was not intended to discriminate but had that effect on minority voters.
...
Dissenting judges said the law was reasonable in both purpose and effect.
...
Texas Attorney General Ken Paxton criticized the court ruling. "Preventing voter fraud is essential to accurately reflecting the will of Texas voters during elections," he said, "and it is unfortunate that this common-sense law, providing protections against fraud, was not upheld in its entirety.”
...
The Texas case and another challenge to North Carolina's array of voting restrictions are the leading contenders among many voting rights cases to get to the Supreme Court as early as next year, when the justices could define what types of voting changes are allowed and prohibited under the Voting Rights Act.

[El Guapo]

That's good news. There's a 0% chance that the SCOTUS reverses. This doesn't matter much for this election as to Texas since they would vote for Lucifer before Hillary Clinton, but this could impact how the North Carolina challenge turns out (which might well matter for the election).