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July 2013 Archives

1st Circuit Punts on Phone Searches, Fast-Tracks to SCOTUS

A search incident to arrest. It's a simple concept. If the police are arresting you lawfully, they can dig through that grocery sack filled with cash and bullets that is dangling from your left arm. Or, as the court held in United States v. Robinson, and reiterated recently in Maryland v. King, the search of a person and the items within his immediate control require no additional justification beyond the arrest itself.

There are many good reasons to allow such a search, such as finding evidence of the crime in progress, preventing destruction of the evidence while the warrant is being sought, and of course, for officer safety.

But a cell phone? What's it going to do -- delete itself? Is Siri going to go on a killing spree? Is there any good reason for not chasing down a warrant?

VRA Lives: Texas, North Carolina Targeted by VRA Bail-In?

The Voting Rights Act is dead! Long live the Voting Rights Act!

Since the Supreme Court issued its extremely controversial decision in Shelby County v. Holder last month, the criticism has been constant and loud. It began with a passionate dissent by Justice Ruth Bader Ginsbug, and continued with a book review turned SCOTUS review by Retired Justice John Paul Stevens.

It may also be responsible, at least in part, for the plummeting SCOTUS approval rates, dropping below 50 percent for the first time in nearly three decades. Black respondents' disapproval rate has skyrocketed to 41 percent after the end-of-term decisions from only 24 percent disapproval back in March.

Monks, Morticians, and a Casket Racket

Will this be the weirdest set of facts to fall on the Supreme Court docket this term?

Our own Robyn Hagan Cain reported on the case of the Monks versus the Morticians, throughout its Fifth Circuit journey. The monks of St. Joseph's Abbey have been making cypress caskets to bury their brothers for decades. After Hurricane Katrina wiped out their pine forest, which was their primary means of support, the brothers put their casket-making skills to commercial use and began preparing for sales to the public.

Hobby Lobby's Contraception Challenge Likely Headed to SCOTUS

Though still subject to the whims of certiorari, it looks like the Hobby Lobby contraception case will finally be headed to the U.S. Supreme Court, reports SCOTUSblog.

For those who haven't followed the dozens of religious challenges the Affordable Care Act's (ACA) contraception mandate, Hobby Lobby has been one of the most vocal and litigious opponents to providing forms of birth control that conflict with the company's owners' religious beliefs. Due to the penalty provisions provided by the ACA, the craft store chain, faced over $1 million in fines per day had they chosen to deny their employees benefits that covered all FDA approved birth control methods, including the most controversial form of all: the morning after pill.

Disclosure: Alito's Stocks, Ginsburg's Glamour and Scalia's Shotgun

Sometimes, when one of the justices recuses his or herself from a case, the reason is obvious. For example, Justices Kagan and Sotomayor have recused themselves in recent years due to prior involvement in the case while it was still churning around in the lower courts.

Justice Alito’s absences, however, were much more mysterious. The Associated Press counts his recusals as “roughly six dozen.” He only sat out of one actual decision, however: the pay-for-delay drug manufacturing case. Thanks to his recently-filed disclosures, we now know that investments were the reason for the recusals.

Supreme Court Should Stop Warren Lee Hill's Execution Say Amici

The truth is, the Supreme Court almost never stops an execution. There are 25 capital cases scheduled for judicial conference in September, including Warren Lee Hill, according to CertPool. Of course, Hill may not make it to September, barring a successful challenge to Georgia's lethal injection drug practices, as his execution is scheduled for Friday.

Should Hill lose that challenge, that leaves him with one hope for survival: the Supreme Court. If their holdings in Atkins v. Virginia (the execution of mentally retarded is cruel and unusual punishment) and  Felker v. Turpin (the Antiterrorism and Effective Death Penalty Act is constitutional because it does not deprive the Supreme Court from granting original writs of habeas corpus) mean anything, putting a hold on Hill's execution and vacating his sentence is exactly what they must do.

2014 Cases: SCOTUS to Address Child Porn Restitution Questions

Amy and Vicky are pseudonyms for two girls whose childhood sexual abuse was filmed and distributed on the Internet. Thanks to a novel legal path charted by their innovative attorneys, and a victims’ restitution statute, these women have made legal history by obtaining restitution from the pornography possessors, rather than the manufacturer.

That novel theory, however, has fared differently across the various circuit courts. Amy and Vicky’s images are amongst the most widely distributed online, leading their lawyer to file for restitution in a number of jurisdictions. Some courts have split on the proximate cause issue, as it is not immediately clear whether the offense of present-day possession proximately causes trauma to the now-adult victims, nor is it clear from the statute whether proximate causation is required at all.

Justice Ruth Bader Ginsburg Hopes to Retire... in 2023 (Or Later)

"I wonder if Sandra regrets stepping down when she did?"

That rhetorical question, posed by Justice Ruth Bader Ginsburg in an interview with Reuters last week, says it all. Justice Sandra Day O'Connor, of course, retired back in 2007 in order to care for her ailing husband, who passed away two years later. Since then, she has kept busy by filling in at the Circuit Court of Appeals level, giving public lectures, and advocating for judicial appointments rather than elections.

Justice Ruth Bader Ginsburg, meantime, has become the leading liberal, and vociferous voice of dissent, on a conservative-dominated Supreme Court. This term alone, she read three dissents aloud from the bench and urged Congress to go around the Supreme Court majority's holding in one of the cases.

A Closer Look at The Unusual EPIC Writ That Bypasses Lower Courts

Don't like a court order? You could appeal it (well, in this case, arguably they couldn't), or, if you're feeling lucky, you could try for the "Hail Mary" remedy of a writ of mandamus.

The latter was employed by the Electronic Privacy Information Center, a privacy advocacy organization that keeps lawyers on staff to litigate important issues such as the ongoing NSA surveillance scandal. As customers of Verizon, they found themselves snooped-upon, yet were without a remedy, as they weren't a party to the secret court proceedings that authorized the NSA-Verizon surveillance.

Noting that the Foreign Intelligence Surveillance Court and it's associated Court of Review were outside of the regular court systems, and that they lacked standing to appeal the decision within that system, they asked the Supreme Court earlier this week for that extraordinary remedy. Lets take a closer look at their arguments:

Perry and Windsor: Threads of Standing, Constitutional Quandaries

When the Hollingsworth v. Perry and United States v. Windsor decisions were handed down, many of us reacted positively to the outcomes. The defeat of DOMA Section 2 eliminated the complexity of differing state and federal definitions of marriage and extended equal treatment and benefits to all state-recognized marriages.

However, the Court’s decisions, which found standing in Windsor, but not in Perry, brought forth a number of unresolved issues, including murkiness in standing standards, separation of power conundrums, and that fragmentation of marriage rights across the states with no full faith and credit requirement.

No Winners in Adoptive Couple v. Baby Girl Except the Dictionary

There were no winners in this week’s Adoptive Couple decision. On one side, you have a biological father, who despite not taking responsibility initially, has fought for the right to raise his then four-month, now four-year-old child, and has done so since the South Carolina Supreme Court ruled in his favor, citing the Indian Child Welfare Act of 1978.

On the other side, you have the adoptive couple, which supported the biological mother, emotionally and financially, throughout her pregnancy and delivery. They also raised the child initially, and are ready, willing, and eager to take responsibility for the young girl.

In between, you have the dictionary and the plain text of the relevant statutes, which together, point directly in the adoptive parents’ favor.