U.S. Supreme Court
Oct. 1, 2008
An Important Term to Come
Guns and Guantanamo are so last term. Here's what's on the horizon for the U.S. Supreme Court's October 2008 term.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
On Monday, October 6, the nine justices of the U.S. Supreme Court will return from summer recess to face a docket filled with cases directly affecting what lawyers and judges do on a daily basis. About half the new term's docket was set before the justices adjourned for the summer, and at this point it does not appear to include blockbuster cases of last term's magnitude: no cases invalidating a locality's gun ban, or involving the right of Guantanamo detainees to file habeas corpus petitions in federal court. Still, in areas such as the First Amendment, civil rights, and criminal procedure, this term promises to be extraordinarily important.
First Amendment
In the spotlight is FCC v. Fox Television Stations (489 F.3d 444 (2d Cir. 2007)). The case arose after two mega-stars--Cher and Nicole Richie--used profanity while speaking at the Billboard Music Awards shows in 2002 and 2003, respectively. The Federal Communications Commission had previously said that the fleeting use of a profanity in a nonsexual context was not a basis for a fine or other sanctions. But in February 2006 the FCC cited Fox over the earlier Billboard broadcasts, ordering that any use of the word fuck inherently has sexual connotations and therefore is indecent speech. The FCC banned the word from television and radio (489 F.3d at 45253). More than 30 years ago, in FCC v. Pacifica Foundation (438 U.S. 726 (1978)), the Court held that the government could punish profane and indecent speech on television and radio. That case involved a radio station in New York that broadcast George Carlin's now-famous monologue on "the seven dirty words." In upholding the ban, the Court stressed that the broadcast media is uniquely intrusive into the home and accessible to children. The media has changed--to say nothing of social attitudes--over the past three decades. Most people now receive television through cable or satellite services whose content is not regulated. Having special rules for broadcast television and radio makes a lot less sense now than when Pacifica Foundation was decided. Also, the fleeting use of a profanity is much less shocking now, and less likely to be perceived as harmful. Carlin, who died recently, would have been very interested to see if the Supreme Court will vindicate his sense that to censor words is inevitably to censor ideas. The other important First Amendment case involves public property and religious displays, but in a context unlike any yet seen by the Supreme Court. Prior cases have involved challenges to religious displays on government property as violating the First Amendment's Establishment Clause. But in Pleasant Grove City v. Summum (483 F.3d 1044 (10th Cir. 2007)), the Court will consider whether a city must allow a religious organization headquartered in Salt Lake City to erect a monument containing the Seven Aphorisms of Summum in a city park that already contains a Ten Commandments monument. Civil Rights
Immunity and the use of jailhouse informants tops the civil rights docket. A key Ninth Circuit case involves a man in Southern California who was wrongly convicted and spent years incarcerated because of false testimony from a jailhouse informant (Van De Kamp v. Goldstein, 481 F.3d 1170 (9th Cir. 2007)). At issue is whether the defendant can sue officials in the district attorney's office on the ground that they failed to ensure that information regarding jailhouse informants was shared with all prosecutors. Though prosecutors enjoy absolute immunity for prosecutorial acts, they enjoy only qualified immunity for administrative acts. The dispute centers on whether these acts are administrative or prosecutorial. Two other cases on the docket also pose important immunity questions. As a general rule, government officials are immune from liability for violating constitutional rights unless they infringe on clearly established rights that a reasonable official should know. During the past decade, the Supreme Court has prescribed a two-step approach when an official raises a qualified-immunity defense. First, the lower court decides whether there is a constitutional right. The court then proceeds to determine whether it is a clearly established right that a reasonable official should know. However, several justices have questioned whether this procedure results in unnecessary advisory opinions on constitutional rights. In Pearson v. Callahan (494 F.3d 891 (10th Cir. 2007)), the Court may finally resolve this issue. Another case, Ashcroft v. Iqbal (490 F.3d 143 (2d Cir. 2007)), presents issues concerning qualified immunity in a particularly striking context. A Muslim Pakistani man was detained for eight months by federal authorities and claims to have been subjected to daily beatings and strip searches, denied needed medical care, and kept from practicing his religion. He sued former Attorney General John Ashcroft and FBI Director Robert Mueller, among others. The Second Circuit ruled that the case could go forward, overcoming a qualified-immunity challenge. Thus, the Supreme Court will be deciding its first civil case for damages arising from the war on terrorism. Criminal Procedure
In a case that has drawn some media attention, the Court will again consider the parameters of the exclusionary rule. The issue in Herring v. United States (492 F.3d 1212 (11th Cir. 2007)) is whether evidence must be excluded if police in good faith rely on erroneous information from a law enforcement agency in another jurisdiction. Few cases in recent years have had a more practical effect than the ruling in Crawford v. Washington (541 U.S. 36 (2004)). In that decision the Court held that if the declarant is unavailable, the Sixth Amendment's Confrontation Clause prohibits a prosecutor from using testimonial statements in a document against a criminal defendant--even if the declarant is reliable. After Crawford, the issue has been: What is a "testimonial statement"? In Melendez-Diaz v. Massachusetts (69 Mass. App. Ct. 1114 (2007)), the Court will consider that question in the context of a drug bust. The Court will decide whether a forensic laboratory analyst's report prepared for use in a criminal prosecution is testimonial evidence. If the Court finds that it is, the ruling will add a significant new step to criminal trials across the country, because laboratory technicians who analyze seized drugs will have to authenticate their findings by appearing in court at the defendant's preliminary hearing and trial. In Melendez-Diaz, the lab report was admitted into evidence as a "business record" under a much simpler procedure. Finally, the Court will reconsider whether police may search a car any time an occupant is arrested, even if there is no threat to the officers' safety because all occupants are secured and away from the car (Arizona v. Gant, 216 Ariz. 1 (2007)). The Court will continue to grant review in cases for this term through early January. It is on a pace to decide significantly more cases than last term's 67, or the 68 from the year before. Also of note is that in the middle of the term a new president will be inaugurated, fueling speculation about judicial retirements and consequent appointments, and what they will mean for the future of constitutional law. Erwin Chemerinsky is the dean and distinguished professor of law at UC Irvine School of Law.
In the spotlight is FCC v. Fox Television Stations (489 F.3d 444 (2d Cir. 2007)). The case arose after two mega-stars--Cher and Nicole Richie--used profanity while speaking at the Billboard Music Awards shows in 2002 and 2003, respectively. The Federal Communications Commission had previously said that the fleeting use of a profanity in a nonsexual context was not a basis for a fine or other sanctions. But in February 2006 the FCC cited Fox over the earlier Billboard broadcasts, ordering that any use of the word fuck inherently has sexual connotations and therefore is indecent speech. The FCC banned the word from television and radio (489 F.3d at 45253). More than 30 years ago, in FCC v. Pacifica Foundation (438 U.S. 726 (1978)), the Court held that the government could punish profane and indecent speech on television and radio. That case involved a radio station in New York that broadcast George Carlin's now-famous monologue on "the seven dirty words." In upholding the ban, the Court stressed that the broadcast media is uniquely intrusive into the home and accessible to children. The media has changed--to say nothing of social attitudes--over the past three decades. Most people now receive television through cable or satellite services whose content is not regulated. Having special rules for broadcast television and radio makes a lot less sense now than when Pacifica Foundation was decided. Also, the fleeting use of a profanity is much less shocking now, and less likely to be perceived as harmful. Carlin, who died recently, would have been very interested to see if the Supreme Court will vindicate his sense that to censor words is inevitably to censor ideas. The other important First Amendment case involves public property and religious displays, but in a context unlike any yet seen by the Supreme Court. Prior cases have involved challenges to religious displays on government property as violating the First Amendment's Establishment Clause. But in Pleasant Grove City v. Summum (483 F.3d 1044 (10th Cir. 2007)), the Court will consider whether a city must allow a religious organization headquartered in Salt Lake City to erect a monument containing the Seven Aphorisms of Summum in a city park that already contains a Ten Commandments monument. Civil Rights
Immunity and the use of jailhouse informants tops the civil rights docket. A key Ninth Circuit case involves a man in Southern California who was wrongly convicted and spent years incarcerated because of false testimony from a jailhouse informant (Van De Kamp v. Goldstein, 481 F.3d 1170 (9th Cir. 2007)). At issue is whether the defendant can sue officials in the district attorney's office on the ground that they failed to ensure that information regarding jailhouse informants was shared with all prosecutors. Though prosecutors enjoy absolute immunity for prosecutorial acts, they enjoy only qualified immunity for administrative acts. The dispute centers on whether these acts are administrative or prosecutorial. Two other cases on the docket also pose important immunity questions. As a general rule, government officials are immune from liability for violating constitutional rights unless they infringe on clearly established rights that a reasonable official should know. During the past decade, the Supreme Court has prescribed a two-step approach when an official raises a qualified-immunity defense. First, the lower court decides whether there is a constitutional right. The court then proceeds to determine whether it is a clearly established right that a reasonable official should know. However, several justices have questioned whether this procedure results in unnecessary advisory opinions on constitutional rights. In Pearson v. Callahan (494 F.3d 891 (10th Cir. 2007)), the Court may finally resolve this issue. Another case, Ashcroft v. Iqbal (490 F.3d 143 (2d Cir. 2007)), presents issues concerning qualified immunity in a particularly striking context. A Muslim Pakistani man was detained for eight months by federal authorities and claims to have been subjected to daily beatings and strip searches, denied needed medical care, and kept from practicing his religion. He sued former Attorney General John Ashcroft and FBI Director Robert Mueller, among others. The Second Circuit ruled that the case could go forward, overcoming a qualified-immunity challenge. Thus, the Supreme Court will be deciding its first civil case for damages arising from the war on terrorism. Criminal Procedure
In a case that has drawn some media attention, the Court will again consider the parameters of the exclusionary rule. The issue in Herring v. United States (492 F.3d 1212 (11th Cir. 2007)) is whether evidence must be excluded if police in good faith rely on erroneous information from a law enforcement agency in another jurisdiction. Few cases in recent years have had a more practical effect than the ruling in Crawford v. Washington (541 U.S. 36 (2004)). In that decision the Court held that if the declarant is unavailable, the Sixth Amendment's Confrontation Clause prohibits a prosecutor from using testimonial statements in a document against a criminal defendant--even if the declarant is reliable. After Crawford, the issue has been: What is a "testimonial statement"? In Melendez-Diaz v. Massachusetts (69 Mass. App. Ct. 1114 (2007)), the Court will consider that question in the context of a drug bust. The Court will decide whether a forensic laboratory analyst's report prepared for use in a criminal prosecution is testimonial evidence. If the Court finds that it is, the ruling will add a significant new step to criminal trials across the country, because laboratory technicians who analyze seized drugs will have to authenticate their findings by appearing in court at the defendant's preliminary hearing and trial. In Melendez-Diaz, the lab report was admitted into evidence as a "business record" under a much simpler procedure. Finally, the Court will reconsider whether police may search a car any time an occupant is arrested, even if there is no threat to the officers' safety because all occupants are secured and away from the car (Arizona v. Gant, 216 Ariz. 1 (2007)). The Court will continue to grant review in cases for this term through early January. It is on a pace to decide significantly more cases than last term's 67, or the 68 from the year before. Also of note is that in the middle of the term a new president will be inaugurated, fueling speculation about judicial retirements and consequent appointments, and what they will mean for the future of constitutional law. Erwin Chemerinsky is the dean and distinguished professor of law at UC Irvine School of Law.
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Usman Baporia
Daily Journal Staff Writer
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