Argument recap: Court to avoid deciding school interview warrant requirements?

On Tuesday, the Court heard oral argument in the consolidated cases of Camreta v. Greene and Alford v. Greene, regarding the Fourth Amendment requirements that attach to in-school child interviews when officials suspect abuse at home.  After an hour of oral argument dominated by questions of mootness, however, there seemed few members of the Court inclined to reach that question.  (You can read my pre-argument discussion of the case from Monday here.)

Petitioners’ attorney, Oregon Attorney General John Kroger, got in twelve words about the merits of the case before Justice Scalia turned to the jurisdictional questions.  How can there be a case or controversy, he inquired, if the party who lost below no longer has an ongoing interest in winning?  Justice Ginsburg pointed out that respondents did not contest the Ninth Circuit’s ruling denying monetary damages, and that S.G. is now eighteen years old and lives in another state, so that the circumstances forming the basis for the litigation are incapable of repetition.  Kroger responded that petitioners have an active stake in the outcome of the litigation because employees have an interest in knowing how to do their jobs according to the law, and he noted that state actors in Oregon have tailored their behavior to the Ninth Circuit’s Fourth Amendment ruling.  Justices Ginsburg and Sotomayor retorted that such questions were better answered in the context of respondents’ separate Monell suit against the county, which could be reinstated before the district court.  The Chief Justice did briefly return to the merits of the case, raising the question whether the same standard would apply if the child were being questioned about parental involvement in a crime other than child abuse.  Kroger indicated that the same reasonableness standard would apply, but the calculation would be different because child abuse is often a crime that hinges on the testimony of the child being abused.

Kroger divided his argument time with Deputy Solicitor General Leondra Kruger, who jumped right into the mootness issue.  She argued that the underlying constitutional question should not be insulated simply due to the passage of time as the litigation made its way up to the Court.  In response to inquiries from Justices Kagan and Scalia, and with some friendly questions from Justice Kennedy, Kruger urged the Court to reach the Fourth Amendment in its decision, rather than simply vacate the Ninth Circuit’s decision, to aid in the development of clearly established constitutional law within the qualified immunity context.  In a brief discussion of the merits, Justice Sotomayor expressed doubt as to whether the Court could render a meaningful opinion regarding the constitutionality of the seizure without knowing more about the scope of the interrogation after its inception, a question unexplored by the Ninth Circuit below.

Carolyn Kubitschek argued on behalf of respondents – who, she immediately clarified, were not challenging the Ninth Circuit’s qualified immunity ruling.  She argued that the Court should neither reach the Fourth Amendment questions nor issue a Munsingwear partial vacatur of the lower court’s constitutional ruling; this, however, prompted Justice Alito to express concern that officials in Ninth Circuit states are having to follow a potentially erroneous decision.  In a more robust discussion of the merits, many of the Justices were fixated on what factors – such as removal from prior setting, length of questioning, or nature of the actor doing the detaining – render a child interview or detention a seizure.  Justice Breyer in particular seemed concerned about the interplay between standard school functions and Fourth Amendment requirements.  Kubitschek struggled to define the contours of what constitutes a seizure, as the parties in Greene stipulated that the interview was a seizure, but deftly characterized the uncertainty generated by the stipulation and resultant lack of factual findings as yet another reason why the Court should not reach the Fourth Amendment question in this case.

As a final note, questions of mootness seemed to put the Justices in a jovial mood.  Comments by Justice Scalia, statistically the funniest member of the Court, garnered six bouts of laughter, while the Chief Justice got out four laugh lines during the argument.