Last week in Plain English

By Lisa Tucker
on Mar 8, 2010 at 1:30 pm

I’ve been away for two weeks; hence, no Plain English posts.  But what an exciting time to catch up!  For SCOTUS watchers like us, this was not the week to miss, especially because of the oral argument in the long-anticipated gun rights case, McDonald v. City of Chicago.  Other interesting developments?  An examination of Jeffrey Skilling’s trial (especially the jury selection) and the wrap-up of our Black History Month coverage.  Add in a same-sex marriage ruling and a huge Miranda case, and you’ve got a week that could keep even the most reluctant SCOTUS fan entertained.

Let’s start with the crown jewel of the week, at least in terms of visibility (yes, some people camped outside the Court for more than twenty-four hours so that they could see the argument):  McDonald v. City of Chicago, the follow-up to the Court’s 2008 decision in Heller v. District of Columbia that the Second Amendment ensures an individual right to bear arms. 

To understand McDonald, you’ll first have to understand the concept of incorporation.  In a very early case, the Court held that the Bill of Rights applied only to the federal government.  Over many years of jurisprudence, however, the Supreme Court has ruled that most of the rights protected in the Bill of Rights also apply to the states.   The Court has found that the rights are “incorporated” through the Fourteenth Amendment.  In other words, neither the federal government nor the states can make laws that, for example, limit free speech, deny the right to counsel, or allow unreasonable searches.

The key question in McDonald is whether the Second Amendment is incorporated.  In Heller, the Court made clear that the federal government cannot place unreasonable limits on an individual’s right to bear arms.  McDonald asks the Court to extend that rule to municipalities and states. 

The big issue in McDonald, however, is not whether the Court will extend the rule to states and municipalities – because everyone seems to agree that it will – but instead what provision of the Constitution it will rely to do so.  Is the Second Amendment incorporated through the Fourteenth Amendment’s Privileges or Immunities Clause, or through the Due Process Clause?  Well, since a major case in the late nineteenth century, most believe that the Privileges or Immunities Clause in the Fourteenth Amendment doesn’t actually do very much, and incorporation of the other rights has occurred mostly through the Due Process Clause.  However, the plaintiffs in McDonald asked the Court to incorporate through the Privileges or Immunities Clause, a request that – as evidenced by Justice Scalia’s sarcastic comment during the oral argument that only law professors even care about the clause anymore – seems to have gained little traction,. 

In the end, Court observers were left with the impression that the Court would extend the Second Amendment by incorporating the right to bear arms through the Due Process Clause, and would probably allow some reasonable restrictions on gun ownership – leaving the details regarding those restrictions, Nina Totenberg speculated, to be litigated for years to come.

As for same-sex marriage, the District of Columbia, through a vote by its city council, has joined the five states that allow gays and lesbians to marry.  This week however, gay marriage opponents filed with Chief Justice John Roberts an emergency stay petition designed to stop the ordinance from going into effect until a measure against it could be introduced onto a voter ballot.  When government bodies in the District refused to allow the measure on the ballot, citing human rights concerns, the opponents petitioned Chief Justice Roberts not in his role as Chief Justice, but in his role as Circuit Justice for the District of Columbia.

Sound confusing?  Isn’t John G. Roberts, Jr., the Chief Justice of the United States?  And so doesn’t he run the Supreme Court?  Well, yes (and the entire federal judiciary actually), but each Supreme Court Justice is also responsible for handling certain legal matters, like emergency stay petitions, from designated areas of the country (called judicial “circuits”).  In the olden days, the Justices actually “rode circuit,” riding horses far and wide to decide cases out in the wilds of the then mostly undeveloped United States.  (Some, like SCOTUSblog’s David Stras, posit that perhaps they still should).  Now, they decide mostly emergency or time-sensitive issues that may also go through the regular cert. process, such as requests to stay executions or – as in this case – to stay a lower court’s order. 

Although  Chief Justice Roberts apparently thought that the opponents’ arguments were not totally off-base (writing that they had “some force”) he deferred to the lower court (a concept I’ll discuss more below when explaining the Skilling case).  He also noted that the D.C. Court of Appeals was still acting on the case.  However, he stated that he thought the full Supreme Court unlikely to grant cert. on the issue, at least as currently formulated, and he denied the stay.

Does this mean that the Chief supports gay marriage?  Well, whether he does or does not is beside the point.  He is using time-honored rules, traditions, and procedures to make a legal ruling.  It’s a great example of how a Justice must put aside personal beliefs and ideas to make a legal decision.

We’ve been watching Kiyemba v. Obama for a while, and this week marked the end of the case’s SCOTUS life, at least for the near future. Why?  Because each of the seven petitioners in the case has been offered resettlement by another country, a “new development” that the Court has deemed enough to send the case back to the court of appeals.  Originally, the Justices had agreed to hear and decide the case.  Now, however, only the President (through executive agencies) and Congress will be dealing with policy and law pertaining to war detainees.  In dismissing the case, the Court leaves open a key question:  what authority do federal judges have to order release of detainees when the federal government is holding them for no reason?

Also in the news for some time now has been Jeffrey Skilling, the CEO of Enron who was convicted of corporate fraud.  This week, Skilling had the chance to argue his case to the Supremes.  His contentions?  That the statute under which he was convicted, an “honest services” statute, was unconstitutionally vague – in other words, that a reasonable person wouldn’t have been able to ascertain what conduct was prohibited.  If a statute is overly vague, then a person can’t properly be convicted under it.  Unfortunately for Skilling, that argument did not appear from the oral arguments to gain much traction with the Justices.  On the other hand, as Lyle reported on Monday, his jury selection claim – or his argument that the case should not have been tried in Houston because of the outrage against Enron there – may have garnered more attention from the Court. 

As Lyle noted, the Justices seemed concerned that the trial judge, Judge Lake, had not recognized just how high-profile the Enron case and just how potentially prejudiced the jury pool might be.  The problem?  Well, it’s unclear what the Court can do about that.  As some Court watchers observed, it did not appear that the Court was willing to grant Skilling a new trial or tell trial court judges how to screen juries.

The issue of the Court interfering with the roles of trial court judges is an important one.  While the Court is most certainly the highest court in the land (and, no, I’m not talking about the basketball court on the top floor of the Court building), it respects and recognizes the autonomy of trial court judges, in part because they do an extremely competent job, and in part because the Court may want to signal that respect to the public.  And given the fact that Justice Sotomayor was herself a trial court judge for many years, we can expect that deference to continue even in the wake of the Enron case.  While the Court would call out judicial misconduct, it will probably be hesitant to interfere absent a real abuse of discretion. 

And in Shatzer, the Court declined to issue one of its usual narrow rulings when it established a new rule concerning Miranda rights.  If you’ve watched a TV police or crime show anytime in the last twenty-five years, you almost certainly know that police are required to tell those in custody that they have a right to remain silent, that their statements (written or oral) can be used as evidence against them in court, and that they have a right to an attorney.  Once a defendant requests an attorney, under Miranda, the police cannot ask any more questions without an attorney present.  But under Shatzer, in which the police questioned the defendant without his attorney present two-and-a-half years after his initial Miranda warnings, the defendant challenged the admission of his statements into evidence. 

Writing for the Court, Justice Scalia explained that Miranda requests for counsel aren’t eternal – they don’t go on forever.  Fourteen days after a defendant is released from custody, the police get a fresh bite at the apple, and they may resume questioning again. 

Two notable things about this decision?  Well, first, it should come as no surprise.  The Roberts Court is fairly tough on criminal defendants, and, indeed, many have speculated for some time that it might do away with Miranda altogether.  That the Court limited Miranda is fairly predictable; here’s what isn’t.

Under the Constitution, federal courts can only decide issues that are squarely before them.  In other words, if a case involves a resumption of questioning after two-and-a-half years, the court will decide the case on those facts only.  This is especially true of the Roberts Court, which tends to shy away from making sweeping rules and usually limits itself to the narrow question before the Court.  It would have been easy for the Court simply to say, then, that two-and-a-half years is way too long for Miranda rights to endure.  But the Court went one step further:  It said that the limit on Miranda is fourteen days.  Even Justice Scalia called the Court’s establishment of a deadline “certainly unusual.” 

Tomorrow, I’ll write about the other opinions and arguments from last week.