The last week of opinions in plain English

By Lisa Tucker
on Jun 23, 2010 at 8:56 am

If you read my Plain English post last week, you will remember that the Supreme Court has been handing down opinions in quite a few lower-profile cases lately.  While the Court announced decisions in three quite visible cases on its last two opinion days, it also issued opinions in six that were not as well known.

Why so many cases that seem, well, small?  Well, a couple of things to consider.  First of all, remember that the Court is trying to get out opinions in about twenty-six cases in one month; as of Memorial Day weekend, the Court had decided only about two-thirds of its cases, not an unusual state of affairs at the beginning of any June.  Here’s the thing, though:  Although the Court’s Term begins on the first Monday of October and runs until the day before the following year, the Court typically wraps up oral arguments by the end of April and issues opinions in these cases by the end of June.  That means that it has to hand down opinions in an awful lot of cases in just one month, and many of those cases haven’t garnered the media attention that some of the “biggies” have.  Hence, the flood of relatively low-profile cases these past couple of weeks.

But notice that I said “low-profile,” not “unimportant.”  While they aren’t as well-known, these cases are anything but insignificant to the Court and to the parties themselves.  For the people directly involved in the cases, they represent some of the most important problems they’ve had in a lifetime or an era of doing business.  And for the Court, the cases represent an opportunity to decide or clarify an area of law that may affect millions – of dollars and/or people.

But let’s begin with the most visible cases.  If you’re an environmental activist, or you’re particularly interested in property rights, Stop the Beach Renourishment v. Florida Department of Environmental Protection is right up your alley.  In this case, the state of Florida sought to combat beach erosion by adding sand along the water line.  The problem?  The beaches were privately owned, leading the property owners to declare that the government was turning their private beaches into public ones, at least along the water’s edge.  Because the government was now controlling the strip of beach (even for a worthy purpose), the property owners argued that their land was worth less than before and that they were entitled to compensation under the Takings Clause of the Fifth Amendment.

While Justice Stevens abstained in this case because he himself owns a condo on a Florida beach, all of the voting members of the Court disagreed, explaining that the land had belonged to the public when it was underwater and could be restored without causing the property owners to lose money.  No matter that the strip of restored beach was declared to be public property – the property owners still were not entitled to any cash.

But Stop the Beach was also important in another key way – it asked a question about how exactly a taking can occur.  We know that a legislature can “take” property by passing a statute that affects property rights.  But can a judicial ruling do the same thing?  According to four Justices, the answer is “yes” – either a legislature or a court can “take” property.  Four other Justices (Kennedy, Ginsburg, Breyer, and Sotomayor) agreed, however, that the Court didn’t even need to decide that issue, because the beach restoration was not a taking at all.

As Jay noted here, Holder v. Humanitarian Law Project (HLP) has been getting an awful lot of traction in the media, perhaps because America is still interested in just how we will resolve the war on terror.  Most who have read the HLP decision consider it to be a true victory for the American government – a good thing for nominee Elena Kagan, who argued the case.  In this case, the Court held that Congress may criminalize aid to foreign terrorist organizations, even if that aid is actually speech designed to promote non-violent conflict resolution.  The Humanitarian Law Project, the respondent in this case, challenged the law based on the First Amendment, saying that its workers had a right to speak to terrorists about peaceful means of solving problems.

In an opinion by Chief Justice Roberts, the Court acknowledged that the First Amendment was implicated in this case.  However, it concluded that defeating terrorists was such an important government interest that it outweighed HLP’s interest in free speech when there was a direct connection or communication between known terrorists and aid organizations.

A peripherally interesting fact about HLP is that Justice Breyer read his dissent from the bench, as Adam Liptak of the New York Times and Lyle Denniston of this blog commented here and here.  Because Supreme Court proceedings are not televised, you may not have realized that opinions are announced from the bench.  Quite often, after the announcement of the vote and holding, the author of the majority opinion will read a summary of the opinion aloud.  However, it is relatively unusual for a dissenting Justice to read from the bench, and the fact that he chooses to do so signals to Court watchers that his feelings on the issue are quite strong.  You might remember that Justice Stevens read his dissent in Citizens United several months ago, resulting in a great deal of comment in the press (both about the content of his dissent and his apparent difficulty in reading it). In other words, to prompt a reading from the bench, Justice Breyer obviously really cared about this case and felt that the Court majority got it quite wrong.

Fascinating to those of us who use text messaging on a regular basis is the decision in City of Ontario v. Quon.  In this case, a police sergeant sent explicitly sexual text messages to his wife and a woman with whom he was having an extramarital affair.  The catch?  He did so on a government-issued pager. When his government employers did an audit, they discovered the texts and disciplined the police officer.  He argued that he was entitled to privacy with respect to non-job related texts he sent, particularly because he paid overage charges for them and because he had been told that he would not be audited.  His wife and girlfriend also argued that their privacy rights were violated by the audits.  In short, said Sergeant Quon, the audit constituted an impermissible search under the Fourth Amendment.

Unfortunately for Sergeant Quon, the Court disagreed, holding that under established Fourth Amendment principles, he did not have an expectation of privacy in the text messages.  However, the Court also discussed the fact that technology is developing, and, with it, the law.  The Court noted that most people now use “smart” devices in both their personal and work lives and stated that cultural norms and expectations might inform and shape the law going forward.

Quon also teaches us another important fact about the Supreme Court:  the Justices are legal generalists.  In other words, they are very smart people who understand how law and justice work, but may know little about any particular substantive area.  Remember when the case was argued back in April and some Justices seemed confused about just what a text message was?  To decide this case, the Justices would have learned a lot about modern messaging technology.

At this point, we’ve got twelve cases to go.  They include Bilski, the super-hot patent case; the trio of “honest services” cases (including Skilling v. United States); McDonald, the Chicago gun rights case; and a couple of big First Amendment cases.  Stay tuned – we’ll have opinions on Thursday and Monday, and probably at least on one other day.