Last week in plain English, part II

Below, Professor Lisa McElroy continues her coverage from the previous post of last week on SCOTUSblog and at the Court.

In Part II of my Plain English posts for the week, we will take a look at the major cases the Court heard, decided, or granted this week.

First, the Prop 8 controversy.  As you may know, in June, California’s Supreme Court granted same-sex couples the right to marry under the California Constitution.  However, in November, California voters adopted an initiative called Proposition 8, eliminating that right.  Now some advocates of same-sex marriage are suing in federal court in California, arguing that Prop 8 violates the federal constitution and seeking to reinstate the right for gays and lesbians to marry in California.

The question before the U.S. Supreme Court did not directly involve gay marriage, but instead involved the video broadcast of the trial.  Acting on an emergency motion by Prop 8’s defenders, the Court by a five-to-four vote “blocked any television broadcast to the general public of the trial in a San Francisco federal court of the challenge to California’s ban on same-sex marriage,” as Lyle reported on Wednesday.  This order will stay in effect probably until the trial itself is over, as there will not be adequate time for appeal during the few weeks of the trial.

In its decision, the Court seemed annoyed that the trial court had tried to change its rules at the last minute to include TV broadcasting.  It also noted that the lower courts had not followed correct procedure in changing the rules.  And it questioned whether this case was a good one for camera coverage, given its high profile and controversial subject matter.

The four dissenting Justices questioned whether the Court had the authority to decide this case at all. They called the broadcasts an administrative matter, and they noted that there have not been other similar instances in which the Supreme Court has interfered in the way the lower courts are run.

So how could the Prop. 8 supporters get a firm ruling – as opposed to a temporary stay – prohibiting the broadcast of the trial?  As discussed above, as a practical matter, they do not really need one.  But they could file a petition for review from the lower courts’ orders (the most typical way the Court takes cases), or, as Lyle noted, “they could file a petition seeking what is called a “writ of mandamus” — that is, an order from a higher to a lower court to take, or not take, some action.

It is important to note that the Court did not express a general view on cameras in the courtroom.  This distinction brings up two important points about the Supreme Court.  First, the Court will only decide issues squarely before it.  It cannot and will not pre-judge future legal issues that could later arise.  Second, the Court has long been asked to place cameras in its courtroom, a suggestion it has emphatically declined (now-retired Justice David Souter once said that cameras would roll into the courtroom over his dead body).

On Tuesday, Jonathan Eisenman here about Abbott v. Abbott, a case involving international child abduction, which was argued on one side by SCOTUSblog’s editor, Amy Howe.  As Jonathan ably explains, “The question in the case is whether one parent’s ‘ne exeat right’ – the right to prevent the child’s departure from the country – is a ‘right of custody’ [under] the Hague Convention on the Civil Aspects of International Child Abduction (‘Hague Convention’ or ‘Convention’), so that a child taken in violation of that right must be returned.  If the ne exeat clause gives [the child’s]  father a right of custody under the Convention, then the United States must return [the child] to Chile.”  Why would the child have to be returned?  So that a Chilean court, not some other court, could decide disputes relating to the child.

In fact, the father in this case had already filed an action in Chilean court, seeking to expand his rights.  However, the mother took the child to her home country, the United States, while that action was pending.

As the Court pointed out at oral argument, this case is an unusual one in that it was the parent with primary custody, the mother, who took her child to the foreign country in defiance of the ne exeat order.  A more typical case would involve the non-custodial parent taking off with the child.

The lower court ruled that a ne exeat right is not a right of custody, so the father could not enforce the right to have his child returned to Chile.  Several other countries have treated a ne exeat right as a custody right (though not uniformly), and it will be interesting to see how the U.S. Supreme Court decides the case.

This case is a typical one for the Supreme Court in two ways:  First, it presents a circuit split.  Second, it involves an interpretation of arguably ambiguous legal language.  Once the Court defines the term ne exeat to involve or not to involve a right of custody, all lower courts will be required to make future decisions following that interpretation.

Now, onto another case:  Briscoe v. Virginia. The oral arguments in Briscoe were predictably interesting, noteworthy in that it did not seem that the Court was likely to overrule its seven-month-old decision in Melendez-Diaz.  You may remember that in Melendez-Diaz the Court divided by a vote of five to four, with Justice David Souter in the majority.  Now that Justice Souter is retired, Justice Sotomayor has taken his place, and some have speculated that she would go the other way, resulting in a five-four split to overrule (or at least read very narrowly) Melendez-Diaz.  Still, the Supreme Court has a number of interests when it decides cases.  One is to make sure that the Constitution is correctly and consistently interpreted and applied.  Another is to preserve stare decisis.  Therefore, even those dissenters who did not agree with the holding in Melendez-Diaz might refuse to overturn it because they care about stare decisis. Of course, for a Justice who was in the majority in the previous case, the two would go hand in hand, as evidenced by Justice Scalia’s question (paraphrased here):  “Why did we take this case?”

Another interesting thing about this oral argument was the role of Justice Sotomayor.  In many lines of work, a junior member of a team would hold back and sit quietly until she was more experienced and integrated.  Not so on the Supreme Court, as evidenced by the Briscoe argument, in which Justice Sotomayor led off the questioning of both sides and asked at least ten or so questions of each.

Also interesting about the case was the discussion of common trial procedure.  As I discussed last week in my Plain English post here, Justices Alito and Sotomayor both have experience as trial court attorneys.  That experience may help the Court understand how the issue in Briscoe – whether a crime lab report can stand on its own or whether and when the lab analyst must testify – could play out in the real world of the criminal courts.  Particularly of interest to Court watchers was the debate led by Justice Stevens about whether a trial by affidavit would be OK, if the person who signed the affidavit were to show up later in Court to explain his written statement.

Now, my husband and I differ in some critical (but ultimately non-marriage-harming) ways, and one of them is this:  He’s the football fan, and I’m the SCOTUS fan.  Especially because he has the distinct advantage of being able to watch his sport LOUDLY on a big-screen TV (or even on multiple screens, allowing him to see the game from any vantage point in the house), you’d think that never the twain shall meet, right?  Wrong!  This week, the Court heard arguments in the case of American Needle v. NFL.

This case has garnered the attention of sports fans who know that baseball currently has the only “antitrust exemption” in sports; after Wednesday’s arguments, court watchers were skeptical about the possibility that the Court would extend that exemption to the NFL.   The federal “antitrust” laws are the statutes that work to ensure competition between companies.  An “exemption” of course means that the statutes don’t apply.

The facts in this case involve fan gear, some of which was manufactured by vendor American Needle.  Originally, American Needle had a license to make and sell NFL swag, but that license ended when the league agreed that all of its head gear for all of its teams would be made by Reebok.  So American Needle sued, saying that the teams were separate entities and had to compete, not cooperate.  The NFL replied that all of the teams were part of a “single entity,” which means that they couldn’t be guilty of illegally agreeing together to limit competition.

As Lyle explained here, “[The] question is whether the pro sports leagues are immune to antitrust scrutiny when they take action together, potentially or actually adding to their enormous potential as money-making machines. The question takes on added significance given today’s commercial profile of pro sports, with astronomically wealthy businessmen owning most of the teams, with many of the players, too, being fantastically rich, with most if not all of the sports stadiums and arenas being re-named for a profit-oriented company.”  In other words, antitrust law says that different business entities have to compete.  The NFL says that it is one business entity, not thirty-two separate teams, and so the thirty-two teams are entitled to do business together.  And, of course, pretty much every other sport is watching this case, because it will have implications that reach to other courts, fields, and arenas.

One more big case this week:  United States v. Comstock.  Comstock is a difficult case because it concerns issues of “federalism,” or when states have power in a certain area and the federal government does not.  In this case, the issue is whether the federal government can keep a prisoner who has served his sentence in custody so that it can provide him with mental health treatment.  Under a federal statute allowing such detention, the government would have to determine that the prisoner continued to be dangerous and was currently mentally ill.

But the respondent, Graydon Comstock, argues that once a federal sentence is served, the federal government no longer has the right or the power to detain the prisoner.  Instead, when mental health treatment is needed, the provision of such treatment is a function of state governments, and thus only the states can compel a person to be institutionalized for mental health treatment.

The federal government, in the oral argument on Tuesday, zealously defended the federal statute and the federal power to provide mental health treatment. In fact, the Solicitor General herself argued the case instead of asking a deputy or assistant in her office to do so.

As discussed here, on Friday, the Court granted cert. in, or agreed to hear, five cases.  If it wants to, it can hear argument in these cases in April; this scenario seems likely, given that the Court has required the parties to brief the cases more quickly than they normally would have to under Court rules.  The Court could also decide to hold the cases over for argument next Term.