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Oral arguments in Florence v. Board of Chosen Freeholders

The Supreme Court heard oral argument today in Florence v. Board of Chosen Freeholders on the issue of whether “the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter the circumstances.” The Petitioner, Albert Florence, was arrested on the erroneous belief that he had failed to pay a routine fine. Upon his arrival at the local jail, Florence was strip searched.

Professor Orin Kerr of the George Washington University Law School attended oral arguments today and posted his thoughts on SCOTUSblog.com. Professor Kerr reports that the Justices seemed “skeptical” of drawing a line that would permit strip searches for some arrests but not for others. For instance, Professor Kerr notes, many of the Justices seemed unsure about what would qualify as a “major crime” (for which a strip search would be permitted) and a “minor crime” (for which, Florence argued, the Court should establish a case-by-case test).

It is, of course, always difficult to predict the Court’s eventual opinion simply from oral arguments. However, based on some of today’s questioning, it looks as if the Court may uphold the Burlington County jail’s universal strip search policy.

The transcript for today’s argument is available here.

Justices Scalia and Breyer Share Their Views on the Constitution with the Senate Judiciary Committee

In a rare  moment of off-the-bench candor, Justice Scalia and Justice Breyer testified before the Senate Judiciary Committee last week to discuss their divergent views on how to interpret the U.S. Constitution.  While Scalia advocated his Originalist perspective that the Court should base their reading of the Constitution on the framers’ original intent, Breyer believes that courts should look to the underlying values of the text and apply them to the modern world, calling it “the living Constitution.” This prompted Scalia to quip, “I’m hoping that the living Constitution will die.”

Scalia’s comment, though some may read it as the kind of sharp antagonism found in his dissenting opinions, was actually more of a friendly jab. Scalia and Breyer may be rivals on the bench, but these two Justices joked with one another and even helped support each other’s arguments during the course of the hearing.  To hear some audio clips from their testimony, you can listen to the NPR report here.

The Supreme Court hears arguments for Howes v. Fields

This Monday, the Supreme Court heard oral arguments for Howes v. Fields, a case dealing with the 5th Amendment right to be free from self-incrimination and the infamous Miranda warning. For a summary on the case’s background, you can check out this Harlan Institute FantasyCast. In short, the case arose when an inmate at a Michigan prison was removed from his cell and questioned about conduct that occurred outside the prison. During this interview, he made incriminating statements that were later used against him in court. Fields challenged this outcome by arguing that his 5th Amendment rights were violated when he was not read hisMiranda rights before the interrogation.

John Bursch, the Solicitor General of Michigan, represented the petitioner Warden Carol Howes. He argued that a Miranda warning is only necessary when a person is “in custody” of police, and because Fields was told he was free to leave at any time, he was not in police custody for Miranda purposes. Justice Sotomayor gave Bursch a hypothetical, asking him whether Fields would have been considered to be “in custody” if he hadn’t been told he were free to go. The Petitioner argued that there were other factors that would allow Fields to reasonably believe that he was not being restrained, for example, the door was not locked and the interview was held in a conference room and not an interrogation room. Justice Sotomayor later challenged this argument again, asking “shouldn’t the presumption be that if you’re forced to go to another place, you’re in custody?”  Ginger Anders, Assistant to the U.S. Solicitor General, argued on behalf of the petitioner as well, advancing many of the same arguments.

Representing the respondent, inmate Randall Fields, Elizabeth Jacobs argued that Fields’ rights were violated when he was not informed that he had the right to avoid self-incrimination before the interview: “Telling him he is free to go is not a substitute for Miranda.” Justice Alito raised some questions, asking why an inmate would be considered “in custody” if he told officers he wanted to stay and discuss the allegations after being told he was free to leave.

You can hear a full audio recording of the oral arguments on Oyez.org.

Fifth Circuit Rules on Students’ Religious Speech Rights

This week, the Fifth Circuit Court of Appeals handed down an opinion for Morgan v. Swanson and upheld the First Amendment right of four Texas elementary students to hand out religious materials to their classmates.

The parents of the four Evangelical Christian children brought the lawsuit against the school’s principal and other school officials after the children were prevented, on several occasions, from handing out items like candy canes and pencils with religious messages attached. In bringing the lawsuit, the parents argued that the principal’s actions had interfered with the students’ First Amendment rights of free speech and free exercise of religion.

In an en banc hearing– where all the Circuit Court judges, rather than the usual 3-judge panel, hear and decide the case — the Fifth Circuit ruled that the First Amendment does give the students the right to pass out religious messages to their classmates and that the principal violated that right by “discriminating against student speech solely on the basis of religious viewpoint,” as Judge Jennifer Walker Elrod wrote.

The rest of the decision dealt with the concept of qualified immunity, which may shield several of the school’s officials from being held personally liable. To learn more about qualified immunity and absolute immunity, check out our page for the upcoming Supreme Court case Rehberg v. Paulk, which deals with the related issue of immunity for government officials.

Bill of Rights Institute Video on Representative Government

Do you know the difference between a democracy and a republic? Of course, the United States is a “government of the people by the people and for the people,”  but what does that mean?

The Bill of Rights Institute put together a great video on representative government that answers those questions and more. You might be surprised about how often the word “democracy” is misused and who is misusing it!

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