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Oral arguments in Rehberg v. Paulk and M.B.Z. v. Clinton

The Supreme Court heard arguments last week in Rehberg v. Paulk to decide “whether a government official who acts as a ‘complaining witness’ by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages.” Timothy Coates at SCOTUSBlog.com provides a great recap of the arguments and concludes that, despite what Rehberg argued, the “case may turn less on the niceties of the common law than the realities of common practice in the criminal courts.”

This Monday, the Court will hear arguments in M.B.Z. v. Clinton to resolve the issues of: 1) whether the political question doctrine deprives federal courts of jurisdiction to hear a case involving whether the Secretary of State must list “Jerusalem, Israel” as the place of birth for Americans born in Jerusalem; and 2) if not, whether a statute directing the same infringes upon the President’s foreign policy prerogatives. Allie Myers and Charlie Kruly of the Harlan Institute will be attending oral arguments on Monday morning and will relay their impressions later that day. In the meantime, be sure to check out the Harlan Institute’s Fantasy Cast for MBZ; also check out Professor Ed Harris’s argument preview at Oyez.com for a concise analysis of the issues and the potential ramifications of MBZ.

Westlaw Sponsors FantasySCOTUS

FantasySCOTUS is proud to be sponsored once again by legal research giant Westlaw. Players who have already been scrutinizing their predictions this term have likely noticed that, thanks to Westlaw, FantasySCOTUS provides links to Westlaw databases for cert petitions, briefs, transcripts and opinions for each case on the Court’s docket. Additionally, Westlaw has helped spread FantasySCOTUS to law students around the country through the TWEN research portal. All of this has helped make FantasySCOTUS, without question, the closest you can come to being a Supreme Court Justice without the advice and consent of the Senate.

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.


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