News

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.

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.

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.

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.

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.

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!

In a Wall Street Journal Op Ed this morning, Secretary of Education Arne Duncan and Netflix CEO Reed Hastings announced a new “unique public-private partnership called Digital Promise.” Digital Promise, Duncan and Reed write, is meant “to advance breakthrough technologies that transform teaching and learning in and out of the classroom, while creating a business environment that rewards innovation and entrepreneurship.” Digital Promise encourages a market-oriented approach to technology-based learning by mixing public money and private leadership. The ultimate goal of the partnership is to provide a “more efficient market for education technology.” Secretary Duncan notes that Digital Promise is modeled after successful companies like Netflix, which use “low-cost experimentation” to improve outputs. By using this approach, Digital Promise hopes to identify those educational technology tools which help students, and abandon those which do not. Organizations like Digital Promise and the Susan Crown Exchange help refocus the debate over 21st Century learning. The question America’s educators should be asking is no longer whether computers should play a role in education; for better or worse, that question was long ago answered. Rather, Digital Promise focuses on finding ways to make the most efficient use of what has become an ubiquitous part of the American classroom. The Harlan Institute seeks to accomplish this same goal by using new technology to connect students with timeless constitutional lessons.

Today is Constitution Day, which urges educators to respond to the federal mandate to teach the Constitution in their classrooms. There are a number of websites, like iCivics and the National Constitution Center, that are offering videos and games to help teachers meet this mandate in a way that engages their students. We recommend that you check out this video lecture by David McCullough of the Constitutional Sources Project, made available at the ConSource website. In this 30 minute lecture recorded at the National Archives in Washington DC, McCullough describes how our Founding Fathers joined together “and in the midst of crisis… arrived at the words we live by.” On behalf of Harlan Institute, Happy Constitution Day!

This fall, the Supreme Court will hear arguments in U.S. v. Jones, a case where modern technology meets the guarantee against “unreasonable search and seizure” in the 4th Amendment. Specifically, the case raises the question: Do police need a warrant to install a GPS tracking device on a suspect’s car and monitor his behavior? While some courts have applied the protections of the 4th Amendment to cases involving e-mail and cell phone use, the Supreme Court has yet to consider the implications of the police using common and current technology like GPS tracking.  In fact, two of the most recent precedents for this case are Kyllo v. U.S. (which held that police cannot use a thermal imaging device to “search” a suspect’s house without a warrant) and U.S. v. Knotts(a 1983 case dealing with police use of beepers). The D.C. Court of Appeals held in this case that police must obtain a warrant before attaching a GPS device to the suspects car and tracking his movement for weeks at a time.  Other district courts, however, have held that GPS tracking is no different than the permissible practice of a police “shadow surveillance,” which involves officers staking out and tailing a suspect. These judges reason that the GPS simply allows the officer to tail an individual more efficiently, and therefore, can be done without a warrant. The New York Times is calling U.S. v. Jones “the most important Fourth Amendment case in a decade,” and certainly the Supreme Court’s holding may have widespread effects on the ability of law enforcement to use GPS and other modern technology for the surveillance of individuals.