WASHINGTON – The U.S. Supreme Court has 51 cases on its docket for the term that begins Monday. It will hear cases that address the First and Fourth Amendments,due process and patents. The court usually hears about 80 cases per term,and President Barack Obama’s health care reform act seems likely to arrive at the court soon.
Washington law experts gathered at several panel discussions recently to discuss the most important cases:
In U.S. v. Jones,police obtained a warrant to install a GPS tracking device on suspected drug trafficker Antoine Jones’ car. The warrant gave police 10 days to install the device in D.C. But police waited until the 11th day to attach the GPS to Jones’ car,which was in Maryland.
During the four weeks police monitored Jones,he visited a narcotics stash house. He was eventually convicted of drug trafficking and sentenced to life in prison.
The Fourth Amendment protects individual privacy and typically requires a warrant before a search or seizure. The court is being asked to decide whether a tracking device on a vehicle constitutes a search or seizure and violates an individual’s reasonable expectation of privacy.
Some legal experts argued that,although Jones was driving on public roads where anyone could observe him,the extended tracking of his car and compilation of information on his whereabouts violated his reasonable expectation of privacy.
“There is a lot of back-and-forth about whether,even if an individual has no reasonable expectation of privacy in his movements more generally,whether the extended tracking in this case takes it over the line,” Kannon Shanmugam,a former assistant solicitor general and now a partner at Williams & Connolly,said at a Heritage Foundation panel discussion.
Florence v. Board of Chosen Freeholders of the County of Burlington,N.J.,addresses strip searches in jails for those arrested for minor offenses.
Albert Florence was a passenger in his car when a New Jersey state trooper pulled it over. His wife was driving. Police arrested him for civil contempt because their records showed he had failed to pay a fine.
“Not only had he paid the fine,but because of the whole ‘driving while black’ phenomenon,he actually carried with him in the car the document that confirmed that he had paid the fine so that if he was ever pulled over he could prove it,” Sherrilyn Hill,a law professor at the University of Maryland,said at a Woodrow Wilson Foundation panel discussion.
Officers strip searched Florence at the jail. Florence argues that the strip search was not reasonable because it intruded on his privacy and he was arrested on a minor charge without reasonable suspicion.
Federal Communications Commission v. Fox Television Stations deals withprofanity and nudity in broadcasts. Fox aired two music awards shows containing what the FCC deemed “indecent” speech by Cher and reality television star Nicole Richie,and ABC aired an episode of “NYPD Blue” that showed a rear view of a naked female character.
The FCC considers three components in determining whether material is indecent: the graphic nature of the material,whether the broadcast repeats the graphic material and whether the material is used for shock value. Some argue that the policy is too vague.
“There was no rhyme or reason to which broadcasts were being fined and which were not,” Neal Katyal,a professor at Georgetown University Law School,said during a GU Supreme Court Institute panel discussion.
Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Opportunity Commission deals with religious freedoms. Lower courts recognize a “ministerial exception” to the First Amendment,which protects religious associations from being sued when hiring religious leaders based on their beliefs.
When teacher Cheryl Perich returned from disability leave,the school asked her to resign. The Redford,Mich.,school fired her when she threatened to sue,claiming she had permanently damaged her relationship with the church. Hosanna-Tabor is arguing that,because of the protection offered by the ministerial exception,the court cannot order Hosanna-Tabor to rehire Perich.
“If ever there was a classic retaliation case,this would be the most open-and-shut,slam-dunk retaliation case,” Michael Gottesman,a Georgetown professor,said. “Except that,according to the school,it makes a difference that the employer was a religious organization and that the employee was a minister in the sense that part of the day she was teaching religious studies.”
Patent and Copyright
Golan v. Holder deals with whether Congress can copyright works that were once in the public domain. Orchestra conductors,movie distributors and others who rely on these works sued,arguing that Congress is overstepping its bounds because copyrights are supposed to be granted for a limited time.
“Congress has done this from the very start,in 1790,the very first copyright act. They took works that were in the public domain and then copyrighted them,” Katyal said during a Federalist Society discussion. “So if the ballgame is the kind of traditional one,of what Congress has done in the past,then I think there is a very good argument that what Congress has done here is permissible.”
Mayo Collaborative Services v. Prometheus Laboratories questions whether someone can patent a naturally occurring process or phenomenon. Prometheus,a San Diego-based company that holds licenses for drug dose patents,sued Mayo,of Rochester,Minn.,for patent infringement when Mayo sought to market a similar dosage test. The trial court ruled that Prometheus’ patent was invalid because it relied on a naturally occurring process.
The court “could hand down a rule that would force it to rule against gene patents,and if you knock out both gene patents and method patents,then in the biotech industry you are going to have a problem,” Adam Mossoff,a George Mason University law professor,said at the Federalist Society panel. “Then the biotech industry will have a legitimate ground to say the sky is now falling.”
Separation of Powers
Zivotofsky v. Clinton questions whether a federal statute on passports is unconstitutional. If U.S. citizens born in Jerusalem ask for Israel to be listed as their birthplace on their passports,the secretary of state must comply. This statute has not always been enforced,however,and the State Department refused to list Menachem Zivotofky’s birthplace as Israel on his passport because the U.S. does not take a position on whether Jerusalem is Israeli territory.
“I think the implications are really more than meets the eye here,and there’s a sense in which this may seem somewhat less weighty than some of the other foreign policy questions that come before the court since it’s a largely symbolic matter of what the passport says,” Paul Clement,former U.S. solicitor general and a partner at the Bancroft law firm,said during the Heritage Foundation panel. “The underlying issues here are critically important.”
Zivotofsky argues that the statute is constitutional because the State Department allows citizens to list places such as the Gaza Strip and the West Bank as birthplaces,even though the U.S. does not recognize them as sovereign nations.
Sackett v. Environmental Protection Agency deals with a district court’s jurisdiction over EPA compliance orders.
The EPA informed homeowners Mike and Chantell Sackett that they could not add onto their house in Priest Lake,Idaho,because their backyard was a wetland. EPA issued a compliance order that would fine them if they damaged the area. The couple sued to seek a review of the order before it went into effect,but the court dismissed the complaint,saying it did not have subject-matter jurisdiction over the EPA’s compliance order.
The court is being asked if this violates due process.
“The property owner can be put in a very serious dilemma because you have a couple here … whose options were to either get a permit and come into compliance or to be in violation of the EPA’s dictates and to face the possibility of fines,which could be as much as tens of thousands of dollars each day,” Clement said.
Reach reporter Pamela Engel at [email protected] or 202-326-9871. SHFWire stories are free to any news organization that gives the reporter a byline and credits the SHFWire.