Court Grants Guantanamo Bay Detainee Case

The Supreme Court granted three cases yesterday.  One of those cases (Kiyemba, et al., v. Obama, et al. No. 08-1234) will decide whether courts possess the authority  to release  Guantanamo Bay detainees to live on United States soil.    

Additionally, the Court vided two cases together for argument. The cases Kawasaki Kisen Kaisha v. Regal-Beloit, No. 08-1553 and Union Pacific Railroad v. Regal-Beloit, No. 08-1554, will be argued before the term ends next year.

The full order list is available here.

The Court Grants Enron Case and Three Others

Today, the Supreme Court granted four cases including a petition filed by former-Enron executive Jeffrey Skilling.  Skilling v. United States, No. 08-1394. The Skilling petition presents the Court with both constitutional and statutory questions relating to the trial and conviction of Skilling in 2006. 

The Court also granted a petition filed by the Solicitor General in United States v. Marcus, No. 08-1341.  In Marcus, the question concerns the appellate standard for reviewing ex post facto issues which are not properly raised in the district court.

 Additionally, the Court further granted certiorari in Health Care Service Corporation v. Pollitt, No. 09-38; and, Holland v. Florida, No. 09-5327. The Court’s order list can be viewed here.

High School Student Challenges School Dress Code Policy

In 2008, Paul “Pete” Palmer—a sophomore at Waxahachie High School in Texas—wore a shirt supporting presidential candidate John Edwards.  The shirt displayed the innocuous message “John Edwards 08.”  Although the message was neither disruptive, nor offensive, the Waxahachie Independent School District informed Pete that the shirt contained “unapproved words” violating school district policy. That policy prohibited students from wearing clothing displaying slogans, words and symbols not promoting the district and its instructional programs. Pete challenged the district’s policy alleging that it amounted to unauthorized censorship of political speech in violation of the First Amendment. 

A federal district court in Texas rejected the challenge and the case moved to the Fifth Circuit Court of Appeals.  Because the school district’s policy of banning all political speech was content-neutral, the Fifth Circuit ruled that intermediate scrutiny applied.  The Fifth Circuit also held that the district’s policy of restricting student political speech was no more strict than necessary to achieve the district’s goals of improving the educational process, and therefore, the policy was constitutionally acceptable. By holding that policies prohibiting student political speech are subject to intermediate scrutiny, the Fifth Circuit joined the ranks of decisions from the Sixth and Ninth Circuits, in conflict with the decisions from the Second and Third Circuit on the issue. 

 Last week, Allyson N. Ho of Morgan, Lewis & Brokius LLP, filed a petition for writ of certiorari in Palmer v. Waxahachie Independent School District, No. 09-409, asking the Court to review the Fifth Circuit’s decision.  The petition contends that the Palmer case is “an ideal vehicle for re-affirming [First Amendment political speech] principles, resolving the conflict among the Circuits about the proper application of Tinker [v. Des Moines Independent Community School District, 393 U.S. 503, 514 (1969)], and bringing badly needed clarity to an important area of the law—one that daily impacts millions of students, their teachers, and school administrators.” 

The petition should conference later this year or early next. 

Good Faith, the Fourth Amendment and Arizona v. Gant

Last week, William H. Campbell and Professor Orin S. Kerr filed a petition for writ of certiorari in McCane v. United States, No. 09-402, asking for the Supreme Court’s guidance on a three-way split among lower courts on the scope of the good-faith exception to the exclusionary rule. The petition can be viewed here.

Beginning with United States v. Leon, 468 U.S. 897 (1984), the Supreme Court has repeatedly emphasized that not all evidence procured from illegal searches is automatically excluded from trial. The so-called “good-faith exception” allows evidence to be admitted when law enforcement agencies conduct good-faith searches that are later deemed unconstitutional. When and how the good-faith exception applies was the subject of the McCane petition.

The defendant in McCane was stopped by a police officer for a traffic violation, and due to his suspended license, was subsequently arrested. The officer conducted a search incident to arrest under New York v. Belton, 453 U.S. 454 (1981), and found a firearm hidden in the side pocket of the driver’s door.  The defendant was later charged in federal court as a felon in possession of a firearm.

Prior to the defendant’s appeal, the Supreme Court modified the rule for law enforcement searches of automobiles incident to arrest. The Court, in Arizona v. Gant, 556 U.S. __ (2009), held that police may conduct a warrantless vehicle search incident to arrest only if the arrestee is within reaching distance of the vehicle or if officers have reasonable belief that “evidence of the offense of arrest might be found in the vehicle.”

The Tenth Circuit applied Gant, concluding that the search of McCane’s vehicle violated the Fourth Amendment.  The court nevertheless held that the suppression of evidence was not necessary, because the police officer conducted the search in good faith and in reliance of the Supreme Court’s previous rule in Belton.  In doing so, the court aligned itself with the Fifth Circuit and two state Supreme Courts. 

Other courts of appeals have come to different conclusions on the application of the good-faith doctrine.  The Ninth Circuit has held that the good-faith exception to the exclusionary rule never applies when a new Supreme Court ruling deviates from previous decisions allowing certain types of searches to be performed.  In such cases, the new decision prohibiting a search and requiring suppression of the evidence is fully applicable.  Taking a middle-of-the-road approach, the First and Seventh Circuits sometimes apply the good-faith doctrine, depending on the circumstances.  Specifically, when law enforcement agencies use evidence from the unlawful searches to manufacture probable cause later used to obtain a search warrant, the First and Seventh Circuits apply the good-faith doctrine. 

The McCane petition argues that the Court’s guidance is needed to settle a “deep,” “irreconcilable,” and “recurring” conflict among the lower courts.   The Court’s review is also needed, the petition contends, because the Tenth Circuit’s opinion below directly conflicts with the Court’s precedents, including Arizona v. Gant.

An Interesting Post on a Little-Known Fact

The Supreme Court’s new 2009 Term is officially here—and with it comes a myriad of confusion.  The Term commences today, following the tradition of starting on the first Monday in October.

 But the Clerk’s office has already been assigning 2009 docket numbers—in fact, the new numbering started way back in June.  In the meantime, recent oral arguments have been treated as part of the 2008 term (i.e., Citizens United, No. 08-205).

Formerly perplexed SCOTUS bloggist Kevin Russell sorts out this conundrum in his recent post “Mystery of The Premature Docket Number.”

McDonald v. Chicago Coverage

There is a large media and blog buzz over the Supreme Court’s decision to hear McDonald v. Chicago, No. 08-1521 (note: the petition was printed by Cockle).  HowAppealing, SCOTUS Blog, and Sentencing Law and Policy all posted links to various media articles prognosticating the Court’s outcome in this Second Amendment case.   The media attention will most likely increase when the Court hears argument sometime after the New Year.

Cockle Blog will continue to provide coverage of what will surely be a historical decision on whether the Second Amendment applies to the States.