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June 17th at the Supreme Court

With the term winding down, on Monday the Supreme Court announced five decisions in previously argued cases. With only two sessions (scheduled) days to go, they have yet to release opinions in 14 cases. Of course, the four big cases from this term- affirmative action at the University of Texas, the Voting Rights Act challenge out of Alabama, the Proposition 8 gay marriage case out of California, and the DOMA gay marriage case- have yet to be decided. As is so often the case, the more controversial decisions are traditionally saved for last not for dramatic effect but more likely because the majority and dissenting opinions have undergone revisions to keep the voting bloc coalition together. It is in June that we see more 5-4 decisions and very few unanimous decisions, unless they were argued late in the term.

In fact, on Monday of the five decisions, four of them were 5-4. Generally, the trend has been the traditional ideological breakdown of the Court tying itself with Anthony Kennedy being the tie-breaker. Actually, one of the cases was 5-3 (Alito removed himself from the case). Here the vote was the traditional split. One assumes that Alito had an investment in the company which was a party to the case. In a second 5-4 decision, we see that traditional ideological split while in the third, we see Justice Clarence Thomas joining the liberal wing of the Court for which he was awarded the majority opinion. In actuality, given the number of concurring opinions, it was more of a plurality decision, but Thomas’ opinion holds sway as the majority opinion. There was one surprising decision in which Scalia and Roberts (along with Kennedy) joined the liberal wing of the Court to create a strong 7-2 decision. In the final 5-4 decision, Scalia joined the liberal wing while Breyer jumped ship to the conservative wing with Kennedy awarded the opinion. Naturally, none of this should be construed as some ideological shifting on the Supreme Court. Sometimes the shifts are the results of the specifics and nuances of the case at hand. And sometimes, how the opinion’s author addresses the issue and reasons it- although others may disagree with the reasoning- provided the result is what they think it should be, they will jump ship.

In the case of Maracich vs. Spears, this arose out of a South Carolina lawsuit against car dealerships. Lawyers for litigants requested and received from the South Carolina DMV the names of South Carolina registered drivers so that they can mail these people information about the impending lawsuit and asking whether they wished to participate in a class action against the car dealerships. A 1994 federal law prohibits a state from releasing driver information for solicitation purposes. For example, marketing data companies cannot obtain state driver information. There is an exception for the release of information if used for a criminal or civil trial which is what the law firm in this case argued their search fell under- the litigation exception. The lower courts ruled that the request for information was not a solicitation. The Supreme Court disagreed in a 5-4 decision written by Kennedy. He argued that an attorney’s search for new clients is distinct from an attorney’s conduct on behalf of existing clients. Ginsburg in her dissent, joined by Scalia, argued that the litigation exception was expansive enough as written by Congress in 1994 that it should allow lawyers to use DMV information to seek out potential new litigants (clients) in a pending case.

The case of Alleyne v. United States illustrates an area of criminal law which is increasingly being dealt with by the Court- minimum sentencing guidelines. These were “enacted” in response to what many perceived to be, one must admit, lenient judges when it came to sentencing. The result was the establishment of a Sentencing Guideline Commission which regularly reviews sentences for a variety of crimes, then issues guidelines which courts generally follow in the name of consistency. This case basically asked whether when minimum sentences were defined by the guidelines, should a jury have final say. In another 5-4 decision, Clarence Thomas broke ranks and joined the liberal wing arguing that since these minimum sentencing guidelines increase the penalty for a crime, any fact that increases the mandatory minimum is an “element” of the crime and therefore is rightfully decided by a jury. While some may view this as a victory for criminals aiming for leniency, it is actually a reaffirmation of the jury system in criminal cases.

Another criminal case- Salinas v. Texas- dealt with the Fifth Amendment and Miranda warnings. Authored by Alito, the traditional ideological lines held here. In this case, Salinas was questioned about a murder, but was not in custody and had not been issued his Miranda rights. In fact, his presence at the police station was unquestionably voluntary. During the questioning, Salinas became silent. After further investigation, he was arrested for the murder, placed in custody and read his Miranda rights. During the trial, the prosecution used his silence and refusal to answer certain questions during that initial voluntary interview as proof of his guilt. He argued that since he did not receive his Miranda rights then, his silence to questions could not be used against him in the subsequent trial. The Court ruled, basically, that if you want to assert your Fifth Amendment rights, you must explicitly do so. Simply remaining silent or refusing to answer a question is not an assertion of your Fifth Amendment rights. Incidentally, Salinas was convicted of the murders and there was ample evidence to support the guilty verdict regardless of the outcome of this case. If it went the other way, he would have received a new trial absent the prosecution introduction of the initial silence and likely convicted anyway…after costing the state of Texas valuable dollars.

The final 5-3 decision was FTC v. Actavis. To understand this case, you have to understand how pharmaceutical companies often operate. In particular as concerns this case, Solvay patented and marketed a drug. Actavis developed a generic version of the drug and Solvay sued for patent infringement. The FDA eventually approved the generic version of the drug, but instead of bringing the cheaper drug to market, Solvay entered into an agreement not to bring the generic drug to market for a specified time period and that they would promote, through their salesmen, the brand name drug sold by Solvay. For this, Actavis received millions of dollars. The FTC then sued Actavis by basically asserting antitrust violations. The lower courts ruled that since the preferred method of resolution is agreement between disputing parties, they could not force a lawsuit upon either party. The Supreme Court rejected this line of thinking arguing that the anti-competitive nature of these “reverse payment” agreements overrides the desire for resolution outside the courts. In effect, this decision gives governments the tools to attack monopolies in the pharmaceutical industry which may not be a bad thing. Roberts, in his dissent, argued that the purpose of the Waxman-Hatch Act (the law at issue here) was being negated by the majority. That is, the idea was to solve these disputes without resorting to the courts. No one anticipated that corporate “bribery” would be one of those solutions.

The final case, decided 7-2, was authored by Scalia. Four very important facts become evident here. At issue was an Arizona law that required that registered voters show proof of US citizenship before casting a ballot. Under the Motor Voter Bill, voter registration forms basically follow a federal form. However, Arizona required that actual proof of citizenship be presented. County registrars were basically ordered to determine the validity of US citizenship of registered voters and if no proof was given, they were to be purged from the voter rolls. In effect, they ruled that the federal law preempted the added state requirements. The first strange thing about the opinion is when Scalia concedes that the Elections Clause empowers Congress to determine HOW federal elections are held, but not WHO may vote in them. He concedes Arizona this argument. However, he basically said Arizona went about this wrong way. They could have and should have asked that the federal form in Arizona have a state-specific requirement; that is, proving US citizenship. Even if denied by the federal government, they could have appealed that denial through the Administrative Procedure Act. Because Arizona refused or failed to use this suggested method, they are denied the right to require proof of citizenship. In other words, Scalia rests his argument on a series of “would’ves, could’ves and should’ves.”

The second thing apparent is that the Arizona requirement is rather commonsense. But apparently, commonsense and the law do not necessarily or always intersect. What is the purpose of a form- federal or state- asking an applicant “Are you a United States citizen?” without the means to determine the validity of the box checked? I cannot speak for every state, but in New Jersey you are required to present several forms of ID to prove residence and citizenship just to get a driver’s license, or even a non-driver photo ID. Which brings up the third point. In the Fisher affirmative action case, Chief Justice Roberts during oral argument placed great emphasis on college applications which invariably ask for a person’s ethnicity. He argued what would stop a person from marking the Hispanic or African-American box when they were neither and they knew that it would increase their chances of college acceptance. Here, he rather eloquently questioned and commented on the checking of boxes without some means to determine the validity of the box thus checked off. Apparently, the authenticity of the ethnic background box on a college application is more important than the validity of whether a person who registers to vote IS ACTUALLY a United States citizen. Color me stupid, but I always thought the right to vote- something people fought and died for- is more important than a college application.

The final thing of note is that both Justices Alito and Thomas should receive a big gold star for their reasoned dissent. Thomas’ dissent relies on the Voter Qualification Clause which he correctly asserts is the province of the states themselves, not the Federal government. He also argues that this a dangerous intrusion of the federal government into a state’s powers to determine AND VERIFY the qualifications of registered voters. For example, if a state disenfranchises certain felons and they mark the box indicating they were never convicted of a felony, what good is the state qualification without verification? The answer: some ink in a box on a federally-recognized form and nothing more. Granted, Congress has the explicit power to regulate immigration and naturalization in the United States. But, this was NOT an immigration case. It was an elections law case and one that, at the end of the day, seriously infringes on a state’s right and responsibility to define and verify voter qualifications. Equally important, it lacks commonsense and removes from states a valid and important tool to combat voter fraud. Liberals are more worried about the hypothetical and imaginary foreign money in elections than they are about actual non-citizens casting a vote. Sometimes I wonder about Roberts, but when I start having doubts about Scalia, then it may be time to really worry.

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