Tag Archives: John Roberts

DOMA likely to fall, but how much further will Kennedy go?

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Edie Arrives in Court

Edith Windsor, the 83-year-old plaintiff challenging the Defense of Marriage Act, arrives at Court with attorney Roberta Kaplan. Picture by Chip Somodevilla/Getty Images, found via ABC News.

Justice Anthony Kennedy had a choice to make this morning. In deciding the fate of the Defense of Marriage Act, should he go with a theory of federalism that emphasizes respect for states’ rights, or a wider-ranging theory of equality that might result in heightened legal protections for gays and lesbians across the United States?

Kennedy picked the former route and clung tightly to it today in a 110-minute oral argument for United States v. Windsor that put the swing Justice on firmer jurisprudential ground than yesterday’s Proposition 8 case. While the facts of Hollingsworth v. Perry pitted states’ rights and equal protection for gays directly against one another, leaving Kennedy confused as to which of a variety of unpalatable options he should choose, the legal issues in the Windsor case presented no such conflict. Rather, the state’s voters and the law’s challengers aligned in Windsor, where they merely asked the federal government to respect nine states’ decisions to recognize same-sex marriages. Here, the principles of federalism and equal protection both point to the unconstitutionality of DOMA.

Assuming that the Court doesn’t decide the case based on standing grounds, Justice Kennedy seemed perfectly content on Wednesday to limit any eventual ruling to the first question about states’ rights. He repeatedly reminded Paul Clement–the attorney tasked by the House of Representatives to argue in support of DOMA, since the Obama administration refused to defend it–that the right to define marriage (and the rest of family law) is “the essence of the State police power.” Kennedy also expressed concern over the sheer number of federal benefits provided based on marital status–1,100 and counting–noting that this means “the Federal government is intertwined with the citizens’ day-to-day life,” interfering with the state’s traditional “prerogative.”

Despite earlier rulings on gay rights cases that indicated a willingness to extend heightened judicial protections to gays and lesbians under the Fourteenth Amendment–an equality-based argument that would have far greater reach and be far more potent against discriminatory laws than a states’ rights takedown of DOMA–Kennedy appeared very hesitant to reconsider equal protection principles today (an issue on which he had also shown confusion at the Proposition 8 discussion yesterday). Several times during the oral argument, a fellow Justice or attorney would bring up Fourteenth Amendment considerations, and Kennedy would immediately steer them back to the federalism issues.

Sensing that its crucial fifth vote was reluctant to revisit arguments about equality, the liberal wing of the Court was happy to run with Kennedy’s line of thinking and echoed many of his concerns in follow-up questions. (One of the many perks of being a swing justice must be getting to set the tone for the oral argument and watching the rest of your colleagues follow along.) Justice Sotomayor asserted that the states, and not the federal government, control the institution of marriage, Kagan made reference to “historic State prerogatives,” and Ginsburg reiterated Kennedy’s sentiment that DOMA touches “every aspect of life” in a “pervasive” manner.

Kennedy’s hesitation notwithstanding, Justice Kagan in particular seemed intent on exploring heightened legal protection for gays and exposing DOMA as outdated legislation impermissibly based on animus. At one point, she dismantled Paul Clement’s arguments about legitimate government purposes for DOMA–he’d insisted that the federal government passed the law for purposes of uniformity across the states–by reading to him the 1996 House Report that clearly states that DOMA sprang from “moral disapproval” of homosexuality. While this rationale was once constitutional, basing discriminatory laws on disapproval toward a particular group has since been prohibited in 2003’s Lawrence v. Texas, the majority opinion for which was authored by–you guessed it–Anthony Kennedy himself. Clement was forced to backpedal and say that while some legislators may have had “improper motives” for DOMA, not all 84 of the Senators who voted for the law bore animus toward gays and lesbians.

Just as the liberal justices tailored their questions toward Kennedy’s views, the conservative Justices, led by Chief Justice John Roberts and Justice Scalia, tried to assuage Kennedy’s concerns by pressing Solicitor General Donald Verrilli, Jr. and Edie Windsor’s lawyer, Roberta Kaplan, on states’ rights. Roberts repeatedly asked both parties if there was truly a federalism problem–a bit of a trap for Verrilli in particular, who as the representative of the United States federal government has no interest in ceding too much power to the states–and became audibly annoyed whenever Kaplan or Verrilli attempted to tie their answers to an equal protection argument. While Roberts and Scalia tried to compel the DOMA challengers to say that federal overreach was not really an issue here, Justice Alito brought up the practical point that a DOMA defeat would mean that gay couples could be treated differently whenever they moved across state lines–and therefore, that the equal protection problem is ultimately unavoidable.

Of course, Justice Alito is spot on here. Regardless of how Anthony Kennedy decides to decide this case, marriage equality is spreading throughout the United States, and the Supreme Court will eventually have to decide what level of judicial protection gays and lesbians deserve. As the swing vote firmly in control of the wheel, however, Kennedy has the luxury of slowing down the train if he wants to, and it looks like he’s going to do just that in the name of federalism. It won’t be as big of a step as many had hoped for, but come June we will likely be one tiny step closer to a more perfect union.

“It’s a Magic Word:” Tweets from the Eminently Quotable DOMA Oral Argument

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Today, the Supreme Court heard two hours of arguments in United States v. Windsor, with fifty minutes allotted on the technical question of standing–namely, whether the DOMA case should even be before the Supreme Court at all–and sixty minutes on the merits. Though the Prop 8 case on Tuesday seemed to get the lion’s share of media attention–pictures of the line and the protests outside the Courthouse this morning show a smaller audience than yesterday’s–initial reactions and reports indicate that the DOMA argument and subsequent press conference from plaintiff Edie Windsor are 10,000% more quotable. A collection of tweets recapping the day’s events:

“Uncharted Waters:” Confused By Array of Options, Justices Mull Deciding Proposition 8 Case on Procedural Grounds

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Prop 8 Flag
Picture via Variety.

When all was said and done, there weren’t any major revelations in Tuesday’s oral argument for Hollingsworth v. Perry, but it did set the stage for an interesting two hours of arguments on the Defense of Marriage Act that the Supreme Court will hear today.

Chief Justice John Roberts looked for ways to dispose of the Proposition 8 challenge based on the procedural question of standing–as he has done in so many other cases during his tenure–and at least four of his fellow Justices seemed receptive to that option, dissatisfied with the alternatives that the attorneys before them were offering.

The Prop 8 challengers and the United States government framed this fight as the latest in a long line of struggles for equality, appealing to the liberal wing of the Court as we thought they might. They drew parallels to Brown v. Board of Education and Loving v. Virginia, the 1967 case that outlawed state bans on interracial marriages. Justice Ruth Bader Ginsburg–a civil rights pioneer in her own right–reminded Charles Cooper, the lawyer defending Proposition 8, that it was unsound to rely on the Constitutional reasoning of a thirty-year-old Supreme Court decision unfavorable to gay marriage (Baker v. Nelson), given that gender discrimination was barely even recognized back then. Justice Sonia Sotomayor questioned Cooper about whether the government had any rational basis to deny gays and lesbians benefits other than marriage, and Justice Elena Kagan repeatedly pressed Cooper to specify the harm that same-sex marriage causes.

And, as expected, Justices Samuel Alito and Antonin Scalia did not take kindly to the arguments of the Prop 8 challengers. Scalia managed not to emit any overly damaging sound bites this time–the worst thing he said concerned potential “deleterious effects” of same-sex parenting on children–but got into a testy exchange with anti-Prop 8 attorney Ted Olson. Seeking to make a point about America’s long and treasured history of discriminating against gays, he interrogated Olson on when exactly gay marriage bans became unconstitutional, berating him when Olson attempted to answer with a rhetorical question about interracial marriage prohibitions, and responding triumphantly when Olson admitted that he could not provide a specific day: “Well, how am I supposed to decide the case, then–if you can’t give me a date when the Constitution changes?”

Debates that the public has been having for years spilled over into the courtroom as the Justices extended each side’s arguments to their logical conclusions. They grilled Cooper on why, if procreation is the main point of marriage, the state hasn’t banned marriages between infertile, elderly or incarcerated couples. They asked Olson whether a state could prohibit polygamy or incestuous marriages if marriage is in fact a fundamental right under the Constitution. Neither of the answers that the attorneys provided–a convoluted riff about preventing the evils of infidelity from Cooper, and a muddy distinction drawn by Olson between status and conduct–seemed to satisfy a clear majority of the Justices.

Donald Verrilli
Solicitor General Donald Verrilli in 2008. Picture by the Associated Press, via Cleveland.com.

Though none of the questions came out of left field, there weren’t any obvious winners or losers, as each of the lawyers’ arguments had holes that made several Justices uncomfortable. Solicitor General Donald Verrilli, Jr., arguing the federal government’s position in support of the Prop 8 challengers, probably fared the worst out of the three attorneys. He took a verbal beating from both liberal and conservative justices over the Obama administration’s dubious stance that states offering civil unions must be made to offer same-sex marriage as well, while states that have never allowed the civil union option should not be required to legalize same-sex marriage. Wouldn’t such an “all or nothing” approach incentivize states to grant their gay citizens no rights instead of some rights, Breyer asked? Verrilli didn’t have a good answer. Then again, as last year’s oral arguments for the Affordable Care Act showed, he doesn’t have to be on his A game for the Justices to find in his favor. Even if the Justices are loath to accept the federal government’s preferred “eight state” course of action, the Obama administration would still celebrate any California-specific result that leaves intact federal district judge Vaughn Walker’s ruling against Prop 8 (or the Ninth Circuit affirmation of that decision).

In the end, it all comes down to Anthony Kennedy, as it has many times before and will again in the future. Justice Kennedy did quite not tip his hand at yesterday’s argument, asking probing questions of both sides. He showed concern over what would happen to the 40,000 children in California with same-sex parents if their fathers and mothers were denied the right to marry, yet balked at the thought of finding a fundamental right to same-sex marriage, warning that the Court was wandering into “uncharted waters.” Kennedy pushed Cooper to concede that he couldn’t think of any specific ways in which same-sex marriage injures society, but also suggested that the case might have been improvidently granted in the first place and should be thrown out based on standing rules. Basically, he appeared to be searching for a rationale to justify a limited rather than broad ruling. Hence, it’s unlikely that the Court will uphold Proposition 8 or make same-sex marriage constitutional across all 50 states–but beyond that, it is unclear what the exact decision is going to be.

Prior to Tuesday’s oral argument, David Boies, Ted Olson’s partner in Hollingsworth v. Perry, had confidently predicted that the Proposition 8 challengers would win the case by at least a 6-3 margin. Emerging from the courthouse into the sunshine yesterday afternoon, however, Olson didn’t sound so sure. “Based on the questions the Justices asked, I have no idea” what the Supreme Court will rule, he said. Most court-watchers don’t, either, but it will be very interesting to see how the Prop 8 arguments over standing, states’ rights and respect for the legislative process play out when the Justices tackle similar questions in the United States v. Windsor DOMA challenge today.

Supreme Court Must-Read: Jeffrey Toobin’s New Yorker Profile of Justice Ruth Bader Ginsburg

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Ruth Bader Ginsburg SOTU

She’s still got it: Justice Ruth Bader Ginsburg receives a warm welcome at the State of the Union.

The New Yorker has just published Jeffrey Toobin’s illuminating profile on Justice Ruth Bader Ginsburg ahead of her 80th birthday on March 15th. (Subscribers to the magazine can access the full text of the ironically-titled piece, “Heavyweight,” at this link.) Chronicling Justice Ginsburg’s early struggles in the male-dominated legal world of the 1950s (Ginsburg had trouble finding someone who would hire her despite having graduated first in her class at Columbia Law), her triumphs as a leading women’s rights advocate with the ACLU, her marriage to the late tax attorney Martin Ginsburg, and her tenure on the Supreme Court, the profile is an understated and touching pre-tribute to the Justice who conventional wisdom tells us is most likely to retire next.

From same-sex marriage ceremonies to retired Justice Sandra Day O’Connor, partial-birth abortion bans to Lilly Ledbetter, “Heavyweight” is full of interesting tidbits and little gems from Justice Ginsburg herself: 

On her brief-writing strategy while litigating cases before the Supreme Court:

“I was doing all these sex-discrimination cases, and my secretary said, ‘I look at these pages and all I see is sex, sex, sex. The judges are men, and when they read that they’re not going to be thinking about what you want them to think about,’ ” Ginsburg recalled. Henceforth, she changed her claim to “gender discrimination.”

On work-life balance:

“It bothers me when people say to make it to the top of the tree you have to give up a family. They say, ‘Look at Kagan, look at Sotomayor’ … What happened to O’Connor, who raised three sons, and I have James and Jane [her son and daughter with Martin Ginsburg]?”

On Chief Justice John Roberts:

“For the public, I think the current Chief is very good at meeting and greeting people, always saying the right thing for the remarks he makes for five or ten minutes at various gatherings.”

On how long she will remain on the bench:

“As long as I can do the job full steam… You can never tell when you’re my age. But, as long as I have the candlepower, I will do it. And I figure next year for certain. After that, who knows?”

Money quotes aside, Toobin’s piece is particularly fascinating when he discusses Justice Ginsburg’s views on the relationship between Congress and the Court. Though she is classified as one of the Supreme Court’s liberals in the vein of Earl Warren and Thurgood Marshall, Ginsburg does not share these predecessors’ conviction that the Court should be the driving force for widespread social change. Instead, Toobin writes, she believes that the Court’s role is to begin dialogue with the elected branches of government, to ask them to reconsider “ancient positions” that may no longer work in our day and age, and then to kick the proverbial ball back to them. In this respect, Justice Ginsburg is very much like President Obama, who also prefers to see social change enacted through the legislative rather than judicial arena (and whose similar views on the judiciary have also been discussed at length by Toobin). It is little wonder, then, that the two seem to get along so famously.

Anyway, the profile is a must-read for anyone who is interested in the Supreme Court, the women’s rights movement, or even just a good life story.

The permanent Republican victory

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Frank Rich cautions against premature liberal gloating of coming triumphs, demographic or otherwise:

What’s more, the right thinks long-term, and if you look at the long-term, the whole ugly “fiscal cliff” standoff was a win-win for conservatives, no matter what their passing defeats in this week’s deal. The more Washington looks dysfunctional, the more it sows dissatisfaction with the very idea of a Federal government. Yes, Democrats and the White House can argue that polls show that the Republicans would be getting most of the blameif Congress couldn’t reach agreement on the “fiscal cliff.” But that’s short-term liberal wishful thinking. Long-term, this intractable dispute has undermined Americans’ faith in government, period, and the voters’ plague-on-all-your-houses view of Washington is overall a resounding ideological win for a party that wants to dismantle government, the GOP. The conservative movement is no more dead after its 2012 defeat than it was after the Goldwater debacle of 1964.

Silver lining? Social issues, at least, seem to be a winning hand for the Dems:

John Roberts is as political a Chief Justice as I’ve seen — political in the sense of wanting to be well-regarded by mainstream public opinion and posterity. He’s no Scalia-Thomas-Bork right-wing bull in the china shop. Much as I welcomed his upholding of Obamacare, his logic was so tortured that I shared the view of conservative critics that he was holding a finger to the wind and cynically trying to be on the right side of history. His remarks about  the nation’s fiscal impasse are content-free and gratuitous — and irrelevant to his constitutional role — but they do reflect his own desire to maintain a noble public image. It was, one might say, a Howard Schulz PR move. If nothing else, this Chief Justice’s continued obsession with his own profile may bode well for the future of same-sex marriage: Hard to imagine that Roberts will thwart a civil rights breakthrough now enthusiastically supported by an overwhelming majority of the young and even not-so-young Americans who will write the history of the Roberts Court.

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Scott Brown’s Model Justices: A Venn Diagram

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In Monday night’s Massachusetts Senatorial debate, Scott Brown noted that his favorite Supreme Court justices are Scalia, Kennedy, Sotomayor and Roberts, which is a little bit like saying that your favorite foods are spam, foie gras, twinkies and vegan butter. While Brown might have been able to pick two out of the above four without raising too many eyebrows, the more names he added to that list, the more it looked like he was randomly grasping at any Justices he could remember. (Especially with Sotomayor and Scalia; for God’s sake, doesn’t Brown know that they are both YANKEES fans??) But what if, despite Elizabeth Warren’s guffaws and obvious glee–which even a facepalm could not hide–Brown actually knows more about The Nine than we’re giving him credit for? The First Casualty has come up with a Venn Diagram to see if we could make any possible sense out of Brown’s answer (click to enlarge):

 

Bottom line: Brown’s answer would have been way more credible had he stuck with any combination of Scalia // Kennedy // Roberts. As it is, barring some further explanation that we’ve all missed, his four-way answer makes little sense unless he highly prioritizes Catholicism in a Justice. Either that, or he’s a huge fan of the United States v. Jones majority opinion from last term (where the Court held that the Government’s attaching of a GPS device to a car constitutes a search requiring a warrant), which all four model justices joined.

Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post periodically here on legal issues. Rumor has it she and Jay Pinho are dating.

It’s That Time of the Year Again: Supreme Court Preview 2012 – 2013

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The width of the smile seems to be inversely proportional to the amount of time the Justice has been on the court.

After a busy summer spent lecturing abroad, appearing at book promotions, publicly sparring with other federal judges, attending Yankees games and having their homes robbed, the Supreme Court is set to start its 2012-2013 session next Monday, October 1st. Though it may not quite match last term’s level of drama with its Affordable Care Act and immigration rulings, this term promises to bring a few blockbusters as the Court prepares to tackle cases on hot-button issues such as affirmative action, gay marriage, government wiretapping and capital punishment for the mentally incompetent. The Supreme Court’s calendar for the term is not entirely set in stone–an opening conference held on September 24th  placed six new cases on the docket, and more cases are yet to be added–but here are some highlights we can expect to see in this coming year:

  • Revisiting Affirmative Action in Higher Education: Abigail Fisher, a Caucasian student, applied but did not gain admission to the University of Texas. She claims that UT unfairly denied her a spot on the basis of her race: under a 1997 Texas law, automatic admission to state-funded universities, including UT, is granted to the top 10% of students in every Texas high school regardless of race. At UT, race is then used as one factor among many to determine admission for the rest of the remaining spots. Fisher did not make the top 10% cutoff at her high school and her application was passed down to the pool that took the applicant’s race into consideration. In 2003, SCOTUS ruled in Grutter v. Bollinger that the University of Michigan could constitutionally take race into account as one factor in its admissions decisions since racial diversity in higher education was a “compelling state interest.” Sandra Day O’Connor famously wrote in her opinion then that she expected the Court to review this ruling again in 25 years, when racial disparities had (hopefully) faded to the point where affirmative action for ethnic minority students was no longer necessary. It has only been nine years since Grutter, but the Court has seen some personnel changes and a marked shift to the right since then–and some believe that Justice John Roberts (who has in a previous case indicated that racial diversity at the elementary school level is not a compelling state interest) & Co. are ready and willing to either overturn or restrict the Court’s previous ruling. Fisher will be argued on October 10th.
  • Gay Marriage (Finally) Makes Its Way Up to SCOTUS… We Think: Last year saw a boom of gay marriage cases being fought in various federal appellate courts across the country, and a number of these decisions have now been petitioned to the Supreme Court. Of the various cases seeking review, most involve challenges to the constitutionality of the Defense Of Marriage Act (which currently denies federal benefits to same-sex couples even if their marriages are legally recognized by their home states), while one involves an appeal from the Ninth Circuit’s February 2012 decision finding unconstitutional California’s Proposition 8 (which changed the state’s constitution to bar same-sex marriage). This last case, Hollingsworth v. Perry, is the most marquee of the bunch, though Emily Bazelon of Slate argues in this essay that proponents of gay marriage should want SCOTUS to take a step-by-step approach and hear one of the less-glitzy DOMA cases instead of Hollingsworth–which may demand too much of SCOTUS by seeking a sweeping decision that marriage is (or is not) a basic right guaranteed to all. SCOTUS has not decided exactly which case to grant cert to yet, if any–none of the six new cases that it agreed to review on Monday involved gay marriage–but Ruth Bader Ginsburg did mention at a University of Colorado conference this summer that the high court is likely to hear a DOMA case this term.
  • Can Suspected Drunk Drivers be Forced to Undergo Warrantless Blood Tests?: In a case concerning the privacy rights of motorists stopped by police for drunk driving, the Supreme Court will consider Missouri’s appeal of a state supreme court ruling that its police wrongly administered a warrantless, non-consensual blood test on Tyler McNeely. Under current Fourth Amendment jurisprudence, there are certain defined exceptions that would justify a police officer’s warrantless search and seizure of a person, but McNeely claims that none of these exceptions applied to his blood test, which was forcibly taken at a hospital less than a half-hour after he was first pulled over and refused to take a breathalyzer test. McNeely argues that over half the fifty states have laws prohibiting law enforcement from administering non-consensual blood tests without a warrant. On the other hand, Missouri argues that the 1966 precedent of Schmerber v. California allows for warrantless blood tests where the “special facts” exception exists, including the fact that the body begins eliminating alcohol from its blood shortly after drinking.
  • While We’re On the Subject of Warrants, Drug-Sniffing Dogs Come Under Scrutiny As Well:
    Franky the drug-sniffing dog. We’re not sure what the white stuff around his muzzle is.

    On October 31st, the Court will hear a pair of Florida cases involving drug-sniffing dogs and warrantless searches. In Florida v. Jardines, the defendant argues that the police violated his Fourth Amendment Rights against illegal search and seizure when they brought a drug-sniffing dog named Franky to sniff at his door without a warrant. Jardines contends that there was no probable cause for the sniff, which constituted a search in and of itself. Meanwhile, in Florida v. Harris, the Supreme Court will decide whether an “alert” from drug-sniffing dog Aldo can be assumed credible (thereby establishing probable cause for a warrantless search) merely on the basis that Aldo attended sniffing school, or whether prosecutors must provide more detailed information to show that the dog is indeed reliable. The Florida Supreme Court ruled last year in favor of the latter approach, ordering that the State provide evidence of the dog’s training and certification, field performance records, and evidence of the handling officer’s own experience and training.

  • Capital Punishment, Habeas Relief and the Mentally Incompetent: In the U.S., inmates who have been tried and sentenced to death have a right to challenge their convictions and sentences in a habeas corpus hearing. The Supreme Court has also held that the Eighth Amendment bars capital punishment for the insane and the mentally disabled. But what happens when an inmate is convicted of a capital crime, sentenced to death, and then argues at the habeas corpus petition stage that he is mentally incompetent and therefore cannot assist his lawyers in preparing the petition? Is he entitled to a competency hearing? Two Circuits have found that inmates do have a “right to competence” at the habeas stage and have granted mentally incompetent inmates indefinite stays until they become competent–meaning that if they never do become competent, their death sentence is effectively turned into life imprisonment. Supporters say that it is unjust to force the mentally incompetent into habeas proceedings if they cannot help their own counsel assemble their case, and point out that capital punishment for the insane and mentally disabled is unconstitutional anyway. Opponents argue, however, that these indefinite stays run contrary to the state’s interest in the finality of convictions. The Supreme Court will hear arguments for Ryan v. Gonzales and Tibbals v. Carter on October 9th.
  • Corporations Behaving Badly and Causing Human Rights Atrocities Abroad: The Alien Tort Statute was penned in 1789 to provide for foreign citizens redress for violations of international law, in United States courts. Modern applications of this law have focused on bringing to justice former government officials accused of atrocities abroad, but Kiobel v. Royal Dutch Petroleum adds a Citizens United-esque twist: can corporations be sued under the ATS for genocide, torture and other violations of international law committed abroad? And what is the exact scope of the ATS in cases where the alleged violations were committed outside of the U.S., anyway? The Second Circuit said no to the first question in 2010, dismissing the case based on its holding that corporate liability is not a universally recognized norm of customary international law. Upon Kiobel’s appeal, the Supreme Court held oral argument on the case in February 2012, but took the unusual step of ordering further argument for the new term beginning in October. This will be the first argument of the 2012-2013 year: look for the justices to focus not so much on the corporate liability issue but on the question of whether Kiobel can even bring her case in an American court for human rights abuses committed on foreign territory.
  • Government Wiretapping: The Supreme Court referees on October 29th the latest chapter in the fight between national security and civil liberties. In Clapper v. Amnesty International USA, a group of strange bedfellows (including Amnesty Int’l, the New York State Bar Association and the Gun Owners Foundation) have banded together to sue the government over the constitutionality of a provision in the Foreign Intelligence Surveillance Act that permits the “targeting” of “persons reasonably believed to be located outside the United States” for the purposes of “gathering foreign intelligence information.” Amongst other things, the law authorizes the government to wiretap such persons’ communications. The trouble for Amnesty and friends, however, is that in order to even sue in federal court, they must have standing, which requires them to show that they have suffered or will imminently suffer the injury they are complaining of. Unfortunately, they have no definitive proof that the government is in fact wiretapping their communications. Despite this obstacle, the Second Circuit permitted the case to proceed; SCOTUS will now decide whether the group does in fact have standing to sue.
  • Davids v. Goliaths–Immunity for Government Officials in Military and Prison Contexts: On Monday, the Supreme Court added to its docket not one but two cases from lawyerless petitioners, each involving the rights of individuals to sue the federal government. Millbrook v. United States arises from the claims of Kim Lee Millbrook, an inmate at a federal prison in Lewisburg, Pennsylvania who accused three prison guards of sexually assaulting him. Though his suit was dismissed by the lower courts, Millbrook handwrote an appeal in pencil to the Supreme Court, which then decided to use Millbrook’s case to resolve the question of government liability for claims made against federal prison guards, according to the Associated Press.  Meanwhile, Levin v. United States addresses government liability for tortious acts committed by military medical personnel. The case arises from a battery claim against the U.S. government, made by a Guam resident whose eye was allegedly damaged in a botched cataract operation carried out by a U.S. Navy surgeon. Levin appealed to the Supreme Court after the Ninth Circuit ruled against him and held that the federal government has sovereign immunity from battery claims.
  • Does the Government “Take” Your Land If It Repeatedly Floods Those Lands? Finally, the Supreme Court will settle this term the age-old question of whether the government must compensate parties under the Fifth Amendment’s takings clause if it repeatedly causes those parties’ properties to flood, thus “taking” the private property for “public use.” Arkansas contends that over a six-year period, the United States Army Corps of Engineers did just that to one of its forests, the 23,000-acre Dave Donaldson Black River Wildlife Management Area, causing degradation of the forest’s timber and destroying wildlife habitats. The government’s response is that the lands were not rendered completely unusable because the flooding was only “temporary” and the waters always receded. It maintains that its behavior may constitute a tort but does not rise to the level of a “taking.” While this case may sound a little bit like a no-brainer–why shouldn’t the government pay back the state for this recurring damage?–SCOTUS has in the last half-century chipped away slowly at the Takings Clause, going so far as to allow a Connecticut city to take over private property, without compensation, for the purpose of selling it to a private developer (in 2005’s Kelo v. City of New London). Oral argument for Arkansas Game & Fish Commission v. United States will be held on October 3rd.

Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post periodically here on legal issues. Rumor has it she and Jay Pinho are dating.