This week at the Court: In Plain English

By Lisa Tucker
on May 27, 2011 at 9:14 am

I have been predicting for weeks that opinions were going to start coming down fast and furious, and this week has certainly proven me right (not that I was terribly prescient – that always happens at this time of year)!  This week, the Court issued opinions in six cases, including two of the Term’s blockbusters, making law all over the map on issues such as prison reform, employment of undocumented workers, and state secrets.  What’s more, this week is only the start; as Tom and Amy noted on the Live Blog, we still have not seen opinions in a few of the cases argued last fall, including those involving violent video games and gender discrimination in citizenship.

But let’s start with one of the week’s major headliners:  Brown v. Plata, a case brought against California’s governor (when it was argued, the case caption included the Governator, who has been in the news for other reasons lately) by prisoners who – as a result of severe overcrowding in California’s state prisons – have been subjected to terrible conditions such as inadequate medical care, lack of appropriate living and toilet facilities, and poor mental health care for many, many years.

The case is particularly significant because many may think, “Well, these prisoners did something bad, they are in prison, so they don’t need to live in luxury.”  But the overcrowding here was so bad, the Court held, that it violated the Eighth Amendment prohibition on cruel and unusual punishment.  In other words, even though prisoners do not have all the same rights as other Americans, they are at least entitled to decent living conditions and adequate care.  Furthermore, the only way to remedy the constitutional violations is to reduce the prison population, a difficult proposition at best, given California’s  current financial situation.

Justice Kennedy wrote the Court’s opinion, which was joined by the four so-called “liberal” Justices:  Justices Sotomayor, Kagan, Breyer, and Ginsburg.  As you probably know, especially since Justice O’Connor left the Court in early 2006, Justice Kennedy has been known as the “swing vote.” He is now more senior than any of the Justices who joined him in Plata; because the senior Justice in the majority assigns the opinion, he apparently assigned the opinion to himself.  Indeed, it appears that this case affected Justice Kennedy deeply.  In the opinion, he described the inmates’ “needless suffering” and even attached photos of the prison overcrowding (an unusual, although not unheard of, step).

The Court split five to four in Plata, however, and – as in so many constitutional cases – Justices Scalia and Alito had a very different take. As is typical, these conservative Justices were worried about public safety, especially if the overcrowding were achieved by releasing a huge number of prisoners (estimates range from 30,000-45,000) back onto the street.   And that is certainly a hard issue:  California now has to reduce the prison population drastically over the next two years.  How can it do that?  Either by releasing prisoners (which would be a public safety risk), building more prisons (but California is practically bankrupt), or by finding somewhere else to house the inmates (same problem).  Other, more remote possibilities?  Some have suggested that California repeal its “three strikes” law (which sends defendants to prison for life if they are convicted of three felonies, including apparently minor ones) or use county facilities to relieve the overcrowding.

So Plata was a dispute about whether the federal government could step in and regulate a state prison system.  Another of this week’s big cases, Chamber of Commerce v. Whiting, also involved a potential clash between federal and state powers, this time involving immigration.  A few years ago, Arizona – fed up with what it saw as problems created by illegal immigrants – passed a law that would suspend or revoke the licenses of business owners who hire undocumented workers.  Employers in the state would also have to use a federal program, E-Verify, to make sure that all of their employees were legal to work in this country.  Business groups and immigrants’ rights groups challenged the laws; they argued (and the federal government agreed) that the Arizona laws were “preempted,” or trumped, by federal laws governing immigration.  Yesterday, the Court rejected those arguments.  It made clear that as a general rule, immigration is not just the bailiwick of the federal government; here, a federal immigration law that bars states from punishing employers who hire undocumented immigrants does not preempt  Arizona’s laws.  In fact, said the Court (in a majority opinion by Chief Justice Roberts), the states and the federal government work together to make law in this area.

We have talked often about “statutory construction” here on the blog, and this case is an excellent example of how the Justices can differ on just what a statutory term means.  Here, although the federal immigration law prohibited states from punishing employers who hired undocumented workers, it also contained a “savings clause,” or exception, that allowed the states to use “licensing or similar laws” to punish those employers.   Logically, the Chamber of Commerce (representing employers) argued (with the dissenters in Whiting agreeing) that business licenses were not the kind of licenses Congress had in mind; such an interpretation would cause businesses to close down and would constitute a very harsh punishment, contrary to Congress’s statutory intent.  But Arizona (with whom the Chief Justice and the majority agreed) said that “licenses” meant just what it said, and, moreover, the law would not overly interfere with Congress’s intent.  This kind of interpretation issue frequently arises in the Court’s statutory cases; the Court’s job is to define the ambiguous term so that future courts can apply the definition consistently.

The same kind of statutory interpretation issue arose in two of the other cases decided this week,  United States v. Tinklenberg and Fowler v. United States.  In Tinklenberg, the Court considered a provision in the Speedy Trial Act, a federal statute that guarantees criminal defendants the right to a trial within seventy days, in part so that delays cannot keep them in jail indefinitely when bail is not granted or feasible.  Still, the Act contains a number of exceptions that will stop the seventy-day clock from running – including, as relevant to this case, the filing of pre-trial motions, which are questions or issues that the trial court should decide before a trial begins.  Writing for the Court, Justice Breyer explained that any filing of a pretrial motion will stop the Speedy Trial Act clock, even if it does not or is not expected to delay the trial.  Under the Court’s decision, any number of defendants may await their trials longer while in jail; keep in mind, however, that both the prosecution and defense may file pre-trial requests.

Similarly, in Fowler, the Court was interpreting the federal witness tampering statute, which makes it a crime to kill someone to prevent him from reporting a federal crime to a federal law enforcement officer.  The question in the case was whether the mere possibility that the victim would make the report was enough to invoke the statute, or whether there had to be a reasonable chance that he would report the crime.  The Court, in another opinion by Justice Breyer, held that there had to be at least a “reasonable likelihood” that the victim would report the crime for the statute to apply; in other words, the likelihood of communication to a federal officer must be more than “remote, outlandish, or simply hypothetical.”

The Court declined to decide another closely watched case, Camreta v. Greene, in which police had interviewed a child about allegations of child abuse without obtaining either a warrant or her parents’ permission.  While that legal issue might be a fascinating one – those of us who are parents might find it particularly relevant to our lives – the Court did not even reach the question about whether the interview was permissible.  Instead, it held that the case was “moot,” a legal term meaning that there was no longer a controversy in the case, because the child in question was now almost eighteen years old and had moved across the country, so that she doesn’t need to be protected from the school’s interviewing practices any longer.  Still, on another “procedural” point (or one that has to do with how cases are litigated), the Court also held that the petitioners – a police officer and a social worker – government officials could properly bring their case, even though they prevailed in the court below.

Why?  Well, the new rule revolves around a concept called “qualified immunity,” which means that government officials cannot be sued for violating the Constitution if the rule that they were violating was not “clearly established” by either a court decision or a statute What’s unusual about the Camreta opinion, though, is that it allows the police officers who won under a qualified immunity claim in the court below to continue to litigate their case.  Remember, the Court generally only hears cases when there is an ongoing dispute; if the police officer and social worker won, then they should be happy and go home, right?  No, said the police (with Justice Kagan writing for the Court majority to agree), because the Supreme Court should tell them whether what they did was actually unconstitutional.

So how will Camreta play out from here?  Well, the Supreme Court “vacated” the decision of the Ninth Circuit, so Officer Camreta can still contest the lower court’s ruling that his actions were unconstitutional.  We’ll be watching closely – the issue could come back to the Supreme Court in a few years on the Fourth Amendment issue (as long as the child in question doesn’t “age out” on the long road to Supreme Court review).

Finally, in General Dynamics v. United States, the Court held unanimously that it could not decide a case that involved “state secrets,” even to resolve a contract dispute with the federal government over the development of a stealth aircraft.  While the plane manufacturers claimed that the government owed them money for their work on the project and argued that the government’s lack of cooperation had led to the problem in the first place, the government refused either to pay them or explain, citing military secrets as the reason. Justice Scalia, writing for the Court, agreed that the fact that the litigation revolved around state secrets meant that no court could properly decide the issue (because requiring the government to produce the information in its defense would require release of the secret information) and held that each side could keep the money it had.