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It was a series of events straight out of the children’s book If You Give a Mouse a Cookie – the Law and Order edition.  The storyline goes something like this:  If you are driving a car with expired tags, the police might pull you over.  If they do, they will ask to see your driver’s license.  When you give it to them, they will run a computer check and learn that it has been suspended.  So they decide to impound the car.  But before they tow the car away, they search it.  When they search it, they discover two handguns under the hood, so they arrest you.  When they arrest you, they take your smart phone.  When they take your smart phone, they read your text messages.  When they read the messages, they see texts which suggest that you might be a member of a local gang.  Based in part on those texts, they suspect that you may have been involved in a gang-related shooting a couple of weeks ago, and so they look at your phone again, where they find more evidence to support the theory that you belong to a gang and were involved in the shooting.   Continue reading »

Before Tuesday’s oral arguments in American Broadcasting Companies v. Aereo, Justice Kennedy announced the Court’s much-anticipated decision in Schuette v. Coalition to Defend Affirmative Action, upholding Michigan’s state constitutional ban on the use of affirmative action by state universities.  Given the palpably tense atmosphere that accompanied Justice Sonia Sotomayor’s dissent from the bench in Schuette, you had the sense that the Justices were relieved to move on to easier – or at least less controversial – topics, like the David-and-Goliath battle that pits Aereo, the start-up that pulls TV programming off the airwaves on thousands of tiny antennas and streams it over the Internet to subscribers for a small fee, against the broadcast television industry, which argues that Aereo’s business model is a blatant violation of federal copyright laws that could sound the death knell for television as we know it.  (My preview of the oral argument is available here.)

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Yesterday, the nine Justices of the Supreme Court convened in a packed courtroom to hear oral arguments in two high-profile cases.  But the real drama came before the oral arguments even started, when Chief Justice John Roberts announced that Justice Anthony Kennedy would deliver the Court’s decision in Schuette v. Coalition to Defend Affirmative Action, the challenge to an amendment to the Michigan constitution that bans the use of affirmative action by public universities there.  (My earlier Plain English coverage of the case is available here.)

Justice Kennedy began by explaining what “this case is not about.”  It is not about whether state universities can voluntarily consider race in their admissions process, nor is it about whether it’s a good idea for them to do so.  Instead, Kennedy emphasized, the question before the Court is whether voters can choose to prohibit state universities from considering race.  And the answer to that question, we learned yesterday, is yes.

Justice Sotomayor dissents in Schuette. (Art Lien)

Justice Sotomayor dissents in Schuette. (Art Lien)

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For those of us who grew up adjusting the rabbit ears on our seventies-era televisions (and having to get up to change the channel to one of the other four or five available stations – no remote controls!), the service offered by Aereo, Inc., is nothing short of miraculous.  For just eight dollars a month, you get the ability to start watching a TV program – say, the Super Bowl – live on your iPhone while you are out of your house.  When you get home, you can pick up seamlessly where you left off on your television or desktop computer.  Or, you can record the entire program on a remote DVR assigned to you and watch the whole thing later on.

What could possibly be wrong with Aereo’s business model?  For ABC and the rest of the broadcast television industry, pretty much everything.  In their view, Aereo is blatantly violating federal copyright laws (and possibly jeopardizing the entire broadcast industry) by streaming live TV over the Internet without paying the networks for the right to do so.  Aereo counters that everything it does is completely legal:  the TV programs that it makes available are already broadcast for free over the public airwaves; Aereo is just making it easier and more efficient for its subscribers to watch those programs.  Tomorrow, the Supreme Court will hear oral arguments from both sides of the dispute, with a decision expected by summer.  Here’s the lowdown on American Broadcasting Companies, Inc. v. Aereo, Inc., in Plain English.  Continue reading »

Back in October, when the Court heard oral argument in a challenge to the overall caps – known as “aggregate limits” – on how much an individual can contribute to candidates for federal office, political parties, and political action committees, there wasn’t a whole lot of suspense.  Given the Court’s recent campaign finance rulings, it seemed clear that a majority of the Justices would vote to strike down at least some of the caps; the only real question was whether they would strike down them all.

Today we got our answer from the Court, and it was a decisive “yes”:  all of the aggregate limits must go.  Let’s talk about today’s decision in McCutcheon v. Federal Election Commission in Plain English. Continue reading »

Almost two years ago to the day, the Supreme Court heard oral arguments in a challenge to the Affordable Care Act’s individual mandate, which requires virtually everyone in the United States to buy health insurance or pay a penalty.  This morning, it heard a new and different challenge arising out of the Affordable Care Act:  can a business be required to provide its female employees with health insurance that includes access to free birth control, even if doing so would violate the strong religious beliefs of the family that owns the business?  After the oral argument today, it looked like the Court’s answer may well be no, although the decision may not prove as sweeping as some of the challengers might prefer.  And as is so often the case, it looks like Justice Anthony Kennedy may hold the key vote in the case.  Let’s talk about the proceedings at the Court today in Plain English.

Justices Sotomayor, Ginsburg and Kagan (Art Lien)

Justices Sotomayor, Ginsburg and Kagan (Art Lien)

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In 2007, Kerri Kaley and her husband, Brian, were indicted on charges arising from a plan to steal and then re-sell prescription medical devices.  Based on the indictment, the federal government also got a restraining order to freeze their assets.  The Kaleys asked the district court to lift the asset freeze so that they could pay their lawyers:  although they did not dispute that the frozen assets could be traced to the conduct for which they were indicted, they argued that the charges against them were “baseless.”  Both the district court and the U.S. Court of Appeals for the Eleventh Circuit denied the request, holding that it was prohibited because the Kaleys had no right to a hearing to challenge the grand jury’s determination that there was probable cause to support the charges against them.  This morning a divided Supreme Court agreed, preserving a frequently used tool in the government’s arsenal for prosecuting crimes.  (My preview of the case is available here, while my report on the October oral argument is available here.)  Continue reading »

You might have expected large crowds and loud protests this morning at the Supreme Court, which heard oral argument in McCullen v. Coakley, a case dealing with the intersection of abortion and free speech.  (I previewed the case in Plain English yesterday.)  But less than an hour before the argument began, the reporters and cameramen staking out the Court far outnumbered the protesters, a lone handful of abortion-rights supporters.  The atmosphere inside turned out to be fairly subdued as well, lacking the fireworks that sometimes accompany high-profile cases.  Indeed, Chief Justice John Roberts, who is normally an active participant, was uncharacteristically silent throughout the oral argument.  Although that silence made it harder to handicap the oral argument, it still seems unlikely that Massachusetts will find five votes to uphold its law, which creates a thirty-five-foot buffer zone around abortion clinics that abortion opponents (among others) cannot enter.  The bigger question is whether the Court’s five more conservative Justices will broadly strike down such measures, or whether a compromise solution that would permit a smaller buffer zone might be in the works.  Let’s talk about today’s argument in Plain English. Continue reading »

Tomorrow, the Court will hear the case of Eleanor McCullen, a seventy-seven-year-old Massachusetts grandmother who has spent over fifty thousand dollars of her own money to help pregnant women who decide not to get an abortion.  All McCullen wants, she tells the Court, is to stand on a public sidewalk to provide information and offer help to women entering an abortion clinic, but a state law prohibits her from doing so.  Based on the Court’s past track record on First Amendment cases, she may well soon get that chance.  Let’s talk about McCullen v. Coakley in Plain English.

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This morning’s oral argument in National Labor Relations Board v. Noel Canning, the challenge to the constitutionality of the president’s recess appointments to the federal labor relations board, checked many of the boxes for high-profile cases.  There were long lines and cameras outside.  Inside, there was a full press gallery, from which reporters craned their necks to try to see the celebrities (or at least what passes for celebrities in Washington):  Senate Minority Leader Mitch McConnell, seated near White House spokesman Jay Carney and White House counsel Kathryn Ruemmler.  There were sardonic comments by Justice Scalia, and there was high-quality advocacy.  But unlike many high-profile cases, there seemed to be at least some degree of consensus among the Justices, virtually all of whom expressed skepticism of the federal government’s broad defense of the president’s recess appointments power.  At the same time, however, a few Justices seemed wary of upending the longstanding practice – by presidents of all ideological stripes – with a ruling that would sharply limit the availability of recess appointments.  Whether they can convince their colleagues to reach some sort of middle ground, however, remains unclear.

NLRB v Canning, No. 12-1281

(Art Lien)

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