The October 2014 Supreme Court term has officially ended, and what a way to end. There is a term in bridge for when a player runs the table, whether they have the best cards or not; it is called a "finesse." That is what it was like watching the decisions come down in the last days of the term: a total finesse game, with civil liberties coming out the winner.
While there were some disappointing decisions, my final impression of the term is overwhelmingly positive. There were also some notable dissents and concurrences - one from Justices Breyer and Ginsburg stating that the death penalty is always unconstitutional; one from Justice Kennedy suggesting the same thing about long-term solitary confinement.
Here is a run-down of just the final dramatic two-weeks of the term:
- Reed v. Town of Gilbert: laws restricting signs based on type (such as political, directional, commercial, religious) are struck down on First Amendment grounds. As a result, many of the anti-begging laws that we have been challenging across the country are also likely unconstitutional. After issuing this decision, the Court vacated an appeals court decision upholding an anti-begging law in Worcester, MA, and sent the case back to the appeals court for another try. That case, in turn, has direct bearing on our Portland case.
- McFadden v. US: people accused of dealing in a controlled substance “analogue” can only be convicted if they have actual knowledge about the nature of the drug they are dealing. This is good news for our efforts to end mass incarceration.
- Brumfield v. Cain: a person is entitled to a hearing, with a lawyer, if they have evidence that they have a substantial intellectual disability and are, therefore, not eligible for the death penalty. More access to defense lawyers and hearings are a good thing.
- Kingsley v. Henderson: individuals suing a jail for mistreating a pretrial detainee (someone who hasn't been convicted of anything), must only show that the treatment they received from the jail guards was "objectively unreasonable" – they aren’t required to prove anything about the jail guard's state of mind.
- Los Angeles v. Patel: you can bring a civil suit to enforce the 4th Amendment's prohibition on unreasonable searches, just as you can bring a civil suit to enforce the 1st Amendment or the 14th Amendment. Also, a law requiring hotels to keep registries on all their guests and turn them over to the police without a warrant is unconstitutional. Finally, just because a law is 100 years old doesn't make it constitutional.
- King v. Burwell: The Affordable Care Act isn't going anywhere. For law geeks, this case is going to have the biggest impact in the realm of statutory interpretation, and in particular in the role of the courts when statutes are either not clear or when they seem to command an absurd result. Does a tax on fruit apply to tomatoes? Should a multi-billion dollar dam project be stopped to protect the habitat of a 2-inch-long fish that nobody knew existed? Does a person “use” a firearm in the commission of a crime if they trade a gun for drugs? That sort of thing. The battle in that area is between two schools of thought: the strict constructionists (follow the letter of the law as closely as possible, and if the legislature meant something different they can go back and fix it) and the semantic holists/dynamists (take lots of things beyond the letter of the statute into account, such as purpose, history, context, etc.). In Burwell, the Chief Justice threw in his lot with the holists. Not forever, clearly (just check out his Voting Rights Act decisions), but forcefully enough. If you think that courts have a responsibility to curb some of the inevitable confusion that is occasionally the product of our legislative process, then this is a good thing.
- Texas Dept of Housing v. Inclusive Communities: The Fair Housing Act can be used to challenge discriminatory housing practices when the only evidence is that the effect of the practice is discriminatory – you don't have to show that the purpose of the practice was to discriminate. If this case had gone the other way, it would have been a fatal wound to this statute and to civil rights litigation generally.
- Obergefell v. Hodges: gay and lesbian couples have the same legal right to marry as other couples. The ruling invalidates discriminatory laws in Kentucky, Michigan, Ohio, and Tennessee upheld by the Sixth Circuit Court of Appeals, and as a practical matter, requires all 50 states to allow same-sex couples to marry.
- Johnson v. US: a provision of a federal criminal law is unconstitutionally vague. Every year, we at the ACLU of Maine testify before the Maine Legislature’s Criminal Justice and Public Safety Committee dozens of times that a criminal bill they are considering is unconstitutionally vague – that is, it isn't clear enough from the language what conduct is permitted and what conduct will land you in jail. Now we have a strong recent example to point to that shows what can happen when legislatures pass unconstitutionally vague laws.