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April 28, 2014

After the Supreme Court hears its last oral arguments of the Term this week, it will have heard argument in 70 cases.  Compare that to the number of cases the Court used to hear.  According to one article, “From 1971 through 1988, the United States Supreme Court was hearing and deciding an average of 147 cases each Term.”   If that makes you think the current Supreme Court Justices have some time on their hands, you wouldn’t be the only one.  At his confirmation hearing in 2005, then-Judge John Roberts stated that he thought “there’s room for the court to take more cases.”  As he explained it, the Court was then hearing “about half the number of cases [it] did 25 years ago,” and it “could contribute more to the clarity and uniformity of the law by taking more cases.”

April 23, 2014

When the police arrest someone, is it unconstitutional for them to then search through the contents of that person’s cellphone without a warrant? This question will come before the Supreme Court very shortly in a pair of cases that everyone with a cellphone should be watching. Though the question may sound like a thoroughly modern legal conundrum, the Framers of the Constitution in fact had something to say about the propriety of such searches – they are prohibited by the Fourth Amendment.

Nonetheless, many states now allow the police to rummage through the contents of an arrestee’s cellphone without first obtaining a warrant. California is one of them.  David Riley’s cellphone was seized when he was arrested by the San Diego Police, who then went through the contact list, personal photos and videos that he had stored on his phone. California prosecutors used evidence the police found during that warrantless search to charge Riley with a crime that had occurred weeks before.  Riley has taken his case to the Supreme Court, and Riley v. California is one of two cases involving the warrantless search of an arrestee’s cellphone that the Court will hear on April 29, 2014.

April 18, 2014

Efforts to reduce the Constitution to one principle usually end up oversimplifying our nation’s fundamental charter, mangling it in the process.  So is the case with George Will’s recent column for the Washington Post, which argues that “progressives are wrong about the essence of the Constitution.”  Will claims that progressives go astray by reducing the Constitution to “democracy,” a word that Will emphasizes appears neither in the Constitution nor in the Declaration of Independence.  In Will’s view, the Constitution is fundamentally about the protection of “natural liberty,” and the need to place limits on the right of democratic majorities to infringe the personal liberty of all Americans.   No one doubts that this is a core aspect of the Constitution and, contrary to Will’s simplistic attack, I don’t know of a single progressive who would disagree.  But Will fails to grapple with the whole Constitution.

April 11, 2014

Do you have a cell phone?  Does it contain private information you’d like to keep private—texts, emails, call logs, pictures, calendars, and the like?  If so, you should be paying attention later this month when the Supreme Court hears oral argument in Riley v. California and United States v. Wurie, two cases that will decide whether you can count on the seemingly private information on your phone staying private.

The legal question in these cases is simple: whether the warrantless search of an arrestee’s cell phone (and note that you can be arrested for offenses as minor as jaywalking or littering) violates the Fourth Amendment. The answer to the question is simple, too:  it does. 

April 10, 2014

Sometimes counting to five is more complicated than you’d think.  Imagine a case before the Supreme Court in which a criminal defendant challenges his state court conviction on the ground that he was convicted by a non-unanimous jury.  Assume that five Justices conclude that the Sixth Amendment requires a unanimous verdict to convict, and that eight Justices conclude that the Sixth Amendment applies to criminal convictions in state c

April 9, 2014

In the classic American film, 12 Angry Men, a lone juror deliberating on the fate of a man charged with murder is able to convince his fellow jurors, through careful study of the evidence and thoughtful discussion, to switch their votes from guilty to not guilty, thus ensuring justice was done.

April 8, 2014

On March 25, the United States Court of Appeals for the District of Columbia Circuit heard oral argument in Halbig v. Sebelius, the Right’s latest attempt to kill the Affordable Care Act in the courts.