Socrates said the obligation of judges is to “Hear courteously, Consider seriously, Decide Impartially.” And that appears to be what the United States Supreme Court is doing as it considers a series of related issues raised by numerous challenges to the Patient Protection and Affordable Care Act including one predicated on the Anti-Injunction Act. The Court expanded the time for argument, offering the lawyers for the parties and several lawyers appointed to argue positions that neither party had advanced time to present their positions and answer questions for three days. In the course of those days of argument, the justices asked thoughtful questions probing the basis for each party’s position, the limits to their proposed rules of law, and the grounding for their position in statutory and constitutional law as well as the Court’s past precedent. Anyone watching the argument, or reading the transcript, or listening to the audio tapes would conclude that the issues presented are difficult and that the Court has listened courteously to all viewpoints and is considering seriously its decision. In fact, the process has been a tribute to the Court and seems to me likely to enhance the Court’s status as a revered American institution if the ultimate decision, and any dissent, is written in a manner that conveys impartiality. 


Television, radio, newspapers, and the blogosphere are filled with discussion – and the media seems a veritable school for the public about some complex issues.  Discussions focus on the connection between the individual mandate and the community-rating provision and the guaranteed-issue provision, federalism and state versus federal powers, the commerce clause, court-watching and speculation about the outcome of the decision, and presidential politics and the impact of any ruling on the election next fall. With so much prognostication going on about the outcome, I will keep my prediction to myself. But I will say that the parties were uniformly represented by capable and articulate advocates, and the Court focused on key points that it will need to consider in reaching its decision. I hope that when any decision – or set of decisions – issues, the justices will use care in their language to avoid any suggestion that disagreements are due to partisan differences, rather than differences in how the justices view the legal issues. 

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Socrates said the obligation of judges is to “Hear courteously, Consider seriously, Decide Impartially.” And that appears to be what the United States Supreme Court is doing as it considers a series of related issues raised by numerous challenges to the Patient Protection and Affordable Care Act including one predicated on the Anti-Injunction Act. The Court expanded the time for argument, offering the lawyers for the parties and several lawyers appointed to argue positions that neither party had advanced time to present their positions and answer questions for three days. In the course of those days of argument, the justices asked thoughtful questions probing the basis for each party’s position, the limits to their proposed rules of law, and the grounding for their position in statutory and constitutional law as well as the Court’s past precedent. Anyone watching the argument, or reading the transcript, or listening to the audio tapes would conclude that the issues presented are difficult and that the Court has listened courteously to all viewpoints and is considering seriously its decision. In fact, the process has been a tribute to the Court and seems to me likely to enhance the Court’s status as a revered American institution if the ultimate decision, and any dissent, is written in a manner that conveys impartiality.

 

Television, radio, newspapers, and the blogosphere are filled with discussion – and the media seems a veritable school for the public about some complex issues.  Discussions focus on the connection between the individual mandate and the community-rating provision and the guaranteed-issue provision, federalism and state versus federal powers, the commerce clause, court-watching and speculation about the outcome of the decision, and presidential politics and the impact of any ruling on the election next fall. With so much prognostication going on about the outcome, I will keep my prediction to myself. But I will say that the parties were uniformly represented by capable and articulate advocates, and the Court focused on key points that it will need to consider in reaching its decision. I hope that when any decision – or set of decisions – issues, the justices will use care in their language to avoid any suggestion that disagreements are due to partisan differences, rather than differences in how the justices view the legal issues. 

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The Supreme Court heard oral argument on two consolidated cases, Florence v. The Board of Chosen Freeholders of the County of Burlington.  Two well-known and experienced members of the United States Supreme Court appellate bar, Thomas C. Goldstein and Carter Phillips, squared off as the Court considered whether the Fourth Amendment permits a jail to conduct a suspicion-less search whenever an individual is arrested, including for minor offenses.  DRI, which has an active committee for lawyers engaged in representing local governments, filed an amicus brief in support of the county jails.  Written by Mary Massaron Ross, the brief focused on the difficult problems of administration that would arise with a “reasonable suspicion” rule as urged by the class action plaintiffs and reminded the Court of past precedent adopting a bright line rule for Fourth Amendment searches in some categories of cases.  DRI argued that a bright line rule was necessary to give guidance to jailers, to facilitate their efforts to ensure that contraband is not introduced into jail, to help with prison security by identifying those with gang tattoos, and to ensure that lice and other health issues are identified and addressed. 

From the inception of Mr. Goldstein’s argument for the plaintiffs, he faced difficult questions from members of the Court seeking a clear rule for when a search would be constitutional.  Justice Ginsburg asked the first question, wanting to know whether Mr. Goldstein’s reasonable suspicion rule would apply to all arrestees or whether he proposed a distinction between felons and serious offenders.  Mr. Goldstein responded that his rule would apply to everyone but then backed away somewhat when he faced additional questions, noting that reasonable suspicion would exist categorically for those arrested for more serious offenses.  After a barrage of questions on the scope of his proposed rule and what kinds of offenses it would categorically apply to, Mr. Goldstein attempted to define the constitutional limits of jailers’ conduct by saying that reasonable suspicion would not be required for “anything other than looking at a close inspection of the person at arm’s length.”  He insisted that “just observing in a shower room… does not implicate a reasonable expectation of privacy.”  Mr. Goldstein also faced multiple questions about what would be permitted under his approach, whether constitutionality would depend on whether the search was merely visual, whether showering in the presence of officers would be permitted, whether the distance of the officers made a difference, and whether it mattered where the search took place. 

Justice Kennedy, often the swing vote in close votes on constitutional cases, said, “But it seems to me that you risk compromising your individual dignity if you say we have reasonable suspicion as to you, but not to you…You are just setting the detainees up for a classification that may be questioned at the time, and will be seen as an affront based on the person’s race, based on what he said or she said to the officers coming in.”  Justice Kennedy further observed that the reasonable suspicion rule “imperils individual dignity in a way that the blanket rule does not.”  Mr. Goldstein told Justice Kennedy that the county defendants did not have a blanket rule either because they only do a visual search unless they have reasonable suspicion.

Other justices had problems with Mr. Goldstein’s effort to draw a line between permissible and impermissible conduct based on the distance of the officers, including Justice Sotomayor.  She said at one point, “That is a line that doesn’t make sense to me.”  She also questioned him about his effort to differentiate between visual searches from several feet away and visual searches involving a requirement that the individual open or expose private parts of the body.  Justice Sotomayor also questioned Mr. Goldstein about whether corrections officials could be expected to investigate the nature of the offense on intake.  Justice Kennedy likewise had questions about whether rap sheets were immediately available at the time of intake.  And Justice Roberts followed up to ask whether there was anything in the record to “show how much additional time it would require to look at each one, to look at their record, to determine which category they should fall into to strip search or not, as opposed to having a blanket rule.”  Justice Scalia suggested an originalist view, noting that “at the time the Fourth Amendment was adopted, this --- this was standard practice, to strip search persons who were admitted to prisons.”

Carter Phillips began his argument by noting that the scope of the claims had been somewhat confused in the record and cautioning the Court regarding analyzing the set of issues involved in the class certification and the second set of issues involved in the plaintiffs’ claims.  He also urged the Court to focus on the policies in effect in 2005, which was the basis on which Mr. Florence was arrested, rather than looking at later-enacted changes to the policies.  Mr. Phillips urged the Court to adopt a blanket rule permitting even a more intrusive body cavity search without reasonable suspicion.  He noted that the detainees were being introduced into the general jail population in both counties, thus he did not have to defend a rule pertaining to those arrested and held in separate holding areas. 

Justice Breyer and Justice Alito both questioned whether this type of search could be performed on any individual including those arrested on minor offenses.  Justice Breyer pointed to the ABA’s position, which was that reasonable suspicion would be required for detainees arrested for minor offenses, not including drugs or violence.  Mr. Phillips responded by pointing to expert testimony showing that a greater presence of contraband is found among individuals with minor offenses.  Justice Breyer and Justice Sotomayor both pressed Mr. Phillips for empirical evidence that contraband would be a problem if a reasonable suspicion rule were to be adopted.  Justice Ginsburg asked Mr. Phillips if there were any constitutional limits to the type of body cavity search in his view.  And he responded no – that the “balance would tip in favor of the… institution under those circumstances.”  Mr. Phillips urged the Court to write an opinion “that recognizes that deference to the prison and to their judgment s what’s appropriate under these circumstances, and that extends all the way to the Bell v. Wolfish line.”  Justice Kennedy suggested during the argument that those arrested on minor offenses and put into the general jail population might “well prefer an institution where everyone has been searched before he or she is put into the population….” 

After Mr. Phillips spoke, Nicole A. Saharsky, on behalf of the United States, argued in support of the counties’ position.  She emphasized that detainees might well hide a gun or contraband on their person at the time of an arrest, or might obtain such items during the time between the arrest and reaching the county jail.  She told the Court that the United States position is to support a policy to “inspect everyone who would be put in the general jail population.”  

On rebuttal, Mr. Goldstein focused on the empirical evidence, which he contended supported the conclusion that a reasonable suspicion standard did not result in security problems in jails or prisons. 

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