Autumn is our favorite time of the year here at Article 3, the leaves are turning, the days are growing shorter, and the Supreme Court of the United States is returning to the bench to open the October term of oral arguments. Here are some highlights of the cases that we’re looking forward to seeing in oral argument, which starts today, the first Monday of October. The full argument calendar is available on the court’s website.
- Heien v North Carolina
The first of two interesting cases coming before the court from the Tar Heel state this month, Heien looks at reasonable error by a police officer in knowing the law, and the enforcement of the Fourth Amendment right to be secure from unreasonable searches and seizures.
A North Carolinian police officer notices a suspicious driver, with a non-functioning right brake light. However, North Carolina law only requires that vehicles have one rear brake light, and the car’s left brake light was functioning normally. The officer pulled the driver over, issued him a warning citation for the non-operational brake light and then asked the driver for consent to search the vehicle. Consent was granted by the vehicle’s owner, a passenger in the car, and the officer found a small sandwich baggie of cocaine. The matter went to trial, where the driver pled guilty to charges of trafficking the cocaine the officer had found in the vehicle, reserving the right to appeal his motion to suppress the evidence based on the error in law by the officer.
The driver’s later appeal was heard by the North Carolina Court of Appeals, who reversed the trial court and found that the officer’s mistake in law was enough to render the search an unconstitutional violation of the driver’s Fourth Amendment rights. The Court found that, just as a citizen’s ignorance of the law is no shield against the violation of the law, an officer’s ignorance should be no shield to their overreach. The Supreme Court of North Carolina overturned the Court of Appeals in a 4-3 vote, finding that the officer’s mistake was “reasonable”, and stating that “so long as an officer’s mistake is reasonable, it may give rise to reasonable suspicion.”
Fourth Amendment searches have been a recurring issue before the court in recent years; last year in a cell phone search case, Riley v. California, the justices struck down a police search of the cell phone of an arrested gang member 9-0. The year before, two search cases made odd bedfellows of the justices, with the normally liberal Justice Breyer siding with the majority in allowing DNA samples to be taken following an arrest, leaving normally conservative Justice Scalia to write an exasperated dissent joined by Justices Ginsburg, Sotomayor and Kagan. That year Scalia also expounded on his concerns for privacy in Florida v Jardineres, writing for a majority that included that Ginsburg, Thomas, Sotomayor and Kagan, that drug-tracing dogs could not be sent to the front door of a person’s home to sniff our possible narcotics.
Hopefully, the court will continue to overcome perceived political differences and build off of last term’s unanimity in favor of privacy. I’d expect that Justice Scalia would continue his penchant for privacy this term, and hopefully convince one of Justices Thomas, Breyer or Kennedy to side with him.
- Holt v Hobbs
The Arkansas Department of Corrections has been taken to court in a First Amendment rights case regarding their no-beard grooming policy, which states that inmates must be clean-shaven in order to prevent them from hiding contraband in the facial hair, although it does allow for trimmed moustaches and ¼ inch beards in situations when an inmate has a dermatologic issue.
The petitioner, who pled guilty to charges of planning to kidnap the daughters of President Bush (43), and broke into the home of his ex-girlfriend, slit her throat and stabbed her in the chest”, is a self-described muslim fundamentalist. Part of his sincerely held religious belief is the Islamic tradition of growing one’s beard. He sought permission from Arkansas to grow his beard to the ½ inch length formerly allowed in California, however that request was denied based on security concerns from the state. The petitioner has had disciplinary issues since being transferred to Arkansas, the respondent’s brief states that he has been found with a knife to the throat of a fellow inmate following a religious dispute.
This unsavory character makes for an interesting case, where the security of prison officials is weighed against the religious freedoms of American inmates generally. While the petitioner’s actions were deplorable, a half-inch beard in the name of religious freedom is likely not about to place Arkansas’ prison guards in any further jeopardy. The Court will look at whether or not the government regulation on beards places a substantial burden on religious practices, the same test as was used in the Hobby Lobby case last year. If there is a burden, Arkansas must show that it has a compelling reason for the beard restriction, and that it used the least restrictive means of achieving its purpose.
In this case, I would expect that Scalia takes a hard right stance, siding with the security of the state officers as well as the Chief Justice and Justices Thomas and Alito, but perhaps Justice Kennedy could swing to the left and pen a majority decision with the remainder of the court.
- North Carolina Board of Dental Examiners v Federal Trade Commission
This case began when the North Carolina Dentistry board started issuing cease and desist letters to beauticians offering teeth-whitening as part of their salon packages. The Board, comprised of practicing dentists in North Carolina, decided that whitening smiles was the practice of dentistry, and that providing those services without being a board certified dentist was illegal. Salon-owners filed complaints with the the Federal Trade Commission, which has the authority nationwide to review anti-competitive market practices, which took up the case.
The board raised the defense that it is an instrument of the government and not subject to antitrust law, (based on Parker v. Brown, a 1943 case that defined the scope of federal antitrust law). The Fourth Circuit Court of Appeals disagreed, citing the fact that the board wasn’t directly controlled by the state of North Carolina, and that the state didn’t direct the board to pursue any particular policies.
The case has implications not only for North Carolinian dentists, but for medical professionals and other regulated professions across the country. As lawyers, the Justices of the Supreme Court may be reluctant to issue a sweeping ruling that could imperil the nation’s bar associations, but I’d look for a 9-0, possibly 8-1, narrowly tailored decision in favor of the FTC that will likely subject the board to more regulation.
Going the other way and stripping the board of protection as an organ of state government is likely too radical an approach for either the Roberts-led conservative wing or the liberal wing of the Court. I’d expect the oral argument to include a lot of comparisons between unauthorized practice of dentistry and the unauthorized practice of law, with the discussion of what a dental assistant or paralegal may do without being a board-certified dentist or attorney.
Oral arguments begin today, but the decisions aren’t likely to be handed down until the Spring. We’ll be listening eagerly to the verbal sparring between the bench and the bar (other than from the famously silent Justice Thomas) as the Court resumes. It should be noted that even if oral arguments go poorly for one side, it does not necessarily imply that the Court will rule against them; recall the lambasted Solicitor General Donald Verrilli Jr., whose argument in the Affordable Care Act cases was seen as nothing less than disastrous, yet he still carried the day when the case was returned in June.