By Cecilia Keehan
How hard does the U.S. Supreme Court work? Stanford Law Professor Pamela Karlan, who twice successfully argued voting rights cases before the Supreme Court, told the Morning Forum of Los Altos Nov. 6 the court is working less than it used to. Last term, the court accepted 80 of 5,000 cases compared with the 150 cases it used to review each term.
Karlan explained that the justices think they do better work if they have fewer cases. With few exceptions, the Supreme Court has discretion in what cases it hears, she said, and if four justices agree to take a case, it will be heard.
Did the Supreme Court last December try to discover the clear intention of the Florida voters, she asked? Although it seemed a bit late to be revisiting that question, Karlan’s careful analysis brought vitality to the discussion. She said the Supreme Court should never have heard the case. She was critical of the court for focusing on the counting of the ballots. Instead, it should have ordered a complete recount for all ballots. The Court was responding to Florida’s wish to certify the count by Dec. 12, so that its slate of electors would be safe.
“If you look at it today, the decision is looking better,” she said.
In a 4th Amendment “Search and Seizure” matter which received much publicity last term, Mrs. Atwater, the test “Soccer Mom,” was driving her 3- and 5-year-old children when she was stopped by police who alleged that the children were not properly belted in. The officer said it was the second time he had stopped her for the same offense. She disputed his allegation pointing out that previously, the children had been properly secured. The officer asked her to leave the children by the side of the road so he could take her to the station for booking. She refused to leave her children until a friend took them in. She was taken to the station where she was relieved of her eyeglasses and jewelry before being fined and cited. She brought a suit maintaining that her 4th amendment rights had been violated. The case was appealed to the Supreme Court.
The decision of the court was as unexpected as was the division of the court, Karlan said. The Court decided 5-4 in favor of the police. The police have always been allowed to make arrests, the majority affirmed. In a dissenting opinion, Justice O’Connor wrote that if police were trying to promote child welfare, the children would not be left by the road. She observed that when everyone is assumed to be a criminal, the police then can stop everyone.
Another case concerned a man who enjoyed gardening, but what he was planting required glow lights and a lot of electricity. Karlan said police used a thermal imaging device, the “ultrasound of the underworld,” to show how much heat was coming from the house.
The police obtained a search warrant and arrested the gardener for growing marijuana. The defendant maintained that they should have gotten a search warrant before employing the device because the surveillance itself constituted a search. He argued that the device had enabled police to discover intimate details of what was happening in his home.
Justice Scalia took the old common law view, writing that technology should not be used to deprive us of our right to privacy. The justices held that where police have a hunch, there is probable cause; but that the use of such devices would render the result of the search inadmissible, “the fruit of the poisonous tree.”
Karlan told of a case involving habeas corpus, the core of which is the right of people not to be retained solely by the will of the executive.
The example was of gang members from Cambodia and Germany who were involved with dealing cocaine and murder. Once aliens enter our country, they are entitled to “due process of law,” she said. Since they were not American citizens, the court ruled they should be given to the Immigration and Naturalization Service for deportation. However, they could not be deported. In the one case, the United States didn’t have a deportation treaty with Cambodia; and in the other, Germany said that the deportee was not a German citizen.
The INS said these men would be held in custody forever. The court split 5-4 with the majority deciding that these people could not be detained indefinitely. They could be held, the court said, only until it was time to put them on a plane.
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