Wednesday, July 02, 2014

So much Supreme Court to discuss this week!

So. It's been a big week or so in Legal Nerd Land. The Supreme Court has recently issued two high-profile cases that have attracted a lot of attention.  

The first one to be released was Riley v. California, which I previously mentioned when it was granted cert. It was a case about whether or not police need a warrant to search your cell phone when you've been arrested.  The Supreme Court unanimously decided that police did need a warrant.

Here's the sitch: 

When you've been arrested, police can search your person and anywhere within your "grab area" to ensure you don't have weapons or are destroying evidence.  So, they can reach into your pockets and take out your items like your keys, your wallet, etc. And they can go through those items.  So, if you have a baggie of drugs in your wallet, the police can search your wallet and find it and you can get an additional charge for your illegal drugs. 

The question the Supreme Court had to answer was whether this exception to the warrant requirement allowed police to search through your cell phone.  The implications of that are mind-boggling.  Take a moment to think about how much information you have on your phone about yourself.  No longer can police know who you've called and talked to--now they could have access to your actual conversations by reading your texts, your email accounts, your Facebook, your Twitter.  The police could access your website history, your downloads, your bank records, your pictures and videos.  They could know intensely personally information about you by reviewing these things or by browsing through the apps on your phone.  

People sometimes get caught up on this concept of "if you don't have anything to hide/didn't do anything wrong, then it shouldn't bother you if someone looks through your stuff."  But, the 4th Amendment, which protects you from unreasonable searches and seizures by the government, isn't just to allow criminals to keep evidence of their crimes private without a warrant.  It's designed to protect your privacy from the prying eyes of the government.  Let's say, for example, you had done an internet search on your phone because you had some strange symptoms recently and wanted to know if you should see a doctor.  So, your internet history includes things like, "red bumps on my genitals."  Would you want someone to know you'd been looking that up?  Would you want someone other than your doctor to know that you had red bumps on your genitals?  Probably not--that's bound to be embarrassing.  Is it illegal?  Nope.  Does it make you a criminal because you don't want police officers knowing about what's going on with your junk?  Not at all.  The 4th Amendment is there to prevent government officials from prying in to your personal matters, whether they are illegal or not

So, the fact that an officer could potentially view everything on your phone without a warrant is huge.  Anything you'd looked up, any apps you've downloaded, any conversations you've had.  Are you cheating on your partner and have lurid, private emails and text messages on your phone?  The police could see that.  Are you suffering from a serious illness?  The police could find that out.  Are you overdrawn on your bank account?  The police could access that.  Do you watch copious amount of pornography on your phone?  The police could see that.  Those are all things that aren't illegal but are probably not things anyone would want some stranger--police or not--finding out about them. 

Thankfully, the Supreme Court recognized the vast amount of information that the cell phones of today contain and made the right decision by requiring police to obtain a search warrant before they could access the phone's contents.  The best line from the entire written opinion was this: 

Our answer to the question of what police must do before searching a cell phone seized incident to arrest is accordingly simple--get a warrant.

I love it.  It's so succinct and perfect.  And the fact that this decision was a 9-0 decision shows that there is no dispute among the justices as to what the Constitution requires for this situation.  I was incredibly happy with the Court in making this decision.  They used sound logical reasoning and ignored the government's pleas for allowing more and more access to our private lives.  Way to go, SCOTUS!!

But then, like an abusive relationship, SCOTUS hurt me (and really, all women) with its ruling in the Hobby Lobby case.  I'm sure everyone knows the basic premise of this case but here's the nutshell version in case you've been living under a rock.  The Affordable Care Act (aka Obamacare) requires employers to provide insurance that covers all FDA approved birth control methods w/o cost to the patient.  Hobby Lobby and a couple other companies took issue w/ 4 particular FDA-approved methods of birth control.  Those 4 methods were ones that could potentially prevent a fertilized egg from implanting in the uterus, as opposed to preventing the body from releasing an egg or preventing it from ever being fertilized, and those company owners felt that made those 4 methods abortifacients.  So, they opposed having their companies be required to provide health care that would allow a woman to access those 4 methods w/o cost. They said it violated the corporations religious freedom. 

And the Supreme Court said, "Well, sure, that makes sense. Corporations have religious beliefs, so this is totes cool with us if you guys don't have to comply with this part of the Affordable Care Act."  I'm pretty sure that's an actual quote. 

Interestingly, this was a 5-4 split in the court, with ALL THREE OF THE WOMEN JUSTICES dissenting with the majority.  Hey, justices w/o vaginas--yeah, you five--maybe when all 3 of the justices who could actually be affected (at least in theory) by this ruling think it's a bad idea, maybe you should listen.  Because you're probably wrong. 

First, this is a ridiculously attenuated connection between the "violation" of the corporations' "rights" to religious freedom.  It's not as if the companies are being required to hand out the birth control to all its female employees.  All that's being required of them is to offer health insurance that would cover the birth control methods if the woman 1) needed birth control and 2) in consultation with her doctor, determined that one of those 4 birth control methods were appropriate for her situation, out of ALL the myriad of available options.  It's so far removed that it's ludicrous.  It's such a reach that it's hard for me to even take it seriously.  But, the Court did and the Court thought it was similar enough to making the companies hand over the 4 birth control methods to each female employee that they had to rule in favor of the companies' religious freedom.  Make sure to say hello to your local company the next time your in church on Sunday.  "Oh, hey, Grocery Store! Nice to see you here!" 

Secondly, the Court's reasoning was supposedly limited to just this one issue--contraceptives that violated a company's "religious beliefs."  The Court tried to say that it wouldn't necessarily apply to other sorts of medical procedures or medications, etc. that others might have an objection to based on their religious beliefs.  Let's set aside the fact that the Court basically just said, "Hey, ladies--your vajayjays are the only thing we're gonna regulate."  It's also a silly notion to assume that this holding won't apply to other situations.  You want to know why? Because that's exactly what we, as lawyers, argue all the time.

If I am making an argument that the district court should rule in my favor, I go and I look for case law that is on point.  But, it's rare to find a case that has the exact same set of facts as my case.  It happens sometimes, but when it does, it's like manna from Heaven because it's so incredibly rare that it aligns perfectly.  So, what we do is we find case law with similar facts, with the same concepts as what we want the court to do.  And then we say, "Hey, judge, the appellate court did this thing in a case with somewhat similar facts to my case--if the appellate court did it in this situation, it makes total sense for you to do it in this situation."  Every lawyer does that, regardless of whether you're on the prosecution's side, the defense's side, or are a civil attorney.  That's how we're taught to make our arguments in law school, because prior case law controls what the courts should do. 

So, if I had a client who was a Jehovah Witness and who felt that providing health insurance that covered blood transfusions for his or her employees, as the attorney on the case, I would absolutely use the Hobby Lobby case as a springboard for my argument.  I would argue that, while the objected-to-medical-issue was different in that case as opposed to my case, the logic should still apply.  

So, the Court attempted to say that the decision didn't necessarily apply to other religious objections that people may have, but in reality, the decision sets a precedent that will undoubtedly be used by lawyers and courts in cases with similar sort of issues. 

This decision is a floodgate to allow companies to get out of laws they don't want to comply with, despite what the Court may have said.  By claiming that it did not necessarily apply to other scenarios, the Court ignored what every law student is taught to do and what every lawyer does in practice.  It's unrealistic to think that it won't be used in the future for other, similar situations. 

However, I gotta give a shout-out to my girl, RBG.  She wrote a kick-ass dissent.  She's so kick-ass.   

P.S. Check her out when she was younger.  What a hottie!

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