(Supreme Court conference room. Photo credit: Supreme Court of the United States).
Brief writing is now over for a while. Time to get back to blogging.
This is the first in a series of three blog posts about the end of the October 2018 term of the Supreme Court and a look ahead to the October 2019 term. (Remember, terms start the first Monday in October and end at the end of June the following year.) The first post will cover the census case, which is finally over in its own peculiar way, and a Fourth Amendment case that really could affect you. The second will be about the gerrymandering cases and Kisor, that seemingly abstract case that I have been mentioning. I’ll try to make it more concrete. And the last post will be about the October 2019 term, what cases have been granted, which are already scheduled for argument, and generally what we can expect from the next term. Like the term that just ended, there is a lot at stake, I would say even more.
Let’s start with the Fourth Amendment case.
Mitchell v. Wisconsin
In a 5-4 opinion issued on June 27, 2019, a divided Supreme Court ruled that the Fourth Amendment generally does not bar states from taking a blood sample from an unconscious drunk-driving suspect without a warrant. (Click on the link above to read the various opinions). As Amy Howe summarizes the case:
Mitchell was charged with driving while intoxicated. He fought to keep the results of the blood test from being used against him, arguing that the Fourth Amendment required the police to get a warrant. The state answered that the blood test was constitutional, because of a state law that assumes both consent to a blood test for anyone who drives on Wisconsin’s roads and that an unconscious driver has not withdrawn his consent.
Writing for four justices – Chief Justice John Roberts, Justices Stephen Breyer and Brett Kavanaugh and himself – Justice Samuel Alito explained that although the Fourth Amendment generally requires a warrant for a search, there are a variety of exceptions to this rule, including one for “exigent circumstances,” which allows searches without a warrant to “prevent the imminent destruction of evidence.”
The exigent-circumstances exception, Alito continued, will normally allow police to take blood from an unconscious drunk-driving suspect without having to get a warrant.
Finally, although yesterday’s decision creates a general rule that police do not need to get a warrant to take a blood sample from an unconscious driver, Alito left open the possibility that, “in an unusual case,” the rule would not apply – for example, if the suspect could show “that his blood would not have been drawn if police had not been seeking” blood-alcohol information, and that police didn’t have any reason to believe that they couldn’t have gotten a warrant. Because Mitchell had not had a chance to meet this standard, Alito concluded, his case would go back to the Wisconsin courts to give him a chance to do so.
Again, the 5-4 designation is a bit misleading. Five Justices voted for the result, but only 4 joined Justice Alito’s opinion as to its reasoning. Justice Thomas would allow police to perform an alcohol test on any driver, conscious or not because blood-alcohol evidence will disappear. The result, not the reason.
But notice the way Amy Howe reports the argument. Wisconsin was basing its arguments on the Wisconsin law that says you consent to a blood test just by driving on Wisconsin roads and an unconscious driver has not/can not withdraw consent. That was the issue; you could see that from the briefs filed by Mitchell and Wisconsin. Neither side argued exigency. Not only did Wisconsin not argue that point, but they also conceded at oral argument that it didn’t apply in Mitchell’s case.
But “exigent circumstances” is what the Supreme Court used to decide the case.
Can they do that? Yes, although the four dissenters don’t think they should.
This is what got Justice Gorsuch to dissent; he would have dismissed the case because exigency was not the point of granting the appeal in the first place. The other three dissenters agreed, but also argued that exigency is a false premise. If there is time, get a warrant. In fact, just six years ago the Supreme Court decided that blood alcohol metabolization by itself does not create exigent circumstances. Missouri v. McNeely, 569 U.S. 141 (2013) (Link to the opinion on Justia).
It’s easy to see how this could affect you. Although the Supreme Court has not said that a warrant is never required for blood-alcohol evidence in a DUI case, a majority is very close to that point. I would not rely on a Fourth Amendment challenge to get you out of your next DUI.
Department of Commerce v. New York
Referred to by everyone as “the census case”, the final outcome is clear: a question that the Trump administration wanted to add to the census as to whether or not you were a citizen is not going to happen. After a flurry of tweets, multiple filings, attempts to withdraw as counsel, the trial courts not allowing counsel to withdraw, deadline extensions and other maneuverings, the case finally is at an end. The Trump administration has abandoned the effort; the case is over.
I’ll try to unravel this one.
How we got here is an incredibly convoluted story. Amy Howe has a very nice summary of the entire case, both before and after the Supreme Court decision, and SCOTUSblog has (probably) more information than you could ever want.
Let’s start with the holding:
Holding: The secretary of the Department of Commerce did not violate the enumeration clause or the Census Act in deciding to reinstate a citizenship question on the 2020 census questionnaire, but the district court was warranted in remanding the case back to the agency where the evidence tells a story that does not match the secretary’s explanation for his decision. (Link to SCOTUSblog).
And now the voting:
ROBERTS, C. J., delivered the opinion for a unanimous Court with
respect to Parts I and II, and the opinion of the Court with respect to
Parts III, IV–B, and IV–C, in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined; with respect to Part IV–A, in which THOMAS,
GINSBURG, BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined;
and with respect to Part V, in which GINSBURG, BREYER, SOTOMAYOR,
and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in part
and dissenting in part, in which GORSUCH and KAVANAUGH, JJ., joined.
BREYER, J., filed an opinion concurring in part and dissenting in part,
in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed
an opinion concurring in part and dissenting in part.
Hey, it only took 92 pages.
I only post this not to have you figure out who voted for which parts but to show you how complicated it can get. Parts I and II (unanimous) only refer to the recitation of the history of the case (and by the way, this is yet another case that bypassed the intermediate court of appeal) and whether or not New York and the other plaintiffs had standing (that is, can they bring the lawsuit). The actual holding that people cared about–that the case should go back to the trial court to have the Commerce Department come up with an explanation for the citizenship question that was not, in the Chief Justices’ words, “contrived”, got 5 votes (Part V).
One of the issues that was front and center was whether a citizenship question should even be asked on the census. Such a question had been purposely omitted from the “short form”, the census survey that everyone gets, since the 1950 Census as officials and sociologists widely feared it would reduce participation in the census. (It has been used on the “long-form” American Community Survey sent to a subset of households and used for statistical estimation). New York and the other parties challenging the addition of the question agreed, and in particular thought that it was aimed at reducing the count in districts that have a large non-citizen (and more Democratic-leaning) population.
The Court held, again 5-4 (Parts III, IV–B, and IV–C), that the Enumeration Clause of the Constitution does not forbid the citizenship question, even though it requires an “actual Enumeration” of the “whole number of persons in each State” every 10 years. Art. I, §2, cl. 3. (Emphasis added). It is also required by the Fourteenth Amendment. Amdt. 14, §2. As Justice Breyer wrote in his dissent,
It does so in order to “provide a basis for apportioning representatives
among the states in the Congress.” Baldrige v. Shapiro, 455 U. S. 345, 353 (1982); see also Art. I, §2, cl. 3. The inclusion of this provision in the Constitution itself underscores the importance of conducting an accurate census. See Utah v. Evans, 536 U. S. 452, 478 (2002) (recognizing “a strong constitutional interest in [the] accuracy” of the enumeration).
As straightforward as that might sound, it only got four votes.
Because the case was sent back to the trial court to have the Department of Commerce come up with an explanation that the Cort might accept, and because the administration has given up on the idea, the issue is over–for now. The issue of whether non-citizens ought to be counted, and their role in issues like legislative apportionment, is certainly not.
Next time: Gerrymandering. And do courts have to give deference to agencies’ interpretations, and why that matters.