The Supreme Court will decide if the individual mandate of the Affordable Care Act is constitutional. The Government yesterday filed its opening brief, available here.

Under the Affordable Care act, almost every American will have to obtain health insurance by 2014 or pay a financial penalty. The question the court will decide is whether the minimum coverage provision is a valid exercise of Congress’s powers under article I of the Constitution.

Analysis is provided by Scotus Blog and legal analyst Andrew Cohen at The Atlantic.

The Supreme Court has a chance to keep the Fourth Amendment from going to the dogs. Today it agreed to hear the case of Florida v. Jardines, in which it will decide whether police can use a drug-sniffing dog at the front door to a residence when they suspect the occupants of a drug offense but don't have a warrant.

The constitutional issue at stake is whether police must have probable cause — a belief that evidence of a crime will be found — before they may use a dog sniff at the front door of a suspected “grow house,” or a site where marijuana is being grown. The case grows out of a Miami police officer’s use of a drug-detecting dog, “Franky,” in December 2006 to follow up on a “crime stoppers” tip that the house was being used to grow marijuana plants.

The Florida Supreme Court ruled that police needed to have a probable cause belief in wrongdoing before they could use the dog at the home, on the premise that the drug sniff was a “search” under the Fourth Amendment.

The Florida opinion is here, the state's Petition for Cert is here, and the opposing brief is here. [More...]

So says Sheldon Whitehouse:

Sen. Sheldon Whitehouse (D-R.I.), a former state attorney general who sits on the Judiciary Committee, said that the individual mandate might very well fall, but that the law’s defenders have gotten “overexcited” about it. The rest of the law will most likely survive, he said, preserving popular provisions that should help Democrats in the 2012 elections.

“So the mandate falls? Big deal,” Whitehouse said. “I think a family able to keep their sick kids on insurance even though they have pre-existing conditions, kids out of college able to stay on their parents’ policies while they look for that first job with healthcare — things like that are what will stick. Irrespective of what the Supreme Court says, that’s the things people really care about and are counting on.”

I think Whitehouse knows better than that. If the conservatives on the Supreme Court are willing to strike down the mandate, they'll take the rest of ACA with it. Other than Medicaid expansion, I'm not as enamored of ACA as others, to say the least. But Whitehouse seems to be readying a political argument against the conservatives on the Supreme Court and off of it.

My prediction remains a 2012 punt by the SCOTUS conservatives, dismissing the case on standing issues (the Anti-Injunction Act argument will be the vehicle I bet.)

Speaking for me only

Here's the transcript of today's oral argument in U.S. v. Antoine Jones, the case regarding warrantless GPS tracking devices. Basically,

The case concerned Antoine Jones, who was the owner of a Washington nightclub when the police came to suspect him of being part of a cocaine-selling operation. They placed a tracking device on his Jeep Grand Cherokee without a valid warrant, tracked his travels for a month and used the evidence they gathered to convict him of conspiring to sell cocaine. He was sentenced to life in prison.

The DC Court of Appeals reversed his conviction (opinion here.) [More...]

It's about time. Adam Liptak of the New York Times reports the Supreme Court will revisit eyewitness identifications for the first time in 34 years. Mistaken eyewitness identification is the leading cause of wrongful convictions:

Of the first 250 DNA exonerations, 190 involved eyewitnesses who were wrong, as documented in “Convicting the Innocent,” a recent book by Brandon L. Garrett, a law professor at the University of Virginia.

Many of those witnesses were as certain as they were wrong. “There is absolutely no question in my mind,” said one. Another was “120 percent” sure. A third said, “That is one face I will never forget.” A fourth allowed for a glimmer of doubt: “This is the man, or it is his twin brother.”

[More....]

Joe McCarthy Lives:

Six years ago, Ninth Circuit judicial nominee Goodwin Liu published an op-ed in which he made the utterly banal point that a conservative interest group used the terms “free enterprise,”‘ “private ownership of property,” and “limited government” as “code words for an ideological agenda hostile to environmental, workplace, and consumer protections.” In a speech on the Senate floor yesterday, however, Sen. Chuck Grassley (R-IA) somehow managed to interpret this op-ed as proof that Liu wants to turn America into “Communist-run China”:

GRASSLEY: Does [Liu] think we’re the communist-run China? That the government runs everything? [. . .]

Ironically, Liu's family immigrated from Taiwan:

Grassley’s suggestion that Goodwin Liu is the second-coming of Mao Tse-tung would be utterly shocking to Liu himself. As Liu explains, his own commitment to American law stems from his experience as the child of Taiwanese immigrants [. . .]

But "they" all have "slant eyes," don't they?

Speaking for me only

The Supreme Court will hear oral arguments today in Bullcoming v. New Mexico. The issue: Can the state introduce a lab test through an analyst other than the one who performed the test?

How is that not a violation of the Sixth Amendment's Confrontation Clause? When the case first started, the New Mexico court ruled the lab report wasn't testimonial evidence, but Melendez-Diaz took care of that. And since courts in the country are now divided, the Supreme Court has taken the case. [More...]

Here's the case (PDF). Discuss.

Full analysis later when I can.

That Justice Antonin Scalia does not believe that the Equal Protection Clause of the 14th amendment does not prohibit discrimination on the basis of gender should not come as a surprise to anyone. Via Huffington Post, in an interview with California Lawyer magazine, Justice Scalia confirms what most of us who thought about the question, already knew:

[Q:]In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

[SCALIA:] Yes, yes. Sorry, to tell you that. ... Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't.

This has been a central point to the discussion of originalism, original understanding and original purpose constitutional interpretation which I have written about a lot here. But this specific question on gender discrimination and Scalia's view was the subject of a Daily Kos post I wrote in 2006:

The U.S. District Court in Colorado has been declared a "judicial emergency court." Each of our five judges carries 593 cases. Caseloads in excess of 430 are considered "in need of emergency judicial assistance."

The Senate today confirmed William Martinez to fill one of our two judicial vacancies. Nominated by President Obama, and strongly supported by both Sen. Mark Udall and Michael Bennet, the Republicans held up his nomination. Why? He worked on a panel for the ACLU. Jeff Sessions' comment:

"It seems that if you've got the ACLU DNA you've got a pretty good leg up to being nominated by this president,"

Martinez has a strong civil rights background. And an impressive resume. He doesn't have a background in criminal law, but he's clearly a fighter for the underdog.

The Supreme Court today agreed to hear the Walmart employee discrimination case, described as the largest case of its type in U.S. history.

The question before the court is not whether there was discrimination but rather whether the claims by the individual employees may be combined as a class action. The court’s decision on that issue will almost certainly affect all sorts of class-action suits, including ones asserting antitrust, securities and product liability, as well as other claims.

The case is Wal-Mart Stores, Inc. v. Dukes, No. 10-277. Scotusblog has more.

The Supreme Court Justices held their annual conference yesterday and announced 14 cases will receive review. The full order list is here. Via Sentencing Law and Policy, here are the criminal cases:

• Kentucky v. King, concerning exigent circumstances (lower court opinion)
• US v. Tinklenberg, concerning speedy trial rights (lower court opinion)
• Bullcoming v. New Mexico, concerning Confrontation Clause rights (lower court opinion)
• Freeman v. US, concerning crack sentence reduction authority (lower court opinion)
• Sykes v. US, concerning application of Armed Career Criminal Act (lower court opinion)
• U.S. v. Denedo (lower court opinion)

In the Kentucky case, the Court will decide whether police can use evidence they seized breaking into the wrong apartment following a drug suspect. [More...]