Welcome to Politics Bites, where every afternoon at It's A Free Country, we bring you the unmissable quotes from the morning's political conversations on WNYC. Today on the Brian Lehrer Show, Senior editor at Slate Dahlia Lithwick, looks at some of the big cases the Court examined this term.
Phelps funeral protesters
The Supreme Court term is drawing to an end. This term saw two big first amendment cases — the Phelps funeral case and the violent video games case. The Phelps case was against the ministry of Fred Phelps for their practice of protesting with hateful language the funerals of soldiers.
This was the case that became the blockbuster. I don’t think [it was] because of real controversial speech issues but because the facts of this case are just so awful.
The case struggled to determine the line between protected free political case and assault on a private family. The Westboro Baptist Church, led by Phelps, believes that America is doomed for failing to punish homosexual behavior to what they believe is a sufficient extent, and this somehow causes soldiers to die overseas. At the private family funeral of soldier Matthew Snyder, the Westboro Church celebrated Snyder's death with signs that read “god hates fags’ and “thank god for dead soldiers.” Albert Snyder, the soldier’s father, sued the ministry for emotional distress
They protest funerals of people who are private citizens in their most grief-filled moments… There’s no dispute in this case that there is lasting harm… So the case becomes this very very tough question about: is this, never-the-less, despite-the-harms-involved, protected free speech? And eight-to–one — with one dissenter, Samuel Alito — the court says absolutely this is protected free speech, as odious and awful as this is.
Violent video games
The other big first amendment case, known as the “violent video games case,” centered on a ban in California attempting to ban violent video games for children. The games were defended on the theory that violent video games are not hugely different from violent movies or comic books, and that California was just responding with fear to new technology.
At every turn in American history, when a new form of technology comes out, there is the argument that this one is going to destroy children forever and make them violent and crazy. The other side of this case said, no, video games are different, this is not passively consuming media… there is some credible evidence being put forward by the state of California, that there is a connection between children who play hours and hours of these games, and subsequent violent behavior. So.. this seems to be clearly speech that is protected, but I think there is interwoven in this case a real question about whether technology changes all that.
Eroding warrant requirements
The Fourth Amendment, which protects from unreasonable searches and seizures, took a severe blow Monday, with the court ruling in Kentucky vs. King. The case was based on an incident in which police, chasing a suspect, lost him in an apartment complex. Inside the complex, police could smell marijuana coming from one apartment.
Under the Fourth Amendment, police wanting to enter the apartment in this circumstance must either stop what they are doing and go get a warrant, or, if there are exigent circumstances, can enter. Exigent circumstances are circumstances, such as somebody screaming inside, or someone running out of the apartment with a crack pipe in their hands, that would lead the police to believe that evidence inside might be destroyed if they take the time to go get a warrant.
Since in this case there were not exigent circumstances, the police began pounding on the door and yelling “Police!” Inside the apartment they heard sounds which they believed might be evidence being destroyed, and so they entered, despite the fact that they themselves created the exigent circumstances by pounding on the door.
A Kentucky court found that the people inside the apartment would not have been destroying their drugs if the police were not battering their door, and ruled that a circumstance created by the police cannot be used as exigent circumstances. However the Supreme Court, eight-to-one with Ginsberg dissenting, said this was permissible.
Lithwick said one irregularity she noticed in this case was an assumption that the apartment’s occupants could always have told the police to go away and refused to open the door, but she pointed out that really with the police banging on the door it is highly unlikely that people would feel safe and entitled to tell them to leave.
This is very much of a piece with a long trend that we’ve seen at the court of chipping away at the warrant requirement and the probable cause amendment for the Fourth Amendment. What’s… really shocking in this case is that this comes down eight-to-one in favor of the police, so it’s not simply that this is eroding further the warrant requirement, it’s that somehow this was a slam dunk for the court.
Odious But Protected
Another case that got national attention was Connick vs. Thompson. John Thompson was on death row in Louisiana for many years for a murder he did not commit. The case was botched by New Orleans D.A. Harry Connick Sr.’s office, whose prosecutors failed to turn over to the defense clear evidence that someone else’s blood was at the scene, not Thompson’s.
The case become a challenge because it turns out the Harry Connick Sr. has just utterly failed to train his prosecutors… that there is an obligation to turn over exculpatory materials, and he has admitted… that “yeah, I stopped reading the books years ago, I don’t really feel that I needed to train these guys.” Mr. Thompson has had four or five different execution dates scheduled, he’s got a private investigator who comes into the case at the very last minute and discovers this material that had never been turned over, and sues the DA’s office… At every level of this case he prevails.. but the Supreme Court says no, we can’t hold the head of the District Attorney’s office responsible for the misconduct of his underlings, and so this settlement is washed away.
Dark Days for the Supreme Court
Lithwick currently has an article in Slate about whether the legal arguments over President Obama’s healthcare law should lead to a reconsideration of the role of the courts.
Every judge who touches this votes absolutely corresponding to the president who appointed him… I have never in my life witnessed a starker example of judicial ideology driving results, and it leads one to wonder if we are doing something horribly wrong in this country when judges are really almost unable to disaggregate their politics from their law.