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Constitutional Law Professors Discuss Supreme Court Term at First Monday Event

(L-R) Professors Glenn C. Smith, Jessica K. Fink, Laurence A. Benner and Michal R. Belknap at First Monday

When you teach constitutional law, Supreme Court-watching comes with the territory.

As the high court convened for its fall term on October 6, California Western revived its traditional First Monday event to discuss important cases the court will hear this session.

Four of the law school’s constitutional law professors, Michal R. Belknap, Laurence A. Benner, Jessica K. Fink, and Glenn C. Smith, shared their insights and observations.

Interestingly, one of the issues in the spotlight was one that the court announced won’t be on the docket.

“The court decided not to decide same-sex marriage challenges,” said Smith. “That shows us that the court does take judicial restraint seriously from time to time. Why get involved if you don’t need to about a controversial issue?”

Smith pointed out that there is no conflict between circuit court opinions in same-sex marriage cases, a major reason why the Supreme Court chose not to take up the issue this term.

“It means that in states that have legalized same-sex unions, marriages can resume,” Smith said.

Fink discussed a fascinating case—Zivotofsky v. Kerry—involving Menachem Zivotofsky, a boy born in Jerusalem, and whether his U.S. citizen parents can list his birthplace as Israel in accordance with a federal statute.

The U.S. State Department argues that it would interfere with the president’s constitutional ability to conduct foreign affairs because of the disputed status of Jerusalem as Israel’s capital.

“Chief Justice Roberts said in an earlier decision that the case is not about determining the political status of Jerusalem, but to vindicate the statutory right to choose Israel on the passport,” said Fink. She predicts that the court will side with the Zivotofskys

“The court seems to see this as a simple case of applying the facts to the federal law,” she says.

Benner brought up two criminal law cases that could have a wide impact on a citizen’s Fourth Amendment right against unreasonable search and seizure and the right to free speech when the speech might be interpreted as threatening.

In Neien v. North Carolina, Benner said the decision could give rise to “what you might call the Barney Fife exception to the Fourth Amendment,” referring to the bumbling deputy on TV’s “Andy Griffith Show,” which was set in North Carolina.

It involved a traffic stop in Mt. Airy, North Carolina, where police stopped a car with a broken tail light, and the driver consented to a search that turned up a bag of cocaine. The officer was mistaken about the law and didn’t have a legal reason to make the stop.

“North Carolina is arguing that when a police officer misinterprets the law, it does not violate the Fourth Amendment if he stops and detains a citizen based on innocent conduct that does not actually violate the law,” Benner said. “The ruling could make the scope of the Fourth Amendment very uncertain. No one is predicting how this case is going to turn out.”

The other case Benner highlighted was Elonis v. United States, where a man whose wife had left him made posts on his public Facebook page that Benner describes as “gruesome and graphically violent.” But Elonis also posted a disclaimer that “he was exercising his constitutional right of free speech did not mean for the posts to be taken seriously,” Benner added.

The question comes down to whether a reasonable person would feel threatened, according to Benner, in which case it may not be protected First Amendment speech.

“Should society in this age of anxiety be able to intervene through the criminal law when the ranting of a possibly unstable individual comes to light?” Benner asked. “How the court draws the line will determine how free we will be to express ourselves.”

Belknap discussed two cases: Alabama Democratic Conference v. Alabama and Alabama Legislative Black Caucus v. Alabama. Both are voting rights cases involving redistricting. The issue is whether Alabama’s efforts to redraw voting districts with a majority of black voters amounts to an unconstitutional racial quota or gerrymandering.

“The legislature’s plan moved black voters from majority white districts into majority black districts,” Benner said. “It’s packing African Americans who vote Democratic into a smaller number of districts. The suits claim this violates the Voting Rights Act by diluting black voting strength across the state. Both groups claim intentional discrimination in violation of the 14th Amendment.”

Benner added that the lower courts found that the suit filed by the Alabama Democratic Conference did not have standing, an issue the Supreme Court will ultimately decide.

Smith pointed out a case, Arizona Legislature v. Arizona Independent Redistricting Commission, that seeks to take partisan redistricting out of the process of redrawing the political maps.

The case has not been scheduled by the Supreme Court, but Smith says the case could have major implications for California.

Smith promised that his fellow Supreme Court-watchers will gather again next year for First Monday.

This event was presented by the American Constitution Society California Western Student Chapter and the California Western Federalist Society for Law and Public Policy.