Miranda warnings are required to be given when a suspect is in a custodial setting. If the suspect invokes his right to refuse to answer questions without a lawyer, no questioning can take place. If he starts to answer questions and then asks for a lawyer, questioning must cease. If these rules aren't followed, Edwards v. Arizona allows a subsequent confession to be suppressed. Under Edwards, any subsequent waiver of Miranda rights is presumed involuntary unless the suspect, rather than the police, reinitiated questioning. The

The Supreme Court today ruled in Maryland v. Schatzer that if the suspect asks for a lawyer and is released without questioning taking place, that request is only valid for two weeks. Scotus Blog reports here and has the opinion here. The opinion is written by Justice Scalia. No one dissented, including Sotomayor, but Justices Stevens and Thomas filed their own opinions concurring in part and concurring in the judgment. [More....]

Scotus Blog has a detailed recap of today's oral arguments before the Supreme Court in a case addressing the constitutionality of the law prohibiting material support of terrorism. The case involves the first amendment rights of free speech, association and expression versus laws designed to aid the war on terror.

The case is Holder v. Humanitarian Law Project. The New York Times weighs in here. Georgetown law professor and civil liberties expert David Cole argued for the Humanitarian Law Project. Elena Kagen argued for the Government. Here's a scary note:

[Kagan] told Justices Kennedy, Sotomayor and John Paul Stevens that the law would forbid a listed group from retaining a lawyer to file a friend-of-court brief in a U.S. court on its own behalf, because that would amount to an outlawed “service” to the organization. And she told Stevens that, if one of the Project supporters involved in this case — California college professor Ralph Fertig — approached the United Nations as an agent of one of the listed groups, he would be covered by the law.

[More...]

Justice Alito's reaction to President Obama's criticisms (perfectly appropriate criticisms imo) of the Citizens United decision (PDF) has led to criticism of Justice Alito's actions. Glenn Greenwald writes:

[T]he behavior of Justice Alito at last night's State of the Union address -- visibly shaking his head and mouthing the words "not true" when Obama warned of the dangers of the Court's Citizens United ruling -- was a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the Court. It has nothing to do with etiquette and everything to do with the Court's ability to adhere to its intended function.

There's a reason that Supreme Court Justices -- along with the Joint Chiefs of Staff -- never applaud or otherwise express any reaction at a State of the Union address. It's vital -- both as a matter of perception and reality -- that those institutions remain apolitical, separate and detached from partisan wars.

I think this analysis is fundamentally wrong. I'll explain why on the flip.

Kevin Drum and Mark Kleiman wonder:

Mark Kleiman nominates another unforeseen beneficiary: ["]One aspect of the ruling that hasn’t gathered much attention: as far as I can tell, the analysis doesn’t distinguish between domestic and foreign corporations....So the ruling allows Hugo Chavez to spend as much money as he wants to helping and harming American politicians. If the Russian, Saudi, and Chinese governments don’t currently have appropriate vehicles for doing so, you can count on it: they soon will. [. . .] Buying influence on the American government has to be the highest-leverage activity ever invented, and Justice Kennedy and his four accomplices just invited every oligarch and tyrant in the world to play. This is not just a threat to democracy; it’s a threat to sovereignty."

Not sure if Kleiman is right, but it is a wonderfully appealing line of populist attack available to the Democrats on Citizens United. Arlen Specter is proposing a constitutional amendment to reverse Citizens United. Part of the sell can be that it will keep foreign money out of our elections.

Speaking for me only

On the call:

Brennan Center Executive Director Michael Waldman, NYU Law Professor and Supreme Court Litigator Burt Neuborne, Brennan Center campaign finance expert Monica Youn, and Heather Gerken, Elections Law Professor at Yale Law School.

First up, Burt Neuborne. The importance of the Citzens United case is that it gives a green light to allow unfettered corporate money into our political system after a century of understanding that this is deleterious not only to our political system but also to our system of commerce. It's gonna change our democracy and make it vulnerable to massive infusions of money. More . . .

Just got an e-mail that the Citizens United campaign finance case just came down. The e-mail says - "It's bad." No details other than "Reversed in part, affirmed in part and remanded." Kennedy wrote the opinion.

The opinion (PDF).

Upshot - Tom Goldstein of SCOTUS BLOG - "The Court's decision overturns the previously settled distinction between corporate and individual expenditures in American elections."

The American Needle v. NFL Supreme Court argument transcript is available here (PDF). I have not read it. when I do I'll provide some comment. I discuss the case in a previous post.

Pains me to say it, but it seemed to me Justice Scalia had the best grasp of the issues in the case. Based on his questions, I see him as rejecting the NFL's argument.

Speaking for me only

How can a law allow the feds to continue to imprison an inmate after his sentence is up? That's what sex offender civil commitment laws allow. The Supreme Court held oral arguments today on a challenge to Section 4248 of the Adam Walsh Child Protection and Safety Act of 2006.

The law applies to any federal detainee, including inmates who are about to complete their entire prison terms and regardless of whether the suspected future act is a federal crime....Lawyers are challenging the law as a violation of due process. In addition, they argue that Congress exceeded the limits of its federal authority by attempting to prevent sex crimes.

...The key question before the high court is whether congressional authority to enact legislation is broad enough to encompass prevention of future sex crimes.

[More...]

Update: AP news article here. This just in (via e-mail, no link, from the folks at Protect Marriage, who moved to block the video streaming):

Just minutes ago, U.S. Supreme Court Associate Justice Anthony Kennedy stayed the order of Judge Vaughn Walker that would have allowed for streaming video in the case challenging Proposition 8, Perry v Schwarzenegger. Walker previously had agreed to provide a video stream of the trial on a daily basis through YouTube. The Perry case would have been the first trial ever in the Ninth Circuit where cameras had been allowed in the courtroom. ProtectMarriage.com vigorously fought Walker’s order by appealing to the Ninth Circuit Court of Appeals and then filing an emergency appeal with Justice Kennedy.

The stay order is in effect until Wednesday, January 13th at 4:00pm eastern time to permit the Supreme Court time for further consideration. The full text of the order is below: [More...]

The Supreme Court will hear oral argument at 11:30 a.m. Monday on Briscoe, et al., v. Virginia (07-11191). This is unusual, in that the Court is going to hear the same arguments it ruled on last June in Melendez-Diaz v. Massachusetts (opinion here.)

In June, the court ruled for the defense, which had objected to the state's reliance on an affidavit to prove a substance was cocaine. The defense said it was entitled to the live testimony of the chemist so it could cross-examine him or her. The Court agreed with the defense that live testimony was required under the Sixth Amendment's right to confront witnesses.

Scotus blog says since the ruling, 26 states and the District of Columbia have urged that the decision be overruled, hence, arguments tomorrow at which the Court may also decide to limit the right.

It's an important right, and I tell a story here about how having that right changed the outcome in one of my cocaine cases many years ago.

Kevin Drum discusses this LATimes article on the American Needle v. NFL antitrust case, scheduled to be argued before the Supreme Court on January 13, 2010. There are interesting antitrust issues involved in the case, but I think there are two broader aspects of the case that are particularly of note. First, for those who doubt a momentous battle between the NFL and the NFL Players Association is in the offing when their collective bargaining agreement expires, this case should disabuse them of this notion. If the NFL is declared a single entity for antitrust law purposes, it will likely take very aggressive positions in bargaining with the NFLPA. And the NFLPA may have to up the ante by going on strike. Yep, no NFL football in 2011 seems a very real possibility. More . . .

In the midst of economic contraction unseen since the Great Depression, it is unsurprising that the economic developments plans of the City of New London now lay in ruins. Opponents of a government that is accountable to voters are rejoicing in this opportunity to again criticize the Supreme Court's decision in Kelo. Here is the WSJ Editorial Page:

The Supreme Court's 2005 decision in Kelo v. City of New London stands as one of the worst in recent years, handing local governments carte blanche to seize private property in the name of economic development. Now, four years after that decision gave Susette Kelo's land to private developers for a project including a hotel and offices intended to enhance Pfizer Inc.'s nearby corporate facility, the pharmaceutical giant has announced it will close its research and development headquarters in New London, Connecticut.

The aftermath of Kelo is the latest example of the futility of using eminent domain as corporate welfare. [. . .] That's especially galling because the five Supreme Court Justices cited the development plan as a major factor in rationalizing their Kelo decision. Justice Anthony Kennedy called the plan "comprehensive," while Justice John Paul Stevens insisted that "The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue." So much for that.

(Emphasis supplied.) The demand for judicial activism by "unelected judges" to overturn the governing decisions of local ELECTED officials is, of course, ironic and hypocritical. But more importantly, it is bad Constitutional law. Let's revisit what the Kelo decision held: