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Supreme Court Argument Report: Voting, Consenting and Sentencing
Law.com
October 15, 2008
The Supreme Court on Tuesday considered a case involving the effect of districting decisions on dilution of minority group votes, and a Fourth Amendment suit that asks whether consenting to allow a confidential police informant to enter a home is the same as consenting to entry by police officers. A third case revisited the Court's Sixth Amendment jurisprudence in the context of a judge's fact-finding to determine whether a defendant should serve concurrent or consecutive sentences.
The voting rights case, Bartlett v. Strickland, concerns claims of vote dilution under Section 2 of the Voting Rights Act, which protects minority voters who, in the words of the statute, "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."
The high court's 1986 decision in Thornburg v. Gingles set out the test for a vote dilution claim, under which a minority group must be "sufficiently large and geographically compact to constitute a majority in a single-member district." The North Carolina Supreme Court ruled, in the context of a state House of Representatives redistricting, that this "majority" threshold is only met when a minority group has a mathematical, 50 percent majority.
Petitioners, North Carolina state officials, argue for the creation of "coalition" districts, in which minority voters constitute less than 50 percent but, with the help of crossover white voters, have an opportunity to elect a candidate of their choice.
North Carolina Solicitor General Christopher G. Browning Jr. told the justices that coalition districts "foster political alliances across racial lines" and diminish racial polarization. "The Voting Rights Act should be interpreted in such a way as to encourage a transition to a society where race no longer matters," Browning said.
"How can you say that this brings us closer to a situation where race will not matter when it expands the number of situations in which redistricting authorities have to consider race?" Chief Justice John Roberts Jr. asked Browning.
Justice Antonin Scalia expressed the concern that the petitioners' plan would require courts to become more involved in the districting process. "We will be injected into this very political game much more frequently than we now are," he said. "I have always regarded the 50 percent Gingles thing as simply a self-protection prescription for the courts, where you can ... be clear and say, you know, close enough for government work."
Carl W. Thurman III, arguing for the respondents -- voters and officials in a county that was split by redistricting -- told the justices that the 50 percent rule is clear and limited, and that, without it, "race becomes very likely the predominant factor in the redistricting decision." Assistant to the Solicitor General Daryl Joseffer, representing the United States as amicus curiae in support of the respondents, said that "the 50 percent rule, as a practical matter, has worked for a couple of decades in this respect."
But Justice Stephen Breyer questioned whether the rule measured factors such as voter turnout, cohesiveness of voting along racial lines and the impact of crossover voters. He asked whether a different percentage of minority voters would be more appropriate, based on a two-to-one ratio of minority voters to crossover voters in a district. "When I worked out the numbers, it seemed that natural stopping place fell around 42 [to] 43 percent," he said.
Justice John Paul Stevens also seemed skeptical of a bright-line mathematical rule. "It seems to me that a rigid 51 percent rule assumes that the minority communities throughout the country are all alike ... There are variations. Maybe 51 percent would not be enough."
SHADY CHARACTERS AND THE SMARTEST MAN IN THE WORLD
The second case argued Tuesday involved a Fourth Amendment challenge to a warrantless police search of a home based upon the owner's consent to allow a confidential police informant to enter.
In Pearson v. Callahan, an informant arranged with officers to buy drugs from a suspect and then signaled to officers to enter the residence. At issue is whether, by inviting the informant into his home, Afton Callahan consented to entry by the police under the "consent once removed" doctrine that is applied by some courts to undercover officers. Another question in the case is whether the police officers have qualified immunity from Callahan's suit alleging violation of his Fourth Amendment rights.
On behalf of police officers appealing a 10th U.S. Circuit Court of Appeals decision in favor of Callahan, attorney Peter Stirba argued that the Court should equate a confidential informant with a police officer for purposes of establishing consent.
"Once you are a government agent or a government actor, there really is no material difference in terms [of] what the confidential informant would do or the undercover police officer would do," Stirba said.
"Oh, but there is an enormous difference between the training and the character of a police officer [and an informant] and, as this very case illustrates, the confidential informants are often very shady characters who can't be counted on to be truth-tellers, and have a powerful incentive to get someone for the police, because in most cases they are seeking to have their own case dealt with sympathetically," Justice Ruth Bader Ginsburg said.
"So, how can you equate a police officer with a confidential informer, who is usually someone who knows where the drug house is because he's a dealer himself?" she asked.
Both Ginsburg and Justice David Souter questioned Stirba about the facts of the case and the police officers' failure to obtain a warrant. "The reason the police are being faulted is that they didn't get a warrant. And the warrant requirement is a generally good starting place for a Fourth Amendment argument," Souter said.
Ginsburg noted a two-hour lapse between the informant's first visit to Callahan's house and the second visit in which he signaled the police. "Why didn't somebody pick up the phone and get a warrant at that point?" she asked.
Souter pressed Stirba repeatedly about whether the police had probable cause based on the fact that the informant had seen the drugs in Callahan's home several hours before.
"We don't believe they did, Your Honor," Stirba said.
"I will admit that is the most astonishing view of probable cause I have heard in this courtroom. Of course they had," Souter said, his voice raised.
Stirba split his argument time with Deputy Solicitor General Malcom L. Stewart, who represented the United States as amicus curiae in support of the petitioners.
On behalf of Callahan, attorney Theodore P. Metzler Jr. argued that the police did not have consent to enter Callahan's home and that, even if the informant had been an undercover police officer, there were no exigent circumstances to justify a warrantless entry by the other officers.
"You are advocating a rule that is going to get police officers killed ... aren't you?" Justice Samuel Alito asked Metzler. "If an undercover police officer is in a house making [a] drug buy, and you want to say that the single officer who is there in an undercover capacity can say, 'You guys are all under arrest,' he can't signal for other police officers to come in and help him effect the arrest without anybody being killed?"
Metzler told Alito that the police officer in that situation could have withdrawn and gotten a warrant, or planned the entry in advance.
"I have some question about that. It seems to me the police are never quite sure exactly what's going to happen," Justice Anthony Kennedy said.
In response to Metzler's argument that "no reasonable officer could conclude that the presence of a confidential informant in the house means there is consent to the [entry of a] police officer," Alito referenced a 7th U.S. Circuit Court of Appeals holding, written by Judge Richard A. Posner, that extended the "consent once removed" doctrine to confidential informants.
What if the officers in the case had read the 7th Circuit's decision, Alito asked. "And what's more [the opinion] ... is written by Judge Posner, and he's the smartest man in the world," Alito said, to laughter from the audience. "He knows everything there is to know about law and economics and jurisprudence and literature and many other subjects. Is it unreasonable for them to follow that?"
"Well, I think the officers in the 10th Circuit need to be aware [of] the way that our federal court system works, and the 7th Circuit decision isn't binding on the 10th Circuit," Metzler answered. "And with all due respect to Judge Posner, he dropped [the] ball on this one."
IN SENTENCING, JUST THE FACTS
In the Court's afternoon argument in Oregon v. Ice, the justices looked back at their holdings in Apprendi v. New Jersey and Blakely v. Washington regarding the role of judges and juries in fact-finding and sentencing, this time in the context of a judge's imposition of consecutive instead of concurrent sentences.
The case involves an Oregon law under which defendants convicted of multiple crimes serve concurrent sentences unless a judge finds that the crimes were not part of the same course of conduct or resulted in separate harms. Thomas Ice, who was convicted of multiple charges of burglary and sexual abuse, was sentenced to 340 months instead of 90 months because a judge's findings resulted in some of his sentences being imposed consecutively.
The case is on appeal from the Oregon Supreme Court, which held that Ice's Sixth Amendment jury trial rights were violated because the judge's fact-finding resulted in a longer total sentence.
Oregon Solicitor General Mary H. Williams argued that the case is "significantly different" from Apprendi and Blakely, because there was no additional nonjury fact-finding that altered any of Ice's six individual sentences.
But, Scalia said, the judicial fact-finding that supports the imposition of consecutive sentences "can turn out to be the most significant fact for the defendant. I mean, it could lengthen his sentence enormously. It's more important than many of the other facts that we leave to the jury."
Arguing for Ice, Ernest G. Lannet, a senior deputy public defender from Oregon, told the justices that the case "presents yet another application of the bright-line rule from Apprendi," that a "judge's authority to impose criminal punishment must be limited by the facts solely found by the jury."
"The Oregon Legislature authorized consecutive sentence as greater penalty only for offenses committed under certain factual circumstances. Those facts -- not found by the jury -- increase the defendant's penalty from 7 and 1/2 years to over 28 years," Lannet said.
Laurel Newby is a senior editor with Law.com.
