Forty minutes into this morning's oral argument in the much-awaited Texas seat belt case— Atwater v. City of Lago Vista, the first two rows of the press gallery are quietly interrupted by a court flack, who frantically distributes a sheaf of slip opinions to the reporters. Although no one can recall an opinion being circulated in this way, this is how word filters out that the decision in Bush v. Palm Beach County has come down. The room hemorrhages reporters.
Only the poor reporters in the cheap seats—who haven't been passed notes—stay to hear the end of the seat belt argument. As the press all-stars decamp, the judges deflate. Later, one cheap-seat reporter who stuck out the whole argument tells me the justices stopped asking counsel questions altogether after the exodus.
In the pressroom, reporters are either attempting to understand the opinion or huddled around someone who actually does understand the opinion. Suddenly little constitutional study groups spring up all over the room. "What's per curiam?" "Why didn't they read it from the bench?" Word then wings around that CNN just called it a massive victory for Bush. Everyone rereads the opinion. We call our editors.
The court's opinion was a magnificent piece of self-legitimizing: They get to look supreme—by teeing off on the Florida Supreme Court. They manage to appear paternalistic and generous—by giving the Florida court a second crack at getting the law right. Best of all, they pull off a unanimous opinion (per curiam means by the court as a whole, rather than by a single justice, and such orders usually come without extended discussion or debate).
If you did what I learned to do in law school—and what some of the trigger-happy reporters did today—you read the last line of the slip opinion first. You saw that the court vacated the Florida Supreme Court opinion and told the marshal standing next to the door that Bush won. This, of course, proves to be untrue if you read the rest of the opinion. It shows once again that it's hard to reconcile "law" with "breaking news."
The real news is that the high court decided not to decide the Bush case. They decided that the Florida Supreme Court probably ignored federal law in relying on their equitable powers under the Florida constitution. But they didn't reverse the Florida court. Instead, they seem to have taken a line from every single justice's bench memo and grafted it into a finish-your-homework/no-soup-for-you scolding. Here's what I suspect was lifted from Scalia's memo: "There are expressions in the opinion of the Supreme Court of Florida that may be read to indicate that it construed the Florida Election Code without regard to the extent to which the Florida Constitution could, consistent with Art. II, Sec 1, cl.2, 'circumscribe the legislative power.' " I imagine Ginsburg wrote, "As a general rule, this court defers to a state court's interpretation of a state statute."
Add to that some lengthy block quotes from either the United States Code or the U.S. Constitution, and you have a seven-page order, absent sound and fury, and signifying that the royalty on Maryland Avenue Northeast don't think much of their redneck cousins in Tallahassee.
A possible explanation for the punt: My Smart Lawyer Friend Sean calls to observe that one general principle of Supreme Court decision-making is that federal issues not raised in the state court are procedurally barred from review in the high court. Since the Bush team never fully argued the federal claims in the state Supreme Court, the Supremes cannot find that the Florida court made an error. Scalia has to wait for the Florida court to make an error before he can spank them. So the court unanimously sends it back to Florida, where they can get it wrong properly
In the Texas seat belt case, the court will have a tougher time dodging the issues, and here's why: Every Big Case that works its way up to the high court has a shadow case, the teensy weensy dispute between two constitutionally insignificant parties—call them the Ernesto Mirandas—who really don't much care about reshaping the legal landscape but mostly just want to get out of jail.
Imagine it's a sunny spring day in Texas, and you're driving your kids home from soccer practice. It's 1997, so the words "soccer mom" still strike you as clever and laden with social significance. Your 4- and 6-year-olds are bouncing around the cab of your truck. Suddenly, you're pulled over by the weirdly hyperactive officer Bart Turek of the Lago Vista law enforcement community. The cowboy cop has already stopped you once, several weeks back, for the same offense. Except last time, little Mac really was belted in. For some reason, for Turek, this time its personal. You are busted. Quite literally.
The officer goes bonkers, yells at you, then hauls you out of the truck, in front of the kids, cuffs you, and drags you to jail, where you are photographed, stripped of your watch and glasses, then taken to a cell for an hour.
Is it Kafka? Or just Texas?
In Texas, the maximum penalty for Gail Atwater's traffic violation is a $50 fine. So she sues in state court, alleging that Turek, the Lago Vista police chief, and the city of Lago Vista itself violated her Fourth Amendment right to be free from unreasonable searches and seizures.
Here's a quickie lesson in how a case can make it all the way to the U.S. Supreme Court without ever empanelling a jury: The defendants had the case removed to federal district court in Texas. Then the district court granted a motion for summary judgment—finding that Atwater had never stated a constitutional claim and that the police had qualified immunity anyhow. A three-judge panel for the Fifth Circuit Court of Appeals reversed the district court, holding that an arrest for a first-time seat belt offense was unreasonable when balanced against the police interest in enforcing the Texas seat belt law. Then the full Fifth Circuit, sitting en banc, reversed the panel and affirmed the summary judgment grant by the district court. So here we are.
Almost no one on the court seems inclined to adopt the new constitutional rule proposed by Atwater's counsel, Robert De Carli. This is only partly because he has a very long ponytail. He wants the court to either roll out a new constitutional right, barring law enforcement officials from arresting anyone who has committed a misdemeanor unless there's been a breach of the peace (this was the old rule at common law). Or he wants a rule barring the police from arresting suspects for fine-only offenses. Or he wants some sort of squishy case-by-case determination where the police may only arrest suspects where there is some "plausible, articulable reason" for an arrest. Any way you slice it, the court thinks it's going to create an epic constitutional mess.
Justice Kennedy expresses concern over whether, under this new test, police would have the authority to detain drivers with out-of-state license plates, who are, therefore, flight risks. He offers a paean to the "time-honored tradition of the police escort back to the station house." Scalia adds, "You want the police to just say, 'Fine. Hope you come back to Wyoming someday.' "
Rehnquist wants to know what exactly "breach of the peace" might mean, quaint 18th-century term-of-art notwithstanding. And Souter—waxing Talmudic—presses De Carli as to whether his desire to reinstate quaint 18th-century common law also encompasses a return to the nefarious "night stalker" statutes, allowing one to be arrested just for walking at nighttime. Kennedy adds, weren't there "insomniacs back then"?
Breyer wonders how police officers can possibly be expected to keep straight the common law definition of what constitutes a "breach of the peace" justifying an arrest. He asks De Carli to articulate a "practical rule."
Scalia says what the justices are mostly all thinking: "I hate to constitutionalize this thing." And Souter candidly tells Atwater's lawyer, "I don't find the constitutional argument conclusive." Kennedy writes today's closing credits when he observes that "it's not a constitutional violation for a police officer to be a jerk."
Roger George, attorney for the defendants, has a tough time, although the judges are inclined to take his side. Not because he has no ponytail, but because Justice Scalia keeps having to feed George his own arguments.
But the shadow case looms large, and as loath as these justices seem to announce a whole new mess of Fourth Amendment jurisprudence, here's what they are saying about what Officer Turek did to Gail Atwater:
Justice O'Connor practically barks, "These facts are very unattractive." She invokes children crying as their mother is being hauled off to jail. "You've got the perfect case," she tells De Carli. "I like to think so," he replies.
Stevens has a hard time believing George is advocating "total discretion to an officer, just because he doesn't like someone." George replies that the Equal Protection Clause prohibits cops from arresting blacks or Asians just because he doesn't like blacks or Asians.
"No," replies Stevens, "only women with children."
Souter agrees that while Atwater's facts are "about as bad as they can be," he's not certain how pervasive the practice of arresting moms over seat belt violations really is. Then De Carli notes that a girl was recently arrested for simply eating fries in the Metro.
Souter asks, "Where?"
"In D.C.," replies De Carli.
"I didn't see it," replies Souter.
"He immerses himself in the briefs," apologizes Scalia.
O'Connor isn't joking though. "Do you defend his decision?" She demands of George. "Even knowing this is a mother with two small children in a small town? This is an amazing case."
George replies that it's a lot better for the children "to deal with an arrest than with brain damage if she'd failed to step on the brake." (Atwater was driving at 15 miles per hour.) George quotes Kennedy: "Being a jerk is not unconstitutional."
Now it's 11:45 a.m., and most of the reporters have left. Unfortunate, since the Texas attorney, Andy Taylor, does a marvelous job of laying out why the police's probable cause inquiry is a constitutional matter whereas the decision about whether to give a citation or arrest a suspect is a "policy matter" to be left to the states.
Only Scalia seems to have few problems with today's shadow case—the egregious behavior of Officer Turek. "What about the deterrent?" he asks. "People are unlikely to eat fries in the D.C. subway, and they'll belt up their kids. Is that worth nothing?"
Is it worth everything?