From Slate: Blood Tests and Bad Lawyering. The Supreme Court finds unity in the face of bumbling attorneys and a tough Fourth Amendment case.

Things apparently did not go well at oral for the lawyers in this 4th Amendment case argued yesterday.

- Click here for the article.

Here's a taste:

“So that excuses you from a constitutional requirement?” Justice Sonia Sotomayor says. “We’re now going to bend the Fourth Amendment?”

Justice Elena Kagan jumps in.

“I think what people are asking you,” she says patiently, “is to try to get some sense of the real-world harms here.” Imagine a system where cops could get a warrant within 10 or 15 minutes, Kagan offers. “What would be the problem with just relying on a system like that?”

McCarthy begins to talk about Fourth Amendment complications, and Kagan butts in.

“But I’m asking about your practical needs,” she reminds him. Yet McCarthy continuesto talk about the complexities of Fourth Amendment law, seemingly ignoring Kagan’s question.

“I did not understand that answer!” Kennedy says. “We’re saying: Suppose it takes 15 minutes. What then?”

“Well … ” McCarthy begins, but Kennedy just gives up and starts lecturing.

“You’re asking for an extraordinary exception here,” he tells McCarthy. “You’re asking for us to make it a crime to exercise what many people think of as a constitutional right!”

A flustered McCarthy starts citing cases, but Breyer cuts in again.

“None of us want an answer in terms of law!” he says. “We want to know a practical fact!” Could North Dakota create a workable insta-warrant system—and if so, would a warrant requirement for blood tests be reasonable?

McCarthy says he wants to “step back here” then babbles for a few seconds.

“You’re not answering the question,” Kennedy says flatly.

When McCarthy’s time runs out, he is replaced at the lectern by Kathryn Keena, who is, to everybody’s astonishment, even worse than McCarthy. Keena begins by summarizing her autobiography. “Having grown up 20 miles from the North Dakota border and attending college in the Fargo-Moorhead area,” she tells the justices, who look visibly confused and irritated, “I’m very familiar with what the realities are in the rural area. And yes, it may be possible to get a search warrant in every case. But if that’s what this court is going to require, in Minnesota, we are going to be doing warrants for blood draws in every case. And that is not what this court wants.”

A majority of justices spent the last several minutes suggesting that, in fact, warrants are exactly what the court wants. Everyone looks befuddled.

“What?” Breyer says. “Why?”

And it goes on like this for 10 excruciating minutes, during which Keena accidentally reveals that cops bring drivers to stations for chemical tests anyway—meaning they could easily request warrants on the ride there. I will spare you the bulk of Keena’s outrageously bumbling performance, but I must share this closing colloquy. When Sotomayor gives Keena a brutally frank summary of her untenable position, Keena does not respond.

- Oyez: Birchfield v. North Dakota.

From ScotusBlog: Argument analysis: Two options on abortion law?

This is the case from Texas about whether restrictions on abortion clinics create an "undue burden"to women. The author walks through the argument.

The case is Whole Woman’s Health v. Hellerstedt.

- Click here for the article.

It was unmistakably clear on Wednesday that the Supreme Court’s first close look at abortion rights in nine years will turn on the reaction of Justice Anthony M. Kennedy, and there were at least sturdy hints that he would lead the Court in one of two directions. In an intense argument in Whole Woman’s Health v. Hellerstedt that ran twenty-six minutes longer than scheduled, Kennedy seemed poised to find a way out of a four-to-four split — if the initial vote comes to that — or to strike down by a narrow vote the two restrictions at issue in the 2013 Texas law, known as “HB2.”

Within minutes after the argument began shortly after ten o’clock, it seemed that the case might bog down in a dispute about whether the case contains any solid evidence of whether HB2 was, in fact, the cause for the sudden closing of half of all abortion clinics in the state and would cause even more to close if the Justices upheld the law’s two main clauses. The two are a requirement that all abortion doctors have a professional privilege to admit patients to a nearby hospital, and a requirement that all abortion clinics upgrade to facilities capable of performing surgery. There was even some question about whether the admitting privilege was still at issue.

But when the argument turned from the reason for closures to a question of the capacity of any remaining clinics to handle the tens of thousands of abortions that women in the state seek every year, the case shifted abruptly. It was Kennedy who raised the possibility that the case be sent back to lower courts to allow lawyers to put in evidence about that capacity question.

Scalia was a funny guy.

For a Supreme Court justice anyway. Click here for audio.

- A “view” from the Courtroom: “I’m Scalia” and other quips.

Justice Antonin Scalia was known for his sharp-elbowed writing, which is preserved for posterity in his opinions. But his many memorable quips from the bench, usually during oral argument, are also an important part of his legacy.

Justice Scalia regularly topped the scholarly and quasi-scholarly lists of “funniest justice.” As Adam Liptak observed in The New York Times in writing about one of the first such studies, in 2005: “What passes for humor at the Supreme Court would probably not kill at the local comedy club.”

Nevertheless, Justice Scalia could crack up a room of his eight colleagues, dozens of lawyers, and scores of tourists and other spectators. Oral arguments will not be the same without him.

Thanks to recordings preserved (for now) on the Oyez website, we can listen to the late Justice’s quips the way they should be heard: in his own voice.

Regarding the Hobby Lobby oral arguments

We foreshadowed this opinion earlier this semester in 2305 when we covered religious liberty and the Religious Freedom Restoration Act. We discussed the factors that can and cannot be used to limit religious liberty and mentioned that generally applicable laws were judged to trump religious liberty, but RFRA may have changed that by stating a law cannot impose a substantive burden on religious liberty.

Here's the issue presented to the court in the Hobby Lobby case:

Whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., which provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest, allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.

Here's the one presented in the Conestoga case:

Whether the religious owners of a family business, or their closely held, for-profit corporation, have free exercise rights that are violated by the application of the contraceptive-coverage mandate of the Affordable Care Act.

Some of the questions posed included asking whether coverage of contraception is a compelling governmental interest and whether a for-profit corporation possess religious liberty.

- Click here for the transcript of the oral argument.

ScotusBlog details various aspects of the case and the oral argument.
- Sebelius v. Hobby Lobby Stores, Inc.
- Conestoga Wood Specialties Corp. v. Sebelius.
- Argument recap: One hearing, two dramas.
- Birth control, business, and religious beliefs: In Plain English.

The Dish has two collections of posts related to the argument:
- What To Expect From Hobby Lobby
- What To Expect From Hobby Lobby, Ctd