Because the Supreme Court has a self-imposed deadline for getting opinions done (which is sort of a good thing or otherwise you could have an extended back and forth between the majority and the dissent on major cases), the end of the term sees a lot of cases handed down at roughly the same time.  And that means that some important cases get lost in the shuffle behind the very important cases.

This week, we had nine opinions over two days (and we are likely to get twelve opinions over three days at the end of the week).  Yesterday I posted about the latest Second Amendment case and about a constitutional taxation case (which we almost never get).  In the absence of a big political issue, I avoid commenting on the criminal law cases and we had four criminal law cases that matter greatly to those of us who handle these cases), and the periodic dispute over water rights case between states (of which we had one this week) are usually highly fact specific with little impact other than which state is getting screwed.

That leaves two other cases of interest.  The first one is a Section 1983 case.  Section 1983 is one of those statutes enacted under Section 5 of the Fourteenth Amendment, and it gives private individuals the right to sue government employees who violate the plaintiff’s constitutional rights.  Most of the cases that make it to the Supreme Court arise in the context of police actions — allegedly unlawful searches, unlawful arrests, unlawful detentions, police brutality.  For arrests and detentions, the Supreme Court has long applied an objective test.  If there was probable cause to arrest, that defeats the claim regardless of the motivation of the officer.  The Supreme Court has recognized a limited exception when the alleged motivation is the exercise of First Amendment rights by the Plaintiff.  In that circumstance, the question becomes whether the plaintiff can show that, but for, the protected conduct of the Plaintiff, no arrest would have been made. Continue Reading...