Law Prof. DeRose: High Court Goes 3 for 3

Thursday, 26 Jun 2014 08:20 PM

By Sean Piccoli

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The Supreme Court made the right call in three momentous — and unanimous — decisions this week covering cell phone privacy, abortion clinic protests and the president's power to fill top government posts, law professor Chris DeRose told Newsmax TV on Thursday.

DeRose, of Arizona Summit Law School, and "MidPoint" host Ed Berliner agreed the high court made real news with just about every ruling it handed down this week. 

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On Wednesday all nine justices said that police need a warrant to search a person's cell phone.

DeRose called the decision "a huge victory for the Constitution and for our privacy rights, which are very much on our minds today with NSA issues, Edward Snowden, with increasing technology, [and] the advantages it gives the government to pry into our lives." 

"No one's going to give the Supremes credit for being the most tech-savvy nine people," said DeRose, but he argued that the court was correct to side with those "concerned about what remains to us to keep private, to keep secret" as our cell phones become extensions of ourselves.

"People have photos, videos, text messages, emails, very personal information — sensitive information that we don't want to be shared with the government without a warrant," he said.

He said law enforcement agencies will adjust.

"All this requires is that the judge issue a warrant," said DeRose.

On Thursday the high court voided a no-protest zone of 35 feet around abortion clinics in Massachusetts, ruling the buffer unfairly restricted anti-abortion protesters.

DeRose said the case is a "big victory for the First Amendment, because we know at least five justices on the Supreme Court believe that there is a fundamental constitutional right to have an abortion."

Even with a majority "not sympathetic to the pro-life arguments being made outside of these abortion clinics," said DeRose, the court determined that the distance was too great.

"At 35 feet, especially in an urban area, you're not catching anybody going into or out of these clinics," he said. "So the Supreme Court correctly found that this was too unreasonable of a burden on our First Amendment rights."

In another "huge decision," said DeRose, the court sided with the Senate on the issue of recess appointments, which President Barack Obama used to temporarily fill three vacancies on the National Labor Relations Board while senators were out of town. The court said it's lawmakers, not the president, who decide when the Senate is officially in recess.

"So it's a big victory for the rule of law, [a] big victory for the Constitution, and a stunning rebuke to this president," said DeRose. 

"We have a president who talks about working around Congress, a president who blames the Founding Fathers for his inability to get his agenda passed, who doesn't really seem to like the idea of separation of powers," said DeRose.

Recess appointments were written into the Constitution back when members of Congress spent more time out of session because Washington, D.C., was a formidable trek. One basic feature of modern life — jet travel — gives Congress far more ability to remain in session, said DeRose.

DeRose said the court made fewer waves on Thursday with its 6-3 ruling against Aereo, a service that beams television programming to people's tablets and other digital playback devices.

Aereo is illegal in its present form because its owners are not paying the channels for their content, the court decided. But DeRose predicted: "Aereo will sign a licensing agreement with the networks and everybody will be happy. They'll find a way to stay in business."

Looking ahead, DeRose said the nine justices will likely have to address gay marriage because bans on same-sex nuptials are "falling like dominoes" in lower court rulings across the country, he said.

"I think we are heading toward a point where it is inevitably the judicial holding of the country that gay marriage will be legal in every state," said DeRose. 

But he said the justices might take an alternate route to that result.

"You saw how they skirted the issue [in] the DOMA [Defense of Marriage Act] case last year, right? Where they refused to find a fundamental constitutional right to gay marriage?" said DeRose. "The Supreme Court wants to steer clear of these contentious issues."

DeRose said a recent Ninth Circuit ruling may offer an out. The lower court ruled a gay person cannot be barred from a jury simply because he or she is gay, and ruled that sexual orientation is entitled to the same anti-discrimination protections as gender and race.

If the Supreme Court takes the case — which began as a civil trial over the price of HIV medicine made by Glaxo Smith Kline — and simply affirms the Ninth Circuit's findings, it can avoid being seen as an arbiter of social mores.

"Then other courts throughout the country can use that to shoot down any remaining marriage laws that limit marriage to one man and one woman," said DeRose.

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