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Upcoming Supreme Court arguments

I'm back from vacation and found several notes, after my post last week about the web site that ran the contest to pick "hotties of the Federal bench," suggesting that I do the same for the Cuyahoga Common Pleas court.  Short of stealing money from my clients, I can't think of a surer way to end my legal career, so we'll pass on that.

Keeping up with the past -- cases that have been decided -- is certainly essential, but sometimes it's a good idea to check up on what might be happening in the future.  There are several cases pending in both the Ohio and US Supreme Court that are of some interest.  The former, for example, had oral argument the other week in In re James, a custody decision out of the 1st District.  Because of claims of abuse, the parents had given the grandparents custody of the child.  Several years later, the parents asked for a return of custody, and the court complied.  On appeal, the 1st District held that the "change of circumstances" and other requirements imposed by 3109.04(E)(1) were unconstitutional as applied to the parents, because they had a paramount right to custody.  The only question in these cases, according to the 1st District, is whether the change is in the best interest of the children. 

It's an interesting argument, although it might have been better framed:  essentially, the contention would be that, given the parent's paramount right to custody, the only way they can be denied custody is by showing they're unfit.  Coupled with the fact that, despite the initial abuse claims, the evidence in the lower court was pretty good for the parents, I'd be surprised to see this one reversed by the Supreme Court. 

Children are also involved, somewhat tangentially, in another case being argued before the Supreme Court this week.  In State v. Lowe, the defendant was convicted of having consensual sex with his 22-year-old stepdaughter, despite his argument that the statute prohibiting a step-parent from having sex with an adult stepchild was unconstitutional.  The case does raise the intriguing question of how far the state can go in regulating sexual relations between consenting adults, in light of the US Supreme Court's decision in Lawrence v. Texas, which invalidated sodomy laws prohibiting homosexual conduct.  With our Supreme Court, though, the claim that the law preserves the family unit should be more than sufficient to affirm the conviction. 

What the hell am I talking about?  "Sufficient"?  There's as much chance of our Supreme Court putting its stamp of approval on stepparents messing around with their stepchildren, even adult ones, as there is of the state legislature designating August as Oral Sex Month.

So why did the Court agree to hear the case?  My guess is that it wanted to clean up the court of appeals' opinion.  The latter spends a good deal of time talking about how "one does not have a constitutional right to engage in sexual relations with their stepchildren."  That sounds quite similar to the US Supreme Court's argument in Hardwick v. Bowers, the 1984 case in which it rejected an attack on Georgia's sodomy law.  Justice White's opinion in that case openly ridiculed the notion that "the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy."  As Justice Kennedy noted in Lawrence, which overruled Hardwick, the real question is whether the constitution permits the state or federal governments to regulate private adult consensual sexual activity.  Essentially, Lawrence holds that there is a "liberty interest" in such intimate conduct, which the state cannot infringe without a legitimate interest.  (Notably, the court did not say that the interest had to be compelling.  When the Ohio Supreme Court affirms Lowe, I'll bet they spend a lot more time talking about the state interest in prohibiting step-parent/stepchild relations than they do about whether there's a fundamental right to engage in them.

The US Supreme Court's term started on Monday, although the first oral arguments were postponed until Tuesday because of the religious holiday.  There are a couple of cases scheduled which deal with the retroactivity of Blakely and Booker, which might have some ramifications for Ohio.  And there'll be another opportunity for the Court to play one of its favorite games, 9th Circuit Smackdown:  in Carey v. Musladin, the 9th Circuit reversed a murder conviction because the victim's family had sat in the front row during the trial wearing 3-inch buttons containing a picture of the victim; according to the 2-1 opinion, this unfairly prejudiced the defendant.  The Supreme Court has reversed 11 of the last 15 cases from the "9th Circus," as it's known in some legal circles, and this will make it 12 of 16; I'll be somewhat surprised if it's not unanimous.  On the civil side, in addition to a couple of cases on partial birth abortion, there's one dealing with the constitutional limits imposed on awards of punitive damages -- a jury in Oregon awarded $79.5 million in punitive damages against Phillip Morris in the wrongful death case of a smoker. 

If you're interested in keeping up with what's going on in the US Supreme Court, the place you want to check out is Scotusblog.  It will not only give you info on what's happening at the court, like the upcoming oral argument calendar, but it also has some interesting stuff on more politico-legal and theoretical arguments, like this piece on judicial activism.

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