Monday Morning Quarterbacking the Supreme Court

01 July 2013
Published in Blog

 By Seema Iyer, Esq.

July 1, 2013

DOMA lost. Love won. Holy matrimony – it’s been one hell of a Supreme Court post-season!

The last month has certainly felt like a January. Every week with playoff games (decision days) that left us with some crushing defeats (Shelby v. Holder), hollow victories (Fisher v. University of TX), an out of pocket play that rewrote history (Hollingsworth v. Perry) and the mother of all games between the undefeated champions, the United States of America, and the underdogs, Windsor – a Superbowl for the books.

In full post-rainbow parade hangover haze, no analogy here folks; there were actually several parades yesterday (think Edith Windsor as the Gay Pride version of Peyton Manning)….. here are your SCOTUS Superbowl 2013 highlights:

A struggling offense led the Supremes to punt Fisher v. University of TX back to the 5th Circuit Court which will likely punt down to the lower district Court. The reasoning, in this affirmative action case, was that the lower court didn’t apply the correct formula, the strict scrutiny test. The test is whether the University demonstrated that there was no other way to achieve diversity unless they use race as a factor in admissions.

So why the punt? Because the lower court didn’t find enough facts to support a decision either way. The good news is that SCOTUS did not overturn prior cases (Grutter v. Bollinger, Regents of the University of California v. Bakke) that upheld affirmative action in college admissions. Bottom line, diversity in education remains a compelling state interest and affirmative action lives to fight another day.

Next up, a rivalry as storied as the Giants and the Cowboys. Shelby v. Holder reconsidered the constitutionality of the Voting Rights Act of 1965, specifically Section 5 and pit Southern conservatives against the NAACP. Section 5 gives the feds the right to “preclear” any proposed changes to voting procedure, practice or location. The Act only applies to certain states and municipalities, mostly, but not exclusively, in the South. Its purpose was to get rid of discrimination at the polls. Think back to Jim Crow South when qualified black voters were turned away for not passing literacy tests.

So what did the Supremes do? In the most unpredicted move since Tim Tebow signed with the Jets, SCOTUS doesn’t rule on Section 5 at all. Instead they rule that Section 4, the formula that decides which jurisdictions are subject to Section 5, is unconstitutional. When Section 4 falls it knocks down Section 5; our safeguard that protects voting equality has been tackled.

By the time final decision day of the term rolls around my tailgating ritual is tight. Beginning with a few dozen cups of coffee, I pre-game with Amy Howe heads the show giving color commentary better than Terry Bradshaw and Jimmy Johnson combined. Rapid fire analysis and projections on which way what Justice will go from inside the high Court. Kickoff is 10am; the offensive line, CJ Roberts, Alito, Thomas, Scalia on the right and the defensive line, Kagan, Sotomayor, Breyer, Ginsburg on the left of the line of scrimmage…….we wait…….hoping for one of the Supremes to go offsides. The one to watch is Kennedy, a la Michael Vick, will he pass right or run the ball left?

At 10:02am the decision in U.S. v. Windsor is out. The 1996 Defense of Marriage Act (DOMA) has been ruled unconstitutional. A touchdown right out of the gate! Same-sex marriages will be entitled to the same federal benefits that heterosexual marriages have; however, this only pertains to states where same-sex marriage is legal.  

If a same-sex couple gets married in a state where the union is legal, then move to a state where it is not, what happens to their benefits? That question remains unresolved and the Supreme Court did not rule on whether there is a federal constitutional right to gay marriage. Clearly a reminder that we are still in the first quarter of the game.

The other big play of the day was Hollingsworth v. Perry which considered Proposition 8, an initiative that would withdraw California’s right to gay marriage. The Court, in fascinating only-for-us-law-geeks language, found that the party who brought the case did so improperly. So, the ruling from the lower court stands. No Prop 8. Fire up the Cher playlist and let the wedding bells resume.

By 11:35AM the game is over. Time to pack up the foam finger and wash off the face-paint. An historic triumph brings hope for next season. Will the champions hold onto their title? Expect more bench-gripping action in the fall…….on the field and in the Court.


Seema Iyer is an attorney in New York City with her own practice that specializes in Criminal Defense, Civil Rights and Constitutional Law. Seema is also a Legal Contributor at Arise News and frequent guest on MSNBC. Follow her on Twitter @seemaiyeresq


Silence is the New Guilty

20 June 2013
Published in Blog

By Seema Iyer, Esq.

June 20, 2013

This week the Supreme Court ruled that anything you DON’T say WILL be held against you. 


Haven’t we been hearing “You have the right to remain silent” blah, blah, blah, from the days of Starsky & Hutch and in every single incarnation of Law & Order since?

That right to remain silent, and every other right, that has become the fabric of cops and robbers vernacular refers to Miranda warnings.  The case the Supreme Court reviewed,Salinas v. Texas, refers to what happens before Miranda, prior to arrest. 

Mr. Genovevo Salinas was a suspect in two murders.  The police went to his home where Mr. Salinas gave over his shotgun for ballistics testing, certainly before consulting with an attorney.  Then he accompanied the police to the station to “take photographs and to clear him as [a] suspect” (why oh why Geno didn’t you bring a lawyer?).  Mr. Salinas gets to the station and he is brought to an “interview room” (you say interview, I say interrogation , nevertheless 1-800-LAWYER anyone?). 

At this point, the police are questioning Mr. Salinas yet he is “free to leave” which is legalese for, you are not under arrest and the police haven’t read you Miranda warnings. Personally, I cannot comprehend that anyone thinks they can just strut out of a room full of cops after handing over a shotgun that may be connected to two murders…… but maybe that’s just me.  The parties in Salinas did not contest this issue.

So the police are asking Mr. Salinas questions.  About murder.  Two murders to be precise.  Mr. Salinas, who we can now say for certain does not own a television, is in blissful ignorance answering questions until he is asked whether the shotgun from his home would match the shells recovered at the crime scene.  Uh-oh.  Now Mr. Salinas is silent.

At Mr. Salinas’ trial the prosecutor, referring to testimony that came out at trial, told the jury during his closing argument that an innocent person would not have remained silent; an innocent person would have declared as such and would not have stood silent during police questioning.  The prosecutor tied that silence to what we in the legal game call ‘consciousness of guilt’ – which basically means exactly how it sounds.  Mr. Salinas was convicted. 

According to the ruling, what exactly was Mr. Salinas supposed to do?  He should have responded to that question about shotguns with this catchy little phrase – “I invoke my 5thamendment privilege”.  Well, that certainly rolls off the tongue.

Since the ruling lawyers and professors across this country are scrambling to find alternatives to those exact words because....HELLO.....who talks like that?  The Court’s opinion doesn’t give any variations of that incantation.  Bottom line, if you want your silence protected you have to invoke the privilege.  Simply put, we do not have the right to NOT speak to the police.

When do we have this right against self-incrimination (ie, the right to not flush our future down the toilet) without expressly stating it?  And when will our silence not be held against us?  If you are on trial you have a right to not testify on your own behalf and you never have to say anything about the 5th amendment.  The only other instance when you do not have to expressly invoke the 5th amendment is when you are “in custody” and have been given Miranda warnings.  At that point if you stand mute, like a deer caught in headlights, you are good.  Those are the only two exceptions when you do not have to say, “I invoke my 5th amendment privilege”.

So stop wasting your time teaching your babies how to say ‘daddy’ and ‘mommy’.  Teach them more useful words like ‘5th Amendment’ and ‘privilege’.  And when the joyous day comes to send them off to college don’t forget to pack the most important item – your lawyer’s phone number.


Seema Iyer is an attorney in New York City with her own practice that specializes in Criminal Defense, Civil Rights and Constitutional Law. Seema is also a Legal Contributor at Arise News and frequent guest on MSNBC. Follow her on Twitter @seemaiyeresq

Why it's actually good for Obama if Supreme Court Strikes Obamacare

24 June 2012
Published in Blog

(New York, NY) This is a HUGE week! For those who follow politics, you know why.

For the rest of you, let me put it in perspective: This news is bigger than Snooki getting pregnant or Justin Bieber beating up a member of the paparazzi. It's even bigger than the finale of “Dancing with the Stars” and “The Biggest Loser”-- combined!

This week, the United States Supreme Court is expected to decide the fate of the Affordable Health Care Act- also known “affectionately” as Obamacare.  

Will the law be upheld or will it be struck down in whole or in part? It’s like trying to guess the identity of the person Kim Kardashian will marry next (and then quickly divorce)--everyone has an opinion and there are no wrong answers. (My view is that the Supreme Court will uphold the law, deferring to Congress, thus allowing the issue to be resolved in the political arena.)

To me, the most intriguing part of this impending decision is its political implications. The prevailing wisdom – if “wisdom” is even a word that can be applied to anything involving our politics today –is that if the Supreme Court strikes down the law, it will be a big blow to President Obama and will negatively impact his reelection campaign. I completely disagree.

Even though this law is President Obama’s signature legislative accomplishment, it’s very unpopular. Recent polls indicate that only one third of Americans support it and, worse yet for Obama, only 21% of Independents.

Mitt Romney views the law as such a liability for Obama that he made it a central part of his very first campaign commercial after effectively securing the Republican nomination. In this ad, Romney sets out what he would do “Day One” of his presidency, which includes his boast that he would dismantle Obamacare. In contrast, if I were elected President, on my first day in office, I’d be more focused on picking out the best closets in the White House and locating the good Chinese restaurants in the area.

But if the Supreme Court strikes it down, it pulls the rug out from under Romney on this line of attack. Can Romney truly hope to attract voters by saying: “Remember that health care law we didn't like, well if it was still in effect, I would get rid of it.” It would be like “Captain America” coming to save us from a monster that has already been killed by “The Hulk.”

While that doesn't help Romney's campaign, he arguably an has even bigger problem if the Supreme Court finds this law unconstitutional. Romney has claimed that if Obama is reelected, he will be: “unrestrained by the demands of re-election,” meaning Obama can run amuck and do whatever he wants in his second term. Who knows what Obama might try: Ban guns? Impose communism? Force straight people to marry gay people?

However, the Supreme Court striking down Obamacare undercuts this fear tactic by Romney because it proves that the checks and balances enshrined in our Constitution work. If one branch goes too far, another branch will rein them. This is the express purpose of having three branches of government--it creates a checks and balance system to avoid tyranny as James Madison famously stated in The Federalist Papers.

If the healthcare law and the "Fear factor" Romney is peddling regarding Obama are gone, guess what he's stuck with running on: The economy. While that may sound appealing, it isn't--not only because when Romney was Governor of Massachusetts, his State was 47th in job creation--but because as a new poll released this week found, almost 60% of Americans believe that the President has little impact on job creation. We are now collectively grasping that issues beyond the President's control--such as the European economic crisis and oil prices--greatly impact our economic well being.

Bottom line: Mitt Romney has to be rooting for the Supreme Court to uphold the health care law and especially the unpopular individual mandate portion. (Which ironically is the same mandate Romney championed in Massachusetts when he was Governor.)  

In any event, a recent poll found that 77% of Americans want Congress to start work on a new health care bill if this law is struck down. Meaning that this issue is not going away even if the court strikes it down. Perhaps striking it down gives Obama another shot a health care law that will be effective and popular with the American people. (And if the Court upholds the law, President Obama needs to start better explaining the positive aspects of the law so that we are all  better informed on the full scope of this law--as of now, the negative voices are driving the narrative despite polls showing a solid majority of Americans support many key parts of the law.)

So America, set your DVR's and invite your friends over to watch the US Supreme Court announce the decision of the decade live on TV! Oh yeah, you can’t watch it live on TV because the US Supreme Court won’t let cameras in. Parenthetically I think this is a mistake – I could envision a new popular reality TV series: “The Real Judges of the Supreme Court.”

If the health care law is struck down this week, President Obama will undoubtedly be disappointed. But watch Mitt Romney ‘s response closely to see if you can detect if he, too, is unhappy. He should be.

Why is the US Supreme Court afraid of TV Cameras?

05 April 2012
Published in Blog

The United States Supreme Court - the highest court in the land - one of the most powerful institutions in the world, is afraid of something most of us would relish: Being on television.

The United States Supreme Court recently completed hearings on the question of whether the nation’s healthcare law--unaffectionately referred to as Obamacare--is constitutional. This is clearly one of the most important Supreme Court decisions since the Court’s ruling concerning the 2000 presidential election in the case of Bush vs. Gore. (In case you forgot, Bush won that one.)

So how many TV cameras were allowed in the Supreme Court to capture the lawyer’s arguments in this historic case? Two? Three? One? Nope, the answer is zero.

The US Supreme Court denied the medias’ request to allow cameras to film the oral arguments in this case--a case which will not only impact millions of Americans, but will also likely have a tremendous impact on this November’s presidential election.

It’s simply mind boggling that TV cameras are not permitted to televise this case yet we are able to watch live coverage of Lindsey Lohan’s probation hearings. (All of them.) We were even able to watch Snookie’s hearings in the Seaside Heights municipal court as she plead guilty to charges arising from a drunken escapade on the beaches of the Jersey shore.

Television cameras are allowed in the trial courts in 36 of our States and even more on the appellate level. Some State Supreme Courts like New Jersey, Texas and Utah, to name a few, even offer live web streaming of the lawyers’ oral arguments and archive them for years on their respective websites.

But the US Supreme Court – the highest court in the land – would rather work behind a cloak of secrecy than allow us to see their proceedings. While we can listen to audio recordings of the court proceedings the day after the hearings, we are precluded from watching the hearings live. In fact, only about 250 members of the public are allowed into the court to observe the arguments together with a handful of members of the media.

Why don’t they allow TV cameras? One argument is that there is a fear that lawyers or justices will “showboat” for the cameras- as if a lawyer will open his/her argument with: “Before I talk about the healthcare law, I’d first like to sing a song from ‘Les Miserables.’”

As a former lawyer, I can assure you that a lawyer would not risk embarrassing themselves, undermining their case before the US Supreme Court, and subjecting themselves to a lawsuit for malpractice by turning their oral argument into an audition for “America’s Got Talent.”

The other argument raised in opposition to the cameras is that the clips will be taken out of context. That is always a concern, but if that argument were followed, it could be used to ban television cameras from televising any government functions, from US Congress to municipal court trials.

The US Supreme Court should have allowed cameras to cover the health care arguments. First, it would have given all of us more information about the legal issues surrounding the health care law. I, for one, could use some more facts on this law and I think most of us could as well.

Second, it would increase the public’s confidence in this politically charged case. We would have been able to watch the arguments and discuss the issues ensuring full transparency.

As Illinois Chief Justice Thomas Kilbride stated in January as the Illinois Supreme Court finally agreed to allow TV cameras into that court: "The idea behind this is simple. We need to have the courts be more open. By having the public keeping an eye on what is going on in the courtroom, it can act as a check in the balance of power.”

If there ever was a case for the US Supreme Court to allow TV cameras, it was this one.  But now if you want to watch judge discuss important issues, you are stuck with the judges on “American Idol.”