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Tag: "Supreme Court"

The Fourth Amendment and the Surveillance State

[ 30 ] January 26, 2012 |

I have some follow-up thoughts to the GPS surveillance decision handed down by the Supreme Court earlier this week. The first major takeaway from the case is that Sonia Sotomayor was one of the best decisions Obama has made so far:

The split on the Court Monday, in essence, focused on which of these strands of Fourth Amendment jurisprudence to emphasize. The most interesting opinion in the case, however, is Justice Sonia Sotomayor’s concurrence. Although I’m a little puzzled as to why she joined Justice Antonin Scalia’s opinion—which seems to give less attention to her fundamental concerns—her own analysis is brilliant, forcefully arguing that the Court needs to rethink its Fourth Amendment jurisprudence in light of the Internet/wireless communication age. The “expectation of privacy” standard will not provide adequate protection if the increased potential power of the state is not taken into account. Sotomayor is correct, first of all, to argue, that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” And she is extremely persuasive in her argument about why the judiciary needs to check the use of GPS technology:

“Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may ‘alter the relationship between citizen and government in a way that is inimical to democratic society.’ […] I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. … I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent ‘a too permeating police surveillance.'”

Every point here is crucial, and her argument about the danger of information in the hands of third parties is particularly important.

Alas, Sotomayor spoke only for herself, so I have another piece about how to the extent that this is a victory, it’s a minor one. Normally, in a civil liberties case you’d take any vaguely acceptable opinion from Scalia and (especially) Alito and run, and neither of their conflicting opinions forecloses the development of a Fourth Amendment doctrine properly adapted to new technological powers. But the Court stopped short of even holding that this search violates the Constitution, and one can easily see either standard evolving in a way that gives the state extremely broad latitude. Thinking along the lines expressed in Sotomayor’s concurrence is desperately necessary.


GPS Tracking Constitutes a Search

[ 21 ] January 23, 2012 |

The Supreme Court has unanimously held that GPS tracking of an individual by the state constitutes a “search” in terms of the Fourth Amendment.    However, the Court declined to answer the crucial question of with the search was a “reasonable” one under the Fourth Amendment.  There was also a dispute between the Scalia majority opinion and Alito’s concurrence about the basis of holding that GPS tracking was a search.   If I understand correctly, oddly enough the Alito concurrence (joined by Breyer, Ginsburg, and Kagan) outlines a tougher standard, arguing that in some cases visual observation is sufficient to constitute a “search” given modern technology, while Scalia holds to the traditional position that mere visual observation cannot constitute a “search.”   I’m a little puzzled why Sotomayor — who advanced a similar position in a solo concurrence — didn’t just join Alito’s opinion instead, thus making it the opinion of the Court.   At any rate, the significance of the ruling is at this point unclear; whether it will have teeth will depend on whether or not the courts will just find that such searches are generally “reasonable.”   More on this tomorrow.

…as Glenn suggests in comments, it seems to me that the Sotomayor position is preferable to either; both Scalia and Alito want to carve out different exceptions to what constitutes a “search.”   But I’m still not convinced that given the two viable majority coalitions that the Alito position isn’t preferable.

The More Strained the Reasoning Leading to a Transparently Unjust Ruling, the Better!

[ 54 ] January 18, 2012 |

Shorter Scalia and Thomas: By stopping Cory Maples’s execution, the majority has violated Alabama’s rights. Look, sure, he didn’t really have a “lawyer” in the sense of someone responsible for his case and working on it, but someone with “no substantive involvement” in his case once showed up in court to represent him. So it’s his fault that he missed a deadline — let the execution go forward!

More on this later, when my jaw is restored to its socket.

Credulous Thomas

[ 24 ] January 12, 2012 |

Clarence Thomas’s 2011 opinion for a bare majority of the Court shielding the New Orleans DA from liability for its systematic violation of civil liberties (which in some cases led to innocent people serving substantial jail terms) stands out as one of the very worst from a Court that’s produced a lot of candidates for the title. Earlier this week, he issued a (fortunately solo) dissent that actually went the Thompson case one worse.

Earlier this week, the Court threw out a murder conviction by that very same DAs office based on its violation of the evidence disclosure required by Brady. This was an easy case, as reflected by the fact that even Roberts and Alito were unwilling to strain to find excuses for the prosecutors as well as the facts of the case:

Tuesday’s case concerned Juan Smith, who was convicted of killing five people in 1995, when a group of men burst into a house in search of money and drugs. They ordered the occupants to lie down and opened fire.

Mr. Smith was the only person tried for the killings. He was convicted based solely on the eyewitness testimony of a survivor, Larry Boatner. Prosecutors presented no DNA, fingerprints, weapons or other physical evidence.

But Mr. Boatner’s testimony proved sufficient.

“He’s right there,” Mr. Boatner said at Mr. Smith’s trial, pointing at the defendant. “I’ll never forget him.”

It later emerged that prosecutors had failed to disclose reports of interviews with Mr. Boatner. In one, hours after the killings, Mr. Boatner said he could not describe the intruders except to say they were black men. Five days later, he said he had not seen the intruders’ faces and could not identify them.

Eyewitness evidence, according to recent studies and court decisions, is both unusually persuasive and unusually unreliable. Kannon K. Shanmugam, a lawyer with William & Connolly who represented Mr. Smith in the Supreme Court, told the justices in a brief that the withheld statements from Mr. Boatner “constitute the epitome of impeachment evidence.”

When someone is convicted solely on the testimony of a single eyewitness, and the prosecution suppresses evidence that said eyewitness was unable to identify the accused in the immediate aftermath of the crime (but expressed certainty on the stand)…well, violations of Brady don’t get much more clear-cut, and the case is also an excellent illustration of why the Brady rule is necessary.

Despite this, Thomas filed a dissent that is quite a remarkable piece of work. The argument is that the suppression doesn’t violate Brady because it is immaterial: the majority, says Thomas, failed to a establish a “reasonable probability” that the suppression of evidence affected the jury verdict. But this is absurd. If the state had forensic evidence, or even more eyewitness testimony, that would be one thing. But when a conviction is based solely on one eyewitness, it should go without saying that evidence that might undermine the reliability of the eyewitness has to be disclosed to the accused. At least this time Thomas failed to carry his colleagues in his ongoing crusade to launder the systematic civil rights abuses of the Orleans Parish DA’s office.

Incidentally, the Court decided another major eyewitness testimony case this week — I’ll have a longer piece about that tomorrow.

The Court and Indecently Arbitrary Violations of Free Speech

[ 40 ] January 11, 2012 |

Dahlia Lithwick’s piece on the oral arguments on the latest round of the FCC “fleeting expletives” case that the Supreme Court kicked back to the circuit court 3 years ago is excellent. The two most salient points:

  • Based on FCC v. Fox and today’s oral argument, this looks like it’s going to be another example of Liptak’s recent point about how the alleged commitment of the Court’s conservatives to free speech (with the possible exception in this case of Thomas) is greatly overstated.
  • Rather than end the silliness, the Obama administration has “defended the Bush indecency policy with great zeal.”

Giving Away the Show

[ 8 ] January 10, 2012 |

The Supreme Court was right yesterday; campaign expenditures are not the equivalent of other kinds of political speech.   Now. if it would only apply this logic to other campaign finance cases…

On the Texas Resdictricting Case

[ 1 ] January 10, 2012 |

See Lithwick, Liptak, Hasen, Epps, and Denniston.   It will be interesting to see if the Court runs with the compromise floated by Kagan.

Nobody “Chooses” Not to Participate in the Health Care Market

[ 22 ] January 9, 2012 |

I have a piece up at the Prospect about the obvious constitutionality of the Affordable Care Act. In particular, the “activity/inactivity” distinction cooked up by conservatives to get the ACA ruled unconstitutional 1)has no basis in the text of the Constitution or Supreme Court precedent and 2)is particularly inapplicable in the context of health care:

The first problem with the argument is the assumption that people without insurance are choosing not to participate in the market for health care. This argument might have some validity if we lived in a libertarian dystopia in which people without health insurance were left to die in the case of a medical emergency. But this is not the case. As the administration brief points out, “for decades, state and federal laws—reflecting deeply rooted societal values—have required emergency rooms to stabilize patients who arrive with an emergency condition, and common-law and ethical duties restrict a physician’s ability to terminate a patient-physician relationship.” The uninsured consumed nearly $120 billion in medical services in the last year for which there is good data (2008). People who go without medical insurance, then, are not choosing to exclude themselves from the health-care market in any meaningful sense; as the Obama administration brief reads, “[i]ndividuals without insurance actively participate in the health care market, but they pay only a fraction of the cost of the services they consume.” Not only is this free riding not some kind of constitutionally protected liberty, it represents exactly the kind of collective-action problem that the commerce clause was designed to give the federal government the ability to address.

Another point worth adding is that people making the ad hoc arguments about the unconstitutionality of the ACA have claimed that the regulation of “inactivity” is especially dangerous because it lacks a “limiting principle” — allegedly, if the government can regulate your “inactive” choice to let taxpayers pay your emergency medical care it can regulate anything. Leaving aside the fact that the argument is specious on its face, a limiting principle of course remains in place — U.S. v. Lopez. In Lopez, nothing direct economic or involving interstate markets was involved, and Congress provided no evidence that there were substantial indirect economic effects or that states were incompetent to deal with the problem. With respect to the ACA, conversely, the regulation is not merely rationally related to but essential to a broader regulatory framework that is almost universally conceded to be constitutional, and health insurance presents potential collective action problems that states would be unable to solve in light of federal action to end discriminatory insurance company practices. Upholding the ACA would do nothing to undermine the “limiting principle” actually established by the Rehnquist Court.

The Roberts Court and Free Speech Cases

[ 12 ] January 7, 2012 |

The NYT has a nuanced article that discusses a new study released by the Brennan Center for Justice at NYU.  Basically, contra conventional wisdom, the Roberts Court finds in favor of free speech at a lower rate than the three previous Courts.  The Roberts Court has ruled in favor of speech 34.5%, whereas the rate for the Rehnquist Court was 49%, Burger 46%, and shockingly the Warren Court was 69%.  While the NYT had the study reviewed by a couple political scientists who work in the field (Epstein and Segal) who determined that the difference between Roberts and the three previous courts in aggregate was statistically significant, yet the differences between Roberts and the two previous courts is not, I don’t find statistical significance a particularly useful tool considering the data involved.

What’s of greater interest is percentage of “free speech” cases that were actually about campaign finance (which I initially wondered about when reading the article).  Here’s the money shot:

A majority of the Roberts court’s pro-free-speech decisions — 6 of 10 — involved campaign finance laws.

“What really animates” the Roberts court, Erwin Chemerinsky wrote recently in The Arizona Law Review, “is a hostility to campaign finance laws much more than a commitment to expanding speech.”

No shit.  More Chemerinsky:

The court, he wrote, has a “dismal record of protecting free speech in cases involving challenges to the institutional authority of the government when it is regulating the speech of its employees, its students and its prisoners, and when it is claiming national security justifications.”

For the geeks among us, the article dips its toe into the pool of epistemology:

David L. Hudson Jr., a scholar at the First Amendment Center at Vanderbilt University, said the studies lacked nuance by, for instance, treating every decision as equally important. His criticism illuminated a gap between the two disciplines used to assess the Supreme Court: political science codes and counts, while law weighs and analyzes.

Which reminds me, I’ll have a couple stacks of essays on epistemological issues to grade when I return to England early next week.  Splendid.

Gordon Hirabayashi (1918-2012)

[ 4 ] January 5, 2012 |

Gordon Hirabayashi, a civil rights hero who was arrested while attending my alma mater and ended his career teaching at my native province’s flagship university, passed away at age 93.   He was the last survivor of the three courageous people who refused to comply with racist internment orders during World War II, leading to negative-landmark precedents.

Hirabayashi’s case, as many of you know, made it to the Supreme Court.   The civics textbook reputation of the Court notwithstanding, its record in terms of protecting unpopular minorities is not very good.  So it was predictable that it unanimously upheld Hirabayashi’s conviction for violating the curfew order.  “Because racial discriminations are in most circumstances irrelevant and therefore prohibited,” Justice Stone argued, “it by no means follows that, in dealing with the perils of war, Congress and the Executive are wholly precluded from taking into account those facts and circumstances which are relevant to measures for our national defense and for the successful prosecution of the war, and which may in fact place citizens of one ancestry in a different category from others.”    When the Supreme Court directly addressed the question of internment in the case of Fred Korematsu with similar conclusions, dissenting Justice Frank Murphy accurately summarized the constitutional error that also should have been recognized in Hirabayashi’s case:

This exclusion of “all persons of Japanese ancestry, both alien and non-alien,” from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over “the very brink of constitutional power,” and falls into the ugly abyss of racism.

And despite what Michelle Malkin and her enablers may try to tell you, the policy that led to Hirabayshi’s arrest was utterly lacking in military justification.  The policy was a disgraceful stain on some otherwise admirable public careers: FDR, Earl Warren, Hugo Black, William O. Douglas.  The utter indefensiblity of the internment did ultimately lead to some far-too-delayed justice for Gordon Hirabayashi:

Soon after retiring, Hirabayashi received a call that would prove consequential. Peter Irons, a political science professor from the University of California, San Diego, had uncovered documents that clearly showed evidence of government misconduct in 1942—evidence that the government knew there was no military reason for the exclusion order but withheld that information from the Supreme Court. With this new information, Hirabayashi’s case was retried and in 1987 his conviction was overturned.

“It was quite a strong victory—so strong that the other side did not appeal,” says Hirabayashi. “It was a vindication of all the effort people had put in for the rights of citizens during crisis periods.”


More on Newt and the Courts

[ 5 ] December 20, 2011 |

Lithwick valiantly tries to explain what Newt was up to.    In addition to the fact that he’s envisioning himself as president, I think it’s also a example of how a little history is a dangerous thing.   Newt is very vain about his very modest intellectual achievements, and yes indeedy FDR did try to pack the courts and Jefferson did succeed in getting federal circuit courts abolished with Supreme Court approval.*    But we may want to go a step further and inquire how these plans worked out, and whether established constitutional norms would still permit them.

In addition, of course, I’m sure Lithwick is right that Newt is trying to specifically pander to Iowa voters.    But I think the instincts of his opponents are sounder on this one.   Attacking individual “activist” judges is much more effective than attacking the judiciary as a whole.   But, then, I think a couple years from now we’ll be looking back at the two or three weeks when Gingrch was actually taken seriously as a potential presidential nominee with puzzlement.   (I can’t agree that his collapse is “ahead of schedule.”   The only surprising thing is that the bubble ever inflated in the first place.)

*As we know now from private correspondence, the Marshall Court didn’t uphold the legislation abolishing circuit courts because they actually believed this was constitutional, but because it was that or be impeached.   A good indication of how Marshall felt is that he recused himself.  He didn’t recuse himself in Marbury v. Madison — although his failure to deliver the commission was what triggered the lawsuit.   I should also note, in fairness to the Jeffersonians, that these particular circuit courts also involved taking advantage of an obvious defect in Our Perfect Constitution — allowing a lame duck Congress and president to make major institutional changes after losing an election.    The remedy was problematic but they had legitimate reason to be angry.

Shorter Newt: Impeach Earl Warren and Bring Back the Trail of Tears

[ 40 ] December 19, 2011 |

I have a piece up at the Prospect about the attacks on the federal judiciary increasingly made by several Republican candidates, all of whom apparently have yet to be informed about the death of Earl Warren:

This returns us the question of why attacks on the federal courts have been so common in the Republican primary, when in fact the Rehnquist and Roberts Courts have largely been bonanzas for Republican interests. The four judges praised by most of the Republican candidates in the Iowa debate are not remotely deferential to the political branches. If there is any case that represents an “arrogant misreading” of the American public, it is the Citizens United decision. The public mood may have turned against corporate America, but the Roberts Court remains its best friend. And, of course, the same Republican candidates who have spent a great deal of time decrying “judicial activism” are also urging the Supreme Court to strike down the centerpiece legislation of Barack Obama’s first term on the basis of an extremely dubious legal argument….

Not only are many of the Republican attacks on the courts potentially dangerous; they also reflect a bizarre world in which Republican-dominated federal courts are seen as bastions of liberalism. As on so many other issues, wealthy, privileged Republicans have the remarkable ability to be permanently aggrieved no matter how much they’re winning.

The thing is is that, while Gingrich’s arguments are obviously unserious, I am actually not a big fan of judicial supremacy, and don’t think that all of the policy proposals being made by Republicans are unreasonable. I actively support non-renewable fixed terms of Supreme Court justices, and have no objection to a legislative override (although as a look across the northern border would make clear these changes would have much less of an effect on the institution of judicial review than the politicians making the proposals seem to understand.) Granted, I wouldn’t bring up Andrew “John Marshall has made his ruling, now let us proceed with ethnic cleansing” Jackson or Jefferson’s abolition of federal circuit courts as salutary examples, but I certainly don’t think that courts should have any kind of monopoly on constitutional interpretation. But what amazes me is that to listen to the Republican candidates you’d think it was still 1965.

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