Wednesday, July 11, 2018

Questions for Nominee Kavanaugh (Part 1)

The battle now begins.

As we all now know, federal appeals court Judge Brett Kavanaugh of the D.C. Circuit was nominated for the Supreme Court this week by President Trump. To Republicans, he is apparently the greatest thing since sliced bread. To Democrats, he is apparently the prince of darkness. Well, like most of us, he's somewhere in the middle.
(His official biography is linked below.)

He is ideologically conservative. Maybe very much so. Maybe extremely so. To liberals--or  progressives or whatever we call ourselves today--his views are diametrically opposite. Anathema.

And this is not about judicial activism versus restraint. (Do conservatives--whose Justices in the modern era have been even more active than the liberals ever were in overturning the choices of the other branches and the states--speak in those terms anymore? Except perhaps the uninformed when speaking to the uninformed.)

Nor is it really about any interpretive methodology--i.e., strict versus loose construction, literalism versus consequentialism, originalism versus a living Constitution, etc., etc. Nor, relatedly, about the proper role of the judiciary in applying law versus making it. No, it's about the substantive issues.

Come on. Let's put the cards on the table. The substantive issues are what these nominations and confirmations have been all about. The talk about the properly restrained judicial role versus activist judges, etc. etc.--and also about credentials, qualified or unqualified--is the thinnest veil of what is really driving the support or opposition to a nominee.

So, for example, today it is really about a woman's right to choose, about gay rights, about religious exemptions from anti-discrimination laws and religion in the public arena, about gun rights, about affirmative action, about campaign finance, about racial and partisan gerrymandering, about voting rights, about worker protections versus business freedom, about rights of the accused, about privacy protections in the digital age, etc., etc.

That's what it's really about. But, of course, we don't get candor about that from a Supreme Court nominee or from the nominee's supporters. And we almost certainly will not get candor from nominee Kavanuagh or his Republican supporters. (We wouldn't --and did not--get that from Democratic nominees or their Democratic supporters either.)

Instead, we are sure to get lots of the routine, blah blah pablum about faithfully applying the Constitution, about simply interpreting the Constitution and other laws according to what they say and mean rather than one's personal views, and about not making policy from the bench because that is the province of the other branches. But little if anything of real substance about the actual substantive issues of the day--which is what everyone really wants to know about.

But answering such questions is dangerous for a nominee. The revelations might prove extremely unpopular or open other delicate areas for questioning. So the responses will either be finessed or the nominee will simply refuse to give an answer based on some ethical pretext. (Judicial ethics only prohibits actually promising to rule a particular way or expressing firm views about a pending case. As conservative idol Justice Scalia explained, we would not want a judge who was actually devoid of views about the important issues of the day. Yes, I'm agreeing with Scalia on that one!)

So what to do when questioning a smart, politically experienced, well-schooled nominee like Judge Kavanaugh at the confirmation hearings? How to get some actual insight about the kind of Justice he would be? Yes, he can be questioned about his opinions as an appellate judge. But any that might seem wrongheaded or be unpopular could be explained away by Kavanaugh as simply following the Supreme Court's precedents which bind the lower courts, or as applying existing law without regard to his own personal views.

But then there are his personal views about the judicial role. Views that he has expressed about how courts and judges should interpret the law. Particularly the Constitution.

Kavanaugh is being lauded for being an "originalist" and "textualist" in the mold of the late Justice Scalia. That is, the Constitution should be interpreted according to the original or historic meaning of the text. Period. No "living Constitution" to adapt to the changing values of justice and equality of the day. Whether he is actually an "originalist" or or a "textualist" not is another story. So let him speak for himself:
The judge’s job is to interpret the law, not to make the law or make policy. So read the words of the statute as written. Read the text of the Constitution as written, mindful of history and tradition. Don’t make up new constitutional rights that are not in the text of the Constitution.
(George Mason University, Antonin Scalia Law School [2016])

Judge Kavanaugh said "It’s not complicated."

It sure isn't. It's simplistic, contrary to the Constitution itself and, if actually followed, would have profoundly drastic implications for the most basic liberties Americans today enjoy and take for granted.

And that is why neither conservative nor liberal Justices actually adhere to such originalism/textualism, except when it suits them. And more to the point here, at confirmation hearings, the self-proclaimed originalists and textualists--and other species of supposed judicial restraintists--will nevertheless embrace cherished landmark decisions that were utterly non-originalist, non-textualist, and very activist. E.g., Brown v. Bd. of Educ, outlawing racial segregation--which was certainly not what the 14th Amendment was intended to do, nor what its text requires.

Guaranteed, no Supreme Court nominee today will decry that activist, policy-making Brown landmark. And there are plenty of others. In fact, most landmarks are exactly that--activist and policy-making. They change what had been original or what the text itself means.

But before continuing with other landmarks, about which Kavanaugh ought to be asked to reconcile with his originalism/textualism (and they cannot honestly be so reconciled), let's turn to something even more basic. In fact, maybe the most basic. It has to do with the nonsensical complaint, repeated ad nauseam as though religious dogma, that a right should not have been recognized and enforced by the Court because it is not mentioned in the Constitution. Or as Judge Kavanaugh put it in the excerpt above: "Don’t make up new constitutional rights that are not in the text."

Yes, it sounds good. It sounds "uncomplicated," to quote Kavanaugh again. But it is the purest nonsense. And it's a danger to the American scheme of "ordered liberty"--to borrow from Benjamin Cardozo.
[He, of course, was one of the greatest jurists in our history, and he well-understood that such originalism and textualism and not-mentioned-in-the-text (as well as judges-should-not-make-law-or-policy) to be utterly contrary to what judges necessarily do. And to Cardozo, you can add Holmes and Friendly and Posner and countless others of our most venerated and candid jurists who understood and acknowledged the same.]

The Founders and the Framers of the Constitution themselves also understood this. Indeed, we nearly didn't have a Bill of Rights because they feared that "it's not in the text" or "it's not mentioned" would be argued in the future. They worried that by including any rights in the text of the Constitution, those that were not mentioned in the text would later be denied.

To allay such fears, a provision was included in the Bill of Rights to foreclose such a "it's-not-in-the-text" argument. That 9th Amendment make clear, in no uncertain terms, that the rights specified elsewhere in these first amendments was necessarily a very limited list, and that unmentioned rights--i.e., those not in the text!!!--were not to be denied.
(9th Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.")

This was James Madison's attempt to put a nail in the coffin of the "it's-not-in-the-text" argument. It was his way of saying to Americans at the time and in the future, "don't worry that a right doesn't happen to be mentioned."

That is not to say that every right that might be claimed is entitled to constitutional recognition and protection--i.e., that it is "implicit in the American scheme of ordered liberty." (To again quote Cardozo.) But the mere fact that such a right is not "enumerat[ed]" in the text is irrelevant.

Judge Kavanaugh ought to be questioned about the 9th Amendment. And he ought to be asked whether his "not in the text" argument is exactly what the Founders and Framers feared, and whether he knows that his argument nearly killed the idea of having a Bill of Rights.

Let's consider a few of those "constitutional rights that are not in the text" and which, supposedly, according to Judge Kavanaugh (and other advocates of originalism and textualism), the courts ought not to "make up." What about:

  • the right to get married--yes, even for heterosexuals. NOT in the text.
  • the right to have sexual relations with another consenting adult--yes, even if with a spouse. NOT in the text.
  • the right to have children--yes, even if for lawfully married couples. NOT in the text.
  • the right to raise one's children--yes, absent abuse or neglect. NOT in the text. 
  • the right to hug or kiss your spouse or parents or children or friend--NOT in the text.
  • the right even to have a friend--NOT in the text.
  • the right to associate in a group of friends or like-minded individuals or to play games. NOT in the text.
  • the right to choose whether or not to eat lunch or another meal, or when to eat dinner or any other meal. NOT in the text.
  • the right to go for a stroll in your neighborhood. NOT in the text.
  • the right to sing in the shower or listen to music or read poetry. NOT in the text.
  • "the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men" (Justice Louis Brandeis). NOT in the text.
[The entire oft-cited excerpt from Brandeis's renowned and later vindicated and adopted dissent in Olmstead v. United States (1928):
"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."] 

Need I go on? Most of the most basic rights and liberties in living in a free society are NOT in the text of the Constitution. That document is not, and was never intended to be, a catalog of such rights. And again, to make that point clear, the 9th Amendment was included among the original ten, in the hopes of warding off the "it's-not-in-the-text" argument. But that argument keeps rearing its ugly and ignorant head. One must wonder if Judge Kavanaugh, his ilk and his supporters actually believe it.
[For further discussion, see Supremely Awful Arguments: Constitutional Nonsense (Part 2).]

In fact, it's a sure bet they actually don't believe it and don't practice it unless it gets them where they want to go. (More about that in the next post.) But for now, the point is that Judge Kavanaugh's insistence, that judges ought not to "make up" rights that are "not in the text of the Constitution," is actually contrary to the Constitution itself, which explicitly warns against denying rights that are NOT in the text.

Judge Kavanaugh ought to be questioned about all of those "NOT in the text" rights, and others. He ought to be asked which ones the courts and judges--and especially the Supreme Court--should not be recognizing and protecting, simply because they are "not in the text" as he says. And does he really believe that the fundamental principles of liberty that underlie the body of the Constitution and the Bill of Rights do not protect such basic freedoms--just because they are "not in the text?"

In addition to being at odds with the Founders' and Framers' understanding that rights did not need to be enumerated in the Constitution, this not-in-the-text argument is in fact contrary and irreconcilable with most of the essential and cherished rights that courts and judges--including the Supreme Court--have recognized and protected in landmark decisions. They were recognized and protected only because the pseudo-constitutional nonsense of not-in-the-text was disregarded.

It is these rights, protected by courts and judges--and specifically in Supreme Court landmarks--that will be the focus of the next post on Judge Kavanaugh and his avowed originalism and textualism.

[For Judge Kavanaugh's official U.S. Court of Appeals biography:]

Friday, July 6, 2018

Justice Kennedy's Retirement (Part 2)

In the previous post, we reviewed Anthony Kennedy's votes and authored opinions in a wide range cases that deeply divided the Court. These were cases where the Justices split 5-4 along partisan political lines, and where the change in a single vote in the majority would have reversed the Court's decision.

What might well be unexpected to some--because Kennedy has been accurately viewed as a--or the--"swing vote" on some significant, controversial issues--is that his overall record has actually been that of a politically conservative Republican. Whether stopping the vote count in Bush v. Gore or invalidating restrictions on corporate campaign spending in Citizens United, or on diverse issues such as Obamacare, the Trump travel ban, gun rights, employer rights, voting rights, and search & seizure and privacy, Kennedy routinely joined with the other Republican Justices on the politically conservative Republican side of the issue.

But Kennedy has largely been known--beloved and praised, or reviled and ridiculed--for the exceptions in his record. His "swing vote" legacy is built upon a few areas of the law. On some highly charged social and cultural issues, he broke from the Court's conservative Republican majority and joined with the liberal Justices. Indeed, with Kennedy gone and a Trump nominee forthcoming, these are the issues about which Democrats, liberals, and, on some, libertarians are most concerned.

Let's consider those:
Gay Rights
Kennedy's name, more than any other, will be associated with the Supreme Court's landmarks invalidating sexual-orientation discrimination and mandating equal treatment for gays, lesbians, and same-sex couples. The culmination of that line of cases, no doubt, was the 5-4 decision in Obergefell v. Hodges (2015). There, Kennedy joined the Court's four liberals and authored the majority opinion to invalidate laws that restricted marriage to heterosexuals and, concurrently, to recognize the right to marry for same-sex couples.
He similarly authored the majority opinion for the Court's 5-4 decision, two years earlier, in U.S. v. Windsor (2013), invalidating provisions of the so-called "Defense of Marriage Act (DOMA) that denied federal marital benefits to legally married same-sex couples.
Before those cases, he authored the majority opinions in Lawrence v. Texas (2003), invalidating laws that criminalized same-sex intimacy ["Homosexual Sodomy" in the late Justice Scalia's ad nauseam refrain.], and in Romer v. Evans (1996), invalidating a state law that specifically prohibited legal protection against sexual-orientation discrimination.
[In these cases, Kennedy confirmed the worst suspicions of the most conservative members of the Reagan administration who opposed the Kennedy nomination because he was a "gay lover"--the cruder term was used in private conversation with me.]

On the other hand, Kennedy did join the 5-4 decision, in Boy Scouts of America v. Dale (2000), allowing the Boy Scouts to exclude gays from leadership positions, on the basis of freedom of association, despite a state law prohibiting sexual-orientation discrimination.

Affirmative Action
Kennedy authored the 4-3 majority opinion [Only 7 Justices participated: Scalia had died and Kagan recused herself] in Fisher v. University of Texas (2016), approving and, thereby, saving the use of race as one of many factors in a university admission process, as a narrowly tailored means to achieve the compelling interest in student diversity.

On the other hand, thirteen years earlier, in Grutter v. Bollinger (2003), where a 5-4 majority had upheld the use of racial preferences in university admissions, recognizing the value of racial diversity in education, Kennedy dissented; he argued that the use of race should be subject to much closer judicial scrutiny and more limited than what the majority had allowed.
And a mere two years before Fisher, in Schuette  v. Coalition to Defend Affirmative Action (2014), Kennedy wrote the leading plurality opinion for himself, Roberts and Alito. [Also part of the Court's 6-2 majority was Scalia, who voted with the majority but wrote his own opinion joined by Thomas; and Breyer who authored his own sole opinion. Sotomayor dissented in an opinion joined by Ginsburg; Kagan did not participate.] Kennedy approved a state law (adopted in the aftermath of that Grutter decision) that prohibited the consideration of race (or sex) in university admissions, despite the undeniably racially-charged campaign to promote the passage of the law and despite the fact that the supposedly merit-motivated law left alone countless other factors used in the admissions process that have nothing to do with academic merit--e.g., athletics, legacy, family wealth and contributions, geography, etc., etc.
[In my view, this was a shamefully hateful law that obviously had nothing to do with academic merit--since countless non-merit factors were left untouched--and much about racial animus. IAE, the point here is that Kennedy approved it.]

Right to Choose/Abortion Rights
In the landmark 5-4 decision in Planned Parenthood v. Casey (1992), Kennedy joined Justice O'Connor's opinion to reaffirm Roe v. Wade and to establish the proposition that an "undue burden" on a woman's right to seek an abortion, prior to the viability of the fetus, was unconstitutional.
And more recently, in Whole Woman’s Health v. Hellerstedt (2016), Kennedy joined the liberals in the 5-3 majority [Scalia had died earlier in the term], invalidating Texas restrictions on abortion service providers because they imposed substantial burdens on the right to choose, without any actual health benefits.

On the other hand, in the most recent right to choose case, Nat'l Institute of Family and Life Advocates v. Becerra (2018), Kennedy joined the 5-4 majority opinion, authored by Justice Thomas, invalidating California's requirement that clinics providing pregnancy services advise patients about legal abortion options, deeming that to be a violation of free speech.

Capital Punishment
Kennedy joined the Court's liberals in several deeply divided decisions that limited the application of the death penalty. In Atkins v. Virginia (2002), he joined the 6-3 majority opinion of Justice Stevens, holding that the execution of persons with significantly diminished mental capacities violates the prohibition against cruel and unusual punishment.
Three years later, in Roper v. Simons (2005), he wrote the 5-4 majority opinion, holding that the execution of persons who were minors when they committed their crimes also violates the prohibition against cruel and unusual punishment.
And three years after that, in Kennedy v. Louisiana (2008), he authored another 5-4 majority opinion, this time holding the same for the non-homicidal rape of a child.

On the other hand, in that same year, in the badly splintered decision in Baze v. Rees (2008)--one plurality opinion, 4 concurring opinions, and a dissent--Kennedy joined Chief Justice Roberts' 3-Justice plurality opinion that upheld Kentucky's method of lethal injection, despite the occasionally improper administration which would result in an excruciatingly painful death. According to the Kennedy-joined plurality, the cruel and unusual punishment prohibition would be violated only where there was an intolerable risk that the infliction of pain was wanton and unnecessary.

To be sure, there are other areas of the law in which Kennedy's participation was welcomed by ideological liberals--sometimes and sometimes not. The point is that as a "swing vote" that provided liberals with a last hope on a decidedly conservative Court, Kennedy's record was, at least in that regard, a very checkered one.

As we saw in the previous post, Kennedy's record on many issues was indisputably--and very--politically conservative. And in this post, we saw that even in those areas where Kennedy "swung" to the liberal side of the issues, he was not necessarily a totally reliable vote.

The purpose in these two posts has only been to be clear-eyed about Justice Kennedy's record and about what will really be missing from the Court in his absence. It was not to criticize Kennedy. Indeed, as I have repeated numerous times, in my view Kennedy has been admirable. He has been the least politically, lopsidedly-partisan and ideological Justice on this Court.

In short, more than the other Justices, Kennedy seems to have behaved like a judge. The "swing vote" label, which he apparently did not like, reflected that he was not necessarily tied to one ideological, partisan side in the cases. He typically appeared to be open to vote with the other side of the Court's political aisle.

He will be missed by many Court watchers. Include me among them.

Monday, July 2, 2018

Justice Kennedy's Retirement (Part 1)

(The travel ban decision or Kennedy's retirement? A wonderful student I bumped into yesterday suggested addressing the retirement first. So here goes.)
This post was updated  the following day to correct the omission of Kennedy's dissenting vote in the Obamacare case.

Anthony Kennedy, who announced last Wednesday that he will retire from the Supreme Court, was President Reagan's 3rd choice to fill the vacancy created when Lewis Powell took his leave in 1987. Reagan was mortified and angered when his first two nominations, Robert Bork and Douglas Ginsburg, were unsuccessful. Only then did he settle on Kennedy.

Staunch conservatives in Reagan's administration, who had urged him to nominate Bork and Douglas, were adamantly opposed to the seemingly more moderate Kennedy. Among other specific reasons--as shared to me in very crude terms--was that Kennedy would support gay rights.

And indeed he did. Yes, he not only voted repeatedly against sexual-orientation discrimination and in favor of advancing equal treatment for gays and lesbians and same-sex couples, but he authored the landmark opinions in most of those cases, and he did so in soaring, heartfelt language.

Kennedy is most often thought of in terms of the positions he took in these and other culturally-charged cases. And he was warmly embraced by liberals for his willingness to break from the conservative Republican mold in these cases. But for the same reason, he was scorned and even despised by many on the right. Not only socially conservative politicians and commentators and members of the public, but also some of his colleagues on the Court would denounce his jurisprudence, ridicule his opinions, and cast aspersions on the integrity of his judicial analysis. The late Justice Antonin Scalia, for example, often fumed at Kennedy's opinions and left little doubt that he did not hold Kennedy or his judicial competence in particularly high esteem.

That, in turn, made Kennedy even more of a hero to political liberals.
(Disclosure: I admired Justice Kennedy, both for his positions on gay rights and other social issues, and for his behaving like a judge--i.e., not always towing the partisan political line like most of his colleagues do on the Court, both Republicans and Democrats.)

But, we need to put that in context. Justice Kennedy was no liberal. That may be good, bad, indifferent, or something else. But in assessing Kennedy's record and, thus, what the Court is losing by his retirement, let's get real.

Kennedy was a conservative. Again, good, bad, indifferent, or something else, he was a conservative who voted on most issues like a politically conservative Republican. Not always. And not on some extremely important and controversial social issues. But yes, most of the time.

Let's consider Kennedy's record on some important issues:
Presidential Election
Kennedy voted in the 5-4 majority, in Bush v. Gore (2000), to halt the counting of votes and insure George W. Bush's election.
When the 5-4 majority, led by Chief Justice Roberts in National Federation v. Sebelius (2012), saved the Affordable Care Act by upholding the individual mandate, Kennedy voted with Scalia, Thomas and Alito in a joint dissent.
Trump Travel Ban
Most recently, he voted in the 5-4 majority, in Trump v. Hawaii (2018), to uphold President Trump's 3rd attempt to ban travel into the United States from several designated countries, most of them majority Muslim.
Campaign Finance
Kennedy is the one who authored the majority opinion, for the 5-4 decision in Citizens United v. FEC (2010), that invalidated the limits on corporate expenditures on political communications.
He then voted in the 5-4 majority, in McCutcheon v. FEC (2014), to invalidate the limits on the aggregate amounts that can be contributed to political candidates and parties.
Gun Rights
He voted in the 5-4 majority, in D.C. v. Heller (2008), to hold that the 2nd Amendment guarantees an individual right to bear arms separate from a state militia.
He then voted in the 5-4 majority, in McDonald v. Chicago (2010), to hold that the Heller individual right to bear arms is fundamental and, thus, applies to the states as well as the federal government.
Voting Rights
A few years ago, he voted in the 5-4 majority, in Shelby County v. Holder (2013), to invalidate those sections of the Voting Rights Act of 1965 that required jurisdictions with a history of voting discrimination to obtain a pre-clearance from the Justice Department when changing their voting laws.
Just recently, Kennedy authored the 5-4 majority opinion, in Husted v. Philip Randolph Institute (2018), approving Ohio's program to actively cancel the registration of voters who have not recently participated in some election activity.
Employer-Employee Relationship
This past term, he voted in the 5-4 majority, in Epic Systems v. Lewis (2018), to approve employer conditions that compel workers to submit their grievances individually to arbitration.
Most recently, he voted in the 5-4 majority, in Janus v. AFSCME (2018), to invalidate state laws that required nonmembers of a public sector union to pay "agency fees" or "fair-share" dues to help cover the union's cost of collective bargaining and other representation on the nonmembers' behalf.
Search & Seizure & Privacy
A few years ago, Kennedy authored the majority opinion, for the 5-4 decision in Florence v. County of Burlington (2012), that approved strip searching a driver, who had been arrested for a minor traffic offense, when that minor offender was placed in a jail cell during "processing--supposedly  to insure safety and discipline, even though there was no suspicion of drugs, weapons, or other contraband. Actually, 2 separate strip searches of that "offender" at 2 different jail cells were approved. Oh, the fact that the "offender" was totally innocent was apparently irrelevant.
That decision had been foreshadowed several years earlier, in Atwater v. Logo Vista (2001), in which Kennedy voted in the 5-4 majority to uphold the arrest, the handcuffing, the frisking, the searching, and the jailing-during-"processing" of a woman for a seat belt violation--i.e., her children had undone their seat belts while she was driving. Again, there was no suspicion of drugs, weapons or other contraband.
[These, in my view, are among the very worst decisions of the modern Court. And Kennedy was instrumental in creating a majority in both cases.]
Then there's the new 5-4 decision, in Carpenter v. U.S. (2018), in which Chief Justice Roberts authored the majority opinion holding that the government should have obtained a warrant before tracking a cellphone user's movements and whereabouts, over a 4 month period, by using his cellphone company's location data. Kennedy dissented, arguing that no warrant should be required.

Ok, that is not the record of a liberal Justice. Or even a centrist. Every one of those votes and opinions are what we would expect of a politically conservative Republican. And that is mostly the way Justice Kennedy behaved throughout his tenure on the Court.

That being said...Kennedy is best known--whether admired by liberals or reviled by conservatives--for his positions and even leadership on certain other issues. Social, cultural issues that, despite landmarks that might otherwise have settled them, are still front and center in our national political divide.

We'll take a look at that more liberal aspect of Kennedy's record, as well as some prospects for the Court with the forthcoming Trump-filled Kennedy replacement in the next post.

Tuesday, June 26, 2018

The Supreme's Cell Location Data Decision: Right, Revealing, and a Real Milestone

(Today's "travel ban" decision was another pathetic partisan divide. The 5 Republicans vs the 4 Democrats. We'll discuss that next. But first, this privacy/search & seizure milestone.)

The Supreme Court ruled this past Friday that when government tracks a person's movements and whereabouts--in this case for 4 months, using cellphone location data--that is a search. Speaking through Chief Justice Roberts' majority opinion in Carpenter v. U.S., the Court held that government must (except, for example, in an emergency situation) obtain a warrant, supported by probable cause, before it may engage in such a comprehensive technological scrutiny of someone's private life.

Now, that decision may not seem so earthshaking. Well of course that's a search! Well of course the Constitution generally requires a warrant and probable cause for a search! Well of course the government shouldn't be allowed to examine the data that my cellphone company has about my cellphone's location in order to monitor my every movement--unless it has some good reason (i.e., probable cause) and gets a warrant!

Well, you might think so, and the Supreme Court now agrees. Yes, now, and by a mere 5-4 vote!

Chief Justice Roberts was the deciding vote in Carpenter. He joined the Court's 4 liberals (Justices Ginsburg, Breyer, Sotomayor, and Kagan) and he assigned himself the opinion for the resulting majority. His opinion was a milestone. Not only for the particular result in the case--to repeat, government must get a warrant supported by probable cause in order to track a person's movements through cellphone location data. But also because Roberts re-invigorated one of the Court's foremost privacy-protecting landmarks. And because he declined to apply the Court's privacy-limiting precedents.

As for the 4 dissenting Justices, they all authored their own opinions presenting different arguments why Roberts and his majority were wrong.

[We've discussed at length in New York Court Watcher the nonsense--and dangerous nonsense at that--of the Supreme Court's search and seizure jurisprudence that has developed over the past few decades. It has developed largely in order to avoid excluding evidence obtained from unconstitutional searches. So the Court has disingenuously ruled that many searches are not really "searches" and, therefore, that they are not subject to constitutional protections.
A police helicopter hovering over your backyard to search your property--that's not a "search." A search of your private property away from your house--that's not a "search." A search of all the contents of your garbage put out for pick-up--that's not a "search." A search by police canines sniffing your body--that's not a "search." And lots more. No, none of these are "searches" according to Supreme Court decisions
Consequently, in such "not-a-search" situations, the 4th Amendment's prohibitions against unreasonable searches and seizures just don't apply. The government need not get a warrant or have probable cause or even have some reasonable suspicion. No, nothing! No justification whatsoever is required for these searches under the Constitution because, the Court has told us, they are not really "searches."
Yes, it's hard to believe until you actually read these decisions.
(See Supreme Court: Right on GPS Surveillance--But BEWARE! (part 1)The GPS Decision--part 2: Scalia's Dangerous Nonsense & Alito's RebuttalThe GPS Decision--The Video)]

Let's consider the search & seizure case law particularly relevant to the issue in Carpenter.

The 4th Amendment of the Constitution protects against "unreasonable searches and seizures." In furtherance of that protection, it declares that "no Warrants [to conduct searches or seizures] shall issue, but upon probable cause." In it's 1967 landmark decision in Katz v. U.S., the Supreme Court ruled that the 4th Amendment "protects people, not places." That amendment, the Court elaborated, was intended to protect the legitimate privacy interests that people have in a free society--not the limited items that happen to be specifically mentioned in that amendment.

The Court in Katz was adopting the view expressed in one of the most famous dissents in Supreme Court history, authored by one of the truly great Justices in that history--the dissent of Louis Brandeis in Olmstead v. U.S. (1928). The majority in Olmstead  held that the Constitution provided no protection against government eavesdropping on the defendant's private phone conversations. No warrant needed. No probable cause needed. The reasons? Conversations are not one of the "tangible' or "material" "things" specifically mentioned in the 4th Amendment. Also, the outside telephone wires that the government tapped belonged to the telephone company, not to the defendant.

Brandeis rejected that reasoning. He argued, in these oft-repeated lines, that the Constitution "conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment." Nearly 40 years later, in the Katz landmark, the Court overruled Olmstead and similar decisions, and it embraced Brandeis's view of protected privacy. Henceforth, all government intrusions upon legitimate expectations of privacy would have to be justified--by probable cause supporting a warrant.

But then...

In the decades that followed Katz, as "law and order" Justices were being appointed and the Court was retrenching from decisions that were protective of the rights of the accused, the Court variously and persistently diluted that landmark. So, for example, the Court adopted the so-called "third party doctrine." In short, if you allow someone else to have information about you--e.g., your bank has records of your transactions and your phone company has records of the numbers you've called or which have called you--then you have no Katz privacy rights in that information, even from a government investigation. And so the 4th Amendment provides no protection.
(I'm not saying that follows logically, but only saying that's what the Court has ruled.)

Then there's the curious reemergence of (what I will call) the "not specifically mentioned doctrine" and, relatedly, the "trespass doctrine." In these latter dilutions of Katz--actually breaks from it--the Court has insisted, for example, that while the 4th Amendment specifies "houses" for protection, it does not mention the private property beyond a house. So there is no 4th Amendment protection for the deceptively labelled "open fields"--i.e., actually any private property a homeowner has beyond the immediate area of the home itself. The Court has also insisted that the 4th Amendment is really about property rights and about preventing the government from "trespassing"--i.e., physically invading without permission--upon one of your "tangible" "things" that are mentioned in that amendment. So, only nonconsensual invasions of your person (body), house, papers (documents), or effects (personal property). No "trespass" on one of those? Then no 4th Amendment protection.

Sooooo, under the "third party doctrine," since you've "allowed" your bank and your phone company to have records about you, the government doesn't need a warrant or probable cause--or any other justification--to search your records. Also, because your private property beyond your house is not mentioned in the 4th Amendment, the same thing. And as long as the government does not "trespass" upon you or your car (which is an "effect" or personal property), apparently no warrant or probable cause is required to conduct unlimited surveillance on your comings and goings.

That's was state of 4th Amendment search and seizure jurisprudence when the Court was deciding the cellphone location data issue in Carpenter.

So how exactly did Chief Justice Roberts reach the result he did for the Court's majority? Here's an outline of the critical highlights:

  • Roberts stated the issue in the case succinctly and without any ideological slant at the outset: "whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements." [My emphasis whenever in bold.]
  • He then described the purpose of the 4th Amendment in terms of privacy and the Court's privacy-protective landmarks: 
    • "The 'basic purpose of this Amendment,' our cases have recognized, 'is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.' Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 528 (1967)." and
      "In Katz v. United States, 389 U. S. 347, 351 (1967), we established that 'the Fourth Amendment protects people, not places,' and expanded our conception of the Amendment to protect certain expectations of privacy as well."
  • Roberts then declined to apply the Court's 2012 decision in the GPS tracking case, U.S. v. Jones, in terms of Justice Scalia's majority opinion which had characterized the 4th Amendment in terms of trespass upon property rights. (I.e., Scalia wrote that the GPS monitoring of the driver's movements implicated the 4th Amendment because government officials had physically trespassed on his car by attaching a GPS device without his consent--not because electronically monitoring his movements without a warrant was an intrusion upon his privacy rights. In fact, Scalia disparaged Katz as a "deviat[ion]." See The GPS Decision--part 2: Scalia's Dangerous Nonsense & Alito's Rebuttal.)
  • Instead, Roberts emphasized that 5 Justices in Jones had underscored the "privacy concerns" underlying the 4th Amendment--i.e., Justice Alito's concurring opinion, joined by Ginsburg, Breyer, and Kagan, arguing that Katz governed the case and denouncing Scalia's disinterment of the trespass doctrine as outmoded and long overruled; and Sotomayor's lone concurring opinion, joining Scalia but also applying Katz.
    • Reaffirming the view of those 5 Justices--a majority of the Court--instead of Scalia's "trespass doctrine," Roberts noted that, "Since GPS monitoring of a vehicle tracks 'every movement' a person makes in that vehicle, the concurring Justices concluded that 'longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy'.
  • Then, addressing the "third party doctrine," Roberts explained that at the time those earlier precedents about bank records and phone records had been decided in the '70's, "few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements. We decline to extend Smith [bank records] and Miller [phone records] to cover these novel circumstances.
  • Roberts elaborated further on the extent and implications of cellphone data on 4th Amendment privacy rights: "[A] cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up. Virtually any activity on the phone generates [location information], including incoming calls, texts, or e-mails and countless other data connections that a phone automatically makes when checking for news, weather, or social media updates. Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data. As a result, in no meaningful sense does the user voluntarily 'assume[] the risk' of turning over a comprehensive dossier of his physical movements...The Government’s acquisition of the cell-site records was a search within the meaning of the Fourth Amendment."
  • Finally, lest there be any doubt that the Chief Justice intended to re-enforce the privacy rights character of the 4th Amendment and, simultaneously, to re-inter the outmoded views that had already been overruled in Katz  (but were nevertheless re-embraced in Scalia's majority opinion in Jones--the GPS case), Roberts returned to Brandeis and his dissent in Olmstead: "As Justice Brandeis explained in his famous dissent, the Court is obligated—as '[s]ubtler and more far-reaching means of invading privacy have become available to the Government'—to ensure that the 'progress of science' does not erode Fourth Amendment protections. Olmstead v. United States, 277 U. S. 438, 473–474 (1928)."
As for the 4 dissenters:
  • Justice Kennedy argued that the "third party doctrine" precedents should be applied, and that they "dictate that the answer is no" 4th Amendment "search" was conducted in this case.
  • Justice Thomas, echoing the majority opinion in Olmstead--rather than the Brandeis dissent--argued that the question in this case was "whose property was searched," and the cellphone location data belonged to the cellphone company, not to the defendant.
  • Justice Alito argued that a subpoena for the cellphone company to present records--which was involved in this case--did not implicate the same privacy concerns as would an actual search of  the defendant's premises, papers, or personal property.
  • Justice Gorsuch argued against Katz as being at odds with the original meaning of the 4th Amendment and unworkable. Instead, "if a house, paper, or effect is yours, you have a Fourth Amendment interest in its protection"--but not with regard to the cellphone company's records or your location and movements.
So there it is. I know this was a bit long and detailed. But this decision is so vitally important for fundamental privacy protection amidst such extraordinary and extraordinarily rapidly advancing technology.

As far as the Supreme Court itself is concerned, the significance of this case includes being decided by a bare majority, Chief Justice Roberts being the deciding vote, his siding with the 4 liberal Justices, his rejecting the application of older precedents to answer a modern technological question, his even rejecting a recent majority opinion--by Justice Scalia--that sought to resurrect an old view of the 4th Amendment, and his leaving no doubt that the privacy concerns expressed in Brandeis's dissent in Olmstead (not the Court's decision in that case) and later adopted in Katz are the governing principles of the 4th Amendment.

As for the dissenters, Justices Kennedy and Alito argued in favor of applying previous decisions of the Court that would have precluded the reach of Katz to this case and, presumably, to other analogous intrusions made possible by advancing technology. Justices Thomas and Gorsuch would abandon Katz--largely or entirely--and would restrict 4th Amendment protections to its original or literal limits, regardless of the changed realities of the modern world.

So one vote made the difference. A departure of one of the liberal Justices--and the retirement of the elder Ginsburg or Breyer in the not too distant future is certainly a possibility--or even of the Chief Justice, would likely result in the Court's narrowing of the Carpenter decision. A fortiori if the departing Justice is replaced by the current President or by a conservative successor. In fact, if such were to occur, it is likely that those antiquated "third party" and "trespass" and "not specifically mentioned" doctrines would be rehabilitated and applied to constrict constitutional privacy protections.

That thought--at least to me--is dismaying. But for today, the Carpenter decision is cause for celebration and some hope.

Wednesday, June 20, 2018

NYCOA: June 14 Hand Downs--Dissents, Disappointments, and Open Questions (Part 1: Actual Innocence)

As readers of New York Court Watcher are well aware, as are those who have attended my lectures or heard me on the air, I have the highest regard for the New York Court of Appeals as an institution and for the Judges who serve on it. Indeed, I've made clear my view--just as I did many years ago at the end of my Supreme Court Fellowship to an august audience that included Chief Justice Rehnquist--that I revere the Court of Appeals at least as much as I do the nation's high court.

But--and you knew that was coming--I have not hesitated to be candid in discussing Court of Appeals decisions, in analyzing the individual Judges' opinions and votes, or in being critical when I thought criticism was warranted. Well, the collection of decisions handed down by the Court last Thursday, June 14, cries out for some critique. (The decision list and decisions themselves are accessible on the Court's website here:

The Court of Appeals issued eight decisions that day. Six of those eight drew dissenting opinions. (I'm including those substantive concurring opinions that disagreed with the rule of law announced or how applied by the majority.)

Now there is nothing necessarily wrong with so many dissents. Yes, there are those who prefer the Court to speak with one voice, to reach a consensus in order to avoid open division. But there are others, myself included, who welcome dissenting opinions. Those opinions usually improve the Court's decision by making arguments or raising questions that must then be addressed by the majority. The result is almost always a much sharper decision and a much clearer precedent for lower courts and lawyers to follow. (And, admittedly, for law profs and commentators to critique.)

Nevertheless, there is another side to the salutary aspects of dissenting opinions. It is the occasional disappointment or even dismay with the majority opinions that they oppose. These are the majority opinions and, thus, decisions of the Court that are either wrong on the law or, perhaps worse, simply but terribly unjust. At least one of the June 14 decisions seems to fall into that category.

In People v. Tiger, over a two-Judge dissent, the majority held that actual innocence is not a basis for challenging a guilty plea conviction under New York law. It's not that the statute in question (CPL 440.10) actually says that. Or that the statute cannot be interpreted to allow an actual innocence challenge. No, the majority chose to adopt that interpretation. (Usually, cases that get to high courts such as the NYCOA or the Supreme Court do have legitimate arguments for both sides--that's why those cases are there to be settled. Indeed, the two dissenters in this case certainly believed that the statute could and should be interpreted to allow actual innocence challenges.)

So why did the Court choose to reject the availability of an actual innocence challenge? Strangely--and this is cause for at least as much concern as the Court's decision itself--the majority relied in large measure on Supreme Court precedents. Why is that strange? Consider that the Court of Appeals majority in this case relied on the federal Supreme Court's interpretations of federal protections to decide the New York high court's interpretation of a New York statute's totally independent protections. The Supreme Court's precedents were absolutely no authority for the New York law question before the New York Court of Appeals.

Beyond that, the federal Supreme Court decision most cited--five times between the majority and concurring opinions--was an unfortunate, if not a dreadful one. In that 1993 decision, Herrera v Collins, the majority of Supreme Court held that the federal Constitution did not require courts to consider actual innocence challenges to a conviction. And that Court's 6-3 majority was made possible only by the votes of Justices Scalia and Thomas who, in their own concurring opinion, insisted that the Constitution does not prohibit the conviction or even execution of an innocent person, as long as proper procedures were otherwise followed.

That's right. That was the basis for two votes that made the majority possible in the Supreme Court's Herrera decision that the Court of Appeals majority relied on with approval. Indeed, the majority opinion itself in Herrera, authored by Chief Justice Rehnquist, declined to reject Scalia and Thomas's proposition.
(Instead, Rehnquist's opinion "assume[d]" the opposite "for the sake of argument," solely to assess the defendant's new evidence as unpersuasive. Three other members of the majority--Justices White, O'Connor, and Kennedy--did make clear in their concurring opinions that they believed it would be unconstitutional to execute an innocent person; but they were unpersuaded by the defendant's evidence that he was innocent.)

In the wake of Herrera, the Supreme Court has yet to rule that convicting and executing an innocent person is unconstitutional. Why would the New York Court of Appeals ever rely on that Court's case law on the actual innocence issue?

There's more. The Court of Appeals majority in People v. Tiger rejected the availability of an actual innocence challenge in a case in which the defendant might well have been actually innocent! The two dissenters--Judges Wilson and Rivera--in fact declare unequivocally that the defendant is innocent.

Moreover, the dissenters' assertion is corroborated by the result of a lawsuit instituted against the defendant. The civil jury in that lawsuit found that the defendant did not in fact commit the wrongdoing that was the basis for the guilty plea conviction. Consider that the civil jury, of course, only had to find by a preponderance of the evidence--not beyond a reasonable doubt--that the defendant was guilty of the wrongdoing. And still, that civil jury determined the defendant to be innocent.

So why then did the defendant plead guilty? As the dissenters, as well as countless studies and examinations of guilty pleas have found, there are many reasons why defendants plead guilty. Actual guilt is not necessarily one of them. In fact, innocent persons often plead guilty.

In this case, for example, as the dissenters point out, the defendant faced the possibility of seven years imprisonment if she went to trial. So "she pleaded guilty after her lawyer told her she could not afford to hire an expert and a guilty plea could result in a suspended sentence"--in fact, pleading guilty did result in a much lighter sentence than the possible seven years. And then, to repeat what has already been said, a civil jury found that the defendant was not guilty, even though that jury was aware of the defendant's own statements in the guilty plea proceedings.

Regardless of the admiration I have for the Court of Appeals and its members--and maybe because of that--I am struck by how flawed and unjust the decision is in People v. Tiger. This was not a fine Court's finest hour.

In the next part, we'll look at another significant aspect of that June 14 set of decisions.