Let's now supplement that. Let's look at a few other interesting aspects of those two Justices' voting. Other things that can be gleaned from the data we've been mining from the "defining decisions" of the 2007-08 term. (Some earlier posts discussing these "defining decisions" are listed below.)
GRAPH 1 (click to enlarge)
For example, look at what's depicted in Graph 1. It's the most evident aspect of Scalia's and Thomas's record, and the easiest to identify and label. It's the politically conservative character of their voting.
Stated otherwise, and as specifically depicted in this graph, their voting is the least politically liberal among the Justices. They do not often vote for politically liberal results. Indeed, they very rarely do so, and certainly less frequently than any of the other members of the Court.
While the Iowa Supreme Court shows that it's serious about equal protection by requiring that same-sex couples enjoy an equal right to marry, and the New York Court of Appeals seems ready to break again from the U.S. Supreme Court's persistent weakening of search and seizure safeguards, that latter court was busy undermining yet another rights-enforcing precedent from a more rights-protective era.
This time, the Supreme Court was doing so to dilute the anti-discrimination mandates enacted by Congress over 40 years ago. And it did so by overruling--Oh, I mean "distinguishing"!--a 35 year old decision of the Court enforcing that law.
Guest Contributor: Joseph LaValley [Mr. LaValley, a 2002 summa cum laude graduate of Albany Law Review and Editor-in-Chief of the Law Review, was a law clerk for Judge Roger Miner of the U.S. 2d Circuit Court of Appeals and is currently an associate at Boies, Schiller & Flexner. He participated in my criminal procedure class last week watching a video of the Weaver oral arguments.]
“If Jefferson or Lincoln—or even Theodore Roosevelt—came back to life, he would hardly recognize the American government.”Lawrence M. Friedman, Total Justice (1994).
In the context of considering and commenting on the recent oral arguments before the N.Y. Court of Appeals in the case People v. Weaver (argued Mar. 24, 2009), the above quote seems to me, in many ways, both relevant and ironic.First, and most obviously, none of the illustrious figures invoked by Prof. Friedman from the dustier pages of our nation’s history would have a clue regarding the uses or meanings of sophisticated technologies utilizing—or, perhaps more accurately, optimizing the utility of—Global Positioning System (“GPS”) satellites, such as the tracking device and computer-monitoring systems at issue in Weaver.
On the other hand, with a bit of technical briefing, these same, savvy individuals might well have grasped the implications of the police having such technologies—especially in a scenario in which the police had free rein to use them in an on-going, open-ended campaign to gather real-time information about the whereabouts of citizens—and certainly if, in that same scenario, the police were left to their own devices (so to speak), untroubled by the potential “wet blanket” of any degree of judicial oversight whatsoever.And herein, I think, lies the deeper irony—as it is the actualization of this very state of affairs that would have proven hardly imaginable, let alone “recognizable,” to these luminaries, despite their having been, to a man, not only visionaries but geniuses, well-versed in the excesses of both human nature and governments.
The reason such a scenario would, I think, have been quite surprising, perhaps even shocking, to these historical figures is twofold.First, American citizens, and perhaps all citizens of modern Western democratic bureaucracies, are routinely, even blithely, subjected to a degree of government oversight, observation, and, in many capacities, intrusion into their lives and affairs that, even a few decades ago, would have seemed like an Orwellian nightmare (and, a couple of centuries ago, would in all likelihood have sparked an armed revolt).
Such a degree of surveillance and monitoring of the average citizenry (let alone those individuals who are “on the government’s radar,” yet not quite officially suspected of a crime or targeted by the government in connection with an investigation) would almost certainly have shocked the typical American citizen of the Eighteenth or Nineteenth Century (assuming, of course, that he or she was not a member of one of the many disenfranchised and/or marginalized groups of those eras, who, one must suppose, were pretty much beyond being “shocked” by the acts and/or omissions of “their” American government).
But probably even more surprising would have been the mere fact that people today, at least en masse, are extremely tolerant of—if hardly “comfortable” with—a vast array of such governmental intrusions, occurring regularly, if not constantly, in virtually every sphere of public life, and even in a many private contexts.
All of which brings us to People v. Weaver—as it is only against this constant, ubiquitous background hum of routine government monitoring and observation, with occasional “spikes” in the level of intrusion (the shoeless indignity of modern commercial air travel being but one obvious example), which is endemic to our modern world, that a reasonable person could possibly deem the degree of monitoring and surveillance at issue in People v. Weaver as constituting anything like “normal” or “routine” government surveillance of a person whom the police had neither probable cause nor reasonable suspicion to believe had committed a crime.
Indeed, it is in this vein that many of the Judges’ questions are most revealing.Several times, for example, it is suggested by certain of the Judges (as a sort of “baseline” of legality) that the police could have simply “followed” or surveilled the Appellant, Weaver, for the same length of time (60 days!) via non-automated means, done so without a warrant (and, again, without any probably cause or reasonable suspicion, as those terms are understood in the context of New York and Federal Constitutional law), and—here’s the kicker—that such a sustained tracking campaign would have been perfectly lawful and, indeed, unexceptional conduct on the part of the police.Notably, even the defense counsel did not seriously contend in the oral arguments that such a scenario would offend either federal- or state-constitutional principles of jurisprudence.
And yet, certainly, from the perspective of the historical figures invoked by Prof. Friedman, this hypothetical scenario would hardly fit within any reasonably conceived set of “traditional values.”(Indeed, to this commentator, it seems more like something out of a Kafka novel, or a scene from a film set in the Soviet Union during the height of the Cold War.)
In Total Justice, Lawrence Friedman, while concerned with many aspects of our distinctly American system of dispute resolution through litigation, primarily focused on the civil context.Nonetheless, his basic formulation of the essential framework of law is highly relevant in the criminal realm as well, and bears repeating in the context of People v. Weaver.
Generally, according to Friedman:“Law is not merely rules and regulations that are imposed by government on passive subjects.The legal system is, first of all, a system of interactions and processes, both internal and external.” (Lawrence M. Friedman, Total Justice (1994) at 13.)More particularly, Friedman used “the term legal act to refer to relevant behavior by people with authority who act inside the legal system.” (Id. at 13 & n.15; see also Lawrence M. Friedman, The Legal System: A Social Science Perspective (1975) at 4.)
Every time a police officer stops traffic, or issues a ticket, or arrests a burglar, he or she has committed a legal act. The same is true every time a clerk in city hall issues a marriage, dog, or hunting license. The total number of legal acts is therefore impossible to measure. But it seems obvious that there must be many more today than even a generation ago. The number of (potential) legal actors is also very great. Millions are on public payrolls. Big legal acts (major statutes or decisions) breed middle-sized legal acts (rules and regulations by agencies), which in turn generate dozens of small legal acts (the behavior of officials, police officers, and civil servants). (Total Justice 13–14 [emphasis added].)
It is precisely this “trickle down” of law and the concomitant geometric accretion-in-kind and acceleration-in-frequency of the universe consisting of all “legal acts”—large and small, occurring every day—that forms the backdrop against which the conduct of the government in People v. Weaver must be evaluated.
Like it or not, we live in a world in which police officers have the technological prowess to attach a small, inexpensive GPS device to 10 or 50 or 500 vehicles at a time, and then monitor, record, and subject to sophisticated analyses—in real time, “24/7”—the comings and goings of each and every one of those vehicles, all from a single computer workstation.Indeed, as was made clear in the oral arguments in People v. Weaver, a lone police officer could conduct such a comprehensive campaign of surveillance from a single laptop computer, without ever leaving his or her living room.
But despite that the technological capabilities exist to create such efficiencies in police activity (which, it should be conceded, in many contexts could result in an enormous boon to the public), the basic activity involved—the observation, monitoring, and recording of the locations and activities of a subject or subjects of police surveillance—is certainly a legal act.And this is equally true whether such activities are implemented via cutting-edge methods, involving computers and satellites, or “the old-fashioned way,” by wearing out tires and shoe leather.
After listening to the oral arguments in People v. Weaver, one could reasonably conclude that most if not all of the Judges, as well as the attorneys for the both prosecution and the defense, implicitly either overlook or reject this basic reality.That is, the questions and answers appeared to reflect an implicit assumption on the part of the Judges and the attorneys, for both sides, that acts of “routine” police surveillance (that is, presumably, including “traditional” methods and excluding “sneaky” technological methods, such as the surreptitious GPS tracking at issue in the case)—no matter how sweeping in scope or duration—somehow fall outside the universe consisting of “legal acts” or, at a minimum, are so low on the ladder of such acts that they constitute little more than “ministerial” conduct.From this perspective, apparently, such “routine” (i.e., non-technological and/or non-surreptitious and/or non-constant) surveillance requires neither prior approval nor contemporaneous oversight outside of whatever controls may exist within the police “chain of command.”
At bottom, however, absolutely no legal theory, principle, or rule was raised during the oral arguments in People v. Weaver, nor cited in the decisional history of the case, to support such a radical redrawing of the lines of our legal system. (See generally People v. Weaver, 860 N.Y.S.2d 223 (A.D. 3d Dep’t 2008); see also id. at 227 [Stein, J., dissenting].) Indeed, because the basic conduct in question is a legal act it must be firmly situated within the overall context of our system of laws.And it should be recognized explicitly, by the courts as well as future litigants in this arena, that all such legal acts—regardless of the nature or extent of the technology or technological sophistication involved, or the degree of efficiency with which the surveillance in question may be conducted—are alike in this regard and, thus, in requiring some appropriate level of judicial oversight.
It's a wonderful piece of news for all who care about having the very best judges on our courts--and who care about the quality and direction of case law in America. Wisconsin's venerable Chief Justice, Shirley Abrahamson, has won another term. A landslide reelection on Tuesday earned Abrahamson her fourth 10 year term on the state's Supreme Court.
Actually, what earned the Chief Justice a fourth term is the fact that she is a legal and judicial treasure, not only for her state, but for the entire nation. Among those who study courts in America, state as well as federal, she certainly ranks as one of the country's truly great judges. She would be on any legitimate list of the nation's very best judges. She is extraordinary. Extraordinarily bright, energetic, capable, sensible, effective, influential, etc., etc., etc.
And lovable. [E.g., she recently braved a blizzard, a canceled flight, a night stranded at the airport, and the next morning's dawn's early flight to get to Albany, participate in a symposium at the Law School, absolutely wow the SRO audience as well as the other Chief Justices on the panel, answer a slew of questions from students and faculty, and then immediately rush to the airport for a flight back home to make a family celebration which obviously could not be the same without her. And all with that New York City-born spunk and confidence and delight of hers. She's amazing!]
Shirley Abrahamson is Wisconsin's first woman Justice and, in a few years, with 37+ years on the state's high court, she will become the longest serving Justice in Wisconsin history as well.
What about some other women Chief Justices in America? There are some pretty extraordinary ones. What about a group of 9? Kind of a dream team Supreme Court. And indeed, if our Presidents were wise enough, they would have appointed some from this list to the nation's highest court. Here are my 9. [The order is simply alphabetical.] Christine M. Durham, Chief Justice of Utah. On the state's high court since 1982, and Chief since 2002. (More about her at:
Judith S. Kaye, Chief Judge of New York (Retired 2008). Appointed to the New York Court of Appeals, the state's highest court, in 1983 and elevated to Chief in 1993. She was the court's first woman and its longest serving Chief Judge.
[I'm including her because she would not be retired except for New York's moronic law that requires its high court judges to retire at the age of 70, just when many of them are at their prime in deciding the kind of fundamental questions that appeals courts of last resort must resolve. Just think, Shirley Abrahamson would have been forced to retire 5 years ago! Idiotic or what?](More about her at: http://www.nycourts.gov/courts/appeals/jkaye.htm)
Margaret H. Marshall, Chief Justice of Massachusetts. She was appointed to the Supreme Judicial Court in 1996 and to the position of Chief Justice 3 years later.
Leah Ward Sears, Chief Justice of Georgia. She is the first woman and youngest person ever to sit on the state's Supreme Court. She has served on the court since 1992, becoming the first African-American to serve as Chief in 2005.
So there you have 9 extraordinary women. Each is the Chief Justice of her state, presiding over her state's highest court and overseeing its judicial branch. And each is among America's very finest judges.
Let me put it bluntly. If these were the 9 Justices on the U.S. Supreme Court, we'd have a much better court.
That is not to say that each Justice currently on the nation's highest court suffers badly in comparison to each of the women Chief Justices on my list. By way of example, if Justice Ruth Bader Ginsburg were a state Chief Justice, she surely would be included in my list. But collectively, this group of women Chief Justices would, in my view, constitute a stronger, wiser, more just, and more sensible court of 9 than we now have.
But, of course, their states and their state high courts are so much the better because these extraordinary women have served where they have. So CONGRATULATIONS to Chief Justice Shirley Abrahamson, and lots of admiration and gratitude to her and the other Chiefs.
[One last note. The Chief Justices that I've identified are those who I know personally or by reputation to be extraordinary. There certainly are other women Justices and Chief Justices on our states' high courts who belong on any enumeration of America's outstanding judges. Nothing should be inferred from their absence on my list. On the other hand, go ahead and infer plenty from those who are included!]
The significance of that decision is difficult to overstate. Consider the contrast between that decision, by a unanimous court, in the country's heartland, and the decisional law of the nation's Supreme Court. Until less than 6 years ago, the supposed guardian of our rights and liberties under the U.S. Constitution insisted that states were free to criminally prosecute, convict, and punish gays and lesbians for same-sex. When the Supreme Court finally overruled itself in 2003, in Lawrence v. Texas, 3 of the 9 Justices actually clung to the notion--and vehemently so--that the Constitution afforded no protection to gays and lesbians. Not even against state laws that made them criminals.
So, it took the Supreme Court until a few years ago to recognize some Constitutional protection for gays and lesbians to be gays and lesbians. And even then the Court was deeply divided. Now, a few days ago, the high court of Iowa advances the law well beyond where the Supremes would apparently even think of going. It recognizes the equal right of gays and lesbians to marry--and does so without a single dissent. Tells you something about the comparative progressiveness and enlightenment of our national Supreme Court and that court in Iowa!
Along related lines, the New York Court of Appeals [NYCOA], the state's highest court, is in the midst of deciding whether to follow U. S. Supreme Court case law that severely undermines personal privacy and permits entirely unreasonable searches. Or whether to render an independent judgement to enforce fundamental rights under the state constitution--like the Iowa court did in the marriage case, and like the New York court had a national reputation for doing in the past. An independent judgement that makes clear that, even though the Supreme Court says that arbitrary government surveillance does not violate the federal constitution, such intrusions on personal privacy and autonomy will not be tolerated in New York.
The case being decided by NYCOA, People v. Weaver, as well as the related Supreme Court precedents, was discussed in some detail in a previous post. (See Court of Appeals: The First Big Test for the Lippman Court -- Is a Search a Search? Or the Supreme Court's Nonsense?, March 24, 2009.) In brief, Weaver involves the police attaching a tracking device (a "GPS") to the defendant's car and monitoring his movements for 65 days. The catch? The police did not have a warrant. More than that, the government is not even claiming that the police had any good reason--or even good suspicion--to believe that the defendant was engaged in criminality. Instead, the government is claiming that the police do not need a reason at all to put a tracking device on anyone's car and to electronically monitor a person's movements. Let's repeat the government's position just to be clear. NO REASON AT ALL IS NEEDED.
Is that really possible? Yes, because that's exactly what the Supreme Court said. To be precise, the Court said that the federal constitution doesn't require the government to have a reason. The explanation given by the Supreme Court, in its 1983 decision in U.S. v. Knotts, is that the Constitution forbids unreasonable (i.e., unjustified) searches, but such electronic monitoring is really not a search. [I'm aware that I already discussed this in that previous post. But I'm also aware that this may be so hard to believe that it doesn't sink in too readily.]
The Knotts decision is one of a host of rulings by the modern law-and-order oriented Supreme Court that insists that all kinds of governemnt searches are not "searches" at all for the purpose of the Constitution. The reason? Any expectation of privacy that a person might have would be unreasonable. So, electronically monitoring someone's movements on the roadways--or on sidewalks, or any other place open to the public--does not intrude upon any reasonable expectation of privacy. And so, it can't be a "search". You see, it would be unreasonable for someone living in a free society to expect that the government won't be monitoring their movements and electronically following wherever they go. [More on this nonsense about searches not being considered "searches" by the Supreme Court is discussed in the March 24 post cited above.]
But let me be fair. The Supreme Court was very careful to distinguish between, on the one hand, electronically monitoring a person's movements while driving on the roadways and, on the other, electronically monitoring such movements inside private places.
So thank you Supreme Court. It apparently IS a "search" and, thus, the government DOES need some justification to electronically monitor us if we are driving in and out of our garage, or driving around the coffee table in our living room.
At oral arguments in the Weaver case, the Judges of NYCOA seemed fully to recognize the nonsense--and danger to fundamental liberties--of the Supreme Court's approach. [I did not attend oral arguments, but I did watch the videocast which the court had later put on its website. Also, I obtained a DVD of the arguments and played it in my Criminal procedure class after which we discussed it for for the remainder of the 2 hour session.]
A guest will be contributing a post discussing the oral arguments, and particularly focusing on the Judges' questions. But for now, let me offer a few observations.
The questioning was quite active and spirited. Newly-appointed Chief Judge Jonathan Lippman and Judges Robert Smith and Eugene Pigott were especially active. Judges Carmen Ciparick and Victoria Graffeo also asked several questions. Judge Susan Read asked 2 or 3. I didn't hear Judge Theodore Jones ask any.
Here's my brief take. Lippman seemed extremely troubled by the notion of government being permitted to use technology to follow anyone or everyone without being required to have some good investigative reason in each case for doing so. Smith seemed rather incredulous that the government could really be suggesting that people should reasonably expect that someone will sneak underneath their cars, attach a tracking device, and then monitor their movements. He also wondered if the warrantless electronic monitoring would only be limited when the government began monitoring nice people, instaed of just undesireables.
Pigott had difficulty accepting the proposition that the police could attach a tracking device to someone's car, monitor that person's movements (for up to 65 days as in this case), and really not have any reason for doing so--and if the police had a reason, why they wouldn't get a warrant. He also inquired about the silliness of requiring drivers to put a "No Tresspassing" bumper sticker on their cars in order to manifest their expectation of privacy in being free from a tracking device.
Ciparick and Graffeo both seemed to have difficulties with each side. Ciparick's voting record would strongly suggest a sympathy for the arguments on behalf of the defendant; Graffeo's for the arguments on behalf of the prosecution. But Ciparick's questions did not particularly evince sympathies either way. And Graffeo's actually indicated some exploring of how an independent state constitutional decision would be crafted--i.e., a decision differing with the Supreme Court.
Read's few questions suggested she might think that elecctronic monitoring with a tracking device was little more than a more efficient way for police to follow a car--which was presumed to be perfectly fine if done by the police physically. And Read's voting record certainly manifests a pro-prosecution bent.
As for Jones, since he had no questions--or none that I heard--there's not much to be gleaned about him. But his voting record would certainly suggest a leaning towards the rights of the accused. [For more on the Judges' voting records in criminal cases, see e.g. Court of Appeals: What Lippman Inherited (Part 2 - Criminal Law Voting Spectrum), March 19, 2009.]
But of course, it's a very tricky business to try to determine how a judge is going to vote based upon questions at oral arguments. Some judges, sometimes, are pretty obvious. But it's not always obvious when a judge is being obvious! Let me put it this way. Based on the questions, it would not be a surprise if Lippman, Smith and Pigott all voted that the police must have some justification--a warrant supported by probable cause, or maybe just reasonable suspicion like the court requires for canine sniffs--before attaching a device to a car and then electronically monitoring a persons' movements. Based purely on voting records, it wouldn't be a surprise if Ciparick and Jones also voted that way. Graffeo's vote wouldn't be a surprise either way--her voting suggests one way, her questions seem to suggest the other. As for Read, a vote for the prosecution would not be surprising at all.
Having said all that, it would not be a shock if the judges all voted the opposite. Except, perhaps, for the Chief and Smith, both of whom expressed great concern for the government's position.
We shall see.
At the very least, however, the questions at oral argument left no doubt that the Judges were "hot" on this case--i.e., very well prepared and very aware of the issues and their ramifications. I would be very surprised, as well as extremely disappointed, if the Judges on NYCOA did not reject (expressly or not) the Supreme Court's not-a-search-so-anything-goes nonsense. I fully expect NYCOA's analysis of the issues, understanding of their significance, and ultimate resolution of the case to be far superior to what has become customary from the Supreme Court.
Three important developments in the courts. Yes, 3 out of many. But 3 recent ones that seem particularly noteworthy and, collectively, give a sense of the status and direction of judicial decision-making in the country.
Let's look at the first one now, and the other two in the next post.
The Iowa Supreme Court last week ruled that the state must permit same-sex marriages. The court ruled, in Varnum v. Brien, that the state law limiting marriage to opposite-sex couples discriminates against gays and lesbians, and that such discrimination violates the Iowa state constitution's guarantee of equal protection. The court's ruling was unanimous!
Iowa's high court disposed of the usual nonsense offered to justify laws prohibiting same-sex marriage. Among these:
There's actually no discrimination because gays and lesbians can marry members of the opposite sex just like everybody else.
Gays and lesbians are not sufficiently victimized by discrimination to be entitled to constitutional protection.
Traditional marriage will be undermined if same-sex marriage is allowed.
The purpose of marriage is to promote procreation.
Etc., etc., etc., including the unexpressed but underlying view that God disapproves homosexuality.
There being no legitimate reason to ban same-sex marriages, the Supreme Court of the Hawkeye State ordered that they be allowed.
Critics immediately labeled the decision "judicial activism." If that's a criticism of the court's enforcement of constitutionally guaranteed equality, then it evinces a less-than-serious regard for that guarantee. If it's a criticism of the court's interpretation of equal protection, then it suggests no more than a disagreement with the court's view. But neither of those provides any clue as to the basis for the disagreement.
The charge of judicial activism is closely tied to a related criticism--i.e., that such a decision should have been left to the state's legislature. To be sure, court's should be quite hesitant to render decisions contrary to long-held traditions, customs and beliefs of the citizenry. Courts in our tripartite form of government should typically defer to the will of the people as expressed through their representatives in the more democratic branches--i.e., the executive and legislative branches which are more accountable to the voters. And courts in a democratic society must be cautious about rendering decisions that are so unpopular or so far ahead of the public (or otherwise so far removed from the will of the people) that respect for the judiciary is seriously undermined.
BUT, of course, constitutional rights--whether they be free speech, press, religion, due process, equal protection, or any others--are not up to the legislature. They are not up to a vote. That's precisely why they are enshrined in a constitution--the written fundamental law. And that's precisely why we have an independent judiciary to enforce them. This is pretty basic stuff. This is the difference between societies with constitutional rights that are for real, and those that have them for show. Between those with courts that enforce those rights when they need enforcement, and those whose courts do so only when its no big deal. [For more on the nonsense about judicial "activism" versus "restraint," see my Judicial Activism, Judges Speech, and Merit Selection: Conventional Wisdom and Nonsense, Albany Law Review, vol. 68, pp. 557-76, 2005.]
Certainly there are some who dislike the Iowa court's decision. And just as certainly, they are not all fools and knaves. But instead of the ignorant protests that the court should have left the issue to others, critics of the decision should offer some bona fide justifications for prohibiting same-sex marriages. In Varnum v. Brien, however, the Iowa Supreme Court made mincemeat of all those justifications that are typically trotted out in these cases.
So congratulations to the Iowa court. It joins the high courts of Massachusetts, Connecticut, and California. (The voters in California, however, undid their court's decision by amending the state constitution. The California court is now considering the validity of that initiative.) Additionally, the high courts of New Jersey and Vermont have required that civil unions be permitted. (As this post was being written, the Vermont legislature overrode its governor's veto and passed a law approving same-sex marriages.)
Here in New York, we have the recent decision of our high court, the Court of Appeals, which approved the state's law restricting marriage to opposite-sex couples. That 2006 decision, Hernandez v. Robles, is fast becoming even more obviously the regressive embarrassment that it is.
Nevertheless, our shame in the Empire State should not dim the delight and optimism that all those who take equal rights seriously should feel from the decision of the Iowa Supreme Court, and from the continued progress that it represents.
For example, look at what's depicted in Graph 1. It's the most evident aspect of Scalia's and Thomas's record, and the easiest to identify and label. It's the politically conservative character of their voting.
