Why I Loved Sandra Day O'Connor

Source: Annenberg Public Policy Center

We learned last week that she had passed away. We knew it was coming. We knew she was quite ill and that the Justice O'Connor we knew had already left us. But we are, nevertheless, newly aggrieved that she is gone.

I didn't know Justice O'Connor well on a personal or social level. But I did have the opportunity to meet her and to spend some time chatting informally several times. The first time was in February 1986 when she was escorting the Supreme Court Fellowship finalists, then a few times during my fellowship year, and once or twice again at some event at the Court or elsewhere.

Credit: Alan Day/Western Horseman

We usually just engaged in small talk. Nothing jurisprudential or otherwise profound, except for our shared, profound love of the Arizona desert. She would speak of her home in the Southwest and growing up on a cattle ranch--a real "cowgirl of the Arizona desert." I would talk of my two Army tours at Fort Huachuca, Arizona, and riding on post for hours every weekend--a wannabe cowboy. I confess feeling a bit special that she would remember me and our Arizona chats each time we met.

So yes, for that reason alone she has had a special place in my heart.

(A dear friend of mine who taught at the University of Arizona became close to her in her latter years on the bench and thereafter, and everything he told me about Justice O'Connor confirmed that my heart was in the right place.)

But let me speak as one who follows the Supreme Court, and who believes that the Court is at its best when it protects civil rights and liberties--limited only by legitimately overriding interests. I have certainly not always agreed with Justice O'Connor. Though she might well have had the better position on many issues.

[Yes, there's Bush v. Gore (2000), perhaps the most dishonest, unprincipled Court decision of the modern era--regardless of how one feels about the ultimate outcome. Her vote in the bare majority was inexcusable. Later in life, she seemed to recognize that.

N.B., many of the great Justices in Supreme Court history have likewise cast a deplorable vote or authored some dreadful majority opinion.]

Nevertheless, without surveying her entire body of judicial work, it would be accurate, albeit barely relevant, to say that I did agree with her on many of the most important issues of the day. Much much more important than that, however, I admired how she typically strove to strike a wise balance between the competing needs of liberty and order, as opposed to elevating some rigid ideologically-driven methodology for decision-making.

Here are just a few of Justice O'Connor's opinions that, in my view, show what a fine Justice she was:

Credit: Kevin Wolf/Invision/AP

Mississippi University for Women v. Hogan, 1982: O'Connor wrote the opinion for the 5-4 majority that the state nursing school's restriction to women was invalid sex discrimination. Rejecting the dissenters' insistence that the women-only institution was "discriminat[ing] invidiously against no one," she explained that the state was actually perpetuating "archaic and stereotypic notions" about the proper roles for men and women.

Planned Parenthood v. Casey, 1992: O'Connor co-authored a three-Justice plurality opinion to sustain a woman's right to choose. Articulating an "undue burden" standard to balance the "personal liberty" of deciding whether to carry a pregnancy to term against "the demands of organized society," she rejected the four dissenters' absurd argument that there could be no such constitutionally protected right to choose an abortion because, among other things, "the Constitution says absolutely nothing about it."

[For more on that preposterous argument, see The Leaked [Dobbs] Opinion--Constitutional Nonsense Revisited* (Part 1), May 7, 2022. Of course, Dobbs overruled O'Connor's balanced approach.]

Lawrence v. Texas, 2003: O'Connor joined the Court's 6-3 decision to invalidate Texas's law criminalizing "sodomy" engaged in by members of the same sex. She did so, in a separate concurring opinion, based on constitutional equal protection, arguing that mere "moral disapproval" does not "justify a law that discriminates among groups of persons"--notwithstanding the dissenters' reliance on "the moral opprobrium that has traditionally attached to homosexual conduct."

Grutter v. Bollinger, 2003: O'Connor authored the Court's 5-4 decision upholding the limited consideration of race to ensure the "compelling" benefits of diversity in education. But, while rejecting the dissenters' argument that racial preferences were necessarily prohibited by equal protection, she did insist that educational institutions must ensure "narrow tailoring," such that any "race-conscious admissions program [does] not unduly harm members of any racial group."

[Of course, as with her balanced approach on the right to choose in Casey, the Court recently overruled her approach to affirmative action, invalidating any consideration of race in education admissions, in Students for Fair Admissions v. Harvard (2023).]

Ewing v. California, 2003: O'Connor wrote a plurality opinion which, however, secured a majority of her colleagues for the proposition that the "cruel and unusual" prohibition of the 8th Amendment did forbid punishments that were grossly disproportionate. She rejected the view, repeated by a couple of Justices in several cases, that the Constitution prohibited only "horrid modes of punishment" such as "flaying alive, rending assunder with horses...maiming, mutilating and scourging to death." [Justice Scalia's reference to his opinion in Harmelin v. Michigan, (1991).] To O'Connor, the mere fact that the term "excessive" was not used to modify "punishments" in the 8th Amendment did not exclude the possibility that such a punishment could be "cruel and unusual."

Hamdi v. Rumsfeld, 2004: O'Connor authored the Court's opinion, holding that an American citizen imprisoned in this country as an "enemy combatant"--without charges or a hearing--does have a due process right to receive notice of the Government’s factual assertions and an opportunity to rebut them in a judicial proceeding. The dissenters argued that she was "transmogrifying the Great Writ." But she explained that, in the absence of a valid suspension of habeas corpus by Congress, "it would turn our system of checks and balances on its head" to deny a citizen the right to judicially challenge the basis for his detention government, "simply because the Executive opposes making available such a challenge."

To be sure, Justice O'Connor was not always in the majority. At least two of her dissenting opinions deserve mention as underscoring her wise sense of balance and care about preserving fundamental principles despite competing interests.

Atwater v. Lago Vista, 2001: In a case involving a seat belt violation, the majority held that the 4th Amendment permitted a warrantless arrest for any criminal offense, regardless of how minor, as well as a full custodial search and detention in a jail cell at the police precinct during "processing"--all incident to that arrest. O'Connor was appalled. Noting that the majority itself recognized that the arrest and detention of the driver--a mother with children in the back seat--was a "pointless indignity" serving no legitimate law enforcement interest, she found it incongruous that the majority could nevertheless adopt an unqualified bright line that rendered the "extraordinary intrusion" on a mere seat-belt violator to be constitutionally permissible. As she put it, "the Court's position is inconsistent with the explicit guarantee of the Fourth Amendment" that prohibits searches and seizures that are unreasonable.

Employment Division of Oregon v. Smith, 1990: In a case involving the application of a criminal drug law against the use of peyote by members of a Native American church in an ancient religious ritual, the majority reversed the decision of Oregon's high court which had ruled that a religious exemption was constitutionally required. Writing for the majority to reject any such exemption, Justice Scalia declared that the Supreme Court had "never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law." In her separate concurring opinion--joined in most part by the dissenting Justices--O'Connor comprehensively detailed how Scalia's assertion was simply dishonest and "dramatically departs from well settled First Amendment jurisprudence."

As O'Connor showed, the Court had frequently repeated that only those laws that are "essential to accomplish an overriding governmental interest" could constitutionally burden religious free exercise. Indeed, despite the majority's mischaracterization of such a test as a "constitutional anomaly," she noted that it was actually the "constitutional norm" to protect fundamental rights and prohibit racial discrimination.

Source: Sandra Day O'Connor Institute

Beyond that, she took the majority to task for insisting that an unavoidable and acceptable consequence of democratic government was to "place at a relative disadvantage those religious practices that are not widely engaged in." Citing, among other decisions, Chief Justice Warren Burger's opinion for the Court in Wisconsin v. Yoder (1972), she felt compelled to remind the majority that, "the First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility. The history of our free exercise doctrine amply demonstrates the harsh impact majoritarian rule has had on unpopular or emerging religious groups."

[I know I have spent more time on this case than others. But I find Scalia's majority opinion particularly galling in its dishonesty and callous disregard of a minority religion. For like reason, I find Justice O'Connor's separate opinion so imperative. Those who follow the Court's religious liberty jurisprudence know that the Court has done whatever it can to bypass the Smith decision. Several Justices have already made clear that the decision should be "reconsidered." It is almost certain that O'Connor's opinion will eventually be expressly vindicated by the Court.]

This has been a brief survey of some of the most significant and representative opinions of Justice Sandra Day O'Connor. Perhaps more than any other member of the Court over the last few generations, she has been a wise and candid balancer of the strong competing interests at issue in virtually all the cases that reach the Court. And unlike some of her colleagues who have seemed ideologically blind or otherwise uncompromising to disfavored or less-favored interests, or who avow fidelity to some politically induced and supposedly neutral interpretive methodology, she has been motivated by the practical realities and the real-world ramifications of her decisions. That is anathema to some Justices.

"Just apply the law" is a mantra that fails to recognize that there is almost always strong legal support for both sides in appeals at the Court. For Justice O'Connor, the actual consequences from embracing one legally supported position or the other was necessarily a foremost consideration. For that reason, her opinions made sense. Like the very best Justices in the Court's history, wisdom and decency and reality, as opposed to some cramped formalistic legalism, were the hallmarks of O'Connor's jurisprudence.

(Part 5) NY Chief Judge Wilson's Majority Opinions in Divided Cases

It is vital that we restore the Court

to its position of national preeminence.

--Chief Judge Rowan D. Wilson, Opening Remarks

Senate Confirmation Hearing, April 17, 2023 

 

At Columbia Law School

In previous posts in this series, we reviewed Rowan Wilson's eventual selection to sit on New York's highest court in 2016 by then-Governor Andrew Cuomo, and his nomination to be Chief Judge this past April by Governor Kathy Hochul. We then looked at a few of his dissenting opinions to get a sense of the legal principles that presumably are important enough to him to disagree publically with his colleagues, first in criminal cases and then civil. In the last post, we focused on his dissent from a particularly disconcerting decision of his Court applying its so-called "special duty" rule to reject any legal responsibility of a municipality, despite the dreadful consequences suffered by a victim because of the repeated failures of the municipality's officers.

Although we have emphasized Wilson's dissenting opinions--they are typically the most revealing about a judge--he has actually authored his fair share of majority opinions. During his tenure on the Court, he has averaged nearly eight signed opinions for the majority annually. Except for Chief Judge DiFiore, who wrote more than the others, the rest of his colleagues had virtually the same average during that period--some slightly less, some slightly more. 

So let's take a look at a few of Wilson's majority opinions. And more specifically, let's look at a few of the more revealing ones, where the Court was divided and his dissenting colleagues raised competing arguments which he necessarily rejected in favor of his own. First, a couple of Wilson's majority opinions in criminal cases:

People v Regan, Slip Op 01353 (March 16, 2023)

This is the decision for which Wilson was most vigorously criticized by Republican senators during his confirmation proceedings and which has been condemned by some sexual-assault victim advocates.

Speaking through then-Judge Wilson's majority opinion, the Court of Appeals reversed a conviction for rape and burglary on the basis of a violation of the state constitutional right to a prompt prosecution. The defendant was accused of raping the complainant in August 2009, but the prosecution waited more than four years to seek an indictment. In fact, the prosecution did not even seek a warrant to obtain the defendant's DNA until more than three years after the rape complaint. Beyond that, the prosecution, when asked, could not offer any justification for most of the delay. 

Two Judges on the Court, Michael Garcia and Madeline Singas, would have upheld the conviction. As Judge Singas put it in her lone dissenting opinion:

The People lack a credible justification for the 31–month delay in seeking a search warrant for defendant's DNA. But there is no evidence that their actions, or lack thereof, were taken in bad faith toward defendant, with the aim of prejudicing his ability to defend himself....[D]ue process does not require the drastic remedy of dismissing this case. Where the crime is of the utmost severity, defendant was not incarcerated, there was no public accusation, and defendant has shown no actual prejudice from the delay, dismissal of the accusatory instrument is unwarranted. 

Judge Wilson, writing for himself and three of his colleagues, had a different take on the state's constitutional law:

Because of the substantial delay—as to most of which the People offer no explanation whatsoever—the constitutional right to prompt prosecution, embodied in the due process clause of our state constitution, was violated. We must reverse. [Emphasis added.]

Reviewing the Court's prior decisions, Wilson noted that "we have been much more solicitous of the People when they offer even a colorable explanation for their delay." But, as he repeated several times in his opinion, "the record and the briefing in this case are devoid of any explanation for the People's delay, although the People had multiple opportunities to provide one."

Concluding his opinion, Wilson weighed the costs and, in the Court's view, the overriding benefits of the state's constitutional prompt prosecution policy:

Vacating any conviction on prompt prosecution grounds runs a genuine risk that a guilty person will not be punished, or, as in this case, not finish out his full sentence. However, vital societal interests can overcome that cost. Our jurisprudence ensures that trials are fair and accurate; it also spurs prosecutors to take crime seriously and give all parties the prompt closure they need to move on with their lives. 

The constitutional guarantee of a prompt prosecution places a burden on the state, when prosecuting crimes, to do so with alacrity... Our constitution allows for modest unexcused delays; it allows for lengthy justifiable delays. But it does not allow for lengthy unexplained or, as here, inexplicable delays caused by lethargy or ignorance of basic prosecutorial procedures. The constitutional prompt prosecution guarantee benefits defendants, victims and society at large, and it is the role of the courts to protect it. In this case, the police and prosecutors did not take defendant's constitutional rights or the complainant's sexual assault seriously; they did not act expeditiously with regard to either. [Emphasis added.]

No question, that was a tough one. For the purposes here, there are at least two salient characteristics of Wilson's position. First, as we have seen previously in his dissents in criminal cases, he vigorously supports the rights of the accused. Crime control versus due process? It's pretty clear he sides with the latter when the balance is close. Second, he adheres to New York precedent and state constitutional law where federal precedent would be less protective.

The same two patterns are apparent in the next case we review.

People v. Gordon, 36 NY3d 420 (2021)

In this search and seizure case, the police had observed incriminating drug activity inside the defendant's home. They then obtained a warrant to search “the person of [the defendant] and the entire premises.” The question before the Court arose, not from the officers' search of the defendant and his residence, but of the two cars on the property--one in the driveway and one in the backyard. 

The evidence found in the vehicles was suppressed by the trial judge. The affidavit for the warrant had made no mention of the vehicles or given any reason to believe that they were involved in criminal activity. The Appellate Division affirmed the trial court's decision.

At the Court of Appeals, the prosecution urged the Court to adopt the rule adopted in other courts, federal and state, that authority to search the premises reasonably includes searching vehicles on that property. In a 4-3 decision, the Court in Gordon rejected that rationale. The 3 dissenting Judges argued that the Supreme Court would allow a search of the vehicles and that the Court of Appeals had not previously adopted a more protective rule. 

Echoing the prosecution's reliance on the Supreme Court's decision in United States v. Ross (1982), the dissenters insisted that:

Where a search warrant authorizes the search of premises, a separate showing of probable cause is not required to search containers found on the designated premises, if the object of the search could be found therein...The [Supreme] Court broadly stated that a “lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search [and] this rule applies equally to all containers” [quoting Ross, again]...There is no “constitutional distinction between ‘worthy’ and ‘unworthy’ containers...the central purpose of the Fourth Amendment forecloses such a distinction” [Ross again].

In sharp contrast, the majority opinion authored by Wilson relied on the Court of Appeals' own precedents. [I have omitted the citations in these excerpts.] As those numerous prior decisions cited throughout Wilson's opinion make clear:

The requirement that warrants must describe with particularity the places, vehicles, and persons to be searched is vital to judicial supervision of the warrant process. Warrants “interpose the detached and independent judgment of a neutral Magistrate between the interested viewpoint of those engaged in ferreting out crime and potential encroachments on the sanctity and privacy of the individual.” 

To further that role, our constitution assigns to the magistrate the tasks of evaluating whether probable cause exists to initiate a search and defining the subjects to be searched....The particularity requirement protects the magistrate's determination regarding the permissible scope of the search. Thus, to be valid, a search warrant must be “specific enough to leave no discretion to the executing officer.” So important is the role of the neutral and detached magistrate that we have in the past parted ways from federal constitutional jurisprudence when we believed that an emerging rule of federal constitutional law “dilute[s] ... the requirements of judicial supervision in the warrant process." [Emphasis added.] 

Among the Court of Appeals' precedents Wilson relied on were:

People v. Keta [1992] [declining to incorporate a federal rule permitting warrantless searches of business establishments in light of the paramount importance of “advance judicial oversight” under Article 1, Section 12 of the State Constitution]; P.J. Video [1986] [distinguishing federal constitutional law in part of the grounds that New York imposes a “rigorous, fact-specific standard of review ... upon the magistrate determining probable cause”].

Wilson added that, even in the absence of all those independent state precedents, the majority would still not adopt the less-protective Supreme Court jurisprudence embraced by the dissenters:

Even were we writing on a blank slate, we would not adopt the rule advocated by the People. The touchstone of the [New York] constitutional protection for privacy, under Article 1, Section 12 of the State Constitution, is whether a person has a reasonable expectation of privacy. Those expectations must at times give way to “compelling police interest[s].” Even then, the permissible “scope of a search has been carefully limited” by the requirement for probable cause and a particular description of the subjects to be searched. Those limits have not been honored in this case. [Emphasis added.]

Finally, directly addressing the dissenting opinion with Court of Appeals' precedents that stand for the opposite of what the dissenters argued, Wilson wrote:

[T]he dissent never addresses the fundamental tenets of our search warrant jurisprudence: it is the magistrate, and not the police officer, who determines the scope of the search conducted pursuant to a warrant...That determination must be based upon the factual allegations presented in the warrant application. To satisfy the constitutional requirement for particularity, the description setting forth the search must “leave no discretion to the executing officer[s].” If, as the dissent says, trafficking in drugs provides probable cause to search vehicles, the officers can set forth the results of their investigation...and make their case to the magistrate. If that proof is insufficient to convince the magistrate to authorize a search of the vehicles, allowing a search because the vehicles are located on a premises would constitute an unconstitutional bootstrapping. [Emphasis added.]

As we have seen in Wilson's other criminal law opinions, whether a dissent or a majority, he takes the rights of the accused seriously. Some, such as those Judges in the majority when he was in dissent, and vice-versa, believe he gives too little weight to the interests of law enforcement. In most criminal cases, the question is always about balancing. It has been in the criminal cases we have discussed here and previously. And these cases have shown that Wilson is less willing than others to compromise the rights of the accused in order to facilitate the interests of crime control.

Moreover, we have seen that he makes no apology for deciding constitutional issues in New York cases based on New York law and on New York Court of Appeals precedents. That may seem such an obvious role and responsibility of a state high court. But there are still those, in New York and in other states, among the judges as well as the lawyers who argue before them, that relying on independent state constitutional law should be the exception, and that applying less-protective Supreme Court case law is the default.

Of course, that unfortunately common notion is directly contrary to an axiom of our federal system of government in which states are sovereign to have their own laws and make their own decisions. The limitation--again, of course--is that they must not violate federal law. In the criminal cases we have been discussing, that simply means that a state court decision must not violate a federal constitutional right by affording less protection to the accused than the Supreme Court requires. But there is certainly no requirement whatsoever that a state court adopt a less-protective federal Supreme Court standard. 

I have spoken and written a great deal about the axiomatic right and responsibility of state courts in our federal system to engage in independent state-based decision-making. (See e.g., Supreme State Courts: Protecting Rights and Liberties Despite the Supreme Court, 85 Albany Law Review (2022).) More importantly, many years ago, the Court of Appeals itself made the point unqualifiedly clear. In People v. Barber [289 N.Y. 378 (N.Y. 1943)], rejecting the argument that it should follow a recent decision of the Supreme Court, the Court of Appeals protected religious liberty more than Supreme Court precedent required. Speaking through Chief Judge Irving Lehman, the Court of Appeals reminded advocates:

Parenthetically we may point out that in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States. [Emphasis added.]

It certainly seems from these majority opinions of now-Chief Judge Wilson, as well as in his criminal law dissents that we reviewed previously, that he understands the Court of Appeals' right and responsibility "to exercise independent judgment."

In the next post, we'll look at a couple of Wilson's majority opinions in civil cases.

It's Roberts' (somewhat less right-wing) Court (Part 3)

As this is being prepared, the 5-4 Court--Roberts voting with the liberals--invalidated the Louisiana abortion restrictions. More on that and on that continuing pattern below.

Source:Reuters/Leah Mills

We've previously looked at Chief Justice Roberts' breaking with his conservative colleagues and aligning with the Court's liberals to help form majorities in politically charged cases dealing with Obamacare and immigrantion (see Part 1), and LGBTQ rights and the death penalty (see Part 2). The point is not that I applaud his doing so (although I do, and wish he did so more regularly). The point is that he has been doing so and, whatever else political liberals may think of him, it simply cannot be denied that on some major issues he has prevented the Court from veering off too far to the right.

Let's finish this series by recalling a few other decisions reflecting the same pattern. Perhaps these cases, like those we've previously discussed, evince a Chief Justice concerned primarily about the legitimacy of his Court, i.e., rebuffing criticisms that it is just another institution polarized along partisan lines. Perhaps it's Roberts holding his Court together by giving the benefit of the doubt to the Court's liberals--at least every once in a while in close cases where he could honestly support either side. Perhaps it's the Chief Justice upholding the integrity of the Court's authority by supporting precedents against which he had originally dissented (as he just now did again in the Louisiana abortion case). Or perhaps it's actually the Chief Justice changing his mind after some time for reconsideration.

Again, whatever the reason--and likely there are different reasons in different cases--the emerging pattern is clear. Roberts has given political liberals, both on and off the Court, some significant victories

(Of course this has not escaped the President's notice--and ire.)


Okay, enough with preliminaries. Let's get to the last few cases we'll look at in this series that illustrate the pattern that may well be the most salient characteristic of this otherwise quite politically conservative Court.

Church and State. Late last month, the Chief Justice joined his liberal colleagues in refusing to lift the COVID-crisis restrictions on church attendance that had been imposed by California's governor. Roberts' 4 conservative colleagues all dissented. Justice Kavanaugh, in an opinion joined by Justices Thomas and Gorsuch, argued that the numerical limitations on gatherings and the requirement for social distancing unconstitutionally discriminated against religious exercise. This was so, according to Kavanaugh, because other similarly situated  activities did not face such restrictions. [Alito's dissenting vote was simply noted.]

Although the Court's decision was merely an order, Roberts' authored an opinion explaining why the majority got it right. The standard for granting emergency relief is that the constitutional merits are already "indisputably clear." Roberts deemed it "quite improbable" that the religious objectors could show that. Two basic reasons. First, despite the dissenters' claim, "only dissimilar activities...in which people neither congregate in large groups nor remain in close proximity for extended periods" are treated more leniently than churches. Second, the need for restrictions "during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement," which the Constitution "principally entrusts" to the "especially broad" latitude of the states' political officials. And such matters of public health and safety should usually "not be subject to second-guessing" by the federal judiciary.

In short, the Chief Justice disagreed with his conservative colleagues that the religious objectors had demonstrated that they were being treated disparately or too harshly. South Bay United Pentecostal Church v. Newsom, 2020.

Three years earlier, in another church-state case, Roberts held the middle ground to which some of his conservative colleagues and some of his liberal colleagues objected--naturally for different reasons. Writing the opinion for the Court, the Chief Justice explained that the ineligibility of religious organizations from a state program that subsidized the safety improvement of school playgrounds violated free exercise--i.e., the disqualification discriminated on the basis of religion, despite the purely secular purpose of the program's assistance.

Although Justices Kennedy and Alito joined Roberts' opinion in full, Thomas and Gorsuch objected that the ruling was too limited--i.e., it should not have been limited to playground safety, nor to secular versus religious uses.

While Justice Kagan fully joined Roberts' opinion, Breyer wrote a separate concurence to emphasize that the program in question, as well as the Court's ruling, was limited to a public service--here "the health and safety of children." The remaining liberals, Justice Sotomayor joined by Ginsburg, dissented on the ground that directly funding a religious organization violated the constitution's non-establishment mandate.

Here, as we have seen elsewhere, the Chief Justice struck a balance. He crafted a ruling that was narrow enough to secure a majority, despite differences or even dissents from some of his more ideologically-driven colleagues--conservative or liberal. Trinity Lutheran Church of Columbia, Inc. v. Comer, (2017).

Right to Choose/Abortion Rights. Four years ago, in Whole Woman’s Health v. Hellerstedt, the Court ruled that a Texas law, that limited which physicians and facilities could provide abortion servoces, imposed an unconstitutional "undue burden" on a woman's right to choose. Chief Justice Roberts dissented, along with his conservative colleagues, Justices Thomas and Alito. [Justice Scalia had recently passed away and his vacancy had not yet been filled.]

Since that decision, Justice Gorsuch was appointed to fill Scalia's seat, and Justice Kavanaugh was appointed to replace Justice Kennedy who had retired in the interim. With Kennedy now missing from the 5 Justices who comprised the majority in Whole Woman’s Health, the Court was confronted this term with another case term involving similar abortion retrictions. This time the state was Louisiana, but the restrictions, the prospective consequences, and the outcome were similar. Only physicians with privileges at a nearby hospital could perform abortions. The restrictions would drastically reduce the availability of abortion services. The restrictions were ostensibly to protect the health of women. The restrictions, according to expert analysis, actually had minimal health-related benefits. And the Court again found such restrictions to be an unconstitutional burden on a women's right to choose.

The big difference? This time the Chief Justice sided with the liberals to give them the bare 5-4 majority. In a separate concurrence, Roberts insisted that he still believed that Whole Woman’s Health was wrongly decided. But, in a 16 page opinion in which he reviewed the reasons for stare decisis and the Court's abortion rights precedents to date, the Chief Justice set forth a jurisprudence that has become a distinctive part of his opinion and voting patterns: "The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike." [My emphasis.] Then, he concluded by applying that formula to his vote in this case: "The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law"--despite his disagreement then. June Medical Services L. L. C. v. Russo, 2020.
[Notably, Roberts signaled his thinking about this case when, in February 2019, he joined the liberals to form the same 5-4 majority to grant an order stopping the Louisiana law from taking effect while litigation was pending.]

One last one. This is one of my very favorites. I've written about it previously on New York Court Watcher.

Technological Searches. In the last few decades, the Court has seriously diluted constitutional search and seizure protections. It has done so, for example,

• by adding exceptions to the warrant requirement (e.g., warrantless searches and seizures incident to minor traffic infractions);
• by adding exceptions to the rule excluding unconstitutionally obtained evidence (e.g., the "good faith" exception);
• by diluting what is required for probable cause (i.e., the "totality of the circumstances" test);
• by diluting the 1967 landmark Katz decision which protected legitimate expectations of privacy (e.g., denying legitimacy to a host of privacy expectations);
• by (mis)using that landmark's formula in order to rule that searches are not "searches" for constitutional purposes (e.g., police searches from a hovering helicopter);
• by employing doctrines such as "third party" (i.e., if anyone else has access to information about you, then government needs no warrant or probable cause to access it);
• and "public access" (i.e., if members of the public can see you in a public place, then government can surveil you without a warrant or probable cause);
• and "tresspass" (i.e., equating search and seizure rights to property rights whereby a physical tresspass is necessary to constitute a violation);
• by limiting search and seizure protections to those specific items enumerated in the 4th Amendment.

Well, two years ago, Chief Justice Roberts joined the liberals and, in the 5-4 majority opinion he assigned to himself, he avoided or simply dispensed with some of those foregoing dilutions--to the considerable consternation of his more law and order minded colleagues. Roberts wrote that a warrant supported by probable cause is required for law enforcement to access cellphone location data about a suspect from a cellphone company. No, the fact that some entity, the company itself, already had access to the information (i.e., the third party doctrine) didn't allow the government to have warrantless access. No, the fact that the data did not belong to the individual, but to the company (i.e., the property rights/tresspass doctrine), didn't mean that the individual was without some entitlement to privacy from the government. No, the fact that the individual's movements and location in public might be observed by members of the public (i.e., public access doctrine), didn't mean that he had no legitimate expectation of privacy from government surveilance. Etc.

Yes, acknowledged Roberts, the Court's opinion six years earlier in U.S. v. Jones, authored by Justice Scalia, did assert that the warrantless monitoring of a suspect's movements and location was unconstitutional because the police had "tresspassed" on his property--i.e., by attaching a GPS device to his vehicle without his consent. But, the Chief Justice pointed out that a majority of the Justices in Jones had actually reaffairmed the Katz "legitimate expectation of privacy" doctrine. There was Justice Alito and the 3 liberals who joined his concurring opinion, stridently rejecting Scalia's tresspass analysis in favor of Katz; and Justice Sotomayor who authored a separate concurrence, joining Scalia but also reaffirming Katz.

As Roberts explained in declining to apply some of the previously adopted doctrines, "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." He went further: "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 concerns expressed by the Chief Justice in his majority opinion sounded much more like those of the liberal Justices who had previously dissented while the Court was diluting search and seizure protections. And Roberts' conservative collegues in this case understood that and objected to his aligning with the liberals in refusing to apply those law and order doctrines. Carpenter v. U.S., 2018.
[For more on the Carpenter decision, see The Supreme's Cell Location Data Decision: Right, Revealing, and a Real Milestone, June 26, 2018.]

There are other cases--an increasing number of them at that--where Chief Justice Roberts has indeed established a distinct pattern of parting with his usual ideological allies on the Court and siding with the liberals to form a majority on some major, highly-charged issues. That point, I believe, has been well made, and continuing further is not only uneccessary but perhaps fatiguing. So we shall end here.

Of course, decisions handed down by the Court in the next few days, as the current term comes to a close, may well make all of the foregoing seem like wishful thinking based on a a few isolated exceptions. But the pattern is there, it is clear, and there no particular reason to think that it won't continue.

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 Rebuttal; The 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.

Supreme Cases Awaiting Decision

With less than two weeks left before the Supreme Court finishes its term and begins its summer recess, there remain several major--i.e., possibly blockbuster--decisions yet to be announced. They deal with presidential power to restrict foreign entry, partisan gerrymandering, privacy from technological surveillance, union dues, and internet taxation.

Here's a brief recitation:
Presidential Power and Foreign Entry
Trump v. Hawaii. This, of course, is the challenge to President Trump's so-called "travel ban"--the 3rd one. The core substantive issues are whether the ban is overly broad (i.e., whether it restricts the entry of a larger category of foreigners into this country than is reasonably necessary for the purported national security purpose), whether it violates constitutional non-establishment principles by taking sides against Muslims, and even whether the president has the authority to issue such an order under the Constitution or congressional legislation.

Partisan Gerrymandering
Gill v. Whitford. The Court must decide whether courts may even hear cases that challenge a redistricting drawn by a state legislature that favors the majority political party.  If the answer to that is yes, then the Court must decide whether hyper-partisan gerrymandering is constitutional--e.g., where the party in power carves districts so that it wins a significant disproportion of the state's district elections, even though the other party actually wins most of the votes statewide.

Privacy from Technological Surveillance
Carpenter v. United States. This case presents the Court with an ever increasing concern about privacy rights amidst the current technological revolution. The issue involves government surveillance of someone's whereabouts and movements, without a warrant and without probable cause, through the use of data obtained from a cell-.phone company. This critical question involving privacy rights arises largely because of two 4th Amendment doctrines created by the Court.
The first is the so-called "third party" doctrine." Under that doctrine, the Court has ruled that someone has no constitutional rights against the government searching through any information if anyone else lawfully has that information--e.g., information about someone's spending obtained through credit card company records; information about phone calls someone has made and received through a phone company's records. So here, the cell-phone company lawfully has data about the location and movements of someone's cell phone and, thus, under the "third party" doctrine, government may search that data without a warrant or probable cause.
The second is the "trespass" theory of the 4th Amendment, recently revived by the late Justice Scalia in a majority opinion over a blistering concurring opinion by Justice Alito. In that case (U.S. v. Jones, 2011), the unanimous Court held it was unconstitutional for government to monitor a driver's movements, without first obtaining a warrant, through means of a GPS device attached to the driver's car. Scalia declared that the surveillance was an unconstitutional search because the government had trespassed on the driver's private property, his car, by attaching the GPS without his consent. Justice Alito criticized Scalia's reasoning on the ground that the trespass-upon-property theory of the 4th Amendment had long been discarded and because it is entirely inadequate to protect legitimate privacy concerns today inasmuch as most technological surveillance requires no trespass at all--e.g., drones, satellites, cameras, etc.
We'll see if a majority of the Court rejects, limits, or retains those doctrines.

Union Dues
Janus v. American Federation of State, County, and Municipal Employees. The question here is the validity of "agency fees." These are the reduced union dues imposed on public employees who are not members of the public sector union which, nevertheless, is obligated to represent the non-members in collective bargaining and other worker-related matters. The competing interests here are, on the one hand, the fairness to the union and its members to have non-members contribute their "fair share" to help defray the costs incurred by the union in representing them. On the other hand, there are the First Amendment rights of the non-members who do not wish the union to speak for them and do not wish to associate with the union.
At stake is the 1977 precedent, Abood v. Detroit Board of Education, where the Court upheld such non-member dues.

Internet Taxation
South Dakota v. Wayfair, Inc. At stake in this case is another precedent, this one, the 1992 decision in Quill Corp. v. North Dakota, where the Court invalidated state sales taxation on internet sales unless the seller-company had an actual physical presence in the state. The issue for the Court is whether the extraordinary increase in internet commerce and the omnipresence of "virtual storefronts"--on smartphones and tablets and other modern technological devices--makes the physical presence requirement outdated. Also of concern is the unfairness to traditional retailers with actual storefronts who have been subjected to state sales taxes while internet businesses have not.

The decisions in these cases could bring significant change to the law in several enormously important areas of government power, politics, business, working arrangements, and privacy. Indeed, by all accounts, some real blockbusters are expected as the Supreme Court's comes to a close.

A Supremely Blockbuster New Term?

For much of the last two terms, the United States Supreme Court was short one Justice. The vacancy created by the death of Justice Antonin Scalia in early 2016 remained unfilled until the appointment of Neil Gorsuch late last term. During that interim period, the eight sitting Justices came to a 4-4 draw in several cases; in other cases, the competing ideological sides obviously compromised in order to render some decision; and in still other cases, the Justices either declined to grant review or they did grant review in cases that would be heard when there would be a full complement of nine Justices.

For the 2017-18 term of Court that is to begin Monday, October 2--the iconic First Monday in October--the cases that are already on the Court's docket strongly suggest that this will be a year of blockbuster decisions. It is always possible, of course, that the Justices will bob and weave and avoid confronting some of the hot-button constitutional questions at the heart of these cases. But with four Justices who lean very politically conservative, and four very politically liberal--oftentimes leaving Justice Anthony Kennedy to cast the deciding vote-- the Court can be expected to resolve some very ideologically-contentious issues with some very ideologically-charged rulings.

Here are several of the most significant issues the Court will tackle this term:

Partisan Gerrymandering
As in extreme gerrymandering. As in extreme mathematical efficiency to virtually guarantee that the political party in power remains in power. As in making it extremely difficult for that party to lose elections.
So, for example, in the case to be heard by the Court this week, Gill v. Whitford, the Republican party in power in Wisconsin has carved up voting districts in the state in ways that severely dilute the effect of Democratic votes. This gerrymandering has, in fact, produced a near certainty that the Republicans retain control of the legislature. Indeed, even when the Democratic party has won a substantial majority of the statewide vote in recent years, the Republicans have still won a substantial majority of the voting districts.
[Yes, Democrats have done the same thing when they can.]
Racial gerrymandering is unconstitutional. But what about partisan gerrymandering? Is it just another "political question" which the majority of the Court believes should be resolved in the political process? Or is partisan gerrymandering, at least in extreme cases, a fundamental violation of our democratic voting process that calls for a judicial redress?

Gay Rights/Religious Liberty
What happens when equal rights for gays and lesbians competes with religious objections to supporting their life choices? In Masterpiece Cakeshop v. Colorado, a baker refused on religious grounds to make a cake for a same-sex wedding. Colorado ruled that this refusal was a violation of the state's public accommodation law which, among other things, prohibits sexual-orientation discrimination.
There are many legal and constitutional ingredients relevant to this case. Nevertheless, it is a pretty sure bet that predetermined positions on LGBT rights will be reflected in the voting of most, if not all, of the Justices. For example, it is very very difficult to conceive of Justices Ginsburg and Sotomayor siding with the religiously objecting baker against the same-sex couple. It is at least as difficult to imagine Justices Thomas and Alito and Gorsuch siding with the same-sex couple against the baker. On the other hand, it is not difficult to see Justice Kennedy--or even Chief Justice Roberts--actually balancing the competing interests and determining the outcome of the case.
There are a few wrinkles that may affect the Court's decision. One has to do with the requested design of the cake in question--would the baker be required to include a message on the cake that expresses support for same-sex marriage, perhaps infringing on the baker's free speech?
Another wrinkle involves the current state of 1st Amendment religious liberty under which any "otherwise vaild law" defeats religious objections--thanks to the 1990 Scalia-authored decision, in Oregon v. Smith, derogating the religious freedom of Native Americans. [See Justice Scalia's Record (Part 1), New York Court Watcher, Feb. 18, 2016; The Fall of Free Exercise, 70 Alb. L. Rev. 1399 (2007).]
One last wrinkle to mention is that Colorado apparently does allow exemptions from its public accommodations law--e.g., an African-American baker need not include a white supremacy message. That raises the question of whether the state is discriminating against religious requests for exemptions.

Technology-Enabled Searches
When seeking a cell phone company's location records on a cell phone user, must law enforcement first obtain a warrant? Or as the Court has often styled the issue in other cases, when the government seeks to obtain and examine such records, is that a "search" within the meaning of the 4th Amendment? If it is, then a warrant supported by probable cause is required. If it's not a "search," then no warrant is required. This is the question presented in Carpenter v. U.S.
Whether or not the Court will view obtaining and examining cell phone location records as a "search"--thus triggering the warrant requirement--depends upon whether or not a majority of the Justices adhere to some search and seizure doctrines it has applied in the past. Some of these doctrines were, until recently, thought to have been permanently rejected by the Court. Others have never been explicitly rejected, but seem to have been weakened in Court decisions involving technology.
One of these doctrines is that a search is not a "search" unless there is a "trespass"--some illegal entry or contact--by the government on one of the things mentioned in the 4th Amendment. Sooooo, since the location records kept by a cell company do not belong to the cell phone user, there is no "trespass" upon something he owns and, thus, there is no "search." Additionally, cell phone location records are obviously not mentioned or even implicated by any of the items listed in the 4th Amendment which was ratified in 1792 (or its state government application via the 14th Amendment of 1868). 
Then there's the 3rd party doctrine. Since the cell phone company--the 3rd party--has access to the cell user's location, there is no "reasonable expectation of privacy" in such records and, thus, the government's examining of those records is not a "search" under the 4th Amendment.
[Hey, those aren't my doctrines. Like others--other courts, other judges and justices, other rulings--I disagree with those doctrines and, indeed, believe they are preposterous and were developed to approve very questionable, warrantless searches. See Is a Search a Search.]
We might see whether the Court abandons or at least further undermines those doctrines--or sticks to them.

Union Dues
May a state require non-members of a public employees union to pay some reduced dues (aka "agency fees") to help defray the expenses of collective bargaining and other services that the union provides for all the covered public employees, whether members or not?
The Court approved such dues in its 1977 decision in Abood v. Detroit Bd of Ed. But since then, some of the Justices have made clear their disagreement with Abood. Then, in 2016, following Scalia's death, the Court split 4-4 on that issue in Friedrichs v. California Teachers Assn.
Now, in Janus v. American Federation of St, Cnty, and Munic Employees (AFSCME), which the Justices just granted review last week, that question is back before the Court.
The issue pits the need of public employee unions in representing the rights of the workers against the counter claims of free speech and association of non-members who do not wish to support the positions of the unions--bargaining or otherwise.
Gorsuch would seem to be the tipping vote, ending the 4-4 tie, and that should not give comfort to the unions. But will both Roberts and Kennedy agree to actually overturn Abood? Stay tuned.

Anti-Gay Employment Discrimination (possible case)
Is discrimination against gays and lesbians a violation of the civil rights laws? The 11th Circuit Court of Appeals--the federal appellate court that sits in Atlanta, GA--recently ruled, in Evans v. Georgia Regional Hospital, that discrimination against a worker because she is a lesbian does not violate Title VII of the Civil Rights Law. That 1964 law prohibits sex discrimination, but it does not explicitly prohibit sexual-orientation discrimination.
The Obama administration took the position that sexual orientation discrimination is a form of sexual discrimination. Among other things, it is based on discriminatory sexual stereotyping--e.g., a man may partner with a woman, but a woman may not; a woman may partner with a man, but a man may not. By contrast, the Trump administration has argued that sex discrimination covers no such thing.
The 7th Circuit, the federal appeals court that sits in Chicago, recently took the position in Hively v. Ivy Tech that prohibited sex discrimination does include discrimination based on sexual-orientation. Notably, that court's position was supported by several of the federal judiciary's well-recognized heavyweights, including Judges Diane Wood, Frank Easterbrook, and Richard Posner--the latter authoring a separate concurring opinion arguing the irrational bigotry of discrimination against gays and lesbians, and even listing some gays throughout history who have contributed immensely to civilization. 
With this split among the circuits, and the challenge of Posner to any legitimate defense of sexual-orientation discrimination, it seems very likely that the Supreme Court will grant review to address the issue.

Gun Rights (possible case)
Does it violate the individual right to bear arms to require a license to carry a concealed weapon, based on some actual need for self-protection? The D.C. Circuit recently held that the D.C. law requiring such a license was invalid. That the law was contrary to the Supreme Court's 2008 decision, in D.C. v Heller, that the 2nd Amendment guarantees an individual right to bear arms.
This D.C. Circuit decision, in Wrenn v. D.C., seems to conflict with the 9th Circuit's 2016 decision in Peruta v. San Diego County, upholding a similar concealed-carry licensing requirement. Adding to the intrigue, the Supreme Court, just this past spring, declined to review that 9th Circuit's decision. Adding to that, Justices Thomas and Gorsuch dissented from the Court's decision not to review that case. Those dissenters argued that the Supreme Court was disparaging gun rights.
So it's pretty clear how Thomas and Gorsuch would vote if the Supreme Court now granted review in Wrenn in order to resolve the conflict among the circuits. But how the others would vote--especially after denying review in Peruta--is another question.

Trump's Travel Ban (moot?)
President Trump's original travel ban was replaced by a second. And last term, by a  6-3 majority in Trump v. Int'l Refugee Asst Project, the Court partially upheld the orders of the courts below that had temporarily barred enforcement of that executive order. The Court did, however, unanimously reverse the lower courts "with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States"--i.e., the Trump ban could be enforced against them. At the same time, the Court agreed to hear the case this term.
However, on the way to the hearing, which had been scheduled for this week, the Trump administration promulgated travel ban 3.0. That certainly seemed to make the case involving travel ban 2.0 moot--i.e., no longer an ongoing case or controversy in need of judicial resolution. So the Court cancelled oral arguments and asked for briefing on the question of mootness.
In short, the original case involving travel ban 2.0, which had been granted review, is no longer on the Court's schedule.

There are surely other significant cases which the Court has already accepted for review, and others which it will accept. But the foregoing six--which have been granted review or are very likely to be granted soon--are certainly among the most hot-button and ideologically-charged among the cases that promise to make this 2017-18 term a blockbuster one.

Gorsuch, Part 5: Criminal Cases--His Past IS Prologue

In the last post, we began to look at now-Justice Neil Gorsuch's record as a federal appeals judge. [See Part 4.] We looked at his dissenting opinions--those very revealing writings--during his time on the 10th Circuit Court of Appeals, which is where he sat immediately preceding his appointment to the Supreme Court. We focused on civil cases.

Gorsuch with Scalia
CNS photo/via Reuters

On issues as varied as worker rights, consumer protection, the right to choose, and separation of church and state, there was a clear, unmistakable pattern: ideologically ultra-conservative. Some will view that positively; others negatively. Regardless, Gorsuch's record was what it was: ideologically ultra-conservative.

Now let's turn to the criminal appeals. Again, we'll look at those opinions in which he felt strongly enough to disagree publicly with the majority of his colleagues by authoring a dissent.

Ineffective Counsel
Williams v. Jones: The majority adhered to its original decision--i.e., it declined to rehear the case--in which it had ordered the lower court to provide relief to the defendant whose constitutional right to counsel was violated. The attorney--whose deficiency was not in dispute--had threatened to withdraw when the defendant wanted to accept the prosecution's very lenient plea offer; afterwards, the defendant was tried and received a very harsh sentence. Gorsuch dissented; among other things, he argued that the defendant was not prejudiced by his lawyer's incompetence, because the ensuing trial was fair.

Hooks v. Workman: The majority reversed the defendant's death sentence on the ground that his lawyer was "woefully inadequate" at the sentencing hearing. The court explained that, in the lawyer's presentation, "[e]vidence of family and social history was sorely lacking; the mental-health evidence presented was inadequate and quite unsympathetic; and the lawyer not only failed to rebut the prosecution’s case in aggravation but actually bolstered it." Gorsuch dissented; he argued that the defendant was not prejudiced by the lawyer's "alleged deficiencies" because the jury would likely have voted for the death penalty anyway.

Section 1983 Liability/Immunity for Unconstitutional Action
Webb v. Thompson: The majority, siding with the former suspect, ruled that the correctional officers at the local county jail would be liable to him under 1983 for a deprivation of his constitutional rights, if the facts showed that they caused his illegally prolonged detention before he was brought before a judge for a probable cause hearing; at the eventual hearing, the prosecution dropped all the charges. Gorsuch dissented; he argued that, even if the officers caused the suspect's excessively long detention, it was not their duty to get him to a judge.

Cortez v. McCauley: The majority ruled that the suspect's arrest was constitutionally unreasonable and could support a claim against the police under 1983; the arrest was based solely on information that was attributed to a "barely-verbal two-year old child," that had been relayed to the police in a telephone call by a nurse, who in turn had heard it from the mother, who had allegedly heard it from the two-year old. Gorsuch dissented; he argued that the police could not be liable because, in his view, it had not been clear that the officers should not rely on the relayed alleged statement of a two-year old to make an arrest.

Interrogation
U.S. v. Bernard: The majority vacated the defendant's guilty plea; he had entered it only after the trial judge refused to suppress statements he previously made to the police who had handcuffed him, placed him in custody, and then questioned him without advising him of Miranda rights. Gorsuch dissented; he argued that the Miranda violation was a harmless error because the defendant probably would have pleaded guilty anyway.

Search & Seizure
U.S. v. Dutton: The majority ruled that the search in question was unconstitutional and the evidence obtained should be suppressed because the warrant, which did not connect the defendant to the place to be searched, was patently invalid. Gorsuch dissented; he argued that the police presumably acted in good faith and relied on the warrant.

U.S. v. Carloss: [This one requires close attention.] The majority ruled that the defendant's rights were not violated when FBI agents went to the home where he was staying, walked to the front door and knocked, and then spoke to the defendant when he came outside from the back door; the defendant never referred to the signs saying “Private Property No Trespassing” or otherwise objected to the agents' presence. Gorsuch dissented, this time siding with the defendant on the ground that the agents had trespassed on the house despite the signs. Yes, he sided with the defendant.
BUT--and this is what's most significant here--he did so by echoing the very narrow, literal view of search and seizure rights that his hero, and the justice he replaced, the late Antonin Scalia, had taken. That is, that the 4th Amendment does not prohibit unreasonable searches. Rather, it only prohibits unreasonable searches of the specific items mentioned in the amendment--i.e., "persons, houses, papers and effects."
Soooo, the Constitution does protect a house, such as defendant's in this case. But, according to this narrow, literal view, the Constitution does not protect private property other than one's house. Nor does it protect the airspace immediately above one's house. Nor does it protect private conversations. Nor does it protect a person's comings and goings or whereabouts. Etc., etc., etc. Why not? Because none of those things are specifically mentioned in the 4th Amendment.
This is precisely the position Scalia argued in search and seizure cases, and it is precisely the position Gorsuch took in his dissent in this case.
This is what Gorsuch wrote:

The Fourth Amendment, we know, prohibits “unreasonable” searches of particular places and things: “persons, houses, papers, and effects.” U.S. Const. amend. IV. So even if an officer commits a common law trespass when searching your wheat fields, he does not commit a Fourth Amendment violation...[A] 'search' occurs when the government physically enters a constitutionally protected area. [Bold added.]

And just what authority did Gorsuch rely upon for his narrow, literal view of 4th Amendment search and seizure protections? Two opinions by Scalia insisting on that narrow, literal view, as well as some earlier decisions of the Supreme Court that allowed searches--without any warrant or even probable cause--of a person's private property beyond the home or from the air above the home.
[For more on this narrow, literal view of search and seizure rights as applied by Scalia, see Justice Scalia's Record (Part 6: Technological Surveillance); and see conservative Justice Samuel Alito's separate concurring opinion in U.S. v. Jones, 565 US 400 (2012), harshly condemning Scalia's view as being based on decisions that the Supreme Court had actually overruled a long time ago and as contrary to the Court's "legitimate expectations of privacy" jurisprudence.]

So there it is. Then-Judge Gorsuch opposing his colleagues' decisions when they enforced the rights of the accused, whether the right to effective assistance of counsel, the right to sue the government for violation of one's constitutional rights, the protections against wrongful interrogations, and search and seizure rights. And even when ostensibly supporting the rights of the accused, then-Judge Gorsuch espousing Scalia's very narrow, literal view of 4th Amendment protections.

Unless one simply chooses to be dense, or ideologically argumentative or blind, it can hardly be denied that Gorsuch's criminal law jurisprudence, as evidenced by those especially revealing separate dissenting opinions, is ultra-conservative, law and order, and largely unsympathetic to the rights of the accused. One may approve of that approach or not. But regardless, that IS Gorsuch's jurisprudence.

Next, we'll look at now-Justice Gorsuch's record thus far on the Supreme Court.