Tag: Supreme Court

Another New Supreme Court Term, Another New Justice

Today is the first Monday in October, the traditional start of the Supreme Court term.  While we have yet to see as many blockbuster constitutional cases on the docket as we did last term—which, despite the high profile 5-4 splits in McDonald v. Chicago and Citizens United actually produced fewer dissents than any in recent memory—we do look forward to:

  • Two big free speech challenges, one over a statute prohibiting the sale of violent video games to minors, another the offensive protesting of a fallen soldier’s funeral;
  • An Establishment Clause lawsuit against Arizona’s tax credit for private tuition funds (an alternative to educational voucher programs);
  • Regulatory federalism (or “preemption”) cases involving:
    • safety standards for seatbelts;
    • an Arizona statute regarding the hiring of illegal aliens; and
    • the forbidding of class-arbitration waivers as unconscionable components of arbitration agreements;
  • Important ERISA and copyright cases;
  • A case examining privacy concerns attending the federal government’s background checks for contractors; and
  • A criminal procedure dispute regarding access to DNA testing that may support a claim of innocence.

Cato has filed amicus briefs in several of these cases—and in various others which the Court may decide to review later this year—so I will be paying extra-close attention.

Perhaps more importantly, we again have a new justice—and, as Justice White often said, a new justice makes a new Court.  While her confirmation was never in any serious doubt, Elena Kagan faced strong criticism (including from me) on a variety of issues—most importantly on her refusal to “grade” past Court decisions or identify any specific limits to government power.  The 37 votes against Kagan were the most ever for a successful Democratic nominee, which is emblematic of a turbulent political environment in which the Constitution and the basic question of where government derives its power figure prominently.  

Given Kagan’s political and professional background, it is safe to assume that she’s not the second coming of Clarence Thomas.  And because she replaces the “liberal lion” Justice Stevens, her elevation from “tenth justice” (as the solicitor general is known) to ninth is unlikely to cause an immediate change in issues that most divide the Court—particularly because she is recused from nearly half the cases this term.  She could, however, add an interesting and nuanced perspective on a variety of lower-profile issues.  Only time will tell what kind of justice Kagan will be now that she is, seemingly for the first time in her ambitious life, unconstrained to speak her mind.

Here’s to another interesting, varied, and (hopefully) liberty-enhancing year!

Another Judicial Takings Case Headed to the Court

The Montana Supreme Court overturned more than 100 years of state property law concerning navigable waters by effectively converting the title in hundreds of miles of riverbeds to the State. The majority of that court ruled that the entirety of the Missouri, Clark Fork, and Madison rivers were navigable at the time of Montana’s statehood, producing a broad holding that eradicates property rights to the rivers and riverbanks that Montanans had enjoyed for over a century.

Before this case, the hydroelectric energy company PPL Montana and thousands of other private parties exercised their property rights over these non-navigable stretches that the state never claimed.  Today, Cato joined a brief filed by the Montana Farm Bureau Federation supporting the PPL Montana’s request that the U.S. Supreme Court review the Montana high court’s ruling for possible Takings Clause violations under the Fifth Amendment.

We argue two main points.  First, that the Court should adhere to its standard for navigability rights set out in Utah v. U.S. in 1933. Unlike the approach taken by the Montana Supreme Court’s majority — that entire rivers were navigable simply because certain reaches of the river were navigable — the U.S. Supreme Court in Utah used an approach of meticulously analyzing the rivers at issue section-by-section. Second, this arbitrary ruling against rights long protected by Montana law amounts to a “judicial taking,” as explained last term Stop the Beach Renourishment v. Florida Dept. of Environmental Protection (in which Cato also filed a brief). There, a plurality of the Court held that there is no “textual justification” for limiting takings claims deriving from executive or legislative action, thereby extending it to a judicial action of the same nature (and two other members of the Court found potential relief in the Fourteenth Amendment’s Due Process Clause). Here, the Montana court did exactly that, violating due process rights that the Montana legislature could not and further violating the procedural due process rights of the thousands harmed by the decision in not affording them notice or a hearing.

The U.S. Supreme Court should thus review the case to reinforce its Utah precedent and ensure that arbitrary judicial takings of this sort cannot continue.  The name of the case is PPL Montana, LLC v. Montana.  The Court will decide later this fall whether to take it up.

Slouching Towards a New Supreme Court Term

We’re now three weeks away from the new Supreme Court term – I know you’re as excited as I am – and after a summer that included big opinions from The Nine, more confirmation hearings, and front-page district court decisions (on ObamaCare, immigration, and gay marriage), we roll into a fall full of even more legal intrigue.  Indeed, the first Monday of October that marks the first high court arguments of the new season is pretty much the first day of school for us Court-watchers.  And what better way to go back to school than to attend Cato’s ninth annual Constitution Day symposium this coming Thursday?

But don’t think that Constitution Day marks my re-emergence into the public sphere after a long six weeks slaving away at the Cato Supreme Court Review.  No, that moment, when I opened my office door, shook off the cobwebs, and went forward into our glorious future came last week, with panels on ObamaCare and immigration reform at the University of Virginia and Liberty University, respectively.  Those two law schools did a wonderful job in organizing and publicizing their events.  And here’s the rest of my schedule through the end of October, many of which continue my ObamaCare debate challenge (events sponsored by the Federalist Society are asterisked):

  • Sept. 13 at 1pm at Boston University Law School - Preview of the New Supreme Court Term*
  • Sept. 14 at noon at Harvard Law School - Debate on the Constitutionality of Obamacare against Prof. Mark Tushnet*
  • Sept. 17 at noon at Rayburn House Office Building B-340 - Capitol Hill Briefing on the Supreme Court and Economic Liberty
  • Sept. 20 at 5pm at Loyola University Law School (Chicago) - Panel on the Constitutionality of Obamacare*
  • Sept. 21 at noon at Northwestern University Law School (Chicago) - Preview of the New Supreme Court Term*
  • Sept. 22 at noon at University of Illinois at Urbana-Champaign - Debate on the Constitutionality of ObamaCare*
  • Sept. 25 - George Mason law professor and Cato adjunct scholar Ilya Somin’s wedding - Please do congratulate him!
  • Sept. 28 at 12:30 - University of Kansas Law School - Debate on the Constitutionality of ObamaCare*
  • Sept. 29 at lunch - Kansas City Federalist Society Lawyers Chapter - ObamaCare and Missouri’s Prop C*
  • Sept. 30 at 8:30 - Missouri Bar Association Annual Meeting - Panel on the Supreme Court
  • Sept. 30 at 1pm - University of Missouri Law School - The Constitutionality of Obamacare*
  • Oct. 4 at 10am - U.S. Supreme Court - First Monday!
  • Oct. 5 at 5pm - Widener University Law School (Delaware) - The Constitutionality of Obamacare*
  • Oct. 9 at 7pm - Washington Capitals home opener against the New Jersey Devils (I’m a season-ticket holder)
  • Oct. 12 at noon - Lewis & Clark University Law School (Portland, OR) - TBD*
  • Oct. 12 in the evening - Portland Federalist Society Lawyers Chapter - TBD*
  • Oct. 13 at noon - Willamette University Law School - TBD*
  • Oct. 16 at 6pm - University of Toronto Schools Centennial Gala (Go Blues!)
  • Oct. 19 at noon - University of Southern California Law School (L.A.) - Immigration*
  • Oct. 20 at noon - Chapman University Law School - Immigration*
  • Oct. 21 at noon - Orange County Federalist Society Lawyers Chapter - TBD*
  • Oct. 22 all day - Chapman University Law School Nexus Journal of Law & Policy Symposium - “Citizens Divided on Citizens United: Campaign Finance Reform and the First Amendment”
  • Oct. 26 at lunch - Stanford University Law School - TBD*
  • Oct. 27 at noon - University of the Pacific Law School (Stockton, CA) - Debate on the Constitutionality of Obamacare*
  • Oct. 28 at 12:45 - University of California at Berkeley Law School - Debate on Judicial Activism*

If you come out to any of these events, please do come up and introduce yourself.

GPS Tracking and a ‘Mosaic Theory’ of Government Searches

The Electronic Frontier Foundation trumpets a surprising privacy win last week in the U.S. Court of Appeals for the D.C. Circuit. In U.S. v. Maynard (PDF), the court held that the use of a GPS tracking device to monitor the public movements of a vehicle—something the Supreme Court had held not to constitute a Fourth Amendment search in U.S. v Knotts—could nevertheless become a search when conducted over an extended period.  The Court in Knotts had considered only tracking that encompassed a single journey on a particular day, reasoning that the target of surveillance could have no “reasonable expectation of privacy” in the fact of a trip that any member of the public might easily observe. But the Knotts Court explicitly reserved judgment on potential uses of the technology with broader scope, recognizing that “dragnet” tracking that subjected large numbers of people to “continuous 24-hour surveillance.” Here, the DC court determined that continuous tracking for a period of over a month did violate a reasonable expectation of privacy—and therefore constituted a Fourth Amendment search requiring a judicial warrant—because such intensive secretive tracking by means of public observation is so costly and risky that no  reasonable person expects to be subject to such comprehensive surveillance.

Perhaps ironically, the court’s logic here rests on the so-called “mosaic theory” of privacy, which the government has relied on when resisting Freedom of Information Act requests.  The theory holds that pieces of information that are not in themselves sensitive or potentially injurious to national security can nevertheless be withheld, because in combination (with each other or with other public facts) permit the inference of facts that are sensitive or secret.  The “mosaic,” in other words, may be far more than the sum of the individual tiles that constitute it. Leaving aside for the moment the validity of the government’s invocation of this idea in FOIA cases, there’s an obvious intuitive appeal to the idea, and indeed, we see that it fits our real world expectations about privacy much better than the cruder theory that assumes the sum of “public” facts must always be itself a public fact.

Consider an illustrative hypothetical.  Alice and Bob are having a romantic affair that, for whatever reason, they prefer to keep secret. One evening before a planned date, Bob stops by the corner pharmacy and—in full view of a shop full of strangers—buys some condoms.  He then drives to a restaurant where, again in full view of the other patrons, they have dinner together.  They later drive in separate cars back to Alice’s house, where the neighbors (if they care to take note) can observe from the presence of the car in the driveway that Alice has an evening guest for several hours. It being a weeknight, Bob then returns home, again by public roads. Now, the point of this little story is not, of course, that a judicial warrant should be required before an investigator can physically trail Bob or Alice for an evening.  It’s simply that in ordinary life, we often reasonably suppose the privacy or secrecy of certain facts—that Bob and Alice are having an affair—that could in principle be inferred from the combination of other facts that are (severally) clearly public, because it would be highly unusual for all of them to be observed by the same public.   Even more so when, as in Maynard, we’re talking not about the “public” events of a single evening, but comprehensive observation over a period of weeks or months.  One must reasonably expect that “anyone” might witness any of such a series of events; it does not follow that one cannot reasonably expect that no particular person or group would be privy to all of them. Sometimes, of course, even our reasonable expectations are frustrated without anyone’s rights being violated: A neighbor of Alice’s might by chance have been at the pharmacy and then at the restaurant. But as the Supreme Court held in Kyllo v US, even when some information might in principle be possible to obtain public observation, the use of technological means not in general public use to learn the same facts may nevertheless qualify as a Fourth Amendment search, especially when the effect of technology is to render easy a degree of monitoring that would otherwise be so laborious and costly as to normally be infeasible.

Now, as Orin Kerr argues at the Volokh Conspiracy, significant as the particular result in this case might be, it’s the approach to Fourth Amendment privacy embedded here that’s the really big story. Orin, however, thinks it a hopelessly misguided one—and the objections he offers are all quite forceful.  Still, I think on net—especially as technology makes such aggregative monitoring more of a live concern—some kind of shift to a “mosaic” view of privacy is going to be necessary to preserve the practical guarantees of the Fourth Amendment, just as in the 20th century a shift from a wholly property-centric to a more expectations-based theory was needed to prevent remote sensing technologies from gutting its protections. But let’s look more closely at Orin’s objections.

First, there’s the question of novelty. Under the mosaic theory, he writes:

[W]hether government conduct is a search is measured not by whether a particular individual act is a search, but rather whether an entire course of conduct, viewed collectively, amounts to a search. That is, individual acts that on their own are not searches, when committed in some particular combinations, become searches. Thus in Maynard, the court does not look at individual recordings of data from the GPS device and ask whether they are searches. Instead, the court looks at the entirety of surveillance over a one-month period and views it as one single “thing.” Off the top of my head, I don’t think I have ever seen that approach adopted in any Fourth Amendment case.

I can’t think of one that explicitly adopts that argument.  But consider again the Kyllo case mentioned above.  Without a warrant, police used thermal imaging technology to detect the presence of marijuana-growing lamps within a private home from a vantage point on a public street. In a majority opinion penned by Justice Scalia, the court balked at this: The scan violated the sanctity and privacy of the home, though it involved no physical intrusion, by revealing the kind of information that might trigger Fourth Amendment scrutiny. But stop and think for a moment about how thermal imaging technology works, and try to pinpoint where exactly the Fourth Amendment “search” occurs.  The thermal radiation emanating from the home was, well… emanating from the home, and passing through or being absorbed by various nearby people and objects. It beggars belief to think that picking up the radiation could in itself be a search—you can’t help but do that!

When the radiation is actually measured, then? More promising, but then any use of an infrared thermometer within the vicinity of a home might seem to qualify, whether or not the purpose of the user was to gather information about the home, and indeed, whether or not the thermometer was precise enough to reveal any useful information about internal temperature variations within the home.  The real privacy violation here—the disclosure of private facts about the interior of the home—occurs only when a series of very many precise measurements of emitted radiation are processed into a thermographic image.  To be sure, it is counterintuitive to describe this as a “course of conduct” because the aggregation and analysis are done quite quickly within the processor of the thermal camera, which makes it natural to describe the search as a single act: Creating a thermal image.  But if we zoom in, we find that what the Court deemed an unconstitutional invasion of privacy was ultimately the upshot of a series of “public” facts about ambient radiation levels, combined and analyzed in a particular way.  The thermal image is, in a rather literal sense, a mosaic.

The same could be said about long-distance  spy microphones: Vibrating air is public; conversations are private. Or again, consider location tracking, which is unambiguously a “search” when it extends to private places: It might be that what is directly measured is only the “public” fact about the strength of a particular radio signal at a set of receiver sites; the “private” facts about location could be described as a mere inference, based on triangulation analysis (say), from the observable public facts.

There’s also a scope problem. When, precisely, do individual instances of permissible monitoring become a search requiring judicial approval? That’s certainly a thorny question, but it arises as urgently in the other type of hypothetical case alluded to in Knotts, involving “dragnet” surveillance of large numbers of individuals over time. Here, too, there’s an obvious component of duration: Nobody imagines that taking a single photograph revealing the public locations of perhaps hundreds of people at a given instant constitutes a Fourth Amendment search. And just as there’s no precise number of grains of sand that constitutes a “heap,” there’s no obvious way to say exactly what number of people, observed for how long, are required to distinguish individualized tracking from “dragnet” surveillance.  But if we anchor ourselves in the practical concerns motivating the adoption of the Fourth Amendment, it seems clear enough that an interpretation that detected no constitutional problem with continuous monitoring of every public movement of every citizen would mock its purpose. If we accept that much, a line has to be drawn somewhere. As I recall, come to think of it, Orin has himself proposed a procedural dichotomy between electronic searches that are “person-focused” and those that are “data-focused.”  This approach has much to recommend it, but is likely to present very similar boundary-drawing problems.

Orin also suggests that the court improperly relies upon a “probabilistic” model of the Fourth Amendment here (looking to what expectations about monitoring are empirically reasonable) whereas the Court has traditionally relied on a “private facts” model to deal with cases involving new technologies (looking to which types of information it is reasonable to consider private by their nature). Without recapitulating the very insightful paper linked above, the boundaries between models in Orin’s highly useful schema do not strike me as quite so bright. The ruling in Kyllo, after all, turned in part on the fact that infrared imaging devices are not in “general public use,” suggesting that the identification of “private facts” itself has an empirical and probabilistic component.  The analyses aren’t really separate. What’s crucial to bear in mind is that there are always multiple layers of facts involved with even a relatively simple search: Facts about the strength of a particular radio signal, facts about a location in a public or private place at a particular instant, facts about Alice and Bob’s affair. In cases involving new technologies, the problem—though seldom stated explicitly—is often precisely which domain of facts to treat as the “target” of the search. The point of the expectations analysis in Maynard is precisely to establish that there is a domain of facts about macro-level behavioral patterns distinct from the unambiguously public facts about specific public movements at particular times, and that we have different attitudes about these domains.

Sorting all this out going forward is likely to be every bit as big a headache as Orin suggests. But if the Fourth Amendment has a point—if it enjoins us to preserve a particular balance between state power and individual autonomy—then as technology changes, its rules of application may need to get more complicated to track that purpose, as they did when the Court ruled that an admirably simple property rule was no longer an adequate criterion for identifying a “search.”  Otherwise we make Fourth Amendment law into a cargo cult, a set of rituals whose elegance of form is cold consolation for their abandonment of function.

Kagan’s Confirmation Could Be High-Water Mark for Big Government

Elena Kagan’s confirmation represents a victory for big government and a view of the Constitution as a document whose meaning changes with the times.  Based on what we learned the last few months, it is clear that Kagan holds an expansive view of federal power – refusing to identify, for example, any specific actions Congress cannot take under the Commerce Clause.  She will rarely be a friend of liberty on the Court.

It is thus telling that Kagan received the fewest votes of any Democratic nominee to the Supreme Court in history, beating the record set only last year by Sonia Sotomayor.  Even several senators who had voted for Sotomayor voted against Kagan, including Democrat Ben Nelson – as did Scott Brown, the darling of these high-profile Senate votes.

It was Scott Brown’s election, after all, that signaled that last year’s elections in Virginia and New Jersey were no fluke, that whether people lived in a Red, Blue, or Purple state, they were tired of bailouts, “stimulus,” re-regulation, and, especially, the government takeover of one-sixth of our economy.  This anger has only grown since then, making itself felt most recently in Missouri voters’ overwhelming (71-29) rejection of the individual health insurance mandate.

“Where does the government get the constitutional authority to do this?” the cry goes up across the land.  Elena Kagan won’t give a satisfactory answer but the American people are right to continue asking.

Randy Barnett in the Wall Street Journal: “A Commandeering of the People”

Cato senior fellow Randy Barnett is the subject of the Wall Street Journal’s nearly-full-page Weekend Interview. Randy talks about interpreting the Constitution with “a presumption of liberty,” the subtitle of his book Restoring the Lost Constitution; about the Supreme Court’s expansion of government power from Wickard v. Filburn to Gonzales v. Raich; and especially about the constitutionality of the new health care bill and its individual mandate. Randy wrote an amicus brief with Cato in support of the Virginia attorney general’s challenge to the health care mandate.

“What is the individual mandate?” Mr. Barnett says. “I’ll tell you what the individual mandate, in reality, is. It is a commandeering of the people. . . . Now, is there a rule of law preventing that? No. Why isn’t there a rule of law preventing that? Because it’s never been done before. What’s bothering people about the mandate? This fact. It’s intuitive to them. People don’t even know how to explain it, but there’s something different about this, because it’s a commandeering of the people as a whole. . . . We commandeer people to serve in the military, to serve on juries, and to file a return and pay their taxes. That’s all we commandeer the people to do. This is a new kind of commandeering, and it’s offensive to a lot of people.”

For the full legal argument, read the brief.

Will Specter Vote Against Kagan?

I agree with Jillian Bandes’s characterization of the Democrats’ “bottom of the order” questioning (the committee being stacked 12-7, the day began with the junior Dems) and indeed was dreading having to sit through all sorts of parochial bloviations.  Even Al Franken wasn’t too exciting, just making the point Justice Kennedy was wrong not to consider in legislative history in arbitration cases and expounding at length on the theme that money in politics is bad and so therefore was Citizens United.  Kagan responded that “Congress’s intent is the only thing that matters [to statutory interpretation]”—a position sure to infuriate her future would-be colleague Justice Scalia—but also that the Court “should not re-write the law,” instead allowing Congress to correct unsatisfying judgments based on flawed legislative draftsmanship.  From this exchange I didn’t learn much about Kagan but did conclude that I wouldn’t ever vote for Franken for anything, except maybe the People’s Choice Awards should he ever return to show business.

The most memorable part of today’s first session of questioning (9am till after 1pm) was undoubtedly Arlen Specter pressing the nominee to answer questions about various lawsuits of special concern to him and which he detailed in several letters to Kagan about the questions he would ask.  One was a Holocaust survivors’ suit, one was by families of the victims of 9/11, and one regarded the Bush-era Terrorist Surveillance Program.  The first is at the cert petition stage before the Supreme Court, in the second Kagan as SG recommended that the Court deny review, and the third eventually will be seeking review of the lower court’s dismissal on standing grounds.  Kagan agreed that standing and other jurisdictional doctrines are important but would not discuss whether she would vote that the Court hear the cases or reverse the lower-court decisions.  Kagan pushed back repeatedly, saying “you wouldn’t want a judge who says she will reverse a decision without reading the briefs and hearing argument.”  Specter was extremely dissatisfied, to the point where his vote is legitimately in doubt.  Indeed, I would say now that Lindsey Graham is much more likely to vote for Kagan than Specter is.  Of course, Specter had voted against Kagan when she was nominated to be solicitor general last year—but he was a Republican at the time.

CP at Townhall