Tag: Supreme Court

Riley and Wurie: Beyond “Get a Warrant”

As Ilya noted earlier, the Supreme Court struck a blow for privacy and the Fourth Amendment today. It ruled that a warrant is generally required when law enforcement officers want to search a cell phone they have seized. Justice Roberts’ opinion for a unanimous court provides some crisp language:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life.” (citation omitted) The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.

In this case, we pretty well knew we were going to get a win. So let’s set aside the trumpets and talk about the margin of victory. Did we get improvements in Fourth Amendment doctrine that will bolster privacy protection in cases to come? Only a little.

OK, let’s trumpet the case a bit. This is a unanimous case with a bright-line rule. It’s about the best outcome you could hope for in Riley and Wurie themselves (argued separately, decided together), and it’s a great vindication of the constitutional status of cell phones and our data on them.

Chief Justice Roberts seems to have brought the Court together on this one (save a niggling Alito concurrence) to produce a strong opinion that doesn’t show gaps among the justices. (They may all have felt a need to huddle, avoiding an open fight or the tipping of hands on the NSA spying controversy, for example.)

And on the major privacy controversy of the day, the Court did not tip its hand. It distinguished Smith v. Maryland, the case the government uses to justify gathering records about every U.S. phone. Smith held that using a pen register to gather phone calling information was not a search. “There is no dispute here that the officers engaged in a search of Wurie’s cell phone,” Chief Justice Roberts wrote, punting for the Court in this case based on the consensus among parties.

The errant decision in Smith relied on the “reasonable expectation of privacy” test arising from the 1967 case, Katz v. United States. The very good news from this decision is that the Court once again declined to use the Katz test in resolving a Fourth Amendment issue, as our briefs invited the Court to do (or not to do, as it were). Instead, the Court implicitly found that there were searches in both cases and that those searches were of persons, houses, papers, or effects. Then it examined the reasonableness of searching cell phones.

That’s important because it means that the Court is interpreting the Fourth Amendment more like a law and not as the stack of doctrines that I’ve previously called a “jumble of puzzles.”

Chief Justice Roberts Again Rewrites Law, Avoids Duty to Hold Government’s Feet to the Constitutional Fire

In today’s ruling in Bond v. United States, the Supreme Court was obviously right to reverse as federal overreaching the conviction of a woman who used certain chemicals to attack her husband’s paramour. This was a “purely local crime,” and the decision to prosecute Carol Anne Bond for it under a law that implements the international Chemical Weapons Convention was an abuse of federal power.

But in deciding the case so narrowly, creatively reinterpreting an expansive federal statute instead of reaching the constitutional issue at the heart of this bizarre case, the Court’s majority abdicated its duty to check the other branches of government. Bond was a case about the scope of the treaty power—can Congress do something pursuant to a treaty that it can’t otherwise do?—and yet the majority opinion avoided that discussion altogether in the name of a faux judicial minimalism. That’s not surprising given that its author is Chief Justice Roberts, who goes out of his way to avoid hard calls whenever possible. (Sometimes the practical result is still the right one, as here, sometimes it’s disastrously not, as in NFIB v. Sebelius, the Obamacare case, and sometimes even Roberts finds it impossible to avoid the Court’s constitutional duty, as in Citizens United and Shelby County.)

It was thus left to Justice Scalia, joined by Justices Thomas and Alito (in part), to do the hard work—to make those balls-and-strikes calls that Roberts promised at his confirmation hearing—and repudiate Missouri v. Holland, the 1920 case that’s been understood to mean that the federal government can indeed expand its own power by agreeing to do so with a foreign treaty partner. (Scalia’s opinion tracks Cato’s amicus brief closely, and cites my colleague Nicholas Quinn Rosenkranz’s groundbreaking work in this area.)

One other takeaway here is that the Obama administration has yet again lost unanimously at the Supreme Court, adding to its record number of goose eggs—particularly in cases involving preposterous assertions of federal power. Here Chief Justice Roberts provides the apt langiappe: “The global need to prevent chemical warfare does not require the federal government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”

Supreme Court Wasn’t Serious about the Second Amendment

While the media attention will focus on the Supreme Court’s ruling in Town of Greece v. Galloway – the legislative-prayer case – the more interesting (and consequential) decision issued today was the Court’s denial of review in Drake v. Jerejian, the Second Amendment case I previously discussed here. In Drake, the lower federal courts upheld an outrageous New Jersey law that denies the right to bear arms outside the home for self-defense – just like the D.C. law at issue in District of Columbia v. Heller denied the right to keep arms inside the home – and today the Supreme Court let them get away with it.

Drake is but the latest in a series of cases that challenge the most restrictive state laws regarding the right to armed self-defense. Although the Supreme Court in Heller declared that the Second Amendment protects an individual constitutional right, lower federal courts with jurisdiction over states like Maryland and New York have been “willfully confused” about the scope of that right, declining to protect it outside Heller’s particular facts (a complete ban on functional firearms in the home). It’s as if the Supreme Court announced that the First Amendment protects an individual right to blog about politics from your home computer, but then some lower courts allowed states to ban political blogging from your local Starbucks.

Yet each time, the Supreme Court has denied review.

He Is the Very Model of a Modern Retired Justice

Justice John Paul Stevens, who left the high court in 2010, is on fire. He just released a book, Six Amendments: How and Why We Should Change the Constitution, and is now on a media tour that has thus far featured his views on campaign finance, guns, and the death penalty—the subjects of three of his proposed constitutional amendments—and, just today, marijuana. All this, and last weekend he celebrated his 94th birthday!

It might not be appropriate for Stevens to propose constitutional amendments or otherwise opine on political matters because he’s technically still an Article III federal judge (though he hasn’t been hearing cases in the lower courts as Justices Sandra Day O’Connor and David Souter have), but nevertheless the ideas he floats are worth examining. To that end, I recently wrote two op-eds related to the Stevens book tour.

The first looks at the response to the justice’s proposal to abolish the death penalty. Some have criticized him for having taken so long to reach this position, but that misunderstands what he’s saying. It’s not that capital punishment is unconstitutional—as recently as 2008 he concurred in a ruling that upheld Kentucky’s method of lethal injection—but that he feels that it’s wrong and that we need to amend the Constitution to remedy that wrong. That’s the proper response, which can be hard to understand for those who conflate law and policy.

My second piece is a quick-and-dirty critique of all six amendments, three of which are structural—(1) requiring state officials to enforce federal law; (2) doing away with political gerrymandering; and (3) eliminating state sovereign immunity—while the other three relate to individual liberties—(4) excising the Second Amendment’s protection for the right to armed self-defense; (5) allowing Congress and state legislatures to limit the money people can spend on election campaigns; and (6) outlawing the death penalty. I’m firmly against 1, 4, and 5, on balance against 6, am sympathetic to 2 but it needs to be redrafted, and support 3 (but it could go farther).

Happy belated birthday, Justice Stevens! I may not have seen things your way too often when you were on the bench, and don’t much agree with you now, but I hope that I live long enough in good health to be able to read books at your age, let alone write them.

It’s Constitutional for Voters to Stop Their Government from Discriminating Based on Race

Today the Supreme Court finally ruled on Schuette v. Coalition to Defend Affirmative Action, in which Cato filed a brief last summer. This is the case involving a challenge to a voter-approved Michigan state constitutional amendment that bans racial discrimination (including racial preferences) in higher education. The U.S. Court of Appeals for the Sixth Circuit had somehow manage to conclude that such a law violates the Fourteenth Amendment’s Equal Protection Clause, which … requires that state governments treat everyone equally, regardless of race. The ruling was fractured – six justices voted to reverse the lower court, but for three separate reasons, plus a separate concurrence from Chief Justice John Roberts to respond to the two-justice dissent – but ultimately achieved the correct result: Michigan’s Proposal 2 stands.

But really Schuette is a much easier case than the above description might indicate. Indeed, it’s no surprise that six justices found that a state constitutional provision prohibiting racial discrimination complies with the federal constitutional provision that prohibits state racial discrimination. To hold otherwise would be to torture the English language to the point where constitutional text is absolutely meaningless. The only surprise – or, rather, the lamentable pity – is that Justices Sonia Sotomayor and Ruth Bader Ginsburg somehow agreed with the lower court’s confused determination that the Constitution requires what it barely tolerates (racial preferences in university admissions).

To quote the conclusion of Justice Antonin Scalia’s concurring opinion, for himself and Justice Clarence Thomas:

As Justice Harlan observed nearly a century ago, “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion). The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way.

This case was so easy precisely because it didn’t involve the fraught question of whether states can pursue race-conscious measures in order to achieve (some mythical) diversity. Instead, it was about the democratic process and whether voters can rein in the powers of their state government. The answer to that question, like the answer to the question of whether the Equal Protection Clause mandates racial preferences, is self-evident. 

Here’s the full decision, which begins with a plurality opinion by Justice Anthony Kennedy, for himself, the chief justice, and Justice Samuel Alito.

TV Broadcasters Should Have Same Rights As Everyone Else

Remember broadcast television? Amid the avalanche of new streaming services, DVRs, and Rokus, not to mention cable TV, some people may have forgotten—or, if they’re under 25, never known—that there are TV shows in the air that can be captured with an antenna. The Supreme Court certainly hasn’t forgotten, given that it maintains an outdated rule that broadcast TV gets less First Amendment protection than cable, video-on-demand, or almost anything else–a rule dating to the 1969 case of Red Lion Broadcasting Co. v. FCC.

That lower standard of protection comes from the belief that the broadcast-frequency spectrum is scarce, and thus that the Federal Communications Commission is properly charged with licensing the spectrum for the public “interest, convenience, and necessity.” But if newspapers or magazines were similarly licensed, the First Amendment violation would be obvious to all but the most hardened censor.

Hence the case of Minority Television Project v. FCC. Minority Television Project is an independent, noncommercial license-holding TV station in San Francisco. Unlike most noncommercial license holders, Minority TV receives no PBS money. Because it’s an over-the-air broadcaster, however, it must comply with the restrictions placed on the licenses by Congress and the FCC, including prohibitions on paid commercials and political ads. Minority TV challenged these restrictions as violating the First Amendment.

Applying Red Lion’s lower First Amendment standard, the district court, a panel of the U.S. Court of Appeals for the Ninth Circuit, and even the en banc Ninth Circuit (11 judges rather than the usual 3) all ruled against Minority TV. On petition for certiorari to the Supreme Court, Minority TV argues that Red Lion’s rationale for reducing broadcasters’ rights is outdated and should be overruled.

Cato has filed an amicus brief in support of Minority TV, agreeing that it’s time to give broadcast TV full First Amendment protection. Just as we argued in 2011’s FCC v. Fox Television Stations—where the Court chose to evade the question—it’s time to update our law to fit current realities. The way that people consume information and entertainment has changed dramatically since 1969. Rather than three broadcast networks, we have hundreds of channels of various kinds, and increasingly people are forgoing traditional TV altogether. The FCC can still license broadcasters—that system isn’t going away anytime soon regardless of the next mind-boggling innovation—but the conditions it places on those licenses have to satisfy strict First Amendment scrutiny, especially when they pertain to political speech.

The Supreme Court should take this case in order to update its treatment of broadcasters’ speech rights, including a requirement that the government offer a truly compelling justification any time it wants to restrict them. 

While You Fill Out Your Bracket, Chris Christie Busts the NCAA’s Racket

After considerable debate, the Founding Fathers elected to give the new federal government the power of regulating commerce among the several states. We’ve all seen what’s become of that power, but in the beginning, giving the federal government the ability to regulate—literally, to “make regular”—interstate commerce made good sense as a way to avoid the otherwise inevitable collective-action problems, like trade wars and anti-competitive jockeying for monopolies. The goal was to ensure that federal law would not permit or bestow any unfair competitive advantage to any one state or group of states over the others.

Throughout much of our nation’s history, the federal government has, for the most part, succeeded at this particular goal. Thanks to the Professional and Amateur Sports Protection Act of 1992 (PASPA), however, Congress’s power to keep states from obtaining unfair advantages is being used to grant some states (most notably Nevada, but also Oregon, Montana, and Delaware) an unfair advantage: a special right to license gambling, which PASPA prohibits to other states.

In 2012, New Jersey Governor Chris Christie signed a sports-gambling bill into law, and as a result was sued by the NCAA, NFL, MLB, NHL, and NBA, who believed that additional sports betting would result in corruption and game-fixing. Christie defended his actions by arguing that PASPA violates the 10th Amendment by restricting New Jersey’s right to govern itself, and also that it violates the equal-sovereignty doctrine by giving an unfair advantage on certain states.

The federal district court and the U.S. Court of Appeals for the Third Circuit failed to recognize these constitutional flaws, so New Jersey has now asked the Supreme Court to hear its case. Cato has joined the Pacific Legal Foundation on a brief supporting New Jersey’s petition.

We explain that the principle of equal sovereignty was central to the creation of Congress’s power to regulate interstate commerce, and that conferring state-specific advantages is precisely opposite to the federal power that the Framers created. We think it important that the Supreme Court hear this case because it offers an excellent opportunity to explain the equal-sovereignty doctrine and how it furthers federalism, and to provide guidance as to the scenarios in which the doctrine applies. Congress shouldn’t be able to pick winners and losers among the states.

The Supreme Court will likely decide whether to take the case of Christie v. NCAA before recessing for the summer at the end of June.

This blogpost was co-authored by Cato legal associate Julio Colomba.