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The Play on the Scalia Replacement: Remember the Lame Duck

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Within minutes after the public announcement of Antonin Scalia’s death, Senator Mike Lee’s flack Conn Carroll started predicting Obama would have zero chance of successfully naming a successor. After Carroll, one after another actual Senator followed that sentiment, including Chuck Grassley and Mitch McConnell, both of whom would have the ability to stall any Obama nominee. From that point, the GOP was pretty much committed, they said, to preventing any Obama nominee from being confirmed.

That led to a bunch of bad comparisons — between judges like Robert Bork who was rejected and Miguel Estrada who never got a vote — and simply going a year without acting on a President’s nominee. Even the comparison with Anthony Kennedy (who was nominated in November after two other nominees, including Bork, failed) is inapt, as he was nominated earlier than any Obama pick would be (though in a sense that fetishizes the year that would pass without a nominee).

I, like bmaz, believe Obama will pick someone fairly centrist, probably someone who has been recently confirmed by big margins.  I agree the most likely nominee will be Sri Srinivasan, who in 2013 was confirmed to the DC Circuit with a 97-0 vote — though I’m also mindful of the wisdom (given the GOP unanimity about obstructing this nominee) of picking someone who drive Democratic turnout — an African-American woman, for example. Though I highly doubt Obama will nominate Loretta Lynch, as some have suggested, not least because the fight over releasing data on HSBC’s continued money laundering will draw more attention as it moves toward appeal, which might focus attention on her role in administering the wrist slap in the face of egregious drug cartel and terrorist supporting money laundering.

After some reflection, some conservatives have suggested that the GOP would have been better served if they had simply not managed to pass Obama’s nominee, rather than making such a big stink about it.

I think that ignores how much both parties look forward to using this nominee to drive turnout — and regardless of who the respective nominees are, the GOP have a much bigger challenge in getting enough voters to turn out to elect a GOP president in November, so I’m sure they’re quite happy to have an issue that (they presumably hope) might flip some conservative Latino votes — though one likely outcome of an extended 8-member court is that the Fifth Circuit’s ruling staying Obama’s immigration orders will be upheld after a 4-4 tie on the court, which might have the opposite effect.

Furthermore, I think it ignores one other factor. Srinivasan has been predicted to be Obama’s most likely SCOTUS appointment for almost 3 years (few people consider how such predictions might have influenced Ruth Bader Ginsburg’s decision not to retire). The Republicans probably presume he’s the most likely candidate as well.

The presumption Srinivasan — or someone similar — would be the nominee easily justifies the GOP’s immediate promise they won’t confirm a nominee. That’s because they need to explain why someone they just overwhelmingly confirmed, someone who faced more opposition from the left than the right, suddenly became unacceptable.

More importantly, I presume the GOP wants to keep open the possibility of confirming Srinivasan or whatever centrist Obama appoints during the Lame Duck. Here’s why:

Barring any replay of Bush v. Gore, both sides will know on November 9 who would get to pick Scalia’s replacement if Obama’s pick failed. Both sides will also know the makeup of the Senate. Because of the demographic issues I mentioned earlier, the likely Democratic nominee, Hillary Clinton, is most likely to win. That’s not to say I think she’s necessarily the strongest candidate — even ignoring the potential the email scandal will taint close advisors like Huma Abedin or Jake Sullivan, I think it likely the economy will be crashing by November in a way that would favor Trump if he were the GOP nominee facing Hillary. But I think electoral demographics suggest the GOP will have a harder time winning this year, particularly after a year of Trump branding the GOP with bigotry.

Plus (ignoring my suspicion the economy will be crashing by November), we’re likely to have a more Democratic Senate after November. Harry Reid is the only retiring Democrat where the replacement race is currently perceived to be toss-up, whereas Marco Rubio, Mark Kirk, Kelly Ayotte, and Ron Johnson are all deemed to be likely toss-ups, if not Dem-favorable. It’s still most likely the GOP will have a slight majority, but a smaller one, in the Senate, one where people like Susan Collins could make more of a difference. But it is likely to be more Democratic.

If Hillary wins (the most likely outcome) and Democrats win the Senate (unlikely, but feasible), then the Republicans will have good reason to want to confirm an Obama nominee perceived to be centrist. Whereas Srinivasan looks far worse than Scalia to the Republicans, he would all of a sudden look far preferable to a Hillary choice with the time to wait out the Senate. The GOP would have time between November 9 and the Christmas break to confirm whatever Obama nominee has been languishing.

In other words, I think the GOP have provided a way to stall someone (like Srinivasan) they have recently confirmed, while leaving the possibility of confirming that person if November makes it likely the next nominee will be more liberal.

One more thing: Commentary on this process has presumed that McConnell and Grassley (and Obama) learned of Scalia’s death when we all did. I would hope that Obama, at least, got word well before that, particularly given the involvement of at least the US Marshals and according to some reports the FBI. But I also wouldn’t leave out the possibility that one of the 39 other still unidentified guests at the ranch this weekend gave the Republican leadership a heads up as soon as a hearse showed up. So it’s possible that what looked like quick knee-jerk response on the part of Republican leadership was instead more considered, along the lines I’ve just laid out.

El Nino Scalia

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Antonin Scalia is dead. Say what you will, there is no rejoicing from me. Was Nino a malefactor in Supreme Court jurisprudence over the decades since his confirmation on September 26, 1986? Yes, and an irascible one as well. Once Bork got Borked, Scalia was the whipping post for all liberals, on the continuity of the spectrum. Did he earn that status? Yes, and maybe then some.

The hagiography of Nino is already quite well underway. I was out shopping for garden/landscaping things and had no idea until called by Marcy. It still took me a while to get back and dive into this. There are a million takes already underway on the net and in the press, such as the press may be these days. If you want a recap of the same old, this ain’t it. And, for now, what I have to say is not all that long or extricated.

First off, let’s talk about Scalia the man and Justice. As said above, once Bork got Borked, there was going to be a piñata for liberals (like me) to pound on. And, over the years, boy have I, and we, done just that. And for, mostly, good reason.

But anybody can blabber about what a prick Nino was. Fairly. But, in the current context, I want to do something different. As loathsome as Scalia often was, he was still somewhat of a hero to people that practice actual criminal law. No, not across the board, but enough that it ought be mentioned and left as a part of his legacy.

Why? Okay, this is a quick take:

Fourth Amendment: There is actually a long thread of Scalia decency on Fourth Amendment issues over the years. I have had occasion to quote him from both majority and dissents frequently. But, most recently, you can probably relate most easily to United States v. Jones, Riley v. California and, significantly, Kyllo v. United States. Now Scalia only penned Jones and Kyllo, but his fingerprints were all over Riley too. This is just my opinion, but I am not sure that a lesser conservative justice on the court would have seen these decisions through, and allowed them to be as consensus as they were.

One law professor, Tim MacDonnell, put it this way:

Since joining the United States Supreme Court in 1986, Justice Scalia has been a prominent voice on the Fourth Amendment, having written twenty majority opinions, twelve concurrences, and six dissents on the topic. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision to address technology’s encroachment on privacy; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia’s opinions, he has championed an originalist/textualist theory of constitutional interpretation. Based on that theory, he has advocated that the text and context of the Fourth Amendment should govern how the Court interprets most questions of search and seizure law. His Fourth Amendment opinions have also included an emphasis on clear, bright-line rules that can be applied broadly to Fourth Amendment questions. However, there are Fourth Amendment opinions in which Justice Scalia has strayed from his originalist/textualist commitments, particularly in the areas of the special needs doctrine and qualified immunity.

I do not agree with everything in MacDonnell’s article, but it is quite good and his dubious context is spot on. Scalia has been more than prominent in Fourth Amendment jurisprudence since his time on the court. I have serious issues with many of the “exceptions” he has bought off on in the name of police expediency, but I can, and do, imagine a different justice being far, far, worse on the Fourth (can you say “Alito”? Of course you can). So, there is that. But, by the same token, I remember coming out of court and getting informed of the Kyllo decision. Several drinks were hoisted to Scalia that afternoon and night.

Then, there is the Sixth Amendment. This is an area on which Scalia gets scant attention and credit for. And, yes, if you practice criminal law, it is one of critical importance, whether pundits or the press realize it or not. Because if you happen to actually do criminal jury trials (or bench for that matter), you know the critical importance of being able to confront and cross-examine the witnesses and evidence against your client, the defendant. I have cited Scalia’s words, both successfully and unsuccessfully, for a very long time on confrontation issues. But the successes I, and clients, have had owe in large part due to Scalia. Here is a bit from David Savage, of the LA Times, from 2011 that summarizes Scalia’s Confrontation Clause championing about perfectly:

The 6th Amendment to the Constitution says the “accused shall enjoy the right … to be confronted with the witnesses against him.” To Scalia, this clause not only gives defendants the right to challenge actual witnesses, but also the right to bar testimony from all those “witnesses” who did not or cannot testify in court. He takes this view even if the witness is dead.

Three years ago, Scalia led the court in reversing the murder conviction of a Los Angeles man who shot and killed his girlfriend. A police officer testified the victim had reported that Dwayne Giles threatened to kill her. Scalia said that testimony violated Giles’ rights because he could not confront or cross-examine her.

“We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding,” Scalia said for 6-3 majority. This went too far for liberal Justices John Paul Stevens and Stephen G. Breyer.

Two years ago, Scalia spoke for a 5-4 majority reversing the conviction of an alleged cocaine dealer from Massachusetts because prosecutors did not bring to court a lab analyst whose test confirmed the bags of white powder were indeed cocaine. The dissenters, including Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Samuel A. Alito Jr., said a lab technician who conducts a test is not a “witness” in the ordinary sense of the term.

In June, the court went one step further. The Scalia bloc, by a 5-4 vote, overturned the drunken-driving conviction of a New Mexico man because the lab analyst who testified about his blood alcohol did not actually work on the defendant’s blood sample. He put together an odd-couple coalition with Justices Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

“This is not a left-right split. This is principle versus pragmatism,” said University of Michigan law professor Richard Friedman.

Frankly, Scalia has only reinforced that since late 2011 when Savage wrote said words. If you practice in a criminal trial courtroom, you owe a debt of gratitude to Antonin Scalia for your ability to still confront and cross-examine witnesses and evidence. I don’t think it is hyperbole to say that, without Scalia, this fundamental procedural right would be totally shit right now.

So, this is but a nutshell of the greater whole, and I am still trying to catch up. But those are my thoughts for now. Do not get me wrong, Antonin Scalia was never, nor will ever be, my favorite, nor even an overall positive Supreme Court Justice in my eyes. There is too much malignancy and caustic history from Scalia, on far too many fronts, for that to ever be the case. But the man is not yet even in the ground, and there were a couple of important positive things to say before the ultimate obituary is written.

And, on one other note, let’s keep in mind that the warm and fuzzy stories of Scalia with Ruth Bader Ginsburg, from court interaction, to opera to shooting at animal trips is not the only history of Nino Scalia and women on the Supreme Court. He was, certainly less famously, in some instances, a frat boy jerk to Sandra Day O’Connor. So, take the lionization of the Kagan relationship with a healthy grain of salt.

Antonin “Nino” Scalia was a flawed, but important man. He is now gone. So, the biggest issue is, what happens now? Republican leadership did not have to announce that they will stall their asses off and try to prevent the confirmation of ANY nominee that Obama would put up. Frankly, that went without saying in today’s Congress.

But, can they do that, will there be no Obama SCOTUS nominee confirmed, no matter what? I would not be shocked if that were not so. By the same token, the longest a confirmation battle has ever taken to confirm a SCOTUS Justice is 125 days (Obama has 361 left).

Obama has already said he will make a nomination, and I believe he will. If I had to bet right now, my bet is that the nominee is Sri Srinivasan. I have long thought this, and Sri, while being a decent guy, is a dead nuts centrist, barely a “liberal” at all kind schlub that Obama loves. But I doubt the crazed GOP led Senate would confirm even a milquetoast centrist like Srinivasan. Let other speculation begin now even though the chances of confirmation of any nominee are close to nil.

Irrespective, the primary, and certainly the general, elections just got FAR more interesting. Frankly, this is the only part of the election I was really worried about from the get go. Now it is squarely on everyone’s plate.

An EPIC Effort to Combat the Dragnet

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The Electronic Privacy Information Center has filed a writ of mandamus to SCOTUS to overturn the Section 215 order turning over all of Verizon’s call records to the NSA.

Let me be clear: this is a moon shot. I’m doubtful it’ll work. A really helpful post at SCOTUSblog on the effort emphasizes how unusual this is.

EPIC’s move is the boldest of a number of legal challenges to NSA that have been filed around the country by privacy defenders in the wake of Snowden’s public disclosure of some of the details of NSA surveillance.  EPIC filed under a Supreme Court rule that permits “extraordinary” filings directly in the Supreme Court, without first making a trip through a lower court, when “exceptional circumstances warrant the exercise of the Court’s discretionary powers” and an adequate remedy cannot be obtained “from any other court.”  The history of such Rule 20 requests shows that few are granted.  The Court’s own rules say that the power to grant such pleas is “sparingly exercised.”

All that said, IMO the filing is very well crafted, and worth reading with attention.

Name check the key Justices

I first got sucked in by the way the introduction invokes two recent cases on these issues.

The records acquired by the NSA under this Order detail the daily activities, interactions, personal and business relationships, religious and political affiliations, and other intimate details of millions of Americans. “Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.” United States v. Jones, 132 S. Ct. 945, 956 (2012) (Sotomayor, J., concurring). As Justice Breyer has recently noted, “the Government has the capacity to conduct electronic surveillance of the kind at issue.” Clapper v. Amnesty Int’l, USA, 133 S.Ct. 1138, 1158- 59 (2013) (citing, inter alia, Priest & Arkin, A Hidden World, Growing Beyond Control, Wash. Post, July 19, 2010, at A1 (reporting that the NSA collects 1.7 billion e-mails, telephone calls and other types of communications daily)). And because the NSA sweeps up judicial and Congressional communications, it inappropriately arrogates exceptional power to the Executive Branch.

Sotomayor is the one Justice who “gets” the implications of this dragnet; her opinion in Jones summarized where an ideal SCOTUS would be on these issues. If this is going to work Sotomayor is going to need to hold the hands of the other Justices and walk them through this risk. And Breyer is a key swing, a vote likely to support law and order without a good argument to the contrary.

And notice the way EPIC slipped in the separation of powers argument right there?

The motion also name checks two more crucial Justices, Republicans who have supported civil liberties issues on key cases in the past. Most importantly, it invokes Scalia’s recent warning against a panopticon in Maryland v. King (the DNA case).

Even admirable ends do not justify the creation of a panopticon. See Maryland v. King, 569 U.S. __, 133 S.Ct. 1958, 1989 (2013) (Scalia, J., dissenting) (“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless lawenforcement searches.”).

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SCOTUS Conservatives in Anonymous Disarray

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I expressed skepticism about the part of Jan Crawford’s story confirming John Roberts flipped his vote on ObamaCare that claimed Roberts had no role in writing the dissent.

Finally, there is Crawford’s not entirely convincing explanation for the relics in the dissent that seem to suggest Roberts had a hand in crafting the dissent, too.

The two sources say suggestions that parts of the dissent were originally Roberts’ actual majority decision for the Court are inaccurate, and that the dissent was a true joint effort.

The fact that the joint dissent doesn’t mention Roberts’ majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.

If true, those relics, which violate normal protocol for referring to other opinions, reflect a very big affront to Roberts’ governing opinion.

Salon now has a single anonymous source disputing Crawford’s two anonymous sources on this point.

Crawford’s sources insist on the claim that the joint dissent was authored specifically in response to Roberts’ majority opinion, without any participation from him at any point in the drafting process that created it. It would, after all, be fairly preposterous for the four dissenters to jointly “author” an opinion that was in large part written originally by the author of the majority opinion to which the joint dissenters were now so flamboyantly objecting.

Yet that, I am told by a source within the court with direct knowledge of the drafting process, is exactly what happened. My source insists that “most of the material in the first three quarters of the joint dissent was drafted in Chief Justice Roberts’ chambers in April and May.” Only the last portion of what eventually became the joint dissent was drafted without any participation by the chief justice.

[snip]

Roberts’ chamber did much of the drafting of the [first 46 pages of the dissent, which don’t mention Roberts’ opinion], and none of the [last 19 pages, which do mention it]. In short, it appears Chief Justice Roberts ended up in large part authoring both the majority opinion and the dissent in National Federation of Independent Business v. Sebelius.

Set aside the fact we’ve got a anonymous leak war going on, with neither side inherently garnering credibility. Set aside what Salon’s report, if correct, would suggest about Roberts.

I want to focus on what it means that comity in the court has broken down in this way. If Crawford’s report comes, as many suspected, from the conservative justices themselves, it would suggest they leaked a transparently illogical cover story (in that it didn’t explain the relics that made everyone suspicious about the dissent in the first place). They not only broke SCOTUS protocol about leaks, but did so and, reportedly, lied in doing so.

Then you’ve got a quick response from someone–could this be a Roberts clerk? one of the other conservatives?–calling out that purported lie.

To what end? To shift the emphasis on Roberts’ fickleness? To try to tone down the confrontational claims at the heart of the Crawford piece? And if another of the conservatives is behind the Salon report, then how do the original leakers feel about the story? What are the political objectives of each side of this anonymous leak war?

And all this is just what we can see through the screen of anonymity. The rancor this expresses must be worse in person.

Even if it’s all anonymous, I gotta say, I’m glad this leak fest has revealed the conservative justices in all their bitchy glory.

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Chief Justice Roberts, Flipped Votes, and the Naked Partisans

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Yesterday Barack Obama discovered the one high-rankng Republican in the country who would help him raise taxes: John Roberts.

While the political (how will yesterday’s ruling affect both the Presidential and lower ticket races in November) and pragmatic (what red states will turn down tons of Federal money to provide health care for their poor) consequences of yesterday’s decision are still playing out, I’m quite interested in the Kremlinology over Roberts’ vote.

Because the unsigned dissent on the mandate refers to Justice Ginsburg’s opinion as itself the dissent–and for a slew more reasons–a number of people think that Roberts originally joined the conservatives, but then flipped at a late moment. (See here and here for a discussion of the evidence supporting that argument, see here for an alternative explanation.)

Then there are questions about why Roberts voted, for the first time, with just the liberal block, his first swing vote on one of the highest profile cases of his tenure. Was it to save the respectability of the Court? To gut the commerce clause? To serve his one consistent constituency, corporations?

The answer to those questions, too, are still playing out.

I can’t help but see this in another context. This decision was the last opportunity for SCOTUS to help defeat Barack Obama. They helped mightily with Citizens United and again with their rejection of the Montana campaign finance case. The Court came close to helping on voting rights and redistricting. The Republicans in the Roberts court has done a lot to make sure Obama doesn’t get to pick anymore of their future colleagues.

But yesterday’s decision had a big impact on the the course of this year’s election. Had the Administration lost, I do think they hypothetically could have used the loss as a rallying point, though in practice they have never shown the ability to win this political argument or even try in concerted fashion, so the more likely outcome would have been a setback at the polls. I do think given Mitt’s embrace of the dissent–rejecting insurance for those with pre-existing conditions, among other things–Democrats ought to be able to spin his opposition to great advantage. Yet I also agree with those who argue that neither Obama nor Mitt have an incentive to talk much about healthcare moving forward. Congressional races are another thing altogether, as the GOP will try to run on a promise to overturn ObamaCare.

Alll that said, I’m most struck by the naked partisan face that has emerged in recent days. While the dissent was largely an angry legalistic screed, the decision–to overturn all of ObamaCare–was radical in its intent. Ginsburg’s opinion’s frequent reliance on the Massachusetts example, RomneyCare, was a nice partisan touch. Most all there’s the haunting dissent to the SB 1070 ruling that Scalia read on Monday, using slavery-era law to argue that states could exclude undesirables from their state (to say nothing of Alito’s defense of life in prison for teenagers).

Roberts may be a corporatist, but the other four conservatives are showing far uglier faces of late.

Then there’s this detail. Amanda Terkel noted Jim DeMint saying conservatives had been “teased” into believing SCOTUS would overturn ObamaCare for them, doing as activist judges what even Erick Erickson now accepts must be done by politics.

“Teased”? What does that mean? Was DeMint “teased” with the results before Roberts flipped, if he did? Did DeMint have reason to believe the five conservatives had taken the radical step of overturning all of ObamaCare?

I don’t know the answer to that, but I will say that the dissenters yesterday have clerks and other staffers who, with a half hour’s work, could have hid the most obvious relics of John Roberts’ flip, if that’s what he did. Search and replace: “dissent,” “concurrence.” That is, if indeed Roberts flipped his vote, then it seems likely that the angry Republicans deliberately left evidence that would lead us all to speculate if not conclude he had done so.

SCOTUS doesn’t leak, Jack Goldsmith says, because it doesn’t bring the same political leverage that leaking does for Executive branch employees.

The justices benefit from the reality and mystique of secrecy, and gain nothing from a leak. A justice can frame a case to the public in a written opinion and wins no internal leverage (and likely loses some) from disclosing the disposition of a case prematurely.

[snip]

Emboldened lower level officials become disrespectful of the secrecy system and sometimes disclose classified information to spin an operation in their favor, to settle a bureaucratic score, or to appear important.

Whether or not Jim DeMint learned how the Court voted some time ago, if it’s true Roberts flipped his vote, then it seems likely the other conservatives–the ones serving an even uglier partisan ideology than Roberts’ raw corporatism–believe they benefit from making that known now, after the fact.

They delivered their side of the bargain, the clues in the dissent show. And they seem to want that known.

SCOTUS Unanimously Declares (Some) GPS Tracking a Search

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Good news! The Fourth Amendment is not totally dead yet!

SCOTUS just handed down its decision in US v. Jones, which I wrote about here. And while there are three concurring opinions (the majority authored by Scalia and joined by Roberts, Kennedy, Thomas, and Sotomayor, a concurrence from Sotomayor, and another concurrence written by Alito and joined by Ginsburg, Breyer, and Kagan), all upheld the Circuit Court decision throwing out evidence warrantless use of a GPS surveillance.

But the opinions are worth reading closely because–as I pointed out in my earlier post–they may indicate whether SCOTUS would find the Administration’s secret use of the PATRIOT Act to track people via the GPS in their cell phones to be legal (as well as other digital surveillance).

Scalia’s opinion focused on the way the government occupied property in this case, arguing that more recent decisions that have focused on reasonable expectations of privacy do not affect the original protection of the Fourth Amendment tied to property.

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.

[snip]

Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation [expectation of privacy]. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo, supra, at 34. As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates.

[snip]

What we apply is an 18th-century guarantee against un- reasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted. The concurrence does not share that belief. It would apply exclusively Katz’s reasonable-expectation of-
privacy test, even when that eliminates rights that previously existed.

Alito’s concurrence, on the other hand, sees four problems with this approach, which boil down to the implications of Scalia’s logic being both too narrow and too broad. The first three are:

  • It would find non-trespassing long-term surveillance okay but short term trespass not (both one and two are versions of this)
  • Given different state property laws (particularly community property under marriage), it would have inconsistent results in different states

Alito’s fourth problem, though, is the key one: Scalia’s approach is not very helpful given how much surveillance is electronic.

Fourth, the Court’s reliance on the law of trespass will present particularly vexing problems in cases involving surveillance that is carried out by making electronic, as opposed to physical, contact with the item to be tracked. For example, suppose that the officers in the present case had followed respondent by surreptitiously activating a stolen vehicle detection system that came with the car when it was purchased.

That said, having made a case that electronic surveillance can be just as inappropriate as physical trespass assisted surveillance, Alito goes onto make problematic squishy distinctions, suggesting our current expectations of privacy with regards to GPS tracking pivot on the length of time the surveillance continues. And he suggests we may be losing our expectation of privacy with respect to that tracking.

For example, when a user activates the GPS on such a phone, a provider is able to monitor the phone’s location and speed of movement and can then report back real-time traffic conditions after combining (“crowdsourcing”)
the speed of all such phones on any particular road.9 Similarly, phone-location-tracking services are offered as “social” tools, allowing consumers to find (or to avoid) others who enroll in these services. The availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.

Most troubling, Alito suggests that for some “extraordinary offenses,” extended tracking might be okay.

We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques.

Both Alito and Scalia (who rightly mocks this carve out) seem unwilling to talk about what might be acceptable in counterterrorism surveillance.

In short, while Scalia crafts a fairly cautious opinion based on private property, Alito crafts one that could easily be chipped away as we all get used to our smart phones.

The two arch-conservative Republicans both defend the Fourth Amendment, though, but it’s unclear they’re read to talk about the big questions before us (and, presumably, before them in the near future). In at least one way, Alito even underestimates what the government is capable of, claiming it cannot

But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue
every single movement of an individual’s car for a very long period.

That’s likely a false assumption, particularly given the storage capacity our government is using to surveil us and the requirements on cell phone companies to store data.

Sotomayor, IMO, is the only one ready to articulate where all this is heading. She makes it clear that she sides with those that see a problem with electronic surveillance too.

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.

[snip]

I would also consider the appropriateness of entrusting to the, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent“a too permeating police surveillance,”

And in a footnote, makes a broader claim about the current expectation of privacy than Alito makes.

Owners of GPS-equipped cars and smartphones do not contemplate that these devices will be used to enable covert surveillance of their movements.

Ultimately, the other Justices have not tipped their hand where they’ll come down on more generalized issues of cell phone based surveillance. Sotomayor’s opinion actually doesn’t go much further than Scalia claims to when he says they can return to Katz on such issues–but obviously none of the other Republicans joined her opinion. And all those who joined Alito’s opinion seem to be hiding behind the squishy definitions that will allow them to flip flop when the Administration invokes national security.

Update: This is a great post on what Jones means for the Fourth Amendment more generally.

Scalia Invents a New Meaning for “Suspicion” while Letting Ashcroft Off the Hook

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SCOTUS has just ruled unanimously that John Ashcroft can’t be sued by Abdullah al-Kidd for using a material witness warrant to incarcerate him. The 8 justices (Elena Kagan recused herself) all agree there was no law explicitly prohibiting this kind of abuse of material witness warrants, so Ashcroft has immunity from suit.

Where the decision gets interesting is in the justices’ various statements about whether material witness warrants are valid under the Fourth Amendment. The court’s swing justice, Anthony Kennedy, basically invited a constitutional challenge of the material witness warrants themselves.

The scope of the statute’s lawful authorization is uncertain. For example, a law-abiding citizen might observe a crime during the days or weeks before a scheduled flight abroad. It is unclear whether those facts alone might allow police to obtain a material witness warrant on the ground that it “may become impracticable” to secure the person’s presence by subpoena. Ibid. The question becomes more difficult if one further assumes the traveler would be willing to testify if asked; and more difficult still if one supposes that authorities delay obtaining or executing the warrant until the traveler has arrived at the airport. These possibilities resemble the facts in this case. See ante, at 2.

In considering these issues, it is important to bear in mind that the Material Witness Statute might not provide for the issuance of warrants within the meaning of the Fourth Amendment’s Warrant Clause. The typical arrest warrant is based on probable cause that the arrestee has committed a crime; but that is not the standard for the issuance of warrants under the Material Witness Statute. See ante, at 11 (reserving the possibility that probable cause for purposes of the Fourth Amendment’s Warrant Clause means “only probable cause to suspect a violation of law”). If material witness warrants do not qualify as “Warrants” under the Fourth Amendment, then material witness arrests might still be governed by the Fourth Amendment’s separate reasonableness requirement for seizures of the person. See United States v. Watson, 423 U. S. 411 (1976). Given the difficulty of these issues, the Court is correct to address only the legal theory put before it, without further exploring when material witness ar-rests might be consistent with statutory and constitutional requirements.

Mind you, he remains coy about what he thinks about the material witness warrants, as his language makes clear: “uncertain,” “might,” “unclear,” “more difficult,” “more difficult,” “possibilities,” “might not,” “might.”  Of note, though, he neither endorses a rather crazy argument Antonin Scalia makes (joined by the usual suspects)–that witnesses to a crime may now be considered suspects of a sort–nor Ruth Bader Ginsburg’s trashing (joined by Sotomayor and Breyer but not Kennedy) of that claim.

Here’s Scalia’s assertion:

Needless to say, warrantless, “suspicionless intrusions pursuant to a general scheme,” id., at 47, are far removed from the facts of this case. A warrant issued by a neutral Magistrate Judge authorized al-Kidd’s arrest. The affidavit accompanying the warrant application (as al-Kidd concedes) gave individualized reasons to believe that he was a material witness and that he would soon disappear.The existence of a judicial warrant based on individualized suspicion takes this case outside the domain of not only our special-needs and administrative-search cases, but of Edmond as well.

A warrant based on individualized suspicion in fact grants more protection against the malevolent and the incompetent than existed in most of our cases eschewing inquiries into intent.

Here’s Ginsburg’s response:

The Court thrice states that the material witness warrant for al-Kidd’s arrest was “based on individualized suspicion.” Ante, at 6, 8. The word “suspicion,” however, ordinarily indicates that the person suspected has engaged in wrongdoing. See Black’s Law Dictionary 1585 (9th ed. 2009) (defining “reasonable suspicion” to mean “[a] particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity”). Material witness status does not “involv[e] suspicion, or lack of suspicion,” of the individual so identified. See Illinois v. Lidster, 540 U. S. 419, 424–425 (2004).This Court’s decisions, until today, have uniformly used the term “individualized suspicion” to mean “individualized suspicion of wrong-doing.”

[12 cases–many of them the ones used to authorized warrantless wiretaps–cited]

The Court’s suggestion that the term “individualized suspicion” is more commonly associated with “know[ing] something about [a] crime” or “throwing . . . a surprise birthday party” than with criminal suspects, ante, at 6, n. 2 (internal quotation marks omitted), is hardly credible. The import of the term in legal argot is not genuinely debatable. When the evening news reports that a murder “suspect” is on the loose, the viewer is meant to be on the lookout for the perpetrator, not the witness. Ashcroft understood the term as lawyers commonly do: He spoke of detaining material witnesses as a means to “tak[e] suspected terrorists off the street.” App. 41 (internal quotation marks omitted).

And here’s Scalia’s retort to that:

JUSTICE GINSBURG suggests that our use of the word “suspicion” is peculiar because that word “ordinarily” means “that the person suspected has engaged in wrongdoing.” Post, at 3, n. 2 (opinion concurring in judgment). We disagree. No usage of the word is more common and idiomatic than a statement such as “I have a suspicion he knows something about the crime,” or even “I have a suspicion she is throwing me a surprise birthday party.” The many cases cited by JUSTICE GINSBURG, post, at 3, n. 2, which use the neutral word “suspicion” in connection with wrongdoing, prove nothing except that searches and seizures for reasons other than suspected wrongdoing are rare.

In other words, Scalia wants to broaden the Fourth Amendment to sanction searches (and arrests) of people suspected of knowing something or doing something (throwing a birthday party!), rather than just those suspected of doing something illegal.

Not only does Scalia’s novel interpretation of the word “suspicion” pre-empt future challenge to material witness warrants’ constitutionality, but it also lays a novel groundwork for sanctioning all the domestic surveillance the government has been conducting. After all, the government is wiretapping (or tracking the geolocation of) people who may or may not have committed a crime, but are suspected solely of talking to or hanging out in the vicinity of a suspected terrorist.

And because Kennedy didn’t tip his hand in either direction, that’s the kind of interpretation the government will use–no doubt in its secret interpretations of the laws–to claim it can surveill even those of us suspected of no crime.

Because suspicion doesn’t mean what it used to mean.

Scalia Kills Corporate Personhood

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Eli alluded to this in his post on Antonin Scalia’s claim that women and gays are not included under the 14th Amendment, but I wanted to expand on it.

Scalia, one of corporate America’s biggest friends on SCOTUS, just killed corporate personhood.

What other conclusion can you draw after reading Scalia’s assertion that the 14th Amendment only applies to slaves and not women or gays or–he doesn’t say it but it would follow logically–corporations?

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

It was the Fourteenth Amendment, after all, that was used to grant railroad corporations the same rights as you and me. Here’s how Thom Hartmann describes it.

But in any case, before the Supreme Court the Southern Pacific Railroad argued in this case that the 14th amendment which says ‘no person shall be denied equal protection under the law’ should apply to them as a corporation. In other words, that as a corporation they should have rights under the constitution because the 14th amendment, when it was written to free the slaves in the 1870’s, the 14th amendment didn’t say ‘no natural person shall be denied equal protection under the law.’ Instead it says ‘no person.’ And for hundreds of years of common law we had this distinction between natural persons, you and me, and artificial persons: churches, governments, corporations.

If the Fourteenth Amendment shouldn’t be applied to women and gays, then it sure as hell shouldn’t be applied to railroads, right?

Is there something more going on (and I’m sure there are a lot of you out there that will explain this to me)? I’m wondering whether, in anticipation of severely reversing the application of the Fourteenth Amendment (perhaps in anticipation of a gay rights case, perhaps to support conservative efforts to overturn birthright citizenship), Scalia is laying the basis for corporate protections elsewhere?

After all, in Citizens United, Scalia very carefully rooted his concurrence in the First Amendment alone, not the Fourteenth. But note how he very carefully takes the opposite approach to the First Amendment that he does with the Fourteenth Amendment: that in spite of the dissent’s extensive description of the founding fathers’ caution about corporations, so long as they didn’t explicitly exclude any speakers, they must be assumed to have included corporations–incorporated associations–in their intent.

The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment . It never shows why “the freedom of speech” that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form.

[snip]

There were also small unincorporated business associations, which some have argued were the “ ‘true progenitors’ ” of today’s business corporations. Friedman 200 (quoting S. Livermore, Early American Land Companies: Their Influence on Corporate Development 216 (1939)); see also Davis 33. Were all of these silently excluded from the protections of the First Amendment ?

The lack of a textual exception for speech by corporations cannot be explained on the ground that such organizations did not exist or did not speak.

[snip]

The dissent says that when the Framers “constitutionalized the right to free speech in the First Amendment , it was the free speech of individual Americans that they had in mind.” Post, at 37. That is no doubt true. All the provisions of the Bill of Rights set forth the rights of individual men and women—not, for example, of trees or polar bears. But the individual person’s right to speak includes the right to speak in association with other individual persons.

[snip]

But to return to, and summarize, my principal point, which is the conformity of today’s opinion with the original meaning of the First Amendment . The Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals—and the dissent offers no evidence about the original meaning of the text to support any such exclusion.

Maybe the answer is just that Scalia’s a raging hypocrite and we shouldn’t take his inconsistencies very seriously because he’s always inconsistent. But I do wonder whether there’s something more going on, and would love to know what you all think?

Should Elena Kagan Really Be Getting Shooting Lessons from the Koch-Addled Hunting Buddy of the Guy Who Shoots People in the Face?

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I admit I’m no big fan of Elena Kagan. But tell me whether I’m justified in worrying about this?

Data point 1: On at least one occasion, Antonin Scalia participated in the Koch brothers’ secret sessions plotting to advance the Koch agenda.

Data point 2: Antonin Scalia is hunting buddies with Dick Cheney.

Data point 3: Dick Cheney has been known to “accidentally” shoot his hunting partners in the face.

Data point 4: Scalia and Kagan are spending lunches shooting skeet together.

I always thought one of Kagan’s strongest qualities was her instinct for self-preservation. But going shooting with Cheney’s hunting buddy sure seems to violate every principle of self-preservation.

When Did Clarence Thomas Go to the Koch Conspiracy Fest? And Did He Bring Ginni?

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As you’ve no doubt heard, the right wing conspiracy does exist. As the NYT reported the other day, the Koch brothers host semi-annual secret get-togethers to strategize with other rich conservatives and media people about how to advance their views.

The participants in Aspen dined under the stars at the top of the gondola run on Aspen Mountain, and listened to Glenn Beck of Fox News in a session titled, “Is America on the Road to Serfdom?” (The title refers to a classic of Austrian economic thought that informs libertarian ideology, popularized by Mr. Beck on his show.)The participants included some of the nation’s wealthiest families and biggest names in finance: private equity and hedge fund executives like John Childs, Cliff Asness, Steve Schwarzman and Ken Griffin; Phil Anschutz, the entertainment and media mogul ranked by Forbes as the 34th-richest person in the country; Rich DeVos, the co-founder of Amway; Steve Bechtel of the giant construction firm; and Kenneth Langone of Home Depot.

Sure, we’ve known that rich people work like this for a while; this report simply provides documentation of it.

But one detail of the NYT report deserves further scrutiny: the report that Clarence Thomas and Antonin Scalia have attended the gathering.

To encourage new participants, Mr. Koch offers to waive the $1,500 registration fee. And he notes that previous guests have included Justices Antonin Scalia and Clarence Thomas of the Supreme Court, Gov. Haley Barbour and Gov. Bobby Jindal, Senators Jim DeMint and Tom Coburn, and Representatives Mike Pence, Tom Price and Paul D. Ryan. [my emphasis]

Again, it’s not a surprise that the guy who duck-hunted with Dick Cheney while reviewing a suit involving the Vice President would hang around with the conservative elite.

But the report raises a whole slew of questions.

Think Progress has an important post looking at how Scalia and Thomas have been instrumental in loosening campaign finance regulations, which has made it a lot easier for people like the Kochs to buy elections.

But Scalia and Thomas have been involved in more than just rulings that make it easier for the Kochs to win election.

After all, they once cast two of the only nine votes to matter in the 2000 Presidential election.

They’ve not only issued rulings that make it easier for conservatives to win elections, they’ve decided an election. And one of the most obvious explanations for why Thomas and Scalia have attended at least one of these secret shindigs but not Sam Alito or John Roberts would be if they attended before the latter two were SCOTUS Justices. You know, back before Thomas and Scalia selected a President.

So did Thomas and Scalia attend a meeting strategizing how to win elections before the decided one?

And then there’s the other question: whether Ginni Thomas, the founder of an organization that bridges mainstream conservatives with the TeaBagger movement, attended the gathering.

The invitation from this year’s shindig shows that most attendees bring their spouses. So if Thomas followed the norm, then Ginni would have attended with him. Which would put Ginni Thomas, now a big player in the TeaBagger movement, at an event hosted by the guys who are bankrolling the TeaBagger movement.

The Koch brothers would already be leading candidates to be funding Liberty Central. The Koch brothers would already be leading candidates to be the source of the $500,000 or $50,000 donations from undisclosed individuals to Liberty Central. The Koch brothers–and their funding of TeaBagger activities–have been central in opposing the health care reform that Liberty Central has called unconstitutional.

But it would be very neat if the Koch brothers recruited Ginni Thomas to front this group at their secret cabal meeting, wouldn’t it?