The Court is on winter recess until the Justices reconvene for the Conference of February 17.  Our “Petitions to watch” for that Conference is here.

The February sitting begins February 21.

In association with Bloomberg Law

The Obama Administration asked the Supreme Court on Friday to expand by a half-hour — to a total of six hours — the time allowed for oral arguments in late March on the constitutionality of the new federal health care law.   In a ten-page motion, U.S. Solicitor General Donald B. Verrilli, Jr., said the added time would be provided for the opening arguments on Monday, March 26, on whether the challenges to the new individual insurance-purchase mandate are barred by the federal Anti-Injunction Act, a law designed to protect the government’s power to collect tax revenue.  The motion also suggested ways to divide up the three days of argument among the parties, but noted that there is some disagreement over that part of the motion.

The Court on November 14 agreed to hear four separate issues about the new Affordable Care Act: first, the constitutionality of the insurance mandate; second, the issue of whether the challenges to the mandate are barred by the AIA; third, the question of what parts of the law, if any, would fall if the insurance mandate were struck down, and, fourth, the constitutionality of the expansion of Medicaid health coverage for poor people.

Here is the lineup of the three days of argument — first with the Court’s order, then with the division of time suggested on Friday by the Solicitor General:

Monday, March 26:

The Anti-Injunction Act issue:  Court ordered 60 minutes of argument.  The Solicitor General seeks 90 minutes, with the time allotted this way if the Court agreed to expand the time: Robert Long, amicus, arguing in favor of the AIA as a ban on challenges to the insurance mandate, 40 minutes; the Solicitor General, 30 minutes; the 26 states and the National Federation of Independent Business, 20 minutes combined.  The motion noted that the states and the NFIB plan to seek more time than the 20 minutes proposed by the SG.  If the Court declines to add 30 minutes, the 60 minutes would be allotted this way: Long, 30 minutes; U.S. 20 minutes, states and NFIB, 10 minutes combined.

Tuesday, March 27:

Constitutionality of the insurance mandate: Court ordered two hours of argument.  The SG urged that the U.S. and its opponents (the 26 states and the NFIB), divide the time equally, with 60 minutes each.  The SG noted that the states and NFIB will seek to divide their 60 minutes for 30 minutes each.

Wednesday, March 28:

First issue that day: Severability of the insurance mandate from other parts of the law if the mandate is struck down.  The Court ordered 90 minutes of argument time.  The SG urged the Court to divide the time equally: 30 minutes combined for the 26 states and the NFIB, 30 minutes for the U.S., and 30 minutes for Bartow Farr, as amicus arguing that all of the ACA must fall if the mandate is nullified (a position that neither the U.S. nor the states/NFIB support).  The SG noted that the states and NFIB will seek more time than the 30 minutes assigned to them, and will ask for less for the U.S., with whatever time is given to the states and NFIB to be divided eqaully between them.  The SG contended that, whatever time the Court allotted to the states and NFIB, the U.S. must have an amount equal to their combined time because it is facing a variety of other lawsuits over this issue, if the mandate falls, while the states and NFIB are interested in this case only.

Second issue the day:  Constitutionality of the Medicaid expansion.  Court ordered 60 minutes of argument time.  The SG urged the Court to divide the time equally between the U.S. and the 26 states as a group.  (The NFIB is not involved in this issue and there are no amici involved in oral argument.)

In SG Verrilli’s motion, he spelled out reasons for the disagreement, where that exists, and explained the government’s specific needs, while informing the Court of the forthcoming pleas for a different array that the states and the NFIB will be seeking.

The Court has complete discretion over how much time to assign for any argument, and how the argument is divided up.

 

 

 

In association with Bloomberg Law

With the Court still in its mid-term recess, today’s clippings focus on the activities of Justices Ruth Bader Ginsburg and Sonia Sotomayor.

The AP’s Mark Sherman (via the Traverse City (Mich.) Record-Eagle) reports that Justice Ginsburg has returned from her visit to Egypt and Tunisia, a trip that was sponsored by the State Department. Speaking to a crowd at Cairo University, the Justice told students she was inspired by the protests that led to the end of Hosni Mubarak’s regime. The ABA Journal’s Molly McDonough also has coverage.

At the Daily Report, Jonathan Ringel reports that Justice Sotomayor made a guest appearance on Sesame Street Thursday night. In the skit, the Justice heard arguments in the case of Baby Bear v. Goldilocks.

Briefly:

• Writing for the Huffington Post, Lyle Denniston discusses whether the public should be able to “veto” unpopular Court decisions.
• Doug Schoen of Forbes analyzes the potential political consequences of the Court’s opinion on health care reform.
• Slate’s Dahlia Lithwick discusses comedian Stephen Colbert’s crusade against Citizens United. “In the history of the Supreme Court,” she writes, “nothing has ever prepared the justices for the public opinion wrecking ball that is Stephen Colbert.”
• At Appellate Daily, Michelle Olsen discusses some of the issues at stake in Kiobel v. Royal Dutch Petroleum Co., scheduled for argument later this month.
• John Lotter, a Nebraska death row inmate whose murder case inspired the 1999 film “Boys Don’t Cry,” has filed a cert. petition. Lori Pilger of the Lincoln Journal Star has coverage.
• The Huffington Post’s Luke Johnson reports on recent remarks on the Republican presidential race by retired Justice Sandra Day O’Connor at a dinner in Washington.
• At Concurring Opinions, Gerald Magliocca discusses his favorite Court opinion.

 

In association with Bloomberg Law

The Supreme Court will conclude its oral arguments for the current Term with the major case on a state’s power to pass laws to control undocumented immigrants living in the state — Arizona v. United States (docket 11-182) — on April 25.   The Court on Friday released the April calendar, listing cases to be heard in the final scheduled sitting of October Term 2011.   This is a relatively thin calendar, with arguments heard only in the mornings; each session is limited to one hour.  The sessions begin at 10 a.m.  No other cases will be heard this Term unless something arises as an emergency.

The schedule of cases, including a brief summary of the issues at stake, follows the jump.

Mon., April 16:

11-204 — Christopher v. SmithKline Beecham Corp. – eligibility of “outside salesmen” of pharmaceutical companies for overtime pay

Tues., April 17:

11-5683 — Dorsey v. United States (and 11-5721 – Hill v. United States) — application of Fair Sentencing Act of 2010 to all those sentenced after the law was enacted (Cases consolidated for one hour of oral argument)

Wed., April 18:

11-551 — Salazar v. Ramah Navajo Chapter — duty of federal government to pay all of the contract costs when an Indian tribe performs government functions under contract, even though Congress has imposed spending limits

Mon., April 23:

11-166 — RadLAX Gateway Hotel v. Amalgamated Bank –  secured creditor’s right to bid for purchase of assets being sold under a Chapter 11 bankruptcy reorganization plan

Tues., April 24:

11-246 — Match-E-Be-Nash-She-Wish Band v. Patchak (and 11-247 — Salazar v. Patchak) — immunity of U.S. government to lawsuits challenging title to land held in trust for Indian tribes’ use for gambling casino; also standing-to-sue issue (Cases consolidated for one hour of oral argument)

Wed., April 25:

11-182 — Arizona v. United States  — constitutionality of state laws seeking to control the everyday work and movement of undocumented immigrants living within the state  (Justice Elena Kagan is recused)

 

 

 

 

 

In association with Bloomberg Law

At its February 17, 2012 Conference, the Court will consider such issues as the burden of persuasion for warrantless searches of residences, the use of a defendant’s pre-arrest silence, grandparent visitation, whether human genes are patentable, and exhaustion under the Individuals with Disabilities Education Act. This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues. This list will be updated to reflect any relisted cases when that information becomes available. John Elwood’s latest “Relist (and hold) watch” is available here.  The full list of our “Petitions to watch” for the February 17 Conference is here. A complete list also follows the jump.

• Greenberg Traurig, L.L.P. v. Conwill
• City of Redondo Beach v. Comite de Jornaleros de Redondo Beach
• Troyanos v. Coats
• Sandel v. Williams
• Ute Mountain Ute Tribe v. Padilla
• Association for Molecular Pathology v. Myriad Genetics
• Star Northwest v. City of Kenmore
• McGinness v. Crime, Justice and America
• Reniff v. Hrdlicka
• Lozman v. City of Riviera Beach, Florida
• Williams v. Sandel
• Janssen Biotech v. Abbott Laboratories
• Vance v. Ball State University
• Hynix Semiconductor Inc. v. Rambus Inc.
• Peninsula School District v. D.P.
• Rubin v. Islamic Republic of Iran
• Bogan v. City of Chicago
• E.R.G. v. E.H.G.
• Cannella v. Florida
• City of Arlington v. Texas
• Aerolease of America, Inc. v. Veerland

In association with Bloomberg Law

This is another post in an ongoing series analyzing statistical trends at the Court. For a more complete look at the statistics that we collect on the Court, you can find all of our up-to-date charts and graphs here.

Pace of Opinions. The Court has released opinions at a blistering pace through the first half of October Term 2011. Since John Roberts became the Chief Justice in 2005, the Court has not released more than 19 merits opinions through the end of the January sitting. This year, however, the Court has released 21, including blockbusters United States v. Jones and Perry v. Perez – with the latter taking only 42 days from the Court’s notation of probable jurisdiction to a decision on the merits. The Court is likely to release a mid-major, Florence v. Board of Freeholders, during the February or March sittings.

Opinion Authorship. With the steady flow of opinions, the Justices have all been busy putting out opinions on a number of hot-button issues. Justice Scalia leads his colleagues with eight total opinions authored, including three majority opinions and three dissenting opinions. Justice Ginsburg has authored seven total opinions, comprised of four majority opinions and three concurring opinions. One Justice has yet to author even a single majority, concurring, or dissenting opinion: Justice Kennedy. In some ways his silence is surprising – the Court has disposed of nearly a quarter of the cases it will likely decide during OT11, but Justice Kennedy is nowhere to be found. On the other hand, he tends to write most frequently in high-profile, divided cases which often take longer to move from oral argument to published opinion. He has also traditionally written a low number of total opinions: last Term, only the Chief Justice and Justice Kagan authored fewer total opinions. However, compared to Justices Scalia and Ginsburg, who have authored eight and seven opinions, respectively, Justice Kennedy’s silence seems especially notable. Let’s take a look at how all of the Justices have fared during OT11.

Justice Total Opinions Scalia 8 Ginsburg 7 Thomas 4 Sotomayor 4 Breyer 3 Alito 3 Kagan 3 Roberts 2 Kennedy 0

 
Despite his silence up to this point in the Term, there is no doubt that Justice Kennedy will leave his mark on the Term by the end of June. With so many landmark decisions lined up for the Term, it seems likely that Justice Kennedy will write his fair share of noteworthy majority, concurring, and dissenting opinions.

Lone Dissents. Of the 21 merits opinions that have been released during OT11, five have been 8-1 decisions, including all four opinions released on January 10. The pace of 8-1 decisions is more notable than the mere number of opinions. During the past decade, the Court has released around 5-7 8-1 decisions per Term, although that tally rose to ten last year and has fallen to four in OT02, 05, and 08.

Stat Pack. We have also compiled an update to our OT11 Stat Pack. This edition features updates to reflect all opinions and orders released to date, as well as the introduction of our Justice Agreement charts. You can find it here.

This edition features the following pages:

• Opinions by Sitting
• Circuit Scorecard
• Cases by Vote Split
• Opinions Authored
• Justice Agreement
• Pace of Grants
• Pace of Opinions

You can also find all of our regularly updated statistics by clicking on the “Statistics” button on the top bar or by clicking here.

In association with Bloomberg Law

The petition of the day is:

Johnson v. United States

Docket: 11-833
Issue(s): Whether 18 U.S.C. § 1958(a), which makes it a crime to travel in or use a facility in interstate or foreign commerce “with intent that a murder be committed” for money or something of pecuniary value, or to conspire to do so, requires that the interstate activity be done for the purpose of facilitating or making easier the commission of the underlying crime of murder?

Certiorari stage documents:

• Opinion below (6th Cir.)
• Petition for certiorari

In association with Bloomberg Law

The Ninth Circuit Court on Thursday barred the public release of a videotape recording of the historic trial two years ago on the constitutionality of California’s Proposition 8 — a voter-approved ban on same-sex marriage in the state.   The three-judge panel, in a unanimous ruling, found that the trial judge had promised both sides in the case that “the recording would not be publicly broadcast” and it said that the parties were entitled to rely upon that promise.  The result is to bar public broadcast of the visual record of the three-week trial held in January 2010.

The decision did not resolve any other issue in the case, including the question of whether Proposition 8 is valid under the federal Constitution, and whether the trial judge should have taken himself out of the case because he is a gay man with a long-term male partner he might one day wish to marry.  The same Circuit Court panel has those issues under study, and is expected to decide them shortly, although no timing for those decisions has been announced.

The Circuit Court’s decision against making the tape public for use by the media as they wished marked the second time that television coverage of the trial has been thwarted.  The Supreme Court, just after the opening of the trial, had barred the live or delayed broadcast of the trial proceedings in courthouses around the country.   Since then, only a few snippets of the videotape made at the trial have been shown publicly, and then only to very limited audiences.

There is currently a dramatic presentation of the trial, appearing in several parts of the nation, that is based on the actual trial transcript, with actors fulfilling the roles of trial participants.   Unless Thursday’s result is overturned on further review, and that seems unlikely, the videotape itself appears likely to remain sealed indefinitely.   It is now held in the vault of the federal District Court in San Francisco, where the trial was held.   The current chief judge of that court, District Judge James Ware, in September ordered the release of the videotape, finding that transparency was of fundamental importance to public support of the judiciary.   It was his ruling that the Circuit Court overturned Thursday, explicitly ordering Judge Ware “to maintain the recording under seal.”

Judge Ware is now overseeing any continuing trial court activity in the Proposition 8 case, since the trial judge, District Judge Vaughn R. Walker, retired last year.   Judge Walker himself had made public some limited parts of the recording when he made public speeches.  Those releases, along with media requests for release of the tapes, led to the controversy that has now been resolved by the Circuit Court.   The backers of Proposition 8 took that dispute to the Ninth Circuit Court, along with their other challenges to Judge Walker’s participation in the trial and to Walker’s decision in August 2010, striking down the ballot measure under the Constitution’s equal protection and due process clauses.

In Thursday’s Circuit Court ruling, authored by Circuit Judge Stephen Reinhardt of Los Angeles, the panel stressed that it was resolving ‘the narrow question before us on a narrow basis.”   It noted that, on several occasions during the trial, Judge Walker “unequivocally promised that the recording of the trial would be used only in chambers and not publicly broadcast.”

The judge had made those commitments, the opinion noted, “because the Supreme Court had intervened in this very case that required him to do so.”  Thus, the opinion added, “his commitments were not merely broad assurances about the privacy of judicial records in the case; they could not have been more explicitly directed toward the particular recording at issue.”  Judge Ware, it added, was wrong in finding that Judge Walker has not made such a commitment.

Judge Ware also was wrong, the opinion said, in concluding that Judge Walker’s placing the videotape in the trial record but under seal did not bind Judge Ware when he was asked to unseal the recording.  That second finding, the panel commented, was “an implausible and illogical application of the law.  Each of these abuses of discretion manifests the same basic error: the district court failed to appreciate the nature of the statements that the trial judge had made to the litigants, the specific factual and legal context in which he made them, and the consequences of his having done so.  The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word.”

In stressing how narrow its ruling was, the Circuit Court noted that it was not deciding any issues about the right of access under the First Amendment to such trial records, and was not deciding any of the policy issues about “how to reconcile the traditional concept of ‘openness’ in judicial proceedings with the development of technology that has given the term a new meaning.”

In association with Bloomberg Law

Although the Justices are in their mid-term recess, coverage of the Court continues to focus on last week’s decision in United States v. Jones. Writing for Fox News, Robert Samuel of NewsCore reports on the lack of consensus regarding whether the Court’s decision in Jones requires authorities to obtain warrants before attaching GPS devices to vehicles. Orin Kerr of the Volokh Conspiracy responds to Samuel’s article, arguing that the text of the Jones opinion and the Fourth Amendment’s “automobile exception” indicate that the Court’s decision in Jones does not impose a GPS warrant requirement.

Mark Sherman of the Associated Press reports that Justice Ginsburg is visiting Egypt and Tunisia during the Court’s recess. Ruthann Robson of the Constitutional Law Prof Blog links to the Egyptian television station Al Hayat TV’s interview with Justice Ginsburg. Mike Sacks of the Huffington Post also has coverage of the interview.

 

Briefly:

• At the ABA Journal, Erwin Chemerinsky contends that the Court’s decisions in Minneci v. Pollard and Ryburn v. Huff “will create new obstacles for civil rights plaintiffs” looking to advance cases in federal court.
• The editorial board of the New York Times argues that the Court should allow video broadcasts of oral arguments, citing the experience of the Supreme Court of Britain as an example.
• Brian Lyman of the Montgomery Advertiser reports that former Alabama Governor Don Siegelman filed a petition for certiorari requesting the Court to review his 2006 conviction for bribery and obstruction of justice.
• In a guest column for the Cincinnati Enquirer, Fred J. Naffziger hails the Court’s decision to uphold a “ministerial exception” to federal, state, and local laws in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC as “a ringing victory for those who believe in religious freedom.”
• Marisa M. Kashino of the Washingtonian’s Capital Comment Blog notes that several Justices regularly make time to meet with children and students visiting the Court.
• In an op-ed for the Lehigh Morning Call, Matthew Rozsa argues that Justice Kagan should not be required to recuse herself from the health care cases because “there is no historical or legal basis supporting a Kagan recusal.”
• At this blog, Amy Howe explains several recent opinions in plain English.
• At his Election Law Blog, Rick Hasen discusses the effects of Citizens United and super PACs on elections.
• Debra Cassens Weiss of the ABA Journal reports that Justice Scalia will speak on Saturday as part of this week’s ABA’s Midyear Meeting in New Orleans.

In association with Bloomberg Law

The first ruling by the Ninth Circuit Court on California’s controversial ban on same-sex marriage — but not an ultimate ruling on the ban’s constitutionality — will be released Thursday morning, the Circuit Court announced Wednesday.  Coming out at 1 p.m. Washington time (10 a.m. in San Francisco), this will be a decision on whether the courts will release, for public broadcast and public viewing in general, the videotapes made of the historic federal trial on the ban known as “Proposition 8.”

The ballot measure approved by California voters in November 2008 barred gay marriages in California, but the state Supreme Court later ruled that — while Proposition 8 did not violate the state constitution — marriages already performed among same-sex couples remained legal.  The ban itself, however, was then challenged in a federal court case that unfolded in a three-week trial two years ago.  A video recording was made of the entire trial and, although some limited excerpts of it have been played before selected audiences, the full tape remains under seal in federal court.

Last September, Chief U.S. District Judge James Ware of San Francisco ruled that the tape must be made public — a move that would make it available for broadcasting throughout the nation.   The Ware ruling has been challenged in an appeal to the Ninth Circuit, by the sponsors of Proposition 8, and the Circuit Court’s announcement Wednesday showed that the three-judge panel is ready to rule.

The same panel has under review three other issues surrounding the constitutionality of Proposition 8, including whether the ban violates the federal Constitution’s equal protection and due process clauses.   Now-retired U.S. District Judge Vaughn R. Walker ruled in August 2010 that the ban does violate both of those provisions.  The sponsors have challenged that, too, in their appeal.

Before ruling on the constitutionality, the Circuit Court panel must decide two other, preliminary issues: did the sponsors of the ban have a legal right to appeal Judge Walker’s ruling, as a matter of federal constitutional law, and should Walker’s ruling be thrown out entirely on the theory that, as a gay man who has a long-term male partner, he would have a personal interest in the outcome of the trial over which he presided, and thus should have been barred from making any ruling on the ban?

If the Circuit Court were to rule that the backers of Proposition 8 did not have a right to appeal, that would be the end of the case, at the Circuit Court level, unless the en banc Circuit Court were to agree to step in.  If the backers had that right, then the panel would move on to decide the challenge to Judge Walker.  And, if it rejected that claim, the panel would then move on to the constitutional issue.

Wednesday’s announcement dealt only with the videotape release issue, and gave no indication when the panel would rule on any other issues.   All procedural matters have concluded on all issues, so further rulings could come at any time, presumably after tomorrow.

 

In association with Bloomberg Law

The petition of the day is:

King v. Kansas Judicial Watch

Docket: 11-829
Issue(s): Whether, when a plaintiff obtains a preliminary injunction but the case is mooted prior to resolution of the plaintiff’s claims for declaratory and permanent injunctive relief, the plaintiff is a “prevailing party” for purposes of 42 U.S.C. § 1988(b)?

Certiorari stage documents:

• Opinion below (10th Cir.)
• Petition for certiorari
• Amicus brief of Michigan et al.

In association with Bloomberg Law

The Justices are now in their mid-term recess, setting us up for several weeks in which we will not get any new opinions or orders.  But before starting their break, the Justices gave us a parting gift:  three opinions in argued cases.  And the debate generated by one of those decisions in particular could well fill the time until the Justices return.  Let’s talk about them in Plain English.

In a Term in which the Court was not considering the constitutionality of the Affordable Care Act, Texas’s redistricting plans, and Arizona’s controversial efforts to regulate immigration, the Court’s decision in United States v. Jones might well have been one of the stars of the Term.  Even this year, though, it was one to watch.  The Court was considering the case of Antoine Jones, a nightclub operator who received a life sentence for his role in a drug-trafficking scheme.  To obtain evidence against him, the government had installed a GPS tracking device on his car without a valid warrant and then used the device to track his movements for nearly a month.  The U.S. Court of Appeals for the District of Columbia threw out Jones’s conviction, explaining that the use of the GPS device violated his right under the Fourth Amendment to be free of “unreasonable searches and seizures.”

Not quite three months after an oral argument in which some Justices raised the specter of “Big Brother” monitoring ordinary people twenty-four hours a day, along the lines of George Orwell and the novel 1984, the Court affirmed the lower court’s decision.  All nine Justices agreed that Jones’s conviction should be reversed.  But they were deeply divided on how to reach that conclusion, leaving journalists and lawyers alike to debate the significance of the decision for future cases.

Five Justices – the Chief Justice and Justices Scalia, Kennedy, Thomas, and Sotomayor – focused on the government’s installation of the GPS tracking device on Jones’s car.  To these Justices, the installation and use of the device were the same as if the government had gone onto Jones’s property to collect information to use against him.  Because this kind of “trespassing” would have been a “search” when the Fourth Amendment was first adopted in the eighteenth century, these Justices reasoned, it is still a “search” today.

Justice Alito wrote a concurring opinion, joined by Justices Ginsburg, Breyer, and Kagan, in which he agreed that Jones should win but rejected the majority’s use of a “trespass” approach to reach that result.  Some of you may recall that during last Term’s oral arguments in Brown v. Entertainment Merchants Association, a challenge to the constitutionality of a California law banning the sale or rental of violent video games to children, Justice Alito poked fun at Justice Scalia’s use of originalism – a method of constitutional interpretation that relies on the intent of the men who drafted the Constitution – by telling one of the lawyers in the case that “what Justice Scalia wants to know is what James Madison thought about video games” and whether Madison “enjoyed them.” Criticizing the majority’s approach in Jones, Justice Alito returned to the debate over the role of originalism, explaining that he found it “almost impossible to think of late 18th-century situations that are analogous to what took place in this case.”  (In a flash of dry humor, Alito attempted to come up with a case that might fit the bill, describing a scenario in which a constable hides in a coach to monitor the movements of the coach’s owner, but he ultimately concluded that such a situation “would have required either a gigantic coach, a very tiny constable, or both.”)

Instead, Justice Alito would look to whether a reasonable person would have regarded the use of GPS tracking to monitor Jones’s movements as overly intrusive.  Shorter-term monitoring, Justice Alito explains, could pass Fourth Amendment muster.  But longer-term monitoring, as in Jones’s case, would not:  at least for now, society has believed that police could not, and would not, monitor every move that a person makes for four weeks.

Justice Sotomayor wrote a concurring opinion – which no other member of the Court joined – in which she indicated that she would agree with both the majority’s and Justice Alito’s reasons for finding a search in this case.  She began by explaining that, in her view, this particular case could be decided by the majority’s “trespass” test:  if “the Government physically invades personal property to gather information, a search occurs.”  At the same time, however, she expressed concern that the majority’s “trespass” test will not apply to other forms of surveillance that do not require the government to intrude on someone’s property – for example, cars or smartphones that already contain GPS tracking devices.  And of all of the Justices, she seemed to be the most concerned about privacy in the electronic age; she suggested, for example, that in cases involving electronic privacy the Court should take another look at its cases holding that Americans have no expectation of privacy in information that they voluntarily expose to others.  Notably, although Justice Alito shared Justice Sotomayor’s first concern regarding the limits of the majority’s approach, in his opinion he seemed to leave open the possibility that, as technology changes and becomes even more ubiquitous, our expectations of privacy could eventually decrease.

If you are having trouble deciphering the significance of the three opinions in Jones, you should take some solace in knowing that you are not alone:  there is a spirited debate in the media and blogosphere about what the Court actually held and what the decision means.  (Examples of this debate are available here and here.)  Even after Jones, it may be that the government does not need to get a judge’s permission to put a GPS monitor on a car to follow it for a few days.  At a minimum, though, you can be sure that the issues surrounding government surveillance and electronic privacy will likely be back at the Court soon.

Last week’s other decisions have received far less attention than the Court’s decision in Jones.  On the other hand, in both it was much easier to understand what the Court was ruling.

The conventional wisdom holds that the most junior Justice on the Court – currently Justice Elena Kagan, now in her second Term – gets stuck with the opinions that no one else wants to write.  That conventional wisdom certainly seemed to hold true when the Chief Justice announced that Justice Kagan was the author of the Court’s opinion in National Meat Association v. Harris.  At issue in the case was an interesting and straightforward question that the Court considers in one form or another fairly often:  whether a federal law “preempts,” or trumps, a state law.  However, the context in which this question arose was not for the squeamish, as it required the Court to examine the relationship between federal and state laws regulating slaughterhouses.

Enacted over a hundred years ago, a law passed by Congress – the Federal Meat Inspection Act (FMIA) – and the regulations issued under it by a federal agency create a comprehensive system to ensure that animals are slaughtered humanely and that the meat from those animals is safe for human consumption.  One of the ways that it seeks to do so is by establishing specific procedures for animals that are not seriously ill, but are still sufficiently sick or injured that they cannot walk.  Under the federal system, these animals must be slaughtered separately and then inspected to make sure that they can safely be used as food.

This case arises because a few years ago California enacted its own law regulating slaughterhouses.  Among other things, the state law prohibits slaughterhouses from buying or receiving animals that cannot walk.  It also prohibits the slaughterhouses from processing or selling meat from these animals; instead, the animals must be euthanized immediately.

The National Meat Association, a trade association that includes slaughterhouses, went to federal court, seeking to block the enforcement of the state law on the ground that it was preempted by the federal law.  The U.S. Court of Appeals for the Ninth Circuit disagreed; in its view, the state law only regulates what kind of animals – those that can walk – can be slaughtered without regulating the slaughtering process itself.

The Supreme Court unanimously reversed the Ninth Circuit’s decision.  To do so, it relied on a provision in the FMIA which states that the law preempts any other efforts to regulate slaughterhouses.  The California law, the Court explained, does exactly that by basically creating a new regulatory scheme for slaughterhouses in California.  To illustrate that point, the Court used the example of a pig that can walk when it is delivered to the slaughterhouse but then becomes disabled.  Under the California law, the pig would have to be euthanized immediately and could not be used for food.  But under the federal system, the pig would not have to be killed immediately, and its meat could be used for food as long as it passed inspection.  Because the California law imposed tougher requirements than the federal law, the Court concluded, it is preempted.

The Court’s preemption cases are often hotly contested and consequential – deciding, for example, whether accident victims can sue automobile manufacturers or parents can sue vaccine manufacturers for their children’s injuries.  Although animal-rights activists have criticized the decision in this case, so far it has proven (as the nine-zero vote might suggest) far less controversial.  But don’t take that as a sign that the nine Justices have reached a consensus on preemption.  Instead, a more likely interpretation is that the text of the federal law was unusually clear in preempting a wide range of state laws, making this an easy case.

The Court also issued a decision in Reynolds v. United States, a case interpreting the federal Sex Offender Registration and Notification Act (SORNA).  As I explained when the case was argued back in October, Congress passed SORNA to create a nationwide system to keep track of sex offenders; among other things, the law requires them to register with police where they live and work.  The petitioner in this case, Billy Joe Reynolds, was convicted of a sex offense in Missouri in 2001 and registered in that state after his release in 2005.  However, he was indicted under SORNA after he failed to register in Pennsylvania when he moved there in September 2007.

In February 2007, a few months before Reynolds moved to Pennsylvania, the Attorney General issued a rule indicating that SORNA applies to all sex offenders, including offenders like Reynolds who were convicted before the Act went into effect.  Thus, there were two potential issues in the case as it came to the Court.  The first question was whether SORNA, in and of itself, required Reynolds to register as a sex offender as soon as it went into effect in 2006, even if his conviction occurred before that.  If the Supreme Court were to agree with the Third Circuit (which heard Reynolds’s appeal) that it did, then his appeal would be over and his conviction would stand, because he does not dispute that he failed to register when he moved to Pennsylvania in September 2007. However, even if the Supreme Court were to disagree with the Third Circuit and hold that SORNA did not automatically require Reynolds to register, he would still have to deal with the Attorney General’s February 2007 rule, which made clear that he was indeed required to register.  To get past this point, he argued that – for constitutional and procedural reasons – the February 2007 rule wasn’t valid and therefore couldn’t apply to him.

By a vote of seven to two, the Court, in an opinion by Justice Breyer, answered only the first question, holding that SORNA does not automatically require offenders like Reynolds to register.  Instead, it held, sex offenders who were convicted before the Act went into effect are not required to register until the Attorney General of the United States issues a valid rule or regulation to that effect.  To reach its conclusion, the Court relied on the text of the statute, and in particular a provision giving the Attorney General “the authority to specify the applicability of the requirements of [the registration rule] to sex offenders convicted before the enactment” of the law.  In the majority’s view, that language means that the Attorney General has to say when and whether the law applies to offenders like Reynolds; until he does so, the registration requirement doesn’t apply.

Demonstrating once again that, even in criminal cases, the Court doesn’t always divide neatly on ideological lines, Justice Scalia wrote a dissent that was joined by Justice Ginsburg.  They emphasized that, under SORNA, all sex offenders are required to register.  Given that requirement, they believed that it would be more natural to read the language on which the majority relied – authorizing the Attorney General “to specify the applicability” of the registration rule to offenders convicted before SORNA took effect – to mean that although SORNA requires all sex offenders to register, regardless of when they were convicted, the Attorney General can then excuse offenders like Reynolds from having to register.

Although Reynolds won this battle, the case is far from over.  Instead, it will go back to the lower courts, which now get to iron out the second issue lurking in the case:  whether the Attorney General’s February 2007 rule, which specifically required offenders like Reynolds to register, is a valid one.  If the lower courts agree with the government that he did, Reynolds could still lose the war.

In association with Bloomberg Law

The Court’s recent opinion in United States v. Jones continued to provoke coverage and commentary yesterday.  At The Lakeland (Minn.) Times, Richard Moore breaks down the majority and concurring opinions.  And at The Hill’s Congress Blog, Christopher Wolf and Jules Polonetsky address Justice Alito’s suggestion that “in circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative.”

Briefly:

• Georgetown University’s student newspaper The Hoya reports on Georgetown Law’s Supreme Court Institute, which has held moot courts for advocates in forty-five of the forty-seven cases argued at the Court so far this Term.
• At the Wall Street Journal’s Law Blog, Sam Favate reports on a speech given by Erwin Chemerinsky, Dean of the University of California, Irvine School of Law.  (Nabiha covered the speech yesterday as well.)
• The Harvard Law Record reprints a letter sent to first-year law students at Harvard in an effort to mitigate anxiety about the release of first-semester grades.  The letter notes that some noteworthy alumni – including, among others, Justice Elena Kagan – received less-than-noteworthy grades in their first years.
• George Washington University’s newspaper The Hatchet reports that Justice Kennedy, Breyer, Alito, and Sotomayor will join judges from the European Court of Human Rights and several scholars for a panel on protecting civil and political rights at George Washington Law School in March.  (Thanks to Howard Bashman for the link.)

In association with Bloomberg Law

The petition of the day is:

American Trucking Associations, Inc. v. City of Los Angeles

Docket: 11-798
Issue(s): (1) Whether 49 U.S.C. § 14501(c)(1), which provides that “a State [or] political subdivision . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property,” contains an unexpressed “market participant” exception and permits a municipal governmental entity to take action that conflicts with the express preemption clause, occurs in a market in which the municipal entity does not participate, and is unconnected with any interest in the efficient procurement of services; (2) whether a required concession agreement setting out various conditions a motor carrier must meet to serve a particular port imposes any requirements that are “related to a price, route, or service of any motor carrier” for the purposes of preemption under Section 14501(c)(1); and (3) whether permitting a municipal governmental entity to bar federally licensed motor carriers from access to a port operates as a partial suspension of the motor carriers’ federal registration, in violation of Castle v. Hayes Freight Lines Inc.

Certiorari stage documents:

• Opinion below (9th Cir.)
• Petition for certiorari
• Amicus brief of Airlines for America
• Amicus brief of the Chamber of Commerce and the Nat'l Industrial Transportation League
• Amicus brief of Center for Constitutional Jurisprudence and Harbor Trucking Association
• Amicus brief for Owner-Operator Independent Drivers Association, Inc.

In association with Bloomberg Law

SCOTUSblog is now accepting applications from current law students interested in interning with us.  Details about the position’s qualifications and responsibilities, as well as how to apply, are below the jump.

The principal focus of the internship (which is a paid one)  will be assisting Tom with the “Petition of the Day” and “Petitions to watch” features on the blog. This will require roughly ten to twenty hours of work a week on a flexible work schedule, which can be accomplished remotely. The expected commitment would be through the end of the Supreme Court’s Term in late June.

To qualify for the position, you must:

• Have a strong academic record
• Be currently enrolled in a J.D. or LL.M program (undergraduates are not eligible)
• Have a strong interest in learning about the U.S. Supreme Court and its workings
• Have some experience working with (or at least interest in) blog or website technology
• Have demonstrated excellent writing and editing skills
• Have excellent organizational skills and attention to detail.

To apply, please send us the following materials:

• Cover letter
• Resume
• Contact information for two references
• A writing sample of no more than five double-spaced pages that has not been edited by anyone other than you
• An official or unofficial law school transcript.

Application materials should be sent to Kali Borkoski at kborkoski@scotusblog.com and Max Mallory at mmallory@scotusblog.com. Materials must be received by February 10th for consideration. Please note that if you are a law student and have already submitted application materials for the previously advertised Deputy Manager position, you will automatically be considered for this internship and there is no need to reapply.

In association with Bloomberg Law

With the Court’s winter recess underway, commentators continue their discussion of last week’s decision in United States v. Jones, the GPS tracking case. At this blog, Tom Goldstein provides an extended analysis of why Jones is less of a pro-privacy case than many initially reported, and why the opinions “may be the result of extremely savvy tactical moves by four members of the Court.” Orin Kerr of the Volokh Conspiracy tackles the question of why Jones is subject to such diverse interpretations, concluding that the decision is “a Rorschach test.” And at the Boston Review, Pamela Karlan discusses the difficulty of applying traditional interpretations of constitutional protections to new technologies — which is why, after Jones, many are “still left wondering, how should we understand privacy in an electronic age?”

Elsewhere, commentators look forward to what may soon come before the Court. At the Los Angeles Times, David Savage considers what the Court’s recent opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC – holding that ministers cannot sue their churches for violations of employment discrimination laws – may mean for lawsuits challenging a provision of the Affordable Care Act which requires church-run institutions to provide free contraceptives to students and employees. And in The American Prospect, Abby Rapoport reports on a petition for certiorari filed by the League of Women Voters that argues that gerrymandering in Illinois is an unconstitutional regulation of speech.

 Briefly:

•  During a keynote address at Brigham Young University, constitutional scholar Erwin Chemerinsky criticizes the Court for a “failure to communicate” with the public; the Blog of Legal Times has coverage of the speech.
• A bill introduced in the Oklahoma state senate proposes that the Supreme Court be prohibited from reviewing the constitutionality of Oklahoma laws, the Daily O’Collegian reports.
• The editorial board of the Christian Science Monitor compares the leadership styles of President Obama and Chief Justice Roberts – and argues that “both have had only limited success in their goals.”
• A family emergency forces Justice Alito to cancel an appearance in West Palm Beach, according to the Palm Beach Post.
• The Saipan Times updates its coverage of Justice Sotomayor’s visit to the Commonwealth of the Northern Mariana Islands (which Joshua covered yesterday).

In association with Bloomberg Law

The petition of the day is:

Marina Point Development Co. v. Center for Biological Diversity

Docket: 11-782
Issue(s): Whether courts can properly award attorney’s fees and costs under fee-shifting statutes that limit such awards to “appropriate” circumstances when, as here, the matter becomes moot on appeal, the judgment of this district court is vacated and undone, and the plaintiff ultimately accomplishes nothing?

Certiorari stage documents:

• Opinion below (9th Cir.)
• Petition for certiorari
• Amicus brief of the Pacific Legal Foundation

In association with Bloomberg Law

John Elwood reviews Monday’s relisted and held cases.

Last Monday brought bad news for respondents in Ryburn v. Huff, 11-208, as we finally got the predicted opinion in that four-time-relisted case.  The Court summarily reversed the Ninth Circuit’s decision, holding that police officers were entitled to qualified immunity for their entry into the Huffs’ house while there to investigate a suspected school-shooting plot.

This time of year is a hard one for distinguishing relists from holds.  The Court’s next Conference is a looooong way off (February 17), and so the online dockets are not always up to date.  As a result, some of the relist/holds this week are characterized by positively Pat-like ambiguity.

United States v. Valdez, 11-385, looks like it might be a one-time relist to allow the Court time to figure out what to do with it in light of Reynolds v. United States, 10-6549, just decided on Monday.  Valdez and Reynolds both concern the federal Sex Offender Registration and Notification Act (“SORNA”).  Specifically, they ask whether pre-enactment sex offenders had to register under SORNA before the Attorney General stated that the provisions applied to them.  (The answer, by a 7-2 vote:  no.)  In its petition in Valdez, the government suggests that if Reynolds wins, Valdez wins.  So you’d expect the Court to deny cert.  The government’s petition in Valdez recognizes that the case implicates another circuit split on a SORNA issue (whether the Attorney General validly issued the regulation providing that the Act’s registration requirements apply to all sex offenders as an interim rule), but it does not seek review on that issue because it applies to a finite and diminishing group of cases.  The Court denied cert. on that issue on October 3, but maybe there’s another pending petition that raises that issue.  Very curious.

The capital case Smith v. Bell, 10-8629, is one of this week’s hardest-to-read cases.  After holding the case since the May 12 Conference, the Court released the hold and put it on for the January 20 Conference, suggesting the Court was holding the case for Maples v. Thomas, 10-63, decided on January 18. And indeed, Smith likens his case to Maples.  But it doesn’t appear that Smith’s counsel abandoned him like the Court found counsel had in Maples, which was pretty fundamental to the finding of “cause” for the procedural default there.  The case also raises Brady claims, and in supplemental briefing, Smith says his case should be GVR’d in light of Smith v. Cain, 10-8145, decided on January 11.  Smith also has requested that his case be held for Martinez v. Ryan, 10-1001 (which involves whether criminal defendants have a constitutional right to appointed counsel in post-conviction proceedings when that is the only forum for raising ineffective assistance claims), but since that case has not yet been decided, that theory doesn’t explain relisting the case for January 20.  Maybe a dissent from denial of cert. is brewing, or perhaps having held the case for Maples, the Court is now giving this capital defendant’s case a close look to determine whether there may be some other basis for relief in the Smith v. Cain or Martinez.

Up for a second relist are City of St. Louis, Missouri v. Neighborhood Enterprises, Inc., 11-616, involving a First Amendment challenge to St. Louis’s zoning laws governing public signs, and the West Virginia double-header Marmet Health Care Center, Inc. v. Brown, 11-391, and Clarksburg Nursing Home & Rehabilitation Center, LLC v. Marchio, 11-394, which concern preemption under the Federal Arbitration Act.  The Court also relisted for the second time since calling for and receiving the record in Floyd v. Cain, 11-5987.  As you will recall, that case alleged yet more Brady violations at the New Orleans District Attorney’s Office, in the vein of Smith v. Cain.  As January 11 recedes into the past, a simple GVR seems increasingly unlikely.  As I speculated last week, there might be an opinion in the works relating either to summary reversal or denial of cert.  Of course, Fisher v. University of Texas at Austin, 11-345 (which asks whether the Equal Protection Clause permits UT Austin’s use of race in undergraduate admissions decisions) is still hangin’ around at the Court.  Finally, there’s our old friend, Wetzel v. Lambert, 11-38.  It’s getting hard to recall a time when that state-on-top habeas case was not scheduled for whatever Conference was next, with its ultimate resolution, mirage-like, always just slightly further down the road; this week it’s back for the tenth time.  As I said last week (and here, here, and here), we’ll be seeing an opinion in Wetzel soon.  But this time I really mean it.

So now some anticipatory relists, otherwise known as CFRs.  The Court called for responses from the government in three very different cases:  Sid Mar’s Restaurant & Lounge, Inc. v. United States, 11-652, which asks whether there is an exception to the prior exclusive jurisdiction rule when the United States brings a later-filed federal action seeking title to property within the jurisdiction of a state court; Bridges v. United States, 11-7928, which asks whether an officer who authored a defective warrant to search the petitioner’s home for child pornography could reasonably believe the warrant was valid when it did not describe the physical evidence to be obtained; and Gunnings v. United States, 11-7900, a pro se petition which concerns the denial of a federal prisoner’s request to have the facility in which he is now serving a state sentence designated nunc pro tunc as the place to serve his federal sentence; maybe that case reminds someone at the Court of Setser v. United States, 10-7387.

On the hold front—or then again, maybe not—is Ryan v. United States, 11-499, as in George Ryan—the former Illinois governor who, in my home state’s grand tradition, has had his share of legal troubles.  The petition asks whether Ryan adequately preserved his Skilling challenge to the “honest services fraud” jury instructions in his case.  Although the Solicitor General tells the Court that it doesn’t have to hold the case for Wood v. Milyard, 10-995 (involving, in relevant part, a court’s ability to raise a petitioner’s procedural default sua sponte), or for Vasquez v. United States, 11-199 (involving harmess error analysis), Mr. Ryan begs to differ.  So it’s probably a hold, but maybe a relist.  The Court is most likely holding Cook v. Arizona, 10-9742, for Martinez v. Ryan, 10-1001, which was argued back on October 4.  Cook asks whether criminal defendants have a constitutional right to have a lawyer appointed to represent them at post-conviction proceedings, where the state system allows a claim of ineffective assistance of counsel only during post-conviction proceedings and not on direct appeal.

And that, friends, is it for January.  Mercifully, the Court is giving us the next three weeks off.  That means I’ll have time to do some paying work, and you won’t be subjected to my lame humor—a win-win.  But before I go, let me wish you all a happy Chinese New Year with this heartfelt, if somewhat atonal greeting, which pretty much exemplifies the banality of evil.  No wait, I meant the evil of banality.

Thanks to Eric White for compiling and drafting this update.  And yes, he drafted that sentence, too.

 

United States v. Vasquez (possibly relisted after the 1/20 Conference)

Docket: 10-8629

Issue(s): (1) Whether the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding exculpatory evidence about testimony by the prosecution’s key witness? (2) Whether instructing a jury to convict if it reaches a mere “satisfactory conclusion” or “moral certainty” of guilt, while allowing jurors to convict “as you think justice and truth dictate,” violates due process?  (3) Whether “cause” exists for failing to present an ineffective assistance claim in state court, where such a claim may first be raised in postconviction proceedings, and state-appointed postconviction counsel failed to raise a claim implicating actual innocence?

 

Certiorari stage documents

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition [forthcoming]

Smith v. Bell (relisted after the 4/22, 4/29, 5/12, and possibly 1/20 Conferences)

Docket: 10-8629

Issue(s): (1) Whether the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding exculpatory evidence about testimony by the prosecution’s key witness? (2) Whether instructing a jury to convict if it reaches a mere “satisfactory conclusion” or “moral certainty” of guilt, while allowing jurors to convict “as you think justice and truth dictate,” violates due process?  (3) Whether “cause” exists for failing to present an ineffective assistance claim in state court, where such a claim may first be raised in postconviction proceedings, and state-appointed postconviction counsel failed to raise a claim implicating actual innocence?

 

Certiorari stage documents

• Opinion below (6th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Petitioner’s supplemental brief #1
• Petitioner’s supplemental brief #2

Fisher v. University of Texas at Austin

Docket:  11-345

Issue:  Whether the Supreme Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306 (2003), permit the University of Texas at Austin’s use of race in undergraduate admissions decisions.

Certiorari-stage documents

• Opinion below (5th Cir.)
• Petition for certiorari
• Brief in opposition
• Amicus brief of Gail Heriot, Peter Kirsanow, and Todd Gaziano, Members of U.S. Commission on Civil Rights
• Amicus brief of California Association of Scholars
• Amicus brief of Richard Sander, and Stuart Taylor, Jr.
• Amicus brief of Pacific Legal Foundation
• Amicus brief of Asian American Legal Foundation
• Amicus brief of Mountain States Legal Foundation
• Petitioner’s reply

City of St. Louis, Missouri v. Neighborhood Enterprises, Inc. (relisted after the 1/13 Conference)

Docket:  11-616

Issues:  (1) Whether the City of St. Louis Sign Code—which exempts from the definition of “Sign” items such as flags, merchandise window displays, time and temperature devices, civic symbols or crests, on-site church displays and works of art—impermissibly infringes speech based on content or constitutes a permissible content-neutral restriction; and (2) whether the Sign Code impermissibly infringes speech based on content by exempting from the permit requirement items such as traffic safety and directional signs, danger or cautionary signs, cornerstones and commemorative and historical signs, address numbers, holiday decorations, business window signs, information and directional signs related to a property’s use, wall or window political signs, temporary signs related to private construction, private sale, lease and rental, parking signs, and signs on refuse containers.

 

Certiorari-stage documents

• Opinion below (8th Cir.)
• Petition for certiorari
• Brief in opposition

Marmet Health Care Center, Inc. v. Brown (relisted after the 1/13 and 1/2 Conferences)

Docket:  11-391

Issues:  (1) Whether Section 2 of the Federal Arbitration Act (FAA) preempts a state-law rule that prohibits the enforcement of a pre-dispute arbitration agreement when a plaintiff asserts a personal injury or wrongful death claim; and (2) whether the Supreme Court of Appeals of West Virginia applied its state law unconscionability doctrine in a manner that subjected petitioners’ arbitration provisions to special scrutiny, thereby contravening the FAA.

Certiorari-stage documents

• Opinion below (W. Va. S. Ct.)
• Petition for certiorari
• Brief in opposition

Clarksburg Nursing Home & Rehabilitation Center, LLC v. Marchio (relisted after the 1/13 and 1/20 Conferences)

Docket:  11-394

Issue:  Whether Section 2 of the Federal Arbitration Act preempts a state-law rule prohibiting the enforcement of a pre-dispute arbitration agreement when a plaintiff asserts a personal injury or wrongful death claim.

Certiorari-stage documents

• Opinion below (W. Va. S. Ct.)
• Petition for certiorari
• Brief in opposition
• Amicus brief of American Health Care Association
• Amicus brief of Seventeenth Street Associates LLC
• Amicus brief of Beverly Enterprises-West Virginia, Inc.
• Petitioner’s reply

 

Floyd v. Cain (relisted after the 1/13 and 1/20 Conferences)

Docket:  11-5987

Issues:  (1) Is Louisiana violating the petitioner’s right to due process by not vacating his conviction despite un-rebutted evidence, adduced during post-conviction proceedings, that the State withheld several pieces of exculpatory evidence that, collectively, undermine confidence in the outcome of his trial; and (2) Given that the vast majority of states now bar the continued punishment of a convicted prisoner who has proved his factual innocence, is Louisiana’s continued punishment of the petitioner despite proof of his factual innocence cruel and unusual punishment and a violation of his right to due process?

Certiorari-stage documents:

• Opinion below (La. S. Ct.)
• Petition for certiorari
• Amicus brief of ARC of the United States
• Amicus brief of Orleans Parish Public Defenders Office
• Amicus brief of Former State and Federal Prosecutors
• Brief in opposition
• Petitioner’s reply

 

Wetzel v. Lambert (relisted after the 9/26, 10/28, 11/4, 11/10, 11/22, 12/2, 12/9, 1/6, 1/13, and 1/20 Conferences)

Docket:  11-38

Issue:  Did the Third Circuit fail to properly apply the habeas deference standard to the state court’s rejection of respondent’s Brady claim?

Certiorari stage documents:

• Opinion below (3d Cir.)
• Petition for certiorari
• Brief in opposition
• Petitioners’ reply

In association with Bloomberg Law

Last week’s decision in United States v. Jones, the GPS tracking case, remained a popular topic for commentators over the weekend.  In an op-ed for the New York Times, Barry Friedman contends that in an age of lives lived online, Jones “may turn the Fourth Amendment into a ticking time bomb, set to self-destruct – and soon – in the face of rapidly emerging technology.”  Renée Hutchins strikes a similar chord in an op-ed for the Baltimore Sun, describing the majority’s focus on trespass as “miss[ing] a momentous opportunity to speak clearly in a brave new world.”  The editorial boards of the Salt Lake Tribune and Dallas Morning News similarly emphasized the opinion’s lack of guidance, while the New York Daily News expresses concern that the decision “will make it hard for cops to get bad guys.”

Others commentators struck a more positive note.  Daniel Solove of Concurring Opinions observes that the “concurring opinions indicate five votes for a broader[,] more progressive view of the Fourth Amendment, one which breaks from some of the Court’s antiquated notions of privacy.”  The editorial boards of the Buffalo News and Burlington Times News praise the decision as drawing a line in defense of privacy from government intrusion, while Mark Fitzgibbons – in an op-ed for the Washington Examiner – applauds the decision as an “important Fourth Amendment win for conservatives.”

Other commentary on the decision comes from Lior Strahilevitz in an op-ed for the Chicago Tribune, Berin Szoka and Charlie Kennedy of CNET, the editorial board of the Boston Globe, and Kenneth Jost of Jost on Justice.  Finally, NPR’s On the Media interviewed Orin Kerr about the opinion.

Situating the Court’s recent decision in Perry v. Perez in a long history of redistricting battles, Sam Issacharoff writes in the Boston Review that “[t]he justices have failed to find an easy definition of what is fair, what level of manipulation is permissible, how much greed is tolerable, how many districts should be assigned to this group or that group,” concluding that “[t]he solution lies in taking the process of redistricting away from the insiders . . . the wisdom of moving to independent redistricting bodies is obvious.”  Reuters discusses whether that the Court’s opinion suggests a willingness to reconsider Section 5 of the Voting Rights Act.  Finally, Michael Li of the Texas Redistricting Blog reports on a recent brief filed by the Department of Justice “explaining DOJ’s position on what the Supreme Court’s opinion requires the San Antonio court to do when addressing section 5 concerns in the course of drawing interim maps.”

On Friday, the Department of Justice filed a brief in the health care cases arguing that nearly all of the Affordable Care Act should survive even if the Court declares the Act’s individual mandate provision unconstitutional.  Reuters has coverage, while the ACA Litigation Blog has the filings.  (Lyle discussed the severability issue as part of his essay series on the healthcare cases).

Briefly:

• Discussing the Court’s recent opinions in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (ministerial exception), United States v. Jones (GPS tracking), and the Texas redistricting cases, Robert Barnes concludes in the Washington Post that “the Court has shown unity,” but has offered “little guidance.”
• On The Daily Show, Jon Stewart discussed the Court’s decision in Hosanna-Tabor and also covered this month’s oral arguments in FCC v Fox .
• As Marissa noted in Friday’s round-up, last week Justice Thomas received an honorary degree from his alma mater, Holy Cross.  The Worcester Telegram, Boston Globe, and Holy Cross all have coverage
• John Dean of Verdict discusses the prospect that December’s decision by the Montana Supreme Court opinion upholding a state law limiting campaign contributions by corporations will prompt the five Justices in the majority in Citizens United to reconsider that decision.  (Lyle covered the Montana court’s opinion for this blog).
• At the Constitutional Law Prof Blog, Ruthann Robson discusses a recent decision by the Tenth Circuit upholding the constitutionality of the Stolen Valor Act – the question presented in United States v. Alvarez.
• Ilya Shapiro of CATO@Liberty discusses Cato’s recent amicus filing supporting the cert. petition in Morgan v. Swanson, a case about student free speech rights .
• The Saipan Tribune reports on Justice Sotomayor’s visit to the Commonwealth of Northern Mariana Islands and covers her reception with Governor Fitial.
• At Forbes, Michelle Maisto responds to the Court’s recent holding in National Meat Association v. Harris that the Federal Meat Inspection Act preempts a California state law, and expresses concern that current regulations are inadequate .

In association with Bloomberg Law

I want to return to Jones for what will probably be my final thoughts on the case for a while.  In earlier posts here and here, I explained why the widespread initial reaction that the Court’s decision in Jones requires the police to get a warrant to install a GPS tracking device was incorrect.

Having reflected more on the decision, I now think that in some respects Jones is still less of a pro-privacy ruling than many people initially thought.  Many early reactions seem to have projected onto the decision what the writer wanted it to hold, rather than what the opinion actually concludes.

In this post, I explain why I think that is true, and address some comments and suggestions that readers have thoughtfully sent me in reaction to my earlier posts.  And because some disagree with my reading of the decision, I’ve departed from the traditional blog approach and included citations throughout.  This is going to take a while.

The Supreme Court’s holding on the defendant’s three theories

As the Supreme Court understood Jones, the defendant had basically three arguments:  (i) installing the GPS device was a search; (ii) tracking him at all was a search (whatever device was used); and (iii) at least tracking him for a long time was a search (again, whatever technology was involved).

The decision concluded that the defendant won on two theories.  The five-Justice majority (per Scalia) ruled for him on a combination of (i) and (ii):  installing the device and using it to monitor the defendant together constituted a search by committing a technical trespass on the defendant’s property right in his car for the purpose of gathering information.  Majority 4 (“The Government physically occupied private property for the purpose of obtaining information.”); id. 12 (this was “a classic trespassory search”).

But according to the majority, neither (i) or (ii) is enough alone; the combination is key.  Majority 3 (“We hold that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’”); id. 7 n.5 (“Trespass alone does not qualify, but there must be conjoined with that what was present here:  an attempt to find something or obtain information.”).

Five other Justices (the four members of the Alito concurrence, plus Justice Sotomayor) instead agreed with theory (iii).  They concluded that long-term monitoring violated the defendant’s reasonable expectation of privacy, without regard to the precise technology installed or used by the government.  Alito 13 (“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.”); Sotomayor 3 (“As Justice Alito incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations.  Under that rubric, I agree with Justice Alito that, at the very least, ‘longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.’”).

No Justice concluded that the mere intrusion into the car – theory (i) – was a search.

Four Justices (per Scalia) not only explicitly rejected theory (i), but they also strongly suggested they would reject theory (ii) and find that short-term monitoring is not a search.  Majority 7 n.5 (combination of trespass and collection of information is required); id. 8 (recognizing prior precedent as holding that monitoring someone on the public streets is not a search except with respect “to ‘dragnet-type law enforcement practices’ of the type that GPS tracking made possible here”).

Four other Justices (per Alito) explicitly rejected both theories (i) and (ii) and concluded that neither installation nor short-term monitoring is a search.  Alito 2 (“It is clear that the attachment of the GPS device was not itself a search . . . .  And the Court does not contend that the use of the device constituted a search either.”); id. 13 (“Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable.”).

Only one Justice (Sotomayor) seemed willing to accept the defendant’s argument that he should prevail outright on theory (ii) – that monitoring for any amount of time was itself a search.  Sotomayor 3 (“In cases involving even short-term monitoring, some unique attributes of GPS surveillance relevant to the Katz analysis will require particular attention.”); id. 5 (“More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”).

So to summarize, here is the breakdown of how the Court treated the defendant’s three theories:

(i) installation is a search:  government wins 9-0;

(ii) short-term monitoring alone using some technology is a search: government wins 8-1;

(iii) combination of installation and monitoring is a search: defendant wins 5-4;

(iv) long-term monitoring using some technology is a search: defendant wins with at least 5 votes, with the remaining Justices not addressing the issue.

I’ll elaborate on the point below, but it is worth focusing for a moment on the fact that the government prevailed outright and by a very broad majority on the defendant’s first two theories in Jones.

The very limited scope of the Court’s decision

Nonetheless, the defendant did of course win Jones.  So it is important to explore the significance of that victory.

The majority opinion in Jones is very limited.  Its finding of a “search” depends on the government’s intrusion onto the defendant’s property for the sake of gathering information.  In reaching that conclusion, the majority does take the significant step of reinvigorating a strand of Fourth Amendment privacy related to property rights that had gone dormant, supplanted in more modern decisions by the “reasonable expectations” standard.  The four members of the Alito concurrence would have rejected that expansion of the Fourth Amendment, but the majority clearly established it.

Nonetheless, the doctrine recognized in Jones makes a difference to the outcome only in cases (like Jones) in which the individual has a property right (the majority’s theory) but no expectation of privacy (the concurrence’s theory).  But that will rarely be true.  People generally have an expectation of privacy in their personal property.  Generally speaking, cases involving the overlap of property and privacy are those in which the defendant gives up his expectation of privacy by giving up his property interest.  An example is throwing something away and then taking the trash to a public curb.  In that instance, the Jones majority would find no property-based privacy right, and the concurrence would find no reasonable expectation of privacy.  See California v. Greenwood (1988).  So I don’t see many instances in which the majority’s rule produces different results than prior Fourth Amendment doctrine.

The cases in which the Jones property theory does come into play will mostly depend on what property interests are sufficient.  A recurring issue will probably be shared property.  For example, in Georgia v. Randolph (2006), a husband and wife shared a home.  She wanted to let the police in; he refused.  The Court held that because he made his objection known at the time, a search violated his reasonable expectation of privacy.  But under Randolph, if he were not present, her consent would validate the search.

On the Jones property-rights theory, the outcome of a case in which he did not object conceivably could be different.  But I think it is very unlikely.  The defendant’s home unquestionably is property protected under the Fourth Amendment.  The key point, however, is that the consent of the wife makes the police officers’ intrusion not a “trespass.”  She has the right to allow people on the property.

Conceivably, the property theory could change the result in cases in which a party grants the police the right to search but does not have that right.  But the Court would likely hold that the Fourth Amendment applies only to a purposeful trespass.  And if it did not, it almost certainly would hold that the officers’ good faith precludes exclusion of any evidence they seize.  (I discuss this issue below.)

Jones could have real teeth if the majority were willing to make one other significant doctrinal move.  Jones involves a form of property that is protected by the Fourth Amendment that has been exposed to the public: the car was driven on public roads.  The decision could be extended to information that is similarly exposed, if the Court were willing to recognize a parallel property right in information.  But that too is extremely unlikely.  The Jones majority held, for example, that its decision did not apply to an open field.  Majority 10 (“Quite simply, an open field, unlike the curtilage of a home, is not one of those protected areas enumerated in the Fourth Amendment.”).  So it would be hard to understand how the decision could be extended to protect intangible information.

Just as important in assessing the longer-term significance of Jones for government monitoring, the limitation imposed by the majority’s requirement of a physical intrusion necessarily limits the decision’s importance.  The ruling does not place any limits on the government with respect to electronic monitoring that does not require attaching a device to an individual’s privacy.  As computational power increases dramatically in the next few years – so that the government can use cameras and cell phone data to locate people – the significance of Jones in this area of the law will fade pretty quickly.  The Alito concurrence makes this point, and the majority candidly agrees.  Alito 8 (“By contrast, if long-term monitoring can be accomplished without committing a technical trespass—suppose, for example, that the Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car—the Court’s theory would provide no protection.”); Majority 11 (“Situations involving merely the transmission of electronic signals without trespass would remain subject to [reasonable expectation of privacy] analysis.”).

How about the Alito opinion?  That ruling is where the lasting significance of the decision lies, but even it has very significant limitations.  Justice Alito’s reasoning is decoupled from the installation of any device; it relates to the government’s monitoring of individuals’ movements through any means.  So it clearly applies to tracking cell-phone signals, for example.  It establishes the very significant point that the government does not have a completely free hand collect information on individuals’ movements for long periods of time.

On the other hand, the Alito opinion is just as (or more) significant for the Fourth Amendment argument that it rejects.  According to the concurrence, short-term monitoring does not violate a reasonable expectation of privacy.  And that opinion is not limited to the attachment of physical devices.  On that view, the government seemingly is perfectly free to, for example, use cell phone triangulation to track an individual’s movements for two or three days.  (Presumably, it would need the cooperation of the cell phone company.)

To be clear, there were only four votes for that proposition – the members of the Alito concurrence.  But it would be startling if all the members of the majority – who in the main are more conservative than the concurring Justices – disagreed.

One other point bears brief mention and later exploration.  The Alito opinion speaks in terms of expectations of privacy.  Similar issues arise with respect to tort suits for private invasions of privacy.  It will be interesting to see whether the concurrence’s view that individuals do not have an expectation of privacy from short-term monitoring of their location is later invoked to preclude suits against private parties for intrusions on privacy.

Beyond that, what are the details of the Alito theory and what does it mean?  Many initially read the Alito concurrence as a strong statement favoring individual privacy in a modern age.  I think that is very wrong.  The opinion openly struggles with these issues.  But it does not resolve them, much less resolve them in a sweeping endorsement of protecting privacy from the intrusions made possible by technology.  Of note, the concurrence freely acknowledges that technology may reduce expectations of privacy, which under established doctrine may give the government a correspondingly freer hand to gather information.  Alito 10 (reasonable expectations standard “involves a degree of circularity”); id. (“New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile.  And even if the public does not welcome the dimunition of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.”); id. 11-12 (“Recent years have seen the emergency of many new devices that permit the monitoring of a person’s movements. . . . . 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.”).

The plea of the four members of the Alito concurrence is actually for the legislature to step in, rather than leaving these issues to the courts.  Id. 13 (“A legislative body is well situated to gauge public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”).

The only sweepingly pro-privacy opinion in Jones is instead Justice Sotomayor’s.  Sotomayor 3 (“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.”); id. 4 (“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.”).  But she is all alone – strikingly so, given that none of the other members of the Court’s left join her.

So I don’t see in Jones anything that remotely resembles a working majority on the Court for the conclusion that technological advances require the adoption of a new or broader conception of personal privacy.  And I think it signals to the government that in many respects its investigatory efforts are not subject to the Fourth Amendment.

As the Alito concurrence suggests, privacy protections in this context are instead likely to be provided by the legislature rather than the Constitution.  At least, that is the far more sound course for privacy advocates.

Following up on my posts on how Jones does not require a warrant

GPS-related issues left open by the Court’s decision

If the only legal question under the Fourth Amendment was whether a “search” had occurred, the decision in Jones would be a material victory for the defendant.  The majority’s holding that the installation constituted a search would make any question about the length of monitoring academic, because monitoring would be impossible without the installation.

Also, if the government uses GPS devices only for long-term monitoring of several weeks, the decision as a practical matter would be a near-categorical victory for the defendant.  The five concurring Justices hold that such conduct is a search, and they also very strongly suggest that it is the kind of search that requires a warrant.  Alito 13-14 (“[W]here uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant.”); Sotomayor 3 (agreeing with the Alito opinion regarding long-term monitoring).

But the only question under the Fourth Amendment is not whether a search occurred, and the use of GPS devices is not necessarily limited to long-term monitoring.  Those are the critical GPS-related issues that Jones leaves open for a later case.

The determination whether a governmental intrusion on privacy violates the Fourth Amendment and requires the suppression of evidence starts with the question whether there is a search.  But then there are three other questions:  (i) if there was a search, did it require a warrant issued upon probable cause; (ii) if no warrant was required, did it require probable cause or reasonable suspicion; and (iii) if the Fourth Amendment was violated, should the resulting evidence be suppressed under the exclusionary rule?

When cert. was granted in Jones, the Court seemed poised to answer not just the “search” question, but also issues (i) (was a warrant required) and (ii) (what standard of suspicion applies).  That is because the cert. petition broadly framed the question:  “Whether the warrantless use of a tracking device on respondent’s vehicle to monitor its movements on public streets violated the Fourth Amendment.”  Then the Justices themselves added another question:  “Whether the government violated respondent’s Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.”

So both of the questions the Justices agreed to decide encompassed the issue of whether a warrant was required.  Then neither the briefing nor the oral argument made a big deal of flagging the fact that the Justices might just decide whether a search occurred and leave open for a later case whether, if there was a search, it did not require a warrant or probable cause.

But in fact the majority did leave those issues open, and as I’ve discussed in my earlier posts the initial reactions to the decision generally missed that fact.  Given how the questions presented, briefs, and oral argument framed the case, everyone expected Jones to resolve the constitutionality of warrantless GPS tracking.

In addition, the Court’s opinion affirmed the court of appeals’ judgment that this warrantless search was unconstitutional.  The case was not remanded.  So the immediate reaction was that all of the issues related to warrantless searches were resolved.

But they weren’t.  The majority declined to decide whether a warrant was required and what standard of suspicion applied.  Instead, as it said in the first sentence of the opinion, it resolved only “whether the attachment of a Global-Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.”  Majority 1 (emphasis added).  As the concurrence explained, the majority held that the installation and monitoring “may violate the Fourth Amendment.”  Alito 8 (emphasis added).

But how and why did the majority decide only the threshold “search” question?  It explained that the government had not raised any other issues until the case got to the Supreme Court, which was too late.  Unfortunately, the majority wasn’t as clear as it might have been; if Part III had said “we leave for another day when the issue is properly presented whether such a search is constitutional despite the absence of a warrant and on less than probable cause,” then the press would have been more likely to understand the ruling correctly.  Instead, the Court said somewhat more opaquely that the government had “forfeited” its “alternative” argument “that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because ‘officers had reasonable suspicion, and indeed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.’”  Majority 12.

So the Court did not decide whether installing and monitoring a GPS device for a short time requires a warrant, or instead can be done by the police on “reasonable suspicion.”  That will have to be resolved in a later case.

In that later case, there is a real reason to believe that the government will win.  Remember, four Justices believe that neither the installation nor short-term monitoring nor the combination of the two constitute a search.  Alito 3 (“The Court’s theory seems to be that the concept of a search, as originally understood, comprehended any technical trespass that led to the gathering of evidence, but we know that this is incorrect.”).  So only one member of the majority would have to conclude that a warrant isn’t required.

But what theory would the Court use to hold that no warrant is required?  The Constitution requires reasonable searches, not warrants.  “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  U.S. Const. amend IV.  Although the Supreme Court “has inferred that a warrant must generally be secured,” in Kentucky v. King it “recognized that this presumption may be overcome in some circumstances because the ultimate touchstone of the Fourth Amendment is reasonableness.  Accordingly, the warrant requirement is subject to certain reasonable exceptions.”  None of the exceptions recognized by the Court so far would cover the search in Jones.  Installation of a GPS device almost never involves an exigency that would make it impractical to contact a judge; the very fact that the officers have the tracking device available suggests that they contemplated the need for it in advance.

But warrantless searches are not limited to exigencies.  For example, officers may conduct a patdown of an individual they encounter.  Terry v. Ohio (1968).  They may conduct warrantless searches of probationers, United States v. Knights (2001), and persons subject to conditions of parole, Samson v. California (2006).  Individuals may consent to searches.  INS v. Delgado (1984).

Cases like Knights and Samson provide the doctrinal underpinnings for a later opinion holding that the installation and short-term monitoring of a GPS device does not require a warrant.  The rationale of those decisions is that a search is reasonable in light of the limited intrusion on the individual’s expectation of privacy and the significant governmental interest in the search.  The installation of a GPS device is only a technical trespass, and eight Justices recognized that the monitoring of the device does not intrude on a reasonable expectation of privacy, given that the individual is driving on open roads.  The highly technical nature of the search recognized by the majority is therefore critical.  On the other side of the ledger, the devices serve a significant governmental interest of aiding investigations without disclosing otherwise-private information.

I’m not saying that I agree with that argument.  My point instead is that it will write, easily.

No less important, the Jones majority in a footnote laid the foundation for concluding that no warrant was required.  On page 10, footnote 7, the majority addressed Cardwell v. Lewis (1974), in which the Court “rejected the claim that the inspection of an impounded vehicle’s tire tread and the collection of paint scrapings from its exterior violated the Fourth Amendment” (emphasis added).  In Jones, the Court recognized that its decision in Cardwell could have been based on two possible rationales:  either that “no search occurred” or that the warrantless search “was reasonable.”  The former – no search – was contrary to the rationale of Jones, because in Cardwell there was an equivalent trespassory intrusion on the defendant’s vehicle.  So if Cardwell were not to be overruled, it must rest on the latter theory that no warrant was required.  In the words of the Cardwell plurality, quoted in Jones, “Under circumstances such as these, where probable cause exists, a warrantless examination of the exterior of a car is not unreasonable . . . .”

But does existing precedent preclude that result?  The government’s brief in Jones recognizes in a footnote (Br. 51 n.8) that United States v. Karo (1984), “required a warrant” when the government monitors a beeper “in private residences.”  (Practice pointer: always read the footnotes in briefs by the Solicitor General; that is where the good stuff is.)  But that aspect of Karo seemingly rested on “the general rule that a search of a house should be conducted pursuant to a warrant.”  Id.  Houses receive special Fourth Amendment protection, very different from the limited expectation of privacy while driving on open roads.

Another important question is whether only one member of the Jones majority would really have to endorse warrantless searches in this context.  Would all four members of the Alito concurrence adhere to the view that no search occurred, or would some instead adhere to the Jones holding that a search occurred as a matter of stare decisis and refuse to recognize an exception to the warrant requirement?  There is no way of knowing.  But the four concurring Justices did not signal any willingness to change their views.  And they clearly state that the intrusion is minor, supporting the conclusion that no warrant is required.  Alito 7 (The majority “attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation).”).  I accept the concurrence for that it says, and on that view there is no search that would require a warrant.

One other fair question is whether the possibility that short-term monitoring will not require a warrant is itself academic.  The U.S. Department of Justice and many state and local law enforcement agencies already get warrants for GPS monitoring as a matter of course.  So it may be that the entire case was largely irrelevant today because warrants are used anyway.

But it is equally true that the police overwhelmingly get warrants only when required by the Fourth Amendment, or when they are uncertain about whether they have to.  If the Court had squarely held that the government won Jones, it seems obvious to me that the government would have stopped seeking warrants.  The same will be true if the Court holds after Jones that no warrant is required.  That makes the scope of Jones a very important ongoing question.

But there is yet another way that Jones conceivably could turn into a nothingburger.  The government did not raise the final search-related issue:  whether an unconstitutional search triggers the exclusionary rule – i.e., requires suppression of evidence in the government’s case in chief.  That critical question will have to be resolved in a later case as well.

There is a raging fight in the Supreme Court about the vitality of the exclusionary rule.  Three members of the Jones majority (the Chief Justice and Justices Scalia and Thomas), as well as Justice Alito, have signaled their willingness to limit or overrule it.  Hudson v. Michigan (2006) (extensively discussing the issue in refusing to apply the rule to violations of the knock-and-announce requirement).  Justice Kennedy has said that he would refuse to extend the exclusionary rule to new contexts.  Id. at 603 (“[T]he continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt.”).

How the Court would resolve the application of the exclusionary rule to the warrantless installation of a GPS device will depend on timing.  For the time being, given what I say above, I believe that the police would act in good faith in not securing a warrant for short-term GPS monitoring.  At the very least, the question remains open.  As I explain in this post from 2009 (The Surpassing Significance of Herring), that good faith may well preclude application of the exclusionary rule under Herring v. United States (2009)).  But see Orin Kerr’s post disagreeing (link currently broken).  If the Court were to squarely hold in a later case that a warrant is required, then the exclusionary rule would apply after that decision because the Court has always required suppression when the government consciously defies the Fourth Amendment’s requirements.

None of this should be a great surprise.  Going into the Jones decision, existing precedent was solidly on the government’s side.  The Court had concluded in Karo and United States v. Knotts (1983), that the monitoring of a beeper in a car on the public roads was not a search because the individual had no expectation of privacy in his public movements.  The current Supreme Court also generally is not inclined towards expanding the Fourth Amendment’s reach, though there are exceptions.  So it would have been remarkable if the defendant had won a sweeping victory in Jones.

A final thought on why Jones is written the way it is

As a concluding note, I want to address the logical question of why the Court would write such a narrow and arguably confusing decision, given that there was no rush (the Term is far from over) and that there was seemingly a majority for a more consequential decision holding that long-term monitoring (even by non-physical means) is a search requiring a warrant under the Fourth Amendment.  From the outside, and with the benefit of hindsight (which can be misleading), I think that the Jones opinions may be the result of extremely savvy tactical moves by four members of the Court in Jones.

First, presented with two different rationales for deciding the case – the narrow property-based theory of Justice Scalia and the other broader “reasonable expectation of privacy” theory of Justice Alito – the Chief Justice assigned the opinion to Justice Scalia, securing the narrower result as the Court’s holding.

Second, faced with the government’s argument that no warrant was required, a question on which his five-Justice majority very well may not have agreed, Justice Scalia kept his majority by not deciding that question.

Third, given the choice of which opinion to join, Justice Sotomayor picked Justice Scalia’s, creating a majority for recognizing a new form of privacy, while signaling that she completely agreed with Justice Alito’s finding of a search as well.  So she got the best of both worlds.  In addition, the Court’s decision left the impression that it had reached a very pro-privacy result (which Justice Sotomayor favors) even though that was not actually the consequence of the ruling.

Fourth, faced with the very difficult prospect of writing a full opinion articulating a rule for when monitoring is long enough to constitute a “search,” which he would have had to do if he persuaded Justice Sotomayor to join him, Justice Alito instead wrote principally a critique of the Scalia opinion.  (Turnabout is fair play, because that is a favorite pastime of Justice Scalia in dissent.)  Regarding the result he would reach, Justice Alito wrote without much analysis at all that monitoring for several weeks is too long.  And Justice Sotomayor signaled her agreement.  So Justice Alito was able to specify an outer marker for monitoring by the government without now having to articulate an administrable rule. Justice Alito also raised the prospect that a different Fourth Amendment standard might apply with respect to more serious offenses.  That question may be explored more in No. 10-945, Florence v. Board of Freeholders, which I argued in October.

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