Larry Dean is not as famous as he deserves to be but, as the man who developed the code that allows automatic teller machines to accept cards from other banks and outlets, he birthed a revolution in banking that forever changed the way people shop and get cash. His innovation allowed debit cards to function like credit cards, taking money directly from accounts and pushing the nation and world closer to a cashless economy.
Dean’s innovation made banking easier for millions. The application programming interfaces – the APIs – he developed were protected by copyright, meaning his intellectual labors produced great wealth. Outside Atlanta, he built Dean Gardens, a 33,000 square-foot, 15-bedroom home was so extravagant the annual up-keep alone cost $1.5 million. Infamous for the iconic “Liberace Meets Napoleon” style later imposed by Dean’s son – who lived there until 1994 – it featured a Moroccan theater, 24-karat gold sinks, a gallery of Hawaiian art, 13 fireplaces, an 18-hole golf course, and a 14-seat dining room whose most prominent feature was a wall-sized aquarium known as the “Predator Tank.”
This monument to conspicuous consumption, which might have given even pre-presidential Donald Trump pause, was bulldozed into rubble ten years ago. What endures is his code which, thanks to a legal push by Google seeking to eliminate the copyright protections coders enjoy for the APIs they develop might make innovators like Dean a thing of the past.
Whether that happens is in the hands of the United States Supreme Court which, in a matter of weeks will finally hear oral arguments in the matter of Google v. Oracle, a landmark case that will decide the course of intellectual property development going forward. If a majority of the justices side with Google, then future innovations like what Dean wrought will likely be few and far between.
The case stretches back over a decade. At one time, hard as it may be to believe, Google was losing out to BING in the critical mobile search engine market while the Apple iPhone was beating its brains out in the competition among smartphones.
Seeking to improve its competitive position, Google took 11,500 lines from Java’s API coding which the company used to pay to use to construct the Android mobile operating platform, installing its search engine as the default option. As Android grew more popular, so did the Google search engine, creating a boom for the company without, the suit alleges, paying licensing fees for the use of Java to its owner Oracle.
Google does not dispute it took the code. What its briefs do argue is that these types of software APIs may not be copyrightable and, even if they are, that Oracle cannot force them to pay for using it because what it did is covered under the fair use doctrine – and copyright law exception often used when news stories are reposted and circulated for comment but seldom in commercial situations.
As even those who are not lawyers may recognize, Google’s interpretation of the copyrightability of software and the fair use doctrine as applied in this situation cannot be sustained by historical and legal precedent or by common sense, not that it bothers the biggest of big tech very much.
Google’s layers have already admitted the company “doesn’t care much about precedent or law” when it comes to copyright. When the company didn’t like the licensing terms offered to it by Sun Microsystems (then the owner of Java) Adam Rubin, the father of Android, bluntly wrote in an e-mail the company would simply “do Java anyway and defend our decision, perhaps making enemies along the way.”
Being big doesn’t allow you to ignore the law. Google’s lack of concern for intellectual property doesn’t come as a surprise – some have argued its business model depends on using the IP of others without paying for it. And the court would do well to note that others have made similar complaints in the past including the American Association of Publishers, which settled a case alleging Google has posted books online with the permission of the authors, a lawsuit by PayPal arguing an ex-employee turned over trade secret IP used to construct Google Wallet, and a suit settled with Viacom over videos posted without permission to YouTube.
These issues persist, in part because of the lack of clarity in the law protecting intellectual property and because the white shoe lawyers employed by big tech make fortunes of their own finding, exploiting, even creating loopholes that end up exploiting consumers and inventors alike. The Supreme Court is being asked to slam the door on this kind of exploitation and should.
No one likes government interference in the marketplace or the court making law from the bench but that is not what a decision favorable to Oracle would do. A decision favorable to Google would set a precedent adversely affecting software development and every other industry that relies on innovation and creativity to maintain and enhance its market petition. For the sake of private property and our nation’s founding principles, the court must come down firmly on the side of protecting intellectual property rather than affirm the idea that loopholes exist allowing big tech to take the innovations of others for their use without compensation or consent. That’s not the American way.
The next election will determine the direction of the United States Supreme Court and have a lot to say about its future. Given the outsized role its decisions play in the political life of the nation, that’s important and an issue worth voting on.
The court makes policy and law from the bench. Those who wrote the U.S. Constitution believed those functions were best left to the Congress, the president, and the states. To change that, to limit the ability of the justices to usurp the role of our elected representatives requires the addition of a justice or two who believe they are constrained by the law.
If Donald Trump wins, that’s the likely outcome. Given the precarious health of Justice Ruth Bader Ginsburg, he’ll probably get at least one appointment in his second term. And if that happens, and Chief Justice John Roberts is no longer the deciding vote on key cultural and legal matters, his recent flirtation with the court’s liberal wing might come to an end. It’s unlikely he’ll want to be on the losing side of decisions that come down 5-to-4.
If Joe Biden wins, things will go in the opposite direction, especially if Republicans lose control of the U.S. Senate in November. Then, free of any restraint the filibuster might have imposed, the Democrats could easily pass through Congress legislation packing the court with so many new members the center-right majority currently in place would quickly become a distant memory.
In that world, expect the most radical of ideas to be affirmed by a majority of 2-to-1. The new Biden judges would side with existing liberals to find within the Constitution everything from the right to abortion on demand at any time during pregnancy up to and including the onset of labor, the right to universal healthcare, free education, a guaranteed national income, and the abolition of the private ownership of most firearms. The democratic process would be subverted by activist judges more concerned about results than the law.
It would be the tipping point leading to the downfall of the American system. Accomplished quickly if not quietly, it would perpetuate the advance of progressivism for a century if not more. Those opposed to that outcome should tread carefully so as not to help the enemies of liberty get what they want.
Missouri GOP Sen. Josh Hawley, for some time considered one of the bright lights of the party’s future, has weighed in on this discussion in a big way. A state attorney general before winning his seat in the U.S. Senate he recently told The Washington Post he would “only vote for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided.”
“By explicitly acknowledged, I mean on the record and before they were nominated,” he added. “I want to see on the record, as part of their record, that they have acknowledged in some forum that Roe v. Wade, as a legal matter, is wrongly decided.”
Taking that position publicly is, as one prominent conservative leader told me privately, “destructively stupid.” As a practical matter, more than one pro-life activist brought to my attention, on that one point Hawley could have voted enthusiastically to confirm Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter while being forced to oppose adding Clarence Thomas and Samuel Alito to the high court.
Admittedly our confidence in some of our judicial nominees has been misplaced. Dwight Eisenhower bungled things several times, not just by appointing Earl Warren as chief justice. Nixon, Reagan, and both Bushes made appointments they’d probably have liked to reconsider after they joined the court. The vetting process before the nomination is extremely important and must continue. Trump’s idea to release a list of potential nominees sets a precedent every other presidential candidate should follow. But vetting and litmus tests are two extremely different things. One has its place and one doesn’t, at least not among those who say they are proponents of intellectual freedom.
Hawley’s newfound insistence loads the gun the progressives will use, in the metaphoric sense, to shoot any nominee who’d possibly be any good from a pro-life, limited government, strict constitutionalist perspective. The senator’s heart may be in the right place, but the GOP is not the party that marches in ideological lockstep on every issue. That’s the other team. They’re the ones who use emanating penumbras to find things in the Constitution that Madison, Hamilton, and others didn’t put into it. They’re the ones who place political, social, and economic outcomes over the rule of law. That’s a major difference between us and them and Trump and Biden.
According to Chief Justice Roberts, the Constitution makes it easy for presidents to violate the law, but reversing such violations difficult -- especially for their successors.
Suppose President Donald Trump decided to create a nationwide right to carry guns openly. He could declare that he would not enforce federal firearms laws, and that a new “Trump permit” would free any holder of state and local gun-control restrictions.
Even if Trump knew that his scheme lacked legal authority, he could get away with it for the length of his presidency. And, moreover, even if courts declared the permit illegal, his successor would have to keep enforcing the program for another year or two.
That incredible outcome is essentially what happened with the Supreme Court decision last week in Department of Homeland Security v. Regents of the University of California (the latter being my employer, I might add). Regents blocked President Trump’s repeal of the 2012 Deferred Action for Childhood Arrivals (DACA) program, which halted the deportation of aliens brought to the U.S. illegally as children, and a parallel 2014 program that suspended the removal of their parents (DAPA). Until the Trump administration goes through the laborious result of enacting a new regulation to undo DACA and DAPA, approximately 6 million aliens can remain in the U.S. in defiance of federal immigration statutes.
While supporters of broader, more humane immigration policies (among whom I count myself) may have welcomed the result, they may well regret the Court’s disruption of executive power. President Barack Obama could issue his extralegal visa programs for children and their parents aliens by simple executive fiat, according to Chief Justice John Roberts and four liberal Justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), but President Trump had to pretend the order was legal and use the slow Administrative Procedure Act to reverse them. “Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients,” Roberts found, DACA “could not be rescinded in full without any consideration whatsoever of a” non-deportation policy other than on the ground of its illegality.
According to Chief Justice Roberts, the Constitution makes it easy for presidents to violate the law, but reversing such violations difficult — especially for their successors.
Such a rule upends the text, structure, and history of the Constitution, which generally prevents the occupants of a branch of government (who are temporary, after all) from binding their successors. The Constitution, for example, contains no system for undoing a statute. When Congress wants to repeal a law, it must pass a new law through the same process of bicameralism (House and Senate approval) and presentment (presidential signature). The Supreme Court effectively repeals past opinions simply by overruling the earlier case, though the Constitution does not expressly provide for such reversals. Brown v. Board of Education famously overruled Plessy v. Ferguson’s rule of separate-but-equal. When a president wants to repeal an executive order, all he need do is issue a new executive order. When agencies want to reverse a regulation, they must resort to the same sluggish method of notice-and-comment rulemaking.
If anything, constitutional law grants presidents the power to reverse the acts of their predecessors even faster. Although Article II of the Constitution requires cabinet officers to undergo both presidential nomination and Senate advice and consent, practices from the earliest years of the Republic as well as Supreme Court precedents recognize the executive right to fire them unilaterally. A president similarly can terminate treaties, as Trump recently did with the Intermediate Nuclear Forces agreement with Russia, even though treaties must also receive Senate approval.
Recognizing a plenary power to reverse previous presidential acts, contrary to the Supreme Court’s DACA rule, comports best with the purposes behind the creation of the executive branch. The Framers created an independent executive branch that could act unilaterally and with dispatch because the president’s swift action was desirable in the execution of his constitutional and statutory responsibilities. They wanted each president to be fully accountable to the electorate for his actions without any diffusion of responsibility. The same reasons that support unitary executive action in the first instance support its potential unilateral reversal. A president may need to reverse his predecessor’s decisions quickly to protect national security or take advantage of a great opportunity.
The Framers’ careful protection against arbitrary government would be turned on its head if one president could insulate his unilateral policies against reversal by a subsequent president — for then the constitutional difficulty of enacting a statutory override would further entrench a tyrannical executive policy against electoral or statutory change.
It is important to understand that this principle applies even more strongly in the case of illegal presidential action. The Constitution vests in the president the responsibility to “take Care that the Laws be faithfully Executed.” The highest form of the law of the land is the Constitution. Under this duty, the president cannot enforce an executive order that violates the Constitution — here, the vesting of the power over immigration in Congress. Upon taking office, for example, President Thomas Jefferson immediately ended all prosecutions under the 1798 Sedition Act, which had made criticism of the government a crime, and pardoned those convicted under it.
This allocation of the power to execute the Constitution to the president reveals the perversity of Chief Justice Roberts’s opinion in Regents. It forces President Trump to enforce an executive program that he believes violates the Constitution and federal immigration law, and hence it forces President Trump to violate the Constitution. This is doubly perverse because Trump supports a legislative solution that would allow DACA and DAPA beneficiaries to remain in the country. Nevertheless, Trump reversed DACA and DAPA because President Obama had no constitutional authority to impose the two policies.
The Obama administration claimed that it could still establish DACA and DAPA as a matter of prosecutorial discretion. The constitutional obligation that presidents enforce the law also includes their right, due to limited resources and time, to set enforcement priorities. Prosecutors cannot bring cases for every violation of every federal law at all times. But Obama’s claim flew in the face of the Constitution by claiming that he could bring the enforcement of a federal law — here the removal provision of the immigration laws — completely down to zero.31
If that were true, President Trump could simply restore the preexisting enforcement levels as a matter of his own exercise of prosecutorial discretion. Each new president’s right to reverse the exercises of executive power by his predecessors means that no level of enforcement can bind any future administrations. If Obama were indeed free to set immigration removal levels to 50 percent of past cases, or even zero, Trump had the constitutional right to restore removals to those that prevailed under the Bush administration.
Trump’s rationale was correct: President Obama had no constitutional authority to refuse to enforce the immigration laws against whole classes of aliens, amounting to 50 percent of the possible removal cases. As the Court in Regents concedes, he had intruded on Congress’s constitutional prerogative to set immigration levels and to establish visa categories. As the lower courts had found, President Obama failed to live up to his constitutional responsibility to take care that the laws are faithfully executed. In such a situation, the Constitution compelled Trump to restore immigration enforcement to pre-DACA and pre-DAPA levels. By ignoring these aspects of the Constitution and presidential power, the Regents Court may have inflicted a harm on the nation that goes far beyond immigration law.
What many commentators have missed is that the Bostock opinion provides the basis for the argument that single-sex bathrooms and locker rooms violate Title VII.
On June 15, the Supreme Court issued its decision for Bostock v. Clayton County. The ruling established that firing an employee simply for being gay or transgender is a violation of federal law under Title VII of the Civil Rights Act of 1964 as a form of discrimination based on sex.
Justice Neil Gorsuch wrote the opinion for the six-justice majority. He established a simple “rule” for when sex discrimination occurs under Title VII: if changing the sex of an employee would change the employer’s decision, then the employer has violated Title VII.
This opinion has been lauded by the left and some on the right as an important step forward for gay and trans rights. What the Bostock cheerleaders who love the decision for its surface-level results don’t realize is the profound difference between a legislative policy change and a judicial policy change. “Legislation” from the courts carries the baggage of the reasoning used to achieve its result, and the contents inside can be volatile and dangerous when the courts finally get around to unzipping them.
Gorsuch’s rule creates problems because it lacks a limiting principle. What many commentators have missed is that the Bostock opinion already provides the basis for the argument that single-sex bathrooms and locker rooms violate Title VII. Even further, Bostock provides the basis for the argument that it is a violation of Title VII to enforce sexual harassment policies that are mandatory under Title VII.
The deep problems with Bostock are best illustrated by an example. Imagine an employer that has locker rooms for its employees. There is a male locker room and a female locker room. Each has a communal changing area and a communal shower area. The men in their locker room change and shower in front of one another. The women in their locker room do the same.
The employer also maintains sexual harassment policies that are mandatory under Title VII. These policies prohibit harassing behavior that creates a hostile or offensive work environment, as is federally required.
One day, after reading the Bostock opinion, a male employee who does not identify as transgender walks into the women’s locker room. The women are disrobing in the communal changing area and some are showering. The man disrobes in front of the women, then showers. The employer immediately learns of this and informs the male employee that he has violated the employer’s sexual harassment policies and is fired.
The male employee sues the employer for sex discrimination under Title VII based on the Bostock standard that the decision to fire him for his actions would have been different if he were a woman. The male employee argues that all he did was enter the women’s locker room, disrobe, and shower, and that female employees do those exact actions all the time without penalty.
He argues that his performance of the same actions got him fired only because he was a man doing them, which constitutes sexual discrimination under Bostock in the same way that if a man and a woman at a company are both attracted to men, but only the man is fired for it, then the company has sexually discriminated against the man.
Gorsuch and Bostock defenders do have an obvious argument for why the male employee could not claim discrimination under Bostock. They can say that the male employee’s actions in the locker room were not the “same” as what the female employees were doing because, when the male employee disrobed, he was exposing a male body and male genitalia to the women there, whereas the female employees were exposing female bodies and female genitalia when they disrobed.
Bostock defenders can argue that this biological difference is sufficient to establish that the male employee did not engage in the “same” action as the female employees, and thus his firing was not discriminatory. Yet this defense fails for two reasons.
The first reason is that it is utterly ineffective for dealing with a similar version of the scenario in which the male employee simply walks into the women’s locker room and grabs a towel from the shower area, thus allowing him to see the women in the changing area and shower disrobed and without exposing his body. The court would need to say that the male employee’s act of seeing the women is different from the women’s act of seeing each other, or to put it more simply, that “it’s different when a man does it.” But the argument that “it’s different when a man does it” is exactly the kind of thing Gorsuch rejected as discrimination in Bostock.
The second reason is that the argument about the asymmetry of male and female biology was missing from Gorsuch’s reasoning about sexual orientation and trans status in Bostock, even though it just as easily could have applied there. Either the concept of discrimination accounts for the natural distinctions and asymmetries between men’s and women’s bodies and the social context of their actions with the same and opposite sex, or it doesn’t.
In Bostock, Gorsuch decided that it doesn’t. This means that, just as Gorsuch declared that male same-sex attraction is the “same thing” as female opposite-sex attraction, so too does his logic require that a man exposing his body to women is the same as a woman exposing her body to women.
Bostock demonstrates the bad consequences of a judge’s unacknowledged assumptions about philosophy, theology, and other big ideas. In Gorsuch’s justification-free assumption that same-sex and opposite-sex attraction are literally the “same thing,” he has provided no guideline for how the actions of men and women can ever be distinguished sufficiently to keep women, like those in the locker room example, safe from a man intruding into places like their showers and exposing himself.
What would the solution be to correct for this? Would it be an arbitrary redefinition of some actions as inherently different when men and women do them, but not others that Gorsuch wants to enforce equality for? Would it be a standard that finds no difference between male and female sexual attraction to men, but does find an inherent difference between a man and a woman seeing women nude?
That kind of a scheme would further transform the judges’ robes into heroes’ capes, to wear as a Super-Legislature. Their list of super powers would be impressive: they don’t need to be elected and can’t be voted out; their laws don’t need presidential approval; they decide if what they do is constitutional; and they can create laws based on personal preference.
Justice Samuel Alito described Gorsuch’s appeal to textualism, and the claim that he was reading Title VII as it was written and nothing more, as akin to a pirate ship flying a false flag to get away with plunder. Such a self-serving use of official power for personal policy goals, as would be demonstrated by the Supreme Court scrambling to find asymmetries between men and women only where it would produce a patchwork of desired results, does sound like something a pirate would do.
The media has for decades been constructing a pretense that an elderly four-time cancer patient who falls asleep on the job and can barely walk is peppy, alert, and capable.
On Sunday, CNN’s “Reliable Sources” did a segment about President Trump’s recent doctor visit that opened with host Brian Stelter questioning, “Trump says he went for a very routine physical because he had extra time, but does it all add up?” Stelter brought on medical correspondent Dr. Sanjay Gupta to question the official story of what the chyron called “Trump’s Mystery Hospital Visit.”
“Any time a 73-year-old man with clinical obesity and a history of heart disease goes to the hospital unannounced, obviously medical people are going to ask why, what prompted that?” Gupta said. “And keep in mind, the president going to the hospital is a big deal, no matter what.”
Gupta then tried to read the tea leaves into the hospital not being informed and prepped beforehand of the president’s visit and the fact that a week ago the White House doctor rode with Trump in the car, which he says is unusual. Gupta then worried about the possibility that the doctors were “beholden to the president” and might not tell Trump the truth about his health. Gupta reiterated these concerns in an accompanying 2,100-word CNN article the same day.
While CNN devoted all this to one news story about a top political figure’s unannounced doctor visit, corporate media outlets in general have been busy sending the opposite messaging about a litany of health difficulties for Supreme Court Justice Ruth Bader Ginsburg. The 86-year-old Ginsburg was admitted to the hospital on Friday with “chills and fever.” The Supreme Court’s oldest justice went home Sunday, according to CBS’s Jan Crawford.
BREAKING FROM SCOTUS: Justice Ginsburg was hospitalized overnight at Johns Hopkins with chills and fever. Symptoms have abated, expected to be released tomorrow.
Justice Ginsburg released from Johns Hopkins. “She is home and doing well,” Court says in a statement. The justices return to the bench for arguments Dec 2.
The reports on her illness from CNN, USA Today, Bloomberg, and The New York Times were routine writeups of the press statements Crawford posted. Instead of 2,000 words of probing about the “mystery” behind Ginsburg’s series of recent ailments, CNN Supreme Court reporter Ariane de Vogue pointed out evidence of Ginsburg’s vigor, such as her participation the same day she was hospitalized in an “important” Supreme Court conference.
“I have been watching her carefully since the beginning of this term, and she has been such an active participant. She’s often the first one asking questions, and she follows up,” de Vogue commented. De Vogue failed to point out that Ginsburg has been known for the past 13 years to fall asleep during oral arguments, although she did mention that the justice has had cancer four times.
“This is a very strong woman who has had frail health at times,” de Vogue concluded. “But, boy, she’s a strong woman.”
Ginsburg is clearly a strong woman in the personality sense. That is beside the point. If she were not a far-left political actor, Ginsburg’s health record would not be lipsticked. It’s also much worse than Trump’s. She’s 13 years older than Trump, who is 73. She’s been falling asleep in oral arguments since 2006. Ginsburg also fell asleep during two of President Obama’s State of the Union Addresses and Pope Francis’s speech to Congress in 2015.
Ginsburg can barely get herself off the Supreme Court dais, another long-time situation. She is typically extremely hard to hear when she speaks from the bench. Two weeks ago, she missed oral arguments due to a stomach bug. She also missed two weeks of oral arguments in January due to lung cancer surgery. The first two times she was treated for cancer, in 1999 and 2009, she didn’t miss a day of oral arguments.
In August, Ginsburg was treated with three weeks of radiation for a different cancer, pancreatic. Last November, she fell and broke three ribs. Ginsburg is simply and clearly not in good health. The divergence in treatment between her health history and Trump’s was replicated in media dismissal of Hillary Clinton’s fainting spell, the Washington Free Beacon noted.
The opposite-world media coverage is not shocking, because corporate media do free PR for the left, but it is unfair and impedes the American people’s business. The Supreme Court always considers significant cases, and those pending are no exception: whether Trump can undo President Obama’s executive order suspending immigration laws, whether laws against sex discrimination require employers to allow cross-dressing, whether religious schools may participate in state choice programs, to what extent states may regulate abortion, and more.
If Ginsburg is not capable of fully performing her duties in these cases, she should step down. If she is not capable of recognizing whether she should step down, others should guide her to do so.
Working furiously against this needed realization, the media has for decades been constructing a pretense that an elderly four-time cancer patient who falls asleep on the job and can barely walk is peppy, alert, and capable. Back in 2013, the Washington Post published a cutesy profile of Ginsburg’s personal trainer, who got her to peak performance of 20 pushups. That same year, The New Yorker’s Jeffrey Toobin claimed she was stronger than younger justices using the same workout equipment.
Stephanie Mencimer described in Mother Jones last year other media efforts in this absurd PR campaign to pep up an elderly justice with a long and serious history of health difficulties:
Details of [Ginsburg’s exercise routine] appear in Notorious RBG, and Ginsburg allowed the RBG documentary makers to film her doing pushups and tossing a medicine ball—proof, the film implies, that she is nowhere near death’s door.
Last year, personal trainer Johnson published The RBG Workout: How She Stays Strong and You Can Too, for which Ginsburg wrote the foreword. In March, Ginsburg helped promote the book by going on TV to work out with Stephen Colbert …Only the most die-hard superfan could call Ginsburg’s Colbert performance anything but cringeworthy—those things she does with Johnson are most definitely not pushups. The episode felt like a desperate attempt to convince the world, and maybe Ginsburg herself, that she didn’t grievously miscalculate in refusing to retire before 2014.
Watch the Colbert clip here: https://youtu.be/0oBodJHX1Vg
If it were Trump who had been a four-time cancer survivor who could barely walk down three steps, we’d be enduring a media thunderstorm demanding he resign rather than watching sunny profiles of him lifting five pounds with help next to a comedian. We’d have the Supreme Court potentially ushering Ginsburg off the bench the same way they ushered out Associate Justice William O. Douglas in 1975 after he suffered a debilitating stroke but still refused to resign. (Read the link — his story is shocking.)
Why would a justice well into the twilight years and by all appearances having a rough time not retire gracefully so her succession could be well-planned for optimal benefit to the nation? Everyone knows the answer: Because the Supreme Court is not a strictly judicial force that applies the laws as they are written. It is a political institution that makes political decisions, not a legal institution that makes legal decisions.
Ginsburg is among the justices notorious for her manipulation of the law. That legal corruption does make her job easier for her age. She doesn’t need to actually analyze the law itself, she just needs to know what would be politically advantageous to the left and rule accordingly, as she has done her entire tenure.
Still, Ginsburg obviously doesn’t want to retire while a Republican has the power to appoint her successor. Along with the entire Democrat-Media Complex, Ginsburg badly miscalculated by assuming Hillary Clinton would win the presidency in 2016 and thus didn’t resign while Obama could appoint her replacement.
So Ginsburg is now stuck in political purgatory, having to sit on the bench as her already delicate health declines even further. For her sake, and the country’s, let’s pray her departure doesn’t look anything like Douglas’s — and that her successor helps undo the court’s overweening importance as an unelected superlegislature in which justices’ personal politics can subvert the law.
A vexed Supreme Court is now considering the legal status of the highly popular program, Deferred Action for Childhood Arrivals, better known as DACA. DACA’s survival is now up for grabs in three related cases before the Court, which are being consolidated under the name Department of Homeland Security v. Regents of the University of California. The Court displayed its angst about the legality of DACA during last week’s oral argument for the case.
In June 2012, President Barack Obama initiated the program whereby children who were brought into the United States illegally became eligible to remain for two-year renewable periods so long as they did not committed any felonies or misdemeanors. As designed, the program does not offer these “Dreamers” a path toward citizenship, but it does authorize them to get jobs, obtain driver’s licenses, social security, and a host of other privileges. There are now close to 700,000 Dreamers in the United States, and they have often excelled, as students, military personnel, and workers. Most emphatically, they are not “far from angels,” let alone “hardened criminals,” as President Trump scandalously tweetedon the day of oral argument.
Fortunately, the debate before the Supreme Court rose above that low bar. At issue was the Dreamer’s “reliance interest” in the continuation of the DACA program. The notion of a reliance interest is old and runs throughout the law. It holds that a claim that is otherwise imperfect becomes fully protected once the recipient relies on the promises or actions of the defendant—here the government—to its detriment, and thus cannot be returned to his original position. As a substantive matter, I think that DACA was a welcome modification of national immigration policy. But as a legal matter, the issue is more complicated.
Of course, Trump’s election as president marked a dramatic reversal in immigration policy. In September 2017, Trump gave Congress six months to come up with a legislative solution to the DACA issue, which, to him, boils down to the simple fact that the Dreamers, having come to the United States illegally, have no right to remain in this country. No such deal was worked out, and the Trump administration issued an order to terminate the program. The order was promptly postponed in the lower courts on the ground that Trump was not exempt from the Administrative Procedure Act of 1946, which provides that a court “shall … hold unlawful and set aside agency action … found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
What is odd about the current dispute before the Supreme Court is that it subjects the Trump administration’s DACA decision to close scrutiny without once asking whether the same level of scrutiny should have applied to then-President Obama’s decision to create DACA in the first place. It is still an open question whether or not Obama had such legal authority in June 2012 to issue his own executive order. On multiple prior occasions, as in October 2010, Obama had repeatedly denied that he had the power to remove or alter the legal status of these individuals by saying “I am not king. I can’t do these things just by myself.” Yet less than two years later, Obama reversed himself and unilaterally imposed a new legal regime under the fig leaf that he was only exercising the most traditional form of prosecutorial discretion, whereby a prosecutor may decline to pursue a case under the law if he thinks that the evidence is not strong enough to warrant pursuing the case, or that other matters have higher priority.
But the outer limits of that discretion is a decision not to prosecute, not on the strength of individual facts, but for an entire class of persons, such as the dreamers. I regard this practice as questionable at best. If a president can refuse to deal with minor, non-violent offenses, can he also refuse to prosecute serious offenses because he thinks that the penalties are too steep? But even if he can rethink prosecution for broad classes of cases, he may not unilaterally change the status of illegal aliens (the statutory term) under state law.
As such, in my view, the DACA program was flatly illegal at the time it was first issued, because no amount of administrative review under the APA could cure this initial defect by making administrative findings about the strength of the supposed reliance interest. Yet, it was not possible for anyone to immediately challenge the program on its face before implementation. The reason for that is the standing doctrine engrafted onto Article III of the Constitution that restricts access to the federal courts to cases in which there are concrete and discrete “injuries in fact” to a particular person that are traceable to government action and capable of remediation in the event of a favorable decision. In the case of DACA, this standing doctrine means that the case can only be brought by some party that suffers that kind of discrete injury, which cannot be any general member of the public at large.
This narrow interpretation, however, misreads the key language of Article III, which states that “the judicial Power shall extend to all Cases in Law and Equity” that arise under the Constitution. The requirement of particularized injury is satisfied whenever an individual is subject to a deportation under the immigration laws. But the limited definition of standing—itself a term nowhere found in Article III—ignores the phrase “in equity,” which has long included challenges against ultra vires action—those beyond the power of any corporation, charitable organization, or local government. In other words, the legality of DACA should in principle be subject to challenge by any citizen who thinks that the program is illegal. If many such cases are brought, they can be consolidated into a single proceeding.
Accordingly, no recipient of DACA benefits could challenge the statute, and it is a tough sell to say that a state has standing to challenge the statute simply because it must issue driver’s licenses to Dreamers. While the driver’s license argument was accepted in 2015 by Judge Jerry Smith of the Fifth Circuit in Texas v. United States, a case which challenged DACA-spinoff program DAPA (Deferred Action for Parents), its thorough examination is of limited precedential value because its judgment was affirmedone year later, without opinion, by an evenly divided Supreme Court.
The standing issue would be trivial, however, if any citizen of the United States was entitled to challenge the illegality of any presidential order. Accordingly, the correct procedure needs an expedited review of DACA’s constitutionality before it was put into place. It is always easier to decide on the legality of a program before it is implemented, not afterwards.
Unfortunately, that did not happen. Hence the glacial pace at which DACA reached the Supreme Court has made it plausible for individual DACA claimants to insist that their reliance interest should force the Trump administration to do what the Obama administration never did— namely, give a set of reasoned justifications under the APA for reversing Obama’s original DACA order.
But their argument is suspect on two grounds. The first is that the reliance interest claim is weak in this context. There are all sorts of ways for individuals to rely on the decisions of other parties in organizing their own conduct. Company S, for example, contracts with local government L to remove snow from the streets. The contract lasts for several years, during which time X buys an automobile that he parks by the street. If L and S agree to reduce the frequency and quality of the snow removal services, X does not have a claim against either solely because he relied on their joint decision when he purchased his automobile.
In the language of contract law, a Dreamer is an “incidental beneficiary” who does not acquire rights against the government simply because the past implementation of DACA improved the Dreamers’ overall position. It is perfectly rational for every DACA recipient to take full advantage of the program. But it is not possible for them to claim that their past good fortune gives them any future entitlement to program continuation. Any waivers of enforcement power in two-year chunks can be stopped at any time.
The point has not been lost on defenders of DACA who grimly understand that the whip in all immigration cases lies with the President, such that the best they could hope for is a delay in action whereby the Court insists that the Trump administration offer a more detailed justification for its decision. Indeed, one reason why the oral argument proved so frustrating is that there was still judicial doubt—as expressed by Justices Ginsburg, Sotomayor and Kagan—as to whether the Obama program was illegal when issued. Hence Justice Ginsburg pressured Solicitor General Noel Francisco to explain the “strange element” whereby he argued first that DACA was flatly illegal, and then asserted that the Trump administration had ample discretion to end the program because of its policy reservations on its ends and purposes.
There is less to Ginsburg’s objection than meets the eye. Francisco was arguing the case in the alternative—first, that the program was illegal, but then if not, that the administration could end it in the same fashion it was implemented, by presidential order. In my view, the first of these grounds is correct. However powerful the case for DACA on the merits, the constitutional principle of separation of powers does not grant to the president the power to create an entire immigration reform out of whole cloth. Asking for a memo in justification for undoing that error seems most unwise. The standards here are necessarily fluid, and that inquiry invites lower courts to keep DACA in place by constantly raising the burden of proof to extreme levels.
Ironically, if this view on legality is correct, the harder question becomes whether Trump had the power to extend DACA once he came into office after he concluded that DACA was constitutionally infirm from its inception. The whole inquiry quickly enters uncharted waters, given the evident need to allow some limited time for transitions to take place. But the matter is too urgent for it to be resolved by either presidential directive or by judicial decision. Fortunately, the same option that was available in 2012 is available today: enact DACA as is for a short-term fix, and then work through the larger immigration challenges at a more thoughtful pace. The human toll is too great to tolerate more indecision, confusion, and delay.
Linda Greenhouse omits the anti-Catholic bias at the heart of a new case before the Court.
The headline is jolting. “Religious Crusaders at the Supreme Court’s Gates.” Thus starts Linda Greenhouse’s analysis of the actual and potential religion cases before the Court during its October term. Her thesis is that the Court’s relative restraint in its religion cases the previous term represented the justices’ merely “biding their time.” This term the gloves may come off. Now the Court may well “go further and adopt new rules for lowering the barrier between church and state across the board.”
She focuses on an Institute for Justice case that the Court has accepted for review, Espinoza v. Montana Department of Revenue. It involves a Montana supreme-court-ordered termination of a state tax-credit scholarship program that “helped needy children attend the private school of their families’ choice,” including religious and nonreligious schools. The precise issue before the Court, in dry legalese, is this: whether the Montana court’s decision “violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.”
Greenhouse is incredulous. If SCOTUS rules against Montana, then, according to her, “the logical consequence is that a state that once had a program offering financial support to religious and nonreligious schools alike . . . and that subsequently shut down the program entirely can be deemed to have violated a principle of religious neutrality.”
“Can that possibly be the law?” she asks. But her summary isn’t exactly right. She pays short shrift to the key fact of the case. The Montana court’s ruling was based on the state’s Blaine amendment, an artifact of odious 19th-century anti-Catholic bigotry. In fact, the words “Blaine amendment” appear nowhere in her piece.
A brief history lesson is in order. As Mike McShane explained in an instructive Forbes piece last year, in the latter part of the 19th century, America’s public schools were often “nominally Protestant.” They would frequently start their days with prayer, the students would read from the King James Version of the Bible, and they’d sometimes even sing hymns.
So when Senator James Blaine proposed amending the United States Constitution to state that “no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations,” he was not attempting to stamp out public-school religiosity. He was attempting to deny aid to Catholic parochial schools.
Blaine’s federal amendment failed, but his language found its way into 37 state constitutions. As McShane notes, the anti-Catholicism of the amendments is betrayed by the words “sect” or “sectarian.” In the language of the time, Protestant instruction was “nonsectarian.” Catholic instruction was “sectarian.”
Let’s look at the relevant language of the Montana constitution. The section at issue is entitled “Aid prohibited to sectarian schools” and prohibits the use of public funds “for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”
Mr. Blaine, meet your amendment.
So let’s go back to the question posed by Linda Greenhouse. “Could that possibly be the law” that states are prohibited from ending “a program offering financial support to religious and nonreligious schools alike”? Yes, it can possibly be the law. Indeed, it should be the law — when the state ends support because it’s enforcing a legal provision that in purpose and effect engages in blatant religious discrimination.
The twin constitutional pillars of religious liberty in the United States — the free-exercise clause and the establishment clause — don’t just protect liberty by disestablishing religion (by preventing the formation of a state church). They protect liberty by preventing punitive anti-religious policies. They prevent the state from targeting religion for disfavored treatment.
Targeting religion for disfavored treatment is exactly what Blaine amendments do. They were aimed squarely at Catholics. Yet as so often happens with attacks on liberty that are allegedly narrowly targeted, the government expanded its scope. Now the law aimed at Catholics affects all people of faith. When it comes to participation in public programs — programs they bought and paid for with their own dollars — Montana’s religious citizens and religious institutions are entitled to equal treatment under the law.
'I'm just so surprised that candidates are making conclusions here that are impossible to make'
Morning Joe hosts Mika Brzezinski and Joe Scarborough ripped the New York Times‘s decision to run a story about new allegations against Supreme Court Justice Brett Kavanaugh without including vital context about the story.
The Times published an essay adapted from a forthcoming book about the Kavanaugh confirmation battle in which two Times reporters claimed to have “uncovered a previously unreported story” about alleged sexual misconduct during Kavanaugh’s college years.
“A classmate, Max Stier, saw Mr. Kavanaugh with his pants down at a different drunken dorm party, where friends pushed his penis into the hand of a female student,” the Times reporters wrote. They added that this allegation “echoes” the allegation made by Deborah Ramirez, who alleged Kavanaugh “thrust his penis in her face, and caused her to touch it without her consent” during a party in college.
On Sunday night, the Times added a note to the story correcting a factual omission. The reporters excluded that the victim of Stier’s alleged incident “declined to be interviewed and friends say that she does not recall the incident.”
“Wait a second, a woman who Stier claims was abused by Kavanaugh, has she denied this? Has she claimed this happened? Why is there this glaring omission in The New York Times story? There were Molly Hemingway and others on Twitter were saying that, in fact, she had no recollection of this happening and her friends were saying the same thing,” Scarborough said.
“And I could not believe The New York Times would write this piece without that information contained in it. Are you surprised 24 hours—is it 24 hours went by before they clarified that fact?” he said, adding the article also did not note that Stier was the opposing counsel to Kavanaugh during their work on the Monica Llewinsky scandal.
“I don’t understand why they didn’t put this information in the article. Did that strike you as strange?”
“Yeah, that’s certainly good context being provided here about Stier. We were talking about this yesterday and were puzzled and remain so that if the woman involved is saying that she didn’t remember, that raises questions about the piece,” Associated Press reporter Jonathan Lemire responded. “Certainly, The New York Times has made their own editorial judgments about what should be included.
Scarborough pointed out each of the major three allegations against Kavanaugh had issues with corroborating witnesses.
“Here we have, again, a New York Times piece where Brett Kavanaugh is accused of something and, again, the very woman who was the alleged victim in this alleged incident is saying she doesn’t recall it happening,” he said.
Brzezinski addressed the political implications of the new allegations. Sens. Elizabeth Warren (D., Mass.), Kamala Harris (D., Calif.) called on Kavanaugh to resign, along with fellow 2020 candidates Beto O’Rourke (D.), Julian Castro (D.), and Mayor Pete Buttigieg (D.). Both former Vice President Joe Biden (D.) and Sen. Amy Klobuchar (D., Minn.) called for further investigation into the allegations.
“There has not been any new statements from any of the candidates since the Times updated the story overnight, that the female student declined to be interviewed and friends say she does not recall the episode,” Brzezinski said, pointing out there are still many unanswered questions.
“I’m just so surprised that candidates are making conclusions here that are impossible to make, again.”
By Eric Boehm • Reason
Given the choice of no longer paying to support unions they didn’t want to join in the first place, lots of public sector workers took it.
Two of the largest public sector unions in the country lost more than 210,000 so-called “agency fee members” in the wake of last year’s Supreme Court ruling that said unions could no longer force non-members to pay partial dues. That case, Janus v. American Federation of State, County and Municipal Employees, effectively freed public workers from having to make “fair share” payments—usually totaling about 70 to 80 percent of full union dues—in lieu of joining a union as a full-fledged member.
Now, annual reports filed with the federal Department of Labor show that the American Federation of State, County and Municipal Employees (AFSCME) lost 98 percent of it’s agency fee-paying members during the past year. Another large public sector union, the Service Employees International Union (SEIU), lost 94 percent of their agency fee-paying members.
Even though unions were preparing for a mass exodus in the wake of the Janus ruling, the numbers are staggering. In 2017, AFSCME reported having Continue reading
Elections,” the man once said, “have consequences.”
In 2016, the need to fill a vacancy on the United States Supreme Court was a consequence foremost in the minds of voters. That the pick ended up being made by Donald Trump’s and not Hillary Rodham Clinton helped stoke the partisan rancor that has the country divided and beleaguered.
A Clinton pick would have turned the court to the left for the first time in decades. Trump’s first nominee preserved the originalist wing of the court. His second appointment solidified it. And the voters apparently approve. Pollster Scott Rasmussen recently found 61 percent of voters approve of the way the court is doing its job. The high level of confidence, he says, tracks back at least as far as August 2018, and 59 percent of those surveyed think the court’s power is at about the right level.
Chief Justice John Roberts, whom some conservatives regard as the weakest of the adherents to originalism currently on the court, has been accused of making compromises on legal points to protect the court’s reputation. The Rasmussen numbers suggest the strategy’s worked, at least to this point. Still, as Roberts’ deciding vote to uphold the constitutionality of the tax/penalty piece of Obamacare illuminates, the court’s power to decide legislative disputes is now firmly entrenched in the American system. This may not have been the founder’s intent, but the court now has the last word on controversial matters that many continue to argue should be settled in and by the legislature.
Right now, with the court stacked five to four against for the foreseeable future, the Left is up in arms. Seeking a fix, several candidates running for the Democratic presidential nomination have embraced the idea of expanding the size of the Supreme Court, formerly an obscure idea emanating from the academy. “Plain and simple, the Democrats are seeking to get through legislation what they couldn’t achieve at the ballot box,” says Brad Blakeman, a former Bush White House staffer. “They are seeking to add judges, not fill vacancies, which is totally subverting the system.”
This is why the confirmation of new justices has been, since Reagan-appointee Robert Bork was defeated, so confrontational. Everything happens with outcomes in mind. Blakeman’s point is well taken. If the court really did need to be expanded, it could be done now. Massachusetts Sen. Elizabeth Warren, who wants to follow Trump in the White House, could drop a bill doing that next week. But what she and others intend is pure politics: Win the election first, then pack the court with liberals, end critical debates once and for all, and leave the Left in power forever.
It’s a powerful temptation. Franklin Roosevelt famously proposed the addition of new associate justices to the court to assist its older members who, surprise, surprise, would probably also be voting to uphold the constitutionality of New Deal measures the court had been striking down.
That, says David Norcross, a former Republican National Committee general counsel and former head of the Republican National Lawyers’ Association, was a bad idea then and would be now.
“Presidents have suffered from this since Chief Justice Marshall declared the independence of the courts. Fortunately, Congress, including some Democrats, thought the better of FDR’s court-packing scheme and acknowledged the Constitution and the founders’ reasoning,” Norcross says.
To thousands of other legal and presidential scholars all over America, the point of the court is its independence – and always has been. Packing the court would upend that.
“Democrats keep criticizing the president for trampling all over political “norms” and call him a dictator. But here we see them so upset at losing the last election they want to trample all over the “norms” and completely change the rules of the game to favor themselves, says political strategist Mike Shields.
The irony is the cure is worse than alleged disease. Just as Democrats have continued to protest, to “resist” the outcome of the 2016 election even though Trump was, famously, the only candidate ever asked about it in televised debates. It is those who oppose him who have come with the idea of loading up the court with compliant liberal justice in order to produce desired outcomes in a way that demeans if not erodes the constitutional system.
“Once Congress decides to add justices the race to chaos commences. Add two new justices, then if not satisfied with the outcomes, add two more. It will get easier to do so each time until the Court resembles a third, albeit smaller, legislative body which has become entirely political,” says Norcross. “An independent Court is an indispensable ingredient of the system of checks and balances. A Supreme Court concerned that a politically unpopular decision or decisions will result in adding new justices isn’t independent anymore.”
By John Yoo & James Phillips • National Review
We now hold the equivalent of yesterday’s supercomputers in our pockets. Communications occur instantly, from encrypted messages to Twitter blasts that reach millions. Entrepreneurs make fortunes by analyzing and harvesting the 2.5 quintillion bytes of data produced each day. Governments search the data to find terrorist networks or launch foreign propaganda. From business to politics, success depends on reading the tea leaves we electronically leave behind with social-media posts, texts and emails, or Google searches.
As inevitably as the weather, the hand of regulation has followed. While using the data for itself, the state seeks to regulate the businesses and individuals that create it. We have only begun to figure out whether the rules of privacy that governed paper records, telephone calls, and the mails will continue to apply, and how, to emails, texts, video clips, and social media. Not only does technology create more data that individuals want to protect; it also expands the government’s ability to search and manipulate. Where the line will fall between new technologies, regulation, and privacy will likely become the greatest legacy of Chief Justice John Roberts’s Supreme Court.
The Court will have the opportunity to correct the mistakes of its past. In the 1950s and ’60s, the Supreme Court under Chief Justice Earl Warren sought to adapt constitutional rules to electronic technologies such as the telephone. The liberal Warren Court ignored the Bill of Rights’ text and original meaning as part of a broader effort to remake the criminal procedure of the Constitution in its own image. We may again be facing a similar revolution, not out of fear of police and prosecutors, but out of unfounded worries about a Big Brother government. How the Roberts Court handles these coming issues will reveal much about how originalist the Court actually is.
In an ideal world, we might expect the political process to make the fundamental choices about the balance between privacy, government power, and the new communication and information technologies. But ever since the Warren Court, the Supreme Court has claimed that the Fourth Amendment gives it a right to set the rules. The text of the Fourth Amendment states:
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.
Scholars and judges generally agree that the Framers of the Fourth Amendment sought to prevent general warrants, which officers of the British Crown had used to search American colonists at any time, for any reason. But during the Warren years, the Justices transformed this ban into a requirement that the government could not conduct a constitutional search without a Fourth Amendment warrant based on probable cause, with a specific description of the persons and places to be searched. In Mapp v. Ohio (1961), the Warren Court extended the notorious exclusionary rule, which excludes from trial any evidence gathered in violation of the Fourth Amendment to all courtrooms throughout the nation. As even the liberal justice Benjamin Cardozo had complained as early as 1926, “the criminal is to go free because the constable has blundered.”
This general rule flies in the face of the text of the Fourth Amendment. Instead of assuming that only searches with warrants satisfy the Constitution, we ought to understand the amendment as composed of two parts: the search-and-seizures clause and the warrants clause. The text of the amendment fundamentally requires reasonable searches. If a search or seizure were reasonable, in the ordinary meaning of the word, then it would be legal, regardless of whether a specific warrant had been issued. Why then the warrant requirement? Such a requirement makes sense if the Framers considered search or seizure supported by a specific, judge-issued warrant to be per se reasonable. A warrant protected constables from lawsuits that, while more common during the Founding, have largely disappeared because of the Court’s immunity doctrines. The amendment recognizes two paths to reasonable, and thus legal, searches and seizures.
To be sure, some originalists defend the Warren Court, in part. They observe that the Pennsylvania and Massachusetts state constitutions contained nearly identical language, with one minor but clarifying difference: The relationship between the two clauses was not an “and” but a “therefore.” This difference would suggest that a specific warrant and reasonableness were one and the same. Further, according to this view, “unreasonable” meant against reason, which meant against the common law. And under the common law at the Founding, a warrant was necessary for a search or seizure unless law enforcement caught someone in the act of committing a felony.
Even if this reading of the Fourth Amendment were correct, the Warren Court made no attempt to base its policymaking on the amendment’s original meaning. Instead, it eagerly sought to impose a regime of judicial supervision over virtually all government searches, even over technologies that would have appeared to be magic to the Framers. No case exemplifies the Court’s approach better than Katz v. United States (1967). In Katz, the Warren Court found that the Fourth Amendment required a warrant to allow the police to place a listening device in a public phone booth. The defendant had used the phone in a public place outside his house, and his call was electronically intangible — the Fourth Amendment protects only tangible things: “persons, houses, papers, and effects.” But the Court found that his conversation fell within a “reasonable expectation of privacy” that was recognized by society. Rather than allowing Congress and the states to decide how much protection to give phone calls or any other electronic means of communication, the justices took for themselves the power to decide what would qualify as privacy.
As they did in other areas we have already examined, the justices assumed the roles of philosopher-kings. How do courts know that society views an expectation of privacy as objectively reasonable? According to Katz, they just do. How will courts determine what society thinks? Opinion polls? And why does the Fourth Amendment expand or contract depending on what society thinks should be private? Katz’s definition of privacy fails not only because judges cannot determine society’s view on privacy (that is, after all, the job of legislatures), but because it is utterly circular. Instead of providing any certainty with clear rules, the federal courts turned themselves into the arbiters of privacy, the definers of the legal scope of every new technology, and the monitors of all police investigations.
Under Chief Justice William Rehnquist, and majorities formed by Reagan and Bush judges, the Supreme Court tried to pare back the Warren Court’s activism. The Rehnquist Court created exceptions for searches conducted under exigent circumstances (such as evidence found while pursuing fleeing felons or protecting the lives of others), in good faith (such as operating under a defective warrant), at random (such as random drug-testing and drunk-driver checkpoints), or in plain view (public spaces, observation on the street). In these decisions, the Rehnquist Court began to recognize that while searches with a warrant were reasonable, not all reasonable searches need a warrant. Some observers believed that the Rehnquist Court might even overturn the exclusionary rule or Katz, but it never took that controversial step.
One of the chief surprises of the Roberts Court is that the justices have turned away from their predecessors’ project of restoring reasonableness as the constitutional touchstone. When faced with the new technologies, a majority of justices have ignored the original understanding of the Fourth Amendment and reverted to the Warren Court’s free-floating approach to privacy and government search. They have placed significant restrictions on the government’s use of new technology for policing and anti-terrorism operations, even as foreign nations escalate their use of cyber weapons to steal valuable data (such as the security and background files of almost every federal employee), hack infrastructure, and interfere with elections. The Court has precipitously plunged into the complexities of technology and privacy, where its competence is not high, instead of allowing the people’s elected representatives to make the fundamental choices.
The early signs of this high-tech activism first emerged under the Rehnquist Court. In Kyllo v. United States (2001), the Court confronted a case where a Department of Interior officer had used a new technology to search for indoor marijuana growers. The officer used a thermal imaging device that could measure the heat emitted by a building, but did not allow agents to see or listen to the activity within the house. In an opinion written by Justice Scalia, an unusual majority composed of Clarence Thomas, David Souter, Ruth Bader Ginsburg, and Stephen Breyer held that the Fourth Amendment prohibited the search, even though past opinions had found that evidence in plain view or in public outside the home did not require a warrant before search. “We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area,’” Scalia wrote, “constitutes a search at least where (as here) the technology in question is not in general public use.” According to the majority, “this assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” The dissent properly observed that the officer observed something outside the house, much as an officer might hear screams coming from within or witness smoke pouring from a window. But unfortunately, the Court thought it should set the standard for advanced sensor technology, rather than allowing the elected branches to decide — either Congress through legislation or the executive branch via regulation.
Despite its conservative reputation, the Roberts Court picked up where the Rehnquist Court’s Kyllo decision left off. In United States v. Jones (2012), the Court addressed police use of a device that used the Global Positioning System to track a car’s movements. Without getting a warrant, Washington, D.C., police attached a device to a suspected drug dealer’s Jeep that reported its movements 24 hours a day for a month. Writing for the majority, Justice Scalia held that the placement of the device constituted a physical invasion of the car. All of the justices agreed that the GPS monitoring device violated the Fourth Amendment, though some justices believed that shorter time periods might satisfy the Constitution. But the Court’s decision did not persuasively address why the GPS device amounted to an illegal search, while the exact same work conducted by human beings – having police officers conduct round-the-clock surveillance – would not violate the Constitution. In both cases, the tracker or the police officer simply follows the public movements of a suspect’s car. The tracking device only saves time and resources, and even intrudes less on privacy because it would observe only the location of the car and not what happened inside. The Court’s approach only invites more intrusive surveillance, such as deploying an aerial drone, which would never come into physical contact with the car, or even need to use enhanced sensors, to follow a suspect and report its movements instead. It is difficult to believe that the justices would forbid the police the use of night vision, in the way they forbade GPS, in public places to pursue fleeing felons. Police could simply follow a car when it travels on public roads and record video of its movements in real time.
The Roberts Court’s most recent opinion, Carpenter v. United States (2018), might prove its most sweeping. In a 5–4 decision, the chief justice joined the Court’s four liberals in finding that a person had an expectation of privacy in records kept by a telephone company of his cellphone’s location. Dissenting Justices Kennedy, Thomas, Alito, and Gorsuch argued that the third-party exception to the Fourth Amendment meant no warrant was required. Under existing doctrine, and the plain text of the amendment, individuals lose their claim to privacy over records or information that they willingly hand over to a third party. Upon this understanding, the Court has allowed warrantless searches such as “pen registers,” which record dialed telephone numbers, and for business records such as credit-card and financial transactions, because the original owner voluntarily gave the information to someone else. In this case, the owner of the cellphone allows the device to constantly “ping” the wireless cellphone network, which notifies the telephone company of its location. Police used the information to show that the suspects — who had, ironically, sought to rob cellphone stores — were present at the time and place of a series of crimes.
Nevertheless, the Court held that such nonprivate information received the protections of the Fourth Amendment. The Court did not find that the means to gather the information violated the text of the Constitution, but that somehow the data violated the Fourth Amendment because the government had come to have too much information. Chief Justice Roberts concluded that such commercial records still fell within the suspect’s “anticipation of privacy in his physical location” because “the time-stamped data provides an intimate window into a person’s life,” not just now, but well into the past. The problem with Chief Justice Roberts’s approach is that it provides no clear rule about how much information is too much information for the government to have, how courts and police are to decide, or why the Fourth Amendment even places limits on how much knowledge the government can have about its citizens’ public activities. Chief Justice Roberts, for example, might believe that the Fourth Amendment would bar government agencies from examining social media, even though individuals choose to blog and post so that many people can see, or financial data, which we transmit to banks and companies. He inevitably “invites courts to make judgments about policy, not law,” as Justice Thomas wrote in dissent.
These cases demonstrate that the Court, though now composed of a conservative majority appointed by Republican presidents, may still drift in a liberal direction. It is most likely to do so when, as here, it leaves behind the constitutional text and history in favor of judgments — no matter how reasonable or popular — that fall within the province of the elected branches of government. Technological advances will continue to pressure the Court to get creative with the Constitution over the intersection of privacy and law enforcement. So the justices have a choice. They can tread the constitutionally dubious path laid out by the Warren Court and invent whatever doctrine or test they think will be optimal from a policy perspective, per Katz and Carpenter.
Or they can leave that to the nation’s policymakers: Congress and the president. There is precedent for the elected branches making decisions related to the intersection of privacy and law enforcement. In 1968, Congress passed the Omnibus Crime Control and Safe Streets Act, in part as a response to Katz, which was handed down just a year earlier. The act allowed the institution best able to weigh the competing policy interests of privacy and safety — the legislature — to make the balancing determination. The Constitution’s federal structure also encourages states to experiment with different balances of privacy and security. Of course, the text and history of the Constitution provide a floor. But if society wishes to provide greater protection for privacy at the cost of some security, it should make that decision through the same political process that it uses for other public policies.
As technological development continues to accelerate, the Court will have a decision to make. Will it usurp the authority of the people and their representatives to decide how to best move forward in this new world, or will it succumb to the temptation of playing platonic guardians who know better how to navigate the future? Time will tell which path the Court chooses, but the Constitution has an answer, if they choose to consult it.
By Senator Ben Sasse (NE) • Wall Street Journal
Brett Kavanaugh has been accused of hating women, hating children, hating clean air, wanting dirty water. He’s been declared an existential threat to the nation. Alumni of Yale Law School, incensed that faculty members at his alma mater praised his selection, wrote a public letter to the school saying: “People will die if Brett Kavanaugh is confirmed.”
It’s predictable now that every Supreme Court confirmation hearing will be a politicized circus. This is because Americans have accepted a bad new theory about how the three branches of government should work—and in particular about how the judiciary operates. Continue reading
By Cameron Cawthorne • Washington Free Beacon
Sen. Joe Manchin (D., W.Va.) on Wednesday praised President Donald Trump’s Supreme Court nominee for having “all the right qualities.” But he stopped short of giving a full endorsement, saying he will listen to his constituents about their opinions of the nominee.
Manchin appeared on West Virginia MetroNews, a statewide radio station, where host Hoppy Kercheval asked him whether he was going to to support nominee Brett Kavanaugh.
“Do you have a lean today?” Kercheval asked.
“No, I don’t have a lean. I think he seems to be a very fine person of high Continue reading
Judge Brett Kavanaugh, President Donald Trump’s new nominee for the Supreme Court, is a whip-smart legal conservative. As a judge in the highest-profile appeals court in the nation, he has shown an exemplary dedication to the rule of law. He has defended the separation of powers against threats coming from multiple directions. He has repeatedly cautioned his colleagues on the bench not to attempt to play a legislative role. He has also insisted on enforcing constitutional structures of accountability on government agencies. He has vindicated the right to free speech (against certain campaign-finance regulations), to bear arms (against the D.C. government’s attempts to implement sweeping bans), and to religious liberty (against a version of the Obama administration’s “contraceptive mandate”). And he has followed Supreme Court precedents even when gently suggesting they should be rethought.
His decisions have also been influential, with the Supreme Court repeatedly adopting his analysis and in one case running several block quotes from his opinion. Some conservatives have faulted the reasoning of a few of his opinions, but usually have not disagreed with the decisions he reached. His ruling on a Continue reading
Justice Anthony Kennedy’s retirement is inarguably a game-changer. It will take some time and depend on who President Donald Trump picks as his replacement to see just how much.
For years now, Kennedy’s been the swing vote on a court closely divided along ideological lines. That only matters infrequently but it’s vitally important when it does, which is why conservatives are jubilant and liberals fearful. Both believe Trump’s next pick will give the court a solid majority composed of five strict constructionists, as they are sometimes called, who would alter American jurisprudence for at least a generation and probably more.
What both sides should remember is there are no guarantees. The right was in relatively the same boat in 1987 when Lewis Powell, a justice appointed by Richard Nixon, stepped down. Like Kennedy, Powell was a swing vote on the Burger Court. It was presumed the man everyone expected to replace him—former United States Solicitor General Robert Bork—would move the court to the right, cementing the victories of Reagan’s Revolution. Continue reading