Rumors were flying around the Capitol this week that the Supreme Court would decide the health care cases on Thursday. They were wrong.

Hill staffers, Health and Human Services Department employees, and think-tankers were all abuzz on Wednesday with speculation that the Supreme Court of the United States might issue its opinion on the Affordable Care Act case on Thursday, a month sooner than most court-watchers predict. . . .

[Although the rumors were incorrect,] it was tough for people who cared about the case to ignore the rumors entirely, despite their implausibility. And the Court’s press office, which does not comment on cases, was unable to deny it. Many government staffers and reporters were on edge. A survey at Scotusblog’s live blog announcing Thursday’s decisions showed that more than a third of people watching were there only because they thought the health care case would land.

The Court recognizes that under current law there is no established upper limit as to when the government must review seized electronic data to determine whether the evidence seized falls within the scope of a warrant. See, e.g., Mutschelknaus, 564 F.Supp.2d at 1076 (“Neither Fed.R.Crim.P. 41 nor the Fourth Amendment provides for a specific time limit in which a computer may undergo a government forensic examination after it has been seized pursuant to a search warrant.”). However, the Fourth Amendment requires the government to complete its review, i.e., execute the warrant, within a “reasonable” period of time. Numerous cases hold that a delay of several months between the seizure of electronic evidence and the completion of the government’s review of that evidence as to whether it falls within the scope of the warrant is reasonable. See id. at 1076–77 (finding a two-month delay reasonable); see also Burns, 2008 WL 4542990, at *8–9 (finding a ten-month delay for completion of the government’s review reasonable).

The parties have not provided the Court with any authority, nor has the Court found any, indicating that the government may seize and image electronic data and then retain that data with no plans whatsoever to begin review of that data to determine whether any irrelevant, personal information was improperly seized. The government’s blatant disregard for its responsibility in this case is unacceptable and unreasonable. See United States v. Debbi, 244 F.Supp.2d 235, 237–38 (S.D.N.Y.2003) (finding a Fourth Amendment violation in the search, seizure, and retention of seven boxes of documents from the defendant’s home, which included “personal and religious files, general correspondence, [and] family financial records,” when “no meaningful attempt” was made to separate and retain only the items the warrant permitted to be seized). The government contends that Debbi is inapposite because, in that case, the government retained original paper documents, whereas, in this case, the government returned the original electronic documents and equipment and retained only the imaged electronic documents. The Court disagrees. It is a distinction without a difference. The government’s retention of all imaged electronic documents, including personal emails, without any review whatsoever to determine not only their relevance to this case, but also to determine whether any recognized legal privileges attached to them, is unreasonable and disturbing.

. . .
The Court has not reached this conclusion lightly. However, the Court cannot, in the interest of justice and fairness, permit the government to ignore its obligations. Otherwise, the Fourth Amendment would lose all force and meaning in the digital era and citizens will have no recourse as to the unlawful seizure of information that falls outside the scope of a search warrant and its subsequent dissemination. Accordingly, Metter’s motion to suppress is granted. This conclusion is limited to the electronic evidence seized and imaged pursuant to the Metter Home Search Warrant, Office Search Warrant, and Email Search Warrant and does not include the paper documents and currency seized pursuant to those warrants.

It sounds like Judge Irizarry was really annoyed by the Government’s conduct. At the same time, I have trouble understanding exactly what Fourth Amendment principle Judge Irizarry thinks was violated here. She seems to be assuming that the Fourth Amendment ensures a right to the privacy of information seized pursuant to a search warrant if the information seized is not within the scope of the warrant. The idea seems to be that the government needs to complete its review of seized information quickly so the data outside the scope of the warrant can be taken outside the government’s reach — kind of a duty to separate the digital wheat from the digital chaff in a reasonable period of time, even if the government has warrants and the owners have their computers back. The assumption seems to be that evidence outside the scope of the warrant will be destroyed or made unavailable to the government after that search is completed, so the government needs to complete the forensic process quickly to enable that to happen. We saw some of this thinking in Judge Kozinski’s Compehrensive Drug Testing opinion, although it’s not generally found in existing Fourth Amendment caselaw. (It’s not clear if Judge Kozinski was trying to apply the Fourth Amendment, some other legal rule, or was just announcing new rules as some sort of advisory opinion.) Anyway, it will be interesting to see how this goes: This seems like the kind of case that would merit an interlocutory appeal, and I’m not sure the Second Circuit would look at this the same way.

Hat tip: Cybercrime Review.

Equilibrium-adjustment is not originalism. It is a theory of maintaining the status quo balance of power, not an effort to restore eighteenth-century rules. That understanding explains why living constitutionalists and pragmatists alike have embraced equilibrium-adjustment, and why the chief attack on it has been launched on originalist grounds. It is true, as Slobogin says, that the theory “harks back to some earlier time.” But that does not make it originalist. The relevant “earlier time” is a time before a triggering technological development, but it need not be the year the Fourth Amendment was ratified.

To be sure, it is possible for originalists to adopt the method of equilibrium-adjustment. But nonoriginalists can adopt it, too. In my view, its widespread appeal is what makes equilibrium-adjustment a valuable tool for understanding Fourth Amendment law: Justices from very different interpretive schools use it. It operates equally well within all of the different theories of interpretation. Different Justices might tailor the method based on their interpretive commitments. But they all can engage in equilibrium-adjustment, and almost all do. The Supreme Court’s recent decision in United States v. Jones provides a revealing illustration of how equilibrium-adjustment can occur in both originalist and nonoriginalist forms.
. . . .

The Supreme Court handed down Jones just a few weeks after my Article appeared, and the case divided the Court into two main camps. One adopted an originalist methodology; the other explicitly rejected originalism. But both approaches relied heavily on equilibrium-adjustment.
. . . .
The majority opinion by Justice Scalia engaged in equilibrium-adjustment using an originalist framework. When the Government argued that Jones had no reasonable expectation of privacy in the public location of the car, Justice Scalia responded that the Fourth Amendment should be read to protect rights beyond the reasonable expectation of privacy test. Quoting from his opinion in Kyllo v. United States,28 Justice Scalia reasoned that the Fourth Amendment must be interpreted to “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” To assure preservation of that privacy, Justice Scalia interpreted the Fourth Amendment as protecting against common law trespasses. The installation of the GPS device with intent to use it to obtain information was a common law trespass, and therefore a Fourth Amendment search.

Justice Alito filed an opinion concurring in the judgment, joined by Justices Ginsburg, Breyer, and Kagan. Justice Alito criticized the majority’s originalist approach as inconsistent with precedent and unworkable. Instead, Justice Alito engaged in equilibrium-adjustment using the Katz “reasonable expectation of privacy” framework. He explained that “[i]n the pre-computer age,” surveillance that could reveal information as extensive as GPS monitoring was impractical in most cases. It would require “a large team of agents, multiple vehicles, and perhaps aerial assistance.” Changing technology had expanded government power by making such monitoring “relatively easy and cheap.” Accordingly, Justice Alito interpreted the Fourth Amendment to limit the government’s new powers. Although Justice Alito’s opinion is not a model of clarity, he seems to have interpreted the reasonable expectation of privacy test to lock in prior understandings of how invasive police investigations might be. Long-term use of GPS monitoring constituted a Fourth Amendment search because it exceeded pre-GPS societal expectations that such invasive monitoring was unlikely or even impossible.

Justice Sotomayor joined the majority opinion and filed a concurrence agreeing with and going beyond Justice Alito’s rationale. Like the opinions filed by Justices Scalia and Alito, Justice Sotomayor’s opinion engaged in equilibrium-adjustment. GPS monitoring “may alter the relationship between citizen and government,” Justice Sotomayor reasoned, and the Fourth Amendment had to be interpreted to limit use of “a tool so amenable to misuse.” Justice Sotomayor also expressed a need to revisit the third-party doctrine, the rule that information disclosed to third parties does not receive Fourth Amendment protection. That doctrine is “ill suited to the digital age,” Justice Sotomayor reasoned, given that now “people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

The three opinions in Jones proceed from different premises. One is originalist; two are not. But all three opinions rest on the principle of equilibrium-adjustment.

The law is Section 1021 of the National Defense Authorization Act for Fiscal Year 2012. Entitled “Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force,” the Section states:

(a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons. A covered person under this section is any person as follows
. . .
(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under the Law of War. The disposition of a person under the law of war as described un subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].

Some readers may recall that President Obama issued a signing statement when he signed the bill that added a cautious note about this provision. It stated in relevant part:

Section 1021 affirms the executive branch’s authority to detain persons covered by the [AUMF]. This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then . . . . Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens . . . . My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the law.

In this case, Hedges v. Obama, Congress’s statement about the Executive Branch’s power has been challenged as facially unconstitutional by a group of plaintiffs, consisting primarily of a member of the Icelandic Parliament; a London-based pro-Wikieaks activist; and two U.S. based journalists who write about the war on terror. The plaintiffs claim that Congress’s effort to provide the executive branch indefinite detention power makes them fear that they are “subject to prosecution under Section 1021,” and that the law infringes upon their First and Fifth Amendment rights. In defending the law, DOJ has taken the view that the law merely restates the Executive Brach’s power under the AUMF. Although DOJ declined to say whether the detention power could cover any of the individual plaintiffs, DOJ also claimed that the plaintiffs lacked standing.

In her opinion, Judge Forrest finds that the plaintiffs have standing to challenge the law because they might be “prosecuted” under the law, particularly because DOJ refused to answer whether the law covered any of the individual plaintiffs. She then preliminarily enjoins the law because it likely violates the First and Fifth Amendments. The key to the First Amendment analysis seems to be this passage:

Here, each of the four plaintiffs who testified at the evidentiary hearing put forward evidence that their expressive and associational conduct has been and will continue to be chilled by § 1021. The Government was unable or unwilling to represent that such conduct was not encompassed within § 1021. Plaintiffs have therefore put forward uncontroverted proof of infringement on their First Amendment rights.

Applying strict scrutiny to the question of whether there is a compelling government interest that outweighs infringement upon First Amendment rights, the Court finds that plaintiffs have shown a likelihood of success that there is not. Again, that is particularly so in light of the Government’s position that §1021 does no more than the AUMF; therefore, the infringing potential for § 1021 may well be unintentional, but it is real nonetheless. There is no doubt that the type of speech in which Hedges, O’Brien, Wargalla, and Jonsdottir engage is political in nature. It is also likely that some of their views may be extreme and unpopular as measured against views of an average individual. That, however, is precisely what the First Amendment protects.
. . .

This Court is left then, with the following conundrum: plaintiffs have put forward evidence that § 1021 has in fact chilled their expressive and associational activities; the Government will not represent that such activities are not covered by § 1021; plaintiffs’ activities are constitutionally protected. Given that record and the protections afforded by the First Amendment, this Court finds that plaintiffs have shown a likelihood of succeeding on the merits of a facial challenge to § 1021.

Judge Forrest next concludes that the law also is likely void for vagueness under the Fifth Amendment because it doesn’t indicate clearly what conduct Congress is subjecting to criminal penalties. First, she concludes that Congress’s effort to give the President detention power is effectively a criminal law:

[T]his Court preliminarily finds that § 1021, which could be used for the indeterminate military detention, is sufficiently akin to a criminal statute to be treated as such. At the hearing on this motion, the Government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under § 1021. Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years. In relevant part, then, that is the analytical equivalent of a penal statute.

Treating Congress’s statement about the President’s detention power as akin to a criminal statute, Judge Forrest concludes that the statute is not sufficiently clear as to what is made a crime under void-for-vagueness principles. Judge Forrest again focuses on the fact that DOJ refused to take a position on whether the law applied to the individual plaintiffs: “Finally, and most importantly of course, the Government was unable to state that plaintiffs’ conduct fell outside § 1021. In the face of what could be indeterminate military detention, due process requires more.”

Whatever the merits of Section 1021 as a matter of policy, I find Judge Forrest’s opinion quite puzzling as a matter of constitutional law. First, Section 1021 does not seem to prohibit conduct or impose punishment. It appears to be a statement of Executive branch detention authority, not a law that criminalizes certain activity. As a result, I’m not sure it makes sense to treat Section 1021 as if it were a prohibition of conduct, and then to strike down the law facially on the basis of constitutional doctrines, like the First Amendment and the void-for-vagueness doctrine, that limit the government’s power to prohibit conduct. You could have an as-applied challenge to detention under the First Amendment, but I don’t see how a law expressing Congress’s view of the Executive Branch’s detention power can be subject to this sort of facial challenge. Also, I don’t understand why Judge Forrest sees DOJ’s refusal to say whether the law authorizes the detention of any of the individual plaintiffs likely renders the law facially unconstitutional. I can see why it helps grant standing under Clapper, but why does it indicate the unconstitutionality of the statute on the merits? Further, Judge Forrest’s view that Section 1021 is akin to a criminal statute because it might be used to justify military detention strikes me as odd: The authority that Section 1021 tries to reaffirm is not detention relating to criminal authorities, so I don’t know why the statement of authority is “the analytical equivalent” of a crime. Finally, I’m not sure how a member of the Icelandic Parliament who lives in Iceland has standing to bring a facial challenge to a federal law. What U.S. constitutional rights does an Icelandic member of parliament have that this law might violate? I realize that the Second Circuit’s view of standing is now super-broad under the recent Clapper case, which DOJ recently asked the Supreme Court to review, but I’m not sure I follow how Article III standing is that broad.

My reaction may partially reflect my familiarity with the many statutes that Congress has passed authorizing federal agents to make criminal arrests — that is, detentions for criminal activity. For example, 18 U.S.C. 3052 authorizes FBI agents to “make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.” This is a statute that tries to define executive power, not to punish conduct. It would be pretty strange if a group of plaintiffs could file a civil lawsuit, express fear that they might be arrested by the FBI, and thereby obtain an injunction against warrantless arrest under 3052 if DOJ refuses to say if the plaintiffs might be arrested — all on the ground that 3052 authorizes detention and is therefore like a criminal statute, while it isn’t sufficiently clear as to what conduct it “prohibits.” Such a suit would seem quite strange because 3052 doesn’t “prohibit” anything; it merely provides for a detention power to help enforce conduct prohibited elsewhere. I’m not sure why Section 1021 should be treated differently.

Anyway, Judge Forrest’s decision has more symbolic importance than actual importance: It’s not clear what it even means to enjoin a law that expresses Congress’s view about executive power. And this is just a preliminary injunction ruling, not a final ruling on the merits. But I thought the opinion is pretty interesting nonetheless, and I look forward to comments from readers who think there is more to the decision than I am currently seeing. (I should add that Glenn Greenwald — a harsh critic of the detention law on policy grounds — has a post celebrating the decision that runs through some of its reasoning. Glenn doesn’t express a view as to whether the decision is persuasive as a matter of law, but he does call the ruling “amazing” and indicates that he saw the case as an “uphill battle” for the plaintiffs and that he did not expect the plaintiffs to succeed. For Glenn’s views, see here.)

UPDATE: For more good questions about the decision, check out the LawFare Blog: In particular, Steve Vladeck’s post, Why Hedges v. Obama is Terribly Perplexing, and Bobby Chesney’s post, Issues with Hedges v. Obama, and a Call for Suggestions for Statutory Language Defining Associated Forces.

The article includes this defense of the status quo from law prof Michael Olivas:

Michael A. Olivas, a professor of law at the University of Houston and a past president of the Association of American Law Schools, says relaxing accreditation standards to allow more-diverse education models, which Mr. Tamanaha calls for, could lead law schools in the direction of for-profit institutions like the University of Phoenix, which critics contend shortchange students.

As Mr. Olivas puts it, the result could be “the Phoenix-ation of law schools, churning students through, having a contingent and transient faculty, and none of the institutional investment in the broad roles of legal education.”

If so, what is wrong with that? Some law schools may follow that approach, but others won’t. And students ultimately will be the ones to decide which balance of approaches is best, as their decisions where to enroll will determine which schools remain viable. I don’t see why we wouldn’t want students to have that choice. “Institutional investment in the broad roles of legal education” is expensive. If students can get a good legal education without it, I don’t know why they shouldn’t be able to choose to do that.

Thanks to Brian Leiter for the link; Brian has his own thoughts here.

Over the course of several years as I have talked to friends and family and neighbors when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together, when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that Don’t Ask Don’t Tell is gone, because they are not able to commit themselves in a marriage, at a certain point I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married.

Having recently married — albeit in the legally boring kind of wedding that raises no constitutional issues — I suspect that Obama sees this as an excellent way to jumpstart the economy.

Brian’s basic argument is that law schools have been on an unsustainable path fueled by the ready availability of student loans, the cartel power of the ABA, and the influence of the U.S. News rankings, all of which have led schools to adopt policies that help law professors more than they serve students. In most states, you can’t be a lawyer unless you graduated from an ABA-accredited school. Law professors have run the ABA accreditation process, however, and have done so in ways that ensure that all ABA-accredited schools treat professors extremely well and that law schools are quite nice places to work. This has led to a surprisingly uniform educational system in which nearly every school adopts a high tuition model that gives professors low teaching loads, nice salaries, and lots of time for research. Some professors work extremely hard and produce important scholarship, which is the goal. But many other professors just coast and take advantage of their good fortune after making it past the (typically low) tenure hurdle. And Deans generally can’t treat the hard workers and productive scholars better than the dead wood because Deans generally require faculty support to stay in office: A Dean who favors the productive scholars and top teachers too much may not stay in office long. So salaries for all professors are high and course loads are low, whether the professors work 80 hours a week or 20.

While this is a great situation for law professors who want a cushy life, it doesn’t serve students. The high cost model of legal education means that students are mostly denied ways of obtaining low-cost legal educations, which has led to spiraling costs for legal education that make law school best suited for the wealthy, those on scholarship, and those able to compete successfully for corporate or public-interest jobs. Some applicants don’t realize this, in part because loans are so easy to obtain and schools are in no hurry to point out the economics of legal education. And even while law school is so expensive, the obsessive focus by law school applicants and alumni on the U.S. News ranking has led schools to change their programs and their admission standards to whatever helps their U.S. News ranking, even if it hurts the quality of their educational programs. Maximizing U.S. News rankings has led schools to restructure their admissions standards, limit part-time programs, raise the number of transfers, and raise tuitions to make room for scholarships that can be used to maximize the numbers of the entering class. A Dean who doesn’t do this won’t stay a Dean long; the U.S. News rankings are so widely considered authoritative that a Dean whose school falls in the ranking is considered a failure. So even at the high dollar figure of most law schools, the focus is on making changes that maximize rankings, not delivering the most effective education for students. The model is unsustainable, Brian argues, and we have begun to see that already with the recent drop in law school applications that may soon threaten the viability of a number of law schools.

Importantly, Brian does not argue that every school needs to change. His basic argument is that there are lots of different kinds of law schools, and they should be allowed to follow different models. There is no one way to create a lawyer, contrary to the assumption of the ABA accreditation process. The “top” schools can and should continue basically as-is. Their students want a 3-year academic degree in a scholarly atmosphere, and their graduates generally can get the jobs needed to pay off loans quickly. So there is no need to change there. But less elite institutions should be free to adopt lower cost models. They should be free to rely more on adjuncts, or have professors with higher teaching loads or who don’t focus on research. They should be free to offer two-year degrees instead of three-year degrees. A diversity of offerings will better serve students who have different needs and different abilities to pay for legal education. One-size-fits-all just can’t work.

I found Tamanaha’s analysis compelling, and his basic deregulatory solution pretty convincing. (I wasn’t fully convinced by all of the details in the various proposals he makes, but that’s a quibble in the overall scheme of things.) Whether people agree or disagree with the book, it should — and I think will — receive a wide audience among legal academics. Tamanaha’s book is both thoughtful and damning, made all the more persuasive because Tamanaha is an experienced and respected academic who builds his argument carefully step by step with an insider’s understanding. It’s definitely worth a careful read — and for defenders of the status quo, a thoughtful response.

The Thomas M. Cooley Law School served me with a subpoena yesterday afternoon, commanding me to produce certain documents purportedly relevant to [a defamation lawsuit Cooley has filed against certain critics of the law school]. The documents in question include all my communications with the defendants, and “all documents and communications . . . that you had or exchanged with any person regarding how (i) Thomas M. Cooley Law School reports its post graduation employment rates or (ii) your communications with David Anziska regarding any inquiry or investigation he discussed with you about how law schools report post-graduate employment and salary data.”

Yesterday, the Division announced the opening of a novel joint investigation of the University of Montana (under Title IV of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972), and the City of Missoula Police Department and the Office of the Missoula County Attorney (under the police misconduct provision of the 1994 Violent Crime Control and Law Enforcement Act and the antidiscrimination provision of the 1968 Safe Streets Act). The investigation will assess whether the University and the local authorities violated the Constitution or civil rights laws by failing to protect women against sexual assaults. In announcing the investigation, AAG Perez said that “[i]n the past three years, there have been at least 80 reported rapes in Missoula. At least 11 sexual assaults involving University students are alleged to have occurred in the past 18 months.” This investigation seeks to vindicate the constitutional guarantee of equal protection of the laws in its core, original sense — the guarantee that state and local law enforcement will protect all citizens equally against private depradations.

. . . [W]hat breaks new ground is not the investigation of the University — that’s standard fare for Title IX investigations — but the broader investigation of the local Missoula police and prosecutor’s office. This is the first Division law enforcement investigation of which I am aware in which the discriminatory failure to protect a class of victims of crime has been the main focus, and in which the Division has targeted prosecutors as well as police. This is, as I said, an effort to vindicate the equal protection of the laws in its core, original sense. Discriminatory failure to investigate and prosecute crimes has been a major problem for victims of sexual assault and violence against women (something the Supreme Court acknowledged, then disregarded, in United States v. Morrison). And, as Randy Kennedy’s work highlights, it has been a major problem for racial minorities who are victims of crime as well.

And DOJ is basically the only entity that can challenge these sorts of systemic patterns of discrimination in court. Discrimination is likely to be impossible to prove in any individual case. . . [I]n Missoula, any individual victim is likely to be unable to show that the police or proseuctors responded less vigorously to her crime because of her gender rather than because of the individual facts. . . .

So DOJ is likely the only entity that can bring these sorts of claims into court. I still wouldn’t underplay the difficulties of proof here. But the Civil Rights Division’s efforts to attack the problems of . . . failure to protect crime victims are incredibly important.

I favor aggressive investigation and prosecution of sexual assault crimes. With that said, I’m a bit puzzled by the legal theory animating DOJ’s investigation. If equal protection requires similar treatment of similar things, what is the standard for measuring whether sexual assault crimes are being treated equally? Do we compare prosecutions for sexual assaults in cases with female victims with prosecutions for sexual assaults in cases with male victims? Or do we compare prosecutions for sexual assaults as a whole with prosecutions for other crimes that are generally deemed equally serious? And if the latter, does that mean that the federal constitution’s Equal Protection clause mandates a particular approach to allocation of state and local law enforcement resources in sexual assault cases? This isn’t at all my area, so I’m not sure what to make of this. But at least at first blush, I’m not sure I see a proper role for federal intervention here.

there is no pressure to hire Native Americans for affirmative action reasons, except, perhaps, at some law schools in states with large Native American presences (I have this only anecdotally about Arizona and New Mexico). For affirmative action purposes, all law schools care about are African-Americans and Latinos, and even in those two categories, law school commitment to affirmative action usually varies by region of the country.

Brian discounts the listing of Warren as a minority professor in the AALS book as indicating more about the AALS’s priorities than Warren’s:

[B]ecause the AALS aggressively polices the racial and ethnic diversity of law faculties, law schools are careful to make sure anyone who could count as an under-represented minority is so-listed (thus, I can recall a faculty member who was the proverbial “Jewish kid from New York” but with some South American ancestry being listed as “Hispanic,” though no one would have ever so identified him).

I don’t have an independent basis on which to assess either claim. Brian is very savvy about legal academia in general, however, so I’m inclined to credit his view. I should add that I share Brian’s skepticism that Warren relied on her ancestry to help get a job at Harvard. My sense is that Warren was indeed among the top bankruptcy scholars at the time Harvard was looking to hire her — and that she very likely was the top female bankruptcy scholar, a distinction that likely carries some significance to at least some faculty members. As Brian notes:

[Warren's] record of scholarship in bankruptcy is clearly sufficient to get her appointed at Harvard. She is, after all, one of the three most-cited scholars in the bankruptcy/commercial law field, and she is the only woman in the top ten. (I could imagine being the top woman in the field might have played more of a role than her being Native American . . .

During the 1970 Term of the Supreme Court, I had the good luck and great privilege to serve as one of Justice Harlan’s law clerks. One of my tasks that year was to draft, at his direction, an opinion for the court in Cohen. With two alterations, Justice Harlan filed the opinion as drafted.[fn8]

[fn8] Harlan added the first paragraph of the opinion, quoted in full in, supra note 1 and accompanying text, and discussed infra, at note 78. He also added the phrase “within established limits” to a sentence that read in the draft: “These are, however, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve.” Cohen, 403 U.S. at 25. I continue to believe that the first paragraph is the best part of the opinion. On the other hand, I did not, and still do not, understand why the phrase “within established limits” improves the opinion. Given Harlan’s natural tendency to avoid sweeping statements that might be susceptible to an absolutist reading, I think the best interpretation is that the addition of this phrase was simply “Harlan being Harlan” (or correcting a clerk’s oversight, if one prefers!).

One other thing about the opinion will puzzle me forever. When the Justice told me that I was to write an opinion finding Cohen’s conviction could not stand under the First Amendment, he told me to make the opinion “Elizabethan.” I had no idea what he meant and still do not. Harlan was quite an Anglophile, so his direction did not startle me. But, unless I got that part right by accident, how an opinion in this case in 1971 from the Supreme Court of the United States might be “Elizabethan” eluded me. Shakespeare frequently employed bawdy language and allusions, but I knew Harlan did not want an opinion peppered with obscenities. I took him to mean something like, “Tend to err on the side of using florid and fancy phrases, and avoid vulgar or common words when writing about this vulgar thing.” Many people have asked me where the phrase, in Part II of the opinion, that “it is . . . often true that one man’s vulgarity is another’s lyric,” id., originated. I suspect that was me trying to be Elizabethan!

Regarding the breach of law clerk confidentiality required to write the article, Krattenmaker writes:

I have no doubt that I was under a strict cloak of confidentiality when I had these conversations [with Justice Harlan] and that my obligation to keep quiet about them stayed with me after I finished my clerkship. I also believe, however, that this “law clerk privilege” does not survive forty years later, when all the participants are dead, and most of the participating Justices have left their working papers pertaining to this case in public libraries. At some point, it seems to me, the values of unobstructed historical inquiry outweigh the privacy or secrecy interests of deceased Justices.

Thanks to Adam Liptak for the link.

King did not consider whether the facts of the King case amounted to exigent circumstances. The Court did not consider whether the warrantless entry was constitutional. Instead, the limited cert grant addressed only a small piece of the puzzle: The Court only considered the right test for police-created exigent circumstances — the part to be subtracted from the totality of the circumstances — and then remanded the case back to the Kenucky courts. . . . [T]he Court’s conclusion was that all the facts could be considered — the usual “exigent circumstances rule” applies — without subtracting out the evidence of noises inside the home. . . .

Importantly, though, the Court did not hold that the warrantless entry was justified — much less that warrantless entries are generally justified — in such circumstances. The Court only held that the usual exigent circumstances rule applies: That is, whether or not there were exigent circumstances, the Kentucky courts should have considered the totality of the circumstances instead of subtracting out the reaction inside the house to the officers’ knocking and announcing their presence.

In light of that narrow holding — and the frequent misunderstandings of it — I thought it worth pointing out that the Supreme Court of Kentucky handed down its decision on remand last week in King v. Commonwealth . The court held that the entry was unconstitutional and not based on sufficient exigent circumstances:

[W]e conclude that the Commonwealth failed to meet its burden of demonstrating exigent circumstances justifying a warrantless entry. During the suppression hearing, Officer Cobb repeatedly referred to the “possible” destruction of evidence. He stated that he heard people moving inside the apartment, and that this was “the same kind of movements we’ve heard inside” when other suspects have destroyed evidence. Cobb never articulated the specific sounds he heard which led him to believe that evidence was about to be destroyed.

In fact, the sounds as described at the suppression hearing were indistinguishable from ordinary household sounds, and were consistent with the natural and reasonable result of a knock on the door. Nothing in the record suggests that the sounds officers heard were anything more than the occupants preparing to answer the door.

The police officers’ subjective belief that evidence was being (or about to be) destroyed is not supported by the record, and this Court cannot conclude that the belief was objectively reasonable. “[N]o exigency is created simply because there is probable cause to believe that a serious crime has been committed[.]” Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (citing Payton, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639). Exigent circumstances do not deal with mere possibilities, and the Commonwealth must show something more than a possibility that evidence is being destroyed to defeat the presumption of an unreasonable search and seizure.

Consistent with the instructions on remand from the United States Supreme Court, this Court concludes that exigent circumstances did not exist when police made a warrantless entry of the apartment occupied by Appellant King. Therefore, the denial of King’s motion to suppress evidence is reversed, and King’s judgment of conviction stands vacated.

The vote was 5-2. The dissenting Justices filed only the following statement:

CUNNINGHAM, J., dissents simply because he believes the officers involved were acting under exigent circumstances. SCOTT, J., joins.

“

The U.S. Attorney’s Office in the Eastern District of Louisiana was told Friday that New Orleans Saints general manager Mickey Loomis had an electronic device in his Superdome suite that had been secretly re-wired to enable him to eavesdrop on visiting coaching staffs for nearly three NFL seasons, “Outside the Lines” has learned.

Sources familiar with Saints game-day operations told “Outside the Lines” that Loomis, who faces an eight-game suspension from the NFL for his role in the recent bounty scandal, had the ability to secretly listen for most of the 2002 season, his first as general manager of the Saints, and all of the 2003 and 2004 seasons. The sources spoke with “Outside the Lines” under the condition of anonymity because of fear of reprisals from members of the Saints organization. . . .

Sources told “Outside the Lines” the listening device was first installed in the general manager’s suite in 2000, when Loomis’ predecessor, Randy Mueller, served as Saints GM. At that time, according to sources, Mueller had the ability to use the device to monitor only the game-day communications of the Saints’ coaching staff, not the opposing coaches. Mueller, now a senior executive with the San Diego Chargers (he also was an ESPN.com NFL analyst from 2002 to ’05), declined to comment when contacted by “Outside the Lines.”

After the transition from Mueller to Loomis, the electronic device was re-wired to listen only to opposing coaches and could no longer be used to listen to any game-day communications between members of the Saints’ coaching staff, one source said.

“There was a switch, and the switch accessed offense and defense,” said the source. “When Randy was there, it was the Saints offense or defense, and when Mickey was there it changed over so it was the visiting offense or defense,” the source said.

The sources said when Loomis took his seat during home games, then in the front row of box No. 4 in the 300 level of the Superdome’s north side, he was able to plug an earpiece into a jack that was under the desk in front of him. The earpiece was not unlike those used to listen to inexpensive transistor radios, the sources said. With the earpiece in place, Loomis could then toggle back and forth with a switch that he controlled, enabling him to listen to the game-day communications of either the opposing offensive or defensive coaches.

Also underneath the desk in front of Loomis, said the sources, was a metal box that contained two belt packs similar to those worn around the waists of NFL head coaches during games. The packs powered the listening device available to Loomis, which was, according to sources, hard-wired to the audio feed of the opposing coaches.

If the report is true, it’s a pretty clear violation of the federal Wiretap Act, also known as the Electronic Communications Privacy Act (ECPA). The ESPN story has a pretty good run-down of the legal issues. To expand on that coverage a bit, use of the bugging device would constitute an interception of an oral communication under 18 U.S.C. 2510(2), which violates 18 U.S.C. 2511 and would allow both civil and criminal remedies. One difficulty with criminal remedies is the 5-year statute of limitations under federal law. Civil remedies would be easier because the statute of limitations expressly runs from two years “after the date upon which the claimant first has a reasonable opportunity to discover the violation.” See, e.g., Andes v. Knox, 905 F.2d 188, 189 (8th Cir. 1990) (holding that the two-year statute of limitations period under 18 U.S.C. § 2520 begins to run when a party first discovers wiretapping). State law provides its own remedies, too, in addition to those of federal law.

UPDATE: In the comment thread, my co-blogger Ilya Somin suggests that Will’s “commitment to originalism” may explain the difference: Perhaps “he has been influenced by the last 25 years of scholarship showing that many restraints on government power have strong roots in the original meaning of the Constitution.” This explanation strikes me as problematic because Will’s arguments in his recent columns do not appear to be originalist.

I’m not convinced of the propriety of placing these views in the Federal Reporter instead of a law review or published speech. Questions of judicial propriety are matters of taste, of course. But given that these views have no obvious relevance to the job of a lower court judge, and yet resonate with certain current political movements, a decision by judges to publish such comments in a judicial opinion (even in a non-binding concurrence) runs a risk of being perceived as blending political and judicial roles. In my view, it’s better to keep the roles more separate by reserving criticisms of settled Supreme Court doctrine to contexts like speeches and articles that are clearly outside the judicial capacity. But then I realize I am more squeamish about such matters than others.

That post led to several interesting responses, including this one from Lyle Denniston. But I wanted to reply to the response by David Schraub , in which he wrote:

I strongly disagree — while obviously I disagree with the content of Judge Brown’s opinion, I see nothing at all improper with Judges Brown and Sentelle registering their opinion about what the law should be in their opinion about what the law is (Kerr does say he recognizes the differing views on this topic). I actually swing sharply the other way — I’d like a stronger norm of judges doing things like this, so long as they divorce it from their legal judgment of the case.

Opinions of the form “the law is constitutional, but moronic” (or vice versa, for that matter) serve at least two important functions. First, they serve a dialogic function that can help make better law. Courts see how laws play out on the ground, this experience gives them insight on how (and whether) the law works and whether it is worth preserving. Why should the judiciary not provide the public with this perspective, parallel to (not replacing) their primary obligation to interpret the law in front of them?

But more importantly, these opinions help sap judicial decisions of unwarranted and unintended “moral endorsements” by the judiciary. When a law is upheld by a court, this usually is followed by a press release by its supporters bragging about how “this demonstrates we were right all along and this law is the bestest thing ever and totally just and fair.” Of course, courts often mean to imply none of these things — the decision might be based on anything from a jurisdictional block to a contested turn of a statute. The blurriness by which courts are seen as moral as well as judicial arbiters means that, absent language to the contrary, a favorable ruling on the law is considered to be a favorable ruling on the underlying ethical merits of the dispute.

As with most questions of propriety, context matters. In the abstract, I think Schraub’s arguments can have merit in some cases. But focusing on the Hettinga case speficially, the arguments don’t seem to apply. For the handful of readers who care, I wanted to say a bit about why.

Let’s start with Schraub’s first argument, that concurring opinions can provide valuable feedback about how the law is working in the trenches. That can be true, when lower court judges really do attempt to provide feedback about how law is working in the field. (Judge Sutton’s concurring opinion in Lyons v. Xenia, 417 F. 3d 565 (6th 2005) comes to mind as a good example.) But I’m not sure how that general role justifies Judge Brown’s opinion. Judge Brown’s opinion did not purport to express how the demise of Lochner in the 1930s is now “playing out on the ground.” She does not claim to base her opinion on her experience as a judge, or what she is seeing in the lower courts. She does not purport to have any special insight on the problem — just a strongly-held opinion that the Court of the 1930s got it wrong. I guess I don’t see how that provides helpful feedback to the Justices.

The same is true with Schraub’s second point that concurring opinions “help sap judicial decisions of unwarranted and unintended moral endorsements by the judiciary.” While that may have merit in some cases, it does not seem to apply to the opinion in Hettinga. Judge Brown’s opinion does not say that the Milk Regulatory Equity Act of 2005 is moronic but constitutional. Rather, it says that that the law is moronic, and the Supreme Court is moronic for its opinions that require lower courts to uphold it. That is not the kind of opinion that will “sap judicial decisions of unwarranted and unintended moral endorsements by the judiciary.” To the contrary, it is a call to change the law so that constitutionality more closely reflects sound policy — a world in which judicial decisions actually wouldconstitute a kind of endorsement. If the commendable goal of a concurring opinion is to stop people from wrongly thinking that constitutional decisions reflect policy judgments about the merits of statutes, then the concurring opinion in Hettinga strikes me as a step backward rather than forward.

Anyway, I realize that I have a different take on these issues than many others. I tend to be more process-oriented than most, and I think it’s important to keep politics and law as separate as possible. Others don’t have these priorities, and will look at this diffferently.

Truth be told, the answer to the general question “What does ‘not an’ mean?” is “It depends”: The meaning of the phrase turns on its context. See Johnson v. United States, 559 U. S. ___, ___ (2010) (slip op., at 5) (“Ultimately, context determines meaning”). “Not an” sometimes means “not any,” in the way Novo claims. If your spouse tells you he is late because he “did not take a cab,” you will infer that he took no cab at all (but took the bus instead). If your child admits that she “did not read a book all summer,” you will surmise that she did not read any book (but went to the movies a lot). And if a sports-fan friend bemoans that “the New York Mets do not have a chance of winning the World Series,” you will gather that the team has no chance whatsoever (because they have no hitting). But now stop a moment. Suppose your spouse tells you that he got lost because he “did not make a turn.” You would understand that he failed to make a particular turn, not that he drove from the outset in a straight line. Suppose your child explains her mediocre grade on a college exam by saying that she “did not read an assigned text.” You would infer that she failed to read a specific book, not that she read nothing at all on the syllabus. And suppose a lawyer friend laments that in her last trial, she “did not prove an element of the offense.” You would grasp that she is speaking not of all the elements, but of a particular one. The examples could go on and on, but the point is simple enough: When it comes to the meaning of “not an,” context matters.

An interesting passage for its professorial style, use of gendered pronouns, and dicta on the Mets. Oh, and for what it’s worth, Justice Kagan reportedly is a Mets fan.

America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.

First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Nebbia v. New York, 291 U.S. 502, 516 (1934). Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. United States v. Carolene Products Co., 304 U.S. 144, 152–53 (1938). Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.” Vance v. Bradley, 440 U.S. 93, 97 (1979). “The Constitution,” the Court said, “presumes that, absent some reason to infer antipathy, even mprovident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Id.

As the dissent predicted in Nebbia, the judiciary’s refusal to consider the wisdom of legislative acts—at least to inquire whether its purpose and the means proposed are “within legislative power”—would lead to only one result: “[R]ights guaranteed by the Constitution [would] exist only so long as supposed public interest does not require their extinction.” 291 U.S. at 523. In short order that baleful prophecy received the court’s imprimatur. In Carolene Products (yet another case involving protectionist legislation), the court ratified minimalist review of economic regulations, holding that a rational basis for economic legislation would be presumed and more searching inquiry would be reserved for intrusions on political rights. 304 U.S. at 153 n.4. . . .

The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions. See Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 260 (2004).

The hope of correction at the ballot box is purely illusory. See generally Ilya Somin, Political Ignorance and the Counter-Majoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 Iowa L. Rev. 1287 (2004). In an earlier century, H. L. Mencken offered a blunt assessment of that option: “[G]overnment is a broker in pillage, and every election is a sort of advance auction sale of stolen goods.” On Politics: A Carnival of Buncombe 331 (1996). And, as the Hettingas can attest, it’s no good hoping the process will heal itself. Civil society, “once it grows addicted to redistribution, changes its character and comes to require the state to ‘feed its habit.’” Anthony De Jasay, The State 226 (1998). The difficulty of assessing net benefits and burdens makes the idea of public choice oxymoronic. See id. at 248. Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more.

It is unsurprising that Judge Brown holds these views: She expressed some similar points in a 2000 speech before the Federalist Society chapter at the University of Chicago. And I’m always pleased when my co-bloggers are cited in judicial opinions. At the same time, I’m not convinced of the propriety of placing these views in the Federal Reporter instead of a law review or published speech. Questions of judicial propriety are matters of taste, of course. But given that these views have no obvious relevance to the job of a lower court judge, and yet resonate with certain current political movements, a decision by judges to publish such comments in a judicial opinion (even in a non-binding concurrence) runs a risk of being perceived as blending political and judicial roles. In my view, it’s better to keep the roles more separate by reserving criticisms of settled Supreme Court doctrine to contexts like speeches and articles that are clearly outside the judicial capacity. But then I realize I am more squeamish about such matters than others.

Incidentally, I’m reminded of a somewhat analogous example of liberal judges using a concurring opinion to express rather fiery disagreement with a conservative Supreme Court ruling: The concurring opinion of Judges Boyce Martin and Gilbert Merritt in United States v. Almany, which I criticized here. It’s not exactly analogous, and obviously the issue had less ideological valence. But I think it’s an interesting example to consider.

Thanks to How Appealing for the link.

Fourth Amendment rights are personal, and individuals can only invoke a remedy if their own rights were violated. The Fourth Amendment standing inquiry arises as an application of the reasonable expectation of privacy test; each person must established that his or her own reasonable expectation of privacy was violated to have standing to challenge the government’s act. But who has standing to challenge a mosaic search? The question is difficult because mosaic searches occur over time, and the overall mosaic therefore may monitor different people at different times in different degrees. To appreciate this, imagine that Alan has a GPS device installed in his car, and Bob then steals Alan’s car and begins to drive it around as his own. Bob drives the car for 30 days, and during that time he often gives rides to Charles, Dave, and Elizabeth. Charles gets a ride almost every day; Dave every other day; and Elizabeth only rides in the car twice. The police remotely turn on the GPS device when the car is reported stolen, and they monitor the car for 28 days.

We know from Jones that five Justices would say that the 28 days of GPS monitoring amounts to a search. But who has standing to challenge it? Does Bob have standing on the ground that his location was monitored for the full 28 days? Or does he lack standing because the stole the car, and therefore has no rights in it?203 If Bob has standing, what about Charles, Dave, and Elizabeth? Do all three have standing because their location was monitored as part of a broader mosaic search? Or must the standing inquiry look to each individual, requiring an assessment of whether the monitoring of each individual suspect was enough to constitute a mosaic?

A district court recently became the first court to grapple with these questions in United States v. Luna–Santillanes, 2012 WL 1019601 (E.D. Mich. March 26, 2012). The facts of the case nicely bring out some of the difficulties of the mosaic approach.

Luna-Santillanes, Jiminez, and Chaviravelazquez were running a heroin conspiracy. The conspiracy used three cars: a Lincoln Aviator, a Chrysler Sebring, and a Mazda. Different drivers drove different cars at different times. Investigators ended up installing GPS devices on all three cars, and they used the GPS devices to track the movements of the cars to know what the heroin ring was up to. The Chrysler had a GPS device installed and monitored for 2 months; the Lincoln, for 2 days; and the Mazda, for “a few” days. The GPS tracking was useful to the investigators not only to understand the conspiracy, but also to bring the police to the scene of particular events so they could conduct searches and try to find drugs. For example, the investigators tracked the movements of the Lincoln Aviator when it was used to transport heroin when being driven by Chaviravelazquez. The officers used the GPS to know where the car was to pull over the car for a traffic stop. During the stop, the officers asked Chaviravelazquez to consent to search; a search of the car led to the discovery of two kilos of heroin inside. The GPS devices on the other two cars led to similar discoveries.

At trial, Luna-Santillanes and Jiminez moved to suppress both the location evidence from the GPS devices and all the evidence that was a fruit of the poisonous tree — that is, the drugs found in the cars when they were stopped thanks to the GPS surveillance. The district judge denied the motion to suppress on grounds that neither Luna-Santillanes (who the Court refers to as D-1) nor Jiminez (who the Court refers to as (D-2) had standing to challenge the mosaic search:

Applying Katz to the facts presented here, it is Defendants’ reasonable expectation of privacy in their movements, not merely the movements of a vehicle they sometimes used, that triggers Fourth Amendment protections. Although D–1 was observed using the red Lincoln Aviator on April 11, 2011, he was not using the vehicle when the GPS device was placed on it. Rather, the TFOs installed the GPS device on that vehicle after they saw it unoccupied and parked on the street near the River Rouge residence that they were observing for reported drug activity. More importantly, neither D–1 nor D–2 was driving the red Lincoln Aviator on April 14, 2011 when the traffic stop and search occurred that produced the kilograms of heroin that these Defendants seek to suppress.

Rather than ownership or exclusivity, the record evidence establishes that D–1 drove the red Lincoln Aviator one time—on April 11, 2011—, a few days before the GPS device was attached. It further establishes that the GPS device was installed on the red Lincoln Aviator only one day before the April 14, 2011 traffic stop, consented-to search, and seizure. Moreover, as established by testimony at the March 20, 2012 hearing, the GPS device on the red Lincoln Aviator was removed within hours of the April 14, 2011 traffic stop. Thus, even if Defendants could establish that they had standing to challenge the April 14, 2011 search and seizure of the red Lincoln Aviator, the one-day monitoring of that vehicle constituted a reasonable search. As Justice Alito observed in his concurring opinion in Jones, “relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable.” Id. at 964. For the above stated reasons, D–1′s and D–2′s motions to suppress the kilograms of heroin seized on April 14, 2011 are denied

. . . . At the March 20, 2012 hearing, these Defendants argued that, because the government placed a GPS device on every vehicle available to them, they had a legitimate expectation of privacy, not in the three vehicles at issue here but rather in the totality of their movements on the roadways over an extended period of time. The Court rejects that argument for the following reasons. First, Jones did not go this far, and Defendants cite no binding decision that does. Second, the facts presented do not support Defendants’ claim. The testimony at the suppression hearing failed to establish that there was a GPS device on the silver Chrysler Town and Country minivan driven by D–2 during the July 21, 2011 traffic stop where the kilograms of cocaine were seized. Moreover, rather than exclusivity of use, the evidence presented shows that Defendants 1, 2, and 3 used the three vehicles at issue here, and other vehicles, interchangeably. In fact, there is evidence that a CS was allowed to drive the rented black Mazda. (Gov’t Ex. 12.) Finally, as the testimony at the hearing established, although the GPS device was on the silver Sebring for about two months, a GPS device was on the red Lincoln Aviator for two days at the most and was on the rented black Mazda for only “a few days.”

The Court’s analysis here is not exactly a model of clarity, perhaps reflecting the difficulty of applying the mosaic frameowrk to such complicated facts: There are three defendants, three cars, and three different periods of GPS monitoring, with each car being used by different people at different times. But it arguably suggests that one day of GPS monitoring is lawful under Jones, and perhaps that standing to challenge a stop that is a fruit of GPS monitoring requires that the stop implicate the suspect’s rights rather than just that the monitoring as part of the mosaic implicate the suspect’s rights.

I’m curious, for readers who are proponents of the mosaic theory, do you think this case was correctly decided? Why or why not?

[W]e hold that the phrase “exceeds authorized access” in the CFAA does not extend to violations of use restrictions. If Congress wants to incorporate misappropriation liability into the CFAA, it must speak more clearly. The rule of lenity requires “penal laws . . . to be construed strictly.” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820). “[W]hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.” Jones, 529 U.S. at 858 (internal quotation marks and citation omitted).

The rule of lenity not only ensures that citizens will have fair notice of the criminal laws, but also that Congress will have fair notice of what conduct its laws criminalize. We construe criminal statutes narrowly so that Congress will not unintentionally turn ordinary citizens into criminals. “[B]ecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity.” United States v. Bass, 404 U.S. 336, 348 (1971). “If there is any doubt about whether Congress intended [the CFAA] to prohibit the conduct in which [Nosal] engaged, then ‘we must choose the interpretation least likely to impose penalties unintended by Congress.’” United States v. Cabaccang, 332 F.3d 622, 635 n.22 (9th Cir. 2003) (quoting United States v. Arzate-Nunez, 18 F.3d 730, 736 (9th Cir. 1994)).

This narrower interpretation is also a more sensible reading of the text and legislative history of a statute whose general purpose is to punish hacking—the circumvention of technological access barriers—not misappropriation of trade secrets—a subject Congress has dealt with elsewhere. Therefore, we hold that “exceeds authorized access” in the CFAA is limited to violations of restrictions on access to information, and not restrictions on its use.

Given that I have been beating the drum for this view for about a decade now, I am happy to conclude that Kozinski’s opinion is superb and extremely insightful. Judge Kozinski also recognizes that the Ninth Circuit is creating disagreement among the circuits:

We remain unpersuaded by the decisions of our sister circuits that interpret the CFAA broadly to cover violations of corporate computer use restrictions or violations of a duty of loyalty. See United States v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010); United States v. John, 597 F.3d 263 (5th Cir. 2010); Int’l Airport Ctrs., LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006). These courts looked only at the culpable behavior of the defendants before them, and failed to consider the effect on millions of ordinary citizens caused by the statute’s unitary definition of “exceeds authorized access.” They therefore failed to apply the long-standing principle that we must construe ambiguous criminal statutes narrowly so as to avoid “making criminal law in Congress’s stead.” United States v. Santos, 553 U.S. 507, 514 (2008).

We therefore respectfully decline to follow our sister circuits and urge them to reconsider instead. For our part, we continue to follow in the path blazed by Brekka, 581 F.3d 1127, and the growing number of courts that have reached the same conclusion. These courts recognize that the plain language of the CFAA “target[s] the unauthorized procurement or alteration of information, not its misuse or misappropriation.” Shamrock Foods Co. v. Gast, 535 F. Supp. 2d 962, 965 (D. Ariz. 2008) (internal quotation marks omitted); see also Orbit One Commc’ns, Inc. v. Numerex Corp., 692 F. Supp. 2d 373, 385 (S.D.N.Y. 2010) (“The plain language of the CFAA supports a narrow reading. The CFAA expressly prohibits improper ‘access’ of computer information. It does not prohibit misuse or misappropriation.”); Diamond Power Int’l, Inc. v. Davidson, 540 F. Supp. 2d 1322, 1343 (N.D. Ga. 2007)(“[A] violation for ‘exceeding authorized access’ occurs where initial access is permitted but the access of certain information is not permitted.”); Int’l Ass’n of Machinists & Aerospace Workers v. Werner-Masuda, 390 F. Supp. 2d 479, 499 (D. Md. 2005) (“[T]he CFAA, however, do[es] not prohibit the unauthorized disclosure or use of information, but rather unauthorized access.”).

As always, stay tuned. For thoughts on whether the Supreme Court might be interested in this case, see the bottom of this post.

Here are the different things a person might mean when they accuse a Supreme Court decision of being activist. The meanings can overlap, to be clear, but it is helpful to keep them analytically separate:

(1) The decision was motivated by the Justices’ personal policy preferences or was result-oriented. In some instances, a decision is labeled “activist” when we think that the decision was based on the Justices’ own personal policy preferences or preferred outcomes. Of course, it’s hard for us to know what subjective motivated the Justices. But we have an idea that judges should follow law, not just strike down laws and practices that they don’t personally like. So when we think that a judge struck down a law in large part because he didn’t like the law as a matter of policy, or because he wanted one side to win and the other side to win for reasons not concerning the legal merits of the case, we might call the decision “activist.” This version of judicial activism stands in opposition to the rule of law; it expresses the fear that judges are just doing what they personally like. (A sample statement from the right: “Roe v. Wade is an activist decision because the Justices in the majority just tried to enact their pro-choice views.” A sample statement from the left: “The activist Justices in the Bush v. Gore majority voted as they did because they wanted Bush to be President.“)

(2) The decision expands the power of courts to determine the rules of our society. A second reason to label a decision activist is if it expands the power of the courts to define rules. If an area of law used to be a matter of legislative or executive discretion, but then the courts step in and define the rules themselves, we might call the decisions doing so “activist” in the sense that the judges actively took over an area relative to some prior standard of judicial deference. This kind of activism can be good or bad depending on whether you think the judges properly stepped in, so this version of activism isn’t necessarily a bad thing. But it is a second way of describing whether a decision is activist. (A sample statement from the right: “The Warren Court’s activist criminal procedure decisions largely eliminated the role of Congress in defining criminal procedure rules.” A sample statement from the left: “In Citizens United, the activist Supreme Court narrowed the legislative options Congress has in enacting campaign finance reform.“)

(3) The decision was not consistent with precedents. In other instances, a decision can be labeled “activist” when it is not consistent with precedent or overrules precedent. If everyone had one understanding of the law, and then the Supreme Court comes along and announces a new understanding, then the decision might be seen as activist in the sense that the Court is setting a new direction for the law. Once again, this can be a good thing or a bad thing, depending on what one thinks of stare decisis or whether one agrees with the prior precedents. But this is a third way of describing whether a decision is activist that is often seen in the public debates over the Courts. (A sample statement from the right: “In Roper v. Simmons, the judicial activists on the left were not bothered by the contrary precedent in Stanford v. Kentucky; faced with an adverse precedent, they just overruled it.” A sample statement from the left: “Conservative activists on the Court want to overturn Grutter and end affirmative action.)”

(4) The decision struck down a law or practice. This fourth interpretation of judicial activism simply looks at whether the court upheld the law or practice as constitutional or struck it down as unconstitutional. By this account, a decision is activist if it strikes down a law or practice (for whatever reason) and not activist if it upholds the law or practice. (Example from the right: “During the Bush Administration, an activist majority of the Court repeatedly invalidated the Administration’s policies in the war on terror; they should have showed some restraint instead.” An example from the left: “During the Rehnquist Court, the conservative Justices were the true judicial activists because they voted to strike down federal legislation more often than liberal Justices.”)

(5) The decision was wrong. A final interpretation of judicial activism is that the phrase just indicates agreement or disagreement with the court’s decision. An activist decision is a decision the speaker thinks is wrong, by whatever standard the speaker adopts; a decision is not activist if the speaker thinks the decision is correct. From this perspective, activism is just a statement of agreement or disagreement with the Court’s reasoning. (An example from the right: “Kelo v. New London is an activist decision; how can the Justices interpret the Takings clause that way?” An example from the left: “The Supreme Court’s recent strip search case is written by activist judges who just don’t get the Fourth Amendment.”)

These different understandings can overlap, of course, and I think the overlapping meanings explain a lot about debates over judicial activism. First and most obviously, people tend to use the phrase “judicial activism” most easily when most or all of the different meanings apply. But on the other hand, because there is no one meaning of the term, debates over judicial activism tend to run in circles because people just use different meanings of judicial activism in respond to critiques. For example, imagine a liberal analyst looks at Citizens United and proclaims it activist based on meanings #2 through #4, and perhaps #1, as well; A conservative wishing to defend Citizens United would likely counter with meaning #5. But as the politics of the case shift, so do allegiances to the different meanings. For example, if the same conservative and liberal switch from discussing Citizens United to Boumediene v. Bush, the arguments switch too: Now the conservative will raise meanings #1-#4 and the liberal will counter with meaning #5.

One response to these changing usages is just to give up and say that the term “judicial activism” is useless. But I don’t think that’s justified. We need language to evaluate what the Supreme Court does, and some of these meanings capture genuinely important dynamics about the role of the courts. In my view, meanings #1-#3 are useful ways of labeling conduct as activist or not: Especially if we specifically explain which meaning we have in mind, the terms allow us to have a useful debate about the proper role of the courts. On the other hand, I personally find meanings #4 and #5 pretty unhelpful. In my view, #4 isn’t helpful because everyone agrees with the basic notion of judicial review (yes, even President Obama). Meaning #5 isn’t helpful because no two people seem to agree on when a decision is “right” or “wrong.”

So would a hypothetical decision striking down the mandate be activist under meanings #1 through #3? Evaluating #1 is always tricky because it’s a subjective question. We can’t know with any certainty what the Justices subjectively wanted. But if the case ends up 5-4, with the Justices appointed from the party that supported the law on one side and the Justices appointed from the party that opposed the law, a lot of folks will assume that the decision is activist in the sense of meaning #1. That argument will be a lot weaker if the vote isn’t 5-4 (cf. debates over Bush v. Gore, where a common response of those who defend the case from accusations of activism is that parts of the case were 7-2). But if the votes line up in the predictable political way, then claims of activism based on argument #1 will be common.

As for meaning #2, I think accusations that a decision striking down the mandate would be activist in the #2 sense would be pretty weak, at least assuming the decision tracked the arguments made by the challengers. The main reason is that the argument made by the challengers would be very easily circumvented in a future case. The challengers agree that a future Congress could reenact the same law simply by clearly labeling it a tax, or by structuring the law as an entitlement. As a result, the challenge to the mandate isn’t making it impossible to enact health care reform: It’s merely trying to invalidate the one way that Congress happened to have enacted health care reform, without blocking others. Further, a decision striking down the mandate wouldn’t in any way limit state governments. As a result, I don’t think a decision striking down the mandate would be particularly activist in the #2 sense.

On the other hand, I think a decision striking down the mandate would be justifiably criticized as activist in the #3 precedential sense. As I have explained many times before, I think existing commerce clause precedents combined with the presumption of constitutionality point pretty clearly in the direction of upholding the mandate: There’s a reason why it never occurred to any one that a mandate might be constitutionally problematic until this very controversial legislation was written, went through the legislative process, and was about to pass. It wasn’t until that late stage that many critics of the legislation came to the conclusion that the precedents actually pointed the other way (a judgment timed in such a way to suggest motivated reasoning is at work). So given that I read the precedents that way, I think a decision pushing the law in the opposite direction (however justified or unjustified) would be fairly labeled activist in the #3 sense.

So what’s the bottom line? In my view, it’s this: Depending on how the decision might be written, a decision striking down the mandate could fairly be called activist in some ways but not in other ways. It depends on which meanings of “activism” you find useful, and different people will disagree on which meanings of activism are useful.

In 2009, investigators installed a GPS device on Leon’s car because they suspected he was trafficking in meth. The GPS device monitored the location of Leon’s car for more than three months. In this case, Leon has moved to suppress the fruits of the GPS monitoring of his car. He argues that the installation of the GPS device was a search under the majority opinion in United States v. Jones and that the long-term use of the GPS device was a search under the concurring opinions in that case. The district court first rules that under Davis, the good faith exception applies to the installation of the device because the officers had relied on prior 9th Circuit precedent holding that it was neither a search nor seizure to install a GPS device. So far, so good — that’s what Davis requires. But the district court then rules that the good-faith exception applies to the long-term use of the device — which the court seems to assume is a viable theory of Fourth Amendment protection — even though there was no prior precedent approving that:

Unlike the placement of a GPS tracking device on the exterior of a vehicle in an area where a defendant has no legitimate expectation of privacy, neither Supreme Court nor Ninth Circuit binding precedent in 2009 authorized the agents to continuously monitor the location of the vehicle in public places for a prolonged period of time. Davis therefore is not directly controlling on this issue. Instead, the court must determine whether the agents exhibited “deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights” or whether they acted “with an objectively reasonable good-faith belief that their conduct [was] lawful.” Davis, 131 S.Ct. at 2427. And after examining precedent as of 2009, the court finds that the agents’ conduct in the use of the GPS tracking device was objectively reasonable.

United States v. Knotts, 460 U.S. 276, 281 (1983), applying the reasonable expectation of privacy test and citing a generally diminished expectation of privacy in automobiles, held that using a beeper to track a vehicle in public places does not violate the Fourth Amendment:

A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [codefendant] Petschen travelled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was travelling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.

Prior to 2009, only one circuit court addressed the constitutionality of GPS monitoring. United States v. Garcia, 474 F.3d 994 (7th Cir.2007), largely relying on Knotts, held that the use of the GPS device did not implicate the Fourth Amendment. Id. at 997 (“But GPS tracking is on the same side of the divide with the surveillance cameras and the satellite imaging, and if what they do is not searching in Fourth Amendment terms, neither is GPS tracking.”). In contrast, as of 2009, no circuit court had held that the prolonged use of a GPS device to be unconstitutional.

Given the state of the law in 2009, the evidence clearly establishes that the DEA agents did not “exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights .” Instead, they acted with an objectively reasonable good-faith belief that their conduct was fully compliant with then-existing Fourth Amendment jurisprudence. Knotts, when considering older beeper technology, specifically found that a person, “travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” 460 U.S. at 281. Although the technology changed, the agents were certainly justified in relying on Knotts’ rationale in determining that no warrant was required.FN5 And the sole circuit court to consider the use of a GPS device prior to 2009 found no Fourth Amendment violation, even considering the change in technology.

And although not directly relevant to the agents’ objectively reasonable good-faith belief as of 2009, three judges of the Ninth Circuit found the prolonged use of a GPS tracking device constitutional in 2010. United States v. Pineda–Moreno, 591 F.3d 1212 (9th Cir.2010). And in doing so, the court relied almost exclusively on Knotts. This after-the-fact ruling provides further support that the agents acted with an objectively reasonable good-faith belief—a court would be hard-pressed to place culpability on the agents for their actions in 2009 when, one year later, three judges of the Ninth Circuit relied on Knotts to conclude that the prolonged use of a GPS tracking device did not violate the Fourth Amendment. . . .

The dissent in Davis, criticizing the majority’s focus on law enforcement culpability, foresaw the result in this case. Justice Breyer opined that under the majority view “an officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment’s bounds is no more culpable that an officer who follows erroneous ‘binding precedent.’ Nor is an officer more culpable where circuit precedent is simply suggestive rather than ‘binding.’ “ Davis, 131 S.Ct. at 2439. Given the state of the law in 2009, the court simply finds no sufficiently culpable conduct by the agents. As Justice Breyer wrote, “if the Court means what it now says,” id., suppression of the evidence in this case would yield no “appreciable deterrence” and is thus unwarranted.

It seems a bit strange to extend the rationale of Davis (something Justice Sotomayor warned against in her Davis concurrence) without first raising the fundamental question of whether the mosaic theory is a viable theory of Fourth Amendment protection. But the possibility of this kind of extension of Davis was always lurking in the background of the Davis case. The Davis court offered a broad rationale to support a narrow holding, and then justified its holding against critiques by emphasizing its narrowness: It was inevitable that at least some courts would follow the broad rationale of Davis rather than stick to the limits of its narrow holding.

Florence raises a class line-drawing problem. On one hand, there is no obvious way to separate the dangerous from nondangerous individuals to know which to search without reasonable suspicion, and also no obvious way to distinguish degrees of visual inspection ranging from merely watching a person as they shower to inspecting them at “arm’s length” or “closely.” On the other hand, given that there are 13 million jail intakes every year nationwide, a blanket rule allowing strip searches will allow some people to be searched who should not have been subject to that indiginity. At some level, the case boils down to where you place the presumption. Do you presume that the jail administrators are best equipped to set policy, and overturn that judgment only if they are clearly wrong? Or do you assume that people should not be searched, and only allow them to be searched if the case for it is clearly established?

Given the egregious facts of the petitioner’s case, the Court’s failure to draw a line to give relief to the petitioner strikes a lot of people as outrageous (including Tom Ashbrook, the host of the show). My own view is that both the majority and dissent offer plausible ways to deal with the difficult problem the Court faced. It strikes me as plausible to say that so long as there is no touching involved and the individual is being admitted to the general population, that a per se rule allowing the visual inspection is reasonable. But it also strikes me as plausible to draw some lines, even if a bit arbitrary and uncertain, to try to carve out some cases that require individualized suspicion. The problem is particularly difficult because the harm at the search stage is largely the result of earlier Fourth Amendment decisions like Atwater that allow arrests based on probable cause for any offense; it’s not clear to me that the Court should impose limits at the jail-entry stage to correct perceived difficulties with the Court’s precedents on arrests. So I end up a bit on the fence on this one.

You can listen to the audio here; I start at the 14 minute mark. For my thoughts after attending the oral argument, see here.

I assume this will satisfy the Fifth Circuit judges, although at this point nothing would surprise me. (I’m sure someone will say that Holder should be arrested because the three page letter has only two pages of actual analysis, but the court’s written order said that the letter should consist of three pages, which this letter does.) Thanks to Tim Sandefur for the link.

Now, yesterday afternoon a federal judge by the name of Jerry Smith at the Fifth Circuit Court of Appeals in Houston had had enough, and he demanded that the Justice Department give him a three-page memo on whether or not this administration understands the concept of judicial review. Now, I saw this and I started cheering. I started laughing. Because it’s about time people started fighting back on this. The American people love the concept of a team. You have to have the right people on the team, but we are a team here. There is a team that’s opposing this president, and attempting to make him a one-termer this November at the ballot box. It’s great to have this response.

After playing the audio recording of Judge Smith’s statements at oral argument yesterday, Rush adds:

By the way, I love the fact that [Judge Smith] called it “Obamacare” from the bench. And he tells this lawyer: You go back to your boss and I want three pages on this. This is like a college professor punishing a student who doesn’t quite understand what’s going on. You go back, and you get me three pages, no less, single-spaced. I can’t believe it. Single-spaced! He gets that specific. And it needs to be specific, because he wants these people on record. Obama’s out saying, “There is no such thing; that’s never happened.” Judge Smith wants Obama’s Justice Department to have it on paper from their office that essentially the president either doesn’t know what he’s talking about or is lying. That’s what’s going on here. These judges, folks, they serve for life. Their egos aren’t chump change, either. They have just the same kind of self-importance Obama does, and they’re gonna sit around here and be belittled like this?

I think the court’s order was highly inappropriate, and Rush’s comments are an excellent example of why. Whatever the judges were thinking, their order was inevitably going to be interpreted as the product of three conservative judges trying to enter the political fray and take on a Democratic President. As Rush and many others saw it, the judges were joining the GOP “team,” trying to “punish” Obama and make him a “one-termer.” Rush Limbaugh celebrates that political role for the Fifth Circuit. Others condemn it. But given that the President’s statement at the press conference was not at issue in the case, and the court’s order was based on a very strained reading of a single sentence in the press conference, it was inevitable that the order would be interpreted in that way on the national political stage.

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president’s comments yesterday about the Supreme Court’s review of the health care law. . . .

The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick–both Republican appointees–remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don’t have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama’s comments yesterday about judges being an “unelected group of people.”

I believe the written order is here (thanks to reader Jason Walta for the image). The assignment was given orally, so it is not written into the written order. The oral argument hasn’t been posted yet, but when it becomes available, it will be here.

If this story turns out to be accurate, it strikes me as extraordinarily embarrassing to the federal judiciary. But I want to hear the oral argument audio first, or at least get some more confirmation as to what happened, before reaching a firm conclusion.

UPDATE: Perhaps the Fifth Circuit might consider withdrawing its order in light of this statement from the President today:

MR. SINGLETON: Mr. President, you said yesterday that it would be unprecedented for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the Court has done during its entire existence. If the Court were to overturn individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?

THE PRESIDENT: Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal.

And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this.

Given that this seems to answer the panel’s questions, I would think it provides a change of circumstances justifying withdrawal of the order, however justified or unjustified it may be.

ANOTHER UPDATE: Having heard the audio, the tone of the questions was quite different from what I was expecting based on the story. It came off to me as earnest and genuine, not just an effort to score a cheap political point. With that said, the order still strikes me as highly inappropriate: The DOJ lawyer was quite clear as to DOJ’s position, and lower court judges deciding cases based on briefing and argument should not be going outside the record to come up with assignments to litigants based on press releases by politicians in such politically charged matters. It just makes the judges look like political actors themselves, which doesn’t help anyone.

If the Court does end up striking down the mandate, this will be the second consecutive presidency in which the Supreme Court imposed significant limits on the primary agenda of the sitting President in ways that were unexpected based on precedents at the time the President acted. Last time around, it was President Bush and the War on Terror. The President relied on precedents like Johnson v. Eisentrager in setting up Gitmo. But when the Court was called on to review this key aspect of the President’s strategy for the War on Terror, the Court maneuvered around Eisentrager and imposed new limits on the executive branch in cases like Rasul v. Bush and Boumediene v. Bush. The President’s opponents heralded the Court’s new decisions as the restoration of the rule of law and the application of profound constitutional principle. Meanwhile, the President’s allies condemned the decisions as the products of unbridled judicial activism from a political court. If the mandate gets struck down, we’ll get a replay with the politics reversed. Just substitute Obama for Bush, health care reform for the War on Terror, the individual mandate for Gitmo, and Wickard for Eisentrager.

I think there’s a lot in the comparison, in part because the debate over both policies boils down to judicial deference versus constitutional norms seen as embedded in the text. In the case of Gitmo, the text was the habeas clause, and the norm was that the Great Writ must guarantee judicial review of detention. In the case of the health care litigation, the text is the commerce clause, and the norm is that the federal government must be a government of limited powers. In both cases, the opposing side acknowledges the basic principle but concludes that it does not require invalidating the law or practice at issue, especially in light of the need to defer to the elected branches. It’s not exactly the same question, of course. But I think there are some very interesting similarities.

In Tuesday’s Washington Post, Charles Lane also picks up the theme and runs with it. A taste:

As policies, Obamacare and George W. Bush’s war on terror have almost nothing in common. They do not address the same subject matter.

Yet from the Supreme Court’s perspective, they pose practically the same question: How much more authority over individuals can the federal government assume, consistent with the Founders’ notion of limited and enumerated powers?

During the 20th century, the court stretched that concept to accommodate the rise of both a large domestic regulatory and welfare apparatus and of a permanent military and intelligence establishment. That seemed necessary and proper in view of the social problems of a modern urban society and the external threats of Nazism and communism.

In fact, the welfare state and the national security state grew up together. The New Deal’s twin was World War II; the Great Society accompanied the Cold War. The federal government’s expansion has protected us from old age, poverty and external threats — while burdening us with taxes, bureaucracy and a certain amount of official snooping.

The Bush administration took Sept. 11, 2001, as an opportunity to win additional national security powers for the federal government. The Obama administration saw the Great Recession as an opportunity for a New Deal-like expansion of health care and other domestic programs.

Consequently, the court has had to decide whether to allow further growth of the national security state and the welfare state — or to push back, lest these twin leviathans smother individual freedom.

After last week’s arguments at the Supreme Court, many experts believe that there could be a majority, a five-member majority, to strike down the individual mandate. And if that were to happen, if it were to be ruled unconstitutional, how would you still guarantee health care to the uninsured and those Americans who’ve become insured as a result of the law?

President Obama responded, in relevant part:

With respect to health care, I’m actually — continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it’s constitutional. That’s not just my opinion, by the way; that’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.
. . .
Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.

Taken in context, President Obama’s statement strikes me as pretty much what you’d expect a politician to say in such circumstances. He’s confident that his side will win because he has the precedents on his side. He’s confident his side will win because it would be an example of judicial activism to strike it down, which conservatives are supposed to oppose. One can of course question the President’s characterizations. One obvious mischaracterization is Obama’s statement that “two very conservative appellate court justices . . . said this wasn’t even a close case.” Assuming that refers to Judges Sutton and Silberman, I don’t think that’s a fair characterization of their opinions (especially Sutton’s, which struggled openly with the question). And other statements strike me as debatable, too. At the same time, these strike me as the kind of minor mischaracterizations that are so common in political life as to not merit much attention.

Is it strange that a President would discuss a pending Supreme Court case during a press conference? I haven’t checked the archives for past examples, but it does seem rather unusual. At the same time, it’s also unusual for the Supreme Court to hold six hours of oral argument to consider striking down the signature legislative achievement of a sitting president who is a former professor of constitutional law. As David Bernstein once noted, Obama has “thought a lot about constitutional history.” Presumably he has strong views about the mandate litigation. I don’t know if it was politically wise to make those comments, but I suppose I can understand why a former con law professor would find it hard to pass up the opportunity.

In his post below, my co-blogger David Kopel excerpts one sentence of the speech — the one in which Obama said “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress” — and he interprets it as advocating a new and novel theory of judicial review. According to David, Obama was advocating a remarkable new theory that judicial review does not exist for federal statutes passed with a “strong majority” of members of Congress.

But this strikes me as a rather obvious misinterpretation of what Obama said. If you’re not convinced, watch the video of this part of Obama’s statement:

Obama was pausing repeatedly and looking for the right word, and the delay in time it took for that sentence to come out makes clear that Obama is making two distinct points in that sentence. The first point is that he’s confident that the Supreme Court will not take the unprecedented and extraordinary step of striking down the ACA; and the second point was that the ACA was passed by a strong majority of a democratically elected Congress. Again, one can disagree with these characterizations — the “strong majority” line seems particularly puzzling. And it’s a terribly inarticulate sentence, which Obama seems to realize as he’s speaking (note the pauses and rather pained facial expressions as he tries to get the sentence out). But I don’t think it’s remotely plausible to read that passing statement as advocating a new theory of judicial review.

[T]here is . . . something wrong about yoking one’s reputation as a scholar and expert to the non-scholarly end of “shaping the narrative.” I’m not accusing anyone of doing this last week, although frankly it seems pretty evident to me that it happened and has happened before. And, clearly, not everyone believes there is something wrong with doing so. But I think there are good reasons to be disturbed by such conduct.

Does that mean no scholar is permitted to try to “shape the narrative” through blogging and other commentary, or that there’s something wrong with having a normative legal or political view about such cases and sharing them? Of course not. But it does say something about how one ought to do so consistently with one’s obligations as a scholar. The basic principle, it seems to me, is that your message, and the purpose of your message, should be clear. Someone who writes that current law clearly means X should mean what he or she says; “shaping the narrative” is no defense to asserting with confidence a view that one doesn’t really believe, or doesn’t believe with that degree of confidence. But one can always make clear, implicitly or explicitly, “This is my view of what the law should be, not what it clearly is under current law,” that one is urging a particular result rather than offering an impartial analysis of the issues, and so on.

I can think of a number of posts about the ACA from legal scholars last week that were clearly and openly offered as advocacy and did a fine job of it. And I can think of others that were clearly not offered as advocacy at all, and said useful and interesting things about the oral arguments. (I would put Mark Tushnet’s posts in this category.) But I do believe that some posts last week traded on the authority of their authors, made overconfident or disingenuous claims about the state of current law and the strength or weakness of opposing arguments, and did so for strategic reasons. I see those reasons as more inculpatory than exculpatory. I don’t see the minimal requirements for scholarly integrity that I offered as changing because of the medium, or because of the importance and currency of the case.

Again, that doesn’t mean legal scholars can’t act as advocates. But if they can’t do so openly–if they think it would somehow undermine the effectiveness of what they’re writing if they preface their claim with, “Of course I’m writing this as an advocate and not a scholar; if I were writing this with my expertise or authority as a scholar one the line, I would say something different”–then I would suggest that they are, in fact, doing something wrong.

I have similar concerns, for the same reason I agree with Paul with the Dick Fallon view of law professor amicus briefs. Taking on different roles is fine, but clear labeling to demarcate those roles is important. Of course, it doesn’t change the strength of the argument that individuals are making: Arguments stand or fall on their own. And I realize that the instinct among many legal academics to blend scholarly roles and advocacy roles is often strong one, both on the left and the right, that may be impossible to dislodge. But that blending of roles does create tensions, I think.

One counterargument is that perhaps Paul and I are naive, and it is understood that of course law professors publicly commenting on a high profile case are engaging in spin for their side. That’s certainly possible. That might explain why some have described my views as “pro-mandate” when I oppose the mandate: Perhaps my earlier effort to describe how I see the precedents fall are necessarily construed as secret advocacy in favor of the mandate.