Supreme Court

  • June 25, 2014
    Guest Post

    by Susan Freiwald, Professor of Law, University of San Francisco School of Law

    The Supreme Court faced the specific question in Riley v. California as a matter of first impression – can police search a cell phone’s contents under the “incident to arrest” exception to the warrant requirement?  But several courts have recently established a privacy-protective trend when they addressed the broader question – when does new technology render pre-digital precedents inapposite?  The Supreme Court’s decision fits the trend in two key ways.  First, the Court refused to credit the government’s explanation of the technological challenges it faced, and, instead, relied on its own sophisticated understanding.  Second, the Court recognized the need to evaluate how new technology presents new answers to the inquiries behind the precedents.  Like recent federal appellate cases, and unlike the Court’s decision in United States v. Jones, however, the Riley decision announced a bright line warrant requirement for searches of cell phones that recognized that more nuanced rules would grant law enforcement agents excessive discretion.

    Skepticism towards the government’s arguments about new technology.  In past cases, courts have generally deferred to government lawyers for information about the new technologies agents use and confront in their investigations.  Ex parte litigation and the defense bar’s lack of access has exacerbated an information disadvantage.   For example, the ACLU has recently tried to obtain more information about government use of stingray devices designed to mimic cell towers and obtain location and other personal information.

    In recent cases, however, courts have brought a more jaundiced eye to the government’s claims.  In Riley, the Supreme Court rejected the government’s claim that, without a ruling in its favor, agents would lose crucial information.  Educated by technologists, amici, and academics and other researchers, Justice Roberts explained that agents could merely pop a cell phone in a Faraday bag to protect against remote wiping.  (The opinion does merge encryption with passcode locking).  Nonetheless, the Court’s knowledgeable skepticism reminds me of the Eleventh Circuit’s recent approach to cell site location data in United States v. Davis.  In that case, the court dispensed with the government’s claim that such information is not as invasive as GPS tracking information.  Because phones follow people inside as GPS trackers on their cars do not, the court found even more justification for a reasonable expectation of privacy in cell site location information.   The courts’, and particularly the Supreme Court’s, increased technological savvy represents an important shift. 

    A refusal to “mechanically” extend pre-digital precedents to new technologies.  In past cases, the government has argued that, even though cases involve new technology, they may be easily decided based on prior rules.  The Riley opinion rejected the government’s argument that it could “mechanically” apply the incident-to-arrest exception merely because people carry cell phones the same way they carry cigarette cases.  Instead, the Court reviewed the rationales of protecting officer safety and preserving evidence and determined that neither of them justified the massive privacy intrusion of searching a cell phone without a warrant (at least without exigent circumstances or some other like exception). 

  • June 18, 2014
    BookTalk
    Uncertain Justice: The Roberts Court and the Constitution
    By: 
    Laurence Tribe and Joshua Matz

    by Laurence H. Tribe, Carl M. Loeb University Professor, Harvard Law School

    As the end of its 2013 Term fast approaches, the Roberts Court is unleashing major rulings seemingly every day. Addressing topics as varied as recess appointments, cell phone privacy, abortion clinic protest buffers, public sector unions, and securities class actions, these opinions (even those not yet announced) have already triggered heated debate. The clash of values this Term is fierce and unmistakable: religious liberty versus reproductive rights, digital privacy versus security, corruption versus free speech rights

    With critics lining up to praise or castigate the justices, a clear view of the Roberts Court is more important than ever. Only with a broad and even-handed understanding of the Court and its members can we fairly evaluate its decisions. And only by understanding where each justice is coming from, in an open-minded way that can be critical without trapping justices in scorn or stereotype, can we plan for the future.

    That’s why I wrote, with Joshua Matz, a book called Uncertain Justice: The Roberts Court and the Constitution. Reflecting my decades of experience arguing before the Court and studying the Constitution—and Joshua’s learning as a former Harvard Law Review editor and SCOTUSbloggerUncertain Justice offers an overview of nearly every major opinion since John G. Roberts, Jr. was confirmed as Chief Justice in 2005. It also provides rich pictures of each justice and a panoramic view of the most important modern trends in American constitutional law. 

  • June 17, 2014

    Although law and ideology are the main factors that impact a judge’s ruling, Adam Liptak reports on a new influencing interest: having a daughter. Writing for The New York Times, Liptak discusses why personal experience is informing the law.
     
    The Supreme Court denied certiorari in Elmbrook School District v. Doe, where the U.S. Court of Appeals for the Seventh Circuit ruled that it is unconstitutional to hold a graduation ceremony in a church. At Hamilton and Griffin on Rights, Leslie C. Griffin examines Justice Antonin Scalia’s dissent.
     
    Yesterday, the Supreme Court upheld a ban on “straw purchases,” the purchase of a gun by one person for another. Nina Totenberg at NPR explains what the victory means for gun control advocates.
     
    A growing number of today’s inmates are women. Oliver Roeder at the Brennan Center for Justice reports on this growing phenomenon.
     
    The Associated Press notes that Texas has the highest number of judicial vacancies in the country. 
  • June 16, 2014
    Writing for Jost on Justice, Kenneth Jost argues why Los Angeles Superior Court Judge Rolf M. Treu’s decision on the unconstitutionality of the California tenure system for teachers was a “drive-by assault on teachers unions” while Slate’s Jordan Weissmann comments on the false statistic cited in Judge Treu’s opinion that between 1 and 3 percent of California’s teachers are “grossly ineffective.”
     
     
    At The Huffington PostGeoffrey R. Stone, former ACS Board Chair and current Co-Chair of the Board of Advisors for the ACS Chicago Lawyer Chapter as well as Co-Faculty Advisor for the University of Chicago Law School ACS Student Chapter shares some facts about the most religious states in America.
     
    At The National Law Journal, Tony Mauro examines Justice Elena Kagan’s opinion in Scialabba v. Cuellar de Osorio
  • June 13, 2014
    Yesterday, The Southern Poverty Law Center celebrated the 47th anniversary of the landmark Supreme Court case Loving v. Virginia, which struck down 16 state bans on interracial marriage.
     
    Ruby Dee, acclaimed actress and civil rights activist died this week at the age of 91. Bruce Weber at The New York Times and Diamond Sharp at The Root remember the life of an American legend. 
     
     
    The Supreme Court handed down two opinions yesterday. Jaclyn Belczyk at Jurist covers the Court’s decision in the bankruptcy case Clark v. Rameker, while Nina Totenberg at NPR breaks down the legal battle between POM Wonderful and Coca-Cola in POM Wonderful LLC v. The Coca Cola Company.
     
    The Senate Judiciary Committee met last week to discuss the Supreme Court’s campaign finance jurisprudence over the last several years.  In an article for the Louisville Courier-Journal, David Gans notes why we need a constitutional amendment to overturn these decisions.
     
    Writing for Concurring Opinions, Gerard Magliocca likens the Supreme Court justices to World Cup referees.