ACSBlog

  • June 29, 2017

    by Caroline Fredrickson

    With people’s longevity increasingly approaching the century mark, lifetime tenure on the Supreme Court is itself getting old.  Some scholars on both sides of the ideological divide have offered a proposal: an 18-year term limit on Supreme Court Justices’ service. This idea may relieve the nominations process of painful political pressure and bring both accountability and better predictability into our judicial system. And, the term aligns with historic numbers – eighteen years is close to the average term of service on the highest court in the past 100 years.

    Why change a time-honored tradition?

    Today's Supreme Court is “polarized along partisan lines in a way that parallels other political institutions and the rest of society;” government scholar Norm Ornstein observes.

    “Lifetime appointments give presidents the incentive to overvalue younger, more ideological candidates and overlook those who are at the height of their careers,” the nonpartisan Fix the Court group asserts based on Ornstein’s writings.

    “Life tenure now guarantees a much longer tenure on the Court than was the case in 1789 or over most of our constitutional history,” Professors Steven G. Calabresi and James Lindgren point out in their paper. They also found Justices remain influential on the court well into their 80s, longer than ever before in American history. These days court vacancies actually delay justice; political storms form too quickly after a Justice who spent decades handing down decisions dies.

    Thus, 66 percent of Americans polled during last year’s monumental crisis wanted to end life tenure for Supreme Court Justices, as they endured the colossal failure to fill a departed Justice’s seat.

  • June 28, 2017
    Guest Post

    by Chris Calabrese, Vice President, Policy, Center for Democracy & Technology

    Last week in United States vs. Microsoft, the Department of Justice (DOJ) petitioned the Supreme Court to decide the reach of the U.S. government when compelling U.S. companies to turn over data stored outside the U.S. Courts are divided on the issue. The Second Circuit Court of Appeals held that the Electronic Communications Privacy Act (ECPA) cannot reach extraterritorially. Magistrates in other circuits have disagreed, interpreting the search as occurring where a company discloses data, not where the data is seized. However, what no one disputes is that as the number of requests skyrockets, the system for accessing data across borders is deeply in need of reform and that courts are ill-suited to tackle the complicated equities at stake.

    The current system uses Mutual Legal Assistance Treaties (MLATs) to allow foreign law enforcement to pass requests to their domestic counterparts, who in turn serve them on specific providers. The process is slow and sometimes frustrating for law enforcement. U.S. service providers are frequently caught in the middle – they are not only worried about violating the privacy rules of a particular country, but also about thwarting legitimate investigations. At the same time, privacy advocates rightly note that U.S. law – undergirded in many cases by the protections of the Fourth Amendment – is particularly strong and should not be abandoned.

    While there are no perfect solutions to this problem, at the Center for Democracy & Technology we have argued that significant progress can made through a package of reforms focused in four areas:

  • June 28, 2017

    by Caroline Fredrickson

    On June 23, hours before a midnight deadline, the Department of Justice filed a petition for a writ of certiorari with the Supreme Court asking them to review a case that may define the territorial reach of U.S. warrants.

    In U.S. v. Microsoft, the U.S. Court of Appeals for the Second Circuit held that Microsoft had no obligation to produce to the government customer emails stored on an overseas server. In so ruling, the Second Circuit held that the Electronic Communications Privacy Act (ECPA) did not apply extraterritorially and that the Department of Justice had to rely on the processes outlined in the United States-Ireland Mutual Legal Assistance Treaty should they want to access the information.

    As Judge Susan Carney on the U.S. Court of Appeals for the Second Circuit correctly pointed out in her written concurrence in the order denying rehearing en banc: “It is overdue for a congressional revision that would continue to protect privacy but would more effectively balance concerns of international comity with law enforcement needs and service provider obligations in the global context in which this case arose.” Notably, Carney was also part of the original Second Circuit panel decision.

    Since the Second Circuit’s decision both the House and the Senate have held hearings to update the Electronic Communications Privacy Act

    Read the Department of Justice’s June 23 petition. And here is a link to Microsoft’s response.

  • June 28, 2017
    Guest Post

    *This piece originally appeared on Microsoft on the Issues on June 23, 2017.

    by Brad Smith, President and Chief Legal Officer, Microsoft

    Today the U.S. Justice Department asked the Supreme Court to reconsider a legal decision, in a case brought by Microsoft, which found that U.S. warrants cannot be unilaterally applied to email in other countries. It seems backward to keep arguing in court when there is positive momentum in Congress toward better law for everyone. The DOJ’s position would put businesses in impossible conflict-of-law situations and hurt the security, jobs, and personal rights of Americans.

    DOJ’s request follows House and Senate hearings earlier this month which demonstrated strong support for modernizing the 31-year-old law at issue in the case and implementing updated data-sharing treaties with our allies. Those in agreement include members of Congress, the business community, academic researchers, our international allies and the Justice Department itself. In fact, Congress has already taken steps to address this important issue and DOJ has already negotiated the first new international agreement. Last year, the International Communications Privacy Act (“ICPA”) was introduced by Sens. Orrin Hatch and Christopher Coons and Reps. Tom Marino and Suzan DelBene to create a modern legal framework. We understand the sponsors may reintroduce the bill after incorporating input from a range of stakeholders. These solutions consider the current needs of law enforcement, the realities of modern technology and the application of people’s traditional rights in today’s world.

    As Judge Gerard E. Lynch stated in his concurring opinion in our case, “Although I believe that we have reached the correct result as a matter of interpreting the statute before us, I believe even more strongly that the statute should be revised, with a view to maintaining and strengthening the Act’s privacy protections, rationalizing and modernizing the provisions permitting law enforcement access to stored electronic communications and other data where compelling interests warrant it, and clarifying the international reach of those provisions after carefully balancing the needs of law enforcement (particularly investigations addressing the most serious kinds of transnational crime) against the interests of other sovereign nations.”

  • June 28, 2017
    Guest Post

    by Ira C. Lupu, F. Elwood and Eleanor Davis Professor Emeritus of Law and Robert W. Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law and Religion, George Washington University Law School

    In Trinity Lutheran Church (“TLC”) v. Comer, the Supreme Court confronted a novel question – does the Free Exercise Clause require a state to treat houses of worship identically with other non-profit entities seeking a discretionary grant aimed at enhancing health and safety? By a 7-2 vote, the Court said yes. The number of votes for the result, however, masks very deep divisions among its supporters about Religion Clause and federalism principles.

    The case involved Missouri’s program for grants to subsidize the cost of resurfacing playgrounds with materials from scrap rubber tires. TLC had applied for such a grant, and the Missouri Department of Public Resources denied the grant solely on the basis of a provision in the State Constitution that prohibits public funding of houses of worship.

    In an opinion by Chief Justice Roberts, the Court brushed aside concerns of federalism and church-state separation. Instead, the opinion focuses on discrimination based on “religious identity,” and asserts that state interests in church-state separation cannot justify such discrimination. If a state creates a public benefit, even if not widely available, it may not categorically exclude houses of worship. In this case, the purpose of the grant – playground safety – reinforced this approach.  

    The opinion fails to engage seriously with the Religion Clause principles implicated by these facts. The three decisions on which the Court relies did NOT involve discretionary benefits OR houses of worship. In Widmar v. Vincent and Rosenberger v. Rectors and Visitors, the Free Exercise Clause played no part whatsoever. And all three, including McDaniel v. Paty, involved denial of separate constitutional rights to religious persons or groups, not the denial of funds to religious entities.