Tuesday, July 31, 2018

Abortion and Religion

by Sherry F. Colb

Have you ever seen an anti-abortion sign or ad or video? Did it contain a picture of an embryo or fetus? If it did, was the fetus relatively far along its path to forty weeks gestation? I am betting that it was. In my latest Verdict column, I discuss the question whether opposition to abortion can be feminist. In the course of that discussion, I talk about a video in which a doctor who says he has performed over twelve hundred abortions shows the viewer what a D&E (Dilation and Evacuation) looks like.

At the end of the video, the doctor surprises us by announcing that he has stopped killing babies for money. I was not surprised by this announcement, however, because he used various words and expressions that demonstrated, perhaps inadvertently, that he is part of the pro-life movement.  He called the person who performs the abortion an "abortionist" (which is a little like calling a banker who happens to be Jewish a "Shylock"), and he repeatedly referred to the fetus as a "baby." One would have to be unfamiliar with the abortion debate in America to think that this doctor was on the pro-choice side of it.

Still, his reference to the fetus image as a baby felt fair enough. Like a baby, the fetus had a head, arms, legs, a brain, and a spinal cord. I would argue that it is not a baby until it is also sentient--capable of experiencing sensations or emotions such that it has a subjective state of wellbeing. But if we are judging by what it looks like, we would probably assume based on appearance that it already does have subjective experiences. After all, it looks a lot like a baby.

Monday, July 30, 2018

Comity of Errors: The Stealth Attack on LGB Diplomats and International Organization Employees You've Never Heard About

by Diane Klein

Change is afoot in official U.S. policy towards lesbian, gay, and bisexual foreign diplomats and international organization employees serving in the United States.  With so much attention rightly being paid to the crisis at the border, caused by the Trump Administration's cruel and shameful family separation and border control policies, it's understandable that another family separation policy - this one directed at a much more "elite" group - has escaped our notice.  But its toxic blend of racism, xenophobia, and homophobia makes it an unmistakably Trumpian hat trick.

The latest change in policy is signaled by a letter sent to at least one U.N. organization on July 20, 2018, published here for what is believed to be the first time.  The letter is not yet embodied in a Diplomatic Note, the official form of communication between the U.S. government and foreign governments, although it is similar in form.  The upshot of the letter is that life is about to become much more difficult for foreign same-sex couples from any of the more than 80 countries that would not recognize their unions.  More specifically, same-sex partners of LGB employees of international organizations (like the UN), from countries not recognizing same-sex marriage, may no longer qualify for the "derivative" visa that allows them to live with their spouse or partner in the U.S.  Even if the couple are already living here and married under U.S. law, if the "sending State" (their home country) does not recognize same-sex marriage, their marriage may cease to be "accredited" for visa purposes, potentially breaking up families headed by LGB couples, one of whom may be forced to leave the U.S. on as little as 30 days' notice.  The new policy goes into effect just two months from now, on October 1, 2018.

Friday, July 27, 2018

Ten Truths About the Second Amendment

By Eric Segall

On Tuesday, the Ninth Circuit Court of Appeals invalidated Hawaii's requirement that people receive a license before openly carrying a gun in public. This aggressive act of judicial review might be reviewed by the Supreme Court, especially if Brett Kavanaugh is confirmed as a Justice. The Supreme Court has not reviewed a Second Amendment case since 2010, but as I argued here, it is likely the Court will return to this area of law in the near future now that Justice Kennedy has retired. Here are ten truths about the Second Amendment.

Thursday, July 26, 2018

Let's Be Clear About What Makes Kavanaugh a Bad Choice

by Neil H. Buchanan

There is no question that Brett Kavanaugh's elevation to the Supreme Court would cause a catastrophic change in American jurisprudence.  Indeed, the same can be said of anyone whom Donald Trump might nominate to fill the retiring Justice Anthony Kennedy's seat.  In that context, I was happy last week to receive a letter being circulated by some law professors in opposition to Kavanaugh's nomination, and then to see that letter reproduced as a guest post on this blog a few days ago.

The letter was styled as an appeal to Republican Senators Susan Collins and Lisa Murkowski, both of whom have records suggesting support for Roe v. Wade, which any Trump nominee would vote to overturn.  Writing such a letter is always difficult, however, because it will almost invariably include particulars that might not be germane or necessary to the point but that will put off potential signers.  In this case, I found myself unpleasantly surprised by a negative comment in the letter about a recent Supreme Court case, South Dakota v. Wayfair, which was used to demonstrate Justice Neil Gorsuch's willingness to overrule precedent.

To be clear, I agree that Gorsuch -- like his soulmates Justice Clarence Thomas and Kavanaugh -- thinks nothing of throwing over precedent whenever it suits his ideological purposes.  This is a serious problem, but not every example of a vote to overrule is as good as any other, and the Wayfair case is in fact a particularly unhelpful example.

To be even more clear, I want to emphasize that nothing I say here is meant to disparage the authors of the anti-Kavanaugh letter.  They plainly proceeded in good faith, and I emphatically agree with their conclusion.  My argument here is limited to the claim that, in their effort to build a case against Trump's nominee, they included one unfortunate example.

Because I had recently been thinking anew about Wayfair, this gives me an opportunity to discuss some interesting aspects of the case on their own merits, a discussion that I think provides some important lessons.  After discussing those issues, I will return to the question of how one decides whether to sign onto a group letter with which one disagrees only in part.

Wednesday, July 25, 2018

From Defensive Crouch Liberal Constitutionalism to Litigation Jujitsu

by Michael Dorf

In a couple of recent essays, I explored avenues by which liberals might be able to limit the damage in the coming era of reactionary Supreme Court jurisprudence. Borrowing a term coined by Mark Tushnet, I proposed reinvigorating "defensive crouch liberal constitutionalism." Part 1 (which appeared both on Dorf on Law and on Take Care) explored opportunities to make conservative arguments based on original meaning with a focus on the emergence of a Fourth Amendment jurisprudence keyed to property more than privacy. Part 2 (which also appeared both on Dorf on Law and on Take Care) described how, in a post-Roe v. Wade future, Justice Clarence Thomas might cast a decisive fifth vote to invalidate a federal abortion ban based on his view of the limits of the Commerce Clause.

In an essay on the Volokh Conspiracy on Monday, Ilya Somin added an important caveat to that last point: As Justice Thomas has previously made clear, he will only consider voting to overrule past precedents based on evidence of original meaning where counsel raise the argument. Prof. Somin thus echoes my advice to pro-choice lawyers to be sure to raise the federalism claim should the time come, not to sit back and wait for Justice Thomas or anyone else to do the work for them.

That point in turn has led me to think that while "defensive crouch" may have been an appropriate metaphor for the range of positions Prof. Tushnet was describing when he used the term back in 2016, it is not quite right as a description of what I have been proposing. One uses a defensive crouch to defend ground one occupies, and certainly that is part of what liberal lawyers must try to do. But I am also advocating using conservative jurisprudence affirmatively. Here jujitsu--in which one uses one's adversary's strength against him by redirecting it--seems a better metaphor. (Everything I know about the variations on this martial art form from Japan and/or Brazil comes from a few minutes of Googling, so if you want to write in a comment that I have it wrong, that's fine. If there's a better metaphor for using your opponent's strength against him, I'll consider yet another rebranding. Now back to the substance:)

In the balance of this essay I'll provide three examples of litigation jujitsu, involving, respectively: (1) commercial speech and the labeling of plant-based milk; (2) commandeering and sanctuary cities; and (3) the Sixteenth Amendment and SALT deductibility.

Tuesday, July 24, 2018

Veganism, Year Ten: Neoliberal Animal Welfarism?

by Neil H. Buchanan

Ten years ago today, in a column here on Dorf on Law titled "Meat, Dairy, Psychology, Law, Economics," I described why I had decided to become a vegan.  Every year since then, in what I have taken to calling my veganniversary columns, I have written a followup column on this topic.  (See 2017, 2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, and the original from 2008, along with a second column a week later).

My columns over the years have covered a wide variety of topics, sometimes simply offering updates on practical matters that vegans face in the non-vegan world but other times using veganism as a lens through which to view other issues (for example, my column last year discussing hipsters and veganism).  Today, I will do a bit of both, offering some quick thoughts about the practicalities of being a vegan before turning to a discussion of how vegan issues arise in more general political debates.

The short version of this column is that it has become very easy to be a vegan in terms of day-to-day living, but for those of us who became vegans for ethical reasons, it can often be difficult to navigate the policy terrain, for surprising reasons.

Monday, July 23, 2018

Why More Than 200 Law Professors Think Sens. Collins and Murkowski Should Vote Against Brett Kavanaugh

by guest bloggers David S. Cohen, Jessie Hill, Maya Manian, Jessica Silbey, and Mary Ziegler

Upon Brett Kavanaugh's nomination to the U.S. Supreme Court, the five of us observed the immediate flurry of academic commentary and predictable speculation about the fate of Roe v. Wade under a newly-composed Supreme Court.  While participating in academic discussion and analysis is a key part of our jobs as law professors, we were also collectively struck by the concrete reality of the threat to forty-five years of jurisprudence protecting the right to choose.  We wanted to take action, and we settled on a strategy of writing directly to Senators Susan Collins and Lisa Murkowski - two Republican Senators who are pro-choice and whose votes are critical to Kavanaugh's confirmation in a Senate that is divided 50-49.  We wanted to make clear to those Senators the extent of the risk to Roe v. Wade, as well as the consequences of overruling Roe - not just for women in the United States, but also for the doctrine of substantive due process that has developed from Roe and Planned Parenthood v. Casey, through Lawrence v. Texas and Obergefell v. Hodges.  And we felt that as law professors, we could speak with particular authority about those matters.

After jointly drafting this letter, we set out to solicit signatures from our fellow law faculty members; we collected 191 in a single day.  (Law professors interested in signing on can do so here.  Footnotes have been omitted but will be added to the final version before sending.)

Saturday, July 21, 2018

Seventh in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (feat. Michael Avenatti)

by Diane Klein

On Friday, July 20, 2018, we learned what few of us could have been surprised to hear: that former Trump personal attorney Michael Cohen taped conversations he had with Donald Trump, including pre-election conversations about payments made to Karen MacDougal, the former Playboy Bunny with whom Trump had a 10-month affair in 2006.  This seems likely to set off yet another "publicity tour" by attorney-commentator Michael Avenatti, whose representation of adult-film actress Stephanie Clifford (aka "Stormy Daniels"), has been a thorn in Trump's side since spring 2018 - and who predicted the existence and release of these tapes on May 30, 2018.  In the aftermath of the raid on Cohen's office, as far back as April, 2018, there was speculation about such recordings, but the Washington Post and others expressed skepticism about whether any such recordings would include Trump.

Friday, July 20, 2018

Reinvigorating “Defensive Crouch Liberal Constitutionalism” Part 2: Will Clarence Thomas Save Abortion Rights?

by Michael Dorf (cross-posted on Take Care Blog)

If the Senate confirms Judge Brett Kavanaugh to replace Justice Anthony Kennedy, the Supreme Court will almost certainly move to the right on a range of issues, most prominently abortion, where Kennedy wrote or joined key decisions upholding what he and two of his colleagues once called “the central holding” of Roe v. Wade. The post-Kennedy Court will cut back on the federal constitutional right to abortion and could well eliminate it entirely.

What then? Public discussion of a post-Roe future has assumed that the issue would “go back to the states.” Champions of abortion rights would be disappointed but not utterly defeated, as efforts might then focus on making transportation available from anti-abortion states to states where it is legal.

The US would look much like Ireland prior to its recent passage of a referendum liberalizing abortion regulation. Just as Irish women seeking abortions went to England, so women from Louisiana seeking abortions would travel to New York. Because the distances here are greater, abortion would be less accessible, especially to poor women, but laws banning public funding of abortion already make abortion all but impossible for many poor women in the US.

Yet what if the assumption of state-by-state regulation is wrong?

Thursday, July 19, 2018

Will Trump Go Off the Rails Again About the Putin Press Conference?

by Neil H. Buchanan

It did not even take eleven months for Donald Trump to go from the Charlottesville self-revealing crisis to the Helsinki self-revealing crisis.  True, he has had plenty of crises in between, most of which have also in one way or another revealed his true self -- perhaps most prominently his putting-children-in-cages-and-lying-about-every-aspect-of-it display of abject cruelty that is still ongoing, but also including his decisions to fire and humiliate staff, withdraw from the Iran nuclear deal with no alternative in place, insult and threaten democratic allies, unconditionally befriend North Korea's murderous dictator, declare victory in the War on Poverty as an excuse to inflict further harm on poor people, and on and on and on -- but there is something about his embrace of white supremacists and his even tighter embrace of Vladimir Putin that sets these two crises apart.

One way to know that these crises are different is simply by watching how flustered Republicans become when dealing with various public relations crises, and they are truly panicking right now (as they did after Charlottesville).  That is not to say that Republicans are going to do any more now than they did last August after Trump's "very fine people" reference to a crowd of hateful men shouting "Jews will not replace us!"  If anything, Republicans this time seem not to care enough even to try to pretend that they are thinking about taking action.  Still, their defensiveness and worry that Trump might actually be doing irreparable damage to their electoral chances (because principle means nothing to them, of course) is "blinking red," to co-opt a phrase much in the news recently.

But even beyond the tumult among Republicans, the more telling common aspect of the two big crises is Trump's response to criticism.  He never takes criticism well, of course, and he always defends himself with a blur of lies and distractions, but when it comes to white supremacists and Putin/dictators, Trump cannot contain his disappointment upon learning that his true views are utterly toxic.

Wednesday, July 18, 2018

Dogs and the Fourth Amendment

by Sherry F. Colb

In my Verdict column this week, I discuss the case of Collins v. Virginia. In it, the Supreme Court recently held that if police want to search a vehicle located within the curtilage of a home, the Fourth Amendment requires them to get a search warrant. This answered an open question about the scope of the "automobile exception" to the warrant requirement, which generally allows police to search a car based on probable cause alone. What made this case different was the fact that a police officer had had to walk across a driveway to reach the vehicle and that walk included an area that he would not have had to cross to get to the front door.

In this post, I want to focus on a different sort of property that police sometimes disturb in the course of carrying out searches and seizures in and around a person's home. That property is canis lupus familiaris, or the dog.

Tuesday, July 17, 2018

How Bad Will Things Become? Part One: The Post-Kennedy Assault on Reproductive Rights

by Neil H. Buchanan

The last 24 hours have been truly astonishing.  A few days ago, I had dreamed up the title of this column, "How Bad Will Things Become?" because I intended to write about how extreme the new Supreme Court is likely to be, far beyond what most commentators have yet realized (or, if they have realized it, have been willing to articulate).  But then the Trump-Putin press conference happened, and I am truly at a loss.

Because legal commentary is the avocation for which I am actually qualified, I will go ahead and write some of what I had planned to write today.  But before I do, I can only say ... Holy freakin' hell!!  What is going on?  Donald Trump stood next to the man who helped him steal the 2016 presidential election and, as a former CIA Director put it, made a series of unhinged statements that exceeded the bar for high crimes and misdemeanors and were "nothing short of treasonous."

To be clear, the offenses in the Constitution that justify the president's impeachment, conviction, and removal from office are "treason, bribery, or other high crimes and misdemeanors."  That is an or, not an and, so it is not even necessary to wonder what constitutes high crimes and misdemeanors on this point.  Treason is an independently impeachable offense.  We will, of course, now argue about what constitutes treason, but given how promiscuously Republicans have thrown that word around in the past ten years or so, that could be a fun argument.  Except for two things.

Monday, July 16, 2018

The Difference Between Presuming Innocence and Presuming Victim Perjury in Acquaintance Rape Trials

by Sherry F. Colb

The New York Times recently published a letter that I wrote about rape and statutes of limitations. I suggested that one reason to abolish statutes of limitations is the need to prosecute a category of crime that has long received little attention, acquaintance rape. Instead of calling such cases “swearing contests,” I proposed, we need to understand that victims are credible eye-witnesses while criminal defendants are not.
In response to my letter, some readers accused me of wanting to shift the burden of proof and eliminate the presumption of innocence. I am interested in neither. Here I want to explain the difference between the presumption of innocence and burden of proof, on the one hand, and the presumption that an alleged rape victim is lying, on the other.

Friday, July 13, 2018

More Republicans Abandon Ship, But Nothing Changes

by Neil H. Buchanan

Having grown up in a centrist Republican household, but having been a Democrat for all of my adult life, I have long been fascinated by the people who have continued to affiliate with the Republican Party.  The inexplicable nature of continued party loyalty as Republicans have accelerated their flight from sanity and their embrace of outright nastiness has led me over the last few years to write columns with titles like, "What Would It Take?" (as in, what would it take for a person of decency finally give up on the Republicans?), "The Neanderthal Question in U.S. Politics" (too subtle?), and the plaintive (if self-derivative), "Seriously, What Would It Take?"

One of the fascinating aspects of the Trump era has been the self-regenerating nature of what seems to be a constantly imploding Republican Party.  There are periodic spasms of people jumping ship, but the ship never seems to be any emptier.  (Sorry for the multiply mixed metaphors.)  It is not hydra-headed (ibid.), however, because the party is certainly not growing, and even if one includes non-party members, Trump's support in the polls remains within a very narrow range.

After the worst outrages -- the Hollywood Access tape, firing Comey and bragging that he did it to obstruct the Russia investigation, Charlottesville and "very fine people" -- there are a lot of Republicans who announce that they have finally had enough.  Some return (as many, such as now-former Congressman Jason Chaffetz, notoriously did after Trump's "locker room talk" explanation satisfied his base in October 2016), but somehow even the non-reversed public defections never seem to amount to much.

Now, spurred by the cruelty of the Administration's decision to take screaming children away from their horrified parents at the border, we have seen another round of "I've had enoughs" from lifelong Republicans.  Will this time be different?

Thursday, July 12, 2018

Originalist Judicial Activism

By Eric Segall

Now that President Trump has named Brett Kavanaugh as his nominee to replace retiring Justice Anthony Kennedy, we can expect the confirmation process charade to proceed apace. Judge Kavanaugh will dodge most if not all the hard questions put to him by members of the Senate Judiciary Committee, the Democratic members will complain loudly, and then the nominee will be confirmed by a party line or almost party line vote.
One word we can expect to hear a lot during this process is “originalism.” More on that below. One phrase we likely will not hear uttered by folks on either side of the aisle is “judicial activism.” That is truly unfortunate.

Complicity Jurisprudence as the Next Conservative Opt-Out from Modernity

by Neil H. Buchanan

How much interaction with unpleasant reality must anyone be expected to endure?  That would not seem to be a particularly pressing legal issue, but it seems that it has been keeping the Supreme Court's arch-conservatives up at night.  Americans who wish that they did not have to go out in the world and interact with other people of different religions, races, beliefs, and political views seem to have found salvation (pun intended) in a bloc of justices who are eager to protect fragile conservatives from being "complicit" in things that make them uncomfortable.

That is the thesis of my new Verdict column, in which I tie together the Court's recent anti-union case (Janus v. AFSCME) and its run of cases in which Christian conservatives have been unexpectedly validated by a Court that says that they do not have to do things that they view as immoral.  My tone in the column is unsympathetic to the people who beg the courts to allow them not to participate in any way in unpleasant things, but I do want to spend some time here giving the instinct to self-separate its due.

Wednesday, July 11, 2018

Reinvigorating "Defensive Crouch Liberal Constitutionalism" Part 1: Originalism and Searches

by Michael Dorf

At no time since the appointment of Chief Justice Warren Burger in 1969 has there been a clear liberal majority of the Supreme Court. Yes, the Court has produced liberal decisions in various areas during the ensuing period, but always by picking up one or more conservative justices, often with the consequence that even liberal results were justified in conservative terms.

Justice Kennedy's majority opinion in Obergefell v. Hodges is a good example. While finding a right to same-sex marriage, it extols the virtues of marriage in a way that sounds in traditional conservatism, even to the point of insulting people who choose not to marry: "Marriage responds to the universal fear that a lonely person might call out only to find no one there." Lines like that are the price that we liberals grew accustomed to paying in order to secure liberal results based on conservative rationales.

Accordingly, in anticipation of a Democratic victory in the 2016 presidential election, some liberals  began to imagine an activist liberal agenda for the Supreme Court. They began to imagine, as Mark Tushnet put it in the title of a blog post on Balkinization in May 2016, "abandoning defensive crouch liberal constitutionalism." The election of Donald Trump, the Republicans' success in first denying to Merrick Garland and then granting to Neil Gorsuch the seat that became vacant when Justice Scalia died, and the anticipated confirmation of Brett Kavanaugh to take Anthony Kennedy's seat all mean that for the short-to-medium term, liberals will need to continue to practice defensive crouch liberal constitutionalism.

Tuesday, July 10, 2018

Polarization and the Kavanaugh Nomination

by Michael Dorf

As we approach what then-Senator Joe Biden memorably termed the "kabuki dance" of a Senate Judiciary Committee confirmation hearing for a nominee to the Supreme Court, staffers are no doubt busily assembling questions and follow-ups for the Senators to ask Judge Kavanaugh. The exercise is largely pointless. Judge Kavanaugh will not say that he has active plans to overrule Roe v. Wade or any other precedents--and that will be sufficient to satisfy at least one of Senator Collins, Senator Murkowski, and the three red-state Democrats who voted to confirm now-Justice Gorsuch. The only really open question is the final vote.

Monday, July 09, 2018

Why is Trump Now Pro-Life?

by Michael C. Dorf

Some abortion opponents argue that feminists ought not to favor abortion rights because women's access to abortion ultimately serves the interest of men who want access to women's bodies for sex without consequences. The argument is flawed. The feminist arguments for a right to abortion can be (and IMHO are) persuasive, regardless of whether some people support abortion rights for other reasons.

That said, the pro-lifers are not wrong that some men who support abortion rights do so in order to maximize their own freedom to objectify women. As Susan Brownmiller wrote last fall after the death of Playboy founder Hugh Hefner, a man living the Playboy lifestyle "refused to be cornered into marriage just because a young lady he had bedded had the misfortune to get pregnant." Brownmiller drew the obvious comparison between Hef and Donald Trump, who, she noted, formerly supported abortion rights.

In a 1999 interview with Tim Russert in contemplation of a run for the presidency, Trump said that while he hates abortion (presumably because he thinks it immoral), he is nonetheless "very pro-choice" and thus would not ban abortion or so-called partial-birth abortion. 1999 Trump doesn't say why he is very pro-choice, other than to note that he was raised in and lives in New York, but the viewer has little difficulty inferring that 1999 Trump was pro-choice for the sorts of reasons that other people who think abortion immoral (as I think it is with respect to most abortions of sentient fetuses) might nonetheless be pro-choice: because of the impositions that forced pregnancy imposes on women; because laws forbidding abortion reduce its safety but not its incidence; etc.

Maybe those factors partly explain why 1999 Trump was pro-choice, but Trump also presumably had a Hefnerian reason. After all, Trump is essentially a cruder version of Hefner, and the Playboy founder seems to have been almost as much a mentor to Trump as was Roy Cohn. We also have circumstantial evidence. Both Karen McDougall and Stephanie Clifford (aka Stormy Daniels) have said that when they were having affairs with Trump in 2006, he didn't want to use a condom. Perhaps Trump assumed that McDougall and Clifford were both using birth control, although one still wonders why he was not concerned about contracting an STD that he might then transmit to the mother of his then-infant son. But I digress. The main point is that Trump's whole playboy lifestyle and image revolved around treating women as sexual objects, for which ready access to abortion was useful.

Friday, July 06, 2018

Lawyers Who Participate in the USCIS De-Naturalization Task Force (and the Head of USCIS) May Be Engaged in Professional Misconduct

by Diane Klein

In mid-June 2018, the Director of the United States Citizenship and Immigration Services (USCIS), announced the formation of a new task force focused on de-naturalizing U.S. citizens.  This new office will be in Los Angeles, and is scheduled to open in 2019.

Like "voter fraud" and ICE "liberating" towns from MS-13, there is no substantial naturalization fraud.  There is no crisis requiring a "task force" or a new U.S. Citizenship and Immigration Services (USCIS) office.  This is another pseudo-problem, put forward to advance the Trump Administration's racist, populist, and nationalist themes, regardless of the evidence (or the lack of it), and to justify mobilizing government resources against vulnerable people.  This time around, those people are citizens.  Lawyers who participate in this project - to the extent it targets individuals on the basis of race, religion, or national origin, as it seems very likely to do - should know that they do so at the risk of violating their professional codes of conduct.

Thursday, July 05, 2018

Privacy and Anti-Gay Discrimination: What's Old is New Again

By Sherry Colb

My column on Verdict this week discusses the US Supreme Court's decision in Carpenter v. United States. The Court held there that the government must get a search warrant before obtaining cell site location information from a target's wireless carrier. This means that if the government wants to know your comings and goings over the course of some period of time, and it hopes to do so by looking at a record of your cell phone's approximate locations (revealed to and recorded by your carrier at regular intervals when your phone is on), it needs to first go to a magistrate and successfully apply for a warrant.

The lineup for the 5-4 decision was somewhat reassuring: Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kennedy was not part of the five, so his departure should leave things unchanged for now in this one area of Fourth Amendment law.  In writing his opinion, moreover, Chief Justice Roberts said that people enjoy a reasonable expectation of privacy in the approximate locations where their cellphones (and therefore they) visit over time.

Why is the "privacy" formulation important? Because procedural (Fourth Amendment) privacy has sometimes been linked to substantive privacy, and substantive privacy under the Fourteenth Amendment includes such rights as contraception, abortion, and gay sexual relations.

Does this mean that I think the Chief Justice is now on board with protecting substantive privacy rights? No. I think he believes in digital privacy and chooses to rely on the phrase "reasonable expectations of privacy" that the Court has used since 1967 to refer to freedom from unreasonable searches. He is less inclined than some of his colleagues to throw out everything he dislikes.

Tuesday, July 03, 2018

The Supreme Court Free-for-All is Off to a Very Bad Start

by Neil H. Buchanan

For obvious reasons, the new Supreme Court vacancy has been dominating the news for the past week.  In the meantime, Justice Kennedy's retirement seems to have raised Donald Trump's spirits, and even though we have not completely forgotten about Trump's cruel immigration and refugee policies, the "Who will he pick?" story is exactly the kind of cliffhanger that the former reality TV huckster loves.

The media have all kinds of reasons to pump up the Supreme Court story, too, but I continue to believe that there really is no mystery about what will happen, as I will explain below.   I will then critique what is in the running to be the worst fact-check of all time.

Monday, July 02, 2018

Trump v. Hawaii and Chief Justice Roberts’s “Korematsu Overruled” Parlor Trick

by Anil Kalhan

In Chief Justice John Roberts’s 5-4 opinion in Trump v. Hawaii deeming President Donald Trump’s third Muslim ban legally valid, one passage stands out as judicial clickbait: its two-paragraph discussion of Koremtasu v. United States.
Korematsu, of course, is a justifiably reviled Supreme Court decision, one long regarded as a leading case in the American constitutional anti-canon. It is not surprising, therefore, that this passage in Roberts’s opinion has garnered widespread attention. In her dissenting opinion in Trump v. Hawaii, Justice Sonia Sotomayor welcomes the Court’s “formal repudiation of a shameful precedent” as “laudable and long overdue,” characterizing Roberts’s opinion as “tak[ing] the important step of finally overruling Korematsu.”
However, especially in the context of a decision validating a policy primarily motivated by anti-Muslim animus, there is little to find “laudable” in Roberts’s self-serving discussion of Korematsu. Clearly, Roberts saw “rhetorical advantage” (to borrow his own phrase) in characterizing Korematsu as affirming the deprivation of Japanese Americans’ liberty “solely and explicitly on the basis of race” and then proceeding to forcefully denounce the decision. But the Court deserves very little credit for the manner in which it has sought to clothe a decision upholding Trump’s Muslim ban in the garb of purporting to “overrule” Korematsu.