Tuesday, September 22, 2015

Tuesday News & Notes

1. Is Justice Alito the best or worst Justice on the Court? The best... Just ask him. Here's what he said about the 4th Amendment:

Alito moved onto privacy and the 4th Amendment. “Another change in the past decade has been constitutional protection for privacy. During the past ten years, the Court has applied the 4th amendment’s prohibition against unreasonable search and seizure to modern technology. I think this is going to be a very big issue moving forward. The 4th amendment was adopted with traditional property law in mind. What was once new technology (wiretap and eavesdropping), it was difficult to apply old property based standards to the new technology. The Court adopted a new test, and looked to reasonable expectation of privacy on the part of the individuals. That standard worked for a while, but with the development of new technology, it has become very difficult
The first case was “United States v. Jones, which involved placing a GPS tracking device on someone’s car. How do you apply the 4th amendment standard to that situation? What government has done is to take the precedents developed during the pre-digital error and apply them mechanically to the new issues. It has not worked in the Jones case. The Court decided the case on a ground I did not agree with. The Court looked back to common law trespass law–there was a trespass for law enforcement to place electronic device on a car. The placement of the device did not harm–that missed what was really the important issue. That missed the important issue which was the surveillance of the device on the car.
The “second case was Riley v. California–whether police can search the contents of cell phone. In the pre-digital era, police could search the person of someone who is arrested, and if that person has stack of letters, that could be searched. But what do you with a smartphone at the time of arrest. We held that content could not be taken without a warrant or probable cause.”
Alito closed with a call for Congress to address these issues, not the Court. “These are just some of the issues that may come up. The problem is that in making determinations we are put in a position of determining what is a reasonable expectation of privacy. We are very ill-positioned to make these determinations. We are older than the average person. This may come up as a surprise–We are not up on all the latest technology. If privacy is to be protected in the future, that balances the interests of law enforcement and the interest of privacy, legislatures should take the lead. They are in a better position that the courts.”

2. The Detroit Free Press says that the Presidential candidates should have a real debate about the Court. The conclusion:

And in fact, the same impulses that have driven his contempt for discrimination against gays shape his opposition to race-conscious policies like affirmative action. Kennedy doesn’t care whether the government is treating people different in the name of expanding their liberty or confining it; his point is that the government ought not be in the business of treating people differently.

Roberts, too, is a conservative rock, even when he’s voting in favor of preserving the Affordable Care Act. In both rulings, he was exercising deference to Congress’ lawmaking abilities, and the court’s responsibility to carve wide berth — and avoid nitpicking defeatism — in interpreting what the popularly elected branches want or intend to do.

Sounds pretty conservative to me. I doubt Roberts, or Kennedy for that matter, is rushing off to join even the most conservative wings of the Democratic party.

I know the Republican candidates were poking at Roberts only by way of jabbing at Obama; this is primary season, and they know there are votes to be mined in the opposition to just about anything the current president has done.

And I know that, in office, the brash calculations of a debate-stage performance almost always give way to more considered, thoughtful decision-making. Especially when it comes to the high court.

3. Joseph Zada is trying to get an appellate bond from Judge Marra, via the PB Post.

4. The 11th Circuit has rejected a vagueness challenge to the career offender guidelines based on Johnson, via SL&P.


Anonymous said...

"pre-digital ERROR and apply them mechanically to the new issues"

If the dude thinks that trespass requires harm to property, he is off his fucking rocker - the idea is that you can't touch other people's shit if they don't want, or even don't give you permission to.

If Alito thinks the founding fathers would have disagreed with that, he is as sick in the head as he looks.

Anonymous said...

What is taking Mary Barzee Flores nomination so long? She's the last person nominated on Feb.26 to have a hearing. People nominated in June are having nomination hearings now.

non-lawyer said...

Is Justice Alito the best or worst Justice on the Court?

Justice Alito is best on cert pool - the only Justice to opt out,


"The "cert pool" is a mechanism by which the U.S. Supreme Court manages the influx of petitions for certiorari ("cert") to the court. It was instituted in 1973, as one of the institutional reforms of Chief Justice Warren E. Burger.

Purpose and operation

Each year, the Supreme Court receives thousands of petitions for certiorari; in 2001 the number stood at approximately 7,500,[1] and had risen to 8,241 by October Term 2007.[2] The Court will ultimately grant approximately 80 to 100 of these petitions,[3] in accordance with the rule of four. The workload of the court would make it difficult for each Justice to read each petition; instead, in days gone by, each Justice's law clerks would read the petitions and surrounding materials, and provide a short summary of the case, including a recommendation as to whether the Justice should vote to hear the case.

This situation changed in the early 1970s, at the instigation of Chief Justice Warren E. Burger. In Burger's view, particularly in light of the increasing caseload, it was redundant to have nine separate memoranda prepared for each petition and thus (over objections from Justice William Brennan) Burger and Associate Justices Lewis Powell, Byron White, Harry Blackmun and William Rehnquist created the cert pool.[4] Today, all Justices except Justice Samuel Alito participate in the cert pool.[5] Justice Alito withdrew from the pool procedure late in 2008.[6]

The operation of the cert pool is as follows: Each participating Justice places his or her clerks in the pool. A copy of each petition received by the Court goes to the pool, is assigned to a random clerk from the pool, and that clerk then prepares and circulates a memo for all of the Justices participating in the pool. The writing law clerk may ask his or her Justice to call for a response to the petition, or any Justice may call for a response after the petition is circulated.[7]..."