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Supreme Court

All articles with the "Supreme Court" tag.

Published: Thu, 19 Apr 2018 00:00:00 -0400

Last Build Date: Thu, 19 Apr 2018 15:20:15 -0400


"Little Pink House" Brings the Kelo Case to the Big Screen

Wed, 18 Apr 2018 10:15:00 -0400

The soon-to-be-released independent film Little Pink House dramatizes the story behind Kelo v. City of New London, the notorious 2005 Supreme Court decision in which the justices ruled that it is permissible for the government to condemn homes in order to promote "economic development." Although the Fifth Amendment only permits the taking of private property for "public use," a narrow 5-4 majority ruled that a taking that transfers property to private developers is permissible. The Kelo case generated a massive public reaction, with over 80% of Americans opposing the ruling, and 45 states passing reform laws intended to restrict the use of eminent domain for private development. No other case united such disparate people and groups as the NAACP, libertarian property rights advocates, Ralph Nader, and Rush Limbaugh. Little Pink House, loosely based on journalist Jeff Benedict's book of the same name, does an excellent job of portraying the human drama that led to Supreme Court decision. It shows how a group of lower-middle class New London, Connecticut homeowners found themselves steamrolled by a plan to take their land in order to facilitate a development project backed by powerful political forces, including Connecticut Governor John Rowland, the New London Development Corporation (the private organization that planned and conducted the takings on behalf of the City of New London), and Pfizer, Inc., a major pharmaceutical firm that hoped to benefit from the development project. The film depicts how Susette Kelo - owner of the iconic "Little Pink House" that became a nationally known symbol of the case - and her neighbors did all they could to resist the seizure of their land through the political process, but were overmatched by powerful opponents. It also portrays some (but by no means all) of the extralegal harrassment by which the NLDC sought to pressure owners to sell "voluntarily." These shenanigans included such tactics as menacing late night phone calls, dumping of waste on the resisting owners' property, and locking out tenants during cold winter weather. The film movingly depics the pain and desperation of people faced with the loss of their homes, without any effective recourse. The multiyear legal and political battle over the takings was an excruciating ordeal for those involved. As Richard Beyer told me in an interview, he and the other property owners felt as if they were "living in our own prison" during the "whole period" of litigation. The movie also effectively conveys the role of the Institute for Justice (IJ), the libertarian public interest law firm that represented the property owners on a pro bono basis, and took the case all the way up to the Connecticut Supreme Court and the federal Supreme Court. There is no better cinematic portrayal of how a public interest law firm like IJ, the NAACP Legal Defense Fund, or the ACLU operates: simultaneously litigating cases in both the courtroom and the court of public opinion. The film even manages to accurately depict some key aspects of the main legal issue at stake in the litigation: is the correct definition of "public use" broad enough to encompass anything that might benefit the public in some way, or is it limited to publicly owned projects or private ones that have a legal duty to serve the entire public, such as a public utility? As the film shows, one of the key moments in the case came when Justice Sandra Day O'Connor asked New London's lawyer whether it would be permissible to condemn a Motel 6 in order to replace it with a Ritz Carlton simply because the latter might produce more tax revenue: he answered yes. The movie necessarily omits or simplifies some key aspects of the Kelo story. Most of the property owners' side of the tale is seen through the eyes of Susette Kelo, whom IJ chose as the main public face of the case in part because she is charismatic and very effective in media appearances. As with other iconic Supreme Court cases, such as Brown v. Board of Education and Tinker v. Des Moines, the person whose name is listed first became n[...]

Neil Gorsuch and Clarence Thomas Clash Over Due Process and Immigration Law

Tue, 17 Apr 2018 17:05:00 -0400

(image) A significant constitutional split has emerged between Supreme Court Justices Neil Gorsuch and Clarence Thomas over the meaning of the Due Process Clause.

The division emerged in Tuesday's Supreme Court ruling in Sessions v. Dimaya, in which the Court struck down a provision of the Immigration and Nationalities Act for being unconstitutionally vague. Justice Gorsuch concurred in Justice Elena Kagan's 5-4 opinion invalidating the provision.

Writing in dissent, Justice Thomas questioned whether the Supreme Court had any busines voiding this or any other statute on vagueness grounds. "I continue to doubt that our practice of striking down statues as unconstitutionally vague is consistent with the original meaning of the Due Process Clause," Thomas declared. In his view, "the modern vagueness doctrine, which claims the judicial power to 'strike down' vague legislation on its face, did not emerge until the turn of the 20th century."

Justice Gorsuch took the opposite view in his concurrence. The "void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution," he wrote.

For Gorsuch, the phrase "due process of law" should be read as imposing a key check on government overreach. "Vague laws invite arbitrary power," Gorsuch argued. "Before the Revolution, the crime of treason in English law was so capaciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crown's abuse of 'pretended' crimes like this as one of their reasons for revolution. Today's vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving people in the dark about what the law demands and allowing prosecutors and courts to make it up."

One of the sharpest disagreements between Gorsuch and Thomas came over the question of whether the Due Process Clause, as originally understood, offers any protection for aliens facing deportation from U.S. soil by the federal government. Thomas seems to think that the clause offers no such protection. "Less than a decade after the ratification of the Bill of Rights," he observed in his Dimaya dissent, "the founding generation had an extensive debate about the relationship between the Constitution and federal removal statutes. In 1798, the Fifth Congress enacted the…Alien Friends Act, [which] gave the President unfettered discretion to expel any aliens 'he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government itself."

Gorsuch responded directly to this point with a forceful dismissal. "But the Alien Friends Act—better known as the 'Alien' part of the Alien and Sedition Acts—is one of the most notorious laws in our country's history," he wrote. "It was understood as a temporary war measure, not one that the legislature would endorse in a time of tranquility. Yet even then it was widely condemned as unconstitutional by Madison and others…. With this fuller view, it seems doubtful the Act tells us a great deal about aliens' due process rights at the founding."

This is not the first time that Gorsuch has butted heads with another right-leaning justice. As I've previously reported, Gorsuch and Justice Samuel Alito have clashed repeatedly this term during oral arguments over questions of privacy and the Fourth Amendment.

Supreme Court Punts on Data Privacy Case, Thanks to the Terrible CLOUD Act

Tue, 17 Apr 2018 11:45:00 -0400

(image) Thanks to a broad new law granting the feds access to American data stored in foreign countries, the Supreme Court just punted a case that was supposed to address the question.

In United States v. Microsoft, federal drug-trafficking investigators were trying to force Microsoft to comply with a warrant demanding access to a customer's emails and other private data. But the data they wanted were stored on a server in Ireland. Microsoft fought the warrant, arguing that the government's demands couldn't reach that far under the Stored Communications Act.

The Supreme Court agreed to take on the case last fall and heard arguments in February. But in March, legislation buried deep in the federal omnibus spending bill granted the feds access to data and communications from Americans being held on servers in foreign countries. So today the Supreme Court ruled that the case was moot and kicked it back down to the lower courts for dismissal.

That bill, the Clarifying Lawful Overseas Use of Data (CLOUD) Act, did not get much attention outside of privacy and civil liberties quarters. (We covered it here at Reason.) The CLOUD Act not only gives the feds access to Americans' data being held overseas, but also allows other countries to demand access to their citizens' private data when it's stored here in America. The American Civil Liberties Union warned that poor and limited oversight of the cooperation system could have significant human rights consequences in countries with despotic leaders:

The bill would give the attorney general and the secretary of State the authority to enter into data exchange agreements with foreign governments without congressional approval. The country they enter into agreements with need not meet strict human rights standards—the bill only stipulates that the executive branch consider as a factor whether a government "demonstrates respect" for human rights and is similarly vague as to what practices would exclude a particular country from consideration. In addition, the bill requires that countries adopt procedures to protect Americans' information, but provides little specificity as to what these standards must include. Moreover, it would allow countries to wiretap on U.S. soil for the first time, including conversations that foreign targets may have with people in the U.S., without complying with Wiretap Act requirements.

But none of that was connected to the case the Supreme Court was considering. They were just examining the limits of what the feds could request. The CLOUD Act was passed specifically for the purpose of making it clear that the feds could demand American tech companies pass along data no matter where it was stored. So the case is indeed moot, even if the underlying concerns and fears are still very relevant.

Neil Gorsuch Joins Liberals in 5-4 SCOTUS Opinion Striking Down Portion of Federal Immigration Law

Tue, 17 Apr 2018 11:15:00 -0400

(image) Today the U.S. Supreme Court struck down a provision of the Immigration and Nationality Act which dealt with the power of the U.S. government to deport any alien, including a lawful permanent resident, convicted of an "aggravated felony." The 5-4 ruling was written by Justice Elena Kagan and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Justice Neil Gorsuch, who concurred in part and joined in the judgment, provided the tie-breaking fifth vote.

At issue in Sessions v. Dimaya is a provision of the Immigration and Nationality Act which lists being convicted of "a crime of violence" as one of the types of aggravated felony convictions that can trigger an alien's deportation. This provision defines "a crime of violence" to include any offense that "is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

In its opinion today, the Court struck down that provision as unconstitutionally vague. "The void-for-vagueness doctrine, as we have called it," observed the majority opinion of Justice Kagan, "guarantees that ordinary people have 'fair notice' of the conduct a statute proscribes."

In his concurrence, Justice Gorsuch explained the constitutional principle that demanded this result:

Before holding a lawful permanent resident alien like James Dimaya subject to removal for having committed a crime, the Immigration and Nationality Act requires a judge to determine that the ordinary case of the alien's crime of conviction involves a substantial risk that physical force may be used. But what does that mean? Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products. How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force? The truth is, no one knows. The law's silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more.

The upshot of today's ruling is that it is now more difficult for the federal government to deport aliens under the terms of the Immigration and Nationality Act.

The Supreme Court's decision in Sessions v. Dimaya is available here.

More on Sessions v. Dimaya and Crossover Sensation Neil Gorsuch

Tue, 17 Apr 2018 10:39:00 -0400

Like Eugene, I was struck by Justice Gorsuch's opinion today in Sessions v. Dimaya. Justice Gorsuch's separate opinion concurring-in-part and concurring-in-the-judgment is thoughtful and provocative. This opinion, and Justice Thomas' dissent, are the opening salvos in what promises to be an interesting intra-originalist debate over the proper scope and applicaiton of the "void for vagueness" doctrine, and the extent to which this doctrine is part of an originalist understanding of Due Process. It was expected that Justice Gorsuch would cast the deciding vote in Dimaya, so it's fitting that he wrote separately to explain his reasons for joining the judgment of the Court. As Court-watchers will recall, this case was originally argued in January 2017, but the then-eight-member-Court split 4-4. The case was reargued this term before a full Court, so it was clear Justice Gorsuch would determine the case's outcome. Both Justice Kagan's opinion for the Court and Justice Gorsuch's separate opinion rely upon Johnson v. United States, a case in which the Court invalidated a similar clause in the Armed Career Criminal Act (ACCA). As Justice Kagan notes at the outset of her opinion: Three Terms ago, in Johnson v. United States, this Court held that part of a federal law's definition of "violent felony" was impermissibly vague. The question in this case is whether a similarly worded clause in a statute's definition of "crime of violence" suffers from the same constitutional defect. Adhering to our analysis in Johnson, we hold that it does. The majority opinion in Johnson, it should be noted, was written by the late Justice Antonin Scalia. It was joined in full by the Court's more liberal justices and the Chief Justice. Justices Kennedy and Thomas concurred int he judgment, and Justice Alito dissented. In Dimaya, the Chief Justice joined by Justices Kennedy, Thomas, and Alito, argued that Dimaya was distinguishable. Justice Thomas also wrote a separate dissent, joined in part by Justices Kennedy and Alito. Is Justice Gorsuch's decision to side with the Court's more liberal judges a sign of things to come? Perhaps. Justice Gorsuch is just as likely to join with the Court's left wing as was the justice he replaced, Justice Scalia, and likely for some of the same reasons. In Justice Scalia's case, his originalism and textualism often led him to embrace criminal defendant-friendly holdings because of the Constitution's express protection of the rights of the accused. Justice Scalia also showed concern for traditional notions of due process -- as in the process to which defendants and others are due, not so-called "substantive due process." This led Justice Scalia to be concerned about the vagueness or indeterminacy of some criminal laws. This tendency is noticeable here. I suspect Justice Gorsuch will decide-against-type at least as often as Justice Scalia, but likely more. While Justice Gorsuch embraces the same judicial philosophy as the late Justice Scalia, he seems less concerned about doctrines that authorize greater judicial scrutiny of government actors, administrative agencies in particular. This could lead Justice Gorsuch to be more solicitous of immigrants and other litigants caught up in the administrative state than Justice Scalia might have been. It could also lead to some interesting line-ups in future cases. None of this means Justice Gorsuch should be considered a "liberal" justice. To confirm the point, Justice Gorsuch dissented today in Wilson v. Sellers, voting to reject the claims of a habeas petitioner on death row. Wilson was a 6-3 decision, in which the Chief Justice and Justice Kennedy joined the liberal justices, and Justice Grosuch was joined by Justices Alito and Thomas in dissent.[...]

A Civil Rights Movement for Corporations? Inside the 400-Year Struggle

Mon, 16 Apr 2018 11:14:00 -0400

"The movement and struggle to win rights for corporations," says UCLA Law School Professor Adam Winkler, is "one of the least well-known yet most successful civil rights movements in American history."

An important chapter in that history came in 2010, when the Supreme Court ruled it unconstitutional to keep corporations from spending money on political ads right before an election. Many liberal advocacy groups were outraged over Citizens United v. Federal Election Commission. Last year, U.S. Senators Tom Udall (D–N.M.) and Martin Heinrich (D–N.M.) introduced a constitutional amendment that would overturn the decision.

In a new book, We the Corporations: How American Businesses Won Their Civil Rights, Winkler challenges the conventional wisdom about Citizens United. He complicates the narrative about America's founding, too.

Interview by Paul Detrick. Edited by Detrick. Shot by Zach Weismuller and Alexis Garcia.

"Aourourou," by Blue Dot Sessions, is licensed under a Creative Commons Attribution license (

"Toothless Slope," by Blue Dot Sessions, is licensed under a Creative Commons Attribution license (

Photo of Supreme Court: credit, Jonathan Ernst/Reuters/Newscom
Photo of crowd outside Supreme Court: credit, Jonathan Ernst/Reuters/Newscom
Photo of protest sign: credit, Bill Clark/CQ Roll Call/Newscom
Photo of protesters yelling: credit, Jonathan Ernst/Reuters/Newscom
Photo of arrest: credit, Jonathan Ernst/Reuters/Newscom

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Court to Cops: Shoot First and Think Later

Wed, 04 Apr 2018 00:01:00 -0400

"Why'd you shoot me?" Amy Hughes, screaming and bleeding, asked Officer Andrew Kisela after he fired four rounds at her through a chain link fence. Thanks to the Supreme Court, a jury will not get a chance to consider that question. In a case that illustrates how hard it is to hold police officers responsible for using excessive force, the Court on Monday ruled that Kisela is protected by "qualified immunity" from civil liability for the injuries he inflicted on Hughes in May 2010. The decision, as Justice Sonia Sotomayor observed in a dissent joined by Justice Ruth Bader Ginsburg, "tells officers that they can shoot first and think later." Kisela, an officer with the University of Arizona Police Department in Tucson, was responding to a "check welfare" call about a woman who was hacking at a tree with a kitchen knife. Arriving at the home that Hughes shared with Sharon Chadwick, he saw Hughes emerge from the house with a kitchen knife in her hand and approach Chadwick, stopping about six feet from her. Hughes, who talked to Chadwick but did not seem angry, was holding the knife at her side, with the blade pointing away from her housemate. Chadwick, who later described Hughes as "composed and content," said she never felt she was in any danger. Kisela and the two other officers with him nevertheless drew their guns and ordered Hughes to drop the knife. It is not clear whether she heard the commands. Chadwick said it seemed to her that Hughes did not understand what was happening, an impression shared by Kisela's colleagues. The cops, although in uniform, never verbally identified themselves as police officers, and the whole encounter was over within a minute. Kisela, who later said he was trying to protect Chadwick, opened fire immediately and without warning, hitting Hughes with all four bullets. She survived but easily could have been killed. Neither of the two other officers at the scene resorted to deadly force. Kisela could have used his Taser instead of his gun. He could have repeated the command to drop the knife. He could have at least warned Hughes that if she did not comply he would fire. At the moment she was shot, Hughes had committed no crime and was not menacing anyone. After Hughes sued Kisela under a federal law that allows people to recover damages for violations of their constitutional rights, the U.S. Court of Appeals for the 9th Circuit concluded that "a rational jury…could find that she had a constitutional right to walk down her driveway holding a knife without being shot." Kisela appealed to the Supreme Court, which did not address the question of whether he had used excessive force. Even if he did, seven justices agreed, Kisela cannot be held liable because the 9th Circuit's precedents, as of May 2010, had not clearly established that shooting Hughes violated her rights. While none of the 9th Circuit's cases addressing excessive force involved circumstances exactly like these, that does not mean Kisela had no way of knowing that what he did was unlawful. "Because Kisela plainly lacked any legitimate interest justifying the use of deadly force against a woman who posed no objective threat of harm to officers or others, had committed no crime, and appeared calm and collected during the police encounter," Sotomayor writes, "he was not entitled to qualified immunity." The Supreme Court's conclusion to the contrary is part of a pattern. In a recent California Law Review article, University of Chicago law professor William Baude notes that the Court almost always sides with government officials in qualified immunity cases, which makes judges less likely to let people sue them. As illustrated by criminal cases in which juries let cops off the hook for outrageous conduct, giving victims of excessive force their day in court hardly guarantees justice. But preventing juries from hearing cases like these guarantees injustice. © Copyright 2018 b[...]

Stossel: Little Pink House

Tue, 03 Apr 2018 10:40:00 -0400

Susette Kelo bought a run-down home. She fixed it up and painted it pink. Then the government came and took it.

"Eminent Domain" has long allowed politicians to grab your property to build roads, railroad tracks, a border wall–anything they claim is for "public use." But they wanted Kelo's house so they could give the property to a private developer. Is that right?

A new movie called "Little Pink House" tells the story of how Susette fought for her home, all the way to the Supreme Court.

Eventually she lost her case, and her home.

Justice Sandra Day O'Connor explained the problem in her dissent, writing, "nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

The decision alarmed people across America. Some states passed laws limiting their politicians right to grab your property.

Several years after the Supreme Court's decision, John Stossel went with Susette to look at the place where her home used to stand, where politicians had said "the tax-paying development" would be. There was nothing there, just unused land. Even today, 13 years later, there's still no development. The politicians were wrong. Susette and others lost their homes anyway.

Stossel says this new movie, "The Little Pink House," which comes out at the end of the month, is a good reminder of just how powerful, and wrong, politicians often are.

The views expressed in this video are solely those of John Stossel, his independent production company, Stossel Productions, and the people he interviews. The claims and opinions set forth in the video and accompanying text are not necessarily those of Reason.

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Judge Sykes on Justice Gorsuch

Tue, 03 Apr 2018 09:21:00 -0400

Next week will mark the one-year anniversary of Neil Gorsuch's swearing in as a Supreme Court justice. As a consequence, we'll soon be treated to a flurry of articules evlauating his first year on the court.

It may be particularly interesting to consider howother jursits evaluate Justice Gorsuch. As it happens, Justice Gorsuch's record was the subject of a lecture by the Honorable Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit at the Case Western Reserve University School of Law earlier this spring. In these remarks, Judge Sykes comments on Justice Gorsuch's concern for text and legal process.

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The Sykes lecture was this year's Sumner Canary lecture at CWRU. Incidentally, then-Judge Gorsuch delivered the Sumner Canary lecture in 2016. Video of the Gorsuch lecture is here, and a published version of his remarks from the Case Western Reserve Law Review is available here. Judge Sykes' lecture will also be published later this year.

The Supreme Court's Continuing Immunity Crusade

Mon, 02 Apr 2018 14:56:00 -0400

Today's "dog bites man" story from the Supreme Court is a summary reversal in Kisela v. Hughes, the latest reversal of a Ninth Circuit opinion that had denied qualified immunity to a police officer. An Arizona police officer shot a woman who was holding a kitchen knife because he (seemingly mistakenly) believed that she was a threat to her roommate, who was standing about six feet away. In a per curiam opinion, the Supreme Court held that the police officer could not be held liable for the unreasonable use of deadly force, because it was "far from an obvious case" in light of the urgency of the situation and the woman's strange behavior. By my count, this is the fifth such summary reversal in the past four years. (It also means that a list of qualified immunity cases in an article I published in February is already out of date.) However, I was somewhat heartened to see a dissent by two Justices (Sotomayor and Ginsburg). The dissent argued that the majority had "misapprehend[ed] the facts and misapplie[d] the law," and that a jury could have found that the use of deadly force was clearly unreasonable. The dissent also went on to make a second point, however, one that I think is quite important to emphasize: For the foregoing reasons, it is clear to me that the Court of Appeals got it right. But even if that result were not so clear, I cannot agree with the majority's apparent view that the decision below was so manifestly incorrect as to warrant "the extraordinary remedy of a summary reversal." Major League Baseball Players Assn. v. Garvey, 532 U. S. 504, 512–513 (2001) (Stevens, J., dissenting). "A summary reversal is a rare disposition, usually reserved by this Court for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error." Schweiker v. Hansen, 450 U. S. 785, 791 (1981) (Marshall, J., dissenting); Office of Personnel Management v. Richmond, 496 U. S. 414, 422 (1990) ("Summary reversals of courts of appeals are unusual under any circumstances"). This is not such a case. The relevant facts are hotly disputed, and the qualified immunity question here is, at the very best, a close call. Rather than letting this case go to a jury, the Court decides to intervene prematurely, purporting to correct an error that is not at all clear. This unwarranted summary reversal is symptomatic of "a disturbing trend regarding the use of this Court's resources" in qualified-immunity cases. Salazar-Limon v. Houston, 581 U. S. ___, ___ (2017) (SOTOMAYOR, J., dissenting from denial of certiorari) (slip op., at 8). As I have previously noted, this Court routinely displays an unflinching willingness "to summarily reverse courts for wrongly denying officers the protection of qualified immunity" but "rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases." Id., at ___–___ (slip op., at 8–9); see also Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. 45, 82 (2018) ("[N]early all of the Supreme Court's qualified immunity cases come out the same way—by finding immunity for the officials"); Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court's Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich. L. Rev. 1219, 1244–1250 (2015). Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment. The majority today exacerbates that troubling asymmetry. Its decision is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it te[...]

Justice John Paul Stevens Is Wrong About the Second Amendment, Again

Tue, 27 Mar 2018 11:55:00 -0400

In his 2008 dissent in District of Columbia v. Heller, Supreme Court Justice John Paul Stevens insisted that the Second Amendment offers zero protection for what he called the "right to possess and use guns for nonmilitary purposes like hunting and personal self-defense." Writing in today's New York Times, the retired justice reiterates that losing view. "For over 200 years after the adoption of the Second Amendment," Stevens maintains, "it was uniformly understood as not placing any limit on either federal or state authority to enact gun control legislation." To clear the path for sweeping gun control restrictions now, Stevens advises, activists should turn their energies towards passing a "constitutional amendment" that would overturn Heller and "get rid of the Second Amendment." One problem with Stevens' position is that he is dead wrong about the legal history. His preferred reading of the Second Amendment has never been "uniformly understood." For example, consider how the Second Amendment was treated in St. George Tucker's 1803 View of the Constitution of the United States, which was the first extended analysis and commentary published about the Constitution. For generations of law students, lawyers, and judges, Tucker's View served as a go-to con-law textbook. Tucker was a veteran of the Revolutionary War, a colleague of James Madison, and a professor of law at the College of William and Mary. He observed the debates over the ratification of the Constitution and the Bill of Rights as they happened. And he had no doubt that the Second Amendment secured an individual right of the "nonmilitary" type. "This may be considered as the true palladium of liberty," Tucker wrote of the Second Amendment. "The right of self-defense is the first law of nature." In other words, the Heller majority's view of the Second Amendment is as old and venerable as the amendment itself. Regrettably, today's op-ed is not the only example of Stevens trying to claw back a portion of the Bill of Rights. Stevens cast a dissent, for instance, in Texas v. Johnson (1989), the landmark case in which the Court ruled that flag-burning is protected by the First Amendment. "Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable," declared the majority opinion of Justice William Brennan. Stevens rejected that endorsement of bedrock free speech principles. Likewise, Stevens has said that had he not retired from the Court in 2010, he would have joined Justice Samuel Alito's dissent in Snyder v. Phelps (2011), the case in which the Court recognized First Amendment protections for the rights of Westboro Baptist Church members to stage offensive protests outside of military funerals. "Such speech cannot be restricted simply because it is upsetting or arouses contempt," declared the majority opinion of Chief Justice John Roberts. Stevens rejected that endorsement of free speech principles too. And then there is Stevens' record on the Fifth Amendment, as exemplified by his majority opinion in Kelo v. City of New London, which allowed a municipality to wield its eminent domain powers not for a "public use," as the Constitution requires, but for the benefit of a private developer working with the Pfizer corporation. "The Kelo majority opinion remains unpopular," Stevens acknowledged in a 2011 speech at the University of Alabama School of Law. "Recently a commentator named Damon W. Root described the decision as the 'eminent domain debacle.'" (Guilty.) How did Stevens' justify his debacle? He claimed that "Kelo adhered to the doctrine of judicial restraint, which allows state legislatures broad latitude in making economic policy decisions in their respective jurisdictions." In sum, John Paul Stevens has a bad habit of shortch[...]

Gerrymandering Is Out of Control

Tue, 27 Mar 2018 06:00:00 -0400

For weeks this winter, Pennsylvania flirted with a full-blown constitutional crisis. In January, the Democrat-controlled state Supreme Court sided with activists from the League of Women Voters and ordered state legislators to redraw the state's congressional district map. GOP lawmakers, who had created the boundaries in 2011 during the once-per-decade reapportionment process, had engaged in a heavy dose of gerrymandering—the practice of drawing district lines intentionally to favor one party over another. Not surprisingly, Republicans objected to the court order, even threatening to impeach some of the state high court's justices. The two branches of government appeared to be deadlocked, with each determined to check what it saw as partisan opportunism on the part of the other. Republican lawmakers in the General Assembly blinked first, offering a new set of district lines on February 9. It was promptly rejected by Gov. Tom Wolf, a Democrat. A week later, the state Supreme Court produced its own map, drawn by Stanford Law School's Nathaniel Persily. Republicans howled that the court had unconstitutionally usurped a legislative power and asked the U.S. Supreme Court to intervene. For now, uncertainty reigns. Even when the crisis in Pennsylvania is eventually resolved, deeper issues regarding electoral district lines are likely to persist. Around the country, courts and independent redistricting commissions have been called upon. But so far, the big questions that haunt every such dispute—What makes a district gerrymandered? How do you draw a truly neutral map?—have proven surprisingly difficult to answer. At least, that is, by human beings. Some researchers, armed with powerful new electoral data, have begun asking what might happen if human decisions were entirely removed from the equation. If regular citizens, state lawmakers, and Supreme Court justices can't figure out redistricting, perhaps an algorithm can. Anatomy of a Crisis The roots of Pennsylvania's crisis lie in the 2010 midterm election. After winning huge electoral victories, Republicans set about the regularly scheduled task of redrawing the commonwealth's congressional district lines. In a state with about 1 million more registered Democrats than registered Republicans, it's not easy to carve out districts that virtually ensure GOP victories. But they managed it. In 2012, thanks to the new maps, Republicans won 13 out of 18 races—even though Democratic candidates received more total votes. The 13–5 split in the state's congressional delegation persisted in the 2014 and 2016 elections, and the GOP-drawn districts made a Democratic takeover in 2018 seem nearly impossible to imagine. Then in January, the Supreme Court of Pennsylvania ruled that the districts were "plainly, clearly, and palpably" unconstitutional because counties were unfairly fractured to give Republicans an advantage. In a 5–2 decision, the Court ordered the old maps scrapped. It then instructed the state legislature to draw new ones in less than a month. If lawmakers failed to do so on time, the Court said, the justices would do it themselves. Pennsylvania Republicans accused the state Supreme Court of judicial imprudence. Although Pennsylvania judges are technically nonpartisan, they noted that all five justices who voted against the GOP's map had been elected as Democrats. One of them, Justice David Wecht, was elected in 2015, and had called gerrymandering "an absolute abomination" during his campaign. Republicans called that an implicit promise to strike down the 2011-era maps. Wecht's comments, the party-line ruling in the League of Women Voters case, and the state Supreme Court's declaration that it had the authority to redraw the map without legislative input—a pretty clear v[...]

Trump Wants a 'Line-Item Veto' on Budget Bills. That Was Ruled Unconstitutional 20 Years Ago.

Fri, 23 Mar 2018 15:40:00 -0400

(image) Well, it's done. After his will-I-or-won't-I-sign-this antics this morning, President Donald Trump has signed the $1.3 trillion spending bill that passed the House of Representatives last night.

But Trump being Trump, he wasn't going to pass up an opportunity to air his many grievances with Congress, Frank Costanza–style. And he's got a lot of problems with you people.

Among the president's laundry list of complaints was that the bill contains too many random and unnecessary expenses. He's absolutely right, though the gripe rings awfully hollow coming from the one man on earth who was actually in a position to stop the budget from becoming law.

Trump's solution, unsurprisingly, was to give more power to Trump. Congress, he said, should pass a law granting the president a "line-item veto" over budget bills—that is, the power to strike out individual appropriations rather than having to choose between accepting or rejecting the bill wholesale.

A bold, innovative idea for streamlining American governance? Not exactly.

Way back in 1996, a Republican* Congress tried to do just that, passing the Line Item Veto Act in the hopes of giving then-President Bill Clinton the power to excise specific appropriations from the federal budget.

The act passed, but it didn't last long. In 1997, the City of New York and a number of health care companies who had lost funding to one of Clinton's line-item vetoes sued, arguing that the law impermissibly blurred the Constitution's separation of the legislative and executive functions of government. The Supreme Court agreed, holding in 1998's Clinton v. City of New York that the line-item veto violated the Presentment Clause, which is the portion of the Constitution which lays out the veto process. In essence, the Court said, Congress cannot delegate its constitutional power to craft and modify legislation to the executive.

Clinton v. New York isn't as universally known as Roe v. Wade or Brown v. Board of Education, but it isn't exactly obscure. It's a landmark case in U.S. constitutional law, a cornerstone of the "nondelegation doctrine" that underpins many past and ongoing debates about the structure of American government. If you went to high school after 1998, you've probably at least heard of it once.

If so, congratulations. You're apparently better informed on the structure of the U.S. government than the president.

*Correction: An earlier version of this post incorrectly stated that the 1996 Congress was majority Democrat.

Why the Summer Zervos Lawsuit Is Bad News for Donald Trump

Fri, 23 Mar 2018 10:05:00 -0400

Can the president of the United States be sued for damages in a civil proceeding? The answer depends on the nature of the president's alleged misconduct. In Nixon v. Fitzgerald (1982), the U.S. Supreme Court ruled that the president has immunity from civil suits that arise from the performance of the president's official duties. "In exercising the functions of his office," the Court said, "the head of an Executive Department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages." According to the Court, "it would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government, if he were subjected to any such restraint." The president's unofficial conduct, however, is a different matter. In Clinton v. Jones (1997), the Supreme Court allowed Paula Jones' sexual harassment and defamation suit against President Bill Clinton to proceed in federal court because Clinton's alleged misconduct "was unrelated to any of his official duties as President of the United States and, indeed, occurred before he was elected to that office." In the Court's view, the "rationale for affording certain public servants immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct." Which brings us to President Donald Trump. Earlier this week, the president suffered a significant legal defeat when a judge in New York allowed a defamation suit filed by former Apprentice contestant Summer Zervos to proceed against him in state court. "No one is above the law," wrote New York Supreme Court Justice Jennifer Schecter, citing Clinton v. Jones. "It is settled that the President of the United States has no immunity and is 'subject to the laws' for purely private acts." (Note: the New York Supreme Court is not the state's highest court. That would be the New York Court of Appeals.) To be sure, there is a difference between the present case and that 1997 SCOTUS decision. Zervos v. Trump deals with a defamation suit filed in state court, while Clinton v. Jones dealt with a suit filed in federal court. Does that difference matter? Not according to Justice Schecter. "The rule is no different for suits commenced in state court related to the President's unofficial conduct," she held. That judgment will likely be tested on appeal. The matter of Zervos v. Trump originated in 2016 when Summer Zervos publicly alleged that in 2007 Donald Trump kissed and groped her without her consent. Then-candidate Trump denied those allegations, repeatedly describing Zervos as a liar and a fabricator. Zervos filed suit in response in January 2017, claiming that Trump made those statements about her "knowing they were false and/or with reckless disregard for their truth or falsity." She seeks $2,914 in damages, which is the amount of money that she says her restaurant business lost as a result of Trump's alleged defamations. Tuesday's ruling by Justice Schecter did not address the merits of Zervos's complaint; it merely allowed the suit to move forward. But that is still a critical loss for Trump, who faces the possibility of real trouble as this litigation unfolds. Remember that the effort to impeach President Bill Clinton did not truly begin to build steam until after Clinton lied under oath about his relationship with Monica Lewinsky. That act of perjury occurred during Clinton's deposition in the Paula Jones lawsuit. Trump's opponents, needless to say, are hoping that he will make a comparable misstep in this case.[...]

No Fourth Amendment Protections Against Warrantless Cell Phone Searches at U.S. Border, Says Federal Court

Fri, 16 Mar 2018 15:50:00 -0400

In its 2014 decision in Riley v. California, the U.S. Supreme Court held that law enforcement officials violated the Fourth Amendment when they searched an arrestee's cell phone without a warrant. "Modern cell phones are not just another technological convenience," Chief Justice John Roberts wrote for the majority. "With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.' The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought."

But what about when an American citizen is returning home from abroad and U.S. border officials want to thoroughly search the contents of that person's cell phone? Does the Fourth Amendment require the government to get a warrant before searching cell phones at the border? According to a decision issued this week by the U.S. Court of Appeals for the 11th Circuit, the answer to that question is no.

The 11th Circuit's ruling came in the matter of United States v. Vergara. Hernando Vergara is a U.S. citizen who was returning home from a cruise to Mexico. Because of a prior conviction for possessing child pornography, a Customs and Border Protection officer searched his luggage, including the three cell phones that Vergara was carrying. One of those phones contained "a video of two topless female minors." The Department of Homeland Security entered the picture at that point. Vergara's cell phones were taken away to a DHS facility where they were subjected to a warrantless forensic search, which typically involves retrieving deleted files and other significant inspections of the phone's digital records. DHS discovered child pornography on Vergara's phones.

Vergara and his lawyers argue that this evidence should be deemed inadmissible because the government never obtained a search warrant. His position is based in significant part on the increased privacy protections for cell phone users that the Supreme Court recognized in Riley v. California.

But a divided panel of the 11th Circuit took a different view. "The forensic searches of Vergara's cell phones occurred at the border, not as searches incident to arrest," declared the majority opinion of Judge William H. Pryor. "And border searches never require a warrant or probable cause."

Writing in dissent, Judge Jill Pryor wrote that while she agrees "with the majority that the government's interest in protecting the nation is at its peak at the border," she disagrees "with the majority's dismissal of the significant privacy interests implicated in cell phone searches." In Riley, she noted, the Supreme Court recognized "the significant privacy interests that individuals hold in the contents of their cell phones." And in her view, "the privacy interests implicated in forensic searches are even greater than those involved in the manual searches at issue in Riley." If it were up to her, "a forensic search of a cell phone at the border [should require] a warrant supported by probable cause."

One thing is clear: We have not heard the last of this debate. Either this case, or one very much like it, is almost certainly headed for the Supreme Court.