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Supreme Court

All articles with the "Supreme Court" tag.

Published: Tue, 17 Oct 2017 00:00:00 -0400

Last Build Date: Tue, 17 Oct 2017 00:10:48 -0400


Supreme Court to Decide if Data Stored Overseas Can Be Demanded with Warrants

Mon, 16 Oct 2017 12:30:00 -0400

(image) The Supreme Court agreed today to hear and rule whether the federal government can demand access to emails and other data files when they are stored in another country.

In United States v. Microsoft Corp., the Department of Justice has been trying since 2013 to get access to emails of a Microsoft customer, looking for evidence this person was involved in drug trafficking.

Some of the suspect's data was being stored on a server in Dublin, Ireland. Microsoft has turned over data stored within the United States, but argued, even with probable cause warrants, the feds did not have the authority to make them hand over foreign-stored info. Privacy advocacy groups, tech companies, and the U.S. Chamber of Commerce are on Microsoft's side here. The Department of Justice and 33 states (and Puerto Rico) are on the other.

Several court rulings have upheld Microsoft's argument, but the full 2nd Circuit Court ruling was split 4-4. This split keeps the ruling in Microsoft's favor, but there's a clear disagreement among judges about the limits of the authority of the Stored Communications Act—the 1986 federal law that oversees forced disclosures of data by third parties like tech companies.

The Justice Department, of course, went full 9/11, arguing limits to their warrant authorities would jeopardize terror investigations. Microsoft, meanwhile, worries about the reaction if the United States sets a bad example here. Via Reuters:

"If U.S. law enforcement can obtain the emails of foreigners stored outside the United States, what's to stop the government of another country from getting your emails even though they are located in the United States?" Brad Smith, Microsoft's president and chief legal officer, said in a blog post on Monday.

The Justice Department said in its appeal that the lower court ruling "gravely threatens public safety and national security" because it limits the government's ability to "ward off terrorism and similar national security threats and to investigate and prosecute crimes."

Reuters notes that tech companies are also concerned that customers may not trust the privacy cloud-based computing services if governments could seize their data.

The Justice Department, on the other hand, worries that companies would be able to deprive the government of access to domestic data and communications simply by storing it all overseas. That outcome, frankly, sounds kind of awesome.

This is a highly technical case that will probably produce a fairly specific ruling about Congress' intent with the Stored Communications Act and the limits of what that law authorizes. Do not expect a broad ruling about the either the limits of warrants under the Fourth Amendment nor a revised view of the limits of the Third-Party Doctrine that allows the government to access data about private citizens that is stored by tech companies and private firms.

Read the Justice Department's petition here.

'Administrative State Is THE Leading Threat to Civil Liberties of Our Era.'

Thu, 12 Oct 2017 16:30:00 -0400

"The administrative state is the leading threat to civil liberties of our era," says Philip Hamburger, the Maurice and Hilda Friedman Professor of Law at Columbia Law School and author of the recent books, Is Administrative Law Unlawful? (2015) and The Administrative Threat (2017). "We have a system of government in which our laws are made by the folks that we elect, and these laws are enforced by judges and juries in the courts, but we have within that an administrative state, a state that acts really by mere command and not through law." Hamburger argues that by reducing the role of elected officials to set policy, the administrative state, which has grown rapidly since World War II, disempowers blacks, women, and other minorities who have only recently gained full voting rights and political power. Before he left the Trump administration, former White House Chief Strategist Steve Bannon famously vowed to "deconstruct" the administrative state—the collection of bureaucrats, agencies, and unelected rule-making bodies who decrees and diktats govern more and more of our lives. And many of the president's picks at places such as the FCC, the FDA, the EPA, and the Department of Education seem to be doing just that: cutting regulations and policies that come not directly from Congress but from administrators who decide, say, that the FCC has the ability to regulate the internet as a public utility, and that so-called net neutrality is a good idea. Trump's appointee to the Supreme Court, Neil Gorsuch, is widely understood to be a critic of the administrative and some of best-known ruling challenged the validity of rules laid out by federal bureaucracies. Reason's Nick Gillespie sat down with Hamburger to discuss why the administrative state is unconstitutional, and what, if anything, can be done reduce its power. Edited by Ian Keyser. Introduction produced by Todd Krainin. Cameras by Jim Epstein and Andrew Heaton. Music "Integration Blues" by Javolenus Available at Under CC BY NC license Subscribe to our YouTube channel. Like us on Facebook. Follow us on Twitter. Subscribe to our podcast at iTunes. This is a rush transcript. Check all quotes against the audio for accuracy. Nick Gillespie: Let's start by defining administrative law in the administrative state. What does it do and where does it come from? Philip Hamburger: Administrative power can be administered many different ways. Some people use the phrase to describe all government power in executive, and that's rather too broad. It's indiscriminate. I use the phrase to describe extra-legal rulemaking and adjudication. Exercise of power to bind Americans, to control Americans, not through the pathways set out by the Constitution and acts of Congress and acts of the court, but through other edicts, typically from agencies. Gillespie: In your recent book, Is Administrative Law Unlawful, you liken the practice of administrative law to off-road driving, and you write, 'The problem examined here is thus not where the government is heading, but how it drives. To leave the roads laid out by the Constitution can be exhilarating, at least for those in the driver's seat. All the same, it is unlawful and dangerous.' So, administrative power, it's not that Congress doesn't make a law and then it gets implemented. That's not administrative power. Congress passes a law that says, 'we want clean air.' And then the EPA says, 'okay, in order to implement that law, we're coming up with all of these different aspects.' Hamburger: Right. The danger is what the agencies do. Congress certainly has power to enact all sorts of laws regulating us, and so this is not an argument against regulation. We can debate the merits of particular regulations. But rather, it's an argument against having the executive or independent agencies, or more or less, a part of executive agencies, make rules that bind us in the same manner as laws enacted by Congress. Gillespie: Right. Bu[...]

Supreme Court Considers: Can Cops Arrest You for Going to a Party Where You Don't Know the Host?

Wed, 11 Oct 2017 14:50:00 -0400

"Twenty-one people en masse arrested for trespassing for going to a party. Does that feel right?" asked Supreme Court Justice Sonia Sotomayor, in a case that sees District of Columbia cops on the hook for false arrest. Neither Sotomayor nor her SCOTUS colleagues seemed impressed with the city's contention that guests at a 2008 D.C. house party should have known they were trespassing. The guests had been invited there for a bachelor shindig, directly or secondhand, by a woman named Peaches, and they had little reason to suspect she was lying about having recently rented the house. "You are saying that anytime a policeman goes into a house and there's a party and people tell you, somebody invited me, and it turns out that that somebody didn't have a right to be in the house, you can arrest [the invited guests]?" Justice Stephen Breyer asked the city's attorney during oral arguments last Wednesday. When invited to a party at someone's home, "I don't ask to look at their lease," said Sotomayor. "I don't ask to—for them to establish, to my satisfaction or anyone else's, their right to be there. I assume if they're there, they can invite me in." It might seem silly that the Supreme Court is discussing a rogue bachelor party, but the case could have big implications for police accountability. The "Supreme Court should not further expand the doctrine of qualified immunity in the context of the Fourth Amendment's probable cause requirement," argues the American Civil Liberties Union. That would weaken Americans' ability "to hold government officers accountable for their unconstitutional actions," and would diverge from "the principles undergirding the Framers' intent in drafting the Fourth Amendment's prohibition on unreasonable seizures." Yale Law School filed a brief supporting the partygoers. Party at Peaches' Upon being called to the house by a complaint from neighbors, D.C. police "heard loud music playing inside" and "saw a man look out the window and then run upstairs" when they knocked, according to the city's summary of the case. Police claim the door was ajar and when they entered, there was "a strong odor of marijuana" and women were in their undergarments "with money hanging out [from] their garter belts." Some people were standing around drinking; some were getting lap dances. Police eventually determined that this was a party thrown by Peaches, who had hired the dancers, invited some guests (who invited guests of their own as well), and recently stepped out to go to the store. But while Peaches was in negotiations with the house's owner to rent the place (and may have even had keys), she had never actually sealed the deal on the lease and did not have permission to throw a party there—all things she admitted to the police when they called her from the party. Peaches did not implicate her guests in the scheme, and they claim that they didn't know of her deception (or, in some cases, didn't know who lived at the house but had no reason to suspect they were trespassing). Still, all 21 people at the house were arrested for unlawful entry and taken to the police station, where they were detained for several more hours. All 21 would be booked for disorderly conduct, though those charges were eventually dropped. The group filed a lawsuit seeking damages from the city and the arresting officers, alleging false arrest and violation of their Fourth Amendment rights. A district court sided with the partygoers, finding that D.C. police lacked probable cause to arrest them for unlawful entry. "Nothing about what the police learned at the scene suggests that [partygoers] 'knew or should have known that [they were] entering against the [owner's] will," wrote the court. A jury awarded each responded $35,000 to $50,000, with the city and officers Andre Parker and Anthony Campanale jointly liable for the total $680,000 tab. The city appealed, and in January the Supreme Court agreed to hear the case. At issue in District of Columbia v. Wesby is whether police had probable caus[...]

3 Supreme Court Cases to Watch in Fall 2017

Mon, 02 Oct 2017 09:50:00 -0400

The U.S. Supreme Court is back in session today after its summer break, and the new term is already shaping up to be an explosive one. Here are three cases to watch in the coming months: 1. Carpenter v. United States The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Yet according to the U.S. Supreme Court's 1979 decision in Smith v. Maryland, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Otherwise known as the third-party doctrine, this legal rule has been a great gift to law enforcement agencies on both the federal and state levels. Let's say the police want to know the email addresses of your correspondents, or the URLs of the websites you have visited. Under the third-party doctrine, the police do not need a search warrant (issued upon probable cause) to get that information from your internet service provider. But doesn't the idea of granting vast warrantless search powers to the police run afoul of the bedrock protections enshrined in the Fourth Amendment? The Supreme Court will grapple with those questions this term in Carpenter v. United States. At issue is whether the FBI violated the Fourth Amendment when it obtained, without a search warrant, the cellphone records of suspected armed robber Timothy Carpenter. With those records, law enforcement officials identified the cell towers that handled the suspect's calls and then proceeded to trace back his whereabouts during the time periods in which his alleged crimes were committed. That information was used against Carpenter in court. According to Carpenter and his lawyers, "carrying a smartphone, checking for new emails from one's boss, updating the weather forecast, and downloading directions ought not license total surveillance of a person's entire life." According to the Trump administration, "a cell-phone user has no reasonable expectation of privacy in business records created by his provider documenting the cell sites used to document his calls." Oral arguments in Carpenter v. United States have not yet been scheduled. 2. Christie v. National Collegiate Athletic Association According to the terms of the federal Professional and Amateur Sports Protection Act of 1992 (PASPA), it is illegal for "a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact" sports betting. The state of New Jersey, however, went ahead and legalized sports betting in certain casinos and racetracks by partially lifting its existing ban on the practice. According to the National Collegiate Athletic Association, the National Basketball Association, the National Football League, the National Hockey League, the Office of the Commissioner of Baseball, and the Trump administration, the state's legalization effort is illegal under PASPA. Put differently, Christie v. N.C.A.A. presents a clash between federalism and federal power. "Never before has congressional power been construed to allow the federal government to dictate whether or to what extent a State may repeal, lift, or otherwise modulate its own state-law prohibitions on private conduct," New Jersey told the Supreme Court in its petition for certiorari. "And never before has federal law been enforced to command a State to give effect to a state law that the State has chosen to repeal." PASPA is "an unremarkable exercise of Congress' settled power to regulate commerce in sports gambling," the sports leagues counter in their brief in opposition to the state's petition. "PASPA is a straightforward exercise of Congress' power to preempt the operation of state laws that conflict with federal policy on matters within Congress' purview." The Trump administration favors federal power in this matter too. PASPA "does not violate the Tenth Amendment because it neither compels States to regulate according to federal standards nor requires state off[...]

D.C. Circuit Won't Reconsider Decision Upholding the Right to Be Armed in Public

Fri, 29 Sep 2017 15:00:00 -0400

Yesterday a federal appeals court let stand a decision overturning the District of Columbia's tight restrictions on carrying guns in public, reinforcing a circuit split that invites the Supreme Court to settle the issue of whether the constitutional right to keep and bear arms extends outside the home. Last year a federal judge in D.C. said it does, and last July a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit agreed. Now that the full court has declined to rehear the case, only the Supreme Court can save the District's highly discretionary carry permit policy, which requires applicants to provide a "good reason" why they want to be armed. An ordinary resident's desire to defend himself does not count. In its decision last May, the D.C. Circuit panel concluded, based on historical evidence and the Supreme Court's reasoning in the landmark Second Amendment case District of Columbia v. Heller, that "the individual right to carry common firearms beyond the home for self-defense—even in densely populated areas, even for those lacking special self-defense needs—falls within the core of the Second Amendment's protections." Since "the law-abiding citizen's right to bear common arms must enable the typical citizen to carry a gun," the court said, the District's law is clearly unconstitutional, amounting to "a total ban on most D.C. residents' right to carry a gun in the face of ordinary self-defense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen." The U.S. Court of Appeals for the 7th Circuit reached a similar conclusion in 2012, when it overturned an Illinois law that prohibited most people (aside from police officers, security guards, and a few other exceptions) from carrying ready-to-use guns. That same year, by contrast, the U.S. Court of Appeals for the 2nd Circuit upheld New York's requirement that people seeking permission to carry handguns in public show "proper cause." In 2013 the U.S. Court of Appeals for the 3rd Circuit upheld a similar New Jersey law, requiring a "justifiable need" for a carry permit, and the U.S. Court of Appeals for the 4th Circuit upheld a Maryland law demanding a "good and substantial reason." Last year the U.S. Court of Appeals for the 9th Circuit upheld a California law requiring "good cause" for carrying a concealed weapon. "The Second Amendment does not protect the right of a member of the general public to carry concealed firearms in public," the court declared, noting that Heller mentions "prohibitions on carrying concealed weapons" as a kind of law that most 19th-century courts had deemed consistent with the Second Amendment. "There may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public. The Supreme Court has not answered that question, and we do not answer it here." In June the Supreme Court declined to hear an appeal of that decision, provoking strong objections from Justices Clarence Thomas and Neil Gorsuch. "I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen," Thomas wrote in a dissent joined by Gorsuch. "I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it....Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively." The D.C. Circuit has amplified that argument by confirming the stark disagreement among federal appeals courts about the scope of the right to bear arms.[...]

Trump Nominates Libertarian-Minded Texas Justice Don Willett to U.S. Appellate Court

Thu, 28 Sep 2017 16:20:00 -0400

(image) Texas Supreme Court Justice Don Willett has just been called up to the big leagues.

As Peggy Fikac of Express News reports, President Donald Trump will nominate Willett to fill one of two vacancies on the U.S. Court of Appeals for the 5th Circuit, the federal appellate court whose jurisdiction covers federal districts in Louisiana, Mississippi, and Texas.

Willett, who appeared on Trump's 2016 list of potential U.S. Supreme Court candidates, is a rising star in conservative and libertarian legal circles and a popular presence on Twitter. If he is successfully confirmed to the 5th Circuit, Willett would immediately rank as one of the most libertarian federal judges in the country.

Willett is best-known for his aggressive judicial stance in favor of individual rights and economic liberty. In the 2015 case of Patel v. Texas Department of Licensing and Regulation, for example, Willett lambasted state officials for requiring eyebrow threaders to obtain a costly government license before engaging in the harmless act of threading cotton string through customers' eyebrows in order to remove old hair and skin.

"This case is fundamentally about the American Dream and the unalienable human right to pursue happiness without curtsying to government on bended knee," he wrote. "It is about whether government can connive with rent-seeking factions to ration liberty unrestrained, and whether judges must submissively uphold even the most risible encroachments."

In Willett's view, both the U.S. Constitution and its Texas counterpart contain judicially enforceable protections for "the right to earn a living free from unreasonable government intrusion." In the interests of full disclosure, I should also note that Willett's Patel opinion favorably cites my 2014 book Overruled: The Long War for Control of the U.S. Supreme Court.

Willett has been equally outspoken when it comes to government malfeasance in the criminal justice realm. When the Texas Supreme Court refused to hear the 2014 asset forfeiture case Zaher El-Ali v. Texas, for instance, Willett filed a sharp and memorable dissent. "Does our Constitution have anything to say about a 'presumed guilty' proceeding in which citizens are not arrested or tried, much less convicted, but are nonetheless punished, losing everything they've worked for?" he complained.

The Trump administration deserves credit for this pick. Willett is a superb jurist and he will make an excellent addition to the 5th Circuit.

Supreme Court Agrees to Hear Case Against Compulsory Public-Sector Union Fees

Thu, 28 Sep 2017 10:55:00 -0400

(image) Today the U.S. Supreme Court agreed to hear a case that has the potential of delivering a death blow to the legal privileges enjoyed by public-sector unions.

The case is Janus v. American Federation of State, County, and Municipal Employees, Council 31. At issue is whether it is constitutional for state governments to compel public-sector workers to pay union fees as a condition of employment even when those workers are not union members.

The case was brought by Mark Janus, a state employee in Illinois who objects to paying mandatory fees to a union that he has refused to join. Janus argues that the state's scheme violates his First Amendment rights by forcing him to support political speech and activity that he does not wish to support.

Janus's overarching goal is to overturn the Supreme Court's 1977 precedent in Abood v. Detroit Board of Education, in which the Court approved mandatory public-sector union fees on the grounds that non-union "free riders" should have to contribute something toward collective bargaining activities that benefit them too. That ruling provided a massive boon to public-sector unions nationwide.

"The Court should take this case," Janus and his lawyers argued in their petition, "to overrule Abood and declare [mandatory public-sector union] fees unconstitutional."

In 2016 the Supreme Court nearly overturned Abood in a case called Friedrichs v. California Teachers Association. But after the death of Justice Antonin Scalia, the Court could not reach a majority decision and tied 4-4. Most court-watchers believe that if Scalia had not died, Abood would have been overturned by a 5-4 margin.

The Supreme Court is now back to its full strength. Will recent appointee Justice Neil Gorsuch provide the fifth vote needed for Janus to prevail and for Abood to be overruled? We'll find out later this term.

Will SCOTUS Let Fear of Sex Offenders Trump Justice?

Wed, 27 Sep 2017 00:01:00 -0400

According to the U.S. Supreme Court, locking up sex offenders after they have completed their sentences is not punishment, and neither is branding them as dangerous outcasts for the rest of their lives. Two cases the Court could soon agree to hear give it an opportunity to reconsider, or at least qualify, those counterintuitive conclusions. Karsjens v. Piper is a challenge to the Minnesota Sex Offender Program (MSOP), which since 1994 has confined more than 700 people who were deemed too "sexually dangerous" to release after serving their prison terms. Although these detainees are supposedly patients rather than inmates, in more than two decades only one of them has ever been judged well enough to regain his freedom. The Supreme Court has upheld post-prison commitment of sex offenders, accepting the pseudoscientific claim that a propensity to commit a certain type of crime is an illness that mental health professionals can cure (in this case, an illness defined by state legislators rather than psychiatrists). But the Court has warned that imposing punishment in the guise of treatment may be unconstitutional. The detainees challenging the MSOP, some of whom have completed treatment yet remain behind bars, argue that the program's track record and lack of regular risk assessments show it is punitive rather than therapeutic. "The MSOP is a regime of indefinite detention that provides no hope of release," say the Cato Institute and the Reason Foundation (my employer) in a brief siding with the petitioners. "It is functionally impossible to distinguish between Minnesota's civil commitment for sex offenders and imprisonment." In upholding the MSOP, the U.S. Court of Appeals for the 8th Circuit said the right not to be locked in a cage does not count as a "fundamental liberty interest" for "persons who pose a significant danger to themselves or others." Yet the main issue in this case is Minnesota's lack of interest in whether the plaintiffs actually fall into that category. The state admits at least some of them don't. Another case pending before the Supreme Court, Snyder v. Doe, is an appeal of a 2016 decision in which the U.S. Court of Appeals for the 6th Circuit ruled that Michigan's Sex Offender Registration Act, ostensibly a form of civil regulation aimed at protecting public safety, is so punitive that its requirements cannot be applied retroactively without violating the constitutional ban on ex post facto laws. The 6th Circuit noted that the law "has grown into a byzantine code governing in minute detail the lives of the state's sex offenders," including onerous restrictions on where they may live, work, and "loiter." Like Minnesota's preventive detention, Michigan's restrictions are imposed without regard to the current threat posed by any given sex offender, and there is little evidence that they make recidivism less likely. If anything, the appeals court noted, the opposite seems to be true. The 6th Circuit also pointed out that claims of "frightening and high" recidivism rates among sex offenders, although endorsed by the Supreme Court, have little basis in fact. The original source of the estimate cited by the Court calls it "absolutely incorrect" and says he is "appalled" that it has played an important role in upholding laws aimed at sex offenders. The Michigan case gives the Supreme Court a chance to reconsider its reliance on bogus recidivism numbers as well as its conclusion that the punitive effects of registries are merely incidental. As the 6th Circuit noted, that position becomes increasingly hard to maintain as states heap additional burdens on registered sex offenders, making it impossible for them to live normal lives without making the public measurably safer. The Supreme Court has let fear of sex offenders, a despised minority that includes many people who pose no real danger to their fellow citizens, trump trad[...]

When the Government Declared War on the First Amendment

Tue, 26 Sep 2017 06:00:00 -0400

One hundred years ago, the U.S. government declared war on the First Amendment. It all started with President Woodrow Wilson. On April 2, 1917, Wilson urged the nation into battle against Germany in order to "make the world safe for democracy." But the president also set his sights on certain enemies located much closer to home. "Millions of men and women of German birth and native among us," Wilson observed. "If there should be disloyalty, it will be dealt with with a firm hand of repression." That firm hand came in the form of the Espionage Act, which Congress passed in June 1917 and Wilson eagerly signed into law. Among other things, the act made it illegal to "convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies." That sweeping language effectively criminalized most forms of anti-war speech. If convicted of obstructing the war effort, the guilty party faced up to $10,000 in fines and up to 20 years in prison. With that law in place, Wilson's threats of repression soon became reality. In August, the federal government arrested and imprisoned Charles Schenck, the general secretary of the Socialist Party. His crime? Printing and distributing thousands of anti-war leaflets. Schenck maintained that the First Amendment clearly protected his right to speak out in that manner against U.S. militarism, but his arguments fell on deaf ears. On March 3, 1919, the U.S. Supreme Court upheld his conviction. "When a nation is at war," declared Justice Oliver Wendell Holmes Jr. in Schenck v. United States, "many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight." He waved away the First Amendment consideration. "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic," he wrote. Censors have been quoting that sentence ever since. One week later, Holmes dismissed the First Amendment yet again, this time upholding an Espionage Act conviction of the union leader and perennial Socialist Party presidential candidate Eugene Debs, who had been arrested in 1917 after giving a mildly anti-war speech at an afternoon picnic. "This man is the palpitating pulse of the sedition crusade," federal prosecutor F.B. Kavanaugh had declared during the trial. "One purpose of [Debs'] speech, whether incidental or not does not matter, was to oppose not only war in general but this war," Holmes wrote in Debs v. United States, "and that the opposition was so expressed that its natural and intended effect would be to obstruct recruiting." So much for "Congress shall make no law…abridging the freedom of speech." Debs would languish in prison until 1921, when he was finally pardoned by President Warren G. Harding. These old cases have important lessons to teach us today. For starters, they demonstrate why the exercise of fundamental rights should never be subject to majority approval. The Espionage Act was passed by a democratically elected legislature and enforced by a democratically elected president, and it was probably in tune with the will of most Americans at that time. But of course, the whole point of the First Amendment is to place certain rights beyond the reach of the majority. These cases also demonstrate the importance of an independent judiciary that is prepared to check the other branches of government when they go too far. It is no coincidence that Holmes was the justice who led the Court in trashing the First Amendment in Schenck and Debs. Far too often throughout his long career on the bench, he advocated judicial deference to majoritarian government. "A law should be called good," Holmes once wrote, "if it reflects the will of the dominant forces of the[...]

Is Minnesota's Indefinite Detention of Sex Offenders Punitive or Therapeutic?

Mon, 25 Sep 2017 13:45:00 -0400

Since 1994 the Minnesota Sex Offender Program (MSOP) has confined more than 700 people who were deemed too "sexually dangerous" to release after completing their prison sentences. Ostensibly they are no longer inmates but patients, undergoing treatment aimed at reducing their risk of recidivism. Yet in more than two decades, only one of these involuntary "patients" has been declared well enough to be released, and that did not happen until August 2016. Today the U.S. Supreme Court is considering whether to hear a challenge to this system of indefinite preventive detention, which effectively imposes life sentences on people who have already been punished for their crimes. The plaintiffs in the case, Karsjens v. Piper, include MSOP detainees who have completed their treatment yet remain behind bars because the program does not conduct regular assessments to determine whether offenders still meet the criteria for commitment. "In effect, Minnesota's failure to implement adequate periodic reviews establishes a death-in-confinement sentence without any of the safeguards of the criminal legal system," says the petition asking the Supreme Court to hear the case. "Hundreds of civilly committed people in Minnesota have never received a risk assessment, and hundreds more have risk assessments that are outdated and therefore invalid....The MSOP knows, for some of the people in custody, that they in fact satisfy discharge criteria, but the MSOP takes no action to facilitate their discharge." As one of the plaintiffs put it in 2015, "The only way to get out is to die." The Supreme Court has upheld post-prison commitment of sex offenders, accepting the pseudoscientific claim that a propensity to commit a certain type of crime is an illness that mental health professionals can cure (in this case, an illness defined by state legislators rather than psychiatrists). But the Court has warned that imposing punishment in the guise of treatment is a violation of due process. "If the civil system is used simply to impose punishment after the State makes an improvident plea bargain on the criminal side, then it is not performing its proper function," Justice Anthony Kennedy wrote for the majority in the 1997 case Kansas v. Hendricks. "[If] civil confinement were to become a mechanism for retribution or general deterrence...our precedents would not suffice to validate it." In a brief supporting the Karsjens plaintiffs, the Cato Insitute and the Reason Foundation (which publishes this website) argue that the MSOP's track record and lack of systematic assessments show it is punitive rather than therapeutic. "The MSOP is a regime of indefinite detention that provides no hope of release," the Cato/Reason brief says. "The most powerful proof that the MSOP's treatment approach is not meaningful is the fact that some individuals who successfully completed treatment never earned release and were never discharged....It is functionally impossible to distinguish between Minnesota's civil commitment for sex offenders and imprisonment....If any SOCC [sex offender civil commitment] scheme is punitive, Minnesota's is." U.S. District Judge Donovan Frank agreed with this critique in 2015, but last year his decision was overturned by the U.S. Court of Appeals for the 8th Circuit. Remarkably, the 8th Circuit declared that Frank had erred in assuming that freedom from confinement qualifies as a fundamental right, saying that is not true for "persons who pose a significant danger to themselves or others." Yet the main issue in this case is Minnesota's lack of interest in whether the plaintiffs actually fall into that category. In fact, the state admits that at least some of them don't. As the plaintiffs note in their petition, the 8th Circuit conflated two distinct questions: whether the right not to be locked in a cage for t[...]

The Libertarian Lawyer Who Battled Jim Crow

Wed, 20 Sep 2017 12:25:00 -0400

At Marginal Revolution, George Mason University economist Alex Tabarrok offers some interesting thoughts on Richard Rothstein's new book The Color of Law: A Forgotten History of How Our Government Segregated America. "Rothstein is no libertarian," Tabarrok writes, "but to his credit he does acknowledge that one of the few anti-segregation forces in the early twentieth century was the Lochner influenced reasoning of the Supreme Court." Tabarrok refers to the 1917 case of Buchanan v. Warley, in which the Court struck down a Louisville, Kentucky, ordinance that segregated residential housing blocks by race. The Court invalidated that Jim Crow regulation as an unconstitutional violation of property rights and economic liberty under the 14th Amendment. Here is how Rothstein summarizes Buchanan v. Warley in The Color of Law: The Court majority was enamored of the idea that the central purpose of the Fourteenth Amendment was not to protect the rights of freed slaves but a business rule: "freedom of contract." Relying on this interpretation, the Court had struck down minimum wage and workplace safety laws on the grounds that they interfered with the right of workers and business owners to negotiate individual employment conditions without government interference. Similarly, the Court ruled that racial zoning ordinances interfered with the right of a property owner to sell to whomever he pleased. The central holding of Lochner v. New York (1905) was that the 14th Amendment protects a fundamental right to economic liberty, including the right to liberty of contract. It is not an unlimited right; it is subject to reasonable government regulation. But in order for such regulation to pass muster in court, it must serve a legitimate and demonstrable public health or safety purpose. That same reasoning underlines the Court's opinion in Buchanan v. Warley. The libertarian lawyer Moorfield Storey argued and won Buchanan before the Supreme Court. A thoroughgoing individualist, Storey championed laissez-faire economics, denounced militarism, and opposed the rise of the populist Democrat William Jennings Bryan. In addition to serving as the president of the American Bar Association, Storey was a founder and president of the Anti-Imperialist League and was the first president of the NAACP. Storey led the NAACP's fight against the Louisville segregation law. In his brief to the Supreme Court, Storey (with co-lawyer Clayton B. Blakely) argued that the law "destroys, without due process of law, fundamental rights attached by law to ownership of property." The law's purpose was not "to prevent conflict and ill-feeling" between the races, as it claimed, but rather "to place the negro, however industrious, thrifty and well-educated, in as inferior a position as possible with respect to his right of residence, and to violate the spirit of the Fourteenth Amendment without transgressing the letter." Lochner v. New York was one of the legal authorities cited in support of those arguments. In its brief, the state of Kentucky argued that the federal courts had no business interfering with the power of local majorities to enforce their social and economic preferences via regulation. "Whether the legislation is wise, expedient, or necessary, or the best calculated to promote its object," the state maintained, "is a legislative and not a judicial question." The Supreme Court disagreed and nullified the Jim Crow law. It was a far-reaching decision. At that time, other municipalities around the country were considering or even implementing their own residential segregation schemes. Buchanan stopped those schemes once and for all. According to Storey's colleague at the NAACP, W.E.B. DuBois, Buchanan should be credited with "the breaking of the backbone of segregation." That is the landmar[...]

Will the Supreme Court Stop Politicians from Choosing Their Voters?

Mon, 18 Sep 2017 15:55:00 -0400

The Supreme Court may soon decide whether a state's electoral districts can be so stacked toward one party that they violate the Constitution. The case, Gill v. Whitford, revolves around the district boundaries established by the Wisconsin state legislature after the 2010 census. That map helped Republicans to win 60 of 99 legislative seats, even though Democrats won more votes statewide—1,417,359 to the GOP's 1,249,562. Such partisan redistricting is known as gerrymandering, after Massachusetts Gov. Elbridge Gerry, who in 1812 signed an egregious redistricting bill. (One of the voting districts it created resembled the shape of a salamander—thus, "gerrymander.") A new Harvard study, "Why Competition in the Politics Industry Is Failing America," argues that pervasive gerrymandering is one of the practices that is making our political system so dysfunctional. The authors, Katherine Gehl and Michael Porter, write: The politics industry is different from virtually all other industries in the economy because the participants, themselves, control the rules of competition. There is no truly independent regulation of politics that protects the public interest. Free from regulation and oversight, the duopoly does exactly what one would fear: The rivals distort the rules of competition in their favor. Examples of this includes controlling access to the general election ballot, partisan gerrymandering, and the Hastert Rule, which puts partisan concerns above legislating for the public interest. As Gehl and Porter point out, gerrymandering reduces competition by creating "safe seats" for one party, which reduces the accountability of elected representatives from gerrymandered districts since they answer chiefly to voters in their party primary. When the case comes before it on October 3, the Supreme Court may overcome its past reluctance to intervene in how the coequal legislative branch of government sets its electoral rules. Although the Court may be tempted to rule in favor of institutional changes such as establishing independent electoral commissions to decide district boundaries, recent research finds that such bodies aren't any fairer than state legislatures. Perhaps recent advances in social science can help the court derive a set of objective principles for creating fair voting districts. As I reported earlier, some researchers suggest that the "efficiency gap" be used as metric for determining constitutionally forbidden excessive gerrymandering. The efficiency gap is "the difference between the parties' respective wasted votes in an election, divided by the total number of votes cast." Votes are deemed "wasted" if they are cast for a defeated candidate or cast in excess of those needed to elect a winning candidate; if a party is simultaneously getting an unusually high number of landslide victories and an unusually high number of crushing losses, that would be a sign of gerrymandering. Another set of researchers have devised algorithms that draw voting district boundaries based on contiguity, geographical compactness, and a difference in population of no more than 0.1 percent. When comparing a set of randomly drawn maps using this algorithm to the actual electoral maps adopted by the state legislature, the researchers found in North Carolina that on average, 7.6 of the state's 13 congressional seats would have gone to Democrats, instead of just the four they actually won. If the Supreme Court declines to intervene, plaintiff's lawyer Danielle Lang tells Reuters, "There would be no way for voters to rein in partisan gerrymandering, no way for voters to take back control of their government."[...]

Ted Cruz, Sex Toys, and the Constitution

Thu, 14 Sep 2017 11:00:00 -0400

In 2007 Texas Solicitor General Ted Cruz urged the U.S. Court of Appeals for the 5th Circuit to reject a constitutional challenge to the state's ban on the sale of sex toys. "There is no substantive-due-process right to stimulate one's genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship," Cruz and his office argued. The 5th Circuit disagreed and struck down the sex toy ban. Yesterday on CNN, Cruz was asked about that case. "I spent five and a half years as the solicitor general in Texas. I worked for the attorney general. The attorney general's job is to defend the laws passed by the Texas legislature," he told host Dana Bash. "One of those laws was a law restricting the sale of sex toys. A stupid law. Listen, I am one of the most libertarian members of the Senate. I think it is idiotic....I am saying that consenting adults should be able to do whatever they want in their bedrooms." Do those comments mean that Cruz now thinks that Texas took the wrong legal position in the case? Does he think that the 5th Circuit got it right when it struck down the sex toy ban? Not necessarily. The underlying question in the case was whether federal courts can use the Due Process Clause of the 14th Amendment—which says that states may not deprive any person of life, liberty, or property without due process of law—to invalidate a duly enacted state regulation. That underlying question has been the driving force behind some of the biggest cases in American constitutional law. In 1905, for example, the Supreme Court was asked whether a New York law forbidding bakery employees from working more than 10 hours a day or 60 hours a week violated the Due Process Clause. The Court ruled that it did and struck down the offending provision in Lochner v. New York. Likewise, in 1965 the Supreme Court was asked whether a Connecticut law that forbid the distribution of birth control devices to married couples violated the Due Process Clause of the 14th Amendment. The Court ruled that it did and struck down the offending provision in Griswold v. Connecticut. Which brings us back to Ted Cruz. Two years ago—long after he stopped being professionally obliged to defend the laws of Texas—Cruz derided both Lochner and Griswold as "judicial activism," saying they demonstrated the Supreme Court's "long descent into lawlessness" and its "imperial" misuse of the 14th Amendment. So if Cruz believes that the states have the lawful power to forbid bakery employees from working long hours, and if he believes that the states have the lawful power to prohibit the distribution of birth control devices to married couples, why wouldn't he also believe that the states have the lawful power to outlaw the sale of sex toys? It's nice to learn that Cruz personally believes that "consenting adults should be able to do whatever they want in their bedrooms." But Cruz also seems to think that state and local governments have broad powers to prevent consenting adults from buying sex toys for their personal use in the privacy of those bedrooms. One last point: When a lawyer or a judge calls a law "stupid," don't assume that person means that the law is unconstitutional and should be invalidated by the courts. During Elena Kagan's 2010 Senate confirmation hearings, for example, Sen. Tom Coburn (R-Okla.) asked the Supreme Court nominee whether she thought Congress possessed the constitutional power to force every American to "eat three vegetables and three fruits every day." "Sounds like a dumb law," Kagan replied. She then explained why that did not make it an unconstitutional law. Ted Cruz appears to be using the same rhetorical approach when it comes to his position on sex toys. Related: Why Lochner is[...]

'I'm Appalled,' Says Source of Phony Number Used to Justify Harsh Sex Offender Laws

Thu, 14 Sep 2017 09:15:00 -0400

A New York Times "op-doc" posted this week zeroes in on a persistent myth that has helped inspire and sustain harsh policies aimed at sex offenders: the idea that their recidivism rate is "frightening and high," as Supreme Court Justice Anthony Kennedy put it in a pair of cases decided a decade and a half ago. David Feige, a former public defender who directed Untouchable, a 2016 documentary about sex offenders, shows how an uncorroborated assertion in a 1986 Psychology Today article continues to influence the politicians who pass laws and the judges who uphold them. In McKune v. Lile, a 2002 decision that upheld a mandatory prison therapy program for sex offenders, Kennedy said "the rate of recidivism of untreated offenders has been estimated to be as high as 80%," a number he called "frightening and high." He repeated that claim the following year in Smith v. Doe, which upheld retroactive application of Alaska's registration requirements for sex offenders. As of 2015, according to a review published in Constitutional Commentary, Kennedy's phrase had been echoed in 91 judicial opinions and the briefs filed in 101 cases. Yet there was never any evidence to support Kennedy's assertion, and research conducted during the same period when it was proliferating indicates that it is not even remotely true. As Feige notes in a commentary that accompanies his video, "Nearly every study—including those by states as diverse as Alaska, Nebraska, Maine, New York and California as well as an extremely broad one by the federal government that followed every offender released in the United States for three years—has put the three-year recidivism rate for convicted sex offenders in the low single digits, with the bulk of the results clustering around 3.5 percent." Studies covering longer periods find higher recidivism rates, but still nothing like 80 percent, even for high-risk offenders. The authors of the Constitutional Commentary article, Ira Ellman and Tara Ellman, found that the original source of the 80-percent figure—which Kennedy apparently got from Solicitor General Ted Olson, who cited a 1988 Justice Department handbook—was a 1986 Psychology Today article by Robert Longo, a counselor who ran a treatment program at an Oregon prison, and Ronald Wall, a therapist who worked for him. "Most untreated sex offenders released from prison go on to commit more offenses," they wrote, explaining the value of the work from which they earned their livelihoods. "Indeed, as many as 80% do." As Ellman and Ellman pointed out, it was "a bare assertion" with "no supporting reference." Longo himself repudiated the estimate in a March 2016 interview with Joshua Vaughn, a reporter at the Carlisle, Pennsylvania, Sentinel, saying it does not accurately reflect recent research and should not be used as a basis for public policy. In Feige's video, Longo says it is "absolutely incorrect" to suggest that anything like 80 percent of sex offenders commit new crimes after serving their sentences. That number, he says, was the high end of the range indicated by research at the time, although he once again fails to cite any actual studies. "You don't cite popular psychology magazines" as a basis for upholding laws, Longo says. "It's not a scientific journal. I'm appalled that this could happen. This is not my intent." Feige also tracked down Barbara Schwartz, the psychologist who wrote the 1988 DOJ manual that cited Longo's article and was in turn cited by Olson. "I couldn't find any" information on sex offenders' recidivism rates, Schwartz says, "so basically I just made up a model." She had a grand total of six references, including a dictionary and "the paper that Rob Longo did for Psychology Today." S[...]

Justice Department Takes Baker's Side in Gay Wedding Cake Case Before Supreme Court

Thu, 07 Sep 2017 18:45:00 -0400

The Department of Justice under President Donald Trump is taking the side of a Colorado baker who declined to make a cake for a gay couple. The baker, Jack Phillips of Masterpiece Bakeshop in Lakewood, Colorado, is the plaintiff in a case scheduled to be heard by the Supreme Court this fall. The state's civil rights commission ruled that Phillips violated Colorado's public accommodations law and engaged in discrimination for refusing to bake a wedding cake for a same-sex couple. Phillips has argued that his religious beliefs oppose same-sex marriage recognition. Forcing him to make a wedding cake for a gay couple was compelling him to participate in the couple's wedding and that the act of crafting a wedding cake—not merely just selling one—is expressive activity protected by the First Amendment. Trump's Justice Department agrees. In a filing with the Supreme Court today, the Justice Department argues that traditionally public accommodation laws had not in the past run afoul of the First Amendment because they were neutral to content and focused on conduct. A gas station couldn't refuse to sell fuel to a person because he or she is black, for example. But there's no message in the process of selling gas, so there's no compelled speech. Here, the Justice Department argues, the making of a wedding cake is an expressive activity, and the court needs to engage in heightened scrutiny of the First Amendment issues: A public accommodations law exacts a greater First Amendment toll if it also compels participation in a ceremony or other expressive event. That participation may be literal, as in the case of a wedding photographer who attends and is actively involved with the wedding itself. Or that participation may be figurative, as when a person designs and crafts a custom-made wedding ring that performs an important expressive function in the ceremony. Either way, such forced participation intensifies the degree of governmental intrusion. Read the brief here. The Justice Department's argument is very narrow. It is not making a case for freedom of association, whereupon businesses would have a general right to decide with whom to do business. The filing is very specific that in this case and in similar cases involving expressive activity (photography, floral arrangements), the First Amendment of the business owners are violated if they're compelled by the law to participate by producing goods or offering their services. And that's really what the Supreme Court will be considering in this case. Is the act of baking a cake a form of expressive activity and therefore protected by the First Amendment? We'll get a sense of what the justices think when they hear the case later this year. The Reason Foundation (the non-profit think-tank that produces this site and publishes Reason magazine) is in agreement with the Justice Department in this case. They've submitted a brief asking the Supreme Court to consolidate this case with a petition by a florist in Washington State who is also being punished for declining to provide arrangements for a same-sex wedding. Read about that case here. Read the new, additional brief asking the Court to find in the bakery's favor here.[...]