The Supreme Court’s New Filing System

Today, the Supreme Court has not only initiated an e-filing system, but has also begun making e-filed documents immediately available on the Court website. For the first time, the Court’s filing system is more transparent than the PACER system long used by lower federal courts.

As someone who has previously written more than one complaint about the Court’s shortcomings on this score, I just want to congratulate the Court for taking this step. I am most excited about the prospect that the Court’s non-merits actions—like emergency stay applications in cases involving executions and elections—will become visible in time for greater public discussion.

It will be interesting to see if other components of the federal judiciary now follow the Court’s lead. For example, will PACER become more easily accessible, or accessible free of charge?

First posted on Prawfs.

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DC v. Wesby and Fourth Amendment Perspective

Last month, the Supreme Court heard argument in DC v. Wesby, the justices’ latest case on Fourth Amendment civil suits for damages. This time, the facts involve the arrest of twenty-one people who were attending what even their attorneys call a “licentious” house party. Wesby draws into sharp relief the role of perspective in Fourth Amendment litigation. As Justice Kagan noted during oral argument, the appropriate legal rule seems to change depending on whether we adopt the perspective of the arresting officers or the party-going arrestees.

In a forthcoming paper entitled “Fourth Amendment Fairness” (draft available here), I argue for a perspectival shift in Fourth Amendment doctrine that is consistent with the line of reasoning that Kagan and other justices explored in the Wesby argument. The paper provides a “contractualist” account of Fourth Amendment fairness in general; but in this post, I’ll focus on the perspectival issues raised in Wesby, without all the philosophical trappings.

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Does Positive Law Speak to the Threshold Fourth Amendment Issue in Carpenter?

In Carpenter v. United States, the Supreme Court will soon consider whether there is a reasonable expectation of privacy in “cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days.” Some courts have found guidance in the Wireless Communication and Public Safety Act of 1999, which provides statutory privacy protections for customers’ call location records. Because this issue is one of the less commented-on aspects of the case, I’d like to explore and draw attention to it.

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The Nine Lives of Bivens (SCOTUS Symposium)

In Ziglar v. Abbasi, the Court ruled against plaintiffs seeking relief from allegedly unconstitutional discrimination and abuse in the wake of 9/11. Perhaps the largest flashpoint in the case concerned the Court’s treatment of Bivens, a landmark ruling from 1971 that created a cause of action for damages for Fourth Amendment violations by federal officers.

Over the pasts few days, critics of Abbasi have argued that Bivens is now “all but overruled” and “all-but limited … to its facts.” But similar claims have been made before—and will likely be made yet again. If Bivens has nine lives, it seems to have two or three left to go.

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Remedying Removal: Mueller and the CFPB Case

Many commentators have discussed whether President Trump could lawfully fire Special Counsel Mueller, despite a DOJ regulation providing that the special counsel may be removed only for cause by the Attorney General. But even if the president lacked lawful authority to remove Mueller, would any meaningful judicial remedy follow? Remarkably, the DC Circuit recently discussed this general issue during the en banc oral argument in the CFPB removal case.

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Morales-Santana’s Many Judgments (SCOTUS Symposium)

Yesterday, Morales-Santana held that an individual had been denied citizenship based on a gender-discriminatory law that violated equal protection. Yet the only practical effect appears to be that, in the future, even fewer people will obtain citizenship. That outcome has already prompted a lot of commentary, including from Howard, Ian, and Will. Here, I add two points. First, the Court’s exclusively “prospective” remedy appears not to have fully remedied the asserted discrimination, even on the Court’s theory. Second, the Court’s limited grant of relief interestingly blurs the traditional distinction between precedent and judgment.

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Blaming Dissents in Gant and Lightfoot

The Supreme Court sometimes abandons longstanding or widespread readings of its own precedents by blaming a dissenting opinion. “Our previous majority was fairly clear,” the Court effectively says, “except that the dissent in the relevant case cast a spell over readers, leading them astray.” This practice of blaming dissents is both interesting and consequential, appearing for example in Gant as well as the recent decision in Lightfoot.

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