Is the “Long Game” a “Fatal Conceit,” or Judicial Restraint?

Josh Blackman has written a post on “The Fatal Conceit of Chief Justice Roberts’s ‘Long Game.’” In short, Josh argues that “all of the slow incrementalism that has characterized the Roberts Court presupposes a stasis that is impossible.” As Josh observes, Justice Scalia’s recent death resulted in a 4-4 split in Friedrichs and may soon have similar effects in Fisher II and other cases, thereby illustrating that the Chief’s “plans may never go to fruition” and so have gone “awry.” This reasoning assumes that the Chief’s ultimate inability to issue desired decisions is a defeat or failure.

But recent events don’t necessarily cast doubt on the Court’s approach in the years leading up to Friedrichs and Fisher II. While it’s possible that the recent pattern of postponing major decisions was simply a strategy for achieving desired outcomes with minimal criticism, it’s also possible that the justices have aspired to certain norms of judicial responsibility. As a result, the Chief and other justices may have no regrets about delaying big decisions, even if it turns out that the big decisions never come to pass.

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“The Right of the People to Be Secure in Their [Encrypted] Effects”

A couple of weeks ago, I wrote a post arguing that the Fourth Amendment should be part of the Apple iPhone litigation. My basic point was to criticize current Fourth Amendment doctrine, which focuses so extensively on individual privacy that it seems to exclude power- and security-based arguments that are central to the litigation. This post renews my argument in light of the government’s recent filing in the San Bernardino case.

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“Argument analysis: Seeking a recusal rule that the Justices can live with”

Yesterday, SCOTUSBlog ran my argument analysis for Williams v. PA. Here’s the first paragraph:

The oral argument in Williams v. Pennsylvania illustrated the difficulty of fashioning recusal rules that are both fair and administrable. Representing petitioner Terrance Williams, attorney Stuart Lev plausibly emphasized that “this is an extreme and rare case.” After all, Williams’s allegations of prosecutorial misconduct had been rejected by a panel that included the very prosecutor who’d approved the capital charge in Williams’s case. But as Justice Samuel Alito observed early and often during the argument, “The problem that is presented by this case is where this constitutional line is going to be drawn.” That problem is extra difficult for the Justices, because any rule they adopted would necessarily apply to themselves. Ironically, constitutional rules regarding judicial conflicts of interest must themselves be fashioned by somewhat conflicted jurists.

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Why the Fourth Amendment Should Be Part of the Apple Case

The Apple iPhone case is the latest example of the classic tension between law enforcement and personal security, as Apple’s recent court filing has pointed out. Yet the constitutional provision whose text and history most clearly speak to that tension—the Fourth Amendment—is nowhere to be found in the litigation. This omission illustrates the need for a shift in the focus of Fourth Amendment law: from individual privacy to governmental power.

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“When must a prosecutor-turned-judge recuse from a capital case?”

I recently wrote a SCOTUSBlog preview for Williams v. Pennsylvania, which is being argued next week. Here’s the first paragraph:

Can a prosecutor first approve a capital-punishment charge and then, after becoming a judge, adjudicate the defendant’s claim that the prosecutor’s own office had engaged in misconduct? That question is at the core of Williams v. Pennsylvania, which the Court will hear next week. The case will likely be a narrow win for the defendant. But the case is interesting in part because a narrow, formal result isn’t entirely satisfying. Though the emerging constitutional law of recusal has focused on relatively extreme cases, the underlying logic of those decisions could be more broadly applicable – potentially reaching even the Justices of the U.S. Supreme Court.

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The New Supreme Court and the Jurisprudence in Exile

During the past 20 or so years, the Supreme Court’s more liberal justices have created a kind of jurisprudence in exile. This is most apparent in areas like campaign-finance, sovereign immunity, the Second Amendment, and taxpayer standing in Establishment Clause cases, where more conservative majorities have repeatedly defeated exasperated four-Justice dissents. A similar point could be made about areas like abortion rights and the exclusionary rule, where there are sometimes defections but also 5-4 splits in key cases.

Yet the old five-Justice bloc is no more, and a new one might soon arrive. Let’s assume something that seems plausible but remains very far from certain—namely, that Justice Scalia’s ultimately confirmed replacement has a judicial philosophy that resembles Justice Sotomayor’s or Justice Kagan’s. And let’s further assume that the resulting nine-Justice Court retained the same personnel for a significant period of time. Would the Supreme Court suddenly disregard Citizens United and other controversial rulings, in favor of the dissenting opinions in those cases? Would the jurisprudence in exile reclaim the throne?

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Yale Law Journal Posts Submission Data

The Yale Law Journal has posted an interesting report entitled “Journal Releases Guidelines and Data on When To Submit Articles and Essays.” The basic empirical showing is that “the spring submissions cycle is increasingly front-loaded, with a growing percentage of pieces submitted in the first half of February.”

If you give an academic a cookie, or data, he’s likely to ask for more. Perhaps the most important sentence in the YLJ report is the most cryptic: “[O]f the dozen or so publication offers that the Journal makes in the spring cycle, historically a majority have been made in March or later.” Does “historically” mean to encompass only the last few years? And, do the March offers tend to result from mid- to late-February submissions? That information would shed light on whether the timing of a submission affects acceptance.

That said, the report does raise the possibility that early submissions may be disadvantaged. The report raises this point by noting that one “downside” of early submission is slower review. According to the report, “The front-loaded cycle places a significant strain on the Articles & Essays Committee.” This statement seems to assume that a “front-loaded cycle” is one in which most submissions are in February. While submission levels seem quite high in early February, they get even higher in mid to late February. So, to avoid the asserted rush, it would seem necessary to submit in March – by which point, other journals may have filled valuable spots.

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