Justice Sotomayor on Signaling in the Contraception Cases

One of the most interesting aspects of the ongoing litigation over the Affordable Care Act’s contraception mandate concerns “signals.” As I’ve defined that term, signals occur when the Justices act in their official, adjudicatory capacities without establishing conventional precedent, but while nonetheless indicating some aspect of how lower courts should decide cases. In general, signals should guide lower courts when conventional precedent is ambiguous (see this post and this article). In her Zubik concurrence yesterday, Justice Sotomayor addressed signals’ increasingly salient role. But there is both more and less to Sotomayor’s opinion than meets the eye.

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Two Ways of Linking “Positive Law” and the Fourth Amendment

In recent years, the Supreme Court has shown increased interest in the connection between the law of property and the Fourth Amendment. In a terrific new article, Will Baude and James Stern have explored that connection to defend “the positive law model of the Fourth Amendment.”

Will and James’s article is very illuminating, but I disagree with their use of the positive law to set a ceiling on what the Fourth Amendment can do. I explain my disagreements in a response piece that proposes an alternative approach, which I call “the positive law floor.”

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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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