Today, SCOTUSblog posted my tribute to Justice Kennedy, entitled “Seeing Justice Kennedy Think.”
Here is how it starts:
When I began law teaching, I asked Justice Anthony Kennedy for advice. I had clerked for him a few years before and knew that he had taught hundreds of law students in America, Europe and elsewhere. His advice: “Let them see you think.” For Kennedy, engaging with hard issues – deliberately, honestly, and independently – is a critical skill to teach by example. He applied a similar approach to judging.
Supreme Court practice will not be the same without Kennedy, and something will be lost as a result. Because of his pivotal position on the court, lawyers and commentators have spent years, even decades, trying to get inside Kennedy’s mind. That habit led to a lot of false predictions and fawning citations to his opinions — but it had a silver lining. It forced the profession to think sympathetically about principled positions that cut across the familiar views expressed in party platforms and ACS or Fed Soc conventions.
And here is how it ends:
[…] Kennedy represents a distinctive judicial philosophy marked by two words: freedom and dignity. Those values are united for Kennedy in that each requires and demands the other. To lead a dignified life is to speak, worship, work and love freely. Other values, including equality, responsibility, and, yes, civility are all important but derivative. Kennedy wants choice first, even if it means choices that go wrong.
By letting us see him think through these complex issues, Kennedy helped reveal the tensions and judgment calls that make the hard cases of constitutional law so hard. And because he not only surfaced those difficulties but also offered his own approach to them, Kennedy’s views will abide in the law for years to come. The next justice would do well to take Kennedy’s work seriously. And he or she almost certainly will.
Hughes v. United States is out, and it’s a disappointment for those of us following the law of fragmented decisions. Though the Hughes oral argument featured by far the Court’s most thorough discussion of the Marks rule, the justices ultimately chose not to address the precedential significance of 4-1-4 decisions like Freeman v. United States. Instead, the Court revisited the merits and set a new majority rule, much as the Court has done in some past decisions that posed Marks questions. Interestingly, however, the Court’s ruling still managed to undermine one of the main defenses of the Marks rule.
Regular readers know that I oppose the Marks rule, as explained in a forthcoming article and an amicus brief in Hughes. And there were several reasons to think that, if the Court was ever going to address the Marks rule’s problems, this case would be the time to do so. The parties and amici had identified numerous circuit splits on how to apply the rule. The Court had granted review on not one but two Marks questions. And the US Solicitor General had specifically requested that the Court issue a Marks ruling to end the confusion. Yet the Court said not a word to alleviate the problem.
The Justices often intone that theirs is “a court of review, not of first view,” but last Monday’s decisions illustrate the complexities underlying that maxim. In one case, the Court applied the “first view” principle without discussion. In another, it explained its choice not to follow the principle. And, in a third case, the justices divided over whether to follow the principle. These decisions illustrate that the “first view” principle is more discretionary than it often appears—and that the Court could do more to explain what guides its choices in this area
In particular, Monday’s opinions suggest that a Catch-22 has arisen. When one party raises a new position, the opposing party is apparently placed in a bind. If the opposing party responds on the merits, the fact that the issue is “fully briefed” could counsel in favor of entertaining it. But if the opposing party declines to address the new position, then the Court might entertain it precisely because the opposing party “explicitly chose not to grapple with it.” Either way, the opposing party’s reaction can be cited as a reason to rule on the new position, notwithstanding the “first view” principle.
I recently write the SCOTUSBlog opinion analysis for Dahda v. United States. Here’s how my post opens and ends:
The Supreme Court’s brisk opinion in Dahda v. United States awarded the government yet another exclusionary rule victory, this time in the context of a statutory provision rooted in the Omnibus Crime Control and Safe Streets Act of 1968. The justices ruled unanimously (with Justice Neil Gorsuch recused) against a defendant’s request for suppression of evidence collected under a wiretap order that authorized surveillance outside the territorial jurisdiction of the district judge who issued the order. But while the court’s decision helpfully clarifies the law, it generally tries to avoid big questions, leaving deeper debates about statutory exclusionary rules for another day.
[A]ny view of what it means for a wiretap order to be “insufficient on its face” raises the question, “Insufficient for what?” For example, an order could be facially insufficient to authorize: any surveillance at all, the surveillance that it purports to authorize, or the surveillance that is actually introduced at trial. The court seems largely to embrace the first type of insufficiency, while only indirectly touching on the other possibilities. But some readers might think that the choice among the various options is difficult—and not dictated by the dictionary definition of “insufficient.” So, consistent with the oral argument and exclusionary case law more generally, the court was guided by what, in its view, “makes sense” of the various suppression provisions involved.
Later this month, the Supreme Court will hear argument about the Marks rule, which holds that a fragmented Court decision stands for the “position taken by those members who concurred in the judgments on the narrowest grounds.” When the Court granted cert in Hughes v. United States, I expressed my hope that the briefing would explore not just how best to apply the Marks rule, but also whether the rule is worth retaining at all.
Happily, the now-completed briefing does explore that more fundamental question. The petitioner argues in the alternative that Marks be abandoned, and the United States attempts to rebut that view. I have also filed an amicus brief (now posted here on SSRN) that makes the case for abandoning the Marks rule. There are several additional amici, including a pro-Marks professors’ brief authored by Maxwell Stearns and a brief on the underlying merits question on behalf of Douglas Berman.
Yesterday, SCOTUSBlog posted my oral argument analysis for Dahda v. United States, which asks the Court to decide whether a wiretap order is “insufficient on its face” under a statutory exclusionary rule. My preview post offered some thoughts about whether statutory exclusionary rules should be read broadly, as well as about whether purposive reasoning might prove more decisive in Dahda than textual exegesis.
That last, purposive line of thought became a focus of the oral argument. Here’s a relevant passage from my post on the oral argument:
[W]hen [a wiretap] order is invalid, it can be viewed as insufficient for what it purports to authorize. But just because invalidity can be understood as a form of insufficiency doesn’t mean it has to be. And some justices seemed attracted to the government’s view of insufficiency because it would yield results that accorded with Congress’s apparent purposes.
In an especially interesting exchange, Justice Alito suggested that Title III “was basically anti-crime legislation.” Then, stepping away from the statutory text, Alito tried to imagine what the enacting Congress would have done with the case at hand: “do you think that if this situation had been presented to the Congress that enacted” the law, “that they would have said, yes, in this case, Mr. Dahda can’t be convicted even though what happened here had no effect whatsoever on him?” That question called for an imaginative reconstruction of Congress’s collective purposes, as applied to the facts in Dahda’s case. Mr. Shanmugam predictably replied with his contrary view of the enacting Congress’s goal—namely, “to compel compliance, strict compliance with the requirements of the statute.” And Shanmugam pointed to a Senate report that, in his view, supported that point.
And here’s how my post ended:
During their final remarks, the advocates framed the case more in terms of statutory purpose and policy than text. Mr. Tripp chose to “admit that this statute is ambiguous” and that the Court “could potentially read it” as Dahda suggested. That fair-minded observation seemed designed to let the justices engage their intuitions about what kind of rule would—as Justice Ginsburg had said—“make good sense.” And Tripp emphasized that a broad ruling in favor of Dahda might “be very damaging” for government investigations and prosecutions. Mr. Shanmugam responded in part by offering a different view of Congress’s goals. According to Shanmugam, “we can be certain” that Congress wanted “to ensure strict compliance with the statute’s requirements, and it created a muscular suppression remedy in order to effectuate that goal.” Dahda’s case may ultimately depend less on the statutory text than on which picture of legislative purpose the Court finds attractive.
Over at SCOTUSBlog, I recently wrote an argument preview on Dahda v. United States. Here’s how the post starts:
Dahda v. United States arguably poses a clash between two of the Supreme Court’s recent passions: strict adherence to statutory texts and cutting back on the exclusionary rule. This tension is unusual because the court’s exclusionary-rule decisions typically involve Fourth Amendment violations. By contrast, this case involves Title III of the Omnibus Crime Control and Safe Streets Act of 1968. And that statute contains an explicit exclusionary rule.
The post discusses several important issues in the case, including points bearing on good faith and warrant severability, before raising the possibility that statutory exclusionary rules should be read relatively broadly:
What makes this case interesting is that it invites the Supreme Court to think about the exclusionary rule in a context in which Congress has explicitly provided for it. That changed context creates room for arguments that aren’t available in Fourth Amendment cases. For example, there may be good reason to construe statutory exclusionary rules broadly, on the theory that the government has more ability than criminal defendants to lobby Congress and fix any judicial misinterpretations. That line of reasoning could support a “canon in favor of statutory suppression” as a criminal-procedure counterpart to the rule of lenity.
Further, the presence of a statutory exclusionary rule could alleviate some of the legitimacy concerns that have led the Supreme Court to cut back on Fourth Amendment suppression. Although some judges and writers (myself included) argue that the Constitution requires an exclusionary rule, the court has long expressed qualms about whether the rule has a firm legal foundation. So perhaps the court should be more willing to suppress when the political branches have explicitly chosen to put suppression on the table. Yet there is at least some wiggle room in the statutory text. And when searching for Congress’ aims, the justices may be drawn to their own views of when suppression is appropriate.