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Category: General Law


Pragmatism and Formalism in Noel Canning

This is a guest post from David Arkush of the University of Richmond School of Law. He has written and article and an essay on the Recess Appointments Clause, and he is joining us to blog about NLRB v. Noel Canning.

I plan to comment on a few different aspects of NLRB v. Noel Canning in the coming days—the extent of formalism and pragmatism in the majority opinion, the roles of historical practice and original meaning, the quality and nature of the originalist analysis, and a way in which the Court could have reached a similar conclusion by slightly better means.

To take the first of those issues, the decision is already being characterized as a victory for pragmatism over formalism. I think that’s an overstatement. The pragmatism is clear enough. The Court’s foremost pragmatist, Justice Breyer, wrote the opinion, and it steers a middle path between polar extremes. The Solicitor General argued that the President has the power to determine whether the Senate is in recess, a rule that would apparently permit the President to sidestep the Senate’s advice and consent routinely. Noel Canning argued that the Recess Appointments Clause authorizes appointments only during the annual recess between official Senate sessions and only for vacancies that arise during that break, a position that would virtually write the Clause out of the Constitution. Breyer, joined by Kennedy and the remaining liberals, rejects both of these arguments. The majority codifies a reasonable, pragmatic-seeming middle ground on which the political branches had more-or-less settled in recent decades: A constitutional “recess” is not limited to any particular type of break, but it has a minimum duration. Three days is too short. Nine days is also too short—unless there is a genuine, qualifying emergency.

All this said, there are striking exceptions to the Court’s pragmatism. First is the three-day minimum for recesses, which contradicts the Court’s pragmatic reasoning without a (pragmatic) justification. Three days appears to be a strict limit, with no exceptions. See Slip. Op. 19 (“We agree with the Solicitor General that a 3-day recess would  be  too  short.”). By contrast, the Court holds that ten days is only “presumptively” too short. In some “very unusual” circumstance, such as a “national catastrophe . . . that renders the Senate unavailable but calls for an urgent response,” the President could make unilateral appointments during a break shorter than ten days but longer than three. Id. at 21. The Court’s reasoning here applies no less to three-day breaks. One might respond that the Senate can reconvene more readily on a mere weekend because Senators are still in Washington. But that is mistaken. Many senators, if not most, go home on the weekends.

So what is the justification for the three-day minimum? Will Baude might say it’s a countervailing pragmatic concern—the Court is preventing the president from making appointments on “nights and weekends.” But the majority doesn’t say that. To the contrary, it expresses some skepticism that the President would engage in unbridled abuse, id. at 25, and in another context, some faith that the political branches can usually work things out among themselves despite inevitable frictions, id. at 39-40. The Court says only that a three-day recess is de minimis, analogizing to the Adjournments Clause, which requires each house of Congress to obtain the other’s permission before adjourning for more than three days. Id. at 19-20. So the majority’s decision is pragmatic to a point—three days—before it tosses out its pragmatic reasoning and draws a hard rule that apparently rests on a loose constitutional analogy. This move isn’t formalist. But it’s an abrupt, unexplained, and inviolable exception to the Court’s otherwise pragmatic reasoning. Perhaps it’s the result of an internal compromise.

Second, the Court’s analysis of the Senate’s pro forma sessions is unambiguously formalist. The Court states that it must defer heavily to the Senate’s authority to determine “how and when to conduct its business,” Slip. Op. at 34, a conclusion that flows directly from the Constitution, which expressly grants the Senate control over “the Rules of its Proceedings.” Then the Court reads the Senate rules carefully and strictly, concluding that under its own rules, the Senate’s pro forma sessions were sessions as a matter of law. Slip Op. at 35-59. It expressly rejects the Solicitor General’s request that the Court “engage in a more realistic appraisal of what the Senate actually did.” Id. at 38.

I was pleased to see the Court take deference to the Senate seriously—at least on the question of pro forma sessions. Gerard and I were some of the lone voices arguing that the Court should defer to the Senate’s view of its own proceedings. Gerard argued that the Court should take the Senate at its word when it said it held sessions, and therefore the appointments were invalid. I argued that the Court should look beyond procedural appearances and recognize that, in this instance, deference to the Senate likely meant approving the appointments. The Senate majority appears to have supported the appointments. It held pro forma sessions not because it wanted to block them, but because the Speaker of the House of Representatives forced it to (moreover, in my view, it is probably unconstitutional for the House to interfere with appointments in this manner). But the fact that I had to qualify my position with “likely” reveals its major shortcoming. The Court reasonably declined to question official Senate records, which could be a messy and uncertain business. It cited both Marshall Field & Co. v. Clark and United States v. Ballin in holding that it should take official Senate records at face value. In short, it sided with Gerard. I think he has the honor of being the sole commentator to nail this point.

And it was a critical point. These two aspects of the opinion—the hard, three-day minimum for recesses and the formalist decision that pro forma sessions count as “sessions”—were actually adequate to resolve the case. The Court could have left open the questions regarding the type of recess and the timing of vacancies. I’ll turn to those issues in a future post, but in a sense they are surprisingly formalist as well. Despite the majority’s emphasis on historical practice, it comes much closer than the dissent-like concurrence to following what we know about the original meaning of the word “recess,” and possibly “happen” as well.


FAN 20.3 (First Amendment News) — The Roberts Court & Unanimous First Amendment Judgments

  • Who would have guessed the 9-0 vote in McCullen v. Coakley? Back in January there was this assessment from a veteran Court reporter:

Equally Divided: “Inside the Supreme Court, the questioning was fast and furious, with the justices apparently divided equally, and for the first time in memory, Chief Justice John Roberts asking no questions. The Chief Justice’s silence seemed to indicate that he likely will be the deciding vote in the case.” – Nina Totenberg, Jan. 15, 2014

That Catholic University Law Professor Mark L. Rienzi would have prevailed in his case in defense of the Petitioners seemed likely enough. But unanimous? The vote surely surprised many seasoned Court watchers.

Professor Mark Rienzi

Professor Mark Rienzi

Take note: It was the third time in one Term that the Roberts Court was unanimous in a free speech case, and also the first time that the Court was unanimous in sustaining a First Amendment free expression claim in two cases:

  1. Lane v. Franks (2014) [vote-9-0 on FA issue only, not on qualified immunity]
  2. McCullen v. Coakley (2014)

This is significant because in every other free speech case where there was a unanimous judgment the Court denied the First Amendment claim.  The 9 cases are:

  1. Rumsfeld v. Forum for Academic & Institutional Rights (2006) [vote: 8-0]
  2. Davenport v. Washington Educ. Association (2007) [vote: 9-0]
  3. New York State Bd. of Elections v. Lopez Torres (2008) [vote: 9-0]
  4. Pleasant Grove City, UT, et al v. Summum (2009) [vote: 9-0]
  5. Locke v. Karass (2009) [vote: 9-0]
  6. Milavetz, Gallop, & Milavetz v. United States (2010) [vote: 9-0]
  7. Nevada Commission on Ethics v. Carrigan (2011) [vote: 9-0]
  8. Reichle v. Howards (2012) [vote: 8-0]
  9. Wood v.Moss (2014) [vote: 9-0] [FA and qualified immunity]

A Princely Move?  

So what gives in McCullen? Not even a whisper of a separate opinion from any of the liberal Justices, especially the female ones. Could it be that the Chief Justice wanted unanimity enough that he stayed his hand in reversing Hill v. Coloradothis to secure four votes from the liberal bloc? Maybe Nina Totenberg was right; they were divided until, that is, the Chief Justice made his “Machiavellian” move. The result: the law is struck down, which pleases the conservatives, though on narrow grounds, which pleases the liberals. No one is really happy, but the judgment is unanimous . . . in an abortion case! 

Meanwhile, Justice Scalia (joined by Justices Kennedy, and Thomas) would have none of it:

Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion. . . . This is an opinion that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence. . . .  Just a few months past, the Court found it unnecessary to “parse the differences between . . . two [available] standards” where a statute challenged on First Amend­ment grounds “fail[s] even under the [less demanding] test.” McCutcheon v. Federal Election Comm’n . . . (plurality opinion) What has changed since then? Quite simple: This is an abortion case, and McCutcheon was not. . . . In concluding that the statute is con­ tent based and therefore subject to strict scrutiny, neces­sarily conclude that Hill should be overruled. 

  One more thing: this is another First Amendment majority/plurality opinion by the Chief Justice (that makes 12). In that regard, he leads all other Justices by a wide margin.

NOTE: My next scheduled FAN column will provide detailed information re the Roberts Court’s overall record in First Amendment freedom of expression cases. It will also include facts and figure re the Court’s 1-A work this Term.

Last FAN Columns


American “exceptionalism” and the beautiful game

Regardless of what happens in today’s U.S.-Germany match, we can expect more heated discussion of whether soccer will ever really catch on here.

Granted, that may already be changing. Sunday’s U.S.-Portugal match netted over 25 million viewers, well above the average for the last NBA finals or World Series. More and more of each new generation of American kids are brought up in the game, a trend likely to continue as football’s concussion crisis pushes parents to opt-out of that sport. And as my colleague David Post notes in a wonderful analysis over at Volokh, the growth of interest in the beautiful game has been phenomenal over the past two decades.

Yet, as Post observes, “we will not engage in a sustained bout of national soul-searching and self-doubt if our team does poorly.” Italy, France, England, Argentina, Brazil…not so much. Post is undoubtedly correct here. But why? There are some stock explanations, none of which quite hold water for me.

Read More


FAN 20.2 (First Amendment News) — 28 Briefs Filed in McCullen, Only 1 Cited by Court

The Court in McCullen v. Coakley had plenty of help offered to it — 28 amicus briefs were filed. Those submitting amicus briefs included the following groups:

  • Cato Institute (Ilya Shapiro) for Petitioners
  • American Center for Law & Justice (Jay Sekulow) for Petitioners
  • Rutherford Institute (John W. Whitehead) for Petitioners
  • Michigan & 11 other States (Bill Schuette) for Petitioners
  • ACLU (Steven R. Shapiro) for Neither Party
  • New York State, et  al (Eric T. Schneiderman) for Respondents
  • Planned Parenthood (Walter Dellinger) for Respondents
  • American College of Obstetricians and Gynecologists, et al (Jack R. Bierig) for Respondents
  • National League of Cities, et al (Mary Jean Dolan) for Respondents
  • Anti-Defamation League, et al (Jeffrey S. Robbins) for Respondents
  • National Abortion Federation, et al (Maria T. Vullo) for Respondents

That said, the Court elected to reference only one amicus brief, and it did so in Chief Justice John Roberts opinion.

The brief the Chief Justice found particularly useful was one filed by New York Attorney General Eric T. Schneiderman, a brief submitted on behalf of New York and 12 other states along with the territory of the Virgin Islands.  The brief was submitted on behalf of the Respondents, who lost by way of a unanimous judgment.  

As it turned out, the Chief Justice and his colleagues referenced the New York brief  in support of the Petitioners:
The buffer zones burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests. At the outset, we note that the Act is truly exceptional: Respondents and their amici identify no other State with a law that creates fixed buffer zones around abortion clinics. [fn to NY et al amicus brief]  That of course does not mean that the law is invalid. It does, however, raise concern that the Commonwealth has too readily forgone options that could serve its interests just as well, without substantially burdening the kind of speech in which petitioners wish to engage. 

And then later in the opinion, the New York amicus brief was also tapped to help defeat the case for the Respondents:

If Massachusetts determines that broader prohibitions along the same lines are necessary, it could enact legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994 (FACE Act), 18 U. S. C. §248(a)(1), which subjects to both crimi­ nal and civil penalties anyone who “by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intim­ idate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.” Some dozen other States have done so. See Brief for State of New York et al. as Amici Curiae 13, and n. 6.


FAN 20.1 (First Amendment News) – Supreme Court Hands Down Abortion Buffer Zone Case (9-0)

Thursday, June 29, 10:28 a.m.: The Supreme Court just handed down its decision in McCullen v. Coakley (9-0).

→ The opinion can be found here.

→ Yet another First Amendment majority opinion by the Chief Justice (that makes 12).

Commentary by Tom Goldstein at SCOTUSblog: The abortion protests ruling is relatively narrow. The Court makes clear that states can pass laws that specifically ensure access to clinics. It holds that states cannot more broadly prohibit speech on public streets and sidewalks. It also notably rejects the protesters’ broadest arguments that such restrictions require strict constitutional scrutiny and are viewpoint based. A state can go beyond narrow laws that block obstructions to clinics, and more broadly ban abortion protests, only if it builds a record showing that the narrower measures don’t work. The S. Ct. majority says nothing about its prior buffer zone ruling in Hill, the validity of which now seems in real question. 

→ Harris v. Quinn (opinion to be handed down this Monday).

Review still pending in Minority Television Project, Inc. v. Federal Communications Commission, which involves a federal law that prohibits public radio and television stations from transmitting paid advertisements for for-profit entities, issues of public importance or interest, and political candidates. The 9th Circuit, sitting en banc, ruled against the broadcasters. Chief Judge Alex Kozinski (joined by Judge John Noonan) dissented, and Judge Consuelo Callahan concurred in part and dissented in part.


Petitioner: Eleanor McCullen (pic by Steven Senne)

The Abortion Clinic Buffer Zone Case: McCullen v. Coakley

Facts: “Three of the plaintiffs regularly engage in ‘sidewalk counseling’ at the Boston clinic. McCullen parks her car on Commonwealth Avenue and festoons it with pro-life signage; Zarrella sometimes prays aloud; and Cadin from time to time holds aloft a large pro-life sign. A fourth plaintiff, Smith, has demonstrated outside the Boston clinic for many years. He has displayed a crucifix, sung religious hymns, and prayed aloud. His prayers are meant to be heard by passersby in hopes of persuading them to opt against abortion. He sometimes brings a loudspeaker to amplify group prayers that occur outside the clinic on the second Saturday of every-month and on Good Friday.” (Source: 1st Cir. opinion)

A Massachusetts law provided for a fixed 35-foot buffer zone around the entrances, exits, and driveways of abortion clinics.

The issues in the case were:

(1) Whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; and

(2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled.

The First Circuit rejected the Plaintiff’s First Amendment claims. The Supreme Court reversed.

Vote: 9-0

Majority Opinion: Chief Justice Roberts

Concurring Opinion: Justice Scalia (joined by Justices Kennedy and Thomas) concurs in judgment. Justice Alito wrote a separate opinion, concurring in the judgment.

Justice Scalia argues that Hill v. Colorado  should be overruled, which today’s opinion does not formally do.


  • Mark L. Rienzi for Petitioners
  • Jennifer Grace Miller for Respondents
  • Ian H. Gershengorn for United States (amicus curiae for Respondents)

Amicus Briefs

Among those filing amicus briefs were the following:

  • Cato Institute (Ilya Shapiro) for Petitioners
  • American Center for Law & Justice (Jay Sekulow) for Petitioners
  • Rutherford Institute (John W. Whitehead) for Petitioners
  • Michigan & 11 other States (Bill Schuette) for Petitioners
  • ACLU (Steven R. Shapiro) for Neither Party
  • New York State, et  al (Eric T. Schneiderman) for Respondents
  • Planned Parenthood (Walter Dellinger) for Respondents
  • American College of Obstetricians and Gynecologists, et al (Jack R. Bierig) for Respondents
  • National League of Cities, et al (Mary Jean Dolan) for Respondents
  • Anti-Defamation League, et al (Jeffrey S. Robbins) for Respondents
  • National Abortion Federation, et al (Maria T. Vullo) for Respondents

Hat tip to SCOTUSblog for its remarkable real-time coverage of today’s decisions.

NOTE: My next scheduled FAN column will provided detailed information re the Roberts Court’s overall record in First Amendment freedom of expression cases. It will also include facts and figure re the Court’s 1-A work this term.


Justice Roberts’s wit

One great thing about an opinion by Justice Roberts is, well, Justice Roberts’s writing:

The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of these sorts of physical items … That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together.

Alternatively, the Government proposes that law enforcement agencies “develop protocols to address” concerns raised by cloud computing. … Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols.

In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” … If his pockets contain a cell phone, however, that is no longer true.

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.


Trashing, Defending, and Deferring to Yeshiva University

University bashing is in fashion, from the broad-gauged film Ivory Tower to particular attacks on given schools. Some critiques usefully expose problems that need correcting with constructive solutions on offer.  But others seem to trash the academy for other reasons, as with a recent diatribe against Yeshiva University, which seems more calculated to exacerbate the school’s problems than help it find solutions.

In an  expose-style that seems to blow the school’s financial challenges out of proportion, Steven Weiss, who acknowledges having been expelled from Yeshiva in 2002, portrays Yeshiva’s leadership since that year variously as gullible, myopic, conflicted, or greedy.  This piece stung because I am a graduate and former faculty member of Yeshiva’s law school (Cardozo) and I know and have worked with some of the people vilified in the story.  While I am not familiar with all of the factual background of the University’s recent experience, Weiss’s story seems awfully one-sided and therefore the story, as much as the facts about Yeshiva, causes concern.

I share Weiss’s praise for Yeshiva’s former president, Rabbi Norman Lamm, whom I knew, worked with, and admired.  Lamm, and later his VP for business affairs, Sheldon Socol, led Yeshiva from the brink of bankruptcy in 1975 to fiscal soundness and renewed its status for academic excellence and cultural distinction.  (Rabbi Lamm told me how, when he was about to declare bankruptcy, his hand shook so intensely that he could not sign the papers.)

But Weiss then makes a foil out of Lamm,  painting a golden era that ended after 2002 when he passed the baton to Richard Joel, the current president, who has faced a different set of challenges that entices Weiss’s wrath.  In Weiss’s telling, after Lamm’s retirement and Joel’s succession, it’s been all downhill for Yeshiva and its students.  Joel, whom I knew as an able administrator and gentleman when he served as Dean of Business Affairs at Cardozo, certainly has a different style than the rabbi-scholars such as Lamm who preceded him.  But Weiss exaggerates in inexplicably inflammatory tones how this style difference has played out, in a story misleadingly headlined “How to Lose $1 Billion: Yeshiva University Blows Its Future on Loser Hedge Funds.” Read More


FAN 20 (First Amendment News) — New Book, New Legislation, New Study & More News

No First Amendment cases from the Supreme Court today. Most likely tomorrow (perhaps Monday?).

→ What’s left? The only First Amendment free expression cases left to be decided this Term are:

  1. McCullen v. Coakley
  2. Harris v. Quinn

New Book — Tribe & Matz on Roberts Court & Free Speech 

Laurence Tribe

Laurence Tribe

In May of 2013 I profiled a forthcoming book, which has just been released. “Forty-five years after the publication of his first book (Technology: Process of Assessment and Choice), Laurence Tribe is preparing to release another book, tentatively titled Uncertain Justice (2014).” I wrote that in SCOTUSblog. “This forthcoming offering,” I added, “will come out six years after Tribe’s last book (The Invisible Constitution). The book will be the Harvard Law professor’s sixteenth. Like a few of his other works, Uncertain Justice will be co-authored – this time Joshua Matz is his literary partner on this work on the Roberts Court.” Well, wait no more; here it is: Uncertain Justice: The Roberts Court & The Constitution (Henry Holt, 2014). Mr. Matz is a Harvard law graduate who clerked for Judge Stephen Reinhardt and will soon clerk for Justice Anthony Kennedy.

Joshua Matz

Joshua Matz

While Uncertain Justice has received some early favorable reviews, my focus here is on only two chapters in the book: Chapter 3 (“Campaign Finance: Follow the Money”) and Chapter 4  (“Freedom of Speech: Sex, Lies & Video Games”). Together, these chapters consume 165 of the book’s 320 pages of text.

↓→ Campaign Finance

“The truth is somewhere in the middle.”

In a galvanized world of frenzied litmus-test beliefs over the role of money in our electoral system, Tribe and Matz (T&M) can be refreshingly open-minded: “It is easy to lose sight of the fact that Citizens United posed incredibly difficult questions about free speech, popular sovereignty, and political equality,” they write. “Deciding when Congress can ban certain disfavored speakers from the marketplace of ideas or limit how much they can speak is no easy task. It certainly isn’t outlandish to conclude, as the Court did, that free speech rights must prevail over hard-to-document fears that corporate wealth will distort public discourse or corrupt politicians.”

Then again, they do speak of the “Roberts Court’s broader agenda of deregulating campaign finance” reforms.  On that score, they maintain that by “reshaping the architecture of money, influence, and political organization, the Roberts Court is transforming how America conducts — and funds — politics.” In an endnote (p. 342, n. 64) they state: “While we do not purport to identify specific instances in which electoral outcomes shifted because of trends triggered by Citizens United, it seems to us highly likely that this has occurred in at least some races.”

While the authors freely offer the views of the “many critics of Citizens United,” they also concede that “Citizens United was a hard case because the Court faced a choice among evils.” With welcome objectivity and nuance, they add: “it’s extremely hard to determine whether any given campaign finance rule has a big enough impact to survive judicial scrutiny.  Judges have long implemented the First Amendment by requiring — among other things — that  restrictions on speech demonstrably achieve a legitimate goal. The causes of political corruption in America,” they stress, “and the reasons why politicians act the way they do . . . are many and complex.  Money in politics is only part of that story . . . .”

On the one hand, T&M understand how the Roberts Court’s narrow definition of corruption might be viewed as necessary in order to foster a “workable” body of First Amendment law sensitive to the concerns of free speech. On the other hand, they think that the Citizens United Court might have resorted to a “more modest” course of action that would “have left more room for politicians to use campaign finance laws, carefully reviewed by courts, as one tool among many in their efforts to restore public confidence in government integrity.” In other words, they tread cautiously in this ideological minefield.

So what should reformers do? In an endnote, Professor Tribe discloses that he “assisted Representative Adam Schiff of California in drafting a proposed [constitutional] amendment that was introduced in the 112th Congress.” That said, no defense of such radical constitutional surgery is offered in the book. In fact, the authors skip quickly past calls for constitutional amendments. Instead, they counsel that “critics of Citizens United would be well served to move past issues like corporate personhood and money’s status as speech. Instead, they might aim to ensure greater transparency in our brave new world of Super PACs and 501(c) organizations.” {See DISCLOSE Act item below}

If there were ever to be a national forum on the First Amendment and campaign finance reform, the organizers would be wise to invite Messrs. Tribe and Matz, if only to add some light in an otherwise overheated universe.

Note: Since Uncertain Justice was completed in “early 2014,” the Court’s April 2014 ruling in McCutcheon v. FEC (2014) is not discussed.

 Sex, Lies & Video Games Read More


US v. Ganias and the Fourth Amendment right to delete

For those with more than a passing interest in the Fourth Amendment, I highly recommend Orin Kerr’s coverage of the very important Second Circuit computer search case US v. Ganias.

The ruling creates a Fourth Amendment right to the deletion of files that are over-collected pursuant to a computer search.  Computer searches often involve over-collection of data.  For example, the government will seize a computer and copy the entire hard drive, even though only a fraction of the files in the drive are responsive to a warrant.  This practice is tolerated because, among other things, it reduces the likelihood that the suspect will destroy evidence, and it tends to be less burdensome than confiscating the computer itself.

The Second Circuit’s decision creates a bookend to that tolerated over-collection.  The decision requires the government to delete computer files that are (1) copied as part of a judicially authorized computer search and (2) found (after the fact) to be unresponsive to the warrant authorizing the search.  It also impliedly requires the government to make reasonable efforts to segregate responsive from unresponsive files in computer searches, which almost always involve over-collection of data. The exact application of these rules — such as how long the government can retain data over-collected pursuant to a computer search before having to purge unresponsive files — is still unclear.

The case could have a significant impact on police investigations in the Second Circuit. In addition to changing the way future computer searches are conducted, the case seems to have immediate implications for data currently sitting in government databases, if that data was collected before the court’s ruling pursuant to a computer search.  (The government previously assumed it had a right to retain those files indefinitely; the Court’s ruling seems to have extinguished that argument).

The case may also spawn a torrent of Rule 41(g) motions for return of “property” — here, the copies of files made by the government pursuant to a computer search. And it will raise questions about whether the Fourth Amendment’s right to delete should extend to cases of government over-seizure / over-copying of data outside the context of computer searches.  I’m hoping to say a bit more about the case in the coming days, so stay tuned.

UPDATE: Orin just posted again on Ganias here.


Dept. of just-for-fun SCOTUS speculation – Breyer and Roberts are “due”

There are some big Supreme Court decisions coming down in the next few days, and the three remaining cases from the April sitting have a tech angle: Riley / Wurie (search of cell phones incident to arrest) and Aereo (online broadcasting copyright case).

Can we glean anything about who will write the majority opinions in these cases?  Are there any Justices that seem “due” for a majority opinion, based on the assignments so far?  This kind of speculation isn’t usually worth the trouble, but SCOTUSblog’s already done the work, so why not? [image/stats from SCOTUSblog].*

scotus graphic

You’ll see that only two Justices, Roberts and Breyer, haven’t written for  cases argued in the April sitting. Roberts and Breyer also have the fewest authored opinions for the term, at 5 and 4, respectively.

So perhaps Breyer or Roberts are more likely candidates to write the majority opinions in the only remaining cases from the April sitting, Riley, Wurie, and Aereo. What does that tell us? Again, probably not much — but here goes anyway:

  • Let’s start with cell phone searches.  Justice Breyer is associated with the Court’s liberal wing, but he has a recent trend of voting for the government in big Fourth Amendment cases, most recently Maryland v. King and Florida v. Jardines.  Then again, he voted against the government in another recent technological surveillance case, Clapper v. Amnesty International. So, maybe a wash.
  • While there’s a perception that Justice Roberts tends to be pro-government in Fourth Amendment cases, he can’t be accused of being stuck in the past when it comes to the effects of technological change on Fourth Amendment law.  Here’s his first comment during oral argument in the GPS tracking case US v. Jones, responding to the government’s claim that past rulings regarding beeper surveillance should apply to GPS tracking: “That was 30 years ago. The technology is very different, and you get a lot more information from the GPS surveillance than you do from following a beeper… [GPS tracking] seems to me dramatically different.”   Riley has the government arguing that cases authorizing the police to search a cigarette package incident to arrest should apply to cell phones. Isn’t a cell phone “dramatically different” from a cigarette package in much the same way expressed in the Jones quote?
  • What about copyright?  Well, some 40 years ago Justice Breyer wrote a Harvard Law Review Article critiquing copyright expansionism.  The article was written before the Copyright Act of 1976 was passed, and … Ok, it’s over 40 years old.  But Breyer has continued to exhibit pragmatism (in the linked example, in dissent) when it comes to copyright issues.
  • On the other hand, Justice Roberts’s money quote from the Aereo oral argument has got to make the tech start-up a bit nervous about a Roberts opinion in that case: “Your technological model is based solely on circumventing legal prohibitions that you don’t want to comply with.”

All told, I’m not sure we’re much closer to a prediction (and any such prediction will be moot in a few days).  But perhaps CoOp readers will have additional thoughts.

*As noted the image/stats are from Scotusblog (I added the red boxes).  Here’s scotusblog’s recommended citation for this content: Kedar Bhatia, Updated October Term 2013 Stat Pack, SCOTUSblog(Jun. 18, 2014, 10:00 AM),