United States Supreme Court holds a warrant is required to obtain cell phone location data; holds it has appellate jurisdiction over the courts martial system and rejects a challenge to court martial conviction...
Brigham Young University J. Reuben Clark Law School
Carpenter sought review of the 6th Circuit decision that warrantless obtaining of six days of cell phone location information did not violate the 4th Amendment. The Court, 5-4, reversed and remanded. The majority held that obtaining the location information is a search under the 4th Amendment as an individual retains a privacy interest in location information captured by cell towers, that the third party doctrine should not be extended to the location information held by cell phone carriers as that would undermine people’s reasonable expectations of privacy given the detailed account of a person’s whereabouts would be available for up to five years and the location technology will only improve over time and a person cannot be said to voluntarily give their location information to the cell phone company as no affirmative act is required. It held a warrant is required because the government was seeking evidence of criminal conduct, the records are protected by reasonable expectations of privacy and existing exception to the warrant requirement will allow police to obtain location information in an emergency. Kennedy, joined by Thomas and Alito, dissented arguing that the location information as business records subject to subpoena or, as here, a court order to disclose, the majority decision crates an illogical distinction between location information and financial and telephone records which are not protected and which have grater privacy interests for the consumer and that the majority decision will limits the effectiveness of location information to investigators in investigations of murders, terrorism and other serious crimes, provides law enforcement no basis to determine if this decision or the third party decisions control and will impact the subpoena power of legislatures and grand juries. Thomas dissented arguing that the expectations of privacy test is not based on the text of the 4th Amendment , is based on privacy which is not the organizing principle of the 4th Amendment which is property, effectively eliminates the protected categories of protected things and the requirement that the protected tings be the things of the person asserting protection from the text of the amendment, expands “reasonable” beyond the understanding as of 1791, is unworkable in practice and should be reconsidered. Alito, joined by Thomas, dissented arguing that the disclosure order here is like a subpoena, the original understanding of the 4th Amendment did not cover subpoenas, the majority adopts a rule abandoned in the subpoena context over 70 years ago without explanation and predicted new litigation in the subpoena context as a result in terrorism and other investigations and also argued the majority abandons the bedrock principle that a person can only assert their own property interests not those of a third party when challenging a search or seizure and that Congress is the proper body to balance the interest and set rules on cell phone location information and other privacy concerns. Gorsuch dissented arguing that third party doctrine should be abandoned, the reasonable expectations doctrine is not generally susceptible to principled application and should thus be abandoned and the original understanding that if one of the protected class of items in the 4th Amendment is seized and it belongs to you, even if bailed to the post office or an internet provider, the protections of the Amendment are triggered should guide judicial analysis, but here Carpenter failed to preserve his property arguments and that resolves the case.
Ortiz sought review of the Court of Appels for the Armed services that it was constitutional for a judge to serve on the Air Force appeals court and Court of Military Commission Review simultaneously. The Court, 7-2, affirmed. The majority held it had jurisdiction over the case as courts martial are judicial in character and are like territorial and District of Columbia courts, which have long been within the appellate jurisdiction of the Court, in that they are authorized by specific grants of power in Article I, the dispute here is case for Article III purposes and the action in the Court is one of review not an original proceeding. It held that the judges dual office holding was authorized by 10 USC 950f(b)(2) and a subsequent presidential appointment to remain on the commission review court made no difference and the appointments clause was not violated because the Court has never imposed a bar of dual office holding under that clause and Ortiz made no showing how the judge could be improperly influenced though his dual office holding. Thomas added a concurrence arguing that appellate review here is constitutional as the Court of Appeals for the Armed Forces exercises judicial power in actual cases involving private rights of life, liberty and property. Alito, joined by Gorsuch, dissented arguing that courts martial are executive branch entities which assist the President in disciplining the armed forces, as such they cannot exercise judicial power, Distract of Columbia and territorial governments are not subject to the restrains that federal government entities are and the petition here must be dismissed as the Court can only exercise appellate jurisdiction over article III courts with life tenured judges that can exercise judicial power.
Currier sought review of the Virginia Supreme Court decision rejecting his double jeopardy challenge to his felon in possession conviction. The Court, resolving a split of appellate authority, affirmed 5 (5 justice majority in part and a 4 justice plurality with Kennedy concurring in part)-4. The majority held that there was no double jeopardy violation when Currier was acquitted for burglary and then tried for felon in possession based on the same facts in a second trial because Currier consented to severing the charges and this is like retrial after a defense sought mistrial as the oppression through successive trial interest are not implicated. Four justices argued that issue preclusion did not apply in the criminal context as double jeopardy applies to offenses not issues. Kennedy concurred in part arguing that double jeopardy protections are not implicated when a second trial results from voluntary defense action. Ginsberg, joined by Breyer, Sotomayor and Kagan, dissented arguing that under the Ashe precedent , double jeopardy includes issue preclusion and here Currier’s conviction necessarily required Virginia to prove he was involved in the underlying burglary which the first jury determined he was not, Currier did not expressly waive his issue preclusion rights by seeking a severance and the fact that the rules of evidence allow introduction of conduct which the defendant has been acquitted of criminal charges does not mean issue preclusion does not protect Currier here.
Ohio sought review of the 2nd Circuit decision rejecting Ohio’s antitrust challenge to American’s antisteering contract provisions. The Court, 5-4, affirmed. The majority held that the relevant market was the two-sided platform of credit card transactions, any difference in pricing between merchants and cardholders reflects elasticity of demand not market power, and Ohio’s evidence did not prove anticompetitive outcomes as there was no evidence American’s merchant fees exceed those which a competitive market would produce, the overall rise in merchant fees in the credit card market reflects competition between card networks for cardholder usage and there is nothing inherently anticompetitive in the antisteering provisions. Breyer, joined by Ginsberg, Sotomayor and Kagan, dissented arguing that the relevant market is the merchant services market, American’s antisteering provisions were anticompetitive as evidence by discover card’s inability to use lower fees to generate merchant business and American’s 20 price raises in 5 years, the fact credit card services are two-sided is irrelevant as substitute goods and services not commentary ones are relevant in market analysis, and the case should be remanded for analysis of the remaining steps under the rule of reason giving due deference to the district court’s factual findings of anticompetitive effects of the antisteering provisions.
Texas appealed the order of a three-judge district court panel finding a 2013 redistricting plan unconstitutional. The Court, 5-4, affirmed in part and reversed in part. The majority held there was jurisdiction to hear the case as the panel order practically enjoined Texas from using its federal and state house districting plan by ordering Texas to remedy the identified infirmities within an unrealistic timeframe or the panel would do so on its own and review is thus available under 28 USC 1253 as allowing the district court label to control would thwart congressional intent to allow Supreme court review. It held the panel erred in placing the burden of proof on Texas instead of Perez, erred in imputing discriminatory intent to the 2013 plan from a never used 2011 plan, erred in refusing to apply the presumption of legislative good faith and this error was central to the panel majority’s analysis. It held the record demonstrated the 2013 plan was adopted to try to end the litigation not discriminate against minority voters and the plan itself was drawn up by the panel under instructions from the Court. It reversed as to the districts which were invalidated under the effects test holding federal District 27 could not violate the test as the demographics and geography of the region involved only allowed the creation of 7 opportunity districts and the 2013 plan creates 7 such districts, federal District 35 must be analyzed at the district level not county or other lower level and the district was drawn consistent with a plan proposed by a Mexican American voter rights group, and state Districts 32 and 34 were drawn to create the one possible Latino opportunity district in a county. It affirmed the panel ruling that state District 90 was a racial gerrymander as Texas conceded race was the predominant factor in drawing eth lines and the fact that a Latino plaintiff group wanted the lines drawn that way and the fact a Latino candidate one on of the two elections under the current plan did not overcome the racial gerrymander. Thomas, joined by Gorsuch, added a concurrence reiterating his view that Section 2 Voter Rights Act does not apply to redistricting. Sotomayor, joined by Ginsberg, Breyer and Kagan, dissented arguing review was unavailable under 1253 as the panel order explicitly did not enjoin use of the 2013 districts in the 2018 elections, the majority rule will open the court’s docket to many apples in redistricting and other direct review interlocutory appeals and even under the majority rule there is no serious let alone irreparable harm to Texas under the panel order. She argued the majority erred in finding the panel shifted the burden as the record supports the finding of discriminatory intent by the legislature and that finding is entitled to deference under the clear error rule. She finally argued that the panel did not err as to federal district 27 the record supports the finding that white voters were added to prevent it from being a Latino opportunity district and the record supports the order as to state districts 32 and 34 as the panel engaged in the local facts on the round to conclude two Latino opportunity districts could be formed instead of just one. She concluded by arguing the majority damaged the right of equal voting opportunity by failing to enforce minority voting rights.
The federal government sought review of the 9th Circuit decision affirming a nationwide injunction against enforcing entry restrictions set out in a presidential proclamation. The Court, 5-4, reversed and remanded. The majority assumed the case was justiciable, held that the president has power under 8 USC 1182(f) to suspend entry of aliens into the United States, the restrictions in the proclamation were lawfully adopted after a worldwide interagency review, contained extensive findings which would satisfy any duty to explain and any searching inquiry would be inconsistent with the power granted in 1182(f) and follows the time and class requirements and the class designation of all nationals from a country is a permissible one. It rejected Hawaii’s counterarguments holding there was no conflict between the proclamation and statutory provisions on information sharing, the text of 1182(f) is unambiguous and thus neither background or legislative history need be considered, the proclamation does not violate 8 USC 1153(a)(1)(A) as it is limited to visa applications at the individual level not exclusion decisions in 1182(f). It held individual plaintiffs alleged sufficient interest for standing to bring a First Amendment challenge to the proclamation, but, held the proclamation did violate the First Amendment as it is facially legitimate and supported by bona fide reasons which is all that is required in this context and survives rational basis review as national security concerns are related to the entry restrictions in the proclamation, several majority Muslim countries have been removed from the list of covered countries over time and even for covered countries certain of their nationals are exempt for the restrictions. It finally declared the Korematsu precedent upholding internment of Japanese citizens during World War 2 wrongly decided and had no place in the law. Kennedy added a concurrence arguing that federal officials must follow the Constitution even when judicial review of their actions is not available. Thomas added a concurrence arguing that district courts lack authority to issue nationwide injunctions as such injunctions are inconsistent with the judicial and equity powers recognized at the time of the founding. Breyer, joined by Kagan, dissented arguing remand was necessary to explore whether the proclamation is in fact being implemented in ways that are a Muslim ban or in the alternative the proclamation should be struck down for religious bias. Sotomayor, joined by Ginsberg, dissented arguing that the proclamation violates the establishment clause because President Trump repeatedly called for total ban on Muslim immigration and a reasonable observer would conclude the proclamation serves that goal given the majority of covered countries are Muslim, the worldwide review before issuing the proclamation does not change the outcome, congress has spoken to the issues involved in the proclamation and the waiver system in the proclamations sham, and also argued the other criteria to issue and injunction are also met here. She also argued the majority decision is like Korematsu and even with the disavowal of Korematsu in the majority decision, it merely replaces approval of a race-based internment with approval of a religious based entry ban.
National Institute of Family and Life Advocacy v Becerra
Institute and other plaintiffs sought review of the 9th Circuit decision affirming denial of their preliminary injunction motion in their challenge to two notice requirements for California crisis pregnancy centers. The Court, 5-4, reversed and remanded. The majority held that the notice requirement as to licensed centers is content based as it alters the providers speech on the subject of abortion, the 9th Circuit erred in applying a “professional speech” standard as speech made by professionals does not lose its protected status and neither the limited disclosure requirements or the informed consent lines of Court precedent alter that conclusion here, and the notice requirement is not adequately drawn being wildly underinclusive exempting most women’s health clinics and California can communicate its message about the availability of abortion through advertising. It reversed as to notice requirements for unlicensed centers as California offered no actual interest served by the requirement and the requirements were unduly burdensome. Kennedy, joined by Roberts, Alito and Gorsuch, added a concurrence arguing that the laws here are viewpoint discriminatory and a threat to free speech as they force people to say things contrary to their deepest beliefs. Breyer, joined by Ginsberg, Sotomayor and Kagan, dissented arguing that the majority’s content based analysis places at risk a wide range of health safety and consumer protection disclosure requirements and does so in the medical field where states have long been given authority to regulate, that the requirements here as legally indistinguishable from the factual disclosure and informed consent disclosures upheld by the Court and as to the unlicensed centers California has an interest in letting women know whether or not licensed provers area available at a center and the disclosures are not burdensome.
Florida field objections to the special master report recommending denying relief in this original jurisdiction water rights case. The Court, 5-4, remanded the case to the master. The majority held the master applied too strict a standard in determining whether a remedy can be crafted here because precedent only requires proof of remedy using approximation and flexibility. It held that under eth correct standard, Florida adequately proved increasing flow in one of the rivers involved here would reasonably likely increase eh amount of water reaching an important estuary by an amount which would make a material difference in the health of the estuary, it is unlikely the Army corps of engineers would simply impound the water rather than use it to maintain the downstream river system, but remand is necessary for further fact-finding on the effects of increased flow into the lake and the United States does not need to be a party to this case as Corps has agreed the decree finally entered in this case will become part of the legal landscape controlling the operation of the dams and other works in the river system. Thomas, joined by Alito, Kagan and Gorsuch, dissented arguing that the master applied the correct standard requiring Florida to prove by clear and convincing evidence that the benefit to it of the increased flow would be greater than the harm to Georgia, correctly found that Corps would not send water to the estuary during drought conditions and that Florida would not receive any significant benefit while Georgia would suffer significant damages to its agricultural and other industries, and correctly found no benefit to Florida during non-drought periods as Florida presented no evidence to support this claim.
Janus v American Federation of State County and Municipal Employees, Council 31
Janus sought review of the 7th Circuit decision upholding compulsory fees to unions for nonmember public employees. The Court, 5-4, overturned controlling precedent, reversed, and remanded. The majority held that the Abood precedent allowing the compulsory fees should be overruled because under exacting scrutiny the compelled subsidization of union speech violates nonmember free speech rights as labor peace is not a problem absent the compulsory fees, avoiding free riding is not a compelling interest and unions willingly pay the price of benefiting nonmembers due to the significant benefits which flow from being the sole agent for workers in a given workplace, the originalist argument that there is no free speech right here for Janus is inconsistent with Curt precedent about public employees and fails on its own terms because the examples offered do not prove an absence of rights, the Pickering decision does not apply here as this case involves a broad swath of employees not a single administrative action, does not work well in compelled speech cases and the categorization of speech in Abood and Pickering do not line up, and Pickering wouldn’t change the outcome here, the Garcetti case does not apply as collective bargaining is employee speech not employer speech, concerns public not private matters and there is no compelling interest served by the compulsory fees, and stare decisis does not require keeping the Abood rule due to its poor reasoning, it has turned out unworkable in practice, developments in free speech jurisprudence have left Abood an outlier, reliance interests are low and held the Illinois fee was unconstitutional as it did not require employee consent before it was withheld from nonmember paychecks. Sotomayor dissented arguing the Sorrell decision has been improperly used to turn the First Amendment into an aggressive tool for courts. Kagan, joined by Ginsberg, Breyer and Sotomayor dissented arguing that Abood soundly reasoned on the competing interests and adopted a good balance, eliminating compulsory nonmember fees will deprive public unions of essential funding, fits comfortably whiting the government as employer speech cases, and stare decisis requires retaining Abood as it has been repeatedly affirmed by the Court, has been workable in practice, and states and unions have significant reliance interests in retaining the Abood rule an further accused the majority of acting as black robed rulers picking a winning side on fair share fees debate and turned the First Amendment into a sword to attack economic and regulatory policy it does not like.