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January 23, 2012


I agree this is good, but as Orin Kerr notes here the Court did not rule on whether a warrant was needed to perform such a search, which leaves open the possibility of a future ruling which basically says "yes it's a search, but you (almost) never need a warrant." I consider that a distinct possibility and can see 6 or 7 votes for it (the usual 5 + Kagan and/or Sotomayor; heck, maybe even Breyer and Ginsburg could sign on and make it unanimous the other way).

Did you read Alito's concurrence? I would say that represents four votes for "you need a warrant". And Sotomayer's concurrence would be a fifth vote for "you need a warrant". I'm pretty sure we can count on Thomas as well, so I'd say the idea that we need a warrant is likely to be pretty strong.

I'm a little perplexed however by why Sotomayer and Alito didn't join each other's opinions to make a solid majority for the more reaching holding? They must have had some disagreement that I'm not seeing yet in their opinions.

Seb - I did not read Alito's concurrence and I'd be happy to be wrong. It's just that, it seems to me, exceptions to the warrant requirement tend to swallow the latter. I mean, 24 hour surveillance for four weeks seems easy for the justices to accept as a problem, but what if it's just two days? Or there are newly found exigent circumstances ("It's the only way we could follow him!")?

On a brief skim, it looks like Sotomayor (which you've misspelled, BTW) agrees with the "trespass" line of reasoning whereas Alito et. al. do not.

Via Balloon Juice:

The government had told the high court that it could even affix GPS devices on the vehicles of all members of the Supreme Court, without a warrant.
That'll concentrate their minds, all right. People at BJ are speculating about whether that statement was unprompted -- in which case we can only conclude that the Adminstration *wanted* to fail -- or if it came out as the result of a question from a Justice, and if so, whom?

What do the legal eagles here think?

Dr. Sci - the justices like to ask the parties how far their argument would extend, and so I would guess that this was prompted by a question. For example, a few years back Paul Clement in a school drug testing case was asked if all students could be drug tested under his rationale and not just those participating in extra-curricular activities; he said yes and his side won (when the school district attorney arguing the same position hedged and said no, the justices pounced). I don't recall if the justices did in fact rule that drug testing of all students would be permissible.

In fact, perhaps the Justices should ask these types of questions more often so they get a feel for the impact of their rulings as they tend to be a little isolated (though not as isolated as POTUS/Executive Branch/many members of congress; e.g., I've seen CJ Roberts twice in the past year, most recently at Starbucks last week where he got out of his chauffer-driven black SUV and got his own cappuccino, without any security joining him. You'd never see POTUS or a cabinet head do this, though I did see Janet Napolitano doing some of her own shopping at CVS, but she had three SS agents with her trying to remain inconspicuous, clearly it didn't work).

And upon a review of the transcript, looks like it was prompted by a question from CJ Roberts (see pp9-10).

Sebastian, I wouldn't characterize Alito's concurrence as you do (i.e., as wanting to go further than Scalia). Alito wanted to confirm Katz as the primary (if not sole) test for a Fourth Amendment violation. Scalia's approach might be broader than Alito's approach, however, because Scalia adopted both the Katz test and an alternative "tresspass" test. The key graf in Scalia's opinion seems to be as follows:

The concurrence faults our approach for “present[ing] particularly vexing problems” in cases that do not involvephysical contact, such as those that involve the transmission of electronic signals. Post, at 9. We entirely fail tounderstand that point. For unlike the concurrence, which would make Katz the exclusive test, we do not make trespass the exclusive test. Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.

FWIW, I read Sotomayor as essentially agreeing with Alito, but joining Scalia's majority opinion in order to breath life into tresspass test.

von: Sebastian, I wouldn't characterize Alito's concurrence as you do (i.e., as wanting to go further than Scalia).

I think Sebastian meant "go further" in the sense of addressing other fact patterns (e.g., cell phones).

What do the legal eagles here think?

I think this administration sees virtually no limit on the powers it can claim, as Seb has documented here and in the threads on CU.

If you don't need a warrant to location track people's cell phones, you can't avoid cracking down on Republican tax fraud and electoral fraud.
Tax fraud, because the easiest way to spend black income is to use a credit card from the Cayman islands, and if that credit card is always associated with a particular cell phone, then that cellphone user has avoided tax.
Electoral fraud because several tens of thousands of voters in Florida in 2000 were actually New York, Connecticutt, and New Jersey residents because they spent most of their time in one of those states.
What did you think they were going to do?

Not like the restraint and judiciousness of the Bush administration. Whose legal counsel once claimed that the President had the power to crush an innocent boy's testicles in the interests of national security.

I mean do you really think this administration is sui generis in claiming all sorts of crazy powers, McK? Or is that just your inner partisan showing?

I think this administration sees virtually no limit on the powers it can claim, as Seb has documented here and in the threads on CU.

How silly. All executives try to "claim power" when conducting investigations. A big difference between this administration and a certain immediately preceding one is that it makes its "power claims" subject to judicial review, rather than hiding its actions in "black sites" and conducting unconstitutional policies in places that it argues are beyond the jurisdiction of any U.S. court. It lost this particular battle, as all administrations have lost certain battles. It means the system is respected and is working.

"I mean do you really think this administration is sui generis in claiming all sorts of crazy powers, McK? Or is that just your inner partisan showing?"

What an odd thing to say. This administration has claimed quite a few crazy powers--their claims in Citizens United were out of control.

Also, this administration has gone pretty far in the "not subject to judicial review" category with their claims around the citizen assassination policy.

I'd say one doesn't have to be particularly anti-Obama to notice that kind of thing.

i think "sui generis" is the operative part of Phil's question.

Fair point, Ugh.

Indeed, cleek. For one thing, law enforcement and government looking for more ways to conduct searches without warrants is hardly news; the previous administration claimed the right to tap your telephone without a warrant if it thought you might be talking to a terrorist suspect. The Clinton administration claimed the right to use thermal imaging to look at the inside of your house without a warrant. This is plus ca change, plus ca meme chose territory here.

Moreover, everyone seems to have forgot that the previous administration *literally claimed the power to ignore duly enacted laws* if President Flightsuit felt they would interfere with his ability to play Army Men. They literally stood up and said that the President, and the President alone, had the power to determine which laws his administration would and would not follow.

Like the blog, appreciate the share!

Nice to see von popping in for a quick exchange. I hope you and life are treating each other well, von.

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