About that 4th amendment...

1. There's the new Supreme Court case, Kentucky v. King, described here by Orin Kerr, who thinks Justice Alito "did a pretty sharp job":

In this case, officers entered an apartment without a warrant after smelling marijuana inside, knocking, and hearing noises inside. The Kentucky Supreme Court had assumed that the police had exigent circumstances in those facts, but then concluded that the police had created the exiegncy [sic] — and therefore could not rely on it to make a warrantless entry — by in effect inducing King inside to react to the police outside and react in a way that created the exigency. In its opinion today, the Supreme Court disagreed...

2. There's what the Indiana Supreme Court said in Barnes v. State, and, again I'm relying on the wonder that is Orin Kerr:

In this case, the officer had come to the home in response to a domestic violence call.... The officers asked if they could enter the home, and the defendant’s wife pleaded with the defendant to let them enter. The defendant refused. The police then entered anyway, and the defendant “shoved [an officer] against the wall.” The officers then tazed the defendant and arrested him.

The defendant was charged with misdemeanor battery against a police officer, among other things. At trial, he wanted to argue to the jury that it was lawful to shove the officer because he had a citizen’s right to reasonably resist unlawful entry into his home. 

The court said there was no such right, noting "a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence."

I'm not ready to take a position on either of these cases, but I wanted to put them up for discussion. I'm about to record a Bloggingheads episode, and we may talk about these, but, then again, maybe not.

"And in my experience, too, people did sometimes stick things in my underwear... Or not my underwear."

"Whatever. Whatever. I was the one who did it? I don't know. I mean, I don't think it's beyond human experience, not beyond human experience."

Yesterday, Justice Breyer talked about his underpants.

(PDF.)

IN THE COMMENTS: Daryl says:

The crazy fact is, about 40% of the Supreme Court's civil rights cases turn on the personal experiences of the judges.

"I never did that. So why does anyone else need the right to do that?"

Or, in this case, "they'd better strip search those kids. I smuggled Ibuprofen into school twice a week in my Superman underoos."

When school officials strip search a 13-year-old girl who they think might have some extra-strength ibuprofen...

The Supreme Court heard argument today in Safford School District vs. Redding, and the Justices seemed pretty sympathetic to the school:

Chief Justice John G. Roberts Jr. said the school officials should be shielded from being sued since the law governing school searches had not been clear...

Justice Anthony M. Kennedy... objected when Adam Wolf, an American Civil Liberties Union lawyer for Redding, argued that the strip search was unreasonable because there was no evidence she was hiding anything in her underwear.

"Is the nature of drug irrelevant?" he asked. "What if it was meth to be consumed at noon?"...

It is "a logical thing" for adolescents to hide things, [Justice Breyer] said. A student might stick something "in their underwear," he added, provoking laughter when he said that this had happened to him at school. "It's not beyond human experience."...

"Better embarrassment [of one student] than the risk of violent sickness and death," Souter said.

"[T]he Obama administration may be attempting to appease its antiwar base ... or trying to look good for the chattering classes."

John Yoo defends his memos:

Imposing Fourth Amendment standards on military action would have made the Civil War unwinnable -- combat occurred wholly on U.S. territory and enemy soldiers were American citizens. The military does not have the time to obtain warrants before soldiers fire upon enemy targets and personnel; the battlefield does not provide the luxury to collect evidence needed to meet probable cause standards in civilian courts. Even if the Fourth Amendment applied, we believed that courts would judge military action under a standard of "reasonableness" -- as they might review a police officer who fires in self-defense -- rather than demand a warrant to use military force to stop a terror attack....

But if the administration chooses to seriously pursue those officials who were charged with preparing for the unthinkable, today's intelligence and military officials will no doubt hesitate to fully prepare for those contingencies in the future. President Obama has said he wants to "look forward" rather than "backwards." If so, he should not restore risk aversion as the guiding principle of our counterterrorism strategy.

The new Supreme Court cases, especially the new negative Commerce Clause case.

SCOTUSblog gives us a first glimpse:

The Supreme Court, in a major victory for Microsoft Corp.... Microsoft Corp. v. AT&T...

In a second ruling on patent law, the Court decided unanimously that the Federal Circuit Court had been wrong in taking a narrow view of when an invention is "obvious" and thus cannot be patented.... KSR International v. Teleflex....

... [P]olice do not act unconstitutionally when they try to stop a suspect fleeing at high speed by ramming the suspect's car from the rear, forcing it to crash..... Scott v. Harris....

[I]f a taxpayer could have sued to challenge an erroneous federal tax levy, but fails to do so on time, may not later sue for a refund... EC Terms of Trust v. U.S....

... [L]ocal government does not violate the Constitution when it [requires] all solid waste generated in the community to be processed at a publicly owned facility, so long as the ordinance treats private businesses the same whether they are local or out-of-state.... United Haulers Association v. Oneida-Herkimer Solid Waste Management...

The last one, a negative (dormant) Commerce Clause case, is especially interesting to me. Here it is, with four separate opinions, written by, oddly enough, Roberts, Scalia, Thomas, and Alito. Roberts announces the decision:

We hold that the Counties’ flow control ordinances, which treat in-state private business interests exactly the same as out-of-state ones, do not “discriminate against interstate commerce” for purposes of the dormant Commerce Clause.

Because he finds no discrimination, he goes on to the balancing test (the "Pike test"):

Under the Pike test, we will uphold a nondiscriminatory statute like this one “unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.”...

We find it unnecessary to decide whether the ordinances impose any incidental burden on interstate commerce because any arguable burden does not exceed the public benefits of the ordinances.

The ordinances give the Counties a convenient and effective way to finance their integrated package of waste-disposal services....

At the same time, the ordinances are more than financing tools. They increase recycling in at least two ways, conferring significant health and environmental benefits upon the citizens of the Counties....

The Counties’ ordinances are exercises of the police power in an effort to address waste disposal, a typical and traditional concern of local government.

Souter, Ginsburg, and Breyer join the opinion in full. Scalia joins up to the point where Roberts applies the balancing test:

I have been willing to enforce on stare decisis grounds a “negative” self-executing Commerce Clause in two situations: “(1) against a state law that facially discriminates against interstate commerce, and (2) against a state law that is indistinguishable from a type of law previously held unconstitutional by the Court.”... As today’s opinion makes clear, the flow-control law at issue in this case meets neither condition. It benefits a public entity performing a traditional local-government function and treats all private entities precisely the same way....

I am unable to join Part II–D of the principal opinion, in which the plurality performs so-called “Pike balancing.” Generally speaking, the balancing of various values is left to Congress—which is precisely what the Commerce Clause (the real Commerce Clause) envisions.

Thomas concurs. He would get rid of negative Commerce Clause enforcement altogether:

The negative Commerce Clause has no basis in the Constitution and has proved unworkable in practice.... As the debate between the majority and dissent shows, application of the negative Commerce Clause turns solely on policy considerations, not on the Constitution. Because this Court has no policy role in regulating interstate commerce, I would discard the Court’s negative Commerce Clause jurisprudence.

Alito dissents, joined by Stephens and Kennedy. He perceives discrimination:

[T]hese laws discriminate against interstate commerce (generally favoring local interests over nonlocal interests), but are defended on the ground that they serve legitimate goals unrelated to protectionism (e.g., health, safety, and protection of the environment). And while I do not question that the laws at issue in this case serve legitimate goals, the laws offend the dormant Commerce Clause because those goals could be attained effectively through nondiscriminatory means....

The key, based on past precedent, is that the processing plant was not privately owned, as Roberts emphasizes:

“Flow control” ordinances require trash haulers to deliver solid waste to a particular waste processing facility. In C & A Carbone, Inc. v. Clarkstown, this Court struck down under the Commerce Clause a flow control ordinance that forced haulers to deliver waste to a particular private processing facility. In this case, we face flow control ordinances quite similar to the one invalidated in Carbone. The only salient difference is that the laws at issue here require haulers to bring waste to facilities owned and operated by a state-created public benefit corporation. We find this difference constitutionally significant. Disposing of trash has been a traditional government activity for years, and laws that favor the government in such areas—but treat every private business, whether in-state or out-of-state, exactly the same—do not discriminate against interstate commerce for purposes of the Commerce Clause.

I would have been very surprised if the case had come out the other way. It's true Roberts doesn't have a majority, but that is only because Scalia and Thomas are even less willing to strike things down on a negative Commerce Clause theory. It's interesting to see Alito break away from Roberts, Scalia, and Thomas, especially since he perked up at the invocation of "traditional government activity":

[T]his Court has previously recognized that any standard “that turns on a judicial appraisal of whether a particular governmental function is ‘integral’ or ‘traditional’ ” is “ ‘unsound in principle and unworkable in practice.’ ” Garcia v. San Antonio Metropolitan Transit Authority (1985) . Indeed, the Court has twice experimented with such standards—first in the context of intergovernmental tax immunity, see South Carolina v. United States (1905) , and more recently in the context of state regulatory immunity under the Commerce Clause, see National League of Cities v. Usery (1976) —only to abandon them later as analytically unsound. See Garcia, supra, at 547 (overruling National League of Cities); New York v. United States (1946) (overruling South Carolina v. United States). Thus, to the extent today’s holding rests on a distinction between “traditional” governmental functions and their nontraditional counterparts, it cannot be reconciled with prior precedent.

This unnecessary invocation of Garcia is not what you'd expect from a Justice dedicated to federalism.

ADDED: The case about the high-speed chase includes the video.

MORE: Justice Scalia discusses the video in Scott v. Harris:

[R]eading the lower court’s opinion, one gets the impression that respondent, rather than fleeing from police, was attempting to pass his driving test:

“[T]aking the facts from the non-movant’s viewpoint, [respondent] remained in control of his vehicle, slowed for turns and intersections, and typically used his indicators for turns. He did not run any motorists off the road. Nor was he a threat to pedestrians in the shopping center parking lot, which was free from pedestrian and vehicular traffic as the center was closed. Significantly, by the time the parties were back on the highway and Scott rammed [respondent], the motorway had been cleared of motorists and pedestrians allegedly because of police blockades of the nearby intersections.” Id., at 815–816 (citations omitted).

The videotape tells quite a different story. There we see respondent’s vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit. We see it run multiple red lights and travel for considerable periods of time in the occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to keep up. Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury....

Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.

"Visible fiction"? Is that a typo for "risible fiction"?

Anyway, I watched the video, and I understand why you'd want to reject the plaintiff's characterization of the facts. But this is a case about when to grant summary judgment, avoiding trial. Justice Stevens dissented:

[T]he Court has usurped the jury’s factfinding function and, in doing so, implicitly labeled the four other judges to review the case unreasonable.....

If two groups of judges can disagree so vehemently about the nature of the pursuit and the circumstances surrounding that pursuit, it seems eminently likely that a reasonable juror could disagree with this Court’s characterization of events....

The Court today sets forth a per se rule that presumes its own version of the facts: “A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” Not only does that rule fly in the face of the flexible and case-by-case “reasonableness” approach applied in Garner and Graham v. Connor, 490 U. S. 386 (1989) , but it is also arguably inapplicable to the case at hand, given that it is not clear that this chase threatened the life of any “innocent bystande[r].” In my view, the risks inherent in justifying unwarranted police conduct on the basis of unfounded assumptions are unacceptable, particularly when less drastic measures—in this case, the use of stop sticks9 or a simple warning issued from a loudspeaker—could have avoided such a tragic result. In my judgment, jurors in Georgia should be allowed to evaluate the reasonableness of the decision to ram respondent’s speeding vehicle in a manner that created an obvious risk of death and has in fact made him a quadriplegic at the age of 19.

But even Justices Ginsburg and Breyer agreed with the outcome.

The shocking decision in ACLU v. NSA.

I guess I should say I gagged on it, to keep up today's neck/throat theme. But really...

I'm truly shocked. It's like the feeling you have when you're grading blue books and you realize this one's going to have to get an F.

I finally had the time today to read the whole opinion in ACLU v. NSA... I mean, that was the whole opinion, right? I kept shuffling the pages around and looking under the table to see if there were some pages I missed...

What the hell? Was there no law clerk who had enough nerve to say, Judge, it can't go out like this? How do you ever get to the level of arrogance that keeps you from seeing when an opinion is this patently deficient? Where do you acquire the vaulting imagination that allows you think an opinion in this form will even help the side you're rushing to hand a victory to? I can see slipping into abject carelessness in a low profile case, but this is such a conspicuous case. I simply cannot fathom how a judge with any sense at all, with any assistance from law clerks who were not cowed into ridiculous submission, would file a case in this form.

I'm not talking about the normal way judges write result-oriented decisions, which is to layer in the scholarly and neutral-looking verbiage in the hope that most people will swallow it and the critics will seems like sore losers. This opinion -- beginning midway through the text -- does not even look like a rough draft. It seems as if the judge ran out of time and handed in something that was less than an outline. Much less.

The first half of the text is written in a creditable style. Most of this is the discussion of the state secrets doctrine, which concludes with a dismissal of the plaintiffs' claim challenging the data mining program. We then begin the material that leads to the judge's conclusion that the warrantless surveillance program -- known as TSP -- should be enjoined. The first few pages of this are written competently, as the judge finds that the plaintiffs are suing because they have a "distinct and palpable injury" and thus satisfy the first of the three constitutional requirements for standing to sue. Cases are cited and discussed appropriately. One could argue with the analysis, but it is what one expects from a decently written opinion.

At this point, with many issues left to discuss -- including the rest of the standing doctrine and all of the questions of statutory and constitutional law relating to TSP -- the writing falls headlong off a cliff. I have never seen anything like this. There are many sections left to the opinion, but each contains little more than preliminary verbiage -- quotes from old cases and zingers about how the Framers opposed King George III -- with tagged on conclusions about how "obviously" the Fourth Amendment/First Amendment/Separation of Powers is violated. These read like place-keeper sentences that were slated to be replaced by real analysis.

The judge grants a permanent injunction on the assertion that the requirements "have undisputedly been met." Undisputedly? No one disputed that the requirements were met? I guess that was supposed to be "indisputably." The judge drops a footnote listing the requirements for an injunction:

(1) that [the plaintiff] has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

The text of the opinion offers three sentences of analysis of these requirements:

The irreparable injury necessary to warrant injunctive relief is clear, as the First and Fourth Amendment rights of Plaintiffs are violated by the TSP. See Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965). The irreparable injury conversely sustained by Defendants under this injunction may be rectified by compliance with our Constitution and/or statutory law, as amended if necessary. Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution.

That's not analysis. That's a petulant refusal to take the task of judging seriously. Where is the discussion of hardship and public interest? The judge is so hot to hold the President to what she sees as his constitutional obligations. You'd think she'd take a little more care to give the appearance of adhering to hers.

Not digging Judge Anna Diggs Taylor.

I haven't had the time to read Judge Anna Diggs Taylor's opinion about the NSA program, other than to skim it and form the impression that it wasn't well-written and that the real analysis will have to come at the appellate stage.

Eugene Volokh's observations resonate with my superficial impression:

[T]he judge's opinion in today's NSA eavesdropping case seems not just ill-reasoned, but rhetorically ill-conceived. A careful, thoughtful, detailed, studiously calm and impartial-seeming opinion might have swung some higher court judges (and indirectly some Justices, if it comes to that). A seemingly angry, almost partisan-sounding opinion ("[The orders] violate the Separation of Powers ordained by the very Constitution of which this President is a creature," emphasis added, thanks to a caller for pointing this out) is unlikely to sway the other judges — especially when the opinion is rich in generalities, platitudes ("There are no hereditary Kings in America and no powers not created by the Constitution"), and "obviously"'s, and poor in detailed discussion of some of the government's strongest arguments.

Also at Volokh Conspiracy, Dale Carpenter is critical of the judge's conclusion that the plaintiffs have standing to sue, and Orin Kerr blasts the Fourth Amendment analysis.

This morning, the Washington Post is really hard on Judge Diggs:

[T]he decision yesterday by a federal district court in Detroit, striking down the NSA's program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work -- that is, as a guide to what the law requires and how it either restrains or permits the NSA's program -- her opinion will not be helpful....

The NSA's program, about which many facts are still undisclosed, exists at the nexus of inherent presidential powers, laws purporting to constrict those powers, the constitutional right of the people to be free from unreasonable surveillance, and a broad congressional authorization to use force against al-Qaeda. That authorization, the administration argues, permits the wiretapping notwithstanding existing federal surveillance law; inherent presidential powers, it suggests, allow it to conduct foreign intelligence surveillance on its own authority. You don't have to accept either contention to acknowledge that these are complicated, difficult issues. Judge Taylor devotes a scant few pages to dismissing them, without even discussing key precedents.

It's hard to understand why a judge writing an opinion in such a high-profile case, dealing with such difficult law, would not put immense effort into creating an outward appearance of heavy scholarly effort and pristine neutrality. Does the judge lack the competence to do it? Does the judge have a hot feeling of righteousness and outrage about the case and also think it's good to show it? Perhaps it's some subtle combination of those two things.

UPDATE: The 6th Circuit reverses -- discussed here.

What is this seeming compromise on the NSA surveillance program?

The NYT reports:

The White House has agreed to allow limited judicial review of the eavesdropping program run by the National Security Agency, Senator Arlen Specter, the chairman of the Senate Judiciary Committee, and a White House spokeswoman said today.

Mr. Specter, a Pennsylvania Republican who has sharply questioned the propriety of the program since it was disclosed several months ago, said the White House had agreed to a bill that provides for the highly secret Foreign Intelligence Surveillance Court to “consider the program as a whole and to make a decision on it.”...

A White House spokeswoman, Dana Perino, said today that a crucial factor in the agreement was that the bill “recognizes the president’s constitutional authority."...

Mr. Specter held a Capitol Hill news briefing after informing members of his committee about the agreement. He told panel members that the proposed bill would, among other things, demand that government investigators explain why they believe intercepted communications involve terrorism and create new penalties if officials misuse information....

Asked whether the review by the court would be continuing or a one-time affair, the senator said it would be the latter, unless the eavesdropping program is changed. “What we’re looking for is the existing program to be submitted to the F.I.S.A. Court on a one-time review; they make a decision, that’s it,” Mr. Specter said. He declined to speculate on whether the court would announce its decision.

I'd like to see more information on this, but based on this report, I can't tell what the court is being asked to do or who is supposed to have standing to bring the lawsuit the bill purports to authorize. A one-time review of the legality of the program? Who is suing whom in this lawsuit, and how does it avoid the problem encountered in Raines v. Byrd, where Congress tried to set up judicial review of the Line-Item Veto Act? Even if there is a concretely injured plaintiff to bring the lawsuit, what is the question the court is to answer? I thought the primary legal argument against the NSA program was that it didn't follow the letter of the statutory law. If the statutory law is changed to explicitly permit it, what is left? A Fourth Amendment argument? Does anyone think there is much to that?

"[T]he proposed bill would... demand that government investigators explain why they believe intercepted communications involve terrorism." In a one-time review? So the bill authorizes the program, but on condition the government proffer a good-enough explanation that it is indeed a method for tracking terrorists. Isn't that just a policy decision that Congress should be making right now as it passes a bill that authorizes the program? Please argue with me. I'm sure I'm missing something. But I'm just seeing a complete fizzle when this gets into the court.

"Is there no policy of protecting the home owner a little bit and the sanctity of the home from this immediate entry?"

Worried Justice O'Connor at oral argument in Hudson v. Michigan last Janauary. The case was reargued after Alito replaced O'Connor, and now, with Alito's vote, the Supreme Court has ruled in favor of the state, permitting the use of evidence where the police failed to follow the "knock-and-announce" rule established in Fourth Amendment law.

Justice Scalia wrote the opinion:

When the knock-and-announce rule does apply, it is not easy to determine precisely what officers must do. How many seconds’ wait are too few?...

Happily, these issues do not confront us here. From the trial level onward, Michigan has conceded that the entry was a knock-and-announce violation. The issue here is remedy....

Suppression of evidence... has always been our last resort, not our first impulse. The exclusionary rule generates “substantial social costs,” ... which sometimes include setting the guilty free and the dangerous at large...

What the knock-and-announce rule has never protected, however, is one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.

Justice Kennedy's vote was needed for the majority, and he wrote a separate opinion, denying that "violations of the [knock-and-announce] requirement are trivial or beyond the law’s concern" and that "the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt."

That's not how the dissenters saw it. Justice Breyer worried about letting the "police know that they can ignore the Constitution’s requirements without risking suppression of evidence discovered after an unreasonable entry." For a spirited defense of the exclusionary rule, read the whole thing.

UPDATE: The press is doing a bad job of reporting this case! I keep hearing and reading assertions that the Court said the police didn't commit a violation, when the government conceded that they did! This case was about what remedy was available for the violation.

ANOTHER UPDATE: Nina Totenberg gets it right.