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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Monday, January 23, 2012

Supreme Court Watch



A few notable opinions handed down.  See here and its own website, noting the .html links to the former for some reason recently lacks many opinion footnotes.  Why my traditional source for opinions that doesn't require me to open .pdf files that also don't allow me to follow links to cited cases suddenly has this problem is unclear. 

The important case decided today provided at least limited protected against government use of GPS devices, which was held to be a "search," though determining if it was "unreasonable" was not specifically addressed.  Orin Kerr, who imho wrongly thought the person had a weak case because of the public nature of the activity at issue (the travel of a car in public), has various posts at Volokh Conspiracy discussing the matter.  Another 4A case was a per curiam overturn of a 9th Cir. (joined there by libertarian Judge Kozinski) opinion not accepting police entering a home when a parent didn't want to have them come in regarding a matter involving her high school son and alleged threats involving guns. The police was said to reasonably had a concern about impending violence, but I think the lower court had the better argument. 

It is appreciated all nine realized that attaching devices on cars raises Fourth Amendment concerns, though the justices closely split on reasoning with Sotomayor using both Scalia's (majority) "property" approach and Alito's (with the other three "liberals") expectation of privacy approach.  Sotomayor's concurrence is my favorite, including her suggesting (given how much information is shared these days) the misguided if long time rule that sharing information with third parties suggests no right to privacy over it as a constitutional matter when the government gets involved (such as bank records or Internet files). 

Alito’s liberal pals tour continued.  In certain contexts, Alito appears to be a pick-up for privacy rights. Doe v. Reed (the anti-gay petition case), accepting privacy rights in the government employment context, reference to associational privacy in his ministerial exemption concurrence and his opinion here suggests as much.  Alito also again noted that modern day realities requires a non-simplified application of 18th Century expectations.  The "Scalia wants to know what Madison thought about video games" thing again.  The liberal/libertarian these days has to find victories where they can, and that’s something, but I'm with those who find his concurrence here a bit too open-ended, though honestly, "reasonable" leads to that sort of thing without artificial limits like Scalia's very small constable. 

The justices, continuing its mid-term supermajority theme, unanimously held that a state animal protection law was pre-empted.  It also, 7-2 (pals Scalia and Ginsburg dissenting) supplied a defendant win while interpreting a federal sexual registry law.  I provide no opinion here.

The orders handed down included a somewhat interesting quirk about Kagan recusing herself regarding them turning down Freedom Watch's (who challenged her right to hear the cases at all) request for argument time for the health law cases.  Randy Barnett, btw, opened comments for his views on federal power and the PPACA law as a whole at Volokh Conspiracy.  Don't know why he suddenly did that, but kudos.  His arguments, like I and others suggested, still leave a lot to be desired.