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Greatest Supreme Court Justices

Cass Sunstein has this post at BloombergView (emphasis added):

In the nation's history, 112 people have served on the Supreme Court of the United States. Suppose that we were to select the all-time greats. Who would make the cut?

To answer that question, we need a metric. It makes sense to consider two factors: historical significance and legal ability. It would be too contentious to include only those justices with whom one agrees, so let's make this list ideology-free. We'll also exclude the current justices, because it is too early to tell whether any will count among the all-time greats.

I largely agree with his list, and any "greats" list that includes both William Brennan and William Rehnquist has a decent claim to be "ideology-free."  I definitely agree with Sunstein's assessment that Robert Jackson was the best writer.

Googling the Wiretap Act

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Somewhat off-topic but interesting:  There has been a lot of controversy in recent years about the amount of data about Americans that the NSA and other government agencies have been vacuuming up.  But private businesses have been vacuuming orders of magnitude more.  Most of that activity is perfectly legal, so far, but some maybe not.

Here is the court summary of Joffe v. Google, Inc., USCA 9 No. 11-17483:

The panel granted in part a petition for rehearing, filed an amended opinion affirming the district court, and denied a petition for rehearing en banc on behalf of the court in an interlocutory appeal from the district court's order denying a motion to dismiss claims that Google violated the Wiretap Act when it collected data from unencrypted Wi-Fi networks in the course of capturing its Street View photographs.

The Wiretap Act imposes liability on a person who intentionally intercepts any electronic communication, subject to a number of exemptions. In the amended opinion, the panel held that data transmitted over a Wi-Fi network is not a "radio communication" exempt from the Wiretap Act under 18 U.S.C. § 2511(2)(g)(i) as an "electronic communication" that is "readily accessible to the general public."

The panel held that the phrase "radio communication" in 18 U.S.C. § 2510(16) excludes payload data transmitted over a Wi-Fi network, and that as a consequence, the definition of "readily accessible to the general public [ ] with respect to a radio communication" set forth in § 2510(16) does not apply to the exemption for an "electronic communication" that is "readily accessible to the general public" under § 2511(2)(g)(I).

The certiorari petition asking the US Supreme Court to review this case was filed March 27 as Google, Inc. v. Joffe, No. 13-1181.

SCOTUS Wednesday

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Today, the US Supreme Court decided United States v. Castleman, No. 12-1371, a case involving the interpretation of the federal statute restricting gun ownership by a person convicted of "a misdemeanor crime of domestic violence," 18 U.S.C. §922(g)(9).  The Court holds unanimously that this includes a state conviction for "having 'intentionally or knowingly cause[d] bodily injury to' the mother of his child," reversing the Sixth Circuit.  There is some disagreement on how much further the statute reaches.

What about the Second Amendment?

Finally, Castleman suggests--in a single paragraph--that we should read §922(g)(9) narrowly because it implicates his constitutional right to keep and bear arms. But Castleman has not challenged the constitutionality of §922(g)(9), either on its face or as applied to him, and the meaning of the statute is sufficiently clear that we need not indulge Castleman's cursory nod to constitutional avoidance concerns.
Now there's a public spanking for an inadequate argument, but no precedent on the Second Amendment question.

For today's oral argument session, the Court is hearing Wood v. Moss.  Aside from its interesting name (placing it in a category with the famous Plough v. Fields and Silver v. Gold) the case is about qualified immunity for Secret Service agents who were sued for thinking that demonstrators against the President just might pose a greater threat than demonstrators for him and acting accordingly.

Update:  Adam Liptak has this article in the NYT on the argument, noting that some of the justices urged the lawyer for the government to take a bolder position than the one he was taking.

Chemerinsky and Ginsburg

Jennifer Rubin has this column at the WaPo:

Erwin Chemerinsky, the liberal (are there any who aren't?) dean of University of California at Irvine's law school, recently wrote to tell Supreme Court Justice Ruth Bader Ginsburg her days are numbered so she should get off the court before she dies. No, really, he did. He opines: "She turned 81 on Saturday and by all accounts she is healthy and physically and mentally able to continue. But only by resigning this summer can she ensure that a Democratic president will be able to choose a successor who shares her views and values." Regardless of what you think of Ginsburg (or of Chemerinsky), this is a rotten, obnoxious suggestion.

First, on a human level, it's disgraceful to tell an older person to stop doing what they are doing because they might keel over any day. If Chemerinsky's parents are living I'm sure he would be offended if someone told one of them to get out of the way before they croak on the job. Former Colorado governor Richard Lamm got in a heap of trouble when he opined that rather than undertake life-prolonging measures the elderly have "a duty to die and get out of the way. . . . Let the other society, our kids, build a reasonable life." It is quite simply an affront to human dignity to predict the timing of another person's death and tell them to make room for others for the good of society.


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The US Supreme Court decided one civil case today and took up one civil case for full briefing and argument.  (Yawn.)  The next scheduled session day is two weeks from today, March 24.

Aiding, Abetting, and Guns

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The US Supreme Court has decided Rosemond v. United States, exploring yet another facet of the federal law on use of a gun in a crime, 18 U.S.C. § 924(c).  This case involves the "what did he know, and intend, and when did he know/intend it" aspect when an accomplice to a robbery uses a gun.

We hold that the Government makes its case by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime's commission. We also conclude that the jury instructions given below were erroneous because they failed to require that the defendant knew in advance that one of his cohorts would be armed.
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An active participant in a drug transaction has the intent needed to aid and abet a §924(c) violation when he knows that one of his confederates will carry a gun. In such a case, the accomplice has decided to join in the criminal venture, and share in its benefits, with full awareness of its scope--that the plan calls not just for a drug sale, but for an armed one. In so doing, he has chosen ... to align himself with the illegal scheme in its entirety--including its use of a firearm.
In practice, proving that a participant knew in advance that another participant was armed is going to require accomplice testimony in nearly every case, with all the problems that entails.

Car Chase Argument

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The US Supreme Court heard oral argument today in yet another case where the family of a person killed by police while engaging in extremely reckless, life-endangering conduct claims it is the police's fault rather than the deceased's, and therefore the police (and ultimately the taxpayers) should pay them big bucks.  The transcript in Plumhoff v. Rickard, No. 12-1117, is here.

Adam Liptak reports for the NYT:

The Supreme Court seemed to have little trouble concluding during an unusually one-sided argument on Tuesday that Arkansas police officers who had used deadly force to end a high-speed car chase could not be sued by the family of the driver.
Today the Supreme Court heard oral argument in Hall v. Florida, regarding when a murderer is deemed mentally retarded so as to be exempt from execution regardless of how heinous, callous, premeditated, or sadistic his actual crime really was.

In the course of this discussion, there was much talk about the 95% confidence interval in statistics.  Contrary to myth, this 95% number is nothing but a conventionally adopted rule of thumb.  There is nothing magic about it, and there is no compelling reason to use 95% in every circumstance, rather than some other number tailored to the needs of a particular situation.

The rule of thumb goes back to the period between the two world wars and the work of R. A. Fisher.  A common problem in studies is that we find that two things, call them A and B, tend to go together, and we want to get a handle on whether this is coincidence or a true correlation.  The rule of thumb is that we "reject the null hypothesis" and say it's not just a coincidence if the correlation between A and B is strong enough that the chance of it being a coincidence is less than 5%.  This is expressed in journals as p < .05.  A result meeting that criterion is pronounced "statistically significant" and given the coveted asterisk, as if there were a big difference between p = 0.051 and p = 0.049.  (There isn't.)

The quasi-religious devotion to this arbitrary criterion was skewered by the famed psychological statistician Jacob Cohen in a classic article:

The atmosphere that characterizes statistics as applied in the social and biomedical sciences is that of a secular religion [citation], apparently of Judeo-Christian derivation, as it employs as its most powerful icon a six-pointed cross, often presented multiply for enhanced authority.
The U.S. Supreme Court today took up a case that may be as remarkable for how it got to the high court as it is for the eventual holding.  Arkansas prisoner Gregory Holt, alias Abdul Maalik Muhammad, filed a handwritten certiorari petition on his own.  He claims the State's anti-beard policy violates the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Free Exercise Clause of the First Amendment.  The case is Holt v. Hobbs, No. 13-6827.

Back in November, the Court enjoined Ark. DoC from enforcing its policy against Holt, for the first 1/2 inch of beard, until disposition of the case.

Update:  The Court subsequently amended its grant of certiorari to narrow the Question Presented to "Whether the Arkansas Department of Correction's grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. §2000cc et seq., to the extent that it prohibits petitioner from growing a one-half-inch beard in accordance with his religious beliefs."

Protesting on Military Bases

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The U.S. Supreme Court decided one criminal case today, United States v. Apel.

Federal law makes it a crime to reenter a "military . . . installation" after having been ordered not to do so "by any officer or person in command." 18 U. S. C. §1382. The question presented is whether a portion of an Air Force base that contains a designated protest area and an easement for a public road qualifies as part of a "military installation."
Yes.  Unanimous.  For those keeping score, that is two unanimous reversals of the Ninth Circuit in two days.  The panel that decided this case knew it was flaky but felt it was bound by a Ninth Circuit precedent.  That's what en banc is for, your honors.  Use it to correct these decisions that are so wrong not a single justice thinks they are right.

Wrapping up our belated notes on Tuesday's decisions, there is Kaley v. United States:

A federal statute, 21 U. S. C. §853(e), authorizes a court to freeze an indicted defendant's assets prior to trial if they would be subject to forfeiture upon conviction. In United States v. Monsanto, 491 U. S. 600, 615 (1989), we approved the constitutionality of such an order so long as it is "based on a finding of probable cause to believe that the property will ultimately be proved forfeitable." And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer.

In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property.The trial court convened a hearing to consider the seizure's legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury's prior determination of probable cause to believe they committed the crimes charged. We hold that they have no right to relitigate that finding.
Unusual lineup on this one.  Opinion by Justice Kagan, joined by Justices Scalia, Kennedy, Thomas, Ginsburg, and Alito.  Dissent by Chief Justice Roberts, joined by Justices Breyer and Sotomayor.

The Long Arm Gets A Little Shorter

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Walden v. Fiore is a law-enforcement-related civil case decided yesterday by the U.S. Supreme Court.

Does a police officer conducting a seizure in one state subject himself to civil suit in another state (in this case, on the other side of the country) merely because the seizure will have a foreseeable effect in that other state due to the property owner's residence there?  No, said the Supreme Court unanimously.  Assertion of jurisdiction on such a tenuous basis denies the sued officer due process of law.
The Fourth Amendment forbids unreasonable searches and seizures.  The Supreme Court has said this generally requires a warrant to enter a home, with some exceptions.

It has long been established, as a general rule, that police may enter a home without a warrant if an occupant of the home with full authority over it invites them in.  As a matter of property law and generally understood social convention, of course you can go in if one roommate invites you.  You don't have to go around and get consent from every roommate.

This cohabitant rule might be considered an application of the general rule actually in the Constitution.  Such an entry is not unreasonable.  It might be considered an exception to the court-created warrant requirement.  Either way, it is well established.

Eight years ago, in Georgia v. Randolph, the Supreme Court made an exception.  Randolph, present at the time, objected to the entry of the police into his house, but his wife "readily gave" consent.  This was held to be a violation of the Fourth Amendment in a 5-4 decision.  "The question here is whether such an evidentiary seizure is likewise lawful with the permission of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent."

What if the objector is not present?  That was the question in the case decided yesterday, Fernandez v. California.

Ineffective Assistance and Experts

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The US Supreme Court today sent a capital case back to the Alabama courts to reevaluate the petitioner's ineffective assistance claim.  The case is Hinton v. Alabama, No. 13-6440.

This case is highly unusual for a capital case in that the disputed question actually involves who committed the crime.  The trial lawyer hired a forensic expert he knew was unqualified because he mistakenly believed that state law capped the fee he could offer.  In fact, the statute had been amended to give more leeway.  The prosecutor sliced and diced the unqualified expert.  The state courts failed to correctly apply the "prejudice" prong of Strickland v. Washington, holding that there was no prejudice because the experts in the postconviction proceeding testified the same as the trial expert.  That's not the point.  A qualified expert would not have been so easily attacked by the prosecutor, and there is a reasonable probability the jury would have believed him.

The high court took this case on direct review of the state courts, rather than letting it go to federal habeas first, probably to avoid the complications of the AEDPA deference standard.

So is it open season for federal courts to second-guess the qualifications of experts in the guise of ineffective assistance claims?  No, the Court makes clear:
In a Friday evening "document dump," attorneys for California Governor Jerry Brown and the prisoners filed a stipulation to dismiss Brown's appeal to the Supreme Court of the three-judge court's order on California prisoner population.  The stipulation was filed at 5:03 p.m. PST.

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