Choosing the Next Watchman

In a recent New York Times op-ed, Geoffrey R. Stone, of the University of

Chicago, called attention to the disingenuousness of the argument that judges—in
particular, Supreme Court justices—are ever merely implementing the “original
meaning” of the Constitution. Indeed, every time a pundit or a politician
advocates for the appointment of judges who will “strictly construe” the
Constitution, we should remember there is not a judge on the Court—now or
ever—who did not believe he or she was not strictly construing the Constitution.
Whether a commentator agrees likely has as much to do with his or her feelings
about the result as it does the methodology the judge employed to determine the
meaning of the Constitution.

We will have another opportunity to revisit these issues when President Obama
announces his nomination of a successor to Justice John Paul Stevens. He has
said, as Presidents do, that he has no litmus test for potential nominees. At this
writing, two federal court judges—Merrick Garland of the Court of Appeals for
the District of Columbia Circuit and Diane Wood of the Court of Appeals for the
Seventh Circuit—as well as the Solicitor General, Elena Kagan, have been named
as the leading candidates.

Each of these attorneys attended an elite law school, clerked for a U.S. Supreme
Court justice, and has had a storied legal career. Garland is a former federal
prosecutor whom President Clinton nominated for the bench in 1997. Wood is a
former law professor and lawyer in the Clinton Justice Department; President
Clinton nominated her for the bench in 1995. Kagan worked as a lawyer in the
Clinton administration and was dean at Harvard Law School before assuming the
Solicitor General’s post.

As Timothy Egan, writing in the New York Times, recently noted, and as Renée
Landers and I discussed in Jurist following the nomination of Justice Sonia
Sotomayor, debates about strict construction and litmus tests aside, the Supreme
Court is sorely lacking in diversity of experience. With the retirement of David
Souter last year, there is no justice on the Court with significant experience in
state government. With Justice Stevens’s retirement, there is no justice who did
not attend either Harvard or Yale for law school, and none who has not spent a
significant part of his or her career working in either academia or for the federal
government.

Of the three leading candidates, only Judge Wood was educated outside of the
northeast, having attended the University of Texas for college and law school.
Why is this important? Because, when all the justices share similar educational
and professional experiences, the Court as a whole may be missing legal
perspectives informed by, say, the experience of having attended a law school
where doctrine is as important as theory, or of having worked in private practice
or in a state court system, where most American lawyers spend their days and
most cases, civil and criminal, are tried.

“In the end,” as Professor Landers and I wrote last year, “by confining the
shortlist of potential nominees to those lawyers with certain backgrounds,
Presidents overlook the opportunity to add to the Supreme Court another kind of
diversity, one that may be just as important as racial and gender diversity. These
Presidents deprive the public of justices who may see the world and the legal
issues it presents in ways that are different and more helpful than those justices
whose views on the law were shaped by essentially similar educational and
professional experiences.”

Lawrence Friedman

Justice Stevens and Bright Line Rules

Taking up the thread from my colleague, Professor Friedman, I too think now is a good time to think about some of the themes that we can see in Justice Stevens’ writings. Like Professor Friedman, I too see a consistent effort by Justice Stevens to resist an overly formalistic approach to constitutional jurisprudence. While many who favor formalism do so in the belief that this is the best way to curb judicial activism, Justice Stevens’s writings illustrate how such a goal can prove illusory when it comes to cabining the authority of judges.

There is no better example of this than in the contrast between Justice Stevens’s and Justice Scalia’s opinions in Kyllo v. United States. In Kyllo, the police, using a thermal imaging device, observed the suspect’s home from across the street. The police suspected Kyllo of illegally growing marijuana in his home and they hoped that the thermal imaging device would help them detect any excessive heat emanating from the house. The police scan revealed that Kyllo’s roof and a side wall were relatively hot. Based on this and other information, the police obtained a search warrant and discovered marijuana and evidence of a growing operation in the house.

The issue for the Court was whether Kyllo had a reasonable expectation of privacy in the heat emanating from his house that could be detected by this special imaging device. Concerned about the impact that advancing technology can have on privacy rights, a majority of the Court, in an opinion by Justice Scalia, held that Kyllo did have a reasonable expectation of privacy and the observations by the police constituted a warrantless search of the home. Critical to Justice Scalia’s analysis was his concern about protecting the sanctity of the home, the very core area of Fourth Amendment protection, from invasion through technological advances. He attempted to draw a bright line by ruling that sensory-enhanced observations that reveal information regarding the interior of the home that would not otherwise be observed without physical intrusion constitute a search, where the technology is not yet in use by the general public.

In his dissent, Justice Stevens took a less formalistic approach to the problem, noting that the heat waves observed by the thermal imager were not in fact information about the interior of the home. Rather, the device detected heat emanating off of the walls of the home, and that same information could be observed in any number of ways. Justice Stevens also saw the formalistic bright line rule that the majority hoped to craft as illusory. Most significantly, Justice Stevens noted that by linking the Fourth Amendment protections to the availability of new technology, Justice Scalia was setting the stage for a reduction in privacy protections once the technology achieves a certain level of general use.

At the end of this dissenting opinion, Justice Stevens states that, rather then resolving the rather mundane issue before it, Justice Scalia and the majority attempted to craft an all-encompassing rule for the future. According to Justice Stevens, the Court departed from the “tried and true counsel of judicial restraint.”

It is quite a role reversal to have Justice Stevens accusing Justice Scalia of excessive judicial activism, but his dissenting opinion in Kyllo demonstrates well one of the key guideposts of his jurisprudence. Wary of formalism and cognizant that an excessive devotion to bright line rules can produce benefits that are more perceived then real, Justice Stevens frequently opted for a different, more nuanced and, in many cases, a more common sense approach to the constitutional problems that confront the Court.

Victor Hansen

Justice Stevens and the Commerce Clause

With the retirement announcement last week of Associate Justice John Paul Stevens, it's not too soon to begin to think about how history will view his 34 years on the high court. As many commentators have noted, Justice Stevens was the last appointed without a televised confirmation, and he may have been the last truly non-partisan pick. Looking over his many opinions, what stands out, particularly in more recent years, is not his leadership of the so-called "liberal" wing of the U.S. Supreme Court, but his unyielding effort to steer the Court away from a formalism that threatened at times to undermine the continuing vitality of our constitutional commitments.

An example is Justice Stevens's opinion for the majority in Gonzales v. Raich. That 2005 case concerned the question whether the federal Controlled Substances Act (CSA) prevented individuals in California from possessing, obtaining, or manufacturing cannabis for their personal medical use. At the time, California was one of several states that authorized individuals to use marijuana for medicinal purposes. Whether these laws ran afoul of the CSA depended in part upon whether the CSA was within Congress's power to enact under the Commerce Clause.

That the Act could be constitutionally challenged was a result of the Court's attempt to rein in Congress's power under the Commerce Clause in two earlier cases, United States v. Lopez, a 1995 decision, and United States v. Morrison, a 2000 decision. In each of those cases, a majority of the Court concluded that Congress could not regulate intrastate activity having a substantial effect on interstate commerce unless that activity has some relation to "commerce" or some some kind of "economic enterprise." In Lopez, the Gun-Free School Zones Act of 1990 failed this test because the Act criminalized mere possession of a gun, which, in the Court's view, was not an inherently commercial or economic activity.

One could reasonably have believed that this reason would apply to a federal law prohibiting marijuana possession for personal medicinal use, and that is precisely what Justice Sandra Day O'Connor argued in her Gonzales dissent--that the "possession and use of marijuana for medicinal purposes has no apparent commercial character." As she correctly observed, "Everyone agrees that the marijuana at issue in this case was never in the stream of commerce."

This line of reasoning, if carried to its logical conclusion, would have severely curtailed the ability of Congress to act under the Commerce Clause. But Justice Stevens, in his Gonzales majority opinion, steered the Court back toward an approach more deferential to Congressional judgments. Under that approach, when Congress elects to regulate a national market in a commodity--and there is no real doubt the CSA is an effort to do just that--the Court will not second-guess Congress's determination that the exemption of local possession of one commodity could have a substantial effect on the larger interstate market.

Of course, the Commerce Clause must have some limits--the Constitution, after all, is a grant of enumerated powers to the federal government. But whether an activity does or does not have a commercial character is a judicially-contrived limit that privileges judicial assessment of just what makes an activity commercial over the decided judgment of the majority of the people's representatives in Congress. So what limit is there on the commerce power? Well, there is democracy: as Chief Justice John Marshall put it nearly two centuries ago, "The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at election are, in this, as in many other instances ... the sole restraints on which they have relied, to secure them from its abuse."

Lawrence Friedman

Close Counts in Horseshoes and Miranda Warnings

In February, the Court announced the latest in a line of cases related to the sufficiency of Miranda warnings. In Florida v. Powell, the Court held that even though the police did not specifically inform the suspect that he had the right to consult with an attorney during questioning, what he was told was sufficient to convey that information.

In Miranda v. Arizona, the Court set out what it hoped would be a set of simple, easy to apply set of warnings that the police must give to a suspect before engaging in any custodial interrogation. The Miranda Court hoped that these warnings would help to level the playing field between a suspect and the police in the pressure-filled and coercive environment of a custodial interrogation. The Court also believed that a simple set of warnings would help to extract the Supreme Court and the lower courts from having to sort out the very fact-bound and inherently conflicting evidence that had, up to that time, characterized much of the litigation over the voluntariness of confessions.

Looking back now 44 years after Miranda, Florida v. Powell is another reminder that the Miranda Court’s vision has not been realized. On the contrary, Miranda has created a complex, confusing and inherently inconsistent body of caselaw and it leaves us wondering whether Miranda really solved anything.

The specific rights and warnings that the Court set out in Miranda were: the right to remain silent, the warning that anything the suspect says could be used against the suspect, the right to have an attorney present during questioning, and the right to have an attorney appointed if the suspect could not afford one. In Powell, the Court was asked to rule on the adequacy of the standard warnings used by the Tampa Police Department. The Tampa warnings did not specifically tell the suspect that he or she had the right to have an attorney present during questioning. Rather, the warnings told the suspect that he or she has the right to talk to a lawyer before questioning, and that the suspect has the “right to use any of these rights at any time you want during questioning.” The Court, in an opinion written by Justice Ginsberg, found that, while these warnings did not track exactly the requirements of Miranda, the warnings sufficiently informed the suspect that he or she could have an attorney present during questioning.

It is true that the Tampa Police Department’s warnings do not depart drastically from the Miranda requirements, but the question remains: if Miranda set out such bright line guidance, why depart from it at all? Could it be that the police are hoping that by simply throwing in a catch-all phrase at the end of the warning, the suspect will not fully make the connection between the right to consult with counsel before questioning and the right to have counsel present during questioning? When the Court approves of these “close enough” warnings procedures like the one in Powell, is it also signaling that it too does not think much of the protections provided by Miranda? What does seem sure is that a healthy majority of the Court, both liberals and conservatives, will continue to pursue a course of Miranda jurisprudence that departs from the simple guidance that the Miranda Court hoped to achieve.

Victor Hansen

J.D. Salinger's Privacy Precedent

At the time of his death in February, J.D. Salinger was as well known for the lengths to which he went to protect his privacy as for his stories about Holden Caulfield and the Glass family. Those efforts included litigation, in a case Salinger brought against Random House, publisher of an unauthorized biography called J.D. Salinger: A Writing Life, written by the other named defendant, the writer Ian Hamilton.

Hamilton researched and wrote the book in the mid-1980s, without any assistance from his subject or the vast majority of the subject’s friends and acquaintances. This was not unusual; in several chapters, Hamilton canvassed the many failed attempts by journalists over the years to learn more about the reclusive Salinger, including visits to Cornish, New Hampshire, where Salinger resided, to query the townspeople about the legendary and mysterious author. (Among the townspeople whom reporters approached was Judge Learned Hand, who summered in Cornish and declined to speak to an reporter from Newsweek about his friend and neighbor. In the book Random House eventually published, In Search of J.D. Salinger, Hamilton discussed their warm friendship, as did Gerald Gunther, many years later, in his biography of Hand.)

Though individuals closest to Salinger would not cooperate with him, Hamilton did have access to many of Salinger’s unpublished letters. In the first complete draft of A Writing Life, he quoted from those letters, so that readers might get a sense of the way in which Salinger expressed himself—his “tone,” as Hamilton put it. When Salinger (having obtained a galley copy of the then-unpublished book) objected, Hamilton turned to paraphrasing the letters. But Salinger did not withdraw his objection, and instead sought a preliminary injunction in the United States District Court for the Southern District of New York. Random House defended on the ground of fair use. The defendants prevailed in the District Court, but the First Circuit had other ideas. In Salinger v. Random House, the court reasoned:

To deny a biographer like Hamilton the opportunity to copy the expressive content of unpublished letters is not, as appellees contend, to interfere in any significant way with the process of enhancing public knowledge of history or contemporary events. The facts may be reported. Salinger’s letters contain a number of facts that students of his life and writings will no doubt find of interest, and Hamilton is entirely free to fashion a biography that reports these facts. But Salinger has a right to protect the expressive content of his unpublished writings for the term of his copyright, and that right prevails over a claim of fair use under “ordinary circumstances.”

The U.S. Supreme Court denied certiorari.

The First Circuit’s decision provides protection for unpublished work—at least, it provides protection for the work’s “expressive content,” as distinguished from the “facts.” But does the decision really protect privacy? That depends, of course, on how privacy is defined and measured. Alan Westin famously described privacy as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.” Privacy, in other words, is about the extent to which we can control the dissemination of information about ourselves.

On this understanding, Salinger v. Random House really doesn’t offer any kind of broad guarantee of personal privacy. To be sure, the decision safeguards those form of the thoughts that we commit to paper but do not publish. And this is something—we may take some comfort in knowing that the law will protect the way in which we choose to express ourselves within the confines of a communication we neither intend nor desire to share with the world.

Importantly, however, the Salinger case provides virtually no protection for the information contained in an unpublished expression of thought, which can be mined for what it is worth. “The facts,” the court concluded, still “may be reported.” In short, Salinger’s effort to stop disclosure of his unpublished letters resulted in a decision that shields the words with which we choose to explain ourselves, not the substance of what we say.

Lawrence Friedman