The Court today in Becerra held invalid California’s laws requiring pro-life “crisis pregnancy centers” to alert customers that (1) the state provides low cost family planning services, including abortion services, in the case of licensed pregnancy-care facilities, or (2) that the facility is unlicensed, in the case of unlicensed facilities. Becerra is a speech case, and Masterpiece Cakeshop, decided earlier this month, was predicated on religious animus grounds (although really should be thought of as a speech case). However, the two cases seem greatly influenced by Justice Kennedy’s antipathy towards the state’s deciding, in a heavy-handed (perhaps arrogant) way, what is best for its citizens to think.
On Friday, White House Press Secretary Sarah Huckabee Sanders was asked to leave the Lexington, Virginia Red Hen because of her work with the Trump administration. The owner of the small restaurant in a town overwhelmingly opposed to President Trump privately explained to Sanders that it must uphold certain standards, “such as honesty, and compassion, and cooperation.” Sanders tweeted that the restaurant’s decision spoke more about its uncivil values than her own, and Trump, horribly and childishly, blasted the restaurant as “dirty.” Whether kicking a press secretary out of a restaurant actually upholds the Red Hen’s standards encompasses both philosophical and tactical questions. I want to touch upon a few aspects of these questions, and also to contextualize this issue with other current debates involving free speech values and property rights and liberty interests of private businesses.
Because I teach criminal procedure but write mostly about the First Amendment (I do have some Fourth Amendment pieces), I read Fourth Amendment cases differently from First Amendment cases. The Supreme Court’s decision in Carpenter v. United States is exciting because it holds that government use of cell site data to determine a defendant’s location over a period of seven days is a search, requiring probable cause and a warrant. Perhaps even more exciting, Carpenter promises to be a joy to teach.
There are so many reasons why Carpenter will be a great teaching case. Skeptical (and anxious) students prefer precise answers to thorny legal questions, but also need to be pushed to recognize a case’s inherent ambiguities and open questions. The majority and dissenting opinions give the reader snippets of clarity but also plenty of work to do to find coherence with underlying principles for future application. The case also straddles the line between “third-party doctrine” cases, so it recruits line-drawing and analogical reasoning skills. Plus, fundamentals of the doctrine are challenged by several Justices. The different opinions grapple with the relationship between property and privacy, and the Court also wades into confused areas like the connection between the Fourth Amendment and the subpoena power. This case has everything, even a lesson in cell phone technology!
Some of the most pedagogically interesting aspects of Carpenter:
I want to say a few things about a cool, conceptual legal puzzle left open by the Supreme Court’s decision last week in Hughes, but also about why pondering cool, conceptual legal puzzles is important – as abstract and inhuman as they are.
I have previously written (on my own blog) about the meta logic of Hughes v. United States. In Hughes, the Court had an opportunity to decide how lower courts should interpret fractured Supreme Court opinions where no majority agrees on the rationale behind a decision. (Here’s an example of the 4-1-4 prior opinion at issue in Hughes.) According to Marks v. United States, the governing rationale of a case where no majority can agree on the basis for the decision “is the position taken by those Members who concurred in the judgments on the narrowest grounds.” Of course, the meaning of “narrowest grounds” is unclear, but in Hughes, the Court dodged the meta question of how to interpret “narrowest grounds” by simply garnering a majority for the decision’s reasoning.
Richard Re and the hosts of First Mondays both noted an interesting possibility if the Court does decide to confront the Marks question head on. What if the Court fractures on how to interpret Marks, such that there is a 4-1-4 opinion on what to do about 4-1-4 opinions? This could lead to an interesting paradox where accepting one Justice’s opinion as the controlling one would lead to accepting a different Justice’s opinion as the controlling one.
Justice Kennedy’s majority opinion in Masterpiece Cakeshop is based on the religious animus of the Colorado Civil Rights Commission, and thus appears, at first blush, to be a narrow ruling. However, the evidence Justice Kennedy cites for religious animus could mean that the effects of this opinion extend far beyond the parties at issue. The scope of Matserpiece Cakeshop will depend on whether lower courts take the view of the Kagan/Breyer concurrence or of the Gorsuch/Alito concurrence.