Lots of Cameras; Lots of Data

In China, they say the "authorities" can identify anyone, in any public place, in seconds. With a population of nearly 1.4 billion, that kind of state power is scary.  Can the United States be that far behind?

This real-time identification is the latest technological rage; brought to us by a high-tech process known as facial recognition. Like the geofence warrants profiled in our last post, facial recognition is getting lots of love from law enforcement as a highly-effective investigative tool to solve crimes.

Real-time facial recognition technology allows authorities to match any face, captured on a number of networked cameras, with an extensive and growing database. This is accomplished, by the way, in complete secrecy.

But what happens to our privacy when law enforcement can track all of our moves? Our privacy erodes to the point of extinction, that's what happens.

Detroit Police Department's Real-Time Facial Recognition Software

Here in Michigan, the Detroit Board of Police Commissioners has been attempting to articulate a facial recognition policy. Whether the Detroit Police Department is allowed to implement facial recognition in real-time; and whether such implementation will result in racial injustice for African-Americans are two of the hot-button issues surrounding the recently-acquired facial recognition software.

The DPD, with City Council approval, purchased the million dollar facial recognition software in January 2017. As soon as it was installed on the DPD's network, the scope of the software's implementation was the subject of a heated and protracted policy debate.

Police Chief James Craig, along with Detroit Mayor Mike Duggan, favor implementation of the software with certain safeguards. Chief Craig says that no one will be the subject of criminal charges based solely on facial recognition; that the software would not be used for real-time identification; and that officers transgressing these limits would be subject to disciplinary and possibly criminal sanctions.

As the Law Blogger was uploading this post, the Board of Police Commissioners approved the Chief's request for expanded use of facial recognition in a 8-3 vote. Now the expanded-use policy goes to the Detroit City Council for a ratification vote. With a top-ten big city murder rate, and enough unsolved case files to fill a good sized library, it is understandable why city leaders want broad implementation of the software.

In Detroit, ubiquitous security cameras, standard for most retail businesses, provide an excellent image feed for comparison to the DPD's photo database. The so-called "green light partnership" requires participating businesses in Detroit to maintain a minimum standard of lighting on their premises, and also requires installation of high-definition security cameras that feed directly into the DPD's computer network.

Most of the current green light partners are gas stations and liquor stores; high-profile crime targets. Soon, however, green light partners will include schools, churches and health care facilities. News stories about DPD's software also mention the potential for ubiquitous traffic cameras to be patched into the facial recognition software.

Obvious targets here in Detroit are the legion of repeat offenders whose images currently reside in the DPD's database. The database against which images are compared can easily be expanded from the basic mug-shot collection, to include social media images, Secretary of State images, and other government-maintained digital photo databases. And yes, there is a mobile-device-version of the software.

Biometric Privacy Rights

The DPD's implementation of facial recognition, and the similar -suspected- use of this technology by the Chicago Police Department, precipitated a review and assessment recently published by the Georgetown Law's Center on Privacy and Technology. Pilot face recognition programs are rolling-out in New York, Washington D.C. and Orlando.

Across the board, law enforcement officials issue assurances that the facial recognition software they are considering will not be used to monitor random citizens, immigrants, activists or people of color. Yet once implemented, the potential for serious Orwellian privacy invasion is certainly operational.

The Detroit chapter of the ACLU, of course, has been vocal in opposition to any adoption and use of facial recognition software, mostly on the basis such software has great potential to discriminate against people of color. Critics of the software claim it misidentifies people of color in a high percentage of cases. Perhaps for this reason, the City of San Francisco has banned all state use of this technology.

State Legislation

Here in Michigan, state legislators have introduced a bill prohibiting law enforcement from using any evidence obtained from facial recognition technology to enforce state law. The bill expressly calls for the exclusion of evidence so obtained as an express violation of the Fourth Amendment to the United States Constitution and section 11 of article 1 of Michigan's constitution.

This bill, of course, represents the other end of the spectrum. Placing an absolute bar to law enforcement's use of facial recognition technology will not likely pass any legislature, regardless of the political climate; such a bright-line bar is simply too restrictive.

A strong public interest exists in the privacy of our biometric data. One problem with facial recognition is that there is no way to "opt-out".

Illinois passed the nation's first biometric privacy legislation back in 2008. The Biometric Information Privacy Act proscribes the collection, use and dissemination of a citizen's biometric data without consent. This act, however, does not apply to state actors; only commercial entities.

Constitutional Concerns

Freedom of assembly under the First Amendment, and the Fourth Amendment's requirement that seizures be based on probable cause are fundamental rights. To the extent that collecting and transmitting our biometric data constitutes a seizure, minimum constitutional standards are sure to be developed.

Surprisingly, the Roberts Court is turning a studied eye toward not only selecting, but properly deciding some very interesting privacy cases. Last August, we blogged about the most recent such case: Carpenter v United States.

Carpenter was summarized in our post:

Tim Carpenter was convicted in the United States District Court for the Eastern District of Michigan for a series of armed robberies in Detroit and across Northern Ohio. The FBI used Carpenter's archived cell phone call location records to track his nearly every move over a long period of time.

Conservative critics of the decision feared that long-trusted law enforcement techniques may be compromised by a search warrant requirement. On the other hand, privacy advocates hailed the 5-4 ruling as a victory for our diminishing rights to digital privacy.

The issue presented in the case is whether law enforcement was required to first obtain a warrant from a neutral magistrate or judge prior to securing cell phone location data. In Carpenter, the data was so extensive, it was used to create a detailed map of the defendant's movements. This map was a powerful evidentiary component which led to the Defendant's conviction.

Although prior SCOTUS rulings have held that motorists do not have a reasonable expectation of privacy as to their driving movements, Justice Roberts held that people do not expect that the police are tracking their every move over a long period of time. The decision focused on the qualitative sea-change in digital data and its availability at the expense of basic privacy.

In the 5-4 opinion that granted Carpenter a new criminal trial, Justice Roberts declared that we do not waive our Fourth Amendment protections simply by taking a step outside of our homes. SCOTUS held that secretly monitoring and cataloging every single move across an appreciable span of time violated Carpenter's Fourth Amendment rights.

Given the growing list of U. S. cities bidding on facial recognition software, and considering the increasingly high-tech methods of data collection [i.e. geofence warrants, police drones, facial recognition] a case will come along soon that is ripe for a petition for certiorari before the SCOTUS.

Until then, our privacy rights continue to erode. Where we go, when we go there, and with whom, are now as much a part of our digital profile as our key-strokes on Internet-connected devices. Should the state have unfettered access to our profiles?

We Can Help

If you or a family member have been the subject of a warrant or criminal charge, based in whole or in part, on facial recognition technology, or on a geofence warrant, contact our law firm to have your options assessed.

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Unless we miss our guess over here at the Law Blogger, D.C. Circuit Court of Appeals Judge Brett Kavanaugh will be confirmed by the United States Senate later today. Kavanaugh will fill the SCOTUS seat vacated by Justice Anthony Kennedy.

Advice and Consent of the Senate

Article II, section 2 of the United States Constitution, where the rubber meets the road on the concept of balancing the branches of government, states:

[The President] shall have Power, by and with the Advice and Consent of the Senate ... [to] appoint ... Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law...

America is Divided

It is impossible to avoid the crush of 24/7 news coverage of Judge Kavanaugh's nomination to the SCOTUS. America is now divided into two intractable camps: those that support Judge Kavanaugh and those that stand by his accuser, Dr. Christine Blasey Ford.

Judge Kavanaugh narrowly emerged from the Senate Judiciary Committee last week, irreparably damaged in the all-important court of public opinion. While the Judiciary Committee voted 11-10 to advance the nomination to the plenary Senate, a political compromise forced an expedited supplemental FBI investigation into Dr. Ford's allegations.

Ford claims that Kavanaugh, when they were at a high school party in the early 1980s, groped her; that he laid on top of her placing her in fear that he was going to rape her; and that he placed his hand over her mouth to prevent her from calling for help. [Criminal conduct on behalf of Kavanaugh, if true; criminal conduct on behalf of Dr. Ford, if untrue.] But for these 30-year old allegations, Kavanaugh, a conservative jurist, should have been a lock for Senate confirmation to the SCOTUS as the latest Trump appointee.

And of course, this being America, these allegations spawned other sets of allegations of more groping and excessive college drinking. All of the sudden, Judge Kavanaugh is no longer the conservative federal jurist from Yale Law School and the Georgetown Preparatory School [where SCOTUS Justice Neil Gorsuch also attended].

Although not a public document, the supplemental FBI investigation into Dr. Ford's allegations was supplied to Senators two days ago; the Senate vote is scheduled for later today. Apparently, in gleaning from statements by a few select Senators, the FBI report failed to corroborate any of Dr. Ford's specific allegations. We here at the Law Blogger would love to have been a fly on the wall when FBI agents interviewed Judge Kavanaugh's Jesuit prep-school wing-man, best-selling author, and general rabble-rouser Mark Judge. Alas, that's for another post.

With all this drama, you would think that the Federalist Society and the White House would have caught some wind of the strange brew wafting their way, and simply avoided all the burnt political capital by going to another conservative choice.

There is no question that Judge Kavanaugh, sitting on the D.C. Circuit through which momentous cases routinely flow, is a credentialed conservative jurist. The Washington Post, from an analysis of his published opinions over the past decade, concluded Kavanaugh was the most conservative jurist on the D.C. Circuit Court of Appeals in every policy area. [Note: consider the source; this is the same newspaper that initially reported Dr. Ford's letter to Senator Feinstein.] Nevertheless, his published decisions are along the lines of Justice Antonin Scalia; he is an originalist and a textualist, meaning that he does not find individual rights by reading "between the lines" of the Constitution. Like Scalia, he is far more conservative than moderate, and exhibits an expansive view of executive power.

This last bit is especially troubling during the Trump era. Listening to President Trump this week, grandstanding for Republicans on the eve of the mid-term elections, trying to minimize and dismiss Dr. Ford's allegations -comparing them to his own women troubles- was pathetic. If he could, Trump would do away with this "Advice and Consent" stuff altogether.  Trump was particularly un-Presidential when he mocked Dr. Blasey-Ford -her diction and her lack of memory on some details.

So here we are, with another Advise and Consent process that has torn the country apart. One thing is painfully clear: someone is lying.

There are no procedural rules for the Advise and Consent process. The Judiciary Committee is not a courtroom subject to rules of evidence and procedure. The nominee is not afforded the same constitutional rights as an individual accused of a crime. Likewise, an accuser does not need to prove allegations "beyond a reasonable doubt", the highest evidentiary standard.

Dr. Blasey Ford's Camp

Dr. Ford's allegations provide yet another high-profile example of the power, yet limitation, of the #metoo movement. Maddeningly for this camp, these allegations are so stale they are nearly impossible to corroborate. Thus, for this group, the allegations are destined to go down in history, like those of Anita Hill and Justice Clarence Thomas, as another unresolved allegation of "he said, she said" sexual assault.

Yesterday afternoon, Senator Susan Collins [R-Maine] focused on a lack of corroboration to an ancient allegation, signaling that she would be voting for Kavanaugh's confirmation. Under the threat of a felony charge [lying to a federal agent], apparently none of the individuals specifically mentioned by Dr. Ford, corroborated any of the basic details of her account to the FBI investigators.

Victims of sexual assault, for many different reasons, decide to suffer in silence for decades. Professionals in the criminal justice industry know that many survivors take their plights to their graves.

Criticism of the Ford supporters includes calling the detonation-event itself into question: the so-called leaking of Dr. Ford's letter to Senator Diane Feinstein to a ravenous media-machine that simply cannot get enough sexual raw meat. When the media took this ball and ran with it, Dr. Ford was the one that made the down payment up front. Some say she was betrayed by the very people she turned to as a #metoo survivor. For her part, Senator Collins does not believe that her colleague from California disseminated the original letter to the press. These and other Senators are now all running for political cover.

Judge Kavanaugh's Camp

The Judge's supporters are glad that Senator Collins saw things their way and did not find Dr. Ford's allegations persuasive by even a preponderance of the evidence in the Senate record. Certainly not persuasive enough to block Kavanaugh's nomination. Also, the judge's camp is quick to point out that this has become a derailed media circus -which is true- focusing on sex, beer and UB40, rather than the judge's 12-year record from the federal bench.

These supporters emphasize that Judge Kavanaugh has already undergone half a dozen FBI investigations during his storied career as a federal judge. This conservative group is looking forward to possibly 4-decades of right-leaning opinions from this truly conservative jurist, especially when paired with Justice Gorsich, his Jesuit-trained prep school classmate. The Federalist Society recognized that Kavanaugh, unlike his Reagan-appointee predecessor, Justice Anthony Kennedy, who became the infamous "swing vote" on the SCOTUS, will remain true to his conservative faith.

If the right cases come along, you can expect this jurist to increase the powers of the executive branch, and limit individual rights in favor of the powers of the state. In a perfect storm, a case involving abortion may get teed-up for his deciding vote; he may even be assigned by Chief Justice John Roberts to write the historic opinion.

Like Dr. Ford, however, Judge Kavanaugh is not getting out of this process unscathed. His otherwise stellar career as a conservative federal jurist now bears this horrid permanent stain.

As with the Federalist Society, we do not think this episode will affect the tone or tenor of now-Justice Kavanaugh's prospective SCOTUS opinions, yet plenty of questions remain in our minds about this jurist; this person. Despite his apology in the Wall Street Journal, we saw his core-temperment in the heat of battle when he testified; it was not pretty; it was ugly. The picture above truly, is worth a thousand words. Where unproven allegations of sexual abuse are concerned, the smoke usually manifests some type of fire.

While the fire in Kavanaugh's case was extinguished long ago, you won't be seeing this SCOTUS justice giving speeches or lectures at Harvard Law School. He will be hunted and confronted in public until the day he dies.

We shall see if he, like Clarence Thomas, sits silent during oral argument, never asking questions of the lawyers arguing their cases before him; preferring to communicate through written opinions. In any event, a decades-long tenure will be Kavanaugh's best revenge. His place in history, however, already has been set in stone.

America Gets Screwed

Because one of these two people is lying, America gets screwed. If Dr. Ford told the truth, this guy's transgressions, albeit over 30-years ago, belie a violent and abusive core, inappropriate -even disqualifying- for any judge, let alone a Supreme Court Justice. If Judge Kavanaugh told the truth to the Judiciary Committee, then a special place in Hell awaits women that manufacture and weaponize false allegations of sexual abuse. Take your pick; it's all bad folks.

Our take-away from all this drama is that public respect and trust in our all-important judicial system is eroded by spectacles like this one. The lawyers at our firm are constantly advancing the legitimate causes of our clients before county and state judges. We depend on these judges to fairly resolve important legal conflicts.

In times like these, we thank our colleagues on the bench that have remained ever-vigilant for the right result in every case, and who have remained just and impartial despite the strong, often pungent, political currents of the day.

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At age 80, Justice Kennedy certainly would be well within his right to retire from the SCOTUS. Rumors flew again this week when Kennedy's annual law clerk reunion was advanced to early June, fueling speculation that he will not be on the bench for the October term.

For his part, Justice Kennedy is not saying anything about retirement, leaving it to speculation as to when, if ever, he may retire.

Justice Kennedy's retirement would provide President Trump another opportunity to bolster the conservative block on the court. And when Kennedy retires, could Justice Ruth Bader Ginsburg be far behind. President Trump could possibly fill three seats on the court in his first year in office.

While all this is going on, many court observers have noted Chief Justice John Roberts' slow and quieet slide to the center. A George Bush appointee, Justice Roberts has disappointed some conservatives by becoming the new "median vote"; a role long-held by Justice Kennedy.

If Trump appointees make-up a third of the High Court, many legal scholars expect a renewed legal battle over women's right to abortion. With 5 solid conservative justices on the High Court, the seminal case of Roe v Wade could be in jeopardy.

Stay tuned; we will continue to track the rumors and innuendo emanating from the SCOTUS this summer.

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Like the cherry blossoms in Washington D.C., written opinions appear at this point in the High Court's term. In the last month, SCOTUS issued two unanimous opinions that greatly assist disadvantaged students obtain free and appropriate public education.

The first case, from Michigan, involves a service dog named Wonder; our associate, Laura Nieusma, set the stage in her post from last June when SCOTUS first granted certiorari. The other case, from Colorado, significantly bolsters the rights of millions of learning disabled students in a unanimous opinion authored by Chief Justice John Roberts.

In the case of Wonder, the parents of a kindergartner wanted their daughter, who has cerebral palsy, to attend school with her service dog. The Supreme Court ruled unanimously that when families bring federal actions under the Americans With Disabilities Act or the Rehabilitation Act, they need not jump through the administrative hoops of the more complex Individuals with Disabilities Education Act.

The Michigan school district asserted that the student's human aide could do everything the service dog could do and more. Respondents also argued that the dog was a significant distraction to the other students.

A motion for summary judgment filed by the school, asserting that the parents were limited to the administrative procedures of the IDE, was granted; the Sixth Circuit Court of Appeals affirmed the dismissal.

Justice Elena Kagan authored the opinion, reversing the Sixth Circuit on technical procedural grounds and remanding the case to the trial court. On remand, the Supreme Court sought clarification as to whether the family availed themselves of any available administrative remedies. Not a complete win, but much better than the slap in the face the family received by the trial court.

At this point, however, the continued legal battle is a matter of principle for the family. The girl has moved-on through her elementary education, presumably without the aid of her service dog, while this case has made its way to the SCOTUS.

In the Colorado case, Chief Justice Roberts held that schools are required to offer special education programs that meet higher standards. The unanimous ruling held that minimal instruction for disabled students is insufficient; programs must be designed to allow students to progress academically, despite their learning disabilities.

The case arose when the parents of an autistic teenager sued, claiming their son's school did not provide a sufficient curriculum to foster academic progress. Under the federal IDE, a free and appropriate public education is required.

Chief Justice Roberts' opinion held that while deference is granted to school administrators to fashion specific special needs programs, those programs must be, "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances."

Fall-out from the unanimous opinion was rather immediate; showing-up the very day the opinion was announced. Judge Neal Gorsuch was questioned about the new higher standard during his Senate confirmation hearing; the higher standard replaces a lower standard that Judge Gorsuch adopted in an earlier similar case and that was favored by the Trump Administration's controversial Education Secretary Betsy Devos.

Moving forward, programs designed to foster mere de minimus progress from year to year will be subject to claims under the IDE. This is good for the underdogs who need to progress and thrive within the framework of our free appropriate public education.

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It's that time of year when the SCOTUS is awash in oral arguments that will lead to the seminal opinions of this term. So it was yesterday at the High Court in Washington, D.C. for argument in the case of United States v Texas, posing an important immigration policy question that tests the very limits of executive branch power.

This case presented an evenly divided Court -down one justice following Justice Scalia's sudden death in February- with the task of passing muster on President Obama's innovative immigration policy; a series of recent executive directives made through the Department of Homeland Security known as Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”).

The objective of DAPA is to provide favorable prosecutorial discretion for otherwise illegal immigrants that satisfy certain express criteria [such as verifiable employment, and having a young adult child that is a citizen of the United States], granting such individuals a limited period of time during which they are deemed to be "lawfully present" in the United States. The term "lawfully present" is at the center of the dispute.

Here are the legal mechanics of the issue, as stated by the SCOTUSBlog:

(1) Whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA) to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3.

We here at the Law Blogger define the issue as: whether the President or Congress should decide who, among the more than 10-million illegal immigrants in the US, gets to stay in-country, and for how long, despite no legal right to do so.

Texas and 25 other states challenged Obama's executive acts relative to DAPA and successfully had the executive acts enjoined by a federal judge in Texas; the injunction was affirmed by the Fifth Circuit Court of Appeals.

The Solicitor General of the United States asserted that President Obama had the constitutional authority to establish priorities for enforcement of the federal immigration laws. Further, the United States argued that Texas, not being harmed by DAPA, lacked standing under the constitution to even bring the suit to federal court.

Texas, on behalf of itself and many other states that joined the suit, asserted that it would suffer significant administrative costs [i.e. providing drivers licenses and other government services] devoted to a group of people who are in the country illegally.

Chief Justice John Roberts, active during the extended oral argument, was skeptical of the federal government's position, giving rise to speculation that he would not likely join the block of 4 liberal justices. Without five justices signing onto a "majority" opinion, the ruling will lack authority as precedent and the Fifth Circuit's injunction of the federal directives will remain in place for the balance of President Obama's term in office.

President Obama's legacy aside, there are countless lives and families in the balance, along with our national security. This case presents a complicated mess, to be sure.

We will be watching for the SCOTUS opinion on this case so stay tuned.

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Chief Justice John Roberts

On the penultimate business day in June, the United States Supreme Court concluded its term with the announcement of its historic decision in National Federation of Independent Business v Sebelius; the Obamacare case that tested the constitutionality of the Affordable Care Act.  As unlikely a jurist as could be found, a visibly uncomfortable Chief Justice John Roberts, announced that Obamacare was upheld in a 5-4 opinion that he authored.

The ACA was upheld on the somewhat questionable grounds of Congress' power to levy a tax.  More than a few legal scholars characterize the so-called "individual mandate" requiring individuals to secure health insurance or pay a penalty, as Congress levying a punishment, not a tax.  The consensus among these same scholars, however, is that challenging the constitutionality of the ACA was a colossal waste of time; legislation of this nature has routinely passed constitutional muster dating back to the social programs of the 1930s.

We here at the Law Blogger cannot wait for the contribution from our guest blogger, Professor Robert Sedler, to weigh in on this decision.  Stay tuned for that.

Here is a summary of some of the more significant decisions issued by SCOTUS this term:

• Churches are entitled to a "ministerial exception" to their adherence to state and federal employment laws, enabling them to hire whomever they want to stand at the pulpit; the remaining question in this case is how deep into the employee roster this ministerial exception goes.

• Police must secure a warrant, as required under the 4th Amendment's "search and seizure" clause, prior to attaching a GPS tracking device on a vehicle.

• Corporations and unions can spend unlimited amounts of money on political campaigns as the Court upheld it's game-changing Citizens United decision and applied it to a Montana law.

• An accused has a right to the effective assistance of legal counsel under the Sixth Amendment during the criminal plea-bargaining process.

• The prosecutor's expert witness may discuss laboratory test results [usually involving blood samples and DNA] without the live testimony of lab analysis that assisted in processing the sample, and this does not violate the "confrontation clause" of the Fifth Amendment.

• State criminal laws that require that a juvenile convicted of murder be sentenced to life in prison without the possibility of parole are unconstitutional.

The justices will reconvene for the 2012-2013 term in October.  Must be nice to be one of nine justices on the High Court.  After deciding such weighty decisions that affect our lives, you really get to enjoy your summer!

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Last Monday, the SCOTUS issued a 5-4 decision in what could turn into a seminal 4th Amendment case; United States vs Jones.  The High Court strongly embraced privacy here in the electronic age.

In 2004, Antoine Jones owned and operated a hopping night club in downtown Washington D.C.  His joint was so jumpin, it caught the attention of a joint drug task force consisting of the FBI and the Washington PD.

The task force staked out the club by filming all the action at the front door.  Also, Jones' cell phones were tapped and data dumped.  With this evidence in hand, the task force applied for and was granted a warrant to place a GPS tracking device on Jones' wife's Jeep Cherokee within 10-days and within the District of Colombia.

Problem: the GPS device was placed on Jones' vehicle on the 11th day, and in Maryland.  The vehicle was tracked for 28-days and a case for cocaine distribution was submitted for prosecution based, in part, on the evidence collected through the GPS tracker.

Prior to his first trial, Jones moved to suppress the GPS data; his motion was only granted in part.  The trial resulted in a hung jury.  Jones was tried again, and ultimately he was convicted and sentenced to life imprisonment.

The federal appellate court, the D.C. Circuit Court of Appeals, reversed Jones' conviction and SCOTUS granted the U.S. Solicitor's petition for certerorari.  On appeal, the government conceded to the botched execution of the warrant, arguing no warrant was needed in the first place.

Last November, when the case was orally argued before the United States Supreme Court, the Justices were clearly troubled by the government's argument.  An appellate lawyer can glean a lot about the likely outcome of a case from the questions justices and judges pose, or don't pose, during oral argument.

In Jones, Justice Steven Breyer likened the government's position to George Orwell's 1984, commenting to the Solicitor General, "If you win this case, there is nothing to prevent police or government from monitoring 24-hours a day, every citizen of the United States."

Chief Justice John Roberts wanted to know whether the Solicitor General's argument meant that the government could place tracking devices on the vehicles of the 9 Justices.

The opinions themselves, contain Justices' musings [dicta] on what the founders would have ruled back in 1791, regarding these confounded GPS devices.

Justice Sonia Sotomayor wrote a concurrence taking a broad view of our privacy protections guaranteed by the Fourth Amendment, against the many highly sophisticated new electronic tracking devices deployed by the government.  Justice Anthony Scalia, writing for the majority, tailored a more narrow view of privacy; couching his conclusion on the basic definition of a "search", and clearly demarcating our "expectation of privacy" to include satellite tracking device-free vehicles.  

Flatly rejecting the government's argument that the temporary installation of the GPS tracking device was not a search, the Scalia majority affirmed the DC Circuit's reversal of Jones' conviction, warning authorities they needed a probable cause warrant in order to attach tracking devices.

Other than Sotomayor's concurrence, which does not bind future courts, SCOTUS  did not provide a sweeping enhancement of privacy rights in the electronic age.

Dodging a serious sentencing bullet, life, Mr. Jones is now free to go; his conviction for distributing cocaine stays reversed.

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In a hotly contested 5-4 plurality decision that will surely go down as one of the more controversial cases of this decade, SCOTUS affirmed the 9th Circuit Court of Appeals in ordering the release of more than 45,000 California felons.  The decision will precipitate the largest release of prisoners in American history.

Brown v Plata began it's marathon crawl through the federal court system in 1990, when a case was filed challenging the poor status of mental health treatment in the California prisons.  Then in 2001, a companion case challenging the medical care of prisoners was initiated.

These consolidated cases have everything, from a procedural standpoint.  For example, a "special master" first was appointed by the federal court to make findings about the prison conditions.  The State of California stipulated to violations of the Eighth Amendment's prohibition of cruel and unusual punishment and agreed to remedy the problem by reducing overcrowding in the prisons.  Next, when remedial measures fell short, or did not occur, the court appointed a receiver to oversee the California Department of Corrections.

The cases were even assigned to a special three-judge panel to oversee the CDC's progress; or lack thereof.

Justice Anthony Kennedy wrote the majority's opinion, finding that prison conditions had gone too far for too long.  The opinion provides a few slices of life in the CDC like sharing a toilet with 55 of your good buddies, or doing your entire four-year bit in a sweaty gymnasium. 

The always-conservative Justice Antonin Scalia opined that the majority's decision was "absurd", noting that SCOTUS routinely overruled 9th Circuit decisions that called for the release of individual prisoners.  Justice Scalia sees grave problems that will come home to roost from the Plata ruling.

In a separate dissent, Chief Justice John Roberts wrote that the majority's decision conflicts with a federal law which prohibits judges from releasing prisoners.

The one thing SCOTUS gave the State of California was time.  California has busied itself with transferring thousands of state prisoners to county jails across the state.  This will not amelioriate the entire problem, however, and some of California's "happy-go-lucky" [Scalia's characterization] felons will wind up on the streets.

This High Court decision brings into focus the inherent tension between our individual freedoms and enforcement of the laws.  There is a constant tension between the two concepts.  Sometimes, that tension cycles to the breaking point like in California, where too many law breakers are stuffed into concrete boxes that are ready to explode.

In Michigan, although we are far behind California in maxing-out our prison capacity, we have an awful lot of population encased in concrete and barbed wire.  In fact, we have the opposite problem.  Due to budget cuts, we have at least one brand new facility, in Lake County, sitting empty due to lack of funding.

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Justice Sonia Sotomayor

Ok, we've seen this one coming down the tracks.  The ABA Journal is reporting that Justice Sonia Sotomayor told the managing partner of Sydney Austin's Washington, D.C. office, Carter Phillips, to "slow down from the rhetoric", as Phillips began his argument before the High Court on behalf of the State of California in the Schwarznegger -v- Plata  prison overcrowding case.

Justice Sotomayor also had a series of hard questions for California's appellate attorney such as how his client could possibly explain recent prison deaths and why these prisons are choking with dazed, deranged inmates sitting in their own feces.  She wanted to know what California's plan will be.

 As you can imagine, the present Justice-mix soon erupted and the debate was carried on, heatedly, among the jurists themselves.  The high-powered lawyers were rendered oddly silent, as the intra-jurist discussion was occasionally refereed by Chief Justice John Roberts.

According to eye-witness accounts from among the professional-stocked galleries, Justice Samuel Alito was visibly agitated pondering the prospect of newly released inmates cruising the streets of California and, eventually, the nation.

Court watchers once again believe that the Court will line-up along their classic "ideological" lines, neutralizing each other, 4 votes to 4; and setting up Justice Anthony Kennedy to write the tie-breaking concurring opinion.

Even if the Court's opinion amounts to a mere plurality (less binding on subsequent couts), a landmark prisoner's rights opinion is heralded.  We will, of course, update you on the SCOTUS opinion.  You'll know when this decision hits (March/April?) as it will be all over your evening news.

Meanwhile, the SCOTUSblog has posted two fascinating segments from yesterday's oral arguments. 

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LawBlogger Editor's Note: This post is from Andrew Cohen, the Legal Analyst of the excellent blog Politics Daily. This is a fantasy recounting of a potential conversation between the Justices of the United States Supreme Court on the occasion of Thanksgiving Day, 2010. Cohen's humorous and tastefully irreverent insight is spot on; he also mentions several of the cases and issues covered by this Blog over the past year. Having stood before this august body of jurists last June, this blogger could actually see this conversation taking place. Enjoy:

The nine learned Americans, six men and three women, six Catholics and three Jews, all of them over 50 and one of them black, sat down for a traditional Thanksgiving meal. They said their prayers, they shook hands, they passed around the food, and then, as is their custom, they took turns speaking. There was no one else in the room.

“We have a lot to be thankful for,” John said solemnly. “We’ve survived another year, we’ve done our work as best we can, we still generally like each other on most days, and the Republic has not fallen apart. It’s a shame our brother John, Mr. Stevens, isn’t with us this year – I’m sure he’s watching football somewhere and glad to be rid of us – but we welcome Elena to the table and hope to share many more meals with her. Incidentally, I’d like to take a second to note that this meal is sponsored by the good folks at Citizens United. Citizens United, the corporation that’s been treated like a person for nearly one one-hundredth of a century.”

Antonin was the next to speak. "I am thankful, too, for the many freedoms I enjoy. The freedom to hunt. The freedom to speak. The freedom to yearn for a simpler time when there weren't so many constitutional amendments. The freedom to make all those liberal pantywaists apoplectic every time I open my mouth or draft an opinion. What a great country this is. Pass the yams, would you, Sam? Shoot, I've got gravy all over my shirt."

Then it was Anthony's turn. As usual, he was seated near the center of the rectangular table. "I am thankful," he said, "for my fellow Republican-appointed federal judges, the ones who spoke out last week against the Senate's refusal to confirm the president's judicial nominations. Even with life-tenure, it takes courage to do that. Incidentally, does anyone here want to borrow my Sharia Law Handbook? I'm boning up on it in the event the Oklahoma case reaches us, but I can always spare it for a night and start in again on Albanian law."

Next it was Clarence who, as usual, was seated to Antonin's right. "You starting again with that international law junk, Tony? Good lord," Clarence said. The other dinner guests were stunned. Clarence hadn't spoken like this in years. "I am thankful for being here. Whoever thought a fellow like me would end up sitting at this table for 20 years? But most of all I am thankful to my lovely wife, Virginia, for always having my back, even after all these years and all these allegations. She's the best and I plan to tell her that in court when her tea party group gets here as a litigant challenging the new health care laws."

"You are lucky, Clarence, to have your spouse," said Ruth. It was her first such meal without her beloved husband, Martin, who passed away this past June. "I think about my Marty all the time. I am thankful for all the wonderful years we spent together and for all the good graces we were given. I am thankful also for having Sonia and Elena here to watch the Lifetime Channel with me. It was lonely there for a while, especially after David and Bill stopped watching with me."

It was at this point in the dinner that Samuel, one of the younger members of the clan, shook his head and mouthed the words "not true." But it was not yet the time for him to speak.

It was instead Stephen's turn. "I am thankful for Amazon.com," he said, referring to his new book about the law. "Kidding. I'm getting just as much play on it from bookstores." Stephen had a habit of turning to look directly at his chums when he'd talk and he did so again on this night. "I am thankful for the rule of law, even when we don't explain it as clearly as we should to the American people. And I am thankful for our old friend Sandra, who has been so courageous in speaking out against judicial elections. Remember those fruit cobblers and lemon tarts she used to make for us?"

Sam spoke next. He was seated between Antonin and Clarence. "I am thankful for all the ordinary people out there who understand the Constitution," he said. "I am thankful for the American Spectator, for all the good food and talk a few weeks ago. And I am thankful for Roy Halladay, pitching that gem for my Phillies last month. If Roy Halladay ever has a case before the court, I am voting for him. Hey, John, can you please pass me the stuffing? Incidentally, as a reminder, today's turkey and all the trimmings are brought to me in part by the good folks at Citizens United -- Citizens United, the corporation that's been treated like a person for nearly one one-hundredth of a century."

Then it was Sonia's turn. It was her second such meal and she finally had decided to say something. "How can you people eat all this bland food all the time? Where are the arroz con gandules and pasteles y pernil?" More seriously, she went on: "I am thankful I don't have to hear about Frank Ricci anymore. I am thankful I don't have to be the last person to speak at every conference anymore. But mostly I am thankful I was finally able to rent out my apartment in New York City. In this economy, boy, you just never know."

Finally, Elena, the youngest, took her cue. "I am thankful this year for my new job and for the nice things that Miguel Estrada said about me this summer. I am mostly thankful, though, that I'll never have to sit through another lecture from [Oklahoma Sen.] Tom Coburn. Hey, speaking of food -- Tony, would you please pass the chicken lo mein?"

LawBlogger's final thoughts:  It sure would be nice if our Michigan Supreme Court Justices could be as civil as this fictional depiction of the SCOTUS justices.  Unfortunately, the yawning chasm within our state's high court has been all too public with secret tape recordings, press conferences and censure votes.