The Last Monday At SCOTUS

With the end of this term of the Supreme Court in sight, Monday started off with a bang when the Justices declined to hear Donald Trump’s appeal of the $5 million verdict against him in the first of E. Jean Carroll’s two successful defamation cases. The case was listed as “denied” on the 28-page order list the Court entered this morning, taking a few cases but declining to hear most, as it did with Trump’s request.

The larger verdict, the one for $83.3 million, is still working its way through the courts. Many people have suggested the Court may be more interested in that one because Trump made a presidential immunity argument. But it’s an exceptionally weak one. For one thing, Trump waived his ability to make the argument by failing to raise it before the trial court. That’s called “procedural default,” and it’s a bar to raising an argument on appeal. He’ll argue he should get an exception, but the justification for that is weak. As for immunity itself, his argument, at bottom, is that a president has to defend himself from reputational damage, so his defamatory comments were an official act. But that argument proves too much; it would mean that there is no limit to conduct that is official, by virtue of the fact that it’s the president who is engaging in it. His comments were about an entirely personal matter that happened decades before he became president and that had nothing to do with the office he held. There’s no reason for the Supreme Court to take the case to consider lower court rulings that Trump’s immunity argument is a nonstarter here.

And that’s the point. In civil cases, review by the Supreme Court is discretionary. They take cases that present novel and important legal issues that no other court can resolve. There is another issue involving the Westfall Act, which gives employees immunity for certain acts within the scope of their official duties, that we discussed earlier in the history of these cases, but again, it would be a real stretch for the Court to take the case to reverse the lower courts.

Carroll’s lawyer, Robbie Kaplan, characterized what the decision means like this: “Today’s Supreme Court decision affirms once and for all the jury’s unanimous verdict that President Donald J. Trump sexually assaulted and defamed E. Jean Carroll. His multiple efforts to appeal that verdict have all failed and today’s ruling ends his quest to avoid accountability for his actions.” That’s what it’s all about: Accountability. And it’s finally arrived on Trump’s doorstep.

Watson, the Mississippi Mail-In Ballot Case

I was completely wrong about the outcome of this case, as I noted earlier today, and I’m delighted about it, because the Court’s ruling actually made it easier for people to vote—something new and different. In a 5-4 decision, the Court held that a Mississippi law permitting mail-in ballots postmarked by election day and received within five days thereafter to be counted was valid. The plaintiffs had challenged the law, arguing that the federal law setting just one day as “election day” meant Mississippi could not allow extra days for ballots to be received. A contrary ruling would have invalidated similar laws in about 30 states.

Justice Barrett, whose views were difficult to discern at oral argument, landed in the majority and wrote the opinion. She explained that the “election-day statutes do not set a deadline for ballot receipt, so they do not prevent Mississippi from counting ballots postmarked after election day yet received afterward.” The Court treated the question before it as a very narrow one: “whether counting ballots postmarked by election day, but received up to five days later, violates the federal election-day statutes.” Absentee voting wasn’t challenged, nor was the use of the Postal Service to transmit ballots, early voting, or certification later than the day of the election. But it’s hard to believe that at least early voting days, if not all of those practices, would have landed on the chopping block if the Court had ruled the other way, which makes this decision important beyond the situation that was before the Court.

Justice Alito wrote the dissent, which was joined by Justices Thomas and Gorsuch. Justice Kavanaugh joined in part. Justice Alito’s concluding comment equated counting lawfully cast ballots with a reason people should lack confidence in the outcome of an election: “And it creates a serious risk of further undermining public confidence in our elections and our system of self-government. I therefore respectfully dissent.” If only he understood what really undermines public confidence.

At oral argument, Justice Alito questioned early voting, too. But, as Justice Sotomayor reminded the Court then, the Constitution grants states and Congress, not the courts, the right to set policy in this area. That’s the view that has prevailed, although narrowly, today.

Slaughter and Cook

The TL;DR on these cases is that Trump can fire any executive branch appointee who opposes him or his policies, just as long as it’s not someone on the Fed. Apparently, that’s the case because of the risk of upsetting the world’s financial apple cart. If you think that’s an unduly cynical point of view, look no further than Justice Kavanaugh’s concurrence, where he more or less concedes that point.

Rebecca Slaughter challenged her removal from the Federal Trade Commission. The law says she can only be removed for “inefficiency, neglect of duty, or malfeasance in office.” But Trump, simply told her that “continued service on the FTC [was] inconsistent with [his] Administration's priorities” and removed her “pursuant to [his] authority under Article II of the Constitution.”

To justify that removal, a 6-3 Court, split on ideological lines, overturns, in Slaughter, the 90-year-old precedent from Humphrey’s Executor that has prevented presidents from arbitrarily dismissing the leaders or board members of independent agencies. The majority held that requiring a president to have “cause” for a removal violates the separation of powers. So Trump’s response comes as no surprise.

Trump: Slaughter is “a Monumental Ruling at such an important time” because it’s “the Greatest Increase in Presidential Power in the last 100 years.” No effort to pretend this is about principles like the separation of powers.

In other words, Trump’s takeaway is that he is even more powerful now. If history is a guide, he’s likely to take steps to drive that point home.

Former Deputy Solicitor General Michael Dreeben wrote recently: “With the benefit of hindsight, it seems clear that the Supreme Court’s respect for Congress’s authority to structure the executive branch and concerns about presidential overreach in Humphrey’s Executor reflected wisdom. Independent agencies have provided some consistency across administrations and have allowed the accumulation of agency expertise, while also promoting presidential agendas through new appointments and informal influence. The balance that the Court struck in 1935 enhanced the quality of governance and the power of democratically elected representatives to carry out the legislative agenda. Excessive concentration of power in the president, the Humphrey’s Executor Court knew, poses dangers to democracy and good government. Today’s Court would do well to take a lesson from that insight.” Unfortunately, the Court didn’t do so.

In Trump v. Cook, the issue is similar but a governor of the Fed is involved, instead of a board member at the FTC. There, the vote was closer, 5-4. The majority consisted of Roberts, Sotomayor, Kagan, Kavanaugh, and Jackson. Cook was never charged with mortgage fraud, but Trump seized on allegations made by his pal Bill Pulte and used them to fire her.

Trump on Cook is interesting because he has an accurate, legally nuanced view in the sense that the Court does remand the case back to the lower court to continue proceedings. As Justice Kavanaugh explains in his concurrence, “today’s interim ruling does not decide whether the President may lawfully remove Governor Cook for cause. The ultimate decision about whether the President may remove Governor Cook for cause will largely depend on the facts regarding the Governor’s actions. And those facts have yet to be determined,” which is why the case was remanded back to the trial court to do so.

The issue before the Court was Trump’s effort to fire Cook while the case proceeded, which they didn’t allow. That’s contrary to Slaughter, where he was permitted to remove her from the FTC while the case went forward, signaling that they would allow him to remove her permanently. Now, Cook goes back to the lower court for further proceedings while she remains at the Fed.

Why the difference? Justice Kavanaugh explains it like this: “Even temporary uncertainty about the status of the Federal Reserve could spark political upheaval, including confusion about whether the President could immediately remove multiple Governors at will, as well as turmoil in the U. S. and world economies. I would not go down that road. I would not risk destabilizing the U. S. economy just so that we can further mull over an issue.” In other words, it’s about the result, not about legal principle. The decision in Cook is pragmatic and outcome-oriented, more like what one would expect from elected officials than from a court. But at least Justice Kavanaugh lays it out.

Chatrie v. U.S., on the Fourth Amendment, but With a Twist

Justice Kagan wrote the opinion in this case, which makes sense for her as a former Solicitor General. It’s about “geofence warrants,” a type of digital “reverse search warrant” used by law enforcement when they don’t know who committed a crime, but they know where the person was, and they work backwards trying to match possible suspects.

The facts in Chatrie are fascinating. Local police didn’t have a suspect following a credit union robbery in Midlothian, Virginia. But they learned the robber was talking on a cell phone as he approached the credit union and they knew, from witnesses and surveillance footage, what route he took. So they got a geofence warrant from a magistrate that required Google to turn over data for all cell phones located near the credit union around the time of the robbery. Keeping the identities associated with each cell phone anonymous, law enforcement worked to narrow the list of possibles to probables, at which point they received identifying information for three users, including Okello Chatrie, who was ultimately charged and convicted.

Law enforcement utilizes this tool when they know the approximate location and time of a crime, but lack a suspect. Before today, it wasn’t even clear that this process was equivalent to a search for purposes of the Fourth Amendment. Now it is. “An individual has a reasonable expectation of privacy in records about his cell phone’s location,” the Court held, “and police intrude on that constitutionally protected interest when they demand the information.”

Chatrie asked the trial judge to exclude the evidence obtained from Google in his case, arguing that it violated the Fourth Amendment. He pled guilty after a Judge allowed it in under the good faith exception to the warrant requirement, even though she believed probable cause for the warrant was lacking. But Chatrie retained his ability to appeal this constitutional issue and ultimately prevailed, although that doesn’t necessarily mean his conviction will be tossed out. The case now returns to the district court for a determination of whether the search was unreasonable given disagreement between defendant and prosecutors over whether the geofence warrant provided the kind of “‘particularized information’ … based on ‘probable cause to believe that Google had information’ that would help solve a crime.”

Chartrie could still lose, and based on prior rulings, he seems likely to. His case is more about the future than his own situation, because it establishes that going forward, the government must offer sufficient probable cause under the Fourth Amendment to justify obtaining a geofence warrant—it is a search. The decision was 6-3, with Alito, Thomas, and Barrett, a somewhat unusual lineup, in dissent.

One day. Five big cases. And more on Tuesday. Thanks for being here with me at Civil Discourse, where we take the business of keeping the Republic seriously.

We’re in this together,

Joyce