Eugene Volokh's Blog, page 307

[Orin S. Kerr] Accessing Google Location History Records Is Not a Search — At Least When Limited — Fourth Circuit Rules

[An important case on "The Digital Fourth Amendment"]

Regular readers may recall my prior coverage of United States v. Chatrie, a case on the Fourth Amendment implications of collecting Google location history records—location records stored by Google about where logged-in Google users are located—which in the Chatrie case were used to identify a bank robber.  The Fourth Circuit handed down its ruling in the case yesterday, and I thought I would give a quick summary and offer some thoughts.

My 2022 post explained the technology, the facts, and the trial court's ruling, so please go there for the details, as I'd rather not repeat it all here.  (Go ahead, really, I'll wait. Okay, back?  Now let's continue.). As you'll recall from my 2022 post—which you just read, right?— the trial court in this case (1) assumed that collecting the records was a Fourth Amendment search; (2) adopted a very narrow view of how broadly warrants for such records can extend, under which the Chatrie geofence warrant was plainly unconstitutional; and then (3) upheld the collection of records anyway under the good-faith exception to the warrant requirement because it was such a novel issue.  My 2022 post was skeptical of this, suggesting that no search may have occurred in the first place and that warrants should be a lot broader than what the district court concluded.

In the new ruling, the Fourth Circuit rules 2-1 that no search occurred. Judge Jay Richardson wrote the majority opinion, and he was joined by Judge Harvie Wilkinson, Judge James Wynn dissented.  Here's the key reasoning from the majority opinion by Judge Richardson:

Relying on Carpenter, Chatrie argues that the government conducted a search when it obtained his Location History data from Google. We disagree. Carpenter identified two rationales that justify applying the third-party doctrine: the limited degree to which the information sought implicates privacy concerns and the voluntary exposure of that information to third parties. Both rationales apply here. Accordingly, we find that Chatrie did not have a reasonable expectation of privacy in the two hours' worth of Location History data that law enforcement obtained from Google. So the government did not conduct a search by obtaining it.

Start with the nature of the information sought. Carpenter, 585 U.S. at 314, 138 S.Ct. 2206. The government requested and obtained only two hours' worth of Chatrie's Location History data.16 By no means was this an "all-encompassing record of [Chatrie's] whereabouts … provid[ing] an intimate window into [his] person[al] life." Carpenter, 585 U.S. at 311, 138 S.Ct. 2206. All the government had was an "individual trip viewed in isolation," which, standing alone, was not enough to "enable[ ] deductions about 'what [Chatrie] does repeatedly, what he does not do, and what he does ensemble.' "Beautiful Struggle, 2 F.4th at 342 (quoting Maynard, 615 F.3d at 562–63). The information obtained was therefore far less revealing than that obtained in Jones, Carpenter, or Beautiful Struggle and more like the short-term public movements in Knotts, which the Court found were "voluntarily conveyed to anyone who wanted to look." Carpenter, 585 U.S. at 314, 138 S.Ct. 2206 (quoting Knotts, 460 U.S. at 281, 103 S.Ct. 1081). A record of a person's single, brief trip is no more revealing than his bank records or telephone call logs. See Miller, 425 U.S. at 442, 96 S.Ct. 1619; Smith, 442 U.S. at 742, 99 S.Ct. 2577. Chatrie thus did not have a "legitimate 'expectation of privacy,' " in the information obtained by the government, so the first rationale for the third-party doctrine applies here. Carpenter, 585 U.S. at 314, 138 S.Ct. 2206 (quoting Miller, 425 U.S. at 442, 96 S.Ct. 1619).

Furthermore, Chatrie voluntarily exposed his location information to Google by opting in to Location History. Id. at 315, 138 S.Ct. 2206. Consider again how Location History works. Location History is an optional setting that adds extra features, like traffic updates and targeted advertisements, to a user's experience. But it is "off by default" and must be affirmatively activated by a user before Google begins tracking and storing his location data. J.A. 1333–34. Of course, once Google secures this consent, it monitors his location at all times and across all devices. Yet even then, Google still affords the user ultimate control over how his data is used: If he changes his mind, he can review, edit, or delete the collected information and stop Google from collecting more. Whether Google tracks a user's location, therefore, is entirely up to the user himself. If Google compiles a record of his whereabouts, it is only because he has authorized Google to do so.

Nor is a user's consent secured in ignorance, either. See Carpenter, 585 U.S. at 314, 138 S.Ct. 2206 (explaining that the third-party doctrine applies to information "knowingly shared with another"). To the contrary, the record shows that Google provides users with ample notice about the nature of this setting. Before Google allows a user to enable Location History, it first displays text that explains the basics of the service. The text states that enabling Location History "[s]aves where you go with your devices," meaning "[t]his data may be saved and used in any Google service where you were signed in to give you more personalized experiences." It also informs a user about his ability to view, delete, or change his location data. A user cannot opt in to Location History without seeing this text.

So unlike with CSLI, a user knowingly and voluntarily exposes his Location History data to Google. First, Location History is not " 'such a pervasive and insistent part of daily life' that [activating it] is indispensable to participation in modern society." Carpenter, 585 U.S. at 315, 138 S.Ct. 2206 (quoting Riley, 573 U.S. at 385, 134 S.Ct. 2473). Carpenter found that it is impossible to participate in modern life without a cell phone. Id. But the same cannot be said of Location History. While Location History offers a few useful features to a user's experience, its activation is unnecessary to use a phone or even to use apps like Google Maps. Chatrie gives us no reason to think that these added features are somehow indispensable to participation in modern society and that his decision to opt in was therefore involuntary. That two-thirds of active Google users have not enabled Location History is strong evidence to the contrary. Cf. Riley, 573 U.S. at 385, 134 S.Ct. 2473 (noting that, as of 2014, "a significant majority of American adults" owned smartphones). Thus, a user can decline to use Location History and still participate meaningfully in modern society.

Second, unlike CSLI, Location History data is obtained by a user's affirmative act. Carpenter noted that "a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up." 585 U.S. at 315, 138 S.Ct. 2206. But Location History is off by default and can be enabled only by a user's affirmative act. A person need not go off the grid by "disconnecting [his] phone from the network … to avoid" generating Location History data; instead, he can simply decline to opt in and continue using his phone as before. See id. Thus, "in [every] meaningful sense," a user who enables Location History "voluntarily 'assume[s] the risk' " of turning over his location information. Id. (quoting Smith, 442 U.S. at 745, 99 S.Ct. 2577). So the second rationale for the third-party doctrine applies here, too. The third-party doctrine therefore squarely governs this case. The government obtained only two hours' worth of Chatrie's location information, which could not reveal the privacies of his life. And Chatrie opted in to Location History on July 9, 2018. This means that he knowingly and voluntarily chose to allow Google to collect and store his location information. In so doing, he "t[ook] the risk, in revealing his affairs to [Google], that the information [would] be conveyed by [Google] to the Government." Miller, 425 U.S. at 443, 96 S.Ct. 1619. He cannot now claim to have had a reasonable expectation of privacy in this information. See Smith, 442 U.S. at 743–44, 99 S.Ct. 2577. The government therefore did not conduct a search when it obtained the data.

I think this is the correct analysis.  Indeed, it's what I argue for in my forthcoming book, The Digital Fourth Amendment, where I discuss what was then the pending Chatrie case. (I'm told that I'll be to add a quick update to the manuscript to include the new ruling.)

According to Judge Richardson, this does not mean that access to Google location history records is categorically outside the Fourth Amendment.  That is true because Fourth Circuit precedent has adopted the so-called mosaic theory, the idea that whether and when Carpenter kicks in and calls data collection a search depends on how much data collection has occurred.  This warrant asked for only a brief period of records, just a two-hour span, and the majority concludes that was not enough to trigger a mosaic:

Although not couched under this label, Beautiful Struggle articulated a version of what one scholar calls the "Mosaic Theory" of the Fourth Amendment. See Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 111 Mich. L. Rev. 311 (2012). The Mosaic Theory asks whether the government has observed enough of a person's physical movements to deduce intimate details about his private life that could not be learned from simply observing his isolated trips or activities. Under this theory, access to a person's short-term movements does not invade his reasonable expectation of privacy. Such information reveals only the locations he visits and nothing more, which is something that law enforcement could learn from traditional means of surveillance anyway. Beautiful Struggle, 2 F.4th at 341; Jones, 565 U.S. at 429, 132 S.Ct. 945 (opinion of Alito, J.). But much more is revealed when the government accesses a larger swath of a person's movements, as this "enables deductions about 'what a person does repeatedly, what he does not do, and what he does ensemble,' which 'reveal[s] more about a person than does any individual trip viewed in isolation.' " Beautiful Struggle, 2 F.4th at 342 (alteration in original) (quoting Maynard, 615 F.3d at 562–63)). In other words, it exposes "not only his particular movements, but through them his 'familial, political, professional, religious, and sexual associations.' " Carpenter, 585 U.S. at 311, 138 S.Ct. 2206 (quoting Jones, 565 U.S. at 415, 132 S.Ct. 945 (opinion of Sotomayor, J.)). Society does not expect that law enforcement would or could gather such a wealth of intimate details about an individual's personal life from his physical movements. Jones, 565 U.S. at 430, 132 S.Ct. 945 (opinion of Alito, J.). So when the government crosses that line, it invades a person's reasonable expectation of privacy and conducts a search.

The dissent misses Beautiful Struggle's distinction when it catalogues the kind of private details that could be learned from two hours' worth of Location History. According to the dissent, a two-hour snippet of Location History could reveal a wealth of otherwise unknowable and intimate information, like a person's "romantic rendezvous," "medical appointments," or "afternoon and early-evening routines." Diss. Op. at ––––. But the theory adopted in Beautiful Struggle rejects this exact proposition. To be sure, a two-hour snippet might show that someone visited an apartment, swung by a doctor's office, and then popped into a gym. Yet glimpsing this single trip in isolation could not itself enable sound deductions about that person's habits, routines, and associations. For example, he may have visited the apartment because he is having an affair, but he equally could have been seeing a friend for coffee, touring a housing upgrade, or buying a couch off of Facebook marketplace. Similarly, he might have visited the doctor's office for his appointment, yet he also could have been dropping off his spouse or collecting information about the doctor's services or needs. And observing someone enter a gym once certainly cannot confirm whether he is a gym rat or simply riding a New Years high. Only by observing that person's movements over a longer period could the police reliably deduce his habits, routines, and associations. No such deductions could accurately be made from a mere two-hour glimpse.

Applying this theory here leads to a straightforward conclusion. As the dissent correctly observes, Location History has capabilities much like GPS data and CSLI. But unlike in Carpenter or Jones, the government in this case obtained only two hours' worth of Chatrie's Location History data. Although this brief glimpse into his whereabouts may have revealed the locations he visited, it was plainly insufficient to offer insight into his habits, routines, and associations. So the government did not invade his "legitimate 'expectation of privacy' " by obtaining it.Carpenter, 585 U.S. at 314, 138 S.Ct. 2206 (quoting Miller, 425 U.S. at 442, 96 S.Ct. 1619).

Judge Wynn dissented, arguing that Carpenter can be best understood as creating a multi-factor analysis for what is a search that looks to underlying shifts of government power:

Leading scholars agree that Carpenter created a factor-based test derived from those considerations, though they disagree on which factors are the most important or mandatory. E.g., Paul Ohm, The Many Revolutions of Carpenter, 32 Harv. J.L. & Tech. 357, 363, 369 (2019) (recognizing Carpenter created "new, multi-factor test" to analyze an individual's reasonable privacy expectation against intruding technology and "herald[ed] a new mode of Constitutional analysis"); Susan Freiwald & Stephen W. Smith, The Carpenter Chronicle: A Near-Perfect Surveillance, 132 Harv. L. Rev. 205, 219 (2018) (multifactor analysis was "clearly central" to the Court's holding); Tokson, The Aftermath of Carpenter, supra, at 1830 (describing the "Carpenter factors" and concluding from a survey of cases that "[a] multifactor Carpenter test has begun to emerge from the lower court[s]").

In reaching this conclusion, scholars rely on the Court's analysis and its concluding sentence, which reads: "In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection." Carpenter, 585 U.S. at 320, 138 S.Ct. 2206.

In my view, such a factor-based examination is the correct interpretation of the Court's opinion. Again, central to the Court's analysis was one overarching principle: the need to maintain historical Fourth Amendment protections against expanding police surveillance capabilities. Throughout its analysis, Carpenter extensively emphasized that the government historically could not conduct intrusions as comprehensive, retrospective, intimate, and efficient as those made possible by technological advancements like CSLI. See, e.g., id. at 304–05, 138 S.Ct. 2206 (stating the Fourth Amendment analysis with respect to digital data must be "informed by historical understandings" of reasonable searches (quotations omitted)); id. at 305, 138 S.Ct. 2206 (discussing historical expectations); id. at 312, 138 S.Ct. 2206 (retrospective information was traditionally "unknowable"); id. at 320, 138 S.Ct. 2206 (stating that the police's use of CSLI infringed upon the Framers' intent in enacting the Fourth Amendment).

This rationale reflects the Court's understanding that rapid technological advances have created shifts "in kind and not merely in degree from the technology of the past." Ohm, supra, at 399. These shifts required the Court to adjust its analysis of the Fourth Amendment to "preserv[e the] degree of privacy … that existed when the Fourth Amendment was adopted," as it has with technological changes in the past. Carpenter, 585 U.S. at 305, 138 S.Ct. 2206 (quoting Kyllo, 533 U.S. at 34, 121 S.Ct. 2038); see id. at 305–06, 138 S.Ct. 2206 (describing this philosophy in the Court's Fourth Amendment jurisprudence and citing cases); id. at 318, 138 S.Ct. 2206 ("When confronting new concerns wrought by digital technology, this Court has been careful not to uncritically extend existing precedents."); see also Orin S. Kerr, The Digital Fourth Amendment: Implementing Carpenter 10, 16–19 (USC Law Legal Studies Paper No. 18-29) (describing this phenomenon in the Court's jurisprudence as an "equilibrium-adjustment"); Denae Kassotis, The Fourth Amendment and Technological Exceptionalism After Carpenter: A Case Study on Hash-Value Matching, 29 Fordham Intell. Prop. Media & Ent. L.J. 1243, 1302 (2019) (explaining that Riley and Carpenter reflect the Court's understanding of the exceptional nature of technology and adaptation of the law to protect privacy).

Put simply, the Court declined to extend existing doctrines to exempt CSLI from Fourth Amendment protections based on the principle that it first recognized decades earlier: previously unimaginable technology that reveals unprecedented amounts of personal information requires new rules. Carpenter, 585 U.S. at 310–14, 138 S.Ct. 2206 (citing the Jones concurrences and rejecting the "mechanical" application of old doctrines); accord Riley, 573 U.S. at 393, 134 S.Ct. 2473 (stating that comparing a physical search to a cell phone search is like "saying a ride on horseback is materially indistinguishable from a flight to the moon"). Thus, "[t]he beating heart" of Carpenter "is its deep and abiding belief in the exceptional nature of the modern technological era." Ohm, supra, at 399.

By that standard, Judge Wynn argues, a search occurred: "A faithful reading of Carpenter—not to mention common sense—compels the conclusion that when the police obtained Chatrie's Location History data, they engaged in a Fourth Amendment search. That conclusion is evident upon evaluating how the Carpenter factors apply to the Location History intrusion in this case."

So what does this new decision mean?  How important is it going forward?

I think Chatrie is medium-important.  Its importance lies in it being a key reminder that not all location data is protected under the Fourth Amendment after Carpenter.  As I wrote back in 2022, it was puzzling that a lot of lower courts did not want to address this; they wanted to jump straight to how broad warrants could extend over these kind of records.  Chatrie is a key reminder that there's an earlier step.  The collection of location records may not be a search at all.

At the same time, Chatrie's practical importance is undercut greatly by Google's announcement, almost immediately after the Chatrie oral argument, that it is going to phase out Google-stored location history records.  Just based on the public record, it appears that Google was following the argument closely.  My guess is that, upon seeing that the panel might rule that no search occurs in these cases, Google decided to eliminate its own possession of those records so governments could not compel them from Google without a warrant.

Whether that was the goal, that is the effect.  And it means that the panel's ruling likely won't have a major impact going forward.  Granted, I'd guess that Google or other providers will have other location records that the government might be able to compel in the future.  But iI would guess those records won't be the kind of clear opt-in records that Location History records are, which means that collecting them is more likely to be a search.  And if that's right, subsequent particularly question of how broadly the search can go under a warrant remains, and it will be critical then.

Finally, note that the split over whether the Fourth Amendment recognizes a "mosaic theory" at all lives on. As I have argued (and as the majority generously noted), I don't think the theory is coherent or workable.  Twelve years after I first made that argument, lower courts are pretty divided on the question.  Some courts have adopted the mosaic, while others reject it on workability grounds.  The Supreme Court is on a long holiday from search and seizure law right now.  But if the Justices should some day wish to address some of the lower court disagreement on what the Fourth Amendment means, whether to recognize the mosaic theory will be an important question for the Court to answer.

 

The post Accessing Google Location History Records Is Not a Search — At Least When Limited — Fourth Circuit Rules appeared first on Reason.com.

[Eugene Volokh] Libel, Fire, Healing Chakras, and Real Housewives of New York

[“The article also documents Plaintiff’s four failed attempts at appearing on the Real Housewives of New York, and the potentially circumstantial evidence that the fire was used as a publicity stunt as it occurred just one day prior to Plaintiff joining a talk show wherein she talked extensively about the fire.”]

From Abitbol v. Rice, decided Monday by N.Y. trial court judge Mary Rosado; nothing special about the legal analysis, but with facts like these, how could I pass them up?

This action arises out of a fire and ensuing water damage at the condominium at 10 West End Avenue, New York, NY 10023 (the "Building"). Plaintiff resided in Apartment #14B in the Building and Defendant lived in Unit 12G. The morning of November 6, 2019, Plaintiff lit a candle to "cleanse energy and heal her Chakras." Plaintiff alleges she blew out the candle and took her son to school. Nonetheless, a fire somehow ignited, and the fire sprinkler systems were triggered. Defendant's unit sustained water damage.

Plaintiff alleges that sometime in July of 2022, Defendant told Fire Marshal Anthony Henry of the FDNY that Plaintiff deliberately started the fire to gain notoriety and be cast on "Real Housewives of New York." Plaintiff also alleges that in June of 2022, Defendant drafted and filed a civil complaint in Rice v. Abitbol (the "Parallel Action") alleging that Plaintiff deliberately caused the fire and sent the complaint to news media outlets, including I Love The Upper West Side ("ILTUWS"). Plaintiff claims Defendant made additional defamatory comments to the New York Post by asserting that the investigation into the fire was an "open arson investigation from what I have been told." Plaintiff alleges these statements constitute defamation per se because they accuse her of committing a criminal act. She also claims intentional infliction of emotional distress and seeks declaratory judgment….

The court granted Defendant Rice's motion to dismiss the case under New York's "anti-SLAPP law":

A fire breaking out in a large condominium building, and allegations of criminal conduct related to that fire, constitute matters of public interest. The statements made to the media publications I Love the Upper West Side and the New York Post are statements made in a public forum. As are the statements made to an FDNY fire investigator who was charged with investigating the cause and origin of the fire. This means [that under the anti-SLAPP law] the burden is on Plaintiff to show her defamation claim has a substantial basis in law, and there must be substantial evidence that Defendant made false statements with knowledge of their falsity or reckless disregard of their falsity….

Defendant's allegedly defamatory statements to the FDNY, made in July of 2022 are protected under the absolute litigation privilege…. [A]bsolute immunity from liability for defamation exists for oral or written statements made by a party in connection with a proceeding before a court when such words or writings are material and pertinent to the questions involved in the litigation. This privilege applies to out of court statements made to potential witnesses. Indeed, there is a deep-rooted, long-standing public policy in favor of a person's right to make statements during the course of court proceedings without penalty so long as the statements are pertinent to litigation.

The statements made to the FDNY, which Plaintiff alleges occurred in July of 2022, occurred during the pendency of Defendant's lawsuit for property damage from the fire, which was initiated in July of 2022. The statements were pertinent to the ongoing litigation since they pertain to the cause and origin of the fire which caused the damages Defendant seeks to recoup in the Parallel Action. As an FDNY fire marshal involved with investigating the fire, the allegedly defamatory statements were made to a potential witness related to issues involved in the Parallel Action. Thus, Defendant's July 2022 statements to the FDNY are absolutely privileged and non-actionable. There is no substantial basis in law to bring a defamation claim based on these statements….

The dissemination of Defendant's complaint in the parallel action to ILTUWS is protected by the fair reporting privilege. Civil Rights Law § 74 protects speakers from civil liability for the publication of a fair and true report of a judicial proceeding. The question is whether the reporting was an accurate description of the claims made in the proceeding.

Defendant's Complaint in the parallel action has survived a motion to dismiss and has not been shown to be a sham, and the issue of whether the fire was intentionally caused is being actively litigated. The article, which was published after Defendant's Complaint was filed, contains an accurate description of the allegations and is thus protected by the statutory fair reporting privilege. Specifically, the article notes that there are allegations that the fire either occurred negligently or intentionally, and that Defendant was seeking monetary compensation as a result of the fire. The article also documents Plaintiff's four failed attempts at appearing on the Real Housewives of New York, and the potentially circumstantial evidence that the fire was used as a publicity stunt as it occurred just one day prior to Plaintiff joining a talk show wherein she talked extensively about the fire.

To the extent Plaintiff argues only a qualified privilege exists, and there is substantial evidence of actual malice, the Court disagrees. There is ample evidence of Plaintiff attempting to gain notoriety from the fire by talking about it on talk shows and publicizing the fire on her Instagram.

Plaintiff was also featured in a New York Page Six article just three months prior to the fire as being someone who was "obsessed" with getting on Real Housewives of New York and had apparently failed four auditions. Defendant therefore had a good faith basis in alleging in his complaint and discussing with the press his belief that Plaintiff may have intentionally caused the fire to gain notoriety and publicity, and the draft complaint was circulated with the good faith anticipation that litigation would be forthcoming in the following weeks. The qualified privilege therefore applies, and there is no substantial basis in law for a defamation suit based on Defendant's circulation of a draft complaint to ILTUWS shortly prior to filing the complaint….

To the extent Defendant's inquiry via e-mail to the New York Post can even be considered defamatory, the Court finds Plaintiff has failed to show substantial evidence of actual malice to survive Defendant's CPLR 3211(g) motion to dismiss. [New York anti-SLAPP law requires a showing of actual malice in all libel cases on matters of public concern, whether or not the plaintiff is a public figure.-EV] The allegedly defamatory statements merely consist of Defendant inquiring why an arson investigation was not mentioned in the New York Post article and then stating that based on what he was told that there was an ongoing arson investigation. Defendant's inquiry, which appears to have been based on information (or misinformation) he had received from the FDNY, does not show the requisite actual malice needed to survive a CPLR 3211(g) motion to dismiss.

Here, Plaintiff has provided no evidence to show that Defendant's inquiry to the New York Post was made with knowledge of its falsity or reckless disregard. Nor has Plaintiff requested limited anti-SLAPP discovery to ascertain further information to oppose the motion. Plaintiff has not met her heightened burden under the anti-SLAPP law, and thus her defamation claims against Defendant are dismissed. Because Defendant has succeeded on his CPLR 3211(g) motion to dismiss, he is entitled to an award of attorneys' fees.

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[Eugene Volokh] Journal of Free Speech Law: "Adding Injury to Insult: Kant on Defaming the Dead," by Prof. David Sussman

[An article from the Defamation: Philosophical and Legal Perspectives symposium, sponsored by the Center for Legal Philosophy at UC Irvine.]

The article is here; here are the introductory paragraphs:

In a brief and largely overlooked section of the Doctrine of Right, Kant considers the right a person has to retain a good reputation after their death, the acquisition of which he calls "a phenomenon as strange as it is undeniable." Kant here is not claiming that one should never speak ill of the dead, at least if one is speaking truthfully (although Kant does count it "a duty of virtue not to take malicious pleasure in exposing the faults of others"). Rather, Kant's concern is with posthumous defamation: the telling of lies that in some way "stains" the name of the deceased. Kant explains that when such a right is violated, those still alive acquire an obligation to restore the reputation of the dead. This obligation apparently falls on everyone regardless of their relation to the deceased: "[A]n apologist need not prove his authorization to play the role of apologist for the dead, for everyone inevitably arrogates this to himself as belonging … to the right of humanity as such."

Although Kant has no doubt that there really is such a right against posthumous defamation, he is very puzzled by it, admitting that "It is therefore indisputable that there is a basis for such an ideal acquisition for someone's right after his death against those who survive him, even though no deduction of its possibility can be given" (emphasis added). Kant's perplexity is understandable. He considers the right to a good reputation to be part of "private right," concerning "what is externally mine or yours" such as property, contractually obligated performances, and the peculiar category of "domestic right" that heads of households supposedly have with respect to their spouses, their children, and their domestic servants. The violation of private right involves the wrongful infliction of harm or loss in a way that would normally call for at least some sort of compensation from the party responsible. So understood, this right immediately raises the question of whether, and in what ways, the dead can be harmed or deprived of something, and more broadly how the dead can still have interests that merit legal protection.

Whether the dead can still be harmed or helped is a long-standing philosophical question going back at least to Aristotle (who answers both in the affirmative). If the only things intrinsically good or bad for a person are their experiences (or aspects of experience, like pleasure), then death clearly puts a person beyond all injury (assuming, as Kant does, that death is complete annihilation). If we understand a person's good to involve not just experience but the objects of what they desire or otherwise care about, there remains what to make of those desires once the subject of those desires is no more. If I no longer exist after I die, just who could it be that could be benefited by the satisfaction of the desires that I developed when I was alive?

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[Josh Blackman] Everyone Needs To Take A Deep Breath About Trump v. United States

[No one asked the Court to reverse Nixon v. Fitzgerald. And the Court found that the civil and criminal contexts cannot be distinguished. The decision should not have been a surprise.]

In the aftermath of Trump v. United States, I wrote a series of posts breaking down most facets of the opinion as a doctrinal matter (1, 2, 3, 4, 5, 6, 7, 8). My general impression is that the decision was not premised on original public meaning, but was a mishmash of precedent, pragmatism, and "traditionalism." Yet the reaction was one of stunned outrage! It is the next Roe v. Wade. We need a constitutional amendment to overrule it. We need to pack the Supreme Court! And so on.

Never forget, most commentary about the Supreme Court is performative. Critics have a vested interest in making the decisions seem so much worse than they really are. There really should not have been much of a surprise here.

First, Nixon v. Fitzgerald has been on the books for decades. That decision established absolute civil immunity for all acts within the "outer perimeter" of the President's duties. No one asked the Court to reconsider Nixon, so that was precedent. During oral argument, Justices Jackson and Sotomayor repeatedly tried to explain why civil immunity made sense, but criminal immunity did not. But the majority disagreed. Critically, the Court found that it would make no sense to provide immunity for civil suits, but not for criminal prosecutions. Indeed, as I noted, the risks from a criminal prosecution of the President are greater than the risk of a civil lawsuit. One the Court declined to distinguish civil and criminal suits, it follows naturally that the absolute immunity recognized in Nixon would apply in the criminal context for Trump. None of this should be surprising.

Second, once the Court recognized that there would be absolute immunity for "core" powers, and presumptive immunity for other actions, the Court had to adopt some test. The Fitzgerald Court's "outer perimeter" test was never particularly helpful. Instead, Chief Justice Roberts borrowed from Blasingame v. Trump, a precedent from the D.C. Circuit. This case involved a civil suit against President Trump for his role on January 6:

For those reasons, the immunity we have recognized extends to the "outer perimeter" of the President's official responsibilities, covering actions so long as they are "not manifestly or palpably beyond [his] authority." Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 2023) (internal quotation marks omitted); see Fitzgerald, 457 U. S., at 755–756 (noting that we have "refused to draw functional lines finer than history and reason would support").

Given Fitzgerald, and how the lower courts have applied Fitzgerald, the Court was going to have to apply some sort of test to determine immunity. The Court gave some guidance to the lower courts. I don't know how helpful it will be, but the Court here was treading in uncertain territory. Is the framework so unreasonable?

Third, I think most of the critics of the decision still believe that the law can constrain a populist presidential candidate. It can't. Alvin Bragg, Jack Smith, Fani Willis, and so on. None of them have made a dent on Trump. The WSJ summed things up nicely:

None of this is a vindication of Mr. Trump's conduct or an endorsement of paying off a porn star, trying to overturn the 2020 election, or refusing to help a besieged Congress on Jan. 6. But as the past nine years have shown over and over, Mr. Trump's biggest opponents are often his best asset. They convinced themselves he won in 2016 by colluding with Russia, and special counsel Robert Mueller would get to the bottom of it. They impeached him twice. Mr. Trump plowed through it all.

It is a fantasy to believe that any test that Chief Justice Roberts could make up would control this president or any other. The law only goes so far.

Everyone should take a deep breath. The only way to defeat Trump is at the ballot box. That was true in 2016. That was true in 2020. And it will be true in 2024.

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[Josh Blackman] What Do Justices Sonia Sotomayor and Stephen Field Have In Common?

Both of their bodyguards shot someone.

Last week, a Deputy U.S. Marshall, assigned to protect Justice Sotomayor, shot a carjacker:

 A member of Supreme Court Justice Sonia Sotomayor's security detail shot an armed man during an attempted carjacking in the early morning hours, according to court documents.

It happened as two deputy U.S. Marshals were on duty in a government car in Washington, D.C., about 1 a.m. on July 5. They were confronted by a man who got out of a silver minivan and pointed a gun at one of them through the driver's side window, according to a criminal complaint. The car was unmarked but the pair were dressed in U.S. Marshals shirts.

The deputy pulled out his department-issued gun and shot the man about four times, hitting him in the mouth. He then gave the man first aid while the minivan drove away, charges state. The suspect was hospitalized and placed under arrest on suspicion of attempted carjacking and resisting officers.

In 1889, the Attorney General appointed David Neagle, a Deputy U.S. Marshall, to serve as Justice Stephen Field's bodyguard. Neagle fatally shot a man while the Justice was riding circuit in California. No actual statute authorized the Attorney General to appoint the bodyguard. But in In Re Neagle, the Supreme Court held that the Attorney General could rely on the President's obligation to take care that the laws are faithfully executed.

This might be one of the few things Sotomayor and Field have in common. I suspect that Sotomayor would not agree with Field's concurrence in Bradwell v. Illinois.

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[Josh Blackman] Today in Supreme Court History: July 10, 1832

7/10/1832: President Jackson vetoes the bill to recharter the Second Bank of the United States. He wrote that the bill was unconstitutional.

President Andrew Jackson

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[Ilya Somin] Seattle University Webinar on the Presidential Immunity Decision

[I was one of the participants, along with many other legal scholars.]

(Joe Ravi/Wikimedia/CC-BY-SA 3.0)

A few days ago, the Seattle University School of Law held a webinar on Trump v. United States, the recent Supreme Court decision on presidential immunity. The video is now available, and I have included it in this post. I was one of the participants, along with many other legal scholars and commentators. The first panel included Professor Holly Brewer of the University of Maryland Department of History; Smita Ghosh, appellate counsel at the Constitutional Accountability Center; Professor Darren Hutchinson of Emory University School of Law; Professor Lee Kovarsky of the University of Texas, Austin School of Law; Professor Justin Levitt of Los Angeles' Loyola Law School; and Professor Claire Wofford of the College of Charleston. The Speakers on the second panel were Professor Jeremiah Chin of Seattle U Law and the University of Washington School of Law; Professor Rachel Lopez of Temple University Beasley School of Law; Professor Jed Shugerman of Boston University School of Law; Professor Robert Tsai of Boston University Law; Professor Steve Vladeck of the Georgetown University Law Center;Andrew Wright of K&L Gates; and myself. My contribution happened to be the very last one on the second panel. It begins at about 2:37:20.

I analyzed and critiqued the Court's ruling in greater detail here.

 

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[Josh Blackman] I Get By With A Little Help From My Friends

[Justice Gorsuch's majority opinion in Grants Pass leaned heavily on cert-stage and merit-stage amicus briefs from progressive jurisdictions.]

I've written two other posts about Grants Pass v. Johnson. First, I commented on whether the law in fact criminalizes the mere status of being homeless, or whether it criminalizes the act of camping in public. Second, I wrote how the Court constrained Robinson v. California, an inherently un-originalist precedent, by declining to extend it.

Here, I will comment on another unusual aspect of the majority opinion: how heavily the majority opinion leaned into amicus briefs. Indeed, Justice Gorsuch's majority opinion cited not only merit-stage briefs, but also cert-stage briefs. The import was clear: even deep-blue jurisdictions from California and similar bastions of leftism contend that the Ninth Circuit's jurisprudence is mistaken. They urged the Court to take the case, and urged the Court to reverse! The majority was quite content to answer the prayer from these progressive enclaves.

Here are just a smattering of citations:

We are told, for example, that the "exponential increase in . . . encampments in recent years has resulted in an increase in crimes both against the homelessband by the homeless." Brief for California State Sheriffs' Associations et al. as Amici Curiae 21 (California SheriffsBrief ). California's Governor reports that encampment inhabitants face heightened risks of "sexual assault" and "subjugation to sex work." Brief for California Governor G. Newsom as Amicus Curiae 11 (California Governor Brief ).And by one estimate, more than 40 percent of the shootings in Seattle in early 2022 were linked to homeless encampments. Brief for Washington State Association of Sheriffs and Police Chiefs as Amicus Curiae on Pet. for Cert. 10 (Washington Sheriffs Brief ).

Nor do problems like these affect everyone equally. Often, encampments are found in a city's "poorest and most vulnerable neighborhoods." Brief for City and County of San Francisco et al. as Amici Curiae on Pet. for Cert. 5 (SanFrancisco Cert. Brief ); see also 2020 HUD Report 9.

Officials in Portland, Oregon, indicate that, between April 2022 and January 2024, over 70 percent of their approximately 3,500 offers of shelter beds to homeless individuals were declined. Brief for League of Oregon Cities et al. as Amici Curiae 5 (Oregon Cities Brief ). Other cities tell us that "the vast majority of their homeless populations are not actively seeking shelter and refuse all services." Brief for Thirteen California Cities as Amici Curiae

3. Surveys cited by the Department of Justice suggest that only "25–41 percent" of "homeless encampment residents""willingly" accept offers of shelter beds.

Consider San Francisco, where each night thousands sleep "in tents and other makeshift structures." Brief for City and County of San Francisco et al. as Amici Curiae 8 (San Francisco Brief ).

Justice Gorsuch relied on the "diverse" range of briefs:

If the multitude of amicus briefs before us proves one thing, it is that the American people are still at it. Through their voluntary associations and charities, their elected representatives and appointed officials, their police officers and mental health professionals, they display that same energy and skill today in their efforts to address the complexities of the homelessness challenge facing the most vulnerable among us.

The Court even cited all of the petitions filed in support of certiorari. I can't recall ever seeing a listing of cert-stage briefs.

Grants Pass filed a petition for certiorari. A large number of States, cities, and counties from across the Ninth Circuit and the country joined Grants Pass in urging the Court to grant review to assess the Martin experiment. See Part I–B, supra. We agreed to do so. 601 U. S. ___ (2024).3

3Supporters of Grants Pass's petition for certiorari included: The cities of Albuquerque, Anchorage, Chico, Chino, Colorado Springs, Fillmore, Garden Grove, Glendora, Henderson, Honolulu, Huntington Beach, Las Vegas, Los Angeles, Milwaukee, Murrieta, Newport Beach, Orange, Phoenix, Placentia, Portland, Providence, Redondo Beach, Roseville, Saint Paul, San Clemente, San Diego, San Francisco, San Juan Capistrano, Seattle, Spokane, Tacoma, and Westminster; the National League of Cities, representing more than 19,000 American cities and towns; the League of California Cities, representing 477 California cities; the League of Oregon Cities, representing Oregon's 241 cities; the Association of Idaho Cities, representing Idaho's 199 cities; the League of Arizona Cities and Towns, representing all 91 incorporated Arizona municipalities; the North Dakota League of Cities, comprising 355 cities; the Counties of Honolulu, San Bernardino, San Francisco, and Orange; the National Association of Counties, which represents the Nation's 3,069counties; the California State Association of Counties, representing California's 58 counties; the Special Districts Association of Oregon, representing all of Oregon's special districts; the Washington State Association of Municipal Attorneys, a nonprofit corporation comprising attorneys representing Washington's 281 cities and towns; the International Municipal Lawyers Association, the largest association of attorneys representing municipalities, counties, and special districts across the country; the District Attorneys of Sacramento and San Diego Counties, the California State Sheriffs' Association, the California Police Chiefs Association, and the Washington State Association of Sheriffs and Police Chiefs; California Governor Gavin Newsom and San Francisco Mayor London Breed; and a group of 20 States: Alabama, Alaska, Arkansas, Florida, Idaho, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, and West Virginia.

Justice Sotomayor's dissent charges that the majority only cited favorable amicus brief:

The majority cites various amicus briefs to amplifyGrants Pass's belief that its homelessness crisis is intractable absent the ability to criminalize homelessness. In so doing, the majority chooses to see only what it wants. Many of those stakeholders support the narrow rule in Martin. See, e.g., Brief for City and County of San Francisco et al.

Justice Gorsuch replied that the overwhelming majority of briefs support the majority:

7The dissent suggests we cite selectively to the amici and "see only what [we] wan[t]" in their briefs. Post, at 24. In fact, all the States, cities, and counties listed above (n. 3, supra) asked us to review this case. Among them all, the dissent purports to identify just two public officials and two cities that, according to the dissent, support its view. Post, at 24–25. But even among that select group, the dissent overlooks the fact that each expresses strong dissatisfaction with how Martin has been applied in practice. See San Francisco Brief 15, 26 ("[T]he Ninth Circuit and its lower courts have repeatedly misapplied and overextended theEighth Amendment" and "hamstrung San Francisco's balanced approachto addressing the homelessness crisis"); Brief for City of Los Angeles as Amicus Curiae 6 ("[T]he sweeping rationale in Martin . . . calls into question whether cities can enforce public health and safety laws"); CaliforniaGovernor Brief 3 ("In the wake of Martin, lower courts have blocked efforts to clear encampments while micromanaging what qualifies as a suitable offer of shelter"). And for all the reasons we have explored and so many other cities have suggested, we see no principled basis underthe Eighth Amendment for federal judges to administer anything like Martin.

When the Ninth Circuit is to the left of San Francisco, there is a problem.

 

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[Josh Blackman] Trump v. United States Opines On Whether The Vice President Is a Legislative Officer

[This issue arose when VP Pence asserted immunity under the Speech or Debate Clause.]

In February, 2023, former Vice President Mike Pence invoked the Speech or Debate Clause to challenge a subpoena from the Special Counsel. I explained that, as a matter of text, this argument didn't fly. The Speech or Debate refers to "Senators and Representatives." The Vice President is the President of the Senate, but is not a Senator. However, there are a string of precedents which could support a more functional reading of the Speech of Debate Clause. And, in June 2023, Judge Boasberg found that Vice President Pence received some protections under the Speech or Debate Clause for his role on January 6. I did not find that decision persuasive as a textual matter, but there is some precedent on point that the court followed.

Part III-B-2 of Trump v. United States reminded me of Pence's case. Here, Chief Justice Roberts discussed whether President Trump's communications with Vice President Pence leading up to, and during, January 6, would be immune from prosecution.

To be sure, the President has an interest in legislation that is being considered in the Senate. And, as President of the Senate, the Vice President plays a unique role in that process. If the Senate is evenly divided, the Vice President can cast a tie-breaking vote. Chief Justice Roberts explains that with respect to legislation, the President has an important role in having communications with the Vice President. These communications would be presumptively immune from any congressional regulations:

[O]ur constitutional system anticipates that the President and Vice President will remain in close contact regarding their official duties over the course of the President's term in office. These two officials are the only ones "elected by the entire Nation." Seila Law; see Art. II, §1. . . . And Article I of course names the Vice President as President of the Senate and gives him a tiebreaking vote. §3, cl. 4. It is thus important for the President to discuss official matters with the Vice President to ensure continuity within the Executive Branch and to advance the President's agenda in Congress and beyond. The Vice President may in practice also serve as one of the President's closest advisers.

I think that argument is correct when discussing legislative sessions. But does it work with regard to the joint session? The Constitution assigns the President of the Senate particular functions during the joint session of Congress. Roberts acknowledges that the President does not have a role in that process:

The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. . . . Ibid. Despite the Vice President's expansive role of advising and assisting the President within the Executive Branch, the Vice President's Article I responsibility of "presiding over the Senate" is "not an 'executive branch' function." Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President's Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President's role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President's communications with the Vice President concerning the certification proceeding does not pose "dangers of intrusion on the authority and functions of the Executive Branch." Fitzgerald.

Yet Roberts signals that the President's interest in legislation could still extend to the Vice President's role in the joint session:

At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President's agenda in Congress. When the Senate is closely divided, for instance, the Vice President's tiebreaking vote may be crucial for confirming the President's nominees and passing laws that align with the President's policies. Applying a criminal prohibition to the President's conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President's ability to perform his constitutional functions.

Justice Sotomayor responds in her dissent:

The majority admits that the Vice President's responsibility "'presiding over the Senate' " is "'not an "executive branch" function,'" and it further admits that the President "plays no direct constitutional or statutory role" in the counting of electoral votes. Yet the majority refuses to conclude that Trump lacks immunity for his alleged attempts to "enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results." Instead, it worries that a prosecution for this conduct might make it harder for the President to use the Vice President "to advance [his] agenda in Congress." Such a prosecution, according to the majority, "may well hinder the President's ability to perform his constitutional functions." Whether a prosecution for this conduct warrants immunity should have been an easy question, but the majority turns it into a debatable one.

If the District Court is correct about the Vice President's role, with regard to the Speech or Debate Clause, I think it would be harder to make the case that the President's discussions with the Vice President about the joint session would not be immune.

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[Josh Blackman] The Supreme Court Refuses To Extend Robinson v. California, A Non-Originalist Decision

[Even if an erroneous precedent cannot be overruled, isolate the damage, and decline to extend it to new circumstances.]

Robinson v. California (1962) may be peak Warren Court activism. California made it a crime to be addicted to narcotics–not simply to use drugs, but to be addicted to using them. Robinson argued that this law violates some sort of substantive due process right. This was three years before Griswold, so the Court still was stuck under the New Deal settlement that rejected substantive due process. So what does the Warren Court do? It manufactures a new standard based on the Eighth Amendment out of whole cloth. Sort of like a penumbra. (Griswold favorably cites Robinson.) The Robinson Court held that it would violate the Eighth Amendment to punish someone because of the "status" of being a drug addict. The Court ruled that when punishing "'status,'" "[e]ven one day in prison would be . . . cruel and unusual." Id., at 666–667.

This argument was not raised by the defendant. Justice Gorsuch's majority opinion explains:

Reaching that conclusion under the banner of the Eighth Amendment may have come as a surprise to the litigants.Mr. Robinson challenged his conviction principally on the ground that it offended the Fourteenth Amendment's guarantee of due process of law. . . . Mr. Robinson's resort to the Eighth Amendment was comparatively brief. He referenced it only in passing, and only for the proposition that forcing a drug addict like himself to go "'cold turkey'" in a jail cell after conviction entailed such "intense mental and physical torment" that it was akin to "the burning of witches at the stake." Robinson Brief 30. The State responded to that argument with barely a paragraph of analysis, Brief for Appellee in Robinson v. California, O. T. 1961, No. 61–554, pp. 22–23, and it received virtually no attention at oral argument.

During oral argument, there were zero questions about the Eighth Amendment–I found one fleeting reference to a "cruel and unusual punishment," but that was it.

Robinson resembles another Warren Court classic decided one year earlier, Mapp v. Ohio (1961). In that landmark precedent, the Court transformed a First Amendment obscenity case into a Fourth Amendment case. The Court "incorporated" the exclusionary rule and overturned Wolf v. Colorado, even tough the Defendant did not seek to overrule that precedent, only the ACLU as amicus did. Whenever current members of the Court want to complain about the Court reaching out to decide issues that are not presented, they should think carefully about Mapp and Robinson. But at least in Grant's Pass, Justice Sotomayor's dissent preached fidelity to a precedent that was manufactured out of thin air without the benefit of party presentation. So much for judicial "modesty."

The most obvious response to Robinson would be to overrule it. But, in an act of restraint, the Roberts Court declines to overrule a precedent that Grants Pass did not ask to overrule. (A MAGA Court would have held that the Fourteenth Amendment requires the government to protect citizens from homeless encampments.)

Justice Thomas's concurrence explains at length why Robinson ought to be overruled.

First, the precedent that the respondents primarily rely upon, Robinson v. California, 370 U. S. 660 (1962), was wrongly decided. In Robinson, the Court held that the Cruel and Unusual Punishments Clause prohibits the enforcement of laws criminalizing a person's status. That holding conflicts with the plain text and history of the Cruel and Unusual Punishments Clause. That fact is unsurprising given that the Robinson Court made no attempt to analyze the Eighth Amendment's text or discern its original meaning. Instead, Robinson's holding rested almost entirely on the Court's understanding of public opinion: The Robinson Court observed that "in the light of contemporary human knowledge, a law which made a criminal offense of . . . a disease [such as narcotics addiction] would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." Modern public opinion is not an appropriate metric for interpreting the Cruel and Unusual Punishments Clause—or any provision of the Constitution for that matter.

If you're looking for the "intellectual and theoretical leader on the court" of the Court, it is still Justice Thomas. Justice Barrett tends to write separately to moderate when she cannot join a conservative majority opinion in full. To be a leader, one must be followed. I've yet to see anyone follow Justice Barrett on or off the Court.

The majority, though, finds no need to overrule Robinson because this case is distinguishable.

Still, no one has asked us to reconsider Robinson. Nor do we see any need to do so today. Whatever its persuasive force as an interpretation of the Eighth Amendment, it cannot sustain the Ninth Circuit's course since Martin. In Robinson, the Court expressly recognized the "broad power" States enjoy over the substance of their criminal laws, stressing that they may criminalize knowing or intentional drug use even by those suffering from addiction. 370 U. S., at 664, 666. The Court held only that a State may not criminalize the "'status'" of being an addict. Id., at 666. In criminalizing a mere status, Robinson stressed, California had taken a historically anomalous approach toward criminal liability. One, in fact, this Court has not encountered since Robinson itself.

Public camping ordinances like those before us are nothing like the law at issue in Robinson. Rather than criminalize mere status, Grants Pass forbids actions like "occupy[ing] a campsite" on public property "for the purpose of maintaining a temporary place to live." … In that respect, the city's laws parallel those found in countless jurisdictions across the country. See Part I–A, supra. And because laws like these do not criminalize mere status, Robinson is not implicated.

But are the cases distinguishable? Depends how you look at it. As I explained in an earlier post, the Court's conservatives and liberals have long argued about whether to characterize laws as regulations on the basis of status or conduct. I think Justice Sotomayor's dissent makes some fair points, so long as you accept the "status" framing of the case. I won't rehash that debate here.

Rather, what is important is that the majority recognized that Robinson was inconsistent with original meaning, and declined to extend that non-originalist precedent.

The plaintiffs sought to extend Robinson:

If Robinson does not control this case, the plaintiffs andthe dissent argue, we should extend it so that it does. Perhaps a person does not violate ordinances like Grants Pass'ssimply by being homeless but only by engaging in certain acts (actus rei) with certain mental states (mentes reae).Still, the plaintiffs and the dissent insist, laws like these seek to regulate actions that are in some sense "involuntary," for some homeless persons cannot help but do what the law forbids. See Brief for Respondents 24–25, 29, 32; post, at 16–17 (opinion of SOTOMAYOR, J.). And, the plaintiffs and the dissent continue, we should extend Robinson to prohibit the enforcement of laws that operate this way—laws that don't proscribe status as such but that proscribe acts, even acts undertaken with some required mentalstate, the defendant cannot help but undertake.

But the Court declined that invitation:

As we have seen, Robinson already sits uneasily with the Amendment's terms, original meaning, and our precedents. Its holding is restricted to laws that criminalize "mere status." Nothing in the decision called into question the "broad power" of States to regulate acts undertaken with some mens rea. And, just as in Powell, we discern nothing in the Eighth Amendment that might provide us with lawful authority to extend Robinson beyond its narrow holding.

This is precisely what the Supreme Court, and all courts should do with non-originalist precedents that do not govern a particular case: refuse to extend it to new circumstances. I developed this theme in my article, Originalism and Stare Decisis in the Lower Courts. Even if an erroneous precedent cannot be overruled, courts should isolate the damage, and decline to extend it to new circumstances.

Oh, and one last piece of advice: in every future Eighth Amendment case, the defendant should preserve the issue of whether any applicable overrule Warren and Burger Court precedents. I can't imagine a case like Robinson has any reliance interests value, and it was egregiously wrong the moment it was decided.

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