NATIONAL LAW JOURNAL
Supreme Court Brief
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Tony Mauro
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Marcia Coyle
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"Not your dad's Chevy" is how the Electronic Privacy Information Center describes the Fourth Amendment privacy interests at play for drivers of modern cars in today's arguments. The justices—coincidentally or by design—delve into back-to-back challenges involving vehicle searches this morning and we have a quick look at what's at stake.
Also on the SCB radar: This month's "dude docket" underscores the dearth of women arguing at the high court podium. There's a new book out on the newest justice. And we wrap up Monday's Georgia v. Florida water war argument. Go ahead—jump in!
Have comments, suggestions or a different take on the news? Write to us at mcoyle@alm.com or tmauro@alm.com. We love getting your feedback!
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It's 4A Day at SCOTUS: Cars and Curtilage
Four years ago at the Aspen Institute, Justice Elena Kagan said the justices in the "next 10 or 20 years" would need to confront the intersection of privacy and technology. "Fourth Amendment issues are a growth industry for the court,” she said then.
We’re seeing that in real time this term. Two cases the justices will decide involve tricky balancing of privacy in the digital age and the needs of law enforcement— Carpenter v. United States (whether the authorities need a warrant for cellphone location data) and United States v. Microsoft, which the justices will hear on Feb. 28.
Tuesday, however, is a more classic Fourth Amendment day—two pro bono cases brought by two big law firms raise questions that confront everyday law enforcement. Here's a snapshot of today's cases set for argument.
—> First up is Byrd v. United States.
Terrence Byrd’s lawyer, Robert Loeb of Orrick, Herrington & Sutcliffe, urges the justices to find that drivers of rental vehicles have a reasonable expectation of privacy even if they are not authorized drivers on the rental agreement but have the renter’s permission to drive it. The U.S. Court of Appeals for the Third Circuit said that because Byrd was not on the rental agreement, he had no property interest in the car, no reasonable expectation of privacy in the locked trunk—which contained body armor and 49 bricks of heroin—and no Fourth Amendment protection from a suspicionless search. Loeb's opponent is Eric Feigin, an assistant to the solicitor general.
Why this case matters: “The modern vehicle is not your dad’s Chevy,” Electronic Privacy Information Center's Marc Rotenberg says in an amicus brief supporting Byrd. “The connected car is a computer on wheels.” And if you look under the hood, “you will see that the warrantless search of a modern vehicle implicates far more privacy interests than the physical search of a ’66 Buick LeSabre.” What’s needed, according to EPIC, is a clear Fourth Amendment rule to limit police access to personal data stored in the vehicle. EPIC’s brief is one of eight supporting Byrd, including briefs from the National Motorists Association, American Civil Liberties Union and Fourth Amendment Scholars.
—> After Byrd, the court takes up Collins v. Virginia, a curtilage case.
Matthew Fitzgerald, co-chairman of the McGuireWoods appellate practice and a former clerk to Justice Clarence Thomas, steps to the podium on behalf of Ryan Collins in Collins v. Virginia. Fitzgerald argues police needed a warrant when they entered private property and searched a covered motorcycle on the driveway near his house. The Virginia Supreme Court held that the Fourth Amendment’s vehicle exception applied: no warrant needed when police have probable cause to believe a vehicle was engaged in illegality. Defending the lower court's ruling is Virginia’s acting solicitor general, Trevor Cox. He counters that the automobile exception is categorical, “wise,” easy to understand and apply, and has never been limited to particular locations.
Why this case matters: Groups supporting Collins warn that the Virginia Supreme Court’s decision threatens the Fourth Amendment’s foundational protection of the privacy of the home. If that decision is endorsed, they say, the warrantless invasion of a home will be excused as long as the purpose of the invasion was to search an automobile parked on the property.
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Water Fight: Will 'common sense' prevail?
As promised, Monday’s arguments in Florida v. Georgia were more interesting than you might think for a water dispute over usage of the Apalachicola River.
Former U.S. solicitor general Gregory Garre of Latham & Watkins was in top form representing Florida in arguing that the state deserved some relief from the “unreasonable and in fact unrestrained” diversion of water to serve thirsty residents of the Atlanta area.
Pierce Atwood partner Ralph Lancaster Jr., the court-appointed special master in the case was not convinced that Florida’s complaint could be remedied, so he recommended that the high court dismiss it.
But as we reported, it seemed that several justices were inclined to do something to help Florida, even if that something was hard to quantify in advance. It’s only common sense that less water for Georgia means more for Florida, or so it appeared to some justices.
Craig Primis of Kirkland & Ellis gamely fought back on Georgia’s behalf, insisting that a cap on Georgia’s water use would not necessarily help Florida all that much.
Primis also had to respond to one of Justice Stephen Breyer’s fanciful hypotheticals, which included a bit of a flub. Breyer wondered how Florida would benefit from an effort by the mayor of Atlanta to get residents to drink more Pepsi—rather than water, presumably (though of course, sodas are mostly water.). Breyer suddenly remembered he was talking about Atlanta, and said, “or whatever they drink, Coca-Cola, I imagine.”
Primis replied as he had to, given who his client was: “Yes, it would be Coca-Cola, Justice Breyer.”
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The Dude Docket
If you were at the court Monday, you will have seen the first female advocate of the January argument cycle, assistant to the U.S. solicitor general Ann O’Connell, arguing for the 19th time by our count, in the Texas v. New Mexico and Colorado case.
If you want to see the second woman arguing in this sitting, come back on January 17, the final day of the two-week cycle. Louisiana Solicitor General Elizabeth Murrill will defend her state in McCoy v. Louisiana, her debut at the U.S. Supreme Court.
In between, you’ll see 21 males arguing. So, another cycle comes and goes with no women in private practice arguing at the high court. Here’s our latest take (of many) on this perennial problem.
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SCOTUS Reading List
Biographies of Supreme Court justices don’t usually emerge until well into—or after—their tenures.
But that tradition did not keep Washington writer John Greenya from churning out a quick biography of Justice Neil Gorsuch, less than a year after Gorsuch joined the court: Gorsuch: The Judge Who Speaks for Himself.
Greenya had something of a head start. In 1986, Greenya wrote a book titled Are You Tough Enough? along with Gorsuch’s mother Anne Gorsuch Burford, the controversial Reagan administration Environmental Protection Agency director.
That history likely gave Greenya this interesting tidbit about Gorsuch’s mother’s efforts to get Neil into boarding school at Georgetown Prep when she came to Washington. She was miffed that the school was taking its time in deciding whether to admit Neil. She cornered a Jesuit priest at a social event, and when the priest told her the school had a lot of applicants from sons of ambassadors, she said, “Father, don’t you think it’s time to buy American?” Neil was soon admitted.
Stories like that make the book useful as a source for learning about where Neil Gorsuch came from. But even Gorsuch’s close friend, Tenth Circuit colleague and skiing partner Tim Tymkovich seemed to think Greenya’s biography, as positive as it was, could have used further baking.
In a book review for Law360, Tymkovich wrote, “ The book is limited in its scope and detail, however, since Greenya was unable to interview Justice Gorsuch or most of his close friends and colleagues. Without the cooperation of its subject, Greenya was forced to rely largely on newspaper and magazine accounts that appeared following the nomination.”
Reading between the lines, it sounds like Gorsuch did not give friends and colleagues the green light to talk to Greenya, as usually happens with judicial biographies.
→ Wondering where the book title came from? During his confirmation hearing last March, when asked about “dark money” donations supporting his nomination, Gorsuch sternly said, “Nobody speaks for me. Nobody. I’m a judge. I don’t have spokesmen. I speak for myself.”
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