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Recent opinions: In Plain English

The Justices are now in their mid-term recess, setting us up for several weeks in which we will not get any new opinions or orders.  But before starting their break, the Justices gave us a parting gift:  three opinions in argued cases.  And the debate generated by one of those decisions in particular could well fill the time until the Justices return.  Let’s talk about them in Plain English.

In a Term in which the Court was not considering the constitutionality of the Affordable Care Act, Texas’s redistricting plans, and Arizona’s controversial efforts to regulate immigration, the Court’s decision in United States v. Jones might well have been one of the stars of the Term.  Even this year, though, it was one to watch.  The Court was considering the case of Antoine Jones, a nightclub operator who received a life sentence for his role in a drug-trafficking scheme.  To obtain evidence against him, the government had installed a GPS tracking device on his car without a valid warrant and then used the device to track his movements for nearly a month.  The U.S. Court of Appeals for the District of Columbia threw out Jones’s conviction, explaining that the use of the GPS device violated his right under the Fourth Amendment to be free of “unreasonable searches and seizures.”

Not quite three months after an oral argument in which some Justices raised the specter of “Big Brother” monitoring ordinary people twenty-four hours a day, along the lines of George Orwell and the novel 1984, the Court affirmed the lower court’s decision.  All nine Justices agreed that Jones’s conviction should be reversed.  But they were deeply divided on how to reach that conclusion, leaving journalists and lawyers alike to debate the significance of the decision for future cases.

Five Justices – the Chief Justice and Justices Scalia, Kennedy, Thomas, and Sotomayor – focused on the government’s installation of the GPS tracking device on Jones’s car.  To these Justices, the installation and use of the device were the same as if the government had gone onto Jones’s property to collect information to use against him.  Because this kind of “trespassing” would have been a “search” when the Fourth Amendment was first adopted in the eighteenth century, these Justices reasoned, it is still a “search” today.

Justice Alito wrote a concurring opinion, joined by Justices Ginsburg, Breyer, and Kagan, in which he agreed that Jones should win but rejected the majority’s use of a “trespass” approach to reach that result.  Some of you may recall that during last Term’s oral arguments in Brown v. Entertainment Merchants Association, a challenge to the constitutionality of a California law banning the sale or rental of violent video games to children, Justice Alito poked fun at Justice Scalia’s use of originalism – a method of constitutional interpretation that relies on the intent of the men who drafted the Constitution – by telling one of the lawyers in the case that “what Justice Scalia wants to know is what James Madison thought about video games” and whether Madison “enjoyed them.” Criticizing the majority’s approach in Jones, Justice Alito returned to the debate over the role of originalism, explaining that he found it “almost impossible to think of late 18th-century situations that are analogous to what took place in this case.”  (In a flash of dry humor, Alito attempted to come up with a case that might fit the bill, describing a scenario in which a constable hides in a coach to monitor the movements of the coach’s owner, but he ultimately concluded that such a situation “would have required either a gigantic coach, a very tiny constable, or both.”)

Instead, Justice Alito would look to whether a reasonable person would have regarded the use of GPS tracking to monitor Jones’s movements as overly intrusive.  Shorter-term monitoring, Justice Alito explains, could pass Fourth Amendment muster.  But longer-term monitoring, as in Jones’s case, would not:  at least for now, society has believed that police could not, and would not, monitor every move that a person makes for four weeks.

Justice Sotomayor wrote a concurring opinion – which no other member of the Court joined – in which she indicated that she would agree with both the majority’s and Justice Alito’s reasons for finding a search in this case.  She began by explaining that, in her view, this particular case could be decided by the majority’s “trespass” test:  if “the Government physically invades personal property to gather information, a search occurs.”  At the same time, however, she expressed concern that the majority’s “trespass” test will not apply to other forms of surveillance that do not require the government to intrude on someone’s property – for example, cars or smartphones that already contain GPS tracking devices.  And of all of the Justices, she seemed to be the most concerned about privacy in the electronic age; she suggested, for example, that in cases involving electronic privacy the Court should take another look at its cases holding that Americans have no expectation of privacy in information that they voluntarily expose to others.  Notably, although Justice Alito shared Justice Sotomayor’s first concern regarding the limits of the majority’s approach, in his opinion he seemed to leave open the possibility that, as technology changes and becomes even more ubiquitous, our expectations of privacy could eventually decrease.

If you are having trouble deciphering the significance of the three opinions in Jones, you should take some solace in knowing that you are not alone:  there is a spirited debate in the media and blogosphere about what the Court actually held and what the decision means.  (Examples of this debate are available here and here.)  Even after Jones, it may be that the government does not need to get a judge’s permission to put a GPS monitor on a car to follow it for a few days.  At a minimum, though, you can be sure that the issues surrounding government surveillance and electronic privacy will likely be back at the Court soon.

Last week’s other decisions have received far less attention than the Court’s decision in Jones.  On the other hand, in both it was much easier to understand what the Court was ruling.

The conventional wisdom holds that the most junior Justice on the Court – currently Justice Elena Kagan, now in her second Term – gets stuck with the opinions that no one else wants to write.  That conventional wisdom certainly seemed to hold true when the Chief Justice announced that Justice Kagan was the author of the Court’s opinion in National Meat Association v. Harris.  At issue in the case was an interesting and straightforward question that the Court considers in one form or another fairly often:  whether a federal law “preempts,” or trumps, a state law.  However, the context in which this question arose was not for the squeamish, as it required the Court to examine the relationship between federal and state laws regulating slaughterhouses.

Enacted over a hundred years ago, a law passed by Congress – the Federal Meat Inspection Act (FMIA) – and the regulations issued under it by a federal agency create a comprehensive system to ensure that animals are slaughtered humanely and that the meat from those animals is safe for human consumption.  One of the ways that it seeks to do so is by establishing specific procedures for animals that are not seriously ill, but are still sufficiently sick or injured that they cannot walk.  Under the federal system, these animals must be slaughtered separately and then inspected to make sure that they can safely be used as food.

This case arises because a few years ago California enacted its own law regulating slaughterhouses.  Among other things, the state law prohibits slaughterhouses from buying or receiving animals that cannot walk.  It also prohibits the slaughterhouses from processing or selling meat from these animals; instead, the animals must be euthanized immediately.

The National Meat Association, a trade association that includes slaughterhouses, went to federal court, seeking to block the enforcement of the state law on the ground that it was preempted by the federal law.  The U.S. Court of Appeals for the Ninth Circuit disagreed; in its view, the state law only regulates what kind of animals – those that can walk – can be slaughtered without regulating the slaughtering process itself.

The Supreme Court unanimously reversed the Ninth Circuit’s decision.  To do so, it relied on a provision in the FMIA which states that the law preempts any other efforts to regulate slaughterhouses.  The California law, the Court explained, does exactly that by basically creating a new regulatory scheme for slaughterhouses in California.  To illustrate that point, the Court used the example of a pig that can walk when it is delivered to the slaughterhouse but then becomes disabled.  Under the California law, the pig would have to be euthanized immediately and could not be used for food.  But under the federal system, the pig would not have to be killed immediately, and its meat could be used for food as long as it passed inspection.  Because the California law imposed tougher requirements than the federal law, the Court concluded, it is preempted.

The Court’s preemption cases are often hotly contested and consequential – deciding, for example, whether accident victims can sue automobile manufacturers or parents can sue vaccine manufacturers for their children’s injuries.  Although animal-rights activists have criticized the decision in this case, so far it has proven (as the nine-zero vote might suggest) far less controversial.  But don’t take that as a sign that the nine Justices have reached a consensus on preemption.  Instead, a more likely interpretation is that the text of the federal law was unusually clear in preempting a wide range of state laws, making this an easy case.

The Court also issued a decision in Reynolds v. United States, a case interpreting the federal Sex Offender Registration and Notification Act (SORNA).  As I explained when the case was argued back in October, Congress passed SORNA to create a nationwide system to keep track of sex offenders; among other things, the law requires them to register with police where they live and work.  The petitioner in this case, Billy Joe Reynolds, was convicted of a sex offense in Missouri in 2001 and registered in that state after his release in 2005.  However, he was indicted under SORNA after he failed to register in Pennsylvania when he moved there in September 2007.

In February 2007, a few months before Reynolds moved to Pennsylvania, the Attorney General issued a rule indicating that SORNA applies to all sex offenders, including offenders like Reynolds who were convicted before the Act went into effect.  Thus, there were two potential issues in the case as it came to the Court.  The first question was whether SORNA, in and of itself, required Reynolds to register as a sex offender as soon as it went into effect in 2006, even if his conviction occurred before that.  If the Supreme Court were to agree with the Third Circuit (which heard Reynolds’s appeal) that it did, then his appeal would be over and his conviction would stand, because he does not dispute that he failed to register when he moved to Pennsylvania in September 2007. However, even if the Supreme Court were to disagree with the Third Circuit and hold that SORNA did not automatically require Reynolds to register, he would still have to deal with the Attorney General’s February 2007 rule, which made clear that he was indeed required to register.  To get past this point, he argued that – for constitutional and procedural reasons – the February 2007 rule wasn’t valid and therefore couldn’t apply to him.

By a vote of seven to two, the Court, in an opinion by Justice Breyer, answered only the first question, holding that SORNA does not automatically require offenders like Reynolds to register.  Instead, it held, sex offenders who were convicted before the Act went into effect are not required to register until the Attorney General of the United States issues a valid rule or regulation to that effect.  To reach its conclusion, the Court relied on the text of the statute, and in particular a provision giving the Attorney General “the authority to specify the applicability of the requirements of [the registration rule] to sex offenders convicted before the enactment” of the law.  In the majority’s view, that language means that the Attorney General has to say when and whether the law applies to offenders like Reynolds; until he does so, the registration requirement doesn’t apply.

Demonstrating once again that, even in criminal cases, the Court doesn’t always divide neatly on ideological lines, Justice Scalia wrote a dissent that was joined by Justice Ginsburg.  They emphasized that, under SORNA, all sex offenders are required to register.  Given that requirement, they believed that it would be more natural to read the language on which the majority relied – authorizing the Attorney General “to specify the applicability” of the registration rule to offenders convicted before SORNA took effect – to mean that although SORNA requires all sex offenders to register, regardless of when they were convicted, the Attorney General can then excuse offenders like Reynolds from having to register.

Although Reynolds won this battle, the case is far from over.  Instead, it will go back to the lower courts, which now get to iron out the second issue lurking in the case:  whether the Attorney General’s February 2007 rule, which specifically required offenders like Reynolds to register, is a valid one.  If the lower courts agree with the government that he did, Reynolds could still lose the war.

Recommended Citation: Amy Howe, Recent opinions: In Plain English, SCOTUSblog (Feb. 1, 2012, 10:34 AM),