Obama's Justices vs. Obama

Obama has appointed to the Supreme Court people who don't entirely share his taste for aggressive statism.


Barack Obama, the law professor who railed against the Bush administration's disdain for privacy, has been to civil liberties what the Hindenburg was to air travel: an unexpected debacle. Time after time, he has chosen to uphold government power at the expense of individual protections.

Warrantless wiretapping in national security cases? For it. Detaining citizens indefinitely without trial? Sure. Assassinating Americans abroad without making public the evidence or the legal rationale? Done. In October 2010, American Civil Liberties Union Executive Director Anthony Romero pronounced himself "disgusted" with the administration's record.

But there is one big redeeming item on his record: He has appointed to the Supreme Court people who don't entirely share his taste for aggressive statism. In two recent major decisions, both Sonia Sotomayor and Elena Kagan have declined to indulge ominous encroachments on personal freedom and privacy.

Their latest stand came in a case where police put a Global Positioning System on a suspect's car and monitored his every move for nearly a month—without a warrant. The Fourth Amendment to the Constitution bars "unreasonable searches and seizures." But the Justice Department said that's irrelevant because attaching the device did not amount to a search.

At that point during oral arguments, Justice Stephen Breyer said, "If you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States"—a prospect he likened to the totalitarian surveillance depicted in George Orwell's "1984." The government's lawyer did not contradict him.

Obama's Supreme Court appointees recoiled at that prospect—along with the rest of the court, in a rare unanimous verdict. Both also indicated a willingness to put tighter constraints on police than some of their colleagues might prefer.

Kagan signed onto an opinion by conservative Justice Samuel Alito taking the view that modern technology demands a new interpretation of what constitutes a search. In this instance, police can acquire far more extensive information about far more people than would have been imagined two centuries ago, when the Fourth Amendment was written.

In cases like this, Alito said, "society's expectation of privacy has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual's car for a very long period."

To do that without a warrant violates the Fourth Amendment. The same, he suggested, might hold true for other new sources of information, such as outdoor video cameras and automatic toll equipment. Kagan agreed with all this.

Sotomayor took an even warier view of police use of modern data-collection systems. Under past Supreme Court decisions, you can unwittingly surrender your privacy by doing business with a bank, insurer or other company. The government can commandeer those records without a warrant—on the odd theory that they are not private because you've already let someone see them.

Of course, the fact that you have to contract with a cell phone provider to function in the modern world doesn't mean you have no stake in keeping your call log strictly between you and Verizon. Sotomayor said the existing, government-enabling doctrine "is ill suited to the digital age." Her position, if shared by other justices, could lead to sensible new constraints on cops.

The Obama justices also firmly rebuked the government when it trampled on freedom of religion. The administration had taken the side of a religion teacher at a religious school who claimed she had suffered employment discrimination.

Ministers and other religious leaders are normally not covered by such laws, on the theory that the government has no business telling sectarian bodies who should lead the faithful. But the Justice Department not only said the teacher was not covered by the "ministerial exception"; it said there should be no such exception.

How did that argument work out? During oral arguments, Kagan called it "amazing," and the court rejected it 9-0. The religion clauses of the First Amendment, it said, "bar the government from interfering with the decision of a religious group to fire one of its ministers."

Obama would like to extend the government's reach into that as well as other places that were once off-limits. When he tries, though, he can't assume his justices will have his back.


NEXT: Religious Education

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  1. Miracuously, writes Steve Chapman, he has appointed to the Supreme Court people who don’t entirely share his taste for aggressive statism.

    Why not? He just plans to ignore their rulings.

    1. Query: Which one of your 20 marooned geishas is Suki, Co’sun?

  2. .. so the core lesson here is to ignore & disbelief everything Obama says. Move on.

    Rational people need no more examples that his actions do not match his words… and that outright lies are routine. Most politicians behave this way, and some excel at it. Political party partisans view this as a good thing (‘political skill’) for their own party guys — but a despicable trait in opposing political parties.

    So the nation’s chief politician says one thing and does another in contradiction. The real surprise is that experienced observers (like Steve Chapman) are at all surprised by this … and feel somehow urgently compelled to highlight it as something unusual ?

    1. Someone needs to rage against the storm.

      1. Or at least against the dying of the light.

    2. I think it is more so a nod to a couple of his appointees having integrity. Quite surprising considering all his other gutless lackeys. Of course, it is not so much to their credit as voting out of sync would have been to their discredit, but still…

  3. Barack Obama…has been to civil liberties what the Hindenburg was to air travel: an unexpected debacle.

    Really? Don’t I remember constant reassurances from my friends to the Left that he would “govern from the Middle” while my friends from the Right were screaming what a horror he would be? Didn’t everyone see this coming? Steve Chapman is still right to make the comparison in the first paragraph. When you fill the presidency with a statist, you get the same three things as when you fill a tremendous balloon with hydrogen gas:
    1) A giant gasbag.
    2) A recipe for disaster.
    3) Great news footage.

    1. The media (outside of Reason and a couple others) would have to report it for it to make great news footage.

      1. Maybe footage is the wrong term. Maybe radio? Talk radio had clips of Obama running wall to wall in ’08.

        1. I just wish the MSM would spend some time on this hypocrisy.

    2. Didn’t only a few people die from the Hindenburg?

      1. sure, but a few of them were brown people on the ground under the Hindenburg, so, just like an Obama administration.

  4. an unexpected debacle.

    The words you use do not mean what you think they mean.

    1. Morning links after 9:03AM

    2. Yes, foreseeable debacles are not unexpected.

      Who on earth (with a brain, that is) thought a lefty Chicago hack would be good on civil liberties?

  5. Now there is a dude that jsut doesnt know what to do man. I mean like seriously.


  6. Dude does make a lot of sene man.

  7. Sometimes you reall yhave to wonder.

  8. Supreme Court justices have rejected the power dreams of the presidents who appointed them from the get go.

    Thank the wisdom of the founders

    1. The Founders? Wisdom? The same Founders who filled the constitution with confusing language like : “The right of the People”? Those FOunders?

      1. The same ones who did not give the Supreme Court the same level of authority as the other branches. The court had to assert that later.

      2. Hey, don’t blame the government that you’re not a Constitutional scholar and can’t interpret it properly.

        1. Some people actually thing “Congress shall make no law” actually means “Congress shall make no law”.

          Can you believe it?

          *scoff* Peasants.

          1. *think*

          2. Oceans of ink have been spilled by experts trying to discern what those words mean.

            1. Oceans of ink have been spilled by experts trying to discern obfuscate what those words mean.


              1. Accompanied by buckets of money.

      3. It’s Be Nice To Tim day. 

        Tim, you have nice typing skills

        1. Fuck you Tim. You’re ugly and your mother dresses you funny.

          1. Under the circumstances, I agree.

          2. You try dressing the little bastard; he won’t stop wanking

    2. Rich. White. Slave. Owners.

      ’nuff said

  9. I won’t hold my breath with these justices. Though i will admit that 9-0 opinions are very rare, and this does appear to be a couple of spankings.

    1. I couldn’t find a source during a very quick search, but I heard an interview on the radio the other day with a supreme court justice who claimed that 80% of their rulings were unanimous. Obviously most are not newsworthy leaving us all with the impression that they are rare.

  10. Who are those two men standing by Sotomayor shaking hands?

  11. I am shocked actually. Given the kinds of people he has appointed elsewhere I really expected Kagan and Sotomayor to be as solidly fixed on the progressive agenda as Captain Zero. I was horrified when he appointed them. To my surprise, it seems they may have actually read the constitution and take some parts of it seriously.

    1. Er, “progressive” or liberal justices actually have had a very good record (comparitvely) on many rights such as the rights of the accused, privacy, etc….Think of the kind of judge most likely to agree with the ACLU suing the police and the kind of judge most likely to agree with the police…

      1. Wouldn’t it be hilarious if they also stood up for an individual’s right to not buy something they don’t want?

        1. If they actually ruled that way, most of the Federal Register would have to be ashcanned. Since many regulations boil down to “You have to buy these goods or services or we will shut you down.”

          One of the reasons I can’t convince myself they will strike the individual mandate. The routine exercise of the Commerce Clause since FDR has included thousands and thousands of mandates.

          1. I’m not convinced they will kill it either, but there is a subtle difference between this and every other mandate. Hopefully they will see that upholding this mandate means giving unlimited power to the federal government…

            1. but there is a subtle difference between this and every other mandate.

              They could try to hang their hat on the argument that your garden-variety mandates are “conditional”:

              If you want to run a widget factory, you have to buy a truckload of mandatory safety gear and posters and shit.”

              The obvious analogy to the ObamaCare mandate would be “If you want healthcare, you have to buy the insurance policy.” Of course, that would mean that we would bar the doors to people who haven’t, and that ain’t gonna happen. I have a really hard time with SCOTUS saying that Congress can’t impose an individual mandate unless it also takes the more drastic step of barring violators from getting health care. Wasn’t this supposed to be about limits on Commerce Clause authority?

              I’m not sure I see a clean, principled way to distinguish OCare from the usual mandate.

              For one thing, the kind of condition that triggers mandates really operates like this: “Because you affect interstate commerce by operating a widget factory, you have to buy, etc.” That maps over very cleanly to OCare: “Because you affect interstate commerce by being in the risk pool for health care, you have to buy insurance.”

              1. Right, but you actually have to be “operating” the widget factory. Even cases like Raich and Wickard constantly speak about activities. Respiration (the act of being alive and breathing) is not an activity in the economic sense. To make the next step you have to consider the decision to not buy insurance to be the regulated activity. If the Court recognizes the federal government’s ability to penalize people for their thought processes that result in inaction, then turn out the lights because it is all over.

      2. That is a good way to think of it, but I was thinking instead of the special kinds of people he has appointed; radical extremists in every case. I expected these two to be the same ilk.

        1. These decisions are pleasant surprises, but I have no doubt that they will hold the progressive line on economic liberties – as in you have no economic liberties.

          1. Well, I guess I should have read a few comments further, since you guys said the exact same thing. Great minds and all.

  12. I don’t like this article because it presents Kagan and Sotomayor in a favorable light that I don’t think will be warranted when Obamacare comes in March. That is all.

    1. I am pleasantly surprised by these decisions, but I am also holding my breath. Obamacare will be the make-or-break decision. Given that the pro individual mandate argument extends total govt power over our pocketbooks in the same manner that the warrantless gps search does over our movement I am a bit hopeful now.

      1. Squash that hope. The Supreme Court does not believe in economic freedom.

        1. I’ll actually agree with the Rev here. A long time ago liberal justices decided that they would be judicial activists with regard to “social freedoms” like privacy and the 1st, 4th, 5th, 6th and 8th Amendments but they would exercise judicial restraint with “economic freedoms.”

          Of course, the fact that the Constitution doesn’t seem to have a lot of explicit economic freedom provisions in it had something to do with that…

          1. “No State shall…pass any…Law impairing the Obligation of Contracts”

            1. That’s a restriction on the states, yes. But its one of those ones that certainly shouldn’t be taken literally, otherwise you could’nt interefere in a contracted mob hit…

              1. Contracts aren’t valid if illegal activity is required to fulfill them.

                1. That’s kind of the point. Say the state wants to make something illegal that was not before, and they do. If I had a long term contract to do that thing before the law passed then a literal reading of the clause would have to allow me to carry it out…Otherwise you’d be “impairing” my contract.

                  1. Wouldn’t the contract just become invalid the moment the state makes the activity illegal? Up until that moment the contract was valid and unimpaired. After that point the contract is not valid and can be legally impaired. I think if you wan the state to enforce your contract you also have to let the state define what a contract is.

          2. Of course, the fact that the Constitution doesn’t seem to have a lot of explicit economic freedom provisions in it had something to do with that…

            One of those things that they Founders thought they handled with the whole limited enumerated powers thing. The only economic power that the Feds have is to regulate transactions that cross state lines.

            Now, parsing out just what that includes is not intuitive, but it certainly doesn’t include production, and certainly doesn’t include transactions that don’t cross state lines.

            The statists have chafed at this from day one, but SCOTUS did a reasonable job of keeping them in check until FDR.

        2. I am hanging on to it in spite of the danger of crushing disappointment. I get a lovely giddy feeling at the thought of his signature legislation being publicly destroyed just before the election. It would be the greatest slap delivered to any president ever, and couldnt be more appropriate.

          If they do strike it down, I would give my life savings to have video of his initial reaction.

          1. His reaction will be: “Oh well. Guess I’ll just have to do it with Executive Orders…”

            1. I used to go sit in court just to watch. I noticed that many judges seem to spend alot of time gauging the attitudes of the people in the courtroom. They seem to give as much weight to public opinion about matters as they do to the law. But then, judges are public officials who perform their duty in the plain sight of the public, and the public is in the plain sight of the judge. The same is true of almost all local officials.

              For the POTUS the public is far removed from his sight. The crowds he speaks to are hand-picked, the reporters are always friendly, and his daily contacts are his active supporters. The polls he sees are slanted to his view. This creates a situation where the POTUS can seriously misgauge the public’s disposition, where he is insulated from reality. Given all that Captain Zero has done, how far he has pushed the limits of his power and his apparent willingness to keep it up, I half expect a second term for Captain Zero to give rise to the kinds of insurgencies seen in banana republics. If Obamacare is upheld I feel certain he will try to extend the individual mandate logic over other forced purchases. The chevy volt comes to mind. Solar panels….right down to what you eat for supper and how you dress.

            2. No doubt, but it will probably cost him the election

      2. If one can be said to have a right to live, the individual mandate is an infringement on that right. No one should have to pay for the right to draw breath.

  13. “Kagan signed onto an opinion by conservative Justice Samuel Alito taking the view that modern technology demands a new interpretation of what constitutes a search.”

    This is a stange way to read this case. Alito was the only conservative justice to take the broad view on this, all of the others joined the more narrow opinion by Scalia. All the liberal justices took the broader view, but that’s the usual trend with 4th Amendment cases.

    1. Your understanding of the majority opinion and the concurrence — which of them is “narrow” and which of them is “broad” — is hilariously wrong. Let me guess: the closest you ever came to law school is driving past one.

  14. OK, we take it all back.

  15. Obama regrets his appointees have no family members to hold hostage……

  16. I hold out no hope for Sotomayor, since her record is second-rate, that of a middling intellect. Kagan is another matter. While she could simply use her intellect to rationalize removing any effective limits on government, she might also surprise to the upside. She might actually be principled. I wouldn’t be entirely surprised if she votes against the individual mandate in Obamacare, even if Kennedy the Squish votes to uphold it.

    1. Kagan? Vote against OCare? She’s already on record that its Constitutional, for crying out loud. She is the surest vote for

      1. but as other have said, what if she is actually principled? Sure, in her capacity as Obama’s lawyer, it was her job to defend his case, so she did.

        As a Justice, her job is a different one now, and maybe, JUST MAYBE, she has the balls to do it properly.

        (eh, who am I kidding. anyone want some broccoli?)

    2. You need only look at the picture accompanying this post to know how Kagan is going to vote. She looks ready to kiss Hillary’s hand…

  17. What you’re seeing is the Roberts block intellectually manipulating Sotamayor and Kagan. I’m sure they’re nice people but they lack, (to a huge degree) the intellectual firepower of Roberts, Scalia Alito and yes, Thomas. They’ll be tools of this block for years because they really aren’t that smart.

    Obama appointed two affirmative action justices and they will be followers of the conservative block for years to come. Just watch how Kagan votes and see what opinions she signs on to.

  18. in a rare unanimous verdict

    Kagan called it “amazing,” and the court rejected it 9-0

    In other words, Obama’s appointees opposed him when their concurrence would have had no impact. Don’t be fooled. They’re just sandbagging so that when their votes really count, such as with regard to the HCRA, they can be a rubber stamp for his agenda and yet claim to be objective.

  19. Now if we can get the SC to throw out ACTA on the basis of Obama making a treaty without involving the Senate, it would be a real win.

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