The Volokh Conspiracy

From the poll, conducted Wednesday and Thursday of last week:

There is an ideology that white people are oppressors and nonwhite people and people of certain groups have been oppressed and as a result should be favored today at universities and for employment. Do you support or oppose this ideology?

A question asked two questions after that (the intervening question being, "Do you think this ideology is helpful or hurtful to our society?"):

Do you think that Jews as a class are oppressors and should be treated as oppressors or is that a false ideology?

Lots more in the survey, available here. From the description:

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From Murry v. City of Indianola, decided Thursday by Judge Debra Marie Brown (for stories on the incident, which confirm that the boy's name has been broadly reported, see here):

The plaintiff, A.M., an eleven-year-old boy, was shot in the chest by an Indianola Police Department officer responding to a domestic violence call at the home of his mother, Nakala Murry. The father of one of Murry's children, John Nolden, came to her home in the very early hours of May 20, 2023. His conduct and a history of domestic abuse caused Murry to fear for her safety and that of her two children and two nephews who were in the home. According to the police officers, they were unaware of the presence of children at the home, but were aware of the history of violence by Nolden.

One of the officers, the defendant, Greg Capers, shot A.M., though the parties give slightly varying descriptions of how the shooting happened. Caper's body camera captured the events giving rise to this case, including the events leading to the shooting of A.M. and the immediate aftermath of the shooting. Since the filing of this action, the plaintiff, Nakala Murry, plaintiff's counsel, and A.M. have all appeared in numerous articles, including nationwide print, and in broadcast media.

The defendants filed a motion for judgment on the pleadings and have proffered this body camera footage as an exhibit to the motion, but have moved for leave to file it under seal, at least for the duration of the litigation … .

The plaintiff—A.M.'s mother, suing on A.M.'s behalf—opposed the sealing, but the court disagreed:

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Origin unknown; I've seen it credited to Franz Kafka, but I'm skeptical about that.

If I read the New York Times scoop about Dobbs correctly, there was never any internal uncertainty about what the Justices would do in the case. There were always enough votes to hear the case, and Alito's draft majority opinion picked up five votes at a record pace. A majority had signed on to Alito's draft several months before the leak.

Of course, readers will disagree on whether this is a good thing or a bad thing.  To some, it will show how unwavering the majority was in their commitment to the right path.  To others, it will show how zealous they were in their blind commitment to such a mistaken ruling. But however you come out on that, I think the timing should probably alter some of the assumptions sometimes made in discussions about Dobbs and the Dobbs leak.

Here's my thinking.  The article presents the story from the perspective of those who tried to prevent the Dobbs majority. Since-retired Justice Breyer seems like a likely source, given the discussion of what was in his head at various times. And that creates a dramatic narrative of (Breyer's) uncertainty that matches what I think most people had expected was happening internally.  On that expected narrative, the leak happened while the Justices were negotiating over the opinion, before five had signed on.

But apparently that wasn't the case. There was a majority around mid-February, without anyone requesting a single word of changes. The leak happened months later, on May 8.

Here's the most remarkable passage:

On Feb. 10 last year, Justice Samuel A. Alito Jr.['s] . . .  clerk circulated a 98-page draft opinion in Dobbs v. Jackson Women's Health Organization. After a justice shares an opinion inside the court, other members scrutinize it. Those in the majority can request revisions, sometimes as the price of their votes, sweating sentences or even words.

But this time, despite the document's length, Justice Neil M. Gorsuch wrote back just 10 minutes later to say that he would sign on to the opinion and had no changes, according to two people who reviewed the messages. The next morning, Justice Clarence Thomas added his name, then Justice Amy Coney Barrett, and days later, Justice Brett M. Kavanaugh. None requested a single alteration.

Given that timing, the theory that the leak was designed to "lock in" the majority, or that it had that effect, seems implausible to me.  The five in the majority had all joined almost immediately, months earlier, with not a single suggestion of changing a single word in the 98-page draft.

True, it's possible that a Justice might join an opinion one day and then "unjoin" it later before it is published. But that's rare. And this was understood as likely the most important case of the Justices' careers, with an opinion they had rushed to sign on to. And months had already passed.  By the time of the leak, Alito's opinion would have been seen as basically done.

My experience as a clerk is from 20 years ago, with mostly different Justices.  But in that bygone era, at least, a Justice hoping to prevent a five-vote majority would go to the likely 5th vote Justice and ask them to hold off until concurrences and dissents are circulated. The idea was that, as long as the circulating draft didn't have a majority yet, there was a chance that it wouldn't get one. A different opinion, circulated later, might persuade them.  That potential 5th vote would signal openness to coming out differently by waiting for other opinions first.

What's striking about the inside story here, it seems to me, is that this didn't happen. No one waited.  The Alito draft got to five at a pace faster than a 9-0 ERISA opinion.

I assume this partially explains why, after the leak, the majority did not change the draft very much. I've seen a lot of speculation that they did that because of public pressure. They couldn't change it because they would look bad, the argument runs. They would be seen as weak, so they had to join even thought they probably didn't want to.  But in light of what we know now, the more likely explanation is that the leaked Dobbs draft already had five votes "as is," and it had those votes for months.

As I said up top, different people will see this as good or bad.  But it seems like the most important lesson from the Times story.

I realize that I live rent-free in the heads of many law professors. Apparently, I also reside in the dreams of generative AI.

A professor emailed me to ask if I ever wrote this article:

Blackman, Josh. "The Most Dangerous Man On the Supreme Court." Charleston Law Review, vol. 11, no. 17, 2017, pp. 321-365.

No, I've never written this article. In fact, I'm not sure who would have been the most dangerous person on the Supreme Court in 2017. And I've never published in the Charleston Law Review.

Yet, a student in this professor's class submitted a paper that cited this article! And apparently the student used Chat GPT or some other generative AI. The professor wanted to verify I didn't write the article, to support an academic misconduct complaint against the student. I verified the claim, though in candor, I double checked to make sure I didn't write something with that title in some other journal. (I didn't.).

The professor also told me the student cited a book published by Justice Barrett about the Supreme Court and cinema in the Southern Illinois University Press. I think it is safe to say she did not publish that book--or any other book for that matter. (Sorry, I couldn't resist.)

I was tempted to title this post, I Dream of Joshie, but I doubt enough readers would have gotten the reference.

Jodi Kantor and Adam Liptak of the New York Times have published a remarkable story about Dobbs that reports on private correspondences, votes at conference, and more. This post will highlight sixteen of the largest disclosures, and close with some broader thoughts. And I've presented this narrative in (roughly) chronological order.

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One of the major issues in the law of digital evidence investigations is how the Fifth Amendment privilege against self-incrimination applies to unlocking phones.  As I wrote here at the Volokh Conspiracy back in 2020, the lower court caselaw is a total mess. No one can say what the law is.  And I've been waiting for a case to come down that might be a good candidate for U.S. Supreme Court review to clear up the mess.

Here's a possibility: The Utah Supreme Court's ruling today in State v. Valdez. In this post, I want to talk about Valdez and consider if it would be a good prospect for Supreme Court review.

The Facts

Valdez was charged with kidnapping and assault of his ex-girlfriend.  The government had a warrant to search his phone, as a lot of the evidence was thought to be of their communications. And his ex-girlfriend's phone, which would also have the communications, had gone missing. But Valdez's phone was locked, with a nine-dot pattern passcode needed to access it, and the police could not break in.  The government asked Valdez for his password, telling him that if he declined they might damage the phone to try another way to bypass the encryption. But he refused to provide the passcode, and he told them to just destroy the phone.  The government was never able to get into the phone.

At trial, the government wanted to put on testimony that Valdez refused to unlock the phone as evidence of his guilt. The defense objected, arguing that Valdez had asserted his Fifth Amendment privilege.  The trial court overruled the objection, allowing the testimony.  During the closing argument, the prosecution emphasized that the text messages between the defendant and his ex-girlfriend stored on his phone would answer whether this was a real kidnapping (as the prosecution claimed) or consensual (as the defense asserted).  And in that context, the prosecution argued, the refusal to unlock the phone was incriminating.  The jury convicted the defendant.

The Valdez Ruling

The parties in the case both assume, as the court of appeals ruled below, that the government cannot comment on a defendant's assertion of his Fifth Amendment privilege under Griffin v. California, 380 U.S. 609 (1965).  Griffin ruled that the government can't comment on the defendant's refusal to testify at trial, and it's not obvious it extends to a pre-trial assertion. But the Utah Supreme Court accepts that framing, assuming for the purposes of argument that the key question is whether Valdez had a Fifth Amendment privilege not to provide his passcode.  And the court concludes that the answer is yes.  As it summarizes:

We first address the State's argument that providing a passcode is not a testimonial communication. We disagree. Providing a passcode is testimonial because it is a communication that discloses information from the person's mind. We then move to the State's other arguments. We conclude that the foregone conclusion exception does not apply here. That exception arises in cases involving compelled acts of producing evidence to determine whether the act has any testimonial value because the act implicitly conveys information. Such an analysis is not necessary in a case involving a verbal statement that explicitly provides information.

The Utah Supreme Court thus agrees with the court of appeals that the conviction cannot stand, as it was based on a Fifth Amendment violation and it was not harmless error.

Why This Might Be Cert-Worthy

Will the U.S. Supreme Court review Valdez, assuming the state seeks review?   Maybe.

Here's the case in favor.

First, there's a state Supreme Court split on how the Fifth Amendment privilege applies to orders to compel a password in order to execute a warrant for a phone.   Unless I'm missing something, Valdez joins the Pennsylvania Supreme Court's ruling in Commonwealth v. Davis in upholding the privilege in that setting. On the other hand, the New Jersey Supreme Court disagreed with that view in State v. Andrews, ruling that the foregone conclusion doctrine applies and the defendant can be forced to disclose the password if the government can show he knows it.  So at the very least, there is a 2-1 split on compelled disclosure of passwords.

Second, Valdez would come to the Supreme Court in a better procedural posture than other cases.   Most compelled unlocking cases involve interlocutory appeals.  The government gets an order requiring the defendant  to say the password or unlock the phone, and the government seeks enforcement of the order.  Whether the order can be enforced then goes up on appeal while the rest of the case is still pending.  That can create procedural barriers, most significantly if the state wins in the state supreme court; the U.S. Supreme Court probably lacks jurisdiction to review the ruling under the final judgement rule.  Here, by contrast, there's a final judgment.

Some Potential Complications

But there are some complications.

First, Valdez is a compelled disclosure case, not a compelled unlocking case.  There are state supreme court splits on both compelled disclosure and compelled unlocking. But the issues are potentially very different, as the Valdez court explored in depth.  In a case that involves an interlocutory appeal, the two issues are often either presented together or at least are easy to address together. The government has an order, and it just wants "in" to the phone so it can execute the warrant. Typically, prosecutors are happy if the defendant either unlocks the phone or gives the government the password to unlock it.  Either is fine.

It's different with Valdez.  The record in Valdez is that he was asked to provide the passcode, not to enter it.  And the issue is whether the government could have testimony on that.  If the Supreme Court were to take Valdez, it might have to only answer the compelled disclosure issue, and then save the compelled unlocking issue for another day.

That's certainly possible. But it might be odd to only address half of the puzzle. Compelled unlocking and compelled disclosure raise different legal issues, but they go together in practice. Would the Supreme Court want to take on one half of the puzzle without being able to take on the other half?  I don't know.

A second question is whether the somewhat uncertain assumptions framing Valdez might deter the Justices.  As Footnote 6 of Valdez points out, the parties are assuming that Griffin applies to commenting on pre-trial evidence.  And there are also interesting Salinas v. Texas issues lurking: Assuming that the refusal to unlock the phone counts as an assertion of the privilege, what follows from that is an issue not explored by Salinas.  But maybe the U.S. Supreme Court would just put that set of issues aside, taking Valdez for the specific issue on which the parties have agreed the case rests.

As always, stay tuned.