The Volokh Conspiracy

Recently, Ron DeSantis, the Governor of Florida and GOP presidential candidate, offered a mild criticism of President Trump's three Supreme Court nominees. "I respect the three [Trump] appointees," DeSantis said, "but none of those three are at the same level of Justice Thomas and Justice Alito." DeSantis is not wrong. Consistently, Justices Brett Kavanaugh, Amy Coney Barrett, and to a lesser extent Neil Gorsuch, have voted to the left of Justices Clarence Thomas and Samuel Alito. Today, critics assail this Supreme Court as the most conservative bench in modern history. True enough. But it could have been far, far worse for progressives if President Trump had actually nominated Justices in the mold of Justices Scalia, Thomas, and Alito. 

Look past the string of headline-grabbing conservative victories concerning abortion, affirmative action, the religion clauses, the Second Amendment, and so on. Rather, count up the 5-4 cases on the merits docket that swing left, the rejection of applications on the emergency docket brought by conservative litigants, and the denials of certiorari petitions that could have moved the law to the right. These three-dozen cases are all progressive victories snatched from the jaws of conservative defeat. On balance, progressives should be grateful for President Trump's not-so-conservative SCOTUS picks.

The Merits Docket

Let's start with the Supreme Court's merits docket. Justice Gorsuch has cast the deciding vote in five 5-4 cases that swung to the ideological left. First, Sessions v. Dimaya held that a federal immigration law was unconstitutionally vague. Second, Washington Department of Licensing v. Cougar Den exempted members of an Indian tribe from a tax on fuel importers. In both of these two cases, Justice Kennedy voted with the Court's conservatives in dissent. The third case, Herrera v. Wyoming, protected the right of an Indian Tribe to hunt on "unoccupied"  property. Fourth, United States v. Davis held that a criminal penalty for using a firearm during a "crime of violence" was unconstitutionally vague. The fifth case was the most significant. Justice Gorsuch wrote the majority opinion in McGirt v. Oklahoma, which held that large portions of Oklahoma, including the city of Tulsa, remain "Indian country." As a result, the state of Oklahoma could not prosecute crimes committed by members of the Creek nation. In each of these five cases, President Trump's nominee to replace Justice Scalia voted opposite the Court's four conservatives.

After Justice Kavanaugh replaced Justice Kennedy, it should have become harder for the Court's four progressives to cobble together a majority for 5-4 cases--in theory at least. In May 2019, Justice Kavanaugh wrote the majority opinion in Apple v. Pepper, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan. The case held that iPhone owners could sue Apple for alleged antitrust violations. 

In September 2020, Justice Ginsburg passed away. By the end of October, Justice Barrett was confirmed to fill the vacancy. Now, with only three progressives on the Court (Breyer, Sotomayor, and Kagan) two conservative Justices would have to swing left to form a five-member majority. Yet, the progressives would prevail in five more 5-4 decisions. In each case, Chief Justice Roberts and Justice Kavanugh joined the three progressives. First, Biden v. Texas approved the Biden administration's immigration policy. Second, Biden v. Missouri held that the federal government could mandate vaccines for health care workers. Third, Nance v. Ward ruled in favor of a death row inmate. Fourth, Torres v. Madrid allowed a plaintiff to sue police officers who shot her. Fifth, Torres v. Department of Public Safety ruled that Texas could be sued for damages.

In June 2022, Justice Breyer retired, and was replaced by Justice Ketaji Brown Jackson. This past term, Chief Justice Roberts and Justice Kavanaugh continued to join the Court's three progressives in two prominent 5-4 cases. Allen v. Milligan held that Alabama violated the Voting Rights Act by not creating a second "majority-minority" district. And Cruz v. Arizona permitted a prisoner to challenge his conviction in federal court.

Finally, even when Justice Kavanaugh votes with the Court's conservatives, he still pivots left. Justice Kavanaugh wrote influential concurring opinions in the landmark abortion and Second Amendment cases. These concurrences narrowed the majority opinion by resolving difficult questions that were not yet in front of the Court.

By my count, since Justice Gorsuch's appointment, a Trump appointee has cast the decisive fifth vote in a 5-4 case that swung to the left a dozen times. To date, Justice Barrett has not cast the deciding vote in a 5-4 liberal case. But this tally only considers the Supreme Court's merits docket. The Supreme Court's emergency docket provides an even larger set of data points.

Emergency Docket

On the so-called "shadow" docket, five votes are needed to grant relief. Generally, these applications for emergency relief are decided by unsigned per curiam opinions. On occasion, one or more Justices will dissent from the denial or grant of relief. Since November 2020, Justices Thomas, Alito, and Gorsuch have consistently ruled together on emergency applications. Had Justices Kavanaugh and Barrett joined the conservative troika in each case, (3+2=5) full relief would have been granted.  

In January 2021, the Harvest Rock Church and South Bay United Pentecostal Church challenged California's restrictions on in-person gatherings and singing during worship. The Court, by a 6-3 vote, ruled that the prohibition on indoor worship violated the Free Exercise Clause of the First Amendment. Justices Thomas, Alito, and Gorsuch went further, and declared unconstitutional the singing ban. Justices Barrett and Kavanaugh, however, left the singing ban in place. (This concurrence was Justice Barrett's first writing on the bench.) This 3-2 split on the emergency docket would repeat itself again and again.

In four cases, Justices Kavanaugh and Barrett declined to cast the deciding votes that would have blocked the enforcement of vaccine mandates: Dunn v. Austin, We The Patriots USA v. Hochul, Does 1-3 v. Mills, and Dr. A. v. Hochul. Eventually, Justices Kavanaugh and Barrett also likely declined to grant certiorari in Dr. A v. Hochul. (I say likely here, and elsewhere, because the Justices did not expressly state their positions, but we can reasonably infer how they voted.) Justices Thomas, Alito, and Gorsch would have heard the case. Meanwhile, in Austin v. U.S. Navy Seals 1-26, Justice Kavanaugh and likely Justice Barrett allowed the Navy to deny religious exemptions for the vaccine mandate. 

This 3-2 split would fracture other cases on the emergency docket. The plaintiffs in Coalition for TJ v. Fairfax County School Board asked the Supreme Court to block an affirmative action policy at an elite public high school. Justices Thomas, Alito, and Gorsuch would have granted the application. Justices Kavanaugh and Barrett were silent. In Moore v. Harper, the republican North Carolina legislature asked the Supreme Court to block the state supreme court's finding of a partisan gerrymander. Justices Thomas, Alito, and Gorsuch would have granted the stay. Justice Kavanaugh and likely Justice Barrett declined to grant relief. (In June 2023, Justices Kavanaugh and Barrett would cast the fifth and sixth vote against the North Carolina legislature on the merits docket). In Alabama Association of Realtors v. HHS, the Court declined to block the federal eviction moratorium. Justices Thomas, Alito, Gorsuch, and Barrett would have granted the application. Justice Kavanaugh concurred to explain why he would leave the policy in place, at least temporarily. (After the Biden administration called Kavanaugh's bluff, and continued the policy, the Court halted the moratorium by a 6-3 vote.) In NetChoice v. Paxton, Justices Kavanaugh and Barrett voted to block the enforcement of a Texas law that restricted social media sites. Justices Thomas, Alito, and Gorsuch would have allowed the regulations to go into effect.

Since Justice Barrett's confirmation, I count thirteen cases in which she and Justice Kavanaugh could have joined Justices Thomas, Alito, and Gorsuch on the emergency docket. But the duo chose not to. By contrast, Justices Barrett and Kavanaugh likely joined the Court's progressives in Lombardo v. St. Louis. That unsigned opinion gave another appeal to the family of a prisoner who died in police custody. Justices Thomas, Alito, and Gorsuch would have allowed the case to end. Ultimately, the lower court ruled against Lombardo's family again, and the Supreme Court denied certiorari over Justices Sotomayor and Jackson's dissent. 

Prior to Justice Barrett's confirmation in October 2020, Justice Kavanuagh was often the odd man out on the emergency docket. I count at least five cases from before the presidential election, which challenged COVID-related voting procedures: Berger v. North Carolina State Board of Elections, Wise v. Circosta, Moore v. Circosta, Andino v. Middleton, and Republican National Committee v. Common Cause Rhode Island. In each case, Justices Thomas, Alito, and Gorsuch would have granted full relief. Justice Kavanaugh did not.

Cert Denials

On the Supreme Court, four votes are required to grant certiorari. In rare cases, one or more Justices will dissent from the denial of certiorari. When there are three such dissents, we can reasonably infer that one more Justice was unwilling to give a "courtesy" fourth vote. Like with the emergency docket, there have been a string of high-profile cases where Justices Thomas, Alito, and Gorsuch dissented from the denial of certiorari. One more vote from a Trump appointee would have granted the petition. By my count, Justices Kavanaugh or Barrett could have been the fourth vote for certiorari in five important cases, but they chose not to.

In 2018, the Supreme Court denied appeals from Kansas and Louisiana, which excluded Planned Parenthood from Medicaid funding. Justice Kavanaugh, who could have provided the pivotal fourth vote, was silent in these cases. Arlene's Flowers v. Washington involved a florist who declined to make floral arrangements for a same-sex wedding. After nearly seven years of litigation, the Supreme Court denied review. Justices Thomas, Alito, and Gorsuch would have granted the petition. Justices Kavanaugh and Barrett were silent. Boardman v. Inslee involved a challenge to a Washington law that granted employee information to unions. The Court denied review, but Justices Thomas, Alito and Gorsuch would have granted certiorari. Justices Kavanaugh and Barrett allowed the case to conclude. Shoop v. Cunningham presented a challenge to a two-decade old murder conviction. Justices Thomas, Alito, and Gorsuch would have granted review, and summarily reversed the lower court judgment that ruled for the prisoner. Justices Kavanaugh and Barrett said nothing. 

In Dignity Health v. Minton, California required a Catholic hospital to perform a hysterectomy on a transgender patient. The Court denied review, over the dissents of Justices Thomas, Alito, and Gorsuch. Alas, without the votes of Justices Kavanaugh or Barret, the Catholic hospital would be forced to perform the procedure. In a related case, Roman Catholic Diocese of Albany v. Emami, New York mandated that religious employers must fund abortions through their employee health plans. Justices Thomas, Alito, and Gorsuch would have granted certiorari immediately. But Justices Kavanaugh and Barrett kicked the can down the road, and let the New York courts consider the case in light of a recent Free Exercise Clause decision, Fulton v. City of Philadelphia. 

The following year, the New York appellate division ruled that Fulton did not change the relevant standard, so the Diocese lost again. And why did Fulton not change the relevant standard? Because in Fulton, Justices Barrett and Kavanaugh declined to overrule Employment Division v. Smith, a decision that required courts to deferentially review laws that burden religion. Even when Justices Barrett and Kavanaugh joined a conservative majority opinion, they tempered its reach. 

Meanwhile, Justices Thomas, Alito, and Gorsuch would have overruled Smith in Fulton. The relationship between Fulton and Catholic Diocese of Albany illustrates with clarity the gap between Justices Kavanaugh and Barrett on the one hand, and Justices Thomas, Alito, and Gorsuch on the other.

***

Critics of the Court should be at least somewhat grateful. Had President Trump nominated three Justices in the mold of Justices Alito and Thomas, none of the nearly three-dozen cases I mentioned above would have gone to the left, none of the moderating concurrences would have been written, and many of the emergency applications would have been granted. I'm not saying that the progressive glass is half-full--but they're lucky it's not empty. On the other hand, conservatives should be thrilled, but their cup does not exactly runneth over. 

Request for Paper Proposals
Snapshot:
Voices for Liberty, an initiative of the Liberty & Law Center at the Antonin Scalia Law School, seeks to examine the ways in which free speech propels civil and social progress. Authors are invited to submit proposals for original articles that will ultimately appear in academic journals and explore the role free speech plays in advancing civil rights movements, especially for marginalized or underrepresented groups.
PRIORITY DEADLINE of August 15th 2023, 5:00 ET for full consideration, with review on a rolling basis through September 8th.
All proposals should include a summary of issues to be addressed, the proposed methodology, and feasibility of having a completed draft by June 2024, with final submission by September 2024. Selection includes participation in a series of support and writing events. Full application details follow.
Full Details:
What role has freedom of speech played when it comes to the legal and social progress of groups that have been historically disadvantaged and/or socially marginalized? In the current public debate, some view freedom of speech as detrimental to minority groups, while others champion it as a necessary condition for protecting underrepresented voices. The former view is more often espoused in both the academy and the popular press. As a result, freedom of speech is frequently seen as a countervailing force in tension with civil rights. But is it?
Voices for Liberty aims to:
• Highlight and focus attention on important contributions to the welfare of minority and underrepresented groups made by the ability to speak throughout history;
• Analyze the effects of restricting speech;
• Assess the argument that limiting speech will help minority groups achieve greater equality; and
• Share evidence of the impact of robust speech protections on current and future civil rights movements.
Original scholarship of specific interest includes, but is not limited to:
• A historical examination of the relationship between social progress on minority rights and concerns and freedom of speech for groups and movements such as (but not limited to) abolition, women's suffrage, women's liberation, religious minorities, the Civil Rights Movement and LGBTQ rights.
• The role free speech plays in advancing the causes of contemporary social movements such as Black Lives Matter, transgender rights, the MeToo movement, etc.
• The role of free speech in making possible new and future civil rights movements.
• The impacts of speech regulation, including hate speech provisions, on civil rights movements and underrepresented groups.
• The impacts of social media and technology on the relationship between civil rights of minority and underrepresented groups and free speech. Read More

I tend to be a bit skeptical of the value of open letters, and I rarely sign them, partly for that reason, and partly because I rarely agree wholeheartedly with the entire letter.

That said, I signed the one below (as did co-Conspirator Randy Barnett, among other luminaries), and you can add your signature here if you are so inclined. (Note, this letter is a project of David Bernstein of the Jewish Institute for Liberal Values. This is not me, though we cause at least as much confusion as the two Ilyas. Making matters worse, we both published books last year, and our mutual editor at Post Hill press is … another David Bernstein.)

An Open Letter from Jewish Scholars about Today's Intellectual Environment
*THIS LETTER IS FOR JEWISH SCHOLARS AND FRIENDS IN THE ACADEMIC WORLD

Dear Friends,

We, the undersigned Jewish scholars and academics, are concerned about the current ideological environment in the US and elsewhere and the increasingly censorious culture in many institutions of higher learning. Although we are acutely aware of the illiberalism and threats to academic freedom emanating from the political right, and in no way downplay these dangers, in this letter we focus our attention on, and express our deep concern about, a dangerously intolerant ideology on the political left that has taken hold in academia.

We firmly believe that the purpose of education is to teach students how to think, not what to think. A liberal education, by definition, should present students with different approaches to important questions so they can appreciate the complexity of issues and at the same time attempt to formulate their own opinions. Too often, however, universities and campus communities have veered away from their core missions and have propagated—among both faculty and students—a set of moral and intellectual attitudes that restrict critical inquiry, viewpoint diversity, and intellectual openness. We regard such inquiry and openness as bedrocks of any liberal, democratic society. As taught in the Ethics of Our Fathers, "Who is wise? He who learns from every person, as it is said: 'From all who taught me have I gained understanding.'"

Moreover, the suppression of unpopular opinions impinges on society's ability to address problems. What happens in academia rarely stays in academia. Shutting down scholarly inquiry ultimately limits the range of popular discussion on social issues, including sensitive topics such as race and gender identity, and makes it difficult, if not impossible, for intellectual and political leaders to formulate sound policy, promote advances in science, and resolve social tensions. Good scholarship, which cannot thrive if it is blinkered by ideological demands, bureaucratic restrictions, and groupthink, can and must inform the public conversation.

The ascendency of an ideology that reduces people to "oppressed" and "oppressors" and categorizes individuals into monolithic group identities poses a particular threat to the Jewish people. In this stark, neo-Manichean worldview, Jews are frequently grouped with the privileged, and Israel is dogmatically singled out as an oppressor-state–a shallow dichotomy that foments new variants of antisemitism and reinforces old ones.

As scholars, we stand for the principles of free inquiry in our educational institutions. As Jewish scholars, we remind the Jewish community and others of the dangers of any ideology that diminishes the free exchange of ideas. Instead, we encourage leaders and educators to stand up for our deeply held liberal principles and our own tradition of "argument for the sake of heaven."

In Fourth Amendment law, the authority to grant consent to search allows you withdraw that consent, too, at least before the search occurs.  But consider this wrinkle.  When the government searches a computer, the forensic process  has two distinct steps.  First, the government makes a perfect copy of the data (known as an "image") and saves in on a government storage device.  Second, the government searches the image rather than the original.

So how does withdrawal of consent work now? There are two key questions.

First, if a computer owner grants consent to search, an image is made, and then consent is withdrawn, does the withdrawal of consent extend to the image?  That is, does the owner's control include control of the copy on the government's machine?  Or does the government necessarily control the image?

Second, if an owner retains rights in the image, is there a different result if the owner signed a consent form stating that, once the government made the copy, the owner relinquished rights in the copy?  That is, can rights retained in the image that might generally exist with a general consent be relinquished if there is specific and explicit disavowal of rights as to the image?

There have been a few district court rulings that touched very briefly on the first of these questions. Long-time readers may remember I blogged about two of those cases; you can read my 2009 post from our volokh.com days here and my 2015 post from the Washington Post era here.

All of this is a wind-up to say that, last week, the Maryland Supreme Court ruled on both questions in considerable detail in an important new case, State v. McDonnell.  McDonnell is the first case to address both of the issues, and it did so in detail.  Given the detail of McDonnell's reasoning, and how sparse the caselaw has been,  I think McDonnell is worth a close look.

The basic facts are simple. McDonnell signed and initialed a consent form that said the following:

I have been informed of my right to refuse to consent to such a search. I hereby authorize the undersigned Special Agent, another Special Agent or other person designated by USACIDC, to conduct at any time a complete search of: . . . all digital media including cell[ ]phones, thum[b ]drive[s], hard disk drives, laptops & any other media relevant to this investigation.

I understand that any contraband or evidence found on these devices may be used against me in a court of law.

I relinquish any constitutional right to privacy in these electronic devices and any information stored on them. I authorize USACIDC to make and keep a copy of any information stored on these devices.

I understand that any copy made by USACIDC will become the property of USACIDC and that I will have no privacy or possessory interest in the copy.

I give this written permission voluntarily. I have not been threatened, placed under duress, or promised anything in exchange for my consent. I have read this form or it has been read to me and I understand it. . . .

I understand that I may withdraw my consent at any time.

Based on McDonnell's consent, investigators seized McDonnell's devices and imaged his computer a few days later.   And a few days after that, McDonnell's lawyers sent a message to the government withdrawing consent.  Relying on the language in the consent form, agents then searched the image anyway.  McDonnell later moved to suppress the evidence found on the image, arguing that it was the fruit of an unlawful search and seizure because he had previously withdrawn his consent.

In the new case, the Maryland Supreme Court unanimously agreed with McDonnell.  First, McDonnell's withdrawal of consent blocked the government's ability to rely on consent to search the image as well as the original.  And second, the potentially contrary language in the consent form did not alter that holding.

Here's the court's reasoning as to the first holding, that a person generally retains rights to withdraw consent as to images, at least until the images are searched:

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