The Volokh Conspiracy

As a general rule, Supreme Court Justices speak through their opinions. From time to time, Justices will be "interviewed"by friendly interlocutors during public events. The screened questions are usually softballs, and even then, the Justices tend to avoid saying anything newsworthy. In recent years, perhaps the biggest outlier was Justice Ginsburg. In 2016, she gave an interview with Adam Liptak of the New York Times. RBG made critical comments about then-candidate Trump. Ultimately Ginsburg sort-of apologized, but still faced calls to recuse in certain Trump-related cases. She would not recuse. RBG should have been grateful the Supreme Court Ethics, Recusal, and Transparency Act (SCRET) was not in effect during this final years on the Court.

Speaking of the SCRET Act, on Friday, the Wall Street Journal published a "weekend interview" with Justice Alito. The Justice spoke with the Journal in early July. In April, Alito also spoke with the Journal for "four hours in two wide-ranging sessions" in his chambers. (I wrote about that interview here.) Perhaps the most significant aspect of the interview is that it happened at all. On the current Court, Justice Alito is the member most likely to talk to the press. And he had a lot to say--including about the SCRET Act, and his colleagues. Here are thirteen highlights.

First, Justice Alito repeated his refrain from April that the "bar" is not defending the Court against attack--indeed legal elites are leading the calls that the Court is "illegitimate."

"I marvel at all the nonsense that has been written about me in the last year," Justice Samuel Alito says during an early July interview at the Journal's New York offices. In the face of a political onslaught, he observes, "the traditional idea about how judges and justices should behave is they should be mute" and leave it to others, especially "the organized bar," to defend them. "But that's just not happening. And so at a certain point I've said to myself, nobody else is going to do this, so I have to defend myself."

My post in April was titled, "Justice Alito Defends The Supreme Court In Ways Chief Justice Roberts Cannot." I bet the Chief Justice's head exploded when he read this interview. But Justice Alito is right. The Chief only speaks out when it serves his interests Again, whenever the Chief Justice speaks of the Court's "legitimacy," he is actually speaking about himself--the man cannot separate himself from the Court. No Justice has done more to undermine the Court as a institution that follows law in a dispassionate fashion that Roberts himself. But so long as we avoid 5-4 conservative-liberal splits, he is happy, no matter what the opinion says. (More on Roberts later.)

Second, Justice Alito observed that "'There are very serious differences'" in how the six conservative justices approach cases." Well that's for darn sure.

Justice Thomas does not place much weight on precedent:

Justice Alito says. The simplest difference involves respect for precedent: Justice Thomas "gives less weight to stare decisis than a lot of other justices." It is, "in its way, a virtue of his jurisprudence," Justice Alito says. "He sticks to his guns." . . . The disadvantage of this approach, Justice Alito says, "is that you drop out of the conversation, and . . . lose your ability to help to shape what comes next in the application of that rule."

Justice Alito is right about this much: it is hard for Justice Thomas to play the game if he insists on eschewing precedent. Then again, is the game worth playing if you have to follow made-up law. Stare decisis does not mean inexorably stare at decisions from the Warren Court.

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As regular readers know, I wrote an article, The Fourth Amendment Limits of Internet Content Preservation, on what I see as significant Fourth Amendment limits on the government's power to order Internet providers to run off copies of people's online accounts and save them for possible later government access.

Here's how the practice works.  When agents think a person might have some connection to a crime, federal agents order Internet providers to run off a government copy of the entire account and to hold it for the government away from the account holder. The point is to make sure suspects can't delete their files and thwart a possible investigation down the road.  A federal statute, 18 U.S.C. § 2703(f), requires Internet providers to comply. In recent years, the statute has been relied on with extraordinary frequency; in 2019, about 1 in every 820 adults had their account copied for possible government use.  This all goes on in total secrecy. Under order of federal law, Internet providers create and hold government copies, for the government, and in most cases no one tells the user.  The government still needs a warrant to ultimately access the copy, but preservation allows the government to gain access to a stored copy that they would not have otherwise—a copy that may have records that the user might have otherwise deleted.

My article, which I have turned into a model motion to suppress for defense attorneys to file, argues that there are Fourth Amendment limits on this process.  A private actor who does the government's bidding under penalty of law is a state actor, and running off a copy and holding it for the government, so the user cannot control it, is a Fourth Amendment seizure.  I argue that this seizure has to be justified as reasonable under the Fourth Amendment, which will usually require probable cause or at least reasonable suspicion.  But a common practice, in which every possible suspect's account can get copied and held for the government, "just in case," without particularized suspicion, is generally unconstitutional.  (There are then interesting questions of what the remedy is. A plausible remedy is that the government has to use the account copy that existed when they ultimately served the warrant to get the copy, not when they made the preservation request. But that's beyond today's post.)

A few motions have been filed based on my model motion, and the first opinion on the issue to just recently appeared on Westlaw.  The motion to suppress in this case wasn't the exact model motion I drafted, but it had the basic gist of it in a condensed form.

Here's the opinion, from Magistrate Judge Daniel J. Albregts of the U.S District Court for the District of Nevada: United States v. King, 2023 WL 4844888 (D. Nev. July 17, 2023).

Unfortunately, the Report and Recommendation contends that the motion should be denied on the ground that preservation is not a government seizure at all.  Under that reasoning, any federal, state, or local government employee could cause every account of every person in the United States to be copied and held for the government with no suspicion at all, and that simply wouldn't trigger the Fourth Amendment.

The rest of this post will explain Magistrate Judge Albregts' reasoning and why I am unpersuaded.  I'll do the arguments in reverse order, as I think it makes a little more sense that way. I'll start with whether there was state action, and then turn to whether a seizure occurred.

(1) The State Action Question

First, Judge Albregts argues that a provider who complies with a §  2703(f) request to preserve files for the government's potential use, as required by federal law, is not a state actor so the Fourth Amendment is never triggered in the first place:

The Court recommends denying King's motion to suppress the internet accounts. It finds that King did not meet his burden of showing that Omegle or TextNow should be deemed agents of the government by complying with the government's preservation request under 18 U.S.C. § 2703(f). Although the Government directed Omegle and TextNow to preserve the accounts, its involvement was limited only to requesting the preservation under 18 U.S.C. § 2703(f). And although Omegle and TextNow were responding to a request from the Government, they were also complying with their statutory obligations.

King has also failed to carry his burden of demonstrating that the Court should deem Omegle and TextNow agents of the government because the cases on which he relies are distinguishable and nonbinding on this Court. In Commonwealth v. Gumkowski, the Massachusetts Supreme Court found that Sprint acted as a government agent when it turned a defendant's cell site location information over to the government without a warrant. Commonwealth v. Gumkowski, 487 Mass. 314, 320-21 (Mass. 2021). However, here, the government did not ask Omegle or TextNow to turn over information, but instead requested that the electronic service providers preserve the information already in their possession under the Stored Communications Act pending the government obtaining a warrant. In United States v. Hardin, the Sixth Circuit Court of Appeals found that an apartment manager acted as an agent of the government when he entered a defendant's apartment at the government's request under the guise of repairing a leak to determine if the defendant was in the apartment. See United States v. Hardin, 539 F.3d 404, 417-20 (6th Cir. 2008). But Omegle and TextNow's actions of preserving information already in their possession as required under statute is meaningfully distinguishable from the private apartment manager entering a person's home to determine specific information at the government's behest.

With all respect to Magistrate Judge Albregts, I don't think that can be right.  Magistrate Judge Albregts is missing something super important:  Federal law mandates that providers comply.  It's a statutory "requirement," with the directive being what the provider "shall" do.  Here's the text of 18 U.S.C. §  2703(f), with emphasis added:

(f) Requirement To Preserve Evidence.—

(1) In general.— A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.

(2) Period of retention.— Records referred to in paragraph (1) shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the governmental entity.

Granted, the statute calls the government's demand a "request." But when the law mandates that you comply with a "request," that's not really a request.  It's an order. And when it's making you do the government's bidding, it's an order that makes you a state actor when you comply with it.

To see this, consider a hypothetical.  Imagine the statute were about making arrests rather than making copies of Internet files.  Let's slightly rewrite the statute accordingly into the following:

(f) Requirement to Make Arrests

(1) In general. —Any person, upon the request of a governmental entity, shall take all necessary steps to arrest a suspect who the government entity requests to be arrested.

(2) Period of detention.  A suspected arrested shall be detained for 48 hours, or until the government takes custody of the suspect arrested.

Imagine a police officer wants Bob arrested.  He comes up to Albert and says, "I request that you arrest Bob." The officer also shows Albert the legal requirement of federal law that he "shall" make an arrest when a police officer "requested" it.  Being made aware of the legal obligation to arrest, Albert arrests Bob on the police officer's behalf.

In that scenario, I think we would see pretty clearly that Albert is a state actor.   It would be pretty weak to say there was no state action because the government merely made a "request," as the federal statute said that a requested person "shall" do what the request was.  It's an order, not a request.  And it would be pretty weak to say that Albert was not a state actor because he merely "complied with his statutory obligations." The statutory obligation was to become a state actor; the law requires him to become the government's agent.

That's exactly the case with § 2703(f).  Internet providers don't fulfill preservation requests because they feel like it.  It's not their idea.  They get nothing from it.  They fulfill the requests because federal law makes them do it, and the providers don't want to violate federal law that requires them to comply.   When governments make preservation "requests" to providers, those providers are acting on the government's behalf, doing the government's bidding because they have to.  Seems pretty clear to me that the providers are state actors for Fourth Amendment purposes.

(2) The Seizure Question

Magistrate Judge Albregts also recommends concluding that, even if the providers were state actors, their running off a copy of the account that the defendant could not control does not "seize" anything.   As I read this, the government can order anyone's account to be copied without limit, or even order government servers to be installed that automatically make government copies of everyone's data. As long as the government doesn't look at its copy yet, the act of just having  the government copy made doesn't trigger the Fourth Amendment at all.

Here'e the argument: Read More

Justice Sotomayor, in the Students for Fair Admissions affirmative action cases:

The Court also holds that Harvard's and UNC's race conscious programs are unconstitutional because they rely on racial categories that are "imprecise," "opaque," and "arbitrary."

We're off to a bad start. The issue is not simply that Harvard and UNC use these categories in a "race conscious" way, it's that Harvard and UNC classified their students by these categories, and then gave them an admissions bonus if they checked the box showing they were members of certain classifications.

To start, the racial categories that the Court finds troubling resemble those used across the Federal Government for data collection, compliance reporting, and program administration purposes, including, for example, by the U. S. Census Bureau. See, e.g., 62 Fed. Reg. 58786–58790 (1997). Surely, not all "'federal grant-in-aid benefits, drafting of legislation, urban and regional planning, business planning, and academic and social studies'" that flow from census data collection, Department of Commerce v. New York, 588 U. S. ___, ___ (2019) (slip op., at 2), are constitutionally suspect.

A lot of the things Sotomayor mentions are indeed problematic from a public policy point of view, because the classifications are so imprecise and arbitrary. Someone should write a book about it! But from a constitutional perspective, taking data based on these classifications into account for whatever reason is a different matter than classifying individuals and rewarding or penalizing them because they checked a particular box on a form.

The majority presumes that it knows better and appoints itself as an expert on data collection methods, calling for a higher level of granularity to fix a supposed problem of overinclusiveness and underinclusiveness.

As I discuss in some detail in my book, it was not "experts" who came up with these classifications, but, as Justice Gorsuch notes, "bureaucrats." Experts at the Census Bureau were livid when the Bureau decided to adopt these classifications for the 1980 Census. They found the "Hispanic" classification to be especially nonsensical, and product of politics rather than sound data policy.

But if we do want to defer to the pseudo-experts in the government who came up with them, we should recall that when they were initially published in the Federal Register in 1978, they came with these caveats: The "classifications should not be interpreted as being scientific or anthropological in nature" and should not be "viewed as determinants of eligibility for participation in any Federal program," assumedly alluding to affirmative action. As for various public and private planning uses of the data, the argument is circular; academics and planners use the data because the Census Bureau collects the data, which makes the relevant data cheap and readily available. If the Census Bureau used different classifications, researchers would generally use those instead.
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Concerns that elite universities have rigged their admissions policies to disfavor Asian Americans are nothing new. In 1987, Newsweek reported accusations along those lines. The article noted that the acceptance rate for Asian American applicants at elite colleges had dropped dramatically, that Harvard, Princeton, and Stanford had all studied why the Asian American acceptance rate was lower than for white students with similar academic credentials. (The answers ranged from potential unconscious biases to Asian Americans being less likely to benefit from legacy and athletic preferences.) UC Berkeley, already 22% Asian American in 1978, "revised its procedures in 1983 to give greater weight to essays and extracurricular activities, areas in which Asian-American students traditionally fare less well."

The article concludes with these thoughts:

Schools opened the way to previously excluded ethnic groups in the 1960s. Now Asian-Americans have turned affirmative action on its head by outperforming not only other minorities but the majority as well. As a result, educators are asking themselves whether it is legitimate to try to preserve the traditional, largely WASP culture of most prestigious schools. "Stanford could become 40 percent Jewish, 40 percent Asian-American and 10 percent requisite black," says emeritus Harvard sociologist David Riesman. "You'd have a pure meritocracy, and that would create problems for diversity and alumni."

I remember reading this at the time and being appalled that people would think there is something inherently wrong with a school being 40 percent Jewish and 40 percent Asian American. I was a bit surprised that I was actually able to find the article!

I recall reading another article around the same time, which I haven't been able to find, that helps explain why strong suspicions of discrimination against Asian Americans at Berkeley and UCLA didn't lead to lawsuits. The article explained that once in a while, a parent of an Asian American kid with a 1600, 4.0, and excellent extra-curriculars would threaten to sue. If the admissions office took the threat seriously, they would quietly admit the student.

Prof. Mark Liberman (Language Log) has the story. [UPDATE: Link fixed; sorry about the error!]

For generations, progressives litigants saw the Supreme Court as their salvation. Any and all unfavorable lower court decisions would be promptly appealed to the Supreme Court for correction. Even as the Court began to lean more to the right, progressive litigants felt emboldened in particular areas--especially with regard to Justice Kennedy and gay rights. But after Justice Kennedy's retirements, progressives began to think long and hard before filing  cert petitions. The thinking went that it was better to leave in place an unfavorable circuit precedent than to risk setting an unfavorable nationwide precedent. This orthodoxy was so entrenched that the University of Virginia SCOTUS clinic was criticized for successfully petitioning for certiorari in Jones v. Hendrix, a prisoner case. Ultimately, the Court resolved a circuit split against the prisoner, and in the process, wiped our local circuit precedents that favored prisoners.

I think the memo has gone out that when progressive cause litigation loses in the lower court, let it be. But what about when progressives are bottom side? That is, the lower court ruled for the progressive side, and the non-progressive/conservative side is filing the certiorari petition? Of course, the progressive side can vigorously argue, as they should, in opposition to certiorari. There is always a good reason to deny cert. But what if the Court grants cert anyway? In recent years, we have seen a new strategy of SCOTUS keep-away: after certiorari is granted, the respondent takes some action to get the case off the docket.

Perhaps the most egregious example of this strategy was New York State Rifle & Pistol Association v. New York City (2020). No, not New York State Rifle & Pistol Association v.  Bruen (2022), the landmark case that declared unconstitutional New York State's may issue conceal carry regime. The 2020 case involved New York City's unusual law that governed carrying firearms from one's house to a firing range. After certiorari was granted, New York City repealed the law, New York State prevented the city from re-enacting the law, and Mayor de Blasio salted the earth around City Hall to make sure the statute could never grow again. OK, I made up the last part, but you get the gist.  This was a brazen effort to moot the case out, and it worked.  The City was all too happy to litigate the case in the Second Circuit, but was not willing to roll the dice, and set a nationwide precedent. In dissent, Justice Alito, Thomas, and Gorsuch wrote "By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced."

This type of keep-away works when the government is the respondent. (And a similar ploy may be in the works with another pending case from New York, Vitagliano v. County of Westchester). But what about when the respondent is a private party? There is a different version of keep-away: voluntarily dismiss the complaint with prejudice in the district court, and suggest to the Supreme Court that the entire case is moot. A case scheduled for oral argument in October fits this bill.

In March, the Supreme Court granted review in Acheson Hotels, LLC v. Laufer. The question presented is "Whether a self-appointed Americans with Disabilities Act 'tester' has Article III standing to challenge a place of public accommodation's failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation." Stated differently, can a disabled person click onto a website for a hotel, and sue the hotel for ADA violations, even though she never actually plans to visit the hotel? This case implicates an anomaly of Article III, Havens Realty v. Coleman (1982). Havens found that an organization can assert an Article III injury based on a "drain of the organization's resources." For example, an organization that sends a "tester" to determine if there was a violation of the law could claim the money needed to send the tester was an injury in fact. This injury seems to be self-inflicted, as that term is understood today: anyone can generate standing-on-demand by spending money to investigate the alleged illegal activity. When Acheson Hotels was granted, I suggested that Havens Realty may be yet another Burger Court precedent on the chopping block.

Now, the plaintiff in Acheson Hotels has taken actions to moot the case. The facts here are complex, and I will quote from Amy Howe's post on SCOTUSBlog:

In a 10-page filing earlier this week, lawyer Kelsi Brown Corkran of the Georgetown University Law Center asked the justices to dismiss Laufer's case as moot. Corkran cited recent disciplinary proceedings in a federal court in Maryland against Tristan Gillespie, who has filed over 600 lawsuits under the ADA on behalf of Laufer and other "testers."

A report issued on June 30 by three federal judges recommended that Gillespie be suspended from practicing before the Maryland court for six months. It noted that Gillespie had filed as many as 16 "tester" complaints in one day, each seeking $10,000 in attorneys' fees even though it was "highly improbable" that he had actually spent that much time on each lawsuit. The report found that Gillespie had violated the rules governing the conduct of lawyers "not once, or twice, but hundreds of times," and that he had "litigated his cases with his clients as an afterthought" – failing, for example, to keep his clients up to date on settlement agreements or to inform them of his decision to dismiss over 100 cases when facing the prospect of disciplinary action.

In considering factors that might weigh in favor of a lighter sanction for Gillespie, the report acknowledged that Gillespie had not acted on his own, but instead "at the direction of his boss, Thomas B. Bacon," who represented Laufer in the 1st Circuit and in opposing Supreme Court review. (Corkran's filing indicates that Bacon no longer represents Laufer in the Supreme Court.) The panel believed that Gillespie had "joined a pre-existing scheme that raises serious ethical concerns—including repeat clients, a compromised investigator, and a method for extracting unwarranted attorneys' fees from targeted hotels based on a well-worn settlement script."

Gillespie was not involved in the dispute that is currently before the Supreme Court, Corkran told the justices, while Corkran and her team only became involved in the case after the justices granted review. But Laufer nonetheless opted to voluntarily dismiss her case in the district court so that the allegations against Gillespie do not become a distraction "from the merits of her ADA clams and everything she has sought to achieve for persons with disabilities like herself." Because she has dismissed her district court case, Corkran contended, there is no longer a live controversy for the Supreme Court to decide. And because Laufer is responsible for the fact that there is no longer a case for the justices to decide, Corkran continued, the 1st Circuit's decision in her favor should not stand.

Let me put my cynic hat on for a moment. Laufer has filed hundreds of these lawsuits, as have other plaintiffs nationwide. If the Supreme Court rules that Laufer lacks standing, than favorable circuit precedents are wiped out, and this gravy train would be derailed. But if the case is dismissed, at most, the judgment in Laufer's case is vacated, but the underlying First Circuit precedent remains, as do other circuit precedents. The disability rights advocates would gladly sacrifice a single case against a small hotel in order to preserve this nationwide settlement program. Think my language is harsh? Read Acheson's response:

"[P]ostcertiorari maneuvers designed to insulate a decision from review by this Court must be viewed with a critical eye." Knox v. SEIU, 567 U.S. 298, 307 (2012). That is especially true here, where Laufer's litigation program was recently revealed to have been an unethical extortionate scheme, and the unapologetic purpose of Laufer's effort to moot this case is to ensure that she or similar plaintiffs can continue pursuing similar schemes.. . . .

Laufer is abandoning her case to pave the way for Laufer and similar plaintiffs to resume their campaign of extortionate ADA suits against unwitting small businesses without the hindrance of an adverse ruling from this Court. The Court should not reward Laufer's effort to insulate lower-court rulings upholding "tester" standing from Supreme Court review.

Acheson also explains that dismissing the case as moot would set a risky precedent that blesses post-certiorari maneuvering.

But even if the hotel wants to stand on principle and litigate the case, it would be pointless. Why? Because the hotel will know that if it takes the case up to the First Circuit or this Court and is on the verge of victory, the plaintiff will abandon her case to avoid an adverse ruling. And the hotel will have no recourse; this Court's decision in this case will set the precedent that it is perfectly fine for the plaintiff to abandon her case at the last minute to avoid an adverse ruling.

The Court should see through this practice, and keep the case. Of course, there will be howls (like with 303 Creative) that the Court decided a "fake" case that was already moot. But I think that argument cuts the other way. Laufer, and other testers like her, routinely bring "fake" cases to extract settlements: demand $10,000 from a small business to make the case go away. These cases are "fake" precisely because there is no Article III standing. And the only way for the Court to halt this practice is to say that there was no subject matter jurisdiction from the moment the case was filed--and that inquiry would come before any decision about mootness. If the Court approves this stratagem, it risks future litigants simply dismissing district court complaints whenever certiorari is granted.