Orin Kerr Profile picture
Sep 26, 2020 11 tweets 2 min read Read on X
A few random and unhelpful thoughts on the nomination of Amy Coney Barrett, a thread.
FWIW, I don't know Judge Barrett well, although we've met. She was a fellow at @gwlaw in 2001-02, during my first year on the faculty there. I spent at least some time with her back then, and I recall her as very impressive. I recall her as super smart and very personable.
Of course, I realize that a lot of readers couldn't care less whether she is smart or personable. On Twitter, some may be annoyed by even mentioning those things. I gather many want to know how she will vote: the right way (as they see it) or the wrong way (as they they see it).
On that front, I have no special expertise. However, I haven't seen anyone suggest she would be a swing vote on any foreseeable issue. And that's my working assumption, that she'll be a reliable conservative vote, moving the Court's 5th vote in many cases to Kavanaugh or Gorsuch.
I assume the result is the most conservative court we will have seen in almost a century, although of course it's hard to compare eras. Either way, very conservative.
It may be moderated somewhat by three factors. First, the Chief may take big cases for himself and write more narrowly than the other 5 conservatives want. Second, I think Gorsuch will sometimes vote on the liberal side in big cases.
And third, I suspect (although I don't know) that Kavanaugh is influenced more by an institutional sense than others, not quite at the Chief level but in that direction, which may matter in some cases. But still, that's a very conservative court on which that matters. /end
There's a twitter rule that when you formally end a thread with "/end", you must immediately come up with more thoughts. So here are some more random and unhelpful thoughts:
With recent nominations, there has been a lot of criticism that all of the Justices went to a small number of academic institutions. If you cared about that, then note that Barrett didn't go to Ivies, etc. She could have, no doubt, but didn't.
Also, from a resume perspective, this is a very traditional pick. Barrett comes as a Court of Appeals judge (like 8 of 9 Justices on recent court); former law professor (like 3 of 9 Justices on recent court); and former SCOTUS clerk (like 5 of 9 Justices on recent court).
Also, for anyone who cares about legal scholarship, I would guess that having Barrett on the Court will fuel more public law scholarship on originalism (whether you like it or not, it's harder to ignore when three Justices are explicit adopters of it).

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More from @OrinKerr

Aug 14
I now have Gorsuch's book. On Aaron Swartz, he gives a remarkably one-sided view of the facts. Swartz "connected his computer to MIT's network," the book says, and "he began downloading articles from JSTOR." /1
The book then quotes his attorney as saying that what Swartz downloaded "wasn't worth anything! It was a bunch, of like, the 1942 edition of the Journal of Botany!" /2
The book then talks about how prosecutors charged him based on that, an obvious overreach for such minor conduct. Downloading a worthless botany article!

By comparison, here's my summary of the facts alleged in the indictment.
volokh.com/2013/01/14/aar…

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Read 5 tweets
Aug 13
BREAKING: 5th Circuit, splitting with 4th Circuit, rules that geofencing is a search and warrants to search for geofence records are inherently unconstitutional. It may be that *all* Internet warrants are unconstitutional by this reasoning. Lordy.
#N ca5.uscourts.gov/opinions/pub/2…
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I think that's an incredible result. As I read the opinion, it's too invasive to allow geofencing without a warrant, but it's too invasive to get a warrant for it, so no geofencing is ever allowed. This is bananas.
And remember the U.S. Supreme Court doesn't hear 4th Amendment cases anymore. So if the 5th Circuit doesn't review this en banc, we may have broad surveillance allowed in most of the country and no surveillance allowed in the 5th Circuit.
Read 5 tweets
Jul 27
I'm not one to defend Trump, but I disagree w/the many claiming that Trump said there would be no more elections if he wins. I hear him more as just saying he'll do such a fantastic job he'll save the country so the stakes of future elections will be a lot lower.
Responses to this tweet are sad. As my followers know, I despise Trump, and I criticize him almost every day and have since 2015. He is an authoritarian, and he flirts with fascism; I urge you to vote against him and save America.

But that doesn't change this clip! Trump says horrible stuff every day; we don't need to pretend that every word out of his mouth is equally horrible. Don't lose the plotline, folks.
Incidentally, if you are horrified by my reaction — at the concept of actually watching the video to see what the video contains, and not just running with your tribe's chosen message — you are invited to unfollow me, or, if you don't follow me, mute or block me. I won't mind.
Read 5 tweets
Jul 21
This viral video, and the comments to it, brings up a common misunderstanding. No, the police don't have to tell you why they're detaining or arresting you. And no, they don't have to read you Miranda rights if they arrest you. They just need probable cause. That's it.

🧵
Ok, the receipts. First, whether the police have to tell you why you're being arrested came up in a 2005 Supreme Court decision, Devenpeck v. Alford. Here's Justice Scalia writing for the 8-0 court, concluding, nope, no such requirement.
tile.loc.gov/storage-servic…
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Second, Miranda. There is no abstract right to Miranda warnings. Instead, SCOTUS has said that it's a violation of Miranda if an officer interrogates someone in custody, gets a statement from them, and then uses it in court against them.
Read 7 tweets
May 18
This is a really wild result—a finding that, in a simulated case, federal judges don't follow the law but that law students do—but I wonder if there is an explanation the authors don't identify. 🧵
journals.sagepub.com/doi/epub/10.11…
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In the hypothetical case, you are a judge on the International Criminal Court for the Former Yugoslavia (ICTY), and you are deciding a defendant’s appeal of his conviction for war crimes by the ICTY’s trial chamber. Image
As a judge, you have to decide if there was enough evidence that the defendant aided and abetted the war crime. You had some cases saying what the standard was (either high or low), and facts making the defendant more or less sympathetic.
Read 9 tweets
May 14
It's relatively easy for law schools to create a culture that values teaching, as professors interact w/students every day & get teaching evaluations. But a common question for law professors, & especially associate deans: How can you create a culture that values scholarship? 🧵
No easy answers, but I suspect the biggest thing is by example; showing that it's valued. A few (among many) possible examples:

(1) By the Dean and Associate Dean attending the faculty workshop. Leadership being involved in the scholarly process sends a big signal of values.
(2) Having the school's website and social media accounts flag new scholarship by the faculty. Again, it's a signal of values; we think this is important.
Read 8 tweets

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