Justice Gorsuch, joined by Justices Kagan and Sotomayor, sends a message: If the police go onto curtilage, the legality of that is governed by the implied license framework of FL v. Jardines.
The Vermont Supreme Court ruled that the garage was in the curtilage of the home (that is, for 4A purposes, that the area around the garage counted as the home), but that it was okay to go on it because Vermont precedents recognize a right to inspect in semi-private areas.
Justice Gorsuch notes that this Vermont caselaw ultimately predates Jardines, and that it is inconsistent with Jardines: You have to apply the framework of Jardines, not the Vermont caselaw on inspection rights in "semi-private areas."
But the Court doesn't take the case, and Gorsuch includes speculation about why he agrees with that conclusion that is interesting: It may be a stray error, and there's no indication lots of courts are getting this wrong. But courts should realize Jardines controls here.
FWIW, I agree with Gorsuch that the Vt court reasoning seems wrong, at least assuming the curtilage analysis was correct. I also appreciate the warning to state supreme courts that the U.S. Supreme Court is watching
That message would have been stronger with a summary reversal, but I suspect even a warning like this has some effect.
/end
A few more thoughts come to mind:
I'm not sure why Justice Gorsuch frames this as a knock-and-talk case, or why he says that knock and talk is "increasingly popular" and on "the rise."
This is just a minor semantic point, but I have understood the "knock and talk" to be a subset of visits to the home; an officer might knock and try to talk, or he might look around the property. Gorsuch suggests they're all knock and talks, but I would think the K&T is narrower.
That is, the "knock and talk" approved in KY v. King and Jardines is actually going to the door to knock, in order to talk. Just going to on the curtilage to poke around and see what you can find isn't a knock and talk.
Second, I'm not aware of any basis to say that K&Ts, or entries on to curtilage generally, are increasingly popular. They've always been common. If anything, the law is regulating them more strictly than it used to, see Jardines and Collins.
So I would guess these methods are happening less now than they used to, not more, as the Supreme Court is tightening the legal regulation and more closely watching what the police do than it used to. My guess, anyway.
/end, take 2
Here's one explanation: Back on the 10th Circuit, then-Judge Gorsuch described knock-and-talks as "an increasingly attractive investigative tool " for which "published cases approving knock and talks have grown legion." Carloss, 818 F.3d at 1003.
The opening of Gorsuch's statement today seems to echo much of what he wrote in 2016 in his Carloss opinion.
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This is the absolute least important aspect of the Barrett nomination (don't say I didn't warn you), but for gunner law students, a 6-3 Court means an increasing disparity between the competitiveness of SCOTUS clerk hiring on the left and the right.
Thread below.
It's not exactly news that Supreme Court law clerk hiring fits certain ideological patterns. The courtesy practice is for applicants to apply to every Justice, but as a practical matter, Justices tend to hire law clerks that roughly share their views. greenbag.org/v13n1/v13n1_ne…
There are exceptions to this, of course. Scalia famously hired a "counter-clerk," at least many Terms. And some Justices hire from a wider range of views than others. But that's a general trend. repository.law.umich.edu/cgi/viewconten…
How Trump uses the power fo the Presidency to make money for his favorite person in the world -- himself. nytimes.com/interactive/20…
According to the article, Trump would keep an eye out on who was funding his businesses, give them an audience, and show special attention to any government problems they had. (And if you had government problems, you knew what to do.)
In effect, he was treating his Presidential powers like they were his personal assets: You help him at Mar-A-Lago, he helps you though his executive branch authority. (A major scandal in any other administration; in this one, Saturday from 2-2:15pm.)
Here's a thread with a few random thoughts about "court packing," that is, changing the size of the Supreme Court.
Bonus: My views are somewhere in the middle and are likely to annoy most people.
1) Court packing is a really bad idea. It's a major norm violation, & it destabilizes the third branch in a really dangerous way. The counterargument, of course, is that the other side has *already* violated norms; this is a counter to that norm violation. I disagree, because....
it seems to me that the real cause of the claimed "norm breaking" is the gradual devolution, in both parties, to purely partisan Supreme Court votes in the Senate. This wasn't a big problem when Presidential and Senate control were form the same party. Partisan = confirmed.
Some legal education history I didn't know -- a thread.
In 1950, a significant number of law schools refused to admit Black students. That year, the AALS considered a rule that to to be an AALS member school, you had to open your doors to students of all races.
This was during the period of "separate but equal," before Brown v. Board. Private law schools could be segregated. And public law schools could be segregated but only if they provided an "equal" alternative. See, e.g., Sweatt v. Painter, 339 U.S. 629 (1950).
In December 1950, a group of faculty from @YaleLawSch proposed a non-discrimination rule: A school can't be allowed as an AALS member if it discriminates on the basis of race. Desegregate, or the school is booted out of @TheAALS.
Some interesting Supreme Court history I stumbled upon wasting time on Wikipedia:
On April 21, 1844, Justice Henry Baldwin died while in office. President Tyler had a little over ten months left in his Presidential term. Tyler tried to fill the seat, but was unsuccessful.
On June 5, 1844, President Tyler nominated Edward King to fill the seat. But Tyler had little support in Congress, and the Senate voted to table the King's nomination and not consider it on the merits. govtrack.us/congress/votes…
President Tyler withdrew the nomination, and then nominated John Read for the seat. The Senate ignored that nomination. President Tyler's Presidency ended with the seat still vacant in March 1845.
A lot of law professors write about Supreme Court developments. I wonder what legal scholarship about the Supreme Court looks like in a world of a 6-3 conservative Supreme Court, with 5 Justices unambiguous conservatives. Does it try to meet the Court where it is? Reject it? /1
Of course, many different scholars write about SCOTUS in diff ways, on different topics. I realize I'm painting with a broad brush. But I suppose my main interest is in the internalists -- the ones who write about doctrine, implicitly or expicitly recommending different paths. /2
How many will try to speak the Court's language, such as by echoing or recognizing originalist methods? How many will just be in opposition, especially in light of the circumstances of how the Court came to have its conservative supermajority ? /3