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Orin Kerr

@OrinKerr

Dec 31, 2022

Putting aside whether there should be a Supreme Court Historical Society and what its role should be — more on that below — is it really true that some stone with the Supreme Court seal is "a unique status symbol" in DC? That seems weird to me.
nytimes.com/2022/12/30/us/…

As for the SCT Historical Society, I have always thought of it as a club for Supreme Court nerds to put on some lectures, run the gift shop, and put out a magazine. tIt didn't occur to me until the Shenk story that someone would try to use it as a way to influence the court.

I suspect, after the Shenk allegations, that the Justices will stop going to the group's events, which I would guess most Justices would be rather happy about.

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Orin Kerr

@OrinKerr

Dec 29, 2022

Cal SCT, over dissent of Liu, J., holds that police shining a spotlight on a parked car at night is a factor in whether the driver was seized (whether a reas person in that situation would feel free to leave), but isn't an automatic seizure. courts.ca.gov/opinions/docum… #N

Liu, dissenting, would treat spotlight as imparting a message that you are not free to leave.

Liu's dissent has lots of cites to law review articles on how the Supreme Court has misapplied its own doctrine on seizures — most people wouldn't feel free to leave when the Supreme Court says a reasonable person would. Majority says, well, we are bound by SCOTUS, not articles.

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Orin Kerr

@OrinKerr

Dec 26, 2022

I've never understood the distinction Anthony Amsterdam drew between the "atomistic" view of the 4th Amendment and the "regulatory" view. scholarship.law.umn.edu/cgi/viewconten…

I think the problem is that Amsterdam doesn't say what it means for law to have a "view." Does that mean that the doctrine formally looks to that question? Or does it mean that the overall purpose of the doctrine is to be about that question?

So it seems to me obvious that the law often looks "atomistically" in terms of its doctrine, but that the point of its doctrine is to achieve "regulatory" ends. And confusing the two categories is just a way of saying it's not regulating as much as you want it to regulate.

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Orin Kerr

@OrinKerr

Dec 22, 2022

This strikes me as a tempest in a tea pot — whatever your views on the substance, it’s more a symbolic issue than something with a lot of practical relevance — but culture wars will culture war. nytimes.com/2022/12/21/us/…

Seems to me the answer is to say that (a) student groups at a public university have a 1st amendment right to have this speakers' policy for their group, but (b) groups should be incredibly reluctant to have formal policies about what policy views their speakers can have.

In a pre-Internet world, both points could be worked out on campus, or within whatever community is facing them. But with the Internet, it's easy for it to become a subject for national commentary, which I would guess makes that working out harder, not easier.

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Orin Kerr

@OrinKerr

Dec 19, 2022

Notable: D.Ariz reaches a question long speculated about but, to my knowledge, never before reached: If a dog sniff for drugs is not a search under Caballes, does that allow searches for CSAM, too? Held: Yes, no search, Caballes applies.

Thread.
storage.courtlistener.com/recap/gov.usco… #N

I confess I find this case a bit odd. First, procedurally, it's a 28 U.S.C. § 2255 case alleging ineffective assistance for failure to raise a 4A issue. But as best I recall, the 4A claim has been tried elsewhere and hasn't worked, so I don't see how it's in IAC territory.

2nd, substantively, the claim is that Caballes applies to NCMEC opening a file to confirm it's CSAM. But I don't see how that's a Caballes issue. When NCMEC opens a file, it's either CSAM *or it's a private file that isn't CSAM.

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Orin Kerr

@OrinKerr

Dec 18, 2022

There should be a name, in the law, for a lower court interpretation of a SCOTUS majority opinion that is based largely on the dissent's characterization of the reach of that opinion. (A chicken little? "Well, the dissent said the sky was falling, so that must be true.")

Thinking of this when reading interpretations of MD v King, which on its face was limited to "serious offenses." Scalia, dissenting, warned that lower courts would say it applies to all offenses. And then lower cts get the issue they say things like US v Buller, 2018 WL 317820:

It's actually an interesting question of dissent strategy. Ex ante, when you're trying to pick off a vote, you want to say the sky is falling. But if you can't pick off a vote, then ex post you'd want to say the maj op is very narrow. Strategic move is to rewrite it midway. :)

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