Media analysis has focused intently on the apparent unanimity that has characterized this year’s Supreme Court decisions. The Court issued 73 opinions this term, 48 of which were 9-0 decisions. Contrary to the cries of the media, however, this number is quite average; as American University Washington College of Law Professor and The Constitution Project’s Supreme Court Fellow Stephen Vladeck noted at TCP’s Semi-Annual Supreme Court Update on July 8, 2014, it is historically common for the Supreme Court to hand down unanimous rulings. Moreover, the media focus on unanimity in this Court is far too simplistic, for it ignores the bitter divisions that lie behind a façade of agreement. While the prominence of 9-0 decisions in this year’s Court seems to suggest a strong level of agreement, the nine judges were often fiercely divided in their reasoning. As Slate Legal Analyst Dahlia Lithwick explained in a June 26 article entitled “Supreme Court Breakfast Table,” these decisions are perhaps more accurately described as “faux-nanimous,” and the appearance of unanimity should not overshadow the intense disagreements that pervade this Court, especially since lower courts are less likely to follow the Court’s decisions when they are accompanied by concurrences.
Another noteworthy trend from this term comes with a shift in the composition of 5-4 decisions in criminal cases. Followers of the Supreme Court have grown accustomed to a predictable divide, with Justices Ginsberg, Kagan, Sotomayor, and Breyer on the left, and Justices Alito, Scalia, Thomas, and Roberts on the right, leaving Justice Kennedy somewhere in the middle. Of late, however, this traditional alignment has seen a significant alteration, with Justices Breyer and Scalia switching sides in criminal cases. In fact, the two justices have switched sides in criminal cases four times within the past two years – a shift that Vladeck attributes to Justice Breyer’s “pragmatism” and Justice Scalia’s “formalism.” For example, in the Court’s 5-4 decision in Navarette v. California, Justice Breyer joined the four traditionally “conservative” justices to form a majority opinion that, under some circumstances, an anonymous tip may provide reasonable suspicion for a traffic stop. Justice Scalia joined Justices Sotomayor, Kagan, and Ginsburg in the dissenting opinion, arguing that a traffic stop based on an anonymous tip without corroboration violates the Fourth Amendment prohibition against unreasonable searches and seizures.
The following four synopses include some of the criminal cases that the Court heard this term that exemplify some of the new trends that have emerged.
Bond v. United States
Bond v. United States perfectly exemplifies the “faux-nanimity” that emerged this term out of the Court’s decisions. The underlying facts of the case involved a Pennsylvania woman, Carol Anne Bond, who discovered that her husband was having an affair and attempted to poison her husband’s mistress by spraying industrial chemicals on a doorknob and mailbox. Bond’s attempt at poisoning the mistress was not particularly effective: her husband’s lover was able to avoid most of the affected objects and sustained only mild burns that were easily treated, due in large part to the bright orange color that tended to emanate from objects sprayed with the chemicals. Although this seems to be a straightforward local assault on the surface, the case rose to the Supreme Court for its ties to the Chemical Weapons Implementation Act of 1998. This legislation was passed as a means of implementing the 1997 international Convention on Chemical Weapons, which was ratified or acceded to by 190 countries.
The issue at stake in Bond was whether an amateur civilian’s use of small-scale toxic chemicals constituted a violation of the act, and in a 9-0 decision, the Court ruled that conviction should be reversed. However, the reasoning behind the justices’ opinions varies greatly. Chief Justice Roberts, joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan stated that “because our constitutional structure leaves local criminal activity primarily to the States, we have generally declined to read federal law as intruding on that responsibility, unless Congress has clearly indicated that the law should have such reach.” In essence, the Court presumes that Congress did not intend to regulate local crime through implementing the Chemical Weapons Treaty.
Justices Scalia, Thomas, and Alito, on the other hand, held that the language of the statute does apply to Bond. In his concurring opinion, Justice Scalia, joined by Justice Thomas, stated that because Bond did, in fact, use toxic chemicals with the intent of causing harm, she clearly violated the federal implementing legislation. However, according to Justices Scalia and Thomas, this case is predicated on the notion that the federal government holds the right to ratify treaties, but not necessarily to implement them. Thus, while Congress retains the power of approving treaties, this does not automatically mean that any law passed with the intent of enacting the treaties is inherently constitutional under the Tenth Amendment. Moreover, joined by Justice Alito, Justices Scalia and Thomas also assert that the treaty power is only relevant for actions among nations. Because this case is thoroughly domestic, the justices argue, it is not applicable to the treaty process.
Hall v. Florida
Hall v. Florida marks one of the most important Eighth Amendment decisions the Court has issued in several years. The case finds its roots in Atkins v. Virginia (2002), which banned the execution of intellectually disabled persons. Following the Atkins ruling, states were left to determine their own specific criteria for intellectual disability. Some states, including Florida, interpreted the Atkins decision by implementing a rule that anyone with an IQ over 70 is not intellectually disabled and can therefore be sentenced to the death penalty.
This rigid IQ threshold stirred controversy when Floridian Freddie Lee Hall was sentenced to death. Although numerous medical professionals have diagnosed Hall with a mental disability, his IQ of 75 precluded his lawyers from submitting additional evidence regarding his mental condition. Hall’s sentencing raised serious questions about Florida’s standards for determining intellectual disability. TCP, along with numerous other organizations dedicated to criminal justice, filed an amicus brief on Hall’s behalf, arguing that an accurate and reliable determination of whether Hall has intellectual disability, and therefore whether he can be executed, cannot be revealed in a simple measure of an IQ test score.
In a 5-4 ruling, the Supreme Court decided that Florida’s hard IQ line is incompatible with modern understandings of intellectual disability. In his majority opinion, Justice Kennedy wrote that “intellectual disability is a condition, not a number,” adding that “courts must recognize, as does the mental health community, that the IQ test is imprecise.” Justices Ginsberg, Kagan, Sotomayor, and Breyer joined the opinion. Importantly, The Constitution Project has long been concerned with States’ use of inaccurate and simplistic means of determining whether a person may be executed under the Eighth Amendment.
Hall is another in a long line of cases in which the Court has narrowed the application of the death penalty. In adherence to its earlier decision in Atkins, the Court has recognized the importance of nuanced understandings of mental health in criminal cases. The decision suggests that mental condition must be carefully evaluated on an individualized basis and in accordance with modern standards, rather than simplistically split along an arbitrary IQ line.
Riley v. California
In Riley v. California, the Court unanimously held that police must obtain a warrant to search cell phones incident to arrests pursuant to the Fourth Amendment’s protection against unreasonable search and seizure. As a result, the Court now classifies cell phones as distinct from other physical objects at times of arrest since cell phones can hold massive amounts of private information about people’s lives. In addition to containing intimate information, cell phones can also access remote information via cloud computing, which was particularly influential in the Court’s decision; the opinion cited key statistics indicating that 90 percent of Americans own phones that contain sensitive information, and that the average smart phone user has 33 applications which could reveal further intimate details. The Court noted that “the fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” This notion distinguishes digital information as fundamentally different from physical information when police are collecting evidence.
As such, this decision is particularly salient to law enforcement officials. At times of arrest, expectations of privacy are reduced dramatically, and Justice Alito, who is the only Justice who concurred, noted that this decision may affect the way that law enforcement officials do their jobs. Since Riley lends an extra level of protection to privacy, the ruling could reduce the efficacy with which criminals are brought to justice, Justice Alito wrote. That is why this case is of particular note – it recognizes the ubiquity of technology in Americans’ everyday lives, and places the issue of privacy definitively in the digital age.
The Court has grappled with privacy issues as they relate to developing technologies since the mid-20th Century, and Chief Justice Roberts sets this case apart from previous decisions in his bold claim that the solution is “simple” – “get a warrant.” This is the first time the Court has labeled privacy and technology issues as simple, and it sets a clear model for lower courts. Justice Alito, however, encouraged Congress and legislatures to get involved, claiming that “it would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment.”
The legal principle this case draws upon more narrowly is that which separates the physical evidence from the digital pursuant to the Fourth Amendment, but this exposes the way the Court currently acknowledges privacy issues in the digital age. Riley is now a part of this case law, and brings the level of protections derived from the Fourth Amendment further into the digital age than ever before. The determination that digital information is different holds broader implications for other containers of digital information as well, such as laptops, tablets, and servers, which, like cell phones, have access to pervasive personal information. Although this case applies to searches incident to arrest, it certainly opens the door for further inquiry concerning the constitutionality of other warrantless activities of the government, such as the National Security Agency’s massive government surveillance programs. The Court criticized the government’s proposal “that law enforcement agencies ‘develop protocols to address’ concerns raised by cloud computing,” and Chief Justice Roberts pointed out that “the Founders did not fight a revolution to gain the right to government agency protocols.” These key phrases will surely be considered when it comes to bulk data collection. For now, the Court’s decision serves as a reminder that warrants have always been – and should always be – an important working part of our government and not merely an inconvenience that might threaten law enforcement efficiency.