Sarah-Jane Lorenzo ‘21
Members of the Law School faculty unpacked the Supreme Court’s most recent takes on privacy, free exercise of religion, and election law at this year’s Supreme Court roundup. Noting the court’s state of change in the wake of Justice Anthony Kennedy’s retirement, professors reflected on his legacy and reviewed the possible impacts of a more conservative nominee.
Professor Anne Coughlin began the panel by addressing the privacy implications of two key cases: Carpenter v. United States, which involved cell phone privacy, and Collins v. Virginia, a property rights case with roots in Albemarle County. Crediting Justice Antonin Scalia with setting precedence for both, Coughlin noted that while Carpenter was a very high-tech case involving cell-site records, Collins was quite the opposite; police simply walked up a man’s driveway to inspect a motorcycle.
Coughlin first reviewed Carpenter, a case where cell-site information linked the defendant to a string of armed robberies. Cell phone companies keep records for business uses, but those records can also be used to reconstruct a defendant’s movement over a period of time. On review, the Supreme Court held that the government could not legally access such data without a warrant.
Noting that while precedent provides no expectation of privacy in public, Coughlin said the court found in Carpenter that technology has changed; cell phones can now serve the same function as ankle monitors. Through cell-site records, police can track not only current information, but can also review five years of past location data. Coughlin remarked that the court has seemed to treat cell phone cases differently from other privacy cases, and reasoned that Carpenter’s implications may have felt personal to many of the justices on the court.
The Collins case arose from a high-speed chase near Charlottesville; the defendant evaded police on a stolen motorcycle, and police later observed what they suspected was that motorcycle on his residence. To confirm, they walked up his driveway and lifted a tarp covering the vehicle. Coughlin noted that to search a house, police need a warrant, but to search an automobile, police need probable cause. In Collins, the court determined that entry onto the defendant’s curtilage trumped their search of his vehicle, and police will need a warrant in similar situations.
Professor Daniel Ortiz followed Coughlin with remarks on election law through review of Gill v. Whitford, a partisan gerrymandering case, and Husted v. A. Philip Randolph Institute, which involved Ohio’s efforts to purge its voting rolls. Ortiz noted that, under pressure of the upcoming census and its redistricting mandates, the Court’s unanimous decision to sidestep key issues raised in Whitford and remand the case on standing grounds was essentially a punt. While liberals may have joined the decision in effort to keep hope alive for the future, Ortiz predicted that there is a great chance a conservative court would find against their interests should the issue arise again soon.
Professor Micah Schwartzman was next in the line-up, and reflected on two of the past term’s most high-profile cases: Masterpiece Cakeshop v. Colorado Civil Rights Commission and Trump v. Hawaii. Rooted in the First Amendment’s freedom of religion clause, both cases centered on religious hostility.
Schwartzman noted that while Masterpiece was much-covered by the media, its holding was fairly narrow, and centered more on what the court identified as religious hostility by the Colorado Civil Rights Commission than the extent to which anti-discrimination law protects the LGBTQ community from religious objections.
Similarly spotlighted on national news, Trump v. Hawaii explored the legality of the government’s proposed travel ban on Muslim-majority countries—a ban rejected by three lower courts as motivated by religious hostility. Despite those lower courts’ decisions, the Supreme Court upheld the ban as justified on national security grounds. Schwartzman remarked that the Court has never before been confronted with more evidence of religious animus than in the Trump case, and described the Court’s ruling to affirm the policy as an “empty gesture” towards the president, who suggested on national television that the ban’s target is religion rather than territory. By failing to criticize the president’s statements, Schwartzman said, the Court exhibited a loss of integrity.
Looking ahead to the courts’ coming term, Professor A. E. Dick Howard, who moderated the panel, questioned the potential impacts of nominating yet another conservative justice to the court. Should the court gain a conservative majority, he predicted limits on affirmative action, abortion, and election finance rules, coupled with an expansion of gun rights and increase of religion in public life. As the court commences its 2018–19 term, his forecasts will soon be put to the test.