We often speak of batting averages. One number will tell us a lot about the prowess of any individual baseball player. Batting averages do not work as well for other topics. The batting average of the public defender is not really in his or her control. The public defender does not get to pick and choose each case. And, let’s face it: statistics show that juries are likely to find many of these defendants guilty. The public defender’s low batting average does not mean that the person is not a good lawyer; it may only mean that it is very difficult to persuade the jury to acquit these defendants when there is a lot of adverse evidence.
Prosecutors are a little different in that they can choose not to secure an indictment. To some extent, they do control their own docket. Similarly, the Solicitor General controls, to some extent, his own docket. Thus, it is interesting to look at the batting averages of the Solicitor General. I will focus on cases where the Supreme Court unanimously rejected the arguments of President Obama’s Solicitor General. Many of these cases have slipped under the radar of the general media. They still are significant and would be even more significant if the Administration had won. I cannot write about them all, so let us talk about some of the recent ones, focusing on cases that have a civil liberties component. Let’s start with cases decided in 2012.
In Arkansas Game and Fish Commission v. United States (2012), the Arkansas Commission owned and managed 23,000 acres of forest. The U.S. Army Corps of Engineers periodically flooded these acres, which adversely affected the peak timber growing season. The Commission sued to obtain compensation for the taking of its property. The periodic flooding that the Federal Government intentionally caused during tree-growing season harmed the forest, and the cumulative impact of this flooding caused destruction of timber and a substantial change in the character of the terrain. That, in turn, required the state commission to engage in costly reclamation measures. The federal government argued that it could temporarily flood land, making it unusable for the owner, and not be liable to pay any damages for temporarily taking property. Justice Ginsburg spoke for a unanimous Court, rejecting the government’s claim: “No decision of this Court authorizes a blanket temporary-flooding exception to our Takings Clause jurisprudence, and we decline to create such an exception in this case.”
Consider also Sackett v. Environmental Protection Agency (2012), another property case. The Sacketts wanted to build their three-bedroom dream house on the property they recently acquired. The EPA told them that their residential lot contained “navigable waters” and that their construction project violated the EPA. Unless they stopped building, they would face fines of up to $75,000 per day. The Sacketts sued, arguing that the EPA’s compliance order was “arbitrary and capricious” and thus invalid. The EPA response was not a response on the merits. It argued that the Sacketts could not challenge the EPA order in federal court. The EPA actually argued that until the EPA sues a property owner, the property owner has no access to the courts, and the EPA “may wait as long as it wants before deciding to sue.” The unanimous Supreme Court rejected the EPA’s argument. Congress did not design the law “to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.”
In Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission (2012), the government argued that the EEOC could interfere with a church’s decision involving choosing its ministers. Once again, the unanimous Court rejected the government’s position. During oral argument, Justice Scalia said it was “extraordinary” that the Assistant Solicitor General argued that the Court, applying the EEOC, should make no distinction between secular or religious employers. Justice Kagan then said, “I, too, find that amazing.”
In United States v. Jones (2012), the federal government argued that it could secretly attach a GPS device to undercarriage of a car and follow it around for 28 days, without any need for a search warrant. The Court, once again, unanimously, rejected that intrusion on privacy.
Missouri v. McNeely (2013) was a case that arose in the state courts. The state trial court and the state supreme court held that police need a warrant before they can force a drunk-driving suspect to submit to a blood test. The case went to the U.S. Supreme Court. The ACLU argued that the police need a search warrant, but the Obama Administration said no, and filed a brief urging the Court to hold that police should have blanket authority to force blood tests without any search warrant. The Court rejected (8 to 1) the Administration’s argument. Justice Sotomayor, for the Court, explained, “Any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.”
Then there is Horne v. Department of Agriculture (2013). A federal regulation required raisin farmers to turn over a percentage of their crop to the federal government. Raisin farmers refused to surrender their portion of their raisins without compensation. Hence, the Department of Agriculture began administrative proceedings that imposed more than $650,000 in fines and civil penalties. The raisin farmers sought judicial review, claiming that the monetary sanctions were an unconstitutional taking of private property without just compensation. President Obama’s Solicitor General argued that raisin farmers did not have the right to go to court to contest the seizure. Instead, the Government argued the farmers must first endure lengthy delays and pay a $483,000 fine. The Court unanimously rejected the Obama Administration’s argument.
Riley v. California (2014) is another case that arose in the state court system, this time in that of California. The federal government did not have to take a position on this case, but it did. When the U.S. Supreme Court heard the case, the federal government filed an amicus brief arguing that police can seize and look at the digital contents of a cell phone without any need to secure a warrant, in contrast to the position argued by the ACLU. The unanimous Court again rejected the government’s position. Chief Justice Roberts, speaking for the Court, noted that the government’s proposed solution is “that law enforcement agencies ‘develop protocols to address’ concerns raised by cloud computing.” His response: “Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols.” The “possibility that a search might extend well beyond papers and effects in the physical proximity of an arrestee is yet another reason that the privacy interests here dwarf those” in prior cases. One’s whole private life—photos, contacts, calendar, and documents—can be on a smartphone. One poll found that “nearly three-quarters of smartphone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower.”
McCullen v. Coakley (2014) involved a challenge to a Massachusetts law that limited peaceful speech near abortion clinics. Professor Laurence Tribe of Harvard, a self-described “committed supporter” of a woman’s right to choose, said that this state law “was anything but neutral toward the content of the speech at issue but represented a form of censorship.” The Obama Administration urged the Court to uphold the Massachusetts law. Once again, a unanimous Court rejected this attack on free speech.
On these cases, all involving civil liberties, we can be grateful that the batting average of the Solicitor General for this series of cases is zero.