"I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen..."

"... for purposes of querying and analyzing it without prior judicial approval... Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment."

Wrote Federal District Judge Richard J. Leon, a Bush appointee, in a case brought by Larry Klayman, a conservative activist, who is seeking to represent a class of all Americans.

Similar legal challenges to the N.S.A. program, including by the American Civil Liberties Union and the advocacy group Electronic Frontier Foundation, are at earlier stages in the courts. Last month, the Supreme Court declined to hear an unusual challenge to the program by the Electronic Privacy Information Center, which had sought to bypass lower courts.

ADDED: Orin Kerr has some sharp analysis:

Judge Leon’s first and most fundamental move is to distinguish Smith v. Maryland, the 1979 case ruling that the Fourth Amendment does not protect numbers dialed from a telephone. I found Judge Leon’s argument on this point not only unpersuasive, but quite plainly so. I realize that a district court judge can’t just announce that he thinks a Supreme Court decision was wrongly decided. But there are plausible ways to write an opinion distinguishing Smith and implausible ways to do so, and Judge Leon’s opinion struck me as a surprisingly weak effort.

Read the rest at the link.

In the NYC stop-and-frisk case, the 2d Circuit said the district judge Shira Scheindlin created an "appearance of partiality."

It stayed her order and removed her from the case.

The appellate court's 2-page ruling cited this NYT article in a footnote to criticize Scheindlin for the way the related-case rule has directed stop-and-frisk cases against the police to her ever since 1999, when she was randomly assigned the case dealing with the police shooting of Amadou Diallo. The NYT had this (last May):

In a city with dozens of Federal District Court judges, it is striking that a single judge has so many opportunities to rule on one of the Police Department’s signature crime-fighting tactics — a development that has frustrated city officials....

The language of the court rule leaves it to the discretion of individual judges to accept the case as related or not. It instructs judges to consider whether placing the cases in the same courtroom would result in conserving judicial resources, allow more efficient litigation or serve the convenience of the various parties.

The rule calls for related cases to have a “similarity of facts and legal issues” or to stem from the “same transactions or events.” But cases are not related merely because they involve identical legal issues or litigants....

NYC stop-and-frisk practice violates rights, the federal judge rules, after a 2-month trial.

"Relying on a complex statistical analysis presented at trial, Judge Scheindlin found that the racial composition of a census tract played a role in predicting how many stops would occur."

She emphasized what she called the “human toll of unconstitutional stops,” noting that some of the plaintiffs testified that their encounters with the police left them feeling that they did not belong in certain areas of the cities. She characterized each stop as “a demeaning and humiliating experience.”...

While the [U.S.] Supreme Court has long recognized the right of police officers to briefly stop and investigate people who are behaving suspiciously, Judge Scheindlin found that the New York police had overstepped that authority. She found that officers were too quick to deem as suspicious behavior that was perfectly innocent, in effect watering down the legal standard required for a stop.

“Blacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than whites,” she wrote.

A fractured opinion about when the police can draw blood for a warrant after a drunk-driving arrest.

It's hard to know where to start in this new opinion, Missouri v. McNeely:

Sotomayor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, in which Scalia, Kennedy, Ginsburg, and Kagan, JJ., joined, and an opinion with respect to Parts II–C and III, in which Scalia, Ginsburg, and Kagan, JJ., joined. Kennedy, J., filed an opinion concurring in part. Roberts, C. J., filed an opinion concurring in part and dissenting in part, in which Breyer and Alito, JJ., joined. Thomas, J., filed a dissenting opinion.

I start with Justice Thomas, who says the natural dissipation of alcohol in the blood is always the "exigent circumstance" that avoids the warrant requirement.  He gives a clear rule.


The Chief Justice writes:

I have no quarrel with the Court’s “totality of the circumstances” approach as a general matter; that is what our cases require. But the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.

He would say that the natural dissipation of alcohol in the blood is an exigent circumstance unless there is time to get a warrant. He wants something closer to a rule.  Kennedy, who is the one who deprives Sotomayor of a majority in some parts of her opinion, wants less of a rule from the Court, so that states and local governments can work out their own rules.

And here's Sotomayor:

The State’s proposed per se rule... fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple....

Basically, using the telephone, it can be made very easy to get these warrants. You wouldn't want to remove the incentive on the police to set up these procedures and to make them efficient and thus to avoid the destruction-of-evidence problem.

Who was first to say that it's good if a judge "keeps easy cases easy"?

We're very familiar with the old expression "Hard cases make bad law," from which one can infer that easy cases make good law and, perhaps, an idea that judges should make an effort to keep easy cases easy.

In today's case about drug-sniffing dogs, Justice Scalia said that using a property-rights analysis (rather than discussing the expectation of privacy) "keeps easy cases easy." Justice Kagan picked up the phrase in her concurring opinion to say that using both forms of analysis "would make an 'easy cas[e] easy' twice over."

Should we credit Justice Scalia with the new aphorism "kee[p] easy cases easy"? (Note that I'm using the Kagan approach to brackets as I drop the s on "keeps.")

The only near example I found in the state and federal courts database was Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001), in which Judge Alex Kozinski said that something "illustrates that easy cases are easy, however one analyzes them." But that's not the same as proclaiming it a virtue to keep easy cases easy, so I give the aphorism to Justice Scalia.

By the way, Scalia loves to talk about easy cases. For example, last fall:

"The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state," Scalia said at the American Enterprise Institute.

Sometimes when one lawyer says a case is easy, you want to say — as I once heard Professor Henry Monaghan say — "Yes, but which way is it easy?"