A dozen speakers asked the Bakersfield City Council not to move forward with proposed rate increases for the city’s sewer system, citing the financial burden to local residents.Read more

The youngest son of disgraced former Kern County Supervisor Zack Scrivner delivered emotional testimony Tuesday — and provided new details about an infamous local tragedy — while speaking at the state Capitol about the night his father allegedly assaulted his…Read more

The City Council and staff honored Bakersfield Police Chief Greg Terry for his decades of service to the community Wednesday, ahead of his retirement at the end of the month.Read more

A mechanic at Motor City Buick GMC died last month when the vehicle he was working on rolled back and pinned him, the state Department of Industrial Relations reported Wednesday.Read more

The Supreme Court will hear oral argument next week in Chatrie v. United States, which concerns a Virginia man who was convicted of bank robbery. Okello Chatrie contended in the lower courts that the government violated the Fourth Amendment when it obtained his location from his cellphone records, which put him in the vicinity of the robbery. The lower courts rejected that argument, but now the justices will weigh in.The case has its roots in a 2019 robbery of a federal credit union in Midlothian, Virginia, in the Richmond suburbs. Because the robber, who made off with $195,000, appeared to be speaking on his cellphone when he entered the bank, law enforcement officials served a “geofence warrant” on Google, which directed the tech company to provide location data for cellphone users who were near the bank at the time of the robbery.The process of obtaining data from Google moved forward in three steps. The warrant initially created a “geofence” with a 150-meter radius around the bank for the 30 minutes before and after the robbery. Google gave law enforcement officials an initial list of accounts linked to devices that were in the area during that time period, although it did not provide the names of the users of those accounts. At the second step, based on the initial list, law enforcement officials asked Google for information about several accounts that were in the area during a two-hour period. And at the third step, a detective asked for, and received, the names and information for three accounts – one of which was the defendant, Chatrie. Law enforcement did not seek a warrant when conducting the latter two steps.Based on the information that the government had obtained from Google, Chatrie was charged with (among other things) bank robbery. He asked a federal district court in Virginia to bar prosecutors from using evidence obtained as a result of the geofence warrant against him, arguing that it violated the Fourth Amendment. The district court agreed with Chatrie that the warrant in his case did not have the kind of probable cause that the Fourth Amendment requires, but it nonetheless allowed the government to use the evidence on the ground that law enforcement had acted in good faith.Chatrie then pleaded guilty to bank robbery and gun charges, although he reserved the right to appeal the district court’s denial of his motion to suppress the evidence obtained through the geofence warrant. He was sentenced to 141 months in prison, followed by three years of supervised release.A divided panel of the U.S. Court of Appeals for the 4th Circuit affirmed the denial of Chatrie’s motion to suppress. In the majority’s view, the government had not conducted a “search” for purposes of the Fourth Amendment because Chatrie could not reasonably expect two hours’ worth of location data, which he had voluntarily allowed Google to have, to be kept private. The case then went to the full court of appeals, which upheld the panel’s ruling in a deeply splintered decision.Chatrie subsequently came to the Supreme Court, which agreed in January to take up his case.In his brief on the merits, Chatrie makes several different arguments assailing the use of the geofence warrant to find his location data. First, he contends, the use of the warrant resulted in a “search” for purposes of the Fourth Amendment. This is so, he says, for two reasons. It infringed on his property interest in his location data, and he had a reasonable expectation of privacy in that data. In particular, he notes, geofence warrants “present serious privacy concerns” because the government can use them to determine when someone makes a visit that they might want to keep discreet – for example to a plastic surgeon or a psychiatrist. Chatrie also tells the justices that the “third-party doctrine” – the idea that someone gives up a reasonable expectation of privacy over information that he voluntarily discloses to someone else – does not apply here because it only involves business records, which location data is not.Second, Chatrie argues, although the government may have had a warrant for its search, the geofence warrant was still unconstitutional because it was the kind of “general warrant” that the Fourth Amendment was intended to protect against – “instruments that allowed the government to search first and develop suspicions later. A geofence warrant operates on precisely that principle.” The warrant was also unconstitutional in any event, Chatrie contends, because it did not identify any specific accounts to be searched or provide probable cause to believe that any of those accounts would have evidence relevant to the bank robbery.The government offers a very different view of the case. It emphasizes first that Chatrie did not have any reasonable expectation of privacy in his location data, both because he “affirmatively opted to allow Google to collect, store, and use” it and because the warrant merely sought information that would have been “visible to anyone near” him at the time of the robbery. And although, according to the government, Chatrie cannot make his property rights argument at all, because he did not make it in the lower court, the government contends that it too fails because “‘American law has generally refused to recognize property rights in data’ as such” and because any property rights would be Google’s, rather than Chatrie’s.The government also pushes back against Chatrie’s suggestion that the warrant used by the government in this case resembles a “general” warrant. U.S. Solicitor General D. John Sauer stresses that, unlike a general warrant, the warrant in this case did not give law enforcement officials “free rein to rummage through Google’s database.” To the contrary, he suggests, “the warrant simply directed Google to locate and turn over the necessary information, such that investigators themselves saw only a minuscule slice of data in Google’s database.” “At bottom,” Sauer posits, Chatrie’s “arguments seem to imply that no geofence warrant, of any sort, could ever be executed.”It is not clear how broad the impact of the court’s decision in the case will be, because Google now stores location data on mobile devices themselves, rather than in its own database. Additionally, even if the court ultimately determines that the search violated the Fourth Amendment, the government contends that the evidence against Chatrie can come in based on the the lower court’s finding that law enforcement acted in good faith in obtaining the location data from Google.But as one “friend of the court” brief, filed by the Cato Institute, points out, the court could still clarify a variety of issues related to cellphones, technology, and the Fourth Amendment – for example, whether Americans have a property interest in digital records, even if they are stored with tech companies like Google, and when the government must obtain a warrant if it seeks to search digital records.A decision in the case is expected by late June or early July.Read more

Ratio Decidendi is a recurring series by Stephanie Barclay exploring the reasoning – from practical considerations to deep theory – behind our nation’s most consequential constitutional decisions.Last Saturday, the New York Times published a trove of internal Supreme Court memoranda from February 2016 and declared that the five-day deliberation over President Barack Obama’s Clean Power Plan marked the birth of the court’s modern “shadow docket.” Stephen Vladeck, writing before the leak and again after it, made the same claim: the Feb. 9, 2016 rulings were, he wrote, “the birth of what we might call the modern emergency docket.” Jack Goldsmith, pushing back against the broader Times framing, narrowed the point but did not abandon it – the 2016 order, on his account, “fairly marks the beginning of the Court’s modern active engagement with presidential initiatives via interim orders.”Each of these accounts locates the emergency docket’s initial engagement with presidential initiatives on a single winter evening in 2016. Each is wrong. An earlier interim order blocking an executive branch regulatory program as applied to a large group of challengers was not entered by Chief Justice John Roberts. It was entered by Justice Sonia Sotomayor, acting alone, more than two years before the Clean Power Plan application landed at the court. And her approach was adopted not long after by a unanimous Supreme Court.What the reporting claimsThe Times story is thorough, but the framing is unmistakable. Jodi Kantor and Adam Liptak describe the February 2016 orders as the birth of a secretive track the court has since used to make many “major decisions” on presidential power. The court’s five-day rush, on their account, was a rupture. Justice Elena Kagan expressed the following concern in her private memo: “As far as I can tell, it would be unprecedented for us to second-guess the D.C. Circuit’s decision that a stay is not warranted, without the benefit of full briefing or a prior judicial decision.” Vladeck’s February anniversary piece, which the Times quotes, had made the same point. Prior to 2016, Vladeck wrote, the court had “virtually no examples of full Court emergency relief respecting national (or even non-election-related state) policies prior to the Clean Power Plan orders.” Goldsmith, writing on Sunday in Executive Functions, called the Times reporting “tendentious” but acknowledged the precedent-setting function of the CPP orders in narrower terms: they marked the beginning of the court’s “modern active engagement with presidential initiatives via interim orders.”These are different versions of the same claim. On all of them, the emergency docket’s engagement with major presidential initiatives began on Feb. 9, 2016.The problem with the claimThe claim fails even on its narrowest formulation. By the time West Virginia’s application reached Roberts’ desk, the Supreme Court had been enjoining significant applications of executive branch regulatory programs for at least two years. The court had been doing so in exactly the procedural posture the Clean Power Plan application would later present: a very short interim order, issued before any appellate court had reached the merits, in response to a brief procedural stay denial below.A key early order came from a Democratic appointee. And a subsequent order was ratified by the full court without a recorded dissent.Sotomayor’s New Year’s EveOn Sep. 24, 2013, the Little Sisters of the Poor sued the Department of Health and Human Services in the District of Colorado. At issue was no peripheral rulemaking. The Affordable Care Act was Obama’s signature domestic achievement, and the contraceptive mandate had emerged as one of its most politically contested features – litigated, protested, and debated in the presidential campaign cycle then just concluded. Fifteen months earlier, the court had narrowly upheld the ACA’s individual mandate in NFIB v. Sebelius. By late 2013, dozens of challenges to the contraceptive mandate were pending in the lower courts. The Little Sisters argued that the mandate, promulgated by regulation rather than required by the ACA itself, forced them to facilitate the provision of coverage they understood as a grave violation of Catholic moral teaching.The district court denied their preliminary injunction motion on December 27. The U.S. Court of Appeals for the 10th Circuit denied a request for an emergency injunction pending appeal on December 31. Enforcement was set to begin at midnight.Sotomayor, as circuit justice for the 10th Circuit, received the Little Sisters’ emergency application that evening. She granted it within hours, before she herself led the ball drop in Times Square that New Year’s Eve. Her order was only one paragraph long and issued without merits briefing, oral argument, or explanation.It enjoined the federal government from enforcing a premier presidential regulatory initiative before the 10th Circuit had ruled on whether the district court had correctly denied preliminary injunctive relief. The New York Times editorial board immediately criticized the ruling as “perplexing,” arguing that Sotomayor had granted an “audacious” request. The criticisms focused in part on the fact that “[a] federal trial court denied a preliminary injunction . . . and a federal court of appeals declined to issue an injunction pending appeal” because they found interim relief unnecessary. Yet Sotomayor’s ruling went the other way.The HHS contraceptive mandate was, in every relevant sense, a presidential initiative of a piece with the Clean Power Plan that would arrive at the court two years later. (And in fact, the Clean Power Plan, when it arrived two years later, would command nothing close to this level of political salience or legal traffic.) Congress had not directed the contraceptive mandate’s imposition. The ACA did not require coverage of contraceptives; that requirement was added by HHS through an interim final rule and then enforced against religious nonprofits whose objections the administration refused to accommodate. The regulation threatened fines that would have bankrupted the Little Sisters before any appellate court could adjudicate their claims – the same mootness-by-compliance problem that would animate the chief justice’s memo about the Clean Power Plan in February 2016. The Sotomayor order prevented that outcome. Indeed, the New York Times also published another article at the time explaining that Sotomayor had blocked the contraception mandate on insurance in a suit involving the nuns.The impact of the court’s action here was not limited to a single justice. Three weeks later, on Jan. 24, 2014, the full court extended the injunction. The order was unsigned. It provided no merits reasoning. It enjoined the federal government from enforcing the mandate against the Little Sisters and against more than 400 additional Catholic organizations receiving benefits through the same Christian Brothers plan while their appeal was pending before the 10th Circuit. There were no recorded dissents. Justices Ruth Bader Ginsburg, Stephen Breyer, Sotomayor, and Elena Kagan – the four Democratic appointees then sitting – concurred in the court’s unsigned, unexplained order freezing a major application of an executive branch regulatory program before any appellate court had issued any thoroughly reasoned order or reached a final merits judgment.By any metric the Times applies to the February 2016 orders, this was a modern emergency docket decision. An unsigned order. No merits briefing. No oral argument. An intervention ahead of the 10th Circuit’s full appellate resolution. A major decision limiting enforcement of a signature presidential initiative. And – a feature the 2016 orders notably lack – unanimity across the court’s ideological divisions.Wheaton and ZubikThe line did not end with the Little Sisters. On July 3, 2014, the court granted an injunction pending appeal to Wheaton College, again before the U.S. Court of Appeals for the 7th Circuit had addressed the merits of Wheaton’s religious liberty claim. Sotomayor, joined by Ginsburg and Kagan, dissented. Breyer did not.On April 15, 2015 – the same day the 3rd Circuit had denied a stay pending cert, and nearly seven months before cert was granted – the court recalled and stayed a mandate in Zubik, one of a set of seven religious nonprofit cases that would eventually be consolidated for Supreme Court review.So by the time the Clean Power Plan application reached Chief Justice Roberts in January 2016, the court had already issued at least three of these interim orders (of which I’m aware). The February 2016 orders differed in the policy area involved and in the scale of the regulatory program they touched. But they did not differ in procedural kind. Kagan’s private complaint in 2016 – that second-guessing the D.C. Circuit without full briefing or a prior merits ruling was unprecedented – was, as a matter of the court’s actual practice, incorrect. The court had done it repeatedly, and she had joined such orders without dissent.Some might say that these types of orders are different from the Clean Power Plan case, because they enjoin or stay the president’s rule as to many challengers, rather than invalidating the entire rule. But the New York Times’ description of the birth of the modern emergency docket hasn’t been limited to that context. It discusses “major decisions” affecting national power. Vladeck described the Clean Power Plan as unprecedented because there are “virtually no examples” of “emergency relief respecting national . . . policies.” And Vladeck and other critics haven’t been shy about lambasting the court’s more recent uses of the emergency docket that enjoined some but not all aspects of government policies. So, such a distinction would really be beside the point.What actually drives these interventionsWhat has been unprecedented about the last decade is less about the court’s engagement on the emergency docket. That engagement has been a response. What has been unprecedented is, among other things, the executive action to which the court has responded – regulatory programs and enforcement actions designed, through their fine structures or compliance timelines, to impose the costs of capitulation before any court could reach the merits, rendering any merits review after the fact a nullity. Roberts voiced this exact concern in his Clean Power Plan memo, noting that the court had learned from recent experience showing that the EPA had found ways to “effectively implement an important program we held to be contrary to law.” The continuity in the court’s doctrinal response tracks that pattern, not partisan alignment.The HHS mandate raised that problem in an acute form. The government had structured the regulation and its penalty regime so that compliance costs would accrue daily from the moment of enforcement. For a small religious nonprofit, the effect was to force capitulation or bankruptcy before any appellate court could adjudicate its religious claims. Justice Samuel Alito’s private 2016 memo, concerned that voluntary compliance with the Clean Power Plan would render merits review “a mere postscript,” voiced a concern that had been addressed – without dissent – in 2014.The same structural concern has driven the court’s engagement with the current Trump administration. When the executive branch attempted to remove alleged Tren de Aragua members under the Alien Enemies Act on a timeline calculated to foreclose any judicial testing of the removals’ lawfulness, the court enjoined the removals on an emergency basis. When the administration sought to federalize and deploy the Illinois National Guard on contested statutory grounds, the court denied its stay application. When the administration sought emergency relief to remove a Federal Reserve governor, the court declined to resolve the application on the emergency docket and deferred it for full oral argument.The Times reporting mentions none of these orders. Rather, its operative claim is that the Roberts court uses the emergency docket to empower presidents its majority favors and to rein in those it opposes. But that claim cannot be reconciled with the rulings above, which together have denied the current administration some of the emergency relief it has sought most aggressively. Nor can it be reconciled with the 2013-2015 orders in the Little Sisters line, which reach further back than the Times’ chosen starting point and begin with a Sotomayor order against a Democratic president.The procedural posture of these cases may have some unique elements, but the principle behind them is not. What Abbott Laboratories recognized in 1967, and Ex parte Young in 1908, is that constitutional and statutory rights mean little if a regulated party must comply with a legal command in order to earn the privilege of contesting it – particularly where the costs of compliance are significant and the penalties for noncompliance are ruinous. Abbott permitted pre-enforcement review of FDA regulations whose compliance costs would otherwise have accrued before any court could test their validity. Young permitted federal injunctive relief against state enforcement of railroad rate laws whose penalties were calibrated to deter any carrier from contesting them in the first place. All of these cases share the same premise: that meaningful judicial review requires, at some point, the ability to pause enforcement before irreparable harm has already been done. The emergency docket’s interim injunctions against executive action are a modern application of that premise, not a departure from it. When the executive’s aggressive new tactics are designed to foreclose merits review, the longer legal tradition is often on the side of court intervention.The real noveltyEven more unprecedented than the executive action that has driven the court’s engagement over the last decade is the leaking of the court’s deliberations in response. What is genuinely new about this episode is not what the court decided in February 2016. It is that the memoranda in which the justices debated what to decide are now in the newspaper.The “shadow” papers are the third major trove of internal Supreme Court material the Times has published in two years, following the 2023 reporting on the court’s 2021 deliberations in the Texas abortion case and the 2024 reporting on the presidential immunity case. As Professor Stephen Sachs has written at Divided Argument, the May 2022 Dobbs leak led directly to an assassination attempt on Kavanaugh at his home the following month – aimed, Sachs argues, at preventing the draft opinion from securing his vote for the necessary majority. The identity of the current leaker remains unknown. What is known is that, somewhere inside a small institution, someone is feeding the press the private work product of justices who win internal arguments, with the evident purpose of exposing and punishing their reasoning.The current commentary cycle is focused on the deliberations the leaks exposed. But how these materials are reaching print, and what that pattern will mean for the court’s capacity to function as a deliberative institution – has attracted far less attention. When any tentative vote or draft passage can be weaponized the moment it displeases someone with access, justices and their clerks cannot deliberate candidly. And a democracy that depends on their candor is the weaker for it.What the papers actually showThe story the “shadow papers” tell, read alongside the cases the Times chose not to include, is not one of a court that stumbled into something novel on Feb. 9, 2016. It is one of a court that has been responding, for more than a decade, to a new and recurring problem: executive action, and at times lower-court action, whose design or pace would render ordinary merits review a formality.That problem took one form when the HHS mandate threatened to bankrupt a small order of nuns before the 10th Circuit could reach their religious liberty claim. It took another when the Clean Power Plan aspired, in its own administrator’s words, to be baked into the system before the D.C. Circuit could rule. It took others when the current administration sought to remove deportees before any court could test the removals, to deploy the National Guard in the absence of a clear statutory predicate, and to remove a Federal Reserve governor without waiting for merits resolution. In each instance, the court intervened. Sometimes the court granted relief, and sometimes it denied relief. But it did so on the basis of the same underlying concern about whether judicial review would mean anything if the executive were permitted to act first and answer later.The 2016 Clean Power Plan orders sit in the middle of that line. They do not begin it. An earlier emergency docket intervention against a presidential regulatory initiative in the modern era came on New Year’s Eve 2013, and it came from Justice Sotomayor. That is an inconvenient fact for the story the Times has chosen to tell. It is also the fact that best explains one of the important functions the emergency docket has actually been playing for the past decade – a check on executive overreach, across presidents of both parties.Read more

Good morning! It’s a new day and a new era for the SCOTUSblog website, which got a makeover last night. Read about the redesign in the Closer Look section below and don’t forget to join us this morning at 9:30 a.m. EDT for an opinion announcement live blog.[SCOTUS Today section — view on SCOTUSblog][SCOTUS Today section — view on SCOTUSblog][SCOTUS Today on-site — view on SCOTUSblog][SCOTUS Today on-site — view on SCOTUSblog][SCOTUS Today feature — view on SCOTUSblog][SCOTUS Today quote — view on SCOTUSblog]Read more