Criminal Justice Divides the ‘Conservative’ Judiciary

It was a Monday in June 2019, and a sharply divided U.S. Supreme Court had just issued a 5–4 decision in a controversial case. Nothing unusual in that—except for the way the justices lined up to vote. At one end stood Neil Gorsuch, a conservative jurist appointed by President Donald Trump. At the opposite end stood Brett Kavanaugh, a fellow conservative and Trump appointee. What drove them so far apart?

At issue that day in United States v. Davis was a federal statute that, in the Court’s words, “threatens long prison sentences for anyone who uses a firearm in connection with certain other federal crimes. But which other federal crimes?” The law under review called for enhanced sentencing in cases involving so-called crimes of violence, which are felonies “that by [their] nature, involv[e] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

And what exactly does that mean? The experts differed, and that was the source of the problem as far as Gorsuch was concerned. “Even the government admits that this language, read in the way nearly everyone (including the government) has long understood it, provides no reliable way to determine which offenses qualify as crimes of violence,” he wrote for the majority, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. “In our constitutional order,” Gorsuch maintained, “a vague law is no law at all,” because it violates the core constitutional requirement that all federal statutes “give ordinary people fair warning about what” is demanded of them. This murky statute failed the test. “When Congress passes a vague law,” Gorsuch concluded, “the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.”

Kavanaugh did not like the sound of that. “The Court usually reads statutes with a presumption of rationality and a presumption of constitutionality,” he lamented in dissent, joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. Yes, the Supreme Court should “ensure that Congress acts within constitutional limits and abides by the separation of powers,” Kavanaugh conceded. “But when we overstep our role in the name of enforcing limits on Congress, we do not uphold the separation of powers, we transgress the separation of powers.” In Kavanaugh’s telling, Gorsuch had just committed the unpardonable sin of judicial activism. The majority opinion took the Court “off the constitutional cliff.”

Two days later, Gorsuch butted heads with another Republican appointee in another criminal justice case, this time trading verbal blows with Alito over the proper scope of the Sixth Amendment right to trial by jury. “Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty,” Gorsuch wrote for the majority in United States v. Hammond, in which, once again, he was joined by the Court’s four Democratic appointees. “Yet in this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt.”

Not so fast, Alito shot back in dissent. Gorsuch’s opinion “is not based on the original meaning of the Sixth Amendment, is irreconcilable with precedent, and sports rhetoric with potentially revolutionary implications.” Not exactly the nicest thing that one conservative judge can say to another.

It might be surprising to hear, but these clashes are not isolated incidents. They are evidence of a growing trend: Today’s criminal justice docket is bringing out all sorts of divisions among right-of-center jurists. If you want to understand some of the biggest constitutional battles of our time—from the fight over the Fourth Amendment right to be free from unreasonable searches and seizures to the showdown over qualified immunity for cops—you need to pay heed to what’s happening in the fractious world of Republican-appointed federal judges.

‘The Constitution of the Founders’ Design’

Criminal justice reformers were cautiously optimistic in January 2017 at the news that President Donald Trump had picked Neil Gorsuch to fill a vacancy on the U.S. Supreme Court. Of the 21 names on Trump’s SCOTUS shortlist, Gorsuch, who was then a judge on the U.S. Court of Appeals for the 10th Circuit, had one of the more promising records in criminal cases. As investigative journalist (and former Reason writer) Radley Balko put it, Gorsuch’s rulings on the Fourth Amendment were “encouraging, particularly for a nominee from a president with Trump’s blustery law-and-order rhetoric.”

Especially heartening was Gorsuch’s 2016 dissent in United States v. Carloss. The case centered on whether police officers had the “implied consent” to enter private property for a warrantless “knock and talk” on a homeowner’s front porch even though the homeowner had placed multiple “No Trespassing” signs around the property and even on the front door. The majority opinion, authored by Judge David Ebel, an appointee of President Ronald Reagan, sided squarely with the cops. “Under the circumstances presented here,” Ebel wrote, “those ‘No Trespassing’ signs would not have conveyed to an objective officer that he could not approach the house and knock on the front door seeking to have a consensual conversation with the occupants.”

Gorsuch practically reeled in disbelief. Under the majority’s flawed theory of the Fourth Amendment, he marveled, “a homeowner may post as many No Trespassing signs as she wishes. She might add a wall or a medieval-style moat, too. Maybe razor wire and battlements and mantraps besides. Even that isn’t enough to revoke the state’s right to enter.” As Gorsuch dryly observed, “this line of reasoning seems to me difficult to reconcile with the Constitution of the founders’ design.”

Gorsuch’s embrace of the Founders’ Fourth Amendment would soon make waves at the Supreme Court. Consider the January 2018 oral arguments in Byrd v. United States. That case had arisen four years earlier when a woman named Natasha Reed rented a car and allowed her fiancé, Terrence Byrd, to drive it in violation of her rental contract, which listed her as the sole authorized driver. When the state police stopped Byrd for a minor traffic infraction, the officer searched the trunk and discovered heroin and several flak jackets. Byrd wanted the courts to throw that evidence out as the fruits of an illegal search.

Here’s how the question was presented to the Supreme Court: “The Fourth Amendment protects people from suspicionless searches of places and effects in which they have a reasonable expectation of privacy. Does a driver in sole possession of a rental vehicle reasonably expect privacy in the vehicle where he has the renter’s permission to drive the vehicle but is not listed as an authorized driver on the rental agreement?”

During the oral arguments, Gorsuch told Byrd’s lawyer, Robert Loeb, that there was a property rights theory “on which you might prevail.” That theory, “essentially as I understand it,” Gorsuch said, is “that possession is good title against everybody except for people with superior title.”

“We think the property interest here, the right that Mr. Byrd would have had to bring a trespass action, demands a recognition of his right to invoke the Fourth Amendment,” Loeb replied.

In other words, Byrd had “possession” of the car under common law principles. If, while he was driving it, somebody else tried to break in and steal it from him, Byrd would have a common law right “to bring a trespass action” against that would-be thief. In this case, the trespasser was the state police officer, who, absent probable cause, had no authority to search the trunk.

Alito promptly spoke up in objection. “The problem with going down this property route is that we go off in search of a type of case that almost never arose—if it ever did arise—at common law, where an unauthorized sub-bailee brings an action for trespass to chattel against a law enforcement officer. When would that ever have happened in 18th century America? Never.”

Loeb pushed back on Alito’s characterization. “It’s your right to bring a trespass action against a stranger,” he told Alito. “The fact that you can exclude a stranger and bring a trespass action against him is what supports your property right under the Constitution.”

A few minutes later, Alito tried to poke another hole in the property rights theory that Gorsuch had seemingly endorsed.

“The Constitution uses the word property numerous times,” Alito told Loeb, “but the word property doesn’t appear in the Fourth Amendment. It talks about effects, which are defined by Samuel Johnson’s dictionary as goods or movables. So is it your argument that any property interest whatsoever falls within the definition of effects if we are going to go back to an originalist interpretation of the Fourth Amendment?”

“I think if the common law recognizes your right,” Loeb replied, “then both under the common law and common sense, that it makes sense to recognize a right to invoke a Fourth Amendment right.”

Gorsuch remained quiet during those exchanges between Alito and Loeb. But he spoke up again during the second half of the oral arguments, when Assistant to the Attorney General Eric Feigin was presenting the government’s side of the case by arguing that Byrd, “like other unauthorized drivers, simply has no connection to the car at all.”

“Mr. Feigin, you keep saying that,” Gorsuch responded, “but as a matter of property law, now and forever, a possessor would have a right to exclude other people but for those with better title. So someone in this position would have a right, I think you’d agree, to exclude someone who’s attempting to get in the car to hijack it, carjack it. You’d also have a right to throw out a hitchhiker who had overstayed his welcome. I think you’re having to argue that the government has a special license that doesn’t exist for any other stranger to the car.”

When Feigin tried to reject that description of the government’s position, Gorsuch pressed: “Do you agree that Mr. Byrd could have excluded a carjacker?”

“I think by virtue of simply being in the car, he probably could have fended off a carjacker, and we wouldn’t oppose his right to do so,” Feigin answered.

“By virtue of his possession he would have a right to do so,” Gorsuch corrected him. “And he would have a right to throw out a hitchhiker as well. So why not the government?”

In sum, Gorsuch was pushing a property rights theory of the Fourth Amendment that, if adopted by the Supreme Court, would cause law enforcement to lose this case and a great many others. (Byrd ultimately prevailed on more limited grounds.) Alito, recognizing the threat to his own narrower vision of what the amendment means, launched a counterattack.

It was a preview of things to come.

‘A More Traditional Fourth Amendment Approach’

In June 2018, the Supreme Court decided one of its biggest Fourth Amendment cases in decades. Carpenter v. United States originated when the FBI, acting without a search warrant, obtained the cellphone records of a suspected armed robber named Timothy Carpenter. With those records, which were obtained from his service provider, law enforcement officials identified the cell towers that had handled his calls and proceeded to trace back his whereabouts during the time periods in which his alleged crimes were committed. That information was used against Carpenter at trial.

The central issue before the Supreme Court was whether Carpenter had a “reasonable expectation of privacy” in the information contained in those records, or whether he had forfeited such privacy protections by voluntarily sharing information about his whereabouts with his cellular service provider. As the Supreme Court put it in United States v. Miller (1976) and Smith v. Maryland (1979), “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

It was impossible to miss the broader implications that the case held for the civil liberties of all Americans. If the government can snoop around in your cellphone records without a warrant, what’s left of the Fourth Amendment’s protection against warrantless government searches?

The Court ultimately ruled 5–4 for the civil liberties side. “A person does not surrender all Fourth Amendment protection by venturing into the public sphere,” declared Chief Justice Roberts’ majority opinion. “We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information.”

The four Carpenter dissenters assembled in two separate camps. The first was comprised of Justices Thomas, Alito, and Anthony Kennedy. “The Court’s stark departure from relevant Fourth Amendment precedents and principles,” they objected, “places undue restrictions on the lawful and necessary enforcement powers exercised not only by the Federal Government, but also by law enforcement in every State and locality throughout the Nation.” In their view, the Court should have followed its precedents in Miller and Smith and held that “individuals have no Fourth Amendment interests in business records which are possessed, owned, and controlled by a third party.” Cellphone records, they insisted, “are no different from the many other kinds of business records the Government has a lawful right to obtain by compulsory process.”

Gorsuch occupied a camp that was uniquely his own. In fact, his solo dissent hardly seemed like a dissent at all. He clearly thought Carpenter deserved to win. He just disagreed with the majority about precisely how that win should have happened.

“I would look to a more traditional Fourth Amendment approach,” Gorsuch wrote. “The Fourth Amendment protects ‘the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.’ True to those words and their original understanding, the traditional approach asked if a house, paper or effect was yours under law. No more was needed to trigger the Fourth Amendment.” Furthermore, he continued, “it seems to me entirely possible a person’s cell-site data could qualify as his papers or effects under existing law.”

“I cannot fault” the majority “for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed, I agree with that,” Gorsuch added. “At the same time, I do not agree with the Court’s decision today to keep Smith and Miller on life support.” Put differently, Gorsuch wanted to scrap those third-party precedents and have the Court adhere instead to an originalist, property rights–based theory of the Fourth Amendment.

It was a far cry from the Kennedy-Thomas-Alito objection to placing “undue restrictions” on the powers of law enforcement. Indeed, if a majority of the Court had listened to Gorsuch, the cops would now be wearing even heavier Fourth Amendment shackles. Perhaps next time they will.

‘Qualified Immunity Smacks of Unqualified Impunity’

Similar fights over the powers of law enforcement are breaking out among Republican appointees on the lower courts. Take the question of whether it should be a crime to record the police in public. In American Civil Liberties Union of Illinois v. Alvarez (2012), the U.S. Court of Appeals for the 7th Circuit confronted an Illinois eavesdropping statute that made it a felony offense, punishable by up to 15 years in prison, to record “all or any part of any conversation” without first receiving the consent of all parties to that conversation.

The ACLU of Illinois had a big problem with that. The organization had recently formed a Chicago-area “police accountability project” that, among other things, recorded police officers without their consent while those officers went about their official duties. To prevent both its operatives and the average camera-toting citizen from being prosecuted as felons, the state ACLU filed suit in federal court against Cook County State’s Attorney Anita Alvarez, seeking an injunction that would bar her from enforcing the eavesdropping law against individuals whose only “crime” was recording the cops.

Alvarez fought the injunction tooth and nail. In the words of 7th Circuit Judge Diane Sykes, an appointee of President George W. Bush, Alvarez “has staked out an extreme position. She contends that openly recording what police officers say while performing their duties in traditional public fora—streets, sidewalks, plazas, and parks—is wholly unprotected by the First Amendment.”

Sykes rejected that view and issued the injunction. “Any way you look at it,” she said, “the eavesdropping statute burdens speech and press rights and is subject to heightened First Amendment scrutiny.”

Writing in dissent, Judge Richard Posner, a Reagan appointee, faulted Sykes for both misinterpreting the Constitution and obstructing police work. “The constitutional right that the majority creates,” he reproached, “is likely to impair the ability of police both to extract information relevant to police duties and to communicate effectively with persons whom they speak with in the line of duty.” Several federal courts have since followed Sykes’ lead, though the issue still remains unsettled in others.

And then there’s the ongoing debate over qualified immunity, a legal doctrine that generally shields police officers from being sued when they violate citizens’ constitutional rights while on the job. According to the Supreme Court’s controversial decision in Harlow v. Fitzgerald (1982), government officials are entitled to immunity from civil suits so long as the conduct that they’re being sued over “does not violate clearly established statutory or constitutional rights.”

What that means in practice, quipped Judge Don Willett, a Trump appointee who sits on the U.S. Court of Appeals for the 5th Circuit, is that “public officials [may] duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.” As Willett put it, “qualified immunity smacks of unqualified impunity.”

To say the least, that is not a unanimous opinion on the 5th Circuit. In fact, Willett’s stance has placed him in direct conflict with two of his fellow Trump appointees on that very court. Their simmering dispute finally exploded into the open in Cole v. Hunter (2019), a case that centered on a family’s lawsuit over the police shooting of their mentally disturbed 17-year-old son.

In a dissent, Willett conceded that the officers were entitled to qualified immunity under controlling Supreme Court precedent. He then took aim at the precedent itself, faulting SCOTUS for formalizing “a rights-remedies gap through which untold constitutional violations slip unchecked.” According to Willett, “the real-world functioning of modern immunity practice—essentially ‘heads government wins, tails plaintiffs lose’—leaves many victims violated but not vindicated.” He left little doubt that if he were a member of the Supreme Court, he would get busy setting things straight.

Judges James Ho and Andrew Oldham wrote separately for the purpose of lambasting their fellow Trump appointee. “Some have criticized the doctrine of qualified immunity as ahistorical and contrary to the Founders’ Constitution,” Ho and Oldham wrote in a joint dissent, citing Willett and other critics of the doctrine. “As originalists, we welcome the discussion,” they continued. But “a principled commitment to originalism provides no basis for subjecting these officers to trial.”

According to Ho and Oldham, Willett’s “one-sided approach” is entirely too hostile toward cops. “Originalism for plaintiffs, but not for police officers,” they lectured Willett, “is not principled judging.”

Willett replied in a footnote. “As for the sidelong critique of me in the dissenting opinion of Judges Ho and Oldham,” he wrote, “it is, respectfully, a pyromaniac in a field of straw men.” As Willett pointed out, to call for the Supreme Court to revisit this particular doctrine is hardly an anti-originalist heresy. “Justice Thomas—no ‘halfway originalist’—has done the same,” Willett retorted. He also doubled down on his critique: “My concerns, repeated today, are doctrinal, procedural, and pragmatic in nature.” Qualified immunity, Willett stressed, “should be rethought.”

The fighting over qualified immunity is only going to get fiercer in the federal courts in the coming years. And that’s just looking at the Trump appointees.

Pundits often speak of the judiciary in terms of liberal or conservative judges issuing liberal or conservative opinions. The reality is far more complicated—and interesting. As the growing divide among “conservative” judges in criminal justice cases makes clear, such labels frequently obscure more than they reveal.