FIRST ONE @ ONE FIRST

The Pragmatics of Informational Privacy

Posted in Case Reports by Mike Sacks on October 5, 2010

The take-home from this morning’s oral arguments in NASA v. Nelson was simple: when the conservatives don’t buy into the right you’re asserting and your two most likely proponents can’t agree on how to agree with you, then you’re in trouble.

The issue was whether the Ninth Circuit erred in granting 28 employees of the Jet Propulsion Lab in Pasadena, CA, an injunction, based on a right to “informational privacy,” against the government’s use of open-ended questions as well as queries about drug treatment histories on standard background check forms introduced in 2005.

In the early minutes of oral argument it was apparent that both Justices Sonia Sotomayor and Ruth Bader Ginsburg were searching for ways to convince their colleagues to uphold the injunction.  Problem was, they clashed over strategy.

Sotomayor was the first to interrupt Acting Solicitor General Neal Katyal’s argument with a broad, aggressive attack on the government’s policy.

“Could you ask somebody, what’s your genetic makeup, because we don’t want people with a gene that is predisposed to cancer?” Sotomayor inquired.  When Katyal tried to duck the question, she cut to the point: “So what you are saying is, there is no limit?”

Before Katyal could wriggle out of reluctantly agreeing with Sotomayor, Ginsburg jumped in.  Having served with the boys on the bench much longer than Sotomayor, she thought a narrower approach necessary to win their votes.

“The only thing that’s in contention there is the question about treatment or counseling.  Nothing else.  So why are we talking about the universe of questions that might be asked?”  It was as if Ginsburg was telling Sotomayor to tone it down for fear of losing the Court’s right flank.

But the conservatives weren’t interested in narrowness or broadness.  Not yet.  They wanted to know a little more about this right of “informational privacy” thing.

Almost two decades ago, Justice Anthony M. Kennedy, the erstwhile savior of unenumerated privacy rights, famously wrote that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”  This morning, however, Kennedy found the JPL employees’ asserted right to informational privacy troublingly “ill-defined or undefined.”

Kennedy’s comment triggered a series of queries to Katyal, who was unwilling, to the frustration of Justices Antonin Scalia and Samuel A. Alito, to confirm or deny whether such a right exists.

So leave it up to Chief Justice John G. Roberts to successfully execute the bait and switch.  With a friendly voice, he asked if the challenged questions about a history of drug counseling were required for the good of the employee.  Katyal squarely answered in the affirmative, as if he was answering his former boss, Justice Stephen G. Breyer, who appeared this morning entirely sympathetic to such progressive paternalism.  Big mistake.

“Whenever the government comes and says, ‘This is for your own good,’ you have to be a little suspicious,” said Roberts, eliciting reflexive laughter from the entire courtroom.

And with that comment, Scalia was left behind derisively grumbling about substantive due process as Alito and Kennedy joined Roberts in attacking on pragmatic grounds half of the Ninth Circuit’s injunction.

If during Katyal’s argument a consensus emerged against the government’s drug counseling history questions, then Pasadena lawyer Dan Stormer’s argument established a majority’s approval of the similarly enjoined open-ended questions.

Stormer maintained that these questions were inappropriate for low-level employees such as snack bar workers or bus drivers who perform no sensitive activities at JPL.

But what if a snack bar worker “has a big sign on his lawn that says, ‘I hope the space shuttle blows up?’” asked Alito in one of his signature absurd hypotheticals.  When Stormer conceded that the government should know that information, Alito shot back.  If open-ended questions are forbidden, he asked, then how does the government get at that information?

“Do you have to have a specific question on the form?” wondered Alito.  One that, say, specifically asks, “Does this individual have a big sign on his front lawn that says, ‘I hope the space shuttle blows up?’”

Alito’s point was as funny as it was devastating.

Vox Populi: October Rain

Posted in Case Reports, Vox Populi by Mike Sacks on October 5, 2010

I opened my front door this dark morning to a chilly gust of autumn air spitting rain in my face.  “Don’t make a habit of this, Justice Kagan,” I thought to myself.

Mother Nature has not seemed to take kindly to Elena Kagan’s milestones.  On the day of her confirmation vote, a ferocious thunderstorm crashed through Capitol Hill in the time the Senate took to open and close its voting.  Now, on the heels of Washington’s first glorious fall weekend, rainclouds insist on overseeing the entirety of Kagan’s debut week on the bench.

But Mother Nature is not the newest justice’s final arbiter.  As the dreary day broke on One First Street this morning, scores of umbrellas shielded men and women waiting for their opportunity to give Justice Kagan a more hospitable welcome than the elements afforded.

Of all those who showed up to witness the new justice’s historic first day of court, however, one man stood out.

“You’ve got to meet Graham,” said Ryan Malphurs, who arrived shortly before 4am.  A newly-minted Ph.D. in Communications, Malphurs has attended around 60 oral arguments since 2006, traveling from Texas each time, to conduct research for his dissertation on the justices’ power of persuasion at oral argument.  Back again to continue his work as he expands his dissertation into a book, Malphurs introduces his friend.

Graham Blackman-Harris, 44, is the ultimate Court-watcher.  Hailing from Jersey City, NJ, he made his first trip to the Court in 1990.

“I wanted to see Thurgood Marshall on the bench before he retired,” says Blackman-Harris of his first in-person encounter with the Court.  “He looked like a giant.”

Since then, he’s made all but two First Mondays in October.

Forget doctoral students, forget stunt-bloggers, forget lawyers: Blackman-Harris truly embodies the civic passion so evident among the Court’s most ardent followers.  A FedEx Operations Manager and self-professed C-SPAN junkie, he cites 1998’s Clinton v. City of New York as his favorite case because he had followed its issue—the constitutionality of the line-item veto—since the bill’s birth in the Senate.

“I’ve read the Constitution a bajillion times,” he says with a laugh.  “I love it.  Even the three-fifths part”—referring to the infamous clause writing slavery into the founding document—“because the 13th, 14th, and 15th Amendments corrected it.”

After his first trip to the Court, Blackman-Harris began his First Monday tradition in 1991 with the intention of seeing Justice Clarence Thomas’s debut.  The Anita Hill allegations, however, served to delay the Senate’s confirmation of Thomas until mid-October.  He has been luckier in later years, witnessing Justices Ginsburg, Breyer, Sotomayor, Kagan, and Chief Justice Roberts all make their first appearances.

Still, Justice Thomas occupies a large swath of Blackman-Harris’s highlight reel.

A year after Thomas joined the Court, the justice continued to face antagonism in the press.  Blackman-Harris, who, like Thomas, grew up quite close to his grandfather, wrote the justice a letter telling him to “keep his chin up.”

Thomas wrote back with a personal thank you note.  Since then, Blackman-Harris has written every other justice but never received anything more than a form letter in return.

“I don’t believe in a lot of the things Justice Thomas believes in,” says Blackman-Harris, “but I didn’t think it was fair” for the justice to get attacked for his conservative jurisprudence.  “The Constitution, that sweet document, entitles [Thomas] to his beliefs.”

And Blackman-Harris can count himself among the few lucky members of the public to have seen with his own eyes one of the few moments that Justice Thomas has expressed his beliefs in the form of a question during oral argument.

“The whole courtroom just went quiet,” he remembers.  That’s saying something for a place where library-silence is always maintained.

Indeed, he wishes that all Americans could witness moments like that.  To back up his belief, he has written additional rounds of letters to the justices urging them to televise their proceedings.

But it should be apparent by now that for Blackman-Harris, C-SPAN’s “America and the Courts” is simply not enough.  This year, he showed up on a crutch, hobbled by hip problems.  “I was going to crawl if I had to,” he says.

His commitment to his visits for First Mondays and landmark arguments runs deeper than mere interest.  For this man from Jersey, it’s personal.  “This is my Court!” he exclaims as we enter the building.

Graham Blackman-Harris, in his deep devotion to the American idea, proves how inconsequential everyday setbacks like injury or inclement weather really are to the success of the American spirit.  From the Founders scrapping the Articles of Confederation for the Constitution during a stiflingly hot Philadelphia summer to our first African-American President’s inauguration on a frostbitten Washington winter morning, we and our leaders push forward against the elements into each new chapter in our country’s history.

And judging by Justice Kagan’s performance today—poised, comfortable, and perfectly fluid in a bankruptcy case, no less—she and her audience need not regard a trifling turn in the weather as a bad omen for her decades of service to come.

First Monday!

Posted in Uncategorized by Mike Sacks on October 4, 2010

Arrived just before 4am on this chilly, rainy First Monday morning. Despite the elements, it feels good to be back. Five people in line so far, two of which have been sitting on the curb, huddled beneath umbrellas all night. This grizzled vet salutes them.

Two More Links

Posted in Weekend Reading by Mike Sacks on October 2, 2010

The the Christian Science Monitor and the ABA Journal have both published to the web the second of two pieces each I wrote for their latest issues.

From the Monitor’s October 4 issue, “What If Terry Jones Went to Sweden?“:

In America, we can paint a Hitler mustache on the president’s likeness without fear of the government’s wrath.  But in Jordan, a poem critical of the king can get a writer jailed.

The article is a quick and far-from-exhaustive global free speech survey to supplement Warren Richey’s cover story on free speech in America.  Richey’s piece is a great and timely read: it operates both in the wake of the Florida preacher’s Quran burning threats last month and in anticipation for the Court’s hearing arguments in Snyder v. Phelps this coming Wednesday.

From the ABA Journal’s October issue, “The Ultimate Field Trip“:

Hugo M. Pfaltz Jr. likes to say that in 12 years of appearing before the U.S. Supreme Court, he never failed to come through for the people he represented. “Each time my motion has been approved without dissent,” he says. Granted, Pfaltz does not appear before the justices to argue controversial matters of constitutional law. Instead, for the past dozen years he has closed a session of the Supreme Court by moving that a group of attorneys accompanying him be admitted to practice before its bar.

For this story, I joined the ABA’s Senior Lawyers Division annual Memorial Day trip to Washington, DC, to report on their getting sworn into the Supreme Court bar.  The several dozen lawyers in the group came from all over the country for a chance to stand before the justices, and it was my honor to highlight the experience.

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