SCOTUS News Special! Article III, and Cell-Site Records

SCOTUS released opinions this past Friday in six more cases.

Two of the cases, Cox v. US and Dalmazzi v. US, were dismissed as improvidently granted. That is because in Ortiz v. US, the Supreme Court affirms the lower court. The issues in all three cases are similar, so let’s start off with Ortiz v. US.


Ortiz v. US

Ortiz had argued that the appointment of a judge in his military court-martial was unlawful. He had several reasons for these claims, but SCOTUS does not agree with any of them. The Court affirms the lower courts, and in so doing upholds their jurisdiction to hear appeals like Ortiz’s, and like Cox and Dalmazzi.

To start with, SCOTUS rejects the notion that they lack jurisdiction over hearing appeals from military courts because they’re a civilian court. Ortiz and other amici tried to argue that military courts are not Article III courts, and so do not have the same appellate review structure. But military courts “are bound, like any court, by the fundamental principles of law and the duty to adjudicate cases without partiality.” Writing for the majority, Justice Kagan references nothing less than Marbury v. Madison to point out that SCOTUS does have the power to try appeals from lower courts (state courts, territorial courts, D.C. courts) that are not Article III courts.

Ortiz also tried to claim that his judge was not authorized to be on one of the military appeals courts because the judge was a military officer. Kagan explains that when the Secretary of Defense appoints a judge, this appointment is authorized by law even without Presidential approval. The President later ratified the appointment, and this ratification served as retroactive authorization of the judge’s appointment, rather than Ortiz’s claim that the President’s action only works prospectively.

In addition, as with Lucia v. SEC, the Appointments Clause is also relevant to this case. Ortiz tried to argue that the judge in his case could not serve simultaneously on two different courts. The SCOTUS majority writes that the Appointments Clause does not bar dual service.

Justice Thomas writes a separate concurrence, with a few additional tidbits of constitutional context. Because the court that heard Ortiz’s case reviews court-martial decisions after executive branch review ends, review of the military court’s decisions by SCOTUS does not conflict with Article III principles.

Alito, with Gorsuch (Dissenting)

Alito’s argument is similar to the argument brought by Ortiz: namely, that military courts are executive branch entities, and not Article III courts. “Courts-martial … have always been understood to be Executive Branch entities that help the President … to discipline the Armed Forces.” And because the military courts are executive branch entities, then the Supreme Court should not intervene to resolve this case.


Currier v. Virginia

Moving on, we get to a criminal procedure case. The government indicted Currier on burglary and larceny charges, as well as a felon-in-possession of a firearm charge due to previous convictions. Currier wished to try his felon-in-possession charge separately, because of fears it would bias the jury in his burglary and larceny case. The prosecution agreed, and his charges were severed. Ultimately, Currier was acquitted of the burglary and larceny charges, but the felon-in-possession charge remained. Currier attempted to argue that, due to his acquittal for the earlier charges, trying him for felon-in-possession amounted to double jeopardy. The District Court and the Supreme Court of Virginia disagreed with this logic.

SCOTUS affirms these lower courts. A separate trial of a severed charge does not count as double jeopardy. Currier consented to the severance. This consent is crucial, because Currier could have chosen to proceed with his trial differently. In the words of Gorsuch, who writes for the majority, “difficult strategic choices … are not the same as no choice.” The choice to sever his charges disqualifies Currier from a double jeopardy claim.

Justice Kennedy writes separately, only to state that Parts I and II of the majority opinion should suffice. He thus does not join Part III, in which Gorsuch confronts the differences between the reuse of evidence and facts in criminal cases, versus their reuse in civil cases.

Ginsburg, with Breyer, Sotomayor, and Kagan (Dissenting)

The dissent argues that because Currier was acquitted of the burglary and larceny charges, the felon-in-possession charge cannot stand. Citing precedent, Justice Ginsburg writes that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” The jury concluded that Currier was innocent of the other crimes, which means the factual record cannot support a felon-in-possession charge, either. “Issue preclusion bars … trials … in which the prosecution rests its case on a theory of liability a jury earlier rejected.”

In addition, Virginia automatically severs a felon-in-possession charge, which means Currier did not really have the freedom of choice described by Gorsuch and the majority.


WesternGeco LLC v. ION Geophysical Corp.

A dispute arose over whether assembling a patented device overseas still qualifies as patent infringement. ION used US-manufactured components to build a device similar to WesternGeco’s patented device, but ION assembled these mimicked devices overseas. The statute WesternGeco used as a basis for their infringement claim regulates domestic supplying of components. This is important, because these components, despite being shipped overseas, still fall within the confines of the relevant patent statute.

But the reason this case came to SCOTUS wasn’t because of any serious disagreement about ION’s patent infringement. The Federal Circuit already held as much. Instead, the disagreement before SCOTUS deals with whether WesternGeco can recover lost foreign profits. Thomas writes for the 7-2 majority, holding that companies can recover these lost foreign profts. “Under the Patent Act, a company can be liable for patent infringement if it ships components of a patented invention overseas to be assembled there.” The components ION used were manufactured in the US, which makes this case a “permissible domestic application” of the statute, “even if other conduct occurred abroad.”

Gorsuch, with Breyer (Dissenting)

The unusual dissenting pair of Gorsuch and Breyer disagree with the extraterritorial application of the patent statute. In their view, profits lost abroad cannot be recovered. Stated simply, “a U.S. patent provides a lawful monopoly … within this country only.”


Carpenter v. US

Carpenter was convicted of multiple robberies due in part to cell-site records obtained from his wireless carrier by FBI investigators. Carpenter argued that the government violated his Fourth Amendment rights by obtaining these cell-site records without probable cause warrants. Carpenter argued this before the Sixth Circuit as well, but the Sixth Circuit affirmed the denial of this motion, holding that no reasonable expectation of privacy exists because he is responsible for sharing his location information with wireless carriers, who in turn shared it with the FBI.

SCOTUS reverses the Sixth Circuit. The Fourth Amendment “seeks to secure the privacies of life against arbitrary power.” The courts have to keep that in mind “when applying the Fourth Amendment to innovations in surveillance tools.” Many of the Court’s precedents recognize that people have a reasonable expectation of privacy in their movements. If the government can access individuals’ cell-site records, however, that privacy disappears. Cell phones are ubiquitous. Cell-site records are also ubiquitous. If the government can easily track cell-site records, then, it “achieves near perfect surveillance” of an individual. “Mapping a cell phone’s location … provides an all-encompassing record of the holder’s whereabouts.” And this record is too much to allow government access with only a subpoena. A warrant is required.


Each of the dissenters – Kennedy, Thomas, Alito, and Gorsuch – wrote a separate dissent, joined here and there by one or two of the other three. The main thread running through each dissent begins with a philosophical difference of opinion on the nature of cell-site records. The five members of the majority, led by Chief Justice Roberts, find a more intimate connection between cell-site records and the individuals those records track. The four dissenters, meanwhile, write to say that cell-site records qualify as “business records” held by wireless carriers. For this reason, these records can be subpoenaed by the government under the Stored Communications Act.

Kennedy, joined by Thomas and Alito, writes that wireless customers don’t own their cell-site records. They are business records, owned by the wireless carriers. In addition, “a person’s movements are not particularly private.” Thomas writes a lengthy solo concurrence that agrees with these same points. After providing a detailed history of subpoenas and how they differ from warrants, Alito comes to agreement with the opinions expressed by Kennedy and Thomas. In addition, Alito interprets the majority holding as authorizing a defendant to object to the search of a third party, which threatens the meaning of the Fourth Amendment.

Gorsuch strikes a different tone with his dissent. He calls for a re-examination of the third-party doctrine established in precedents set some decades ago. “People often do reasonably expect that information they entrust to third parties, especially information subject to confidentiality agreements, will be kept private.” In this way, Gorsuch seems well aligned with the majority. He writes about compacts that exist throughout society wherein a third party is entrusted with someone’s property or information with an expectation it won’t be shared. Despite this position, Gorsuch does not join the majority. There are too many ambiguities in the previous precedents cited by the majority. Gorsuch proposes an alternate solution: revert to the property-based understanding of the Fourth Amendment that prevailed for most of two hundred years. The property-focused state of the Fourth Amendment can very easily and naturally extend to the protection of personal data such as cell-site records.


The FantasySCOTUS Crowd

The Crowd has recovered well from last week’s batch of opinions. They bat a thousand on these four opinions. Though Justice Accuracy remains low, it’s very clear on closer inspection that the Crowd knows how to anticipate the score in these late-term cases. Both Currier and Carpenter are instructive.

currier virginia

Currier v. Virginia

Currier shows weak probability of the four liberal Justices voting “affirm”. Meanwhile, in Carpenter, the Crowd no doubt paid close attention to Chief Justice Roberts’ exasperation with counsel during oral argument. They had little trouble sussing out that he was the least likely of the right-leaning Justices to side with the government.

carpenter united states us fourth amendment search seizure subpoena

Carpenter v. United States

And despite dissenting, Gorsuch also lays out in that very dissent the road by which he might have joined the majority.

It’s official. Today marks the end of the Supreme Court Term. There are five cases left for us to give a closer look to. Look for that post this Friday morning. In the coming weeks, we will announce this year’s winners of FantasySCOTUS. Be sure to check back here, and follow @LexPredict on Twitter, for more.

Comments are closed, but trackbacks and pingbacks are open.