1/ A smattering of thoughts on Justice Gorsuch's very engaging/intriguing separate opinion in #Carpenter. First, I'm not typically fond of his writing, but the first 11 pages or so are really worthwhile, ...
@OrinKerr @paulohm @WilliamBaude @NateWessler @isamuel @FirstMondaysFM
@OrinKerr @paulohm @WilliamBaude @NateWessler @isamuel @FirstMondaysFM
2/ ... in that they convey the confusion/disdain almost all students/newcomers sense when they first confront Smith/Miller and REP, and are very honest in reflecting how NG was striving to work though the problems w/o the constraints of dubious doctrines.
3/ I believe his tentative solution--Party X has 4A rights in data/papers conveyed to others if she "entrusted" those to the others and would have a legal right to enforce that "trust" (not requiring a property right, as I read it, but a contract right would do the trick, too)...
4/ ... would, if followed, be far broader than Roberts' more modest inroad into the 3d-party doctrine. And that's so even if the principle were narrowed to cover "only" cases in which the gov't "pries" the doc from the trusted person "without his consent" (p.4), i.e., ...
5/ ... to call it a "search" when the government *compels* the trusted party to disclose the data (e.g., Miller), but not when that person *voluntarily* breaches the trust by choosing to help the police (e.g., Smith, Hoffa). Even as so limited, NG's tentative test would be ...
6/ ... a much more comprehensive repudiation of the 3d-party doctrine than anything I've seen. Moreover, he'd also abandon the traditional subpoena doctrine even more than would Roberts! (p.18).
7/ BTW, is he right in assuming that "no one" thinks the gov't can simply subpoena the postmaster--or the recipients--for the letters in Jackson? I'd have assumed otherwise under traditional subpoena doctrine.
HOWEVER, NG (i) doesn't do the work to demonstrate his instinct ...
HOWEVER, NG (i) doesn't do the work to demonstrate his instinct ...
8/ ... that data about me--information--are "modern-day papers and effects"; and (ii) in the end he doesn't really have the courage of his (tentative) convictions, does he, because he says we "must be wary" of restricting the use of subpoenas for ordinary business records (why?).
9/ And then there's his disposition. He can't truly believe that Carpenter's lawyers "forfeited" his newfangled argument in a way that would preclude Justices from relying upon it. For one thing, @NateWessler *did* argue that Carpenter had a property right in the CPNI. And, ...
10/ ... more to the point, even a failure to argue wouldn't be a fatal forfeiture: After all, Gorsuch and Thomas write separately once a week or so to rely upon purportedly "originalist" and other arguments that the lower courts and parties did not even mention. Perhaps NG ...
11/ ... prefers to wait until he's had more time (and briefing/scholarship) to think through the ramifications of his argument, which is fine--but it's absurd to suggest that Carpenter's counsel tied his hands. end (for now, at least)
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