The Drone Memos Are Out and Say Nothing

An op-ed by Noah Feldman. Finally, after intense negotiation between the Barack Obama administration and senators including drone-strike stalwart Rand Paul, the government released the much discussed memo justifying the killing of Anwar al-Awlaki, which was written by David Barron when he was the acting head of the Office of Legal Counsel. And the revelation is … nothing, or near enough to it. The reason isn’t that the memo is benign. It’s that it’s crucially incomplete. The administration redacted the important passages of the memo referring to Awlaki’s due process rights as a U.S. citizen. And it referred to another memo, also by Barron, that dealt with the constitutional issues. That memo is — you guessed it — still secret.

“Specious unanimity” in two blockbuster cases.

An op-ed by Laurence H. Tribe. We know, or at least think we know, how Supreme Court terms are supposed to end: with a string of high-profile, divided decisions. That’s certainly what happened last term. Ten of the court’s final 12 decisions of the term featured dissenting opinions—including 5–4 decisions (along what some describe as “party lines”) about gay marriage, the Voting Rights Act, and employment discrimination. This term, however, something very different is happening. With only two cases remaining to be handed down, a trend has already appeared: This is the term for high-profile unanimous decisions.

The court should protect privacy even when the public doesn’t value it

An op-ed by Laurence H. Tribe. …Wednesday’s decision—remarkable in its unanimity—was only superficially about cellphones. As Chief Justice John Roberts said, the term cellphone is “itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone.” He added, “They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”

Supreme Court bans warrantless cellphone searches

The Supreme Court, offering a sweeping endorsement of Americans’ right to digital privacy, unanimously declared Wednesday that police must obtain a warrant before searching a suspect’s cellphone….“This is a very clear ruling about cellphone searches incident to an arrest. I would not extrapolate from it,” said Charles Fried, a Harvard law professor who served as solicitor general under President Reagan. Fried pointed to a separate concurring opinion written by Justice Samuel A. Alito Jr., who invites Congress to weigh in and enact legislation that draws “reasonable distinctions based on categories of information.” “Alito generally has been rather skeptical about honoring the concerns of the privacy Taliban,” Fried said.

EPA Gets A Win From Supreme Court On Global Warming Emissions — Mostly

The U.S. Supreme Court gave the Environmental Protection Agency the green light to regulate greenhouse gases that are emitted from new and modified utility plants and factories on Monday…”This was kind of reminiscent of Macbeth’s final soliloquy — a lot of sound and fury signifying nothing,” said Harvard Law professor Richard Lazarus, who specializes in environmental law. “The EPA’s authority and ability to use the Clean Air Act to address climate change is essentially unchanged after today.”

Clean Air Versus Clean Law

em>An op-ed by Noah Feldman. In a decision that was a legal defeat for the Barack Obama administration but may well be a practical victory, the U.S. Supreme Court’s conservative justices voted 5-4 to block the Environmental Protection Agency from a creative-yet-practical interpretation of the Clean Air Act that would have let the EPA significantly increase its regulation of greenhouse gases. In an opinion by Justice Antonin Scalia, the conservatives nevertheless threw the EPA a bone, allowing regulation of greenhouse gases from plants that already emitted significant other pollutants.

Poison Pill Hidden in the EPA Ruling

An op-ed by Cass R. Sunstein. Yesterday’s U.S. Supreme Court decision involving the Environmental Protection Agency’s authority to regulate greenhouse gases was generally a big victory for the Barack Obama administration. But the court’s opinion contains a poison pill, one that lawyers will undoubtedly invoke in future cases involving the Affordable Care Act. While the decision, written by Justice Antonin Scalia, largely upheld the EPA’s authority, it invalidated the agency’s decision to exempt small emitters and thus “tailor” its greenhouse-gas regulations to allow greater flexibility. The text of the Clean Air Act seems to prohibit the EPA from creating such exemptions, but there are millions of small emitters, and the EPA invoked the idea of “administrative necessity” to exempt them.

Justices Uphold Emission Limits on Big Industry

In a big win for environmentalists, the Supreme Court on Monday effectively endorsed the Obama administration’s efforts to regulate greenhouse gas emissions from sources like power plants, even as it criticized what it called the administration’s overreaching…The decision, said Richard J. Lazarus, a law professor at Harvard, “gave the agency a tongue-lashing and suggested the potential for some significant limitations on how the agency chooses to exercise its authority in the future.”… That statement was “a warning shot,” said Jody Freeman, a law professor at Harvard. “It suggests that the courts will look skeptically at assertions of authority that are very new and very far-reaching.”

Supreme Court Rifts Nothing New, Law Scholar Says

The U.S. Supreme Court has always been riven and 5-4 rulings under Chief Justice John G. Roberts on issues including prayers at government meetings and federal recognition of same-sex marriage isn’t a new phenomenon, high-court scholar Laurence Tribe said in an interview. Roberts’s predecessors heading the court managed to persuade their colleagues more often to hide those divisions, Tribe said in a Bloomberg Radio interview today. Tribe is a Harvard University law professor and author of “Uncertain Justice,” a book examining the work of the court under Roberts.

The Virtues of Uncertainty

Picking up a book entitled Uncertain Justice: The Roberts Court and the Constitution, it is reasonable to assume that the book is critical: the title promises to damn the Court as not reliable in delivering justice, or, at the very least, as a little wobbly and tentative when it does justice. It’s a tantalizing title, since there is nothing more appealing to legal pundits (and by extension book publishers) than a scathing critique of a court that has lost its way. The fact that one of the authors, Professor Laurence Tribe of Harvard Law School, is among the nation’s most celebrated legal scholars raises the stakes that much more.