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WASHINGTON For months,the Supreme Court appeared to rise above partisan strife becoming a place where rancor could be quieted by compromise. But as is often the case at the nation's highest court, the justices saved their fireworks for the end.

With a string of unanimous or near-unanimous decisions, often decided on narrow grounds, the court's nine-month term that wrapped up last week initially upended expectations about how its new 6-3 conservative majority would handle pressing disputes about religious freedom,the Fourth Amendment and the Affordable Care Act.

Then, in its final two opinions, the court's six conservatives held together against its three liberals to impose curbs on the 1965 Voting Rights Act when voting access has become a political flashpointand opened a debate about whether campaign disclosure requirementscould be subjected tolegal challenges.

"The court managed to rise above the partisan divide this term until the last day," tweeted David Cole, national legal director at the American Civil Liberties Union.

As the U.S. Capitol remained surrounded by fences erected in response to the riot in January, the Supreme Court appeared to be going out of its way to avoid the kind of conservative-liberal, 6-3 splits liberals had warned about for monthsin fundraising emails. Forty-three percent ofthe term's cases were decided unanimously, according to statistics compiled by the SCOTUSblog website lower than the average over the past decade but higher than the past three years.

Before the rulings onvoting rights and charitable donordisclosureThursday, Chief Justice John Roberts "seems to have decided to try to keep the temperature down,"said Georgetown University law professor Paul Smith. "There does seem to be a divergence within the conservative six about how aggressively to rule on a number of issues."

Three liberals and four conservative justicesjoined together to thwart the latest challenge to the Affordable Care Act,deciding that the plaintiffs did not have standing to sue because they were not harmed by the law's requirements.A unanimous court allowed a Catholic foster care agency in Philadelphia to decline to screen same-sex foster parents on religious grounds.

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Other opinionsdefiedconventional wisdom about the court as conservatives and liberals teamed up in unusual splits. Associate Justice Amy ConeyBarrett wrote the majority opinion absolving a police officer from violating a 1986 anti-hacking law when he ran a license plate in exchange for cash an outcome that meant Americans wouldnt face federal criminal charges for fudging their profile on dating apps such as Tinder.

Barrett was joined by thethree liberals and two conservatives, Associate Justices Neil Gorsuch and Brett Kavanaugh.

The court reached many of its larger-than-expected majorities by crafting narrower-than-expected rulings at least on first blush.In the Philadelphia foster care decision, the court declined to give what many conservatives had sought: overturninga 1990 precedent that controls analysis ofmany religious freedom claims.

In a case involving a Pennsylvania high school cheerleader who sued over her punishment for a vulgar social media post, an 8-1 majority ruled that her school violated her First Amendment rights. But they punted on a much broader question about when and how far schools may go generally to regulate a students' off-campus speech.

That slow-go approachmay have been a result of Roberts' influence, Smith speculated, and a "desire not to have the court suddenly and immediately appear extreme" so soon after Barretts rapidconfirmation beforelast fall's election.

The dynamic changed last week when Associate Justice Samuel Alito, writing for a 6-3 majority, upheld an Arizona law that prohibited the third-party collection of mailed ballots, a practice critics call "ballot harvesting." Writing a dissent for the courts liberals, Associate Justice Elena Kagan called the outcome "tragic" and warned that it "lessens" the Voting Rights Act.

An amendment to the act approved by Congress and signed by President Ronald Reagan in 1982 allowed groups to challenge state election laws if they affect minority voters more than non-minorities. In Arizona, that impact was small too small, Alito wrote, to outweigh the states interest in preventing fraud at the polls. The Voting Rights Act provision at issue still stands, but the courts decision narrowed the circumstances under which voting rights groups may use it to sue.

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Alitos opinion thrust the court into a tense national debate over the issue of voting rights. After baseless claims that President Donald Trump lost last years election because of fraud, conservative states are tightening their voting laws, a shift that critics said is designed to suppress turnout among minorities who tend to vote for Democrats.

Earlier: Dissent by Justice Thomas in election case draws fire for revisiting baseless Trump fraud claims

In another opinion with potentially far-reaching implications, the courts six conservatives invalidated a California requirement that charities disclose their largest donors to state regulators. Though the circumstances are limited, the decision appeared to invite challenges to other disclosure requirements, including for political campaigns.

"This term was remarkably devoid of the sort of liberal activism that has characterized many recent terms," said Carrie Severino,president of the conservative Judicial Crisis Network. The court's rulings in the voting rights and disclosure cases, she said, "were capstones to a term that was characterized by adherence to the law and Constitution, thanks in part to the addition of Justice Barrett."

When Barrett joined the court in October after thedeath of Associate Justice Ruth Bader Ginsburg, many Democrats predicted she would drive the court to the right. But the formerappeals court judge and Notre Dame Law School professor's influence has so far proved more nuanced than some of those forecasts.

Barrett'sarrival changed the course of a series of emergency cases in which churches and synagogues challenged government COVID-19 restrictions, arguing that they violated the First Amendment by limiting the size of in-persongatheringspermitted to worship. When Ginsburg was on the court, those kind of decisions tended to side with public health officials. By the fall, they went instead for preachers and rabbis.

In other areas, Barrett joined Roberts and Kavanaugh inan alliance with liberals, drawing dissentfrom more conservative justices. In the Philadelphia foster care case, she urged a more middle-ground approach than Alito, Gorsuch and Associate Justice Clarence Thomas.

"She, too, seems to be trying avoid appearing aggressive and ultra-conservative," Smith said. "But, again, that may just be temporary."

Barrett, Kavanaugh and Roberts were the three justices in the majority the most during the term, according to the SCOTUSblog statistics. Barrett sided with Roberts in 76% of the term's decisions, according to the website. By comparison, she sided with liberal Associate Justice Sonia Sotomayor less than half the time.

Despite predictions that the new conservative super majority would undermine Roberts' power on the court,his influence throughout the term was clear.

"The chief justice remains successful atpushing for broaderunanimity and narrower opinions than people expect, as Fulton and the health care case show," saidJonathan Adler,a professor at Case Western Reserve School of Law.

Some have questioned how narrow the decisions have actually been.

In the Philadelphia case, the court declined to overturn its 1990 decision in Employment Division v.Smith, but itsostensibly narrow ruling left a lot of room for lawsuits that could underminethatprecedent in the long run.

Aziz Huq, a University of Chicago law professor, said that before the two big rulings last week, the term could be summed up as a period of consolidation and seed sowing, rather than a period of dramatic change. Instead of viewing the Philadelphia case as limited, Huq said he sees it as potentially a quite fruitful victory for religious liberty.

The court concluded that whenever there is a secular exception to a nondiscrimination law even if that exception isnt exercised it has to beanalyzedwith the highest level of constitutionalscrutiny. That could have huge implications for issues beyond the conflicts that arise between religious freedomand gay rights.

While it's true that nondiscrimination laws that protect LGBTQ individuals often don't have a discretionary element in them, thats just not true for many other laws, Huq said.

More: Supreme Court declines to hear Virginia school board's transgender bathroom case

In another example, the justices invalidated a California law that permitted labor unions limited time to organize workers on private farms. Roberts, leading the courts conservatives, said the law amounted to a taking that violated the Fifth Amendments prohibition on the government seizing property "without just compensation."

Writing for a 6-3 majority, Roberts insisted the opinion wouldnt have broader implications such as for government inspections at restaurants or power plants.Huq and others are skepticalRoberts' assurances will be the final word. They predict challenges will question whether similar situations amount to takings.

"The court has a section of the opinion where it says, Don't worry, this is not a slippery slope, and the world's not coming to an end, Huq said. It says, Heres all this stuff that's not covered, and you read it and think, but why?

Speculation about Associate Justice Stephen Breyer's retirement hung over the final weeks of the termas liberal groups ramped uppressure on the 82-year-old to step down so President Joe Biden canreplace him.

Senate Democrats have a tenuous majority in the Senate, which may prove hard to keep when next year's midterms roll around.

The final day of the term, when justicessometimes make their retirement plans known, came and went Thursday with no definitive word from the court. Breyer could announce his retirement whenever he pleases. Or he could decide to stay on.

'Apex of his career': Breyer exertshis influence despite retirement calls

As the most senior justice of the court's liberal wing,Breyer took the lead on some notable opinions this year. Breyer wrote for the majority turning away the latest challenge to the Affordable Care Act.Days later, he wrote the majority opinion siding with the cheerleader over her school in the First Amendment case.

Artemus Ward, a political scientist at Northern Illinois University, noted that Breyer appears to be at the apex of his influence and power. Maybe, Wardspeculated, Breyer is just not ready to retire.

SCOTUS upholds Affordable Care Act, rules against NCAA

The Supreme Court ruled on some big topics in 2021, including Obamacare, NCAA antitrust cases and religious adoption agencies denying LGBTQ parents.

Staff video, USA TODAY

When the court reconvenes in October, its docket hassome potential blockbuster cases.

The justices agreedto hear a challenge to New York'sgun licensing requirements that could expandprotections for carryingconcealedweapons in public, putting a major Second Amendment disputein front of the justices.

In May, the court announced it would take up a lawsuit againstMississippi's ban onmost abortions after 15 weeks of pregnancy,giving the court's conservative majority the chance to consider a direct test of the landmark Roe v. Wade decision.

And the high court decided Friday to hear a case from parents who want to use a state tuition program in Maine to pay for religious schools, the latest to question the extent to which a governmentmay impose restrictions that may conflict withreligious freedom.

Those polarizing issues, which will be decided months before the2022 midterm election, will probably offer far more insight into Barrett's influenceand the direction in which the court's bolstered conservative majority intends to go.

"If we ever start seeing split rulings from this court that definitively affirm the right to abortion, then it might be time to consider whether there is a moderate wing of this six-justice conservative majority. We are definitely not there," said Elizabeth Wydra, president of the liberal Constitutional Accountability Center.

"Thereal test," she said, "will likely come next term."

More:
Steady term of the Supreme Court ends with politically fraught cases that reveal divisions - USA TODAY

Last week, a major federal court ruling on privacy rights highlighted the flawed, police-centric way that we typically talk about public safety. In a divided decision, the Fourth Circuit Court of Appeals barred Baltimore police from using a new aerial surveillance program to indiscriminately target and track peoples movements. Analyzing data collected through the so-called spy plane program, the court said, counts as a search under the Fourth Amendment, and therefore requires police to obtain a warrant, just as when searching a home. Its a cutting-edge decision that comes as courts increasingly grapple with how the Fourth Amendments protections against police intrusions apply to new surveillance technology.

But the case is also important for the debate it sparked among the courts judges. In dissent, Judge J. Harvey Wilkinson III, a Reagan appointee, said that restricting police surveillance will tie the citys hands against a serious public safety crisis. He accused the majority of ignoring Baltimores high murder rate and said the ruling leaves only hopelessness for the good people of Baltimore, especially our dispossessed communities where rates of gun violence are highest.

Judge Roger Gregory, the first Black judge to ever serve on the Fourth Circuit, was having none of it. In response, he explained how this critique depends upon a certain premise: Policing ameliorates violence, and restraining police authority exacerbates it. As surely as water is wet, as where there is smoke there is fire, the dissent takes for granted that policing is the antidote to killing. Thus, the dissent repeatedly evokes the grief and trauma of gun deaths only in the name of a familiar cause: police and prisons.

The dissents rhetoric matches that of police chiefs clamoring for bigger budgets, particularly amid a one-year national jump in shootings. But the same assumptions are standard fare in reporting on crime and politics. Last week, for example, the New York Times equated calls for funding the police with treating public safety as a central political concern and adopting themes of public safety. The framing both reduces the concept of safety to narrow criminogenic terms (safety depends entirely on crime rates) and elevates punitive responses to crime and violence (more police, more arrests, and more incarceration) over policies that would invest in communities and promote overall health.

In his concurrence, Judge Gregory emphasized that such a blinkered view misunderstands the structural causes of violence and the futility of policing in addressing them. I am skeptical that [the dissents] logic genuinely respects and represents the humanity, dignity, and lived experience of those the dissent ventures to speak for, he wrote. Segregation effectively plundered Baltimores Black neighborhoodstransferring wealth, public resources, and investment to their white counterpartsand the consequences persist today. . . . So it is no coincidence that gun violence mostly occurs in the portions of the city that never recovered from state-sanctioned expropriation. Absent reinvestment, cycles of poverty and crime have proliferated.

Rather than reinvesting in dispossessed communities, Gregory wrote, the city over-polices them: Baltimore spends more on policing, per capita, than virtually any other comparable city in America, and in 2017, for example, a greater proportion of its general operating fund spending was allocated to policing than to education, transportation, and housing combined.

Gregorys opinion aligns with public health experts who have been calling for a more accurate and equitable conception of public safety, one that includes overall health and well-being and considers the damage that our systems of punishment inflict. Last month, anthropologist and physician Eric Reinhart argued in Health Affairs that redefining public safety to account for the harms of policing and incarceration rather than continuing to cede this influential discourse to reductive criminological terms is key for ensuring health, security, equality, and positive freedom for all U.S. residents.

As law professor John Pfaff wrote in The New Republic last week, our criminal legal system produces tremendous harm and immiseration, even death, not just for [incarcerated people] but for their families and communities. In a damning indictment of our fundamental indifference to the lives of the millions who come in contact with this system, we have no idea what the criminal legal systems actual humanitarian costs are, but they are surely staggering.

Even with incomplete information, we know that police killings are a leading cause of death for young Black men, and that police violence sends tens of thousands of people to the emergency room every year. We also know, as Reinhart writes, that jails and prisons inflict increased rates of chronic diseases that impose long-term medical needs and cost and reduce life expectancy. Even pretrial detention without a conviction, enforces persistent economic hardships and drives high rates of unemployment, homelessness, and food insecurity.

Beyond that, a growing body of researchwhat Reinhart calls carceral-community epidemiologyshows that incarceration spreads disease and increases mortality rates in surrounding communities, that our world-leading proclivity for incarceration, while disproportionately harmful to nonwhite people and dispossessed communities, is killing us all. Given their often poor conditions and porous nature, with high turnover and the constant churn of staff and visitors, jails and prisons are not like Vegas: What happens there does not stay there. Carceral institutions worldwide have long functioned as disease multipliers and epidemiological pumps for surrounding communities in relation to HIV, tuberculosis, hepatitis C, influenza, and other infectious diseases, Reinhart wrote.

This reality has been of acute importance throughout the pandemic. In May, Reinhart co-authored a study concluding that cycling individuals through Cook County Jail in March 2020 alone accounted for 13 percent of all COVID-19 cases and 21 percent of racial COVID-19 disparities in Chicago as of early August. Their analysis also showed that jail cycling is the strongest predictor of COVID-19 rates, considerably exceeding poverty, race, and population density.

Other research shows that sending more people to county jails leads to higher rates of premature community death. In February, a retrospective, longitudinal study in The Lancet examined cause-specific mortality at the county level in the U.S. over a 30-year period. It found a short-term association between county jail incarceration and mortality, with mortality due to infectious disease, chronic lower respiratory disease, substance use, and suicide as the strongest drivers. The study put the problem explicitly in public health terms, noting the risks of community-level exposure to high incarceration rates, as though the county jail was polluted water or a toxic waste site.

One of the studys authors, Sandhya Kajeepeta, a doctoral student in the Department of Epidemiology at Columbia University, told me that research framing public safety more broadly to include public health and long-term well-being really challenges our reliance on jails and prisons to keep people safe.

For Reinhart, the effort to reclaim and redefine the influential rhetoric of public safety must make clear that collective safety is best improved not by policing and prisons but rather by building robust public systems of carethat is, of economic security, environmental protections, labor rights, and housing.

Thats also the view of Leaders of a Beautiful Struggle, the grassroots advocacy organization that challenged the Baltimore surveillance program. Lawrence Grandpre, the groups director of research, wrote that their opposition to more surveillance was neither anti-police, nor born of indifference to gun violence. Instead, he wrote, we believe that safety is not simply the absence of violence, but the creation of conditions for human flourishing. Thus, we refuse the false . . . choice between community instability created by violent crime, with the community instability caused by mass incarceration, unaccountable policing, and the slow starving of our community institutions to feed a [half] billion-dollar police budget deemed to be the only investment our community needs.

Policing Is Not Public Safety

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Policing Is Not 'Public Safety' - The Appeal

Earlier this month, Adam Klein, the outgoing chair of the Privacy and Civil Liberties Oversight Board, took the unusual step of issuing a unilateral Chairmans White Paper on oversight of the Foreign Intelligence Surveillance Act, based on PCLOBs review of 19 FISA applications for electronic surveillance of U.S. persons in counterterrorism investigations. This is in itself notable, given how tightly restricted access to the applications underlying FISA surveillance has historically been. Until 2018, when a redacted version of the applications to monitor former Trump advisor Carter Page was declassified, the general public had never seen one. When an unprecedented deep-dive review of the Page applications by the Justice Departments Inspector General uncovered serious deficiencies in that process, this fact took on sudden salience: Nobody could be certain whether the problems were sui generis of a larger pattern of errors and omissions. Predictably, alas, Kleins discussion of the substantive contents of the applications PCLOB reviewed is largely redacted, but the report does offer some helpful procedural analysis and some welcome, but ultimately rather conservative, proposals for reform.

The Inspector Generals report on the Page FISA process had found fault with the Justice Departments vaunted Woods Procedures, designed to ensure that each factual claim in an application submitted to the Foreign Intelligence Surveillance Court has documentary support in the FBIs case file. The IG found not only mismatches between the applications and case file, or claims without documentary support butfar more troublingmaterial omissions of facts that weighed against the FBIs assessment that Page had acted as an agent of a foreign power. The most egregious of these occurred in the later renewal applications. Having satisfied the FISC that it had met its probable cause burden on this question in the initial application, the FBI seems to have shown little interest in revisiting whether that assessment remained tenable on the totality of the evidence as new information came in that contradicted or complicated its earlier understanding.

In response, as Klein notes, the Justice Department in mid-2020 began supplementing its accuracy reviews of a sample of applications with completeness reviewsof which it had completed 95 as of March 2021. While this represents only a fraction of the hundreds or (more often) thousands of FISA orders sought each year, it is nevertheless a nontrivial sample, and Klein observes that both the accuracy and completeness reviews absorb significant resources and person-hours. He reasonably suggests prioritizing for review applications targeting U.S. persons, and above those sought in cases designated as Sensitive Investigative Matters because they raise heightened civil liberties or separation of powers concernsbecause, for instance, they involve political actors, religious organizations, or the press. While this is hard to dispute as a general heuristic for allocating scarce resources, it does merit an asterisk: While much of the public discourse around FISA treats collection on U.S. person targets as the sole subject of concern, non-U.S. person FISA targets often communicate with U.S. persons, and the extent to which those communications have broader implications for domestic liberties or politics may not be readily apparent in advance of collection. One reason electronic surveillance is such a singularly intrusive tactic is that it inherently involves searching the communications of hundreds or thousands of (ex ante unknown) parties other than the specific target. Even if we are exclusively concerned about the privacy rights of U.S. citizens and permanent residentsitself a mistake if we understand privacy as a human rightthe status of the target is at best imperfectly correlated with those equities.

Klein also notes a gulf between the Inspector Generals assessment of the overall accuracy of FISA applications and that of the Justice Department. An audit by the IGs officeissued in March 2020 found some form of error in every application it reviewedand in some cases dozensconcluding that this deficiency in the FBIs efforts to support the factual statements in FISA applications through its Woods Procedures undermines the FBIs ability to achieve its scrupulously accurate standard for FISA applications. DOJ, however, countered in a filing with the FISA Court that many of these were trivial or even merely typographical errors, and that of the tiny number of material errors they were prepared to concede, none undermined the overall probable cause showing. Klein proposes, again sensibly, a schema for categorizing errors identified during review, ranging from the most seriousmisrepresentations or omissions of material information known to the government at the time the application was preparedto the presumably less urgent spelling errors and typos.

Most importantly, in my view, Klein urges reevaluation of the process by which FISA renewal applications are prepared. The most serious defects identified by the IG in the Carter Page applications came in the later renewals, which omitted numerous salient facts that weakened the FBIs case for classifying Page as a foreign agent. The Justice Department has itself acknowledged that the final two FISA applications targeting Page therefore lacked adequate predication as a result. This failure stemmed in part from DOJs process for reviewing renewal applications, which highlights the new information added in each iteration. While in principle renewals applications are supposed to be reviewed in their totality, in practice this appears to have led to minimal scrutiny of claims and conclusions already accepted by the FISC. Why waste time on what has already been thoroughly vetted? As Klein puts it: The structure of renewal applications may influence the cognitive process agents and lawyers undertake in preparing them. That may encourage the drafters to rest on the facts in the original application, rather than reconsidering the probable cause assessment in light of new developments.

We can add to Kleins analysis that the tendency toward confirmation bias in FISA renewals is likely to be exacerbated by an important distinction between the evidentiary standards applicable to foreign intelligence surveillance, as compared with the so-called Title III wiretaps employed in ordinary criminal investigations.When a Title III wiretap is sought, the purpose of surveillance and the showing required before an order can issuewhat we might call the success condition and the threshold conditionare reasonably tightly aligned. Barring unusual edge cases, Title III wiretaps that achieve their purpose (obtaining evidence of a crime for use in a subsequent prosecution) simultaneously reinforce their own predicates and provide additional grounds for reauthorization (probable cause to believe that surveillance will yield evidence of a crime that has been, is being, or will be committed). A Title III order that meets its success condition, in other words, will by definition satisfy the threshold condition for its own reauthorization, assuming additional evidence is deemed necessary before commencing prosecution.

In the case of FISA, however, the success condition and the threshold condition are not so tightly connected. The pool of U.S. persons whose communications might reasonably be deemed to contain foreign intelligence information under one of the five definitions delineated in 50 U.S.C. 1801(e) is almost certainly substantially larger than than the pool of U.S. persons knowingly engaged in clandestine intelligence activities at the behest of a foreign power. A communication in which an American is probed for information by members of a foreign clandestine service, for example, could very well provide information that relates to or is necessary to protect against clandestine intelligence activities by an intelligence service or network, or to the conduct of U.S. foreign affairs regardless of whether the American is a knowing agent or an unwitting asset. The Inspector Generals findings in the Page case suggest that, having once persuaded the FISC of a targets foreign agent status,the focus in renewals shifts to the question of productiveness: whether surveillance has generated, and continued surveillance is likely to generate, foreign intelligence information. But this is, of course, a different question from that of whether the initial assessment that the target is a foreign agent has been validated.

This difference may contribute to inadequate scrutiny of renewal applications by investigators and attorneys accustomed to the criminal investigative process. If a Title III wiretap is productiveyielding evidence of a crimethat productiveness inherently vindicates the initial showing that there was probable cause to believe such evidence would be obtained. Failure to adequately appreciate that the same tight nexus between threshold and success conditions need not exist in FISA surveillance may be one cause of insufficient attentiveness to new information undermining the agent of a foreign power determination.

While Kleins proposals are fine as far as they go, they represent relatively modest procedural tweaks that do not, in my view, get at the root cause of dysfunction in the FISA process: the fact thatFISA applications are not tested in an adversarial process, and FISA surveillance is classified. FISA interceptscan be used as evidence in courtsubject to the Classified Information Procedures Act, which seeks to balance defendants due process rights against national security interestsbut this is not their main purpose, and in practice it is vanishingly rare. The overwhelming majority of FISA targets never learn that they, or the people they communicate with, have been wiretapped. This eliminates a critical mechanism of accountability: The target, after all, is far better situated than any DOJ reviewer to identify falsehoods or missing context. The elaborate multilayered system of review FISA applications undergo is an imperfect attempt to compensate for the absence of this mechanismand indeed, it seems plausible that accuracy gains from requiring multiple reviewers are offset by the diffusion of responsibility this entails. If one reviewer misses a problem, many other eyes will have an opportunity to catch it, and if everyone misses it, then (excepting really egregious misconduct) its hard to fault anyone in particular.

The best remedy here may also be the most straightforward: End the presumption that FISA surveillance, at least in the case of U.S. person targets, will remain permanently covert.

Permanent secrecy has been baked into FISA since its inception, and the special exigencies of foreign intelligence collection surely justify a greater degree of secrecy than we countenance in criminal investigations, where targets typically must be notified within 90 days of the termination of surveillance. But even giving due weight to those considerations, a categorical rule of permanent secrecy in every FISA case seems impossible to justify.

Ordinarily, notice to the target of a search is constitutionally requiredan element of the Fourth Amendment reasonableness of a searcheven though it may be delayed whenadvance notice would frustrate the purpose of the search. In the seminal caseBerger v. New York, the Supreme Court invalidated a New York State wiretapping statute in part because it failed to adequately provide for notice:

Finally, the statutes procedure, necessarily because its success depends on secrecy, has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts. On the contrary, it permits unconsented entry without any showing of exigent circumstances. Such a showing of exigency, in order to avoid notice, would appear more important in eavesdropping, with its inherent dangers, than that required when conventional procedures of search and seizure are utilized. Nor does the statute provide for a return on the warrant thereby leaving full discretion in the officer as to the use of seized conversations of innocent as well as guilty parties. In short, the statutes blanket grant of permission to eavesdrop is without adequate judicial supervision or protective procedures.

InUnited States v. Freitas, the Ninth Circuit noted that, followingBerger, the absence of any notice requirement in [a] warrant casts strong doubt on its constitutional adequacy. The warrant at issue in that case was found constitutionally defective in failing to provide explicitly for notice within a reasonable, but short, time subsequent to the surreptitious entry on the grounds that surreptitious searches and seizures of intangibles strike at the very heart of the interests protected by the Fourth Amendment.

There is ample reason to suppose that exigency would, in the intelligence context, often justify significantly longer delays than Title III permits. Here, after all, the government is concerned not only with tipping off an individual target, but with exposing to foreign adversaries the contours of intelligence collection efforts that may span years. FISA, however, does away with the notice requirement categorically, without any need for a particularized showing that notice of a wiretap would incur harms. And it does so even when, as in the Carter Page case, the governments initial assessment that a target is acting as a foreign agent cant be sustained.

The Page case, of course, provides us with at least one instance where it was evidently possible to publicly disclose not just the fact of surveillance, but substantial detail about its basis, without apparent injury to national security. In the rare cases where FISA evidence is used in a criminal prosecution, defendants similarly receive notice, subject to the constraints of the Classified Information Procedures Act. But if it is at least sometimes possible to provide notice without imperiling national security, FISAs categorical presumption of permanent secrecy seems impossible to justify. Even giving maximum deference to the special needs inherent to intelligence collection, it cannot be that a constitutional notice requirement is overcome simply becausethe government at one pointbelieved a target to be a foreign agent, regardless of whether that belief is borne out.

FISA should instead require a particularized showing of exigency to avoid notice at the termination of surveillance, at least in the case of U.S. person targets. Even if there are indeed compelling grounds for extended delays of notice in most such cases, eliminating the universal presumption creates at least the prospect of meaningful accountability for improper targeting of Americans.

One final feature of the FISA processa matter of longstanding practice rather than statutory structuredeserves reevaluation. The FISA Court is frequently defended against charges that it functions as a rubber stamp on the grounds that its high rate of approved applications does not capture the extended dialectical process that occurs between FISC staff and DOJ attorneys. Proposed applications are often modifiedor withdrawnin response to feedback from the court, rather than being submitted and rejected. The FISC, in other words, is more scrupulous and demanding than the official approval statistics imply.

This process, however, may itself have undesirable consequences. Like any court, the FISC relies on a body of precedent to guide its rulings. Uniquely, however, this body of precedent consists primarily of the FISCs own classified opinions interpreting the FISA statute and the requirements of the Fourth Amendment in the foreign intelligence context.

Normally, precedent functions to set boundaries ongovernment conduct byestablishing exemplars of both what is permissible and what is forbidden. Under this set of facts, a governmentsearch comportedwith therequirements of the Fourth Amendment; under that set of circumstances, it did not. Many of the cases as the heart of our Fourth Amendmentjurisprudence are, in essence, instances of a court telling the government no. (Typically, of course, these are the result of a challenge raised by the subject of a searcha challenge that the secrecy default denies most FISA targets the opportunity to raise.) These establish benchmarks to which future courts can refer in evaluating new cases: If past government conduct was held incompatible with the Fourth Amendment, a similar result should obtain when similar facts recur.

The informal FISA dialectic, howeverespecially in the absence of adversarial testing after the factbiases the paper trail, so that what survives as precedent is disproportionately a record of yesses. When the FISC approves an instance of electronic surveillance, that approval is preserved for the reference of later FISC judges. Yet when the court informally rejects a draft applicationbecause its scope is too broad, or its proposed minimization procedures inadequate, or its probable cause showing thina comparable benchmark may not be established. A new FISC judge confronting an application may have no easy way of knowing that substantially similar applications were in the past rejected at a preliminary stage, while approvals under similar facts remain etched in the record.

Given the natural variance in judicial attitudes to close casesthere will always be marginal fact patterns where some judges would say yes while others would say nothe FISA dialectic risks setting up a ratchet effect over time, even if we stipulate that the Courts procedures are well designed to prevent deliberate judge-shopping. A dozen FISC judges may informally say no, but it is the one who eventually says yes who furnishes the government with a citation for future use.

While this informal dialectic doubtless has many advantages, both for the FISC and the Justice Department, over time it is likely to have a cumulative distorting effect on the FISCs determinations. This is particularly troubling when we consider the FISCs evolving role, which has grown beyond the largely ministerial approval of specific targets, and now routinely includes the evaluation of programmatic surveillance. While it may be less convenient in the short term, it is likely improve the quality of FISC deliberation if the court gets in the habit of putting more of its nos on the record.

Such fundamental changes to the FISA process are, needless to say, more difficult to implement and more prone to meet resistance than Kleins more incrementalist proposals. But if the problems with the current FISA process are indeed structural, as they appear to me to be, then they will only be adequately addressed by structural reform.

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Reforming the FISA Process: Tweak or Overhaul? - Just Security

Last week, the U.S. Supreme Court issued its highly anticipated ruling in Mahanoy Area School District v. B. L., No. 20-255, (U.S. June 23, 2021), upholding students' free speech rights for the first time since 1969. In an 8-1 decision, the Court strongly reaffirmed the landmark case Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), and held the school could not punish a high school cheerleader's off-campus Snapchat message to friends.

Despite the vulgar nature of the message"Fuck school fuck softball fuck cheer fuck everything" with an image of the student and her friend with their middle fingers raisedthe Court found the teenager's critical opinion of school issues worthy of "robust First Amendment protections." Justice Breyer observed it "might be tempting to dismiss B. L.'s words as unworthy of robust First Amendment protections," but concluded "sometimes it is necessary to protect the superfluous in order to preserve the necessary." And he identified a key government interest the school administration apparently overlooked: to prepare students for citizenship "the school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus." (emphasis added).

The opinion for the Court avoided creating a bright line rule concerning where the speech occurs. "Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus." Instead, the opinion identified "three features of off-campus speech that often, even if not always, distinguish schools' efforts to regulate that speech from their efforts to regulate on-campus speech."

First, the Court examined the right of the school in loco parentis, noting that "geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility." Second, the Court held that "courts must be more skeptical of a school's efforts to regulate off-campus speech," noting that "political or religious speech that occurs outside school or a school program or activity" undoubtedly comes with "a heavy burden to justify intervention." Third, the Court reminded educational institutions that "America's public schools are the nurseries of democracy," which "only works if we protect the 'marketplace of ideas'" and "that protection must include the protection of unpopular ideas, for popular ideas have less need for protection."

Justice Breyer's opinion departed from the Third Circuit's reasoning, which had relied extensively on where the Snapchat message was typed and sentin other words, the physical location of the student and/or the student's use of "school-owned, -operated, or -supervised channels."1The U.S. Supreme Court, however, made clear that such explicit holdings were unnecessarythe cheerleader's off-campus, critical speech had not substantially disrupted or targeted school functions, and therefore "d[id] not meet Tinker's demanding standard."

Justice Alito wrote separately (with Justice Gorsuch joining) to clarify the majority's holding. He noted the enormous disparity in treatment that would result if the government could only punish public school students' speech, concluding that attending public schools cannot be conditioned on relinquishing constitutional rights. He asserted that "[i]f today's decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory."

Justice Thomas issued a lone dissent, echoing themes he first set forth in his concurring opinion in Morse v. Frederick, 551 U.S. 393, 422-33 (2007)a case involving a student's "Bong Hits 4 Jesus" sign at a school-sponsored event. Based on historical analysis and drawing largely on 19th century state court decisions, Justice Thomas concluded that public school students lack First Amendment rights and suggested he would reverse both Tinker and W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (where the Court held that public school students could not be compelled to salute the American flag and recite the Pledge of Allegiance).

Justice Alito directly addressed Justice Thomas's dissent on originalist grounds, noting the dated state court decisions are "of negligible value for present purposes." The concurrence explored the doctrine of in loco parentis upon which the dissent focused, and found it failed to explain the delegation of parental authority that occurs in American schools today. For "whatever [the student's] parents thought about what she did," the concurrence noted, "it is not reasonable to infer that they gave the school the authority to regulate her choice of language when she was off school premises and not engaged in any school activity."

It remains to be seen how the principles articulated by the Court will apply to future controversies involving off-campus speech and "whether or how ordinary First Amendment standards must give way off campus to a school's special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up school community." However, "to justify the prohibition of a particular expression of opinion," the school would have to show that "its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."

Davis Wright Tremaine LLP filed an amicus brief in the Mahanoy case on behalf of Mary Beth and Joe Tinker, key litigants in the U.S. Supreme Court's landmark 1969 student-speech ruling Tinker v. Des Moines Independent Community School District.

1 See 964 F.3d 170, 189 (3d Cir. 2020) (holding "that Tinker does not apply to off-campus speechthat is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school's imprimatur").

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F--- school, f--- softball, f--- cheer, f--- everything, Except First Amendment Protections for Student Speech - JD Supra

The American Civil Liberties Union challenged a new Tennessee law that requires businesses to post a sign alerting customers if they allow people to use restrooms that dont match their biological sex. The ACLU says the state is unconstitutionally compelling speech in violation of the First Amendment.

Republican Gov. Bill Lee signed HB 1182into law on May 17, and it is set to take effect on July 1. Unlike other restroom bills, Tennessees does not dictate who can use a facility or target transgender individuals. Under the law, public or private entities or businesses open to the public that dont restrict restroom access by biological sex must post a boldface notice: This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom.

The Friday complaint slams the new law as anti-transgender in its use of the phrase biological sex and contends it is aimed at transgender individuals even if it doesnt mention them. It also argues the state is unconstitutionally forcing businesses to endorse an anti-transgender message.

Republican Rep. Tim Rudd, who sponsored the bill, said it is not discriminatory because it does not limit who can use a restroom, but protects the privacy of those who prefer not to share a facility with someone of the opposite biological sex. Whether youre a man or woman, dont you want to know who might be waiting on the other side of a bathroom door when you go in? Rudd said. Everyone has a reasonable expectation to the right of privacy and dignity when using the restroom.

But Regent Law School professor Brad Jacob said the case is not so simple: As unsympathetic as I am with the idea that you can just declare yourself to be the opposite sex and then that makes it reality, I think this is a classic First Amendment compelled speech case.

He noted the cases similarity with the Supreme Courts 2018 rulingin NIFLA v. Becerra. The justices struck down a law in California requiring crisis pregnancy centers to post a notice that the state provides free or low-cost services, including abortions, and provide a phone number. They found such a requirement unduly burdened the centers free speech.

States are flushwith legislation related to the transgender issue, including regulating access to single-gender facilities, defending female athletes from having to compete against men who identify as women, and protecting minors from gender transition treatments.

But the Supreme Court does not appear poised to enter the fray. The justices on Monday let stand an August 2020 appeals court rulingagainst a Virginia school boards policy limiting restroom use to members of the same biological sex. Gavin Grimm, a female student who identified as male, sued after the Gloucester County high school denied access to the boys restroom in 2017. Justices Samuel Alito and Clarence Thomas indicated they would have taken the casefour are required to put a case on the docket.

Conflict between LGBT activists and religious liberty advocates will likely continue, Jacob said, since neither side will go away. We have to find a way of letting each side live their own convictions without trying to beat down the other, he said. Unfortunately, thats not where we seem to be going at the present.

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