MAUREEN CAVANAUGH (Host) I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. We got our fireworks on the Fourth of July this year and not during a Supreme Court confirmation hearing in Washington. The hearing, which concluded last week for U.S. Supreme Court nominee Elena Kagen, was decidedly tame in contrast to recent confirmation hearings. We'll talk about that and about some of the notable decisions handed down by the U.S. Supreme Court recently on our legal update. And I'd like to welcome my guest, Dan Eaton, San Diego attorney and These Days legal analyst. Dan, it’s good to see you.
DAN EATON (KPBS Legal Analyst): Good morning, Maureen.
CAVANAUGH: The Supreme Court ruled on a case that you talked about from Ontario, California. A police officer claimed his text messages, some of which were sexually explicit, sent on a department issued pager, should’ve been his private information. Remind us about the facts of this case.
EATON: Sure. This concerns a case of Sgt. Jeff Quon out of the Ontario, California police department. And what happened was the department had a written and orally announced policy that said that all electronic communications from the department-issued equipment were subject to audit and monitoring. The sergeant’s immediate supervisor, however, told him that if Sgt. Quon and others paid for the overages beyond the plan, the wireless plan the department had, they paid for them themselves, and their – those messages would not be subject to auditing. Their messages would not be subject to auditing and review because they, after all, were paying for any extra beyond what the department was already getting with its plan. What happened was that Sgt. Quon, as you said in the opening, claimed that those texts were off limits. The department ended up auditing them because they wanted to see whether the plan was at the right level and whether officers were actually – ended up paying personally for messages that were work related. They looked at them and they found some very interesting things in those messages. Sgt. Quon and, interestingly, his now ex-wife claimed an invasion of privacy and, ultimately, the case reached the Supreme Court.
CAVANAUGH: Right, it went all the way up to the Supreme Court.
EATON: Yeah.
CAVANAUGH: So how did the court rule?
EATON: Well, the court ultimately declined to answer the threshold question of whether he had a reasonable expectation of privacy in these messages. Instead, the court assumed that he did reasonably expect some level of privacy and then it went on to conclude unanimously that the reason for the search and the extent of the search were both reasonable and reversed the Ninth Circuit Court of Appeals opinion to the contrary. And, of course, the Ninth Circuit is the federal court of appeals that hears appeals from California trial courts, federal trials courts as well as others.
CAVANAUGH: So the Supreme Court weighed in on the legitimacy of the search and not necessarily on the privacy issue itself.
EATON: Umm-hmm.
CAVANAUGH: Why didn’t the Supreme Court rule on the issue of the officer’s reasonable expectation of privacy in his text messages?
EATON: Well, Maureen, what Justice Kennedy, writing for the majority, said was that he – the court didn’t want to get into this brave new world that was so rapidly evolving and changing. What the court – what he said was that the court found it difficult and imprudent to try to predict how employees’ expectations of privacy will evolve. It may turn out that, for example, these instruments may turn out to be instruments of self-expression, which would tend to make it more reasonable for them to believe it was subject to a reasonable expectation of privacy. On the other hand, the widespread availability of these kinds of instruments might suggest that, look, they’re so easy to get personally that there’s really no reason for you to use department-issued equipment and, therefore, you would have a lower expectation of privacy because, after all, it would be just as easy for you to use your personal equipment particularly in the face of clear and consistent policies by the employer that these things were subject to auditing and monitoring.
CAVANAUGH: Why did the court then find that the police department’s search was legal? Why – What made that search legal?
EATON: Well, the scope and extent – First, what Justice Kennedy said was that the police department had a legitimate interest—that was the key phrase—in making sure that employees were not paying for work-related messages by paying for these overages. They wanted to make sure their plan was at the right level. On the other hand, of course, the department also had an interest in making sure that these pagers were not being used for personal messages. Obviously – So those were the two legitimate expectations. It turns out, of course, that Jeff Quon, the sergeant who sued, ended up using his pager for mostly personal messages. There was some small fraction that were used for work-related messages. And that’s what ultimately led to this lawsuit.
CAVANAUGH: So while this case involved a public employee, the right to privacy in California goes beyond that and extends to private employees as well, doesn’t it?
EATON: It does. Actually our own state, California Constitution no right to privacy, which was passed by voters in the early seventies, does apply, as the California Supreme Court has said, to both private and public employers. Now, look, this Supreme Court case is not binding on both. The California Supreme Court is going to say California law is, in fact, the California Supreme Court addressed a similar question in the context of video surveillance in 2009 concerning the expectation of privacy in the workplace. But, nonetheless, it is very important to understand what the Supreme Court said in – even in ducking the question of a reasonable expectation of privacy in how employers, anyway, can avoid having their policies and their review of these messages second-guessed by courts.
CAVANAUGH: And how can they avoid it?
EATON: The way to do it, Maureen—and this is an area in which I – this is the area in which I practice, defending and advising employers—is to be very clear and consistent. What Justice Kennedy said, and I’m going to quote from his opinion, is that the expectation of privacy is shaped by, quote, employer policies concerning communications and especially to such an extent that such policies are clearly communicated. Employers, therefore, Maureen, are now on notice from the nation’s highest court to be clear and consistent in their policies and messages to their employees that all electronic communications in workplace-issued equipment, such as pagers, are subject to monitoring. The bottom line, if employers are clear and consistent, you avoid this issue about whether the scope and extent or reasons for the search are legitimate because you defeat the employees’ expectation of privacy. The problem comes in, as in the Ontario Police Department, where you start getting mixed messages.
CAVANAUGH: Mixed, right.
EATON: Then you have to start looking at whether the scope and extent of the search was reasonable under the circumstances and so on. And that could become a very, very difficult problem. Now, it worked out well for the Ontario Police Department but it could’ve come out the other way.
CAVANAUGH: Be interesting to find out how many U.S. Supreme Court justices actually text message.
EATON: Yeah, I have a feeling given the age that this was sort of a – the oral argument was kind of funny because you had justices even as young as Chief Justice Roberts, who’s very young, in his early fifties, asking questions that suggest that they didn’t quite get the electronic communication. So people of a certain age have some catching up to do which may explain why they ducked the reasonable expectation of privacy question in the first place, Maureen.
CAVANAUGH: All right, and now we move on to a ruling that some say could have a chilling effect on people giving any sort of support to unpopular international causes. The U.S. Supreme Court upheld the constitutionality of a federal law that prohibits Americans from giving advice to organizations the federal government has identified as engaged in terrorist activities. Remind us what was at stake in that case.
EATON: Maureen, this was brought by a group called The Humanitarian Law Project, which actually is run by a professor out at USC, a former administrative law judge, federal administrative law judge. And what this was at issue was a federal law that prohibits providing any kind of, under the law, training, expert advice or assistance, service or personnel to designated foreign terrorist groups. The Humanitarian Law Project and the individuals suing claim that they were trying to give advice, they wanted to give advice, to political advocacy groups, Kurdish political advocacy groups, on how to get a peaceful resolution of their disputes in the U.N. and how to resolve their disputes peacefully. But they said this law blocked them from doing it and they said that that was – it was an unconstitutionally vague law and it violated their 1st Amendment rights.
CAVANAUGH: I see. And – But the Supreme Court disagreed.
EATON: Oh, they disagreed all right. Chief Justice Roberts wrote for the majority that the law is sufficiently clear, by the way, a point on which all nine of the justices agree. Because whether the challenged terms were theoretically unclear in other possible context, what these – this particular group and these individuals wanted to do indisputably was providing expert advice or assistance. Now, you’ll remember that we had kind of a fun exchange when we first talked about this after oral argument where Justice Sotomayor posed a hypothetical about whether this would preclude giving harmonica lessons.
CAVANAUGH: Right. Yes.
EATON: Well, Chief Justice Roberts sort of directly addressed that although he didn’t use harmonica lessons. He addressed a point that the HLP and the individuals who were suing made in their briefs and they said, quote, whatever force those arguments might have in the abstract, they are beside the point here. The plaintiffs, the Humanitarian Law Project and others, do not propose to teach a course in geography, which was the hypothetical they gave, and cannot seek refuge in imaginary cases that straddle the boundary between specific skills and general knowledge.
CAVANAUGH: I see. I see.
EATON: Yeah.
CAVANAUGH: So what did the majority – why did they reject, though, the 1st Amendment claims based on free speech?
EATON: Well, they thought – The majority said that it furthered the government’s urgent interest in preventing terrorism and there was a reasonable fit between the means chosen and that very, very urgent end. They said that, look, if you allow even, quote, peaceful assistance, providing peaceful assistance, it could help the groups establish legitimacy, it might help them raise funds, and funds raised ostensibly for humanitarian purposes easily could be redirected to violent ones. Moreover, quote, a foreign terrorist organization introduced to the structures of the international legal system might use the information to threaten, manipulate and disrupt. This possibility is real, not remote, closed quote. That’s why the court said that the 1st Amendment free speech and association claims don’t ultimately work because what the government did was – there was a reasonable fit between – of what they – between how they were doing it and the urgent end they thought to seek. The government was not, contrary to what the Ninth Circuit held, required to find the least possibly intrusive means of accomplishing their urgent objective to survive 1st Amendment scrutiny.
CAVANAUGH: And they also – the majority on the Supreme Court also used national security as one of their arguments in support of this.
EATON: They said – There’s several pages where Chief Justice Roberts goes on the traditional deference that the Supreme Court gives to the executive and to, I guess, a lesser extent, Congress in matters of national security and foreign policy where the judiciary really doesn’t have a great deal of expertise. But that wasn’t what ultimately was driving the decision.
CAVANAUGH: And it’s interesting to note that as Solicitor General, Supreme Court nominee Elena Kagan actually argued this in support of the government’s case to the Supreme Court.
EATON: To use one of my favorite words on this show, it really is fascinating, actually. You had Elena Kagan arguing this case to uphold the law and you also, interestingly, had Justice Stevens, whom she is in line to replace, voting with the majority in upholding the law. So it was a very interesting lineup that you had here, almost a relay of sorts in the Supreme Court in this particular case.
CAVANAUGH: Just a note on the dissenters on this decision…
EATON: Umm-hmm.
CAVANAUGH: …because there was this idea that it would have a chilling effect on speech.
EATON: Well, that’s right, and that’s where they dissented. They said, look, this – we understand what the government is trying to do but the way they’re trying to do it is simply not acceptable. There is not a close enough fit between the idea of wanting – of blocking peaceful advice and preventing terrorism. What Justice Breyer, writing for the three dissenters, Justice Ginsburg and Justice Sotomayor, wrote is, quote, it is inordinately difficult to distinguish when speech activity will, and when it will not, initiate the chain of causation the court suggests a chain that leads from peaceful advocacy to legitimacy to increased support for the group to an increased supply of material goods that support its terrorist activities. Even were we to find such line of distinction, its application would seem so inherently uncertain that it would often perhaps always chill protected speech beyond its boundary, closed quote. He said, no, I agree with you, it’s unconstitutionally vague, said Justice Breyer, but it’s too much of an intrusion on free speech, and for that reason it is invalid to that extent. And it certainly is applied to the HLP but they were on the losing side.
CAVANAUGH: Now we want to get to the confirmation hearings on…
EATON: We do.
CAVANAUGH: …Elena Kagan but before we do, I do want to mention a Supreme Court ruling that you predicted.
EATON: I did. Right.
CAVANAUGH: And it’s about Enron CEO Jeff Skilling.
EATON: I actually thought they might go further but, ultimately, what Justice Ruth Bader Ginsburg, writing for a shifting 6-to-3 majority on the Supreme Court held was that, first, Jeff Skilling did get a fair trial in Houston. He claimed that there was too much publicity for him to get a fair trial. No, they rejected that 6-to-3. And they also said, though, on the Honest Services law, part of the basis of his conviction, Justice Ruth Bader Ginsburg said, look, yeah, that’s – that is vague if you read it to all the kinds of things that could be in Honest Services, not if you restrict it to bribery and kickbacks terms, which we all understand. Now, Jeff Skilling wasn’t accused of engaging in bribery or kickback and, therefore, they sent his conviction back to the lower courts to reconsider his conviction. But, importantly, Maureen, that was not the only basis, the Honest Services issue was not the only basis on which he was convicted. There were 19 counts, as a matter of fact. And so they are going to have to look at whether he would’ve had roughly the same result, the guilty verdict, even without the now invalidated Honest Services basis. Interestingly, three justices would have gone further and strike down the Honest Services law, which is what I thought actually was going to happen as unconstitutionally vague. But Justice Ruth Bader Ginsburg said, no, we can limit this to bribery and kickbacks and so limited, it can stand.
CAVANAUGH: So does that mean the former Enron CEO now will get a new trial? Or is that still undecided?
EATON: It’s undecided. It certainly is going to be reexamined as is the – as are the convictions of two other people including Conrad Black, who’s another prominent executive. But the bottom line is that at least he lives to fight another day, and they’re going to look at it. His attorneys argue that all of his – the entirety of his conviction falls like dominoes in light of the invalidation of the Honest Services basis on which he was convicted.
CAVANAUGH: Okay, so now, we get to the confirmation hearings of the Senate for Elena Kagan. Last week, they held the hearings, and what did we learn about the kind of justice Elena Kagan would make from these hearings?
EATON: Well, you’ve – we learned that she didn’t want to live by her 1995 Law Review article, that’s for sure, where she called the whole exercise of confirmation hearings as it has proceeded post-Robert Bork vapid. She said, maybe I went too far on that. Let me take that back a little bit. I’m not going to give you any hint about how I’m actually going to decide the – decide issues that are before the court and I’m not going to tell you what I think of any of the justices. But, interestingly, some of the Republican senators took square aim at the person for whom she clerked, Justice Thurgood Marshall, the first African-American on the court. One Republican senator, John Kyle, said that he was an activist judge whose views were outside the mainstream. And Solicitor General Kagan said—and this is an important quote—I love Justice Marshall. He did an enormous amount for me. But if you confirm me to this position, you’ll get Justice Kagan, you won’t get Justice Marshall, and that’s an important thing, closed quote. So…
CAVANAUGH: Now did she say how she might be different from Justice Marshall?
EATON: That’s a wonderful quote, isn’t it?
CAVANAUGH: Yes.
EATON: And it’s sort of like, well, what comes next here? You see? And what came next was ehh, I don’t know. She really didn’t quite specify. In fact, to the frustration of many senators, she would not answer how she viewed certain cases. She wouldn’t opine, for example, on Bush vs. Gore, the 2000 decision which ultimately stopped the counting or the recounting in Florida for Bush. She did express admiration for Brown vs. Board of Education, not exactly going out on a limb there. Virtually all nominees do say that. But she wouldn’t comment so much on any cases. The one case, though, she did talk about is one she argued, which was the Citizens United vs. FEC case about corporate political – independent political spending. And she said as she prepared for that case, she thinks she probably had the right part of that argument even though a majority of the Supreme Court obviously disagreed with her.
CAVANAUGH: And that was probably the most staggeringly controversial thing she said throughout the entire confirmation hearing.
EATON: Well, in some senses and so forth, in addition to showing a tremendous sense of humor. I don’t remember people laughing quite so much, at least not intentionally at a nomination process in many, many years. I mean she had some great one-liners there. But she did actually give some surprisingly illuminating answers on what she thought a judge should be and what she thought a judge should not be. For example, Senator Tom Coburn of Oklahoma asked her a very interesting question that was designed to get her views on the inevitable challenge to the healthcare law that’s going to come before the court, which seems to require Americans to purchase – to pay a fine if they don’t purchase health insurance. And he asked whether congress could mandate a law requiring Americans, quote, to eat three vegetables and three fruits every day, closed quote. Justice Kagan said, well, that would be a, quote, dumb law, closed quote. But it’s not the court’s job to second guess congress and strike down senseless laws, only those that transgress the boundaries laid out by the Constitution. In other words, what she said was I’m going to defer to congressional findings typically because the role of the court is an important one, yes, but it is a limited one. And that is to keep congress and the states within the boundaries of the Constitution.
CAVANAUGH: So as Chief Justice John Roberts, during his confirmation hearing, referred to the role of judges as umpires who call balls and strikes, did Elena Kagan use any kind of a metaphor or expand on that at all?
EATON: She did. She actually responded to it and said, okay, well, I get what you’re saying, Chief Justice Roberts, but that metaphor, like all metaphors, has its limits as a matter of fact. What she said was, quote, the metaphor might suggest to some people that law is a kind of a robotic enterprise, there’s a kind of automatic quality to it. But, she added, judges do, in many of these cases, have to exercise judgment. They’re not easy calls. In other words, she said that, look, yeah, I get that we – that it is important to be modest, that was a word she used in her opening statement, but it is not true that judges are automatons. There is a humanity to the process of judging and it does come into play in deciding who wins and who loses in some cases.
CAVANAUGH: And what did she say about the constructionist view of interpreting the Constitution, that idea that the Constitution should be interpreted according to the original understanding of those that ratified it.
EATON: She actually pretty much rejected that view, at least in its strictest form, although she has this line where she says, we are all to some extent originalists. And I’m paraphrasing her, I think here. Because there are certain Constitutional mandates such as the age of the president, 35, and the age of senators, 30, the minimums, that are very clear. And to that extent, we are all originalists. But, she said, there are some provisions like the 4th Amendment, reasonable search and seizure, which, of course, was interpreted in the text messaging case we talked about, where there is more play in the joints. And she seemed to echo the views of Laurence Tribe, one of her colleagues at Harvard Law School and one of the nation’s preeminent Supreme Court advocates, who seems to hold the same view. That is to say, there are some provisions of the Constitution that really aren’t subject to interpretation but as to those that are, judges really have to look at them in different settings.
CAVANAUGH: And one area – and, well, we have to go through this quickly, I’m afraid…
EATON: Okay.
CAVANAUGH: …that was very interesting because it sort of rattled some of her Democratic supporters was her stating that some issues were settled law. What does that mean?
EATON: This is really important because it’s important to understand what she meant by settled law. Senator Patrick Leahy of Vermont, which, to use a simplistic phrase, is a pro-gun state, asked her what she thought of Heller and City of McDonald (sic), which is the – says it applies to states and cities and which came down the same day, by the way, her confirmation hearing began. But anyway, she said that those cases were settled law. Well, Dianne Feinstein, from our own state of California, said, well, how can you say they’re settled law, they were decided 5-to-4. And here is what she said. She – Justice – I’m sorry. Elena Kagan said, quote, because the court decided them as they did, she said, and once the court has decided a case, it is binding precedent, closed quote. Now, on its face, Maureen, that doesn’t sound very illuminating but, in fact, it is because it means that what she meant by settled law was only that the court decided a clear case by a majority and, therefore, it is usually going to be binding. What she didn’t say, however, is that she wasn’t willing to take a second look at it as a Supreme Court justice as justices are entitled, especially as this right evolves through the lower courts. It’s important to point out that now Justice Sonia Sotomayor gave a similar answer concerning whether Heller, which was the case that first recognized the individual right to keep and bear arms as it applied to federal jurisdictions, said that she considered that settled law, but she joined the dissent in the McDonald case and the dissent said that Heller was wrongly decided. So settled law, at least as Elena Kagan is using it, doesn’t mean I am fixed and I am never going to look at that. She wouldn’t make any kind of commitments like that. She only means that it’s precedent. And to that extent, she’s right. Look, even Chief Justice Roberts, in his separate opinion in the Citizens United corporate political spending case set precedent. The respect for past decision is not what he called an inexorable command. If it were, separate but equal would still be the law and all of these other things – minimum wages would be unconstitutional as well. Look, justices have an imperative to getting things right. In the unusual circumstance, he wrote, when fidelity to any particular precedent does more to damage the unconstitution – to damage the Constitutional ideal than to advance it, we must be more than willing to depart from that precedent, closed quote. So, in other words, Elena Kagan’s view that this is settled law does not mean she’s not going to be willing to take a very close look at at least the contours of this evolving right as it works its way through low court. It may not – it may even be open to reexamining altogether as whether Heller and McDonald ought to continue to control.
CAVANAUGH: And it’s pretty much a settled issue Elena Kagan will be confirmed.
EATON: Elena Kagan will be Justice Elena Kagan, there is no question. I obviously had a couple of Freudian slips but even Senator John Cornyn of Texas, who probably will vote against her, called her soon-to-be-Justice Kagan in talking to reporters outside the hearing room. She is going to be confirmed but expect that she is going to get a lot of Republican no votes, probably more, at my bet, than Sonia Sotomayor did.
CAVANAUGH: Dan Eaton, thank you so much.
EATON: All right. We did it.
CAVANAUGH: We got through a lot.
EATON: We got through it.
CAVANAUGH: If you would like to comment, please go online, KPBS.org/thesedays. Now, coming up, we’re going to be talking more about that recent U.S. Supreme Court ruling on guns, the right to bear arms, as These Days continues here on KPBS.
