by: Don Samuel
Last fall, I wrote a short blog post (Sept. 2, 2020) about the two decisions from Louisiana which explored the boundaries of stare decisis: Ramos v. Louisiana, 140 S. Ct. 1390 (2020), and June Medical Services v. Russo, 140 S. Ct. 2103 (2020). As it turns out, I should have noted that the blog post was chapter 1, or perhaps I should have described the post as in medias res: the middle of the story of the Court’s view of stare decisis.
Ramos was authored by Justice Gorsuch, with a tour de force concurrence by Justice Kavanaugh. Justice Kagan dissented. The decision held, in eloquent and forceful terms, that the constitution would not tolerate a non-unanimous verdict in a serious criminal case in state and federal criminal trials. Justice Kagan dissented because she opined that stare decisis required adherence to the oddly aligned decision in Apodaca v. Oregon, 406 U.S. 404 (1972), which held that unanimity was constitutionally required in federal criminal trials, but not state criminal trials. Justice Gorsuch’s opinion, as well as Justice Kavanaugh’s concurrence offered many explanations that, stare decisis notwithstanding, it is a vital, essential, fundamental, and indispensable component of the right to trial by jury that the verdict be unanimous in a serious criminal case.
Well, that sounds right.
And then along comes Edwards v. Vannoy, 141 S.Ct. 1547 (2021). As is the case with so many criminal cases, the term after a major change in criminal procedure, the question arises, “Is that decision retroactive to cases on collateral review (i.e., post direct appeal)?” The test generally used to answer that question is this: If the decision that the petitioner seeks to apply retroactively represents a “watershed” development in criminal procedure, then it does apply retroactively. That test was announced in Teague v. Lane.
So, is Ramos a watershed decision of criminal procedure?
Let’s pause for moment and think of sitting in a barbershop chair or salon chair. The kind of chair in which there is a mirror in front of you and one behind which allows you to look at yourself front and back, and the images repeat back and forth receding infinitely.
Now think of looking back at Apodaca and Ramos and Edwards. Justice Kavanaugh wrote the majority opinion in Edwards: bottom line: Ramos is not to be applied retroactively. Though the right to a unanimous verdict was described in the most eloquent terms in Ramos, it does not equate to a watershed development in criminal procedure. And even if it meets that hurdle, it turns out that Teague itself is a precedent that will be ignored. The “watershed” standard is abandoned. The receding images in the mirrors are dizzying. The standard for retroactivity was itself abandoned.
But it gets more complicated. Because Justice Kagan, who dissented in Ramos and wrote in that dissent that the right to a unanimous verdict was not a constitutional right at all, now dissented in Edwards and wrote that the right to a unanimous verdict is not only a constitutional right, but it is a right that meets the “watershed” standard.
Justice Kagan’s dissent is not to be missed. It is Scalian in its tone of voice, sarcasm and eloquence.
Even if you don’t care about the right to a unanimous verdict in criminal cases (Georgia has always required a unanimous verdict) and even if you don’t care about the Teague v. Lane rules of retroactivity, surely you don’t want to miss Justice Kagan’s debut, after all these years, writing a dissent that obliterates, line-by-line, the majority opinion.
And why does Justice Kagan cling to stare decisis (in Ramos she advocated for one position based on Apodaca and in Edwards she advocated for the opposite position based on Ramos)?
No secret there: remember June Medical? It hung on by a thread to the Roe v. Wade and Whole Woman’s Health protection of the right to abortion. That was the other half of my post about stare decisis in the 2019 SCOTUS term.
Justice Kagan surely knew that when Edwards v. Vannoy was decided on May 17, 2021, along with the announcement of her ode to stare decisis, the Court also granted cert in another case – Dobbs v. Jackson Women’s Health Organization – which will decide the “viability” (so to speak) of Roe v. Wade. If ever the Court’s adherence to stare decisis will be tested, May 17 will be a date to remember.
By Matt Dodge: GUEST BLOGGER EXTRAORDINAIRE
The Supreme Court has granted another victory lap—the second in three years—to lawyers (and clients) from our Northern District of Georgia community.
Nathan Van Buren, a police officer in Cumming, Georgia, logged into a work laptop, searched the GCIC database for a license plate, and sold the results to an FBI confidential informant. The officer violated the police department’s personnel policy. But did he commit a federal crime?
Not so, says the Supreme Court. In Van Buren v. United States, the Court held that the officer did not violate 18 U.S.C. § 1030(a)(2), the Computer Fraud and Abuse Act of 1986. Why not? “This provision covers those who obtain information from particular areas in the computer—such as files, folders, or databases—to which their computer access does not extend. It does not cover those who, like Van Buren, have improper motives for obtaining information that is otherwise available to them.”
Put another way, the law applies only to hackers, including both the outside hacker who breaks into a computer system and the inside hacker who has legitimate access to a computer system, but breaks into a digital space that is forbidden to him. Van Buren was not a hacker because he had permission and credentials to search GCIC data. His motives—what he intended to do with the data, in violation of the employee handbook—were beside the point.
The list of names who joined Justice Barrett’s majority opinion is remarkable: Justices Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh. On many issues, the three progressives and three Trump nominees sit at distant poles on the political spectrum. Yet in Van Buren, these six justices signed this judicial Möbius strip, a one-sided geometric figure formed by twisting a strip of paper and gluing together the opposite ends.
A person violates § 1030(a)(2) when he “intentionally accesses a computer without authorization or exceeds authorized access,” and thereby obtains computer information. Van Buren had authorization to access the computer, of course, but did he “exceed authorized access”? That phrase means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.”
Van Buren’s fate rested on the meaning of two words: “so” and “entitled.” That’s it. Justice Barrett, writing for majority, cited an entire bookshelf of reference materials—eight dictionaries and Scalia & Garner’s Reading Law—as she offered an exegesis of the text, a riff on legislative intent, and a take-down of Justice Thomas’s dissent. (Not to be out-done, he too cited dictionaries, Scalia & Garner, and even dusted off his copies of Restatement of Torts and Restatement of Contracts). All of that alone, would be plenty to resolve the case in Van Buren’s favor.
Yet Justice Barrett went on to describe just why Van Buren’s prosecution is so dangerous to us all. With a there-but-for-the-grace-of-God tone, she noted that if the government is right here, all of us (including you, me, and Justice Kavanaugh) may violate § 1030(a)(2) every day: “If the ‘exceeds authorized access’ clause criminalizes every violation of a computer-use policy, then millions of otherwise law-abiding citizens are criminals.” Any employee who uses his work computer to send a personal email, read the news, pay the bills, or check the Hawks score, she warns, would be guilty of this federal crime.
Once again, the Supreme Court has shined a light on the Eleventh Circuit’s fallibility. According to Ballotpedia, during the period between 2007 and 2020, the Supreme Court reversed our local appeals court no fewer than 48 times, an average of more than three cases each term. Indeed, among the 13 circuit courts (including the Federal Circuit), only three saw more reversals than the Eleventh Circuit.
And now we add another to the list, thanks to the Van Buren team: Saraliene Durrett and Michael Trost of the CJA panel, Rebecca Shepard of the Federal Defender Program, and Jeffrey L. Fisher & Co. of Stanford Law School.