As a follow-up to Tuesday's Short Circuits, below are recent highlights and trends from the federal appellate courts, including a circuit split:
In the past two weeks, both the Ninth and DC Circuits ruled on warrantless GPS tracking and whether it violates the Fourth Amendment. The Ninth Circuit said no (in denying rehearing en banc), while the DC Circuit said yes.
According to the New York Times, "Supreme Court review of the [DC Circuit] decision seems likely" because it departs from the Ninth Circuit, as well as the Seventh and Eighth. Though breaking from the pack, the DC Circuit decision was unanimous. The Ninth Circuit en banc denial, in contrast, included a spirited dissent from Chief Judge Alex Kozinski, joined by four other judges, calling warrantless tracking "creepy and un-American" and making class references ("When you glide your BMW into your underground garage or behind an electric gate, you don’t need to worry that somebody might attach a tracking device to it while you sleep. But the Constitution doesn’t prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy . . . .").
Back to the Future
The last century emerged in decisions last week from the First and Eleventh Circuits. The First Circuit, with retired Supreme Court Justice David Souter authoring, upheld Massachusetts' exclusion of materials denying the Armenian genocide during World War I, from its curriculum on genocide. The Eleventh Circuit refused to dismiss a lawsuit by holders of German bonds, on which that country defaulted during the Hitler era, prior to World War II.
Now that the State of California has decided not to appeal Judge Walker's decision overturning Prop. 8, and Walker and the Ninth Circuit both raised standing in their stay orders, standing has become the discussion du jour (and probably des mois, as it is essential). Many commentators have weighed in and a California county is attempting to intervene in support of Prop. 8.