Hinderaker's scholarship

Speaking of John "Power Line" Hinderaker, a go-to guy for local conservative scofflaws like the Milwaukee Journal-Sentinel's Patrick McIlheran and his voluble doppelgänger Charlie Sykes, here's an example of Hinderaker's legal scholarship.

Back in 2006, there was an uproar over the decision of a federal district judge in Michigan in a case called ACLU v. NSA. The judge, Anna Diggs Taylor, declared the Bush administration's program of warrantless wiretapping unconstitutional on various grounds.

(The decision was vacated the following year by the Sixth Circuit Court of Appeals, which found that the plaintiffs lacked standing to sue, following which the U.S. Supreme Court declined to entertain the ACLU's appeal from the Sixth Circuit.)

At the time, some wag directed me to the "informed commentary" of Hinderaker, a Minnesota attorney with an unseemly personal passion for George W. Bush.

In his discussion of ACLU v. NSA, Hinderaker invoked a 1967 decision of the U.S. Supreme Court, Katz v. United States. Of Katz, Hinderaker claimed:

The Court specifically noted, however, that its decision did not apply to situations involving national security: "Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case."

Hinderaker presumably mentioned Katz to suggest that because "the Court" specifically exempted its central holding(s) from situations involving national security, that it's invalid precedent for those seeking to apply it against potential violations of the Fourth Amendment by the president for alleged purposes of "national security."

A cursory inspection of Hinderaker's claim unravels it pretty quickly. When one comes across a reference to "the Court," as in, "the Court held," or "the Court noted," it means that a majority of the Supreme Court signed onto such and such a statement.

Otherwise, it's false to ascribe to "the Court" any proposition which fewer than five Justices endorse.

Katz is a splintered decision; it contains five separate opinions. When this occurs, you have to be very careful in sorting through which Justice said what about which.

Take a look at this dog's breakfast to see what I mean.

The statement Hinderaker ascribes to "the Court" appears in a footnote to the main opinion, which was written by Justice Stewart. Justices White, Fortas, and Chief Justice Warren signed onto Stewart's opinion in full. That makes four Justices endorsing the footnote's proposition.

Justice White wrote a concurring opinion in which he expanded to some degree on the footnote. This led Justice Douglas, joined by Justice Brennan, to write a separate concurring opinion specifically objecting to White's picking up and running with the footnote.

That is, they disagree that Katz's central holding provides the exemption Hinderaker claims it does.

Justice Black wrote a dissenting opinion, and Justice Marshall did not participate in Katz. So thus far we have four Justices endorsing the footnote, and four Justices not endorsing the footnote. That leaves Justice Harlan.

Justice Harlan wrote his own concurring opinion, in which he unequivocally points out which components of the main opinion to which he subscribes:

I join the opinion of the Court, which I read to hold only (a) that an enclosed telephone booth is an area where, like a home, and unlike a field, a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment; and (c) that the invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant.

Note Justice Harlan's use of the word "only." And so much for "Power Line" Hinderaker's assertion. "The Court" did not make the statement he claims it made, so Hinderaker is just flat wrong.

Katz v. United States is an important decision because, for one thing, it established the Fourth Amendment's "reasonable expectation of privacy" test, and there is indeed much "informed commentary" on Katz in both the primary and secondary legal literature.

Hinderaker's certainly isn't amongst it.