OK, I have to go get ready for SCOTUS. Manage the fires without me for a bit, all.
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Dreeben is one of the best Supreme Court advocates alive today, and he’s an incredible lawyer, but, today, he just was unwilling to engage in a real debate about how the changed ways we live our lives affect privacy or property rights in new ways.
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And, I think that affected the justices as the argument wore on. While it’s clear that they’re not sure of how to resolve the case, his unwillingness to budge at all seemed to pull justices away from him, especially the Chief (and Gorsuch, perhaps), throughout the 80 minutes.
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For those not following the case, the govt’s position — one Dreeben just repeated in different forms over his 40 minutes — was: Cell-site records are a business record, so it’s not a search, so the Fourth Amendment isn’t implicated. Period.
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On the other side, the questions started off by asking about why cell-site records were more sensitive than other potentially sensitive records (bank records, phone numbers called) that the court has allowed to be collected without a warrant under the third-party doctrine.
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The questions veered basically into a debate about what the rule would be — the "what would the opinion look like" question that Breyer loves.
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Then, Dreeben got up, and just didn't engage in the debate that the justices were there to have. It was unfortunate, because this is a really big issue — and one that the justices seemed to be taking seriously.
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Anyway, I'll have more later! But, there's a first look.
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FYI: For
#lawdork folks, here's the Carpenter transcript: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-402_d1o2.pdf …Show this thread
End of conversation
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He’s trying to defend the indefensible while working for a rogue Justice Department that’s part of a puppet Russian regime. That’ll kill anybody’s enthusiasm.
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