The food fight at the Slate Breakfast Table moves into the University of Chicago faculty dining room. Tag-teaming with Orin Kerr, is the newest member of the Conspiracy, Will Baude. Will replies to charges Posner made against “a law professor,” Kerr.
First, Will defends Orin’s characterization of Riley as a “bold opinion.” and the “first computer-search case.”
The quoted “law professor” Posner criticizes here is Orin Kerr. Given how much Orin has written about computers and criminal procedure, I think it would be fair to guess that Orin is aware that there have been lower-court cases on the issue. We don’t know whether the quote was excerpted, but when talking to Adam Liptak about Supreme Court cases it is probably implied that “first … case” means “first … Supreme Court case.” Because Posner does not mention Orin by name, it is not clear he realizes that he is the same person whose article is cited twice by the Court’s opinion in Riley.
Second, Will disputes how the Court cited Posner’s opinion:
Judge Posner’s opinion in Flores-Lopez is cited twice by the Court, but it is a little odd that Judge Posner recalls it as “almost identical to the Supreme Court’s opinion.” One of the two citations by the Court is in a passage where the Court expressly disagrees with a portion of the opinion.
Third, Will discusses how Posner views the warrant requirement:
have no real quarrel with Judge Posner’s account of the warrant requirement, though there has been some important scholarship that complicates this picture somewhat. But one should not be “surprised” by the Court’s “‘originalists’ and ‘textualists’” here. Justice Scalia has a well-known opinion (his concurrence in California v. Acevedo) criticizing the Court’s warrant requirement, citing Akhil Amar and . . . Richard Posner. (And Justice Scalia’s Acevedo opinion also discusses why not all instances of the warrant requirement are problematic.) Justice Thomas reiterates some of those criticisms in his dissent in Groh v. Ramirez (joined by Justice Scalia).
In other news, it seems that Justice Scalia hired a Posner clerk, so I guess feelings aren’t that bad.