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Update: I wrote an additional post diving into the analytics of how many people clicked on the link here.

In Justice Kagan’s dissent in Utah v. Strieff, she used the goo.gl link shortener.

See Reply Brief 8; Associated Press, Pa. Database, NBC News (Apr. 8, 2007), online at http://goo.gl/3Yq3Nd (as last visited June 17, 2016).

A Link Shortener creates a short-form of an otherwise lengthy link. The actual NBC News article is found at http://www.nbcnews.com/id/18013262/ns/us_news-crime_and_courts/t/pa-database-million-warrants-unserved/#.V2gtfOakX76.

By my quick search, she is the first Justice to use a link shortener (I checked goo.gl, bit.ly,

For those of you who don’t appreciate the elegance of a link shortener, consider Justice Sotomayor’s dissent, which lists the full, cumbersome links–including the unsightly %20 to represent a space:

Outstanding warrants are surprisingly common. When a person with a traffic ticket misses a fine payment or court appearance, a court will issue a warrant. See, e.g., Brennan Center for Justice, Criminal Justice Debt 23 (2010), online at https://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf.

Here Justice Sotomayor, I fixed it for you: https://goo.gl/0GAmmi.

I’ve been using goo.gl as a link shortener in briefs for some time. It saves space, looks nicer, and has the added benefit of recording how many clicks the link receives. If people start clicking on links in my brief, it is a potential sign that the Justices, or at least their clerks are interested.

For my book, I am saving all of my links in perma.cc, which creates permanent archives of links. Even if the original page is deleted, the archive remains. (I have roughly 3,000 footnotes, so there are a lot of saved links).

In Utah v. Strieff, Justice Thomas wrote the majority opinion reversing the Utah Supreme Court. The majority decision for the unanimous Utah Supreme Court was written by Thomas’s former clerk Justice Thomas Rex Lee. Justice Lee was also on Donald Trump’s short list. Justice Thomas made clear that the lower court did not get the precedents correct:

Turning to the application of the attenuation doctrine to this case, we first address a threshold question: whether this doctrine applies at all to a case like this, where the intervening circumstance that the State relies on is the discovery of a valid, pre-existing, and untainted arrest warrant. The Utah Supreme Court declined to apply the attenuation doctrine because it read our precedents as applying the doctrine only “to circumstances involving an independent act of a defendant’s ‘free will’ in confessing to a crime or consenting to a search.” 357 P. 3d, at 544. In this Court, Strieff has not defended this argument, and we disagree with it, as well. The attenuation doctrine evalu- ates the causal link between the government’s unlawful act and the discovery of evidence, which often has nothing to do with a defendant’s actions. And the logic of our prior attenuation cases is not limited to independent acts by the defendant.

Although this should have absolutely no bearing on his qualifications, it unfortunately will be used to hurt and help him. Conservatives will say, “He agreed with Sotomayor.” Liberals will say “He agreed with Sotomayor.”

Former Solicitor General Donald Verrilli sat down for an interview with MSNBC, and talked about a wide range of topics. I really enjoyed his description of serving President Obama, who was his client:

The President “is a phenomenal client. He is a brilliant lawyer. I haven’t had many opportunities to sit down and talk with him about cases in front of the Court. His approach, its DOJ’s job, its the SG’s office job, it’s my job, to do these cases in the way we think best and he lets us do that. He gives us huge, wide berth, and I very much appreciate that. On the small number of occasions where I have sat down and talked with him, he has a remarkable legal mind. He is not a law professor any more, by any means, but he still got that law professor in him. When you sit down and talk and legal problem with him, he has a phenomenal legal mind. He’s great all around. He gives us the leeway to do what we need to do, and we do engage, it’s terrific.

Also–with several quotes going directly into my book–Verrilli said that NFIB and King were the most important arguments of his tenure.

“Those were cases, from the perspective of the administration, one of its most important policy, where virtually everything was on the line.”

Verrilli was asked if the legal debate over Obamacare was over.

You had the Chief Justice for 6 Justices in King v. Burwell, as a matter of statute, it really needs to provide subsidies in every state to work as intended. I think the debate is effectively over.

Watch the full interview.

The New York Times reports that Senator Susan Collins, a moderate Maine Republican, has proposed a different version of the no-buy list. It is even worse that the Toomey-Winkler version, that has apparently already been rejected by the Senate. Details are light, but here is how the Times describes it:

The legislation being drafted by Ms. Collins would bar the sale of guns to terrorism suspects who appear on either the government’s no-fly list or the so-called “selectee” list, in which individuals are subjected to additional security screening before being allowed to board an airplane.

I don’t see how this is any improvement. The government can indiscriminately add people to the “no-fly” list based only on a reasonable suspicion that the person poses a threat to aviation security. And Collins extols the proposal because it doesn’t even impose a stringent probable cause requirement (which is still too lax)!?

But while the gun restrictions proposed by Ms. Collins would target a narrower group of individuals, her measure does not require federal prosecutors to demonstrate “probable cause” of criminal terrorist activity required in an alternative to the Feinstein measure sponsored by Senator John Cornyn of Texas, the No. 2 Republican.

Democrats say Mr. Cornyn’s measure, which will also be voted on Monday, sets such a high burden of proof that it renders useless the underlying gun restrictions.

Collins actually said that “probable cause” is too high of a standard!

Instead, Ms. Collins has proposed an appeals process that would award attorney’s fees to anyone who successfully challenged the government’s effort to prevent the sale of a firearm.

“If you are either on the no-fly list or the selectee list, which is the list where you are subjected to additional screening before you are allowed to board a plane, then you would be prohibited from purchasing a gun,” Ms. Collins said.

She said she agreed that Mr. Cornyn’s measure set a standard too difficult to meet. “If probable cause is found then probably law enforcement could arrest you,” she said. “If you have got that, you are going to be arrested, unless they are leaving you out there in order to catch others.”

That’s the point! If there is evidence to charge you, then you should be charged. Constitutional rights cannot be willy-nilly held in limbo because the Attorney General has a hunch, which is all that reasonable suspicion requires.

It gets worse, if you have been on a watch list for five years, then your gun purchases will be flagged.

Ms. Collins and Ms. Feinstein have each added language to their proposals aimed at addressing the situation in Orlando, in which the killer, Omar Mateen, had been on a government watch-list but was removed before he bought his guns. Though they focus on different lists, their proposals would flag for the F.B.I. gun purchases by anyone who had been on the designated watch list within the last five years.

Now the government has every reason in the world to indefinitely keep U.S. Citizens (predominantly Muslim men) on these lists to hit the 5-year threshold. What kind of perverse incentive is this? The lists will continue to swell in size.

I still feel like I am living in a bizarro world: Democrats seek to eliminate the presumption of innocence by retracting the procedural protections of civil rights, blinded by their pursuit of the gun control agenda. Maybe Chuck Schumer will grow a beard like Mr. Spock, because we are now living in a parallel universe.

My second question on my Spring 2016 constitutional law exam imagined a Bush-v-gore-stlye constitutional crisis surrounding a deadlocked vote on Ted Cruz’s eligibility for the Presidency. But there are some interesting twists with Congress’s efforts to provide a legislative solution. I wrote this before the Indiana primary (wishful thinking, huh?) so suspend your disbelief.

Instructions: You are a law clerk for Chief Justice John Roberts. He has asked you to prepare a memorandum addressing five issues about a case arising from the 2016 Presidential election. Four of these questions will be based on issues from before the case is argued, and the fifth question arises after the case is argued. Please be sure to answer all five questions with no more than 1,000 words. Suspend your disbelief.

—

Today is November 9, 2016. Yesterday, in the presidential election, Republican Ted Cruz defeated Democrat Hillary Clinton, by an anticipated electoral-college majority of 287 to 251. (A candidate needs 270 electoral votes to win the election). However, there is a constitutional crisis. Katherine, the Secretary of State of Pennsylvania, refuses to certify any votes cast for Cruz. She asserts that Cruz is ineligible to become President because he is not a natural born citizen. Ted Cruz was born in a Canadian hospital to a U.S. Citizen mother.

 

Katherine cites Article II, Section 1, Clause 5, which provides:

 

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.

 

Katherine, a Democrat, announced that she would only certify the votes for Clinton. As a result, Clinton would receive all of Pennsylvania’s twenty electoral votes. This decision would flip the outcome of the election, with Clinton receiving 271 votes, and only 267 for Cruz. Clinton would then become the 45th President.

 

Cruz immediately protests, claiming that he is eligible to be President, and his votes should be certified. Cruz argues that a person born abroad to a U.S. citizen parent is a U.S. citizen from birth with no need for naturalization. And the phrase “natural born Citizen” in the Constitution encompasses all such citizens from birth. Thus, an individual born to a U.S. citizen parent — whether in California or Canada or the Panama Canal Zone — is a U.S. citizen from birth and is fully eligible to serve as President if the people so choose. And the people of Pennsylvania so chose.

 

With the transition of power in flux, the House and Senate quickly vote on, and pass the Natural Born Citizen Act of 2016 (NBCA). The act has five sections:

 

Section 1: For purposes of Article II, Section 1, Clause 5, a person who is born to a U.S. Citizen is a “natural born citizen,” regardless of where the person is born.

Section 2: This Act shall apply to all presidential candidates who received votes prior to November 9, 2016.

Section 3: The interpretation of the Constitution offered in Section 1 shall be binding on all federal courts.

Section 4: All executive officers of the several states shall be bound by this Act.

Section 5: All constitutional challenges to this Act shall be heard before a three-judge panel in the U.S. District Court of the District of Columbia. The judgment from this court shall be reviewable by appeal directly to the Supreme Court of the United States.

 

President Obama, who has had his own experiences with the Natural Born Citizen clause, vetoes the bill. Publicly he states that he has doubts about the law’s constitutionality, because Congress cannot impose its interpretation of the Constitution on the other branches. Privately, however, he admits that he wants his former Secretary of State to become President over Cruz. To the surprise of many, in a rare act of bipartisanship, the Senate and House override the President’s veto. (Suspend your disbelief). The NBCA becomes law.

 

Katherine announces that Section 4 of the NBCA is unconstitutional, and states that she will not certify Cruz’s votes. Pursuant to Section 5 of the NBCA, Cruz files suit against Katherine before a three-judge panel of the U.S. District Court for the District of Columbia. Cruz is seeking a declaratory judgment of whether NBCA is constitutional. Clinton, who has a concrete injury in the outcome of the case—the presidency—intervenes, and argues that the act is unconstitutional in its entirety.

 

The three-judge panel hears arguments on November 19—exactly one month before the electoral college must vote on December 19. The oral arguments are fiercely divided, and the next day the three judges jointly issue a stunning, one-sentence order: “With this court unable to reach a timely resolution of the claims, pursuant to 28 U.S.C. § 1254, we certify this case to the Supreme Court of the United States for a final resolution.” Through this arcane procedural move, a decision in the lower court is bypassed, and the case is sent directly to the Supreme Court.

 

On November 24, the Supreme Court agreed to hear the certified case, limited to the questions of whether sections 1, 2, 3, and 4 of the NBCA are constitutional. Following a brutal briefing schedule, oral arguments are scheduled for December 1.

Before oral arguments, the Chief Justice asks you to prepare a memorandum that answers the following four questions:

 

1. Under what authority can Congress enact Section 1 of the NBCA?
2. Is Section 2 of the NBCA constitutional?
3. Is Section 3 of the NBCA constitutional?
4. Is Section 4 of the NBCA constitutional?

 

After arguments, the Justices hold their private conference the morning of December 2. The meeting usually takes an hour. However, that day the Chief Justice returns to chambers twelve hours later. He tells you, “The Court has divided evenly, 4 Justices to 4 Justices. With Justice Scalia’s absence, there is no way to cobble together a majority opinion.” You ask, “Can’t you reach a compromise?” The frustrated Chief Justice replies, “We tried for twelve hours. No one is willing to budge.” (Suspend your disbelief).

 

Under the Court’s normal practice, when the Justices deadlock on a 4-4 tie, the judgment of the lower court is affirmed. However, due to the fact that the three-judge panel did not render a decision—they certified the case to the Supreme Court—there is no judgment to affirm. A tied vote before the Supreme Court would leave unresolved the constitutional crisis.

 

The electoral college is scheduled to meet in two weeks, and Katherine still refuses to certify the votes for Cruz.

 

The Chief Justice asks you to answer a final question. In answering this final answer, put aside your personal preference of which candidate you support. Remember, your answer for all five parts must total no more than 1,000 words. Think carefully about your answer.

 

5. What happens next?