Law & the Courts

This Day in Liberal Judicial Activism—August 5

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(Wikimedia Commons)

1997—By a vote of 4-3, the California supreme court rules (in American Academy of Pediatrics v. Lungren) that a state law that requires a pregnant minor to obtain parental consent or judicial authorization before she obtains an abortion violates the state constitution.

In one dissent, longtime liberal justice Stanley Mosk charges that the justices in the majority, while purporting to apply the principle governing claims under the state constitutional right to privacy, in fact “reverse the principle, sub silentio.” In another, Justice Marvin Baxter argues that the majority “departs radically from any defensible view of the voters’ intent when they added a right of privacy to the [state constitution] in 1972 and undermines the fundamental and constitutionally protected right of parents to guide and control the upbringing of their children.” In the third, Justice Janice Rogers Brown concludes that the case “is an excellent example of the folly of courts in the role of philosopher kings.”

Law & the Courts

This Day in Liberal Judicial Activism—August 4

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Justice William O. Douglas

1973—On vacation in Yakima, Washington, Justice William O. Douglas issues an opinion in support of his single-justice order the previous day that purported to bar U.S. military operations in or over Cambodia. (Specifically, his order vacated the stay that a federal court of appeals had entered of a district-court order to such effect.)

Never mind that Justice Thurgood Marshall had, on August 1, denied the same application, or that the Court’s usual practice, as Douglas noted, “is to refer [a] second application to the entire Court.” Such practice, Douglas asserts, “cannot be followed” when the Court is in recess, “for the Justices are scattered,” making “[g]roup action by all Members … impossible.”

Claiming to “pay the greatest deference” to Justice Marshall’s denial, Douglas instead analogizes the legal issue to the “classic capital [i.e., death-penalty] case,” and blithely bulldozes past issues of justiciability, standing, and the political-question doctrine.

Disputing or disproving Douglas’s assessment that collective action by the justices is impossible during the recess, the Court, in an order written by Justice Marshall and agreed to by the seven other justices, overturns Douglas’s action that same day. Douglas, in dissent, contends that the statutory quorum rule governing the Court (which provides merely that six justices “shall constitute a quorum”) means that the Court can act only when at least six justices are physically present in the same place and does not allow the “telephonic disposition of this grave and crucial constitutional issue.”

2010—The Senate, by a 63-37 vote (with Democrat Ben Nelson of Nebraska among those voting no), confirms President Obama’s nomination of Elena Kagan to the Supreme Court.

2010—In a ruling that even a prominent proponent of same-sex marriage condemns as “radical,” Judge Vaughn Walker continues his wild course of misconduct in Perry v. Schwarzenegger by declaring that California’s Proposition 8 violates the federal Due Process and Equal Protection clauses.

Among other things, Walker denies that the male-female union has ever been one of the “characteristics” of marriage in the United States. In absurd “findings of fact,” Walker claims that the “evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes” and that the “evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive effect on the institution of marriage.” Never mind that plaintiffs’ own experts had rejected this latter proposition.

Ramona Ripston, executive director of the ACLU Foundation of Southern California (which filed pre-trial and post-trial amicus briefs in support of plaintiffs), publicly celebrates Walker’s ruling: “We rejoice at today’s decision but there’s a long road ahead toward establishing true marriage equality for same-sex couples.”

The next stop in that “long road ahead” is the Ninth Circuit, where—surprise!—Ripston’s husband, arch-activist Stephen Reinhardt will be assigned to the panel reviewing Walker’s ruling. Notwithstanding his wife’s personal involvement in the same case, Reinhardt will decline to recuse himself.

Law & the Courts

Three Good Judges for Ohio

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Judicial nominations do not get much attention these days, but the Trump administration continues to put forward strong judicial nominees, and the Senate is continuing to consider and confirm them. On Wednesday, the Senate Judiciary Committee held a nominations hearing to consider five district-court nominees, including three supremely well-qualified nominees for seats in Ohio: Michael Jay Newman, James Ray Knepp II, and J. Philip Calabrese. All three have prior judicial experience, either as magistrate judges or state-court judges, and all three have the intellect to be effective federal judges. And while some Democrats continue to complain about Trump’s judicial nominees, all three of these nominees for Ohio have the support of both Senator Rob Portman, a Republican, and Senator Sherrod Brown, a Democrat. This should mean that all three are confirmed rather quickly — as they should be.

[Disclosure: I served on the bipartisan judicial-advisory committee that recommended potential nominees for open seats on federal district courts in Ohio to Senators Portman and Brown.]

Law & the Courts

This Day in Liberal Judicial Activism—August 3

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Supreme Court Justice Ruth Bader Ginsburg (Jonathan Ernst/Reuters)

1993—By a vote of 96 to 3, the Senate confirms President Clinton’s nomination of D.C. Circuit judge Ruth Bader Ginsburg to the Supreme Court seat vacated by Justice Byron White. Confirmation comes a mere seven weeks after Clinton announced his decision to nominate Ginsburg.

And how, after all, could there have been any controversy over a former ACLU activist who, among other things, had stridently criticized the Supreme Court’s 1977 ruling that the Constitution does not require taxpayers to fund abortions … who had stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy … who had proposed abolishing Mother’s Day and Father’s Day and replacing them with an androgynous Parent’s Day … who had criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles … and who had urged that prisons be co-ed rather than single sex? (See here for documentation of the last several points.) That’s what the media call a “mainstream” and “moderate” nominee.

Law & the Courts

This Day in Liberal Judicial Activism—August 1

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(Kuzma/Dreamstime)

1996—One generation of liberal judicial activists is more than enough. But President Clinton obviously doesn’t agree, as he appoints Dean D. Pregerson, son of arch-activist Ninth Circuit judge Harry Pregerson, to a federal district judgeship in California.

A year earlier, Clinton had already nominated Berkeley law professor William A. Fletcher to join his mother Betty Binns Fletcher on the Ninth Circuit. But Fletcher fils won’t get confirmed and appointed until October 1998.

Law & the Courts

Re: Mistaking a Defense for a Crusade

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To follow-up on my post yesterday on Linda Greenhouse’s latest effort to stigmatize defense of religious liberty as a “religious crusade,” I’d also like to highlight this curious passage of hers:

I’ve been fascinated that some liberal commentators found the dissenting opinions persuasive and the case a close one. I understand the impulse not to appear unduly antagonistic toward religion, but I think that generosity toward the religious claim here loses sight of the broader context in which the dissenting justices were writing.

As her link shows, Greenhouse is expressing her disagreement with Vox’s Ian Millhiser, who, as I pointed out in my initial post on the Calvary Chapel order, found Justice Alito’s dissent to be “unusually persuasive.” Millhiser’s legal analysis of the case is much more thorough and better reasoned than Greenhouse’s, yet she disparages it as driven by an “impulse not to appear unduly antagonistic toward religion” (an impulse no one would ever accuse Greenhouse of having). Indeed, her statement that she is “fascinated” by it seems to put Millhiser’s analysis beyond the realm of the normal. Almost as if Greenhouse is trying to patrol the boundaries of liberal commentary.

Law & the Courts

Judicial Conference Abandons Misguided Draft Opinion on Judicial Membership

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Some good news: As I was (I think) first to report yesterday afternoon, the Committee on Codes of Conduct of the Judicial Conference of the United States has abandoned its poorly reasoned draft advisory opinion (which I made public in January) that would have barred federal judges from being members of the Federalist Society while allowing them to be members of the American Bar Association.

Here’s the memo that sent the news to all federal judges yesterday. The Committee “has decided to rely on the advice it has previously given to judges as to how judges should analyze membership in [law-related] organizations.” It concludes that the “balancing [of relevant] considerations is ultimately best left to the judgment of individual judges.”

Law & the Courts

This Day in Liberal Judicial Activism—July 31

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H. Lee Sarokin

1996—The annals of This Week suffer a severe blow, as arch-activist H. Lee Sarokin resigns from the Third Circuit after less than two years of service. Imagine what he could have accomplished with more time!

Even Sarokin’s reason—or, more precisely, his stated reason (see This Day for April 25, 1996)—for resigning is intensely political: he informs President Clinton by letter of his fear that “my decisions will continue to be used against you and others in the upcoming campaign.” In other words, Sarokin resigned in order to minimize the adverse impact that his ongoing rulings would have on the political fortunes of his favored candidates.

2007—Federal district judge David Hamilton’s reckless invocation of substantive due process to suppress evidence of marijuana and crack cocaine found in the apartment of a criminal defendant ends poorly, as the Seventh Circuit (in United States v. Hollingsworth) unanimously reverses his ruling.

But Hamilton’s lawless sense of empathy—also manifested in his extraordinary seven-year-long series of rulings obstructing Indiana’s implementation of its law providing for informed consent on abortion—evidently captures the attention of President Obama, who in March 2009 makes the former ACLU activist his first nominee to a federal appellate seat. In its headline on the nomination news, the New York Times touts Hamilton as a “moderate.”

2012—By a vote of 5 to 3, the Missouri supreme court rules (in Watts v. Lester E. Cox Medical Centers) that a statutory cap on non-economic damages in medical malpractice cases violates the right to jury trial set forth in the state constitution. The court overrules its own better-reasoned precedent to the contrary.

Law & the Courts

Mistaking a Defense for a Crusade

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I know I should be jaded by now by the persistence of Linda Greenhouse in seeking to stigmatize defense of religious liberty as a religious crusade. But I was still startled today to see her do it yet again in her online column ever so subtly titled “The Supreme Court’s Religious Crusaders Take On the Pandemic Response.” That column opens:

I know I should be jaded by now by the persistence of the Supreme Court’s conservative justices in seeking to elevate religious interests over those of secular society…. But I was still startled last week to see Justices Samuel Alito, Brett Kavanaugh, Neil Gorsuch and Clarence Thomas vote to turn a public health issue into a religious crusade.

Greenhouse unreflectively takes it as a given that the dissenters in in Calvary Chapel Dayton Valley v. Sisolak (topic of my post here) had the burden of showing that Nevada “singled churches out for onerous treatment without reason.” (Emphasis added.) But that’s a highly dubious interpretation of the standard, set forth in Employment Division v. Smith (1990), that laws that are “neutral” and “generally applicable” do not violate the Free Exercise Clause.

Greenhouse observes that “[p]eople who are sitting—and breathing—together for a prolonged period in an enclosed space might as well put out a welcome mat for the coronavirus,” and she recognizes that that observation applies to people in casinos. But by her account “it’s casinos that Nevada singles out for special treatment, not religion.” That is, she maintains that Nevada singles out casinos for special favorable treatment, rather than singling out religion for special unfavorable treatment.

As the dissenters point out, other facilities favored under the Nevada governor’s order include restaurants, bars, bowling alleys (even for tournaments with hundreds of spectators), breweries, fitness facilities, and arcades. It’s true that there are some other secular facilities that are subject to the same 50-person cap as churches. But it’s very difficult to maintain that a law—in this instance, a governor’s order—is “neutral” and “generally applicable” when it treats religious gatherings less favorably than many comparable secular gatherings. Greenhouse doesn’t even acknowledge the issue, much less make the necessary argument.

Greenhouse also ignores Justice Alito’s account of the greater risks that casinos present:

For Las Vegas casinos, 50% capacity often means thousands of patrons, and the activities that occur in casinos frequently involve far less physical distancing and other safety measures than the worship services that Calvary Chapel proposes to conduct. Patrons at a craps or blackjack table do not customarily stay six feet apart. Casinos are permitted to serve alcohol, which is well known to induce risk taking, and drinking generally requires at least the temporary removal of masks. Casinos attract patrons from all over the country….

Houses of worship can—and have—adopted rules that provide far more protection. Family groups can be given places in the pews that are more than six feet away from others. Worshippers can be required to wear masks throughout the service or for all but a very brief time. Worshippers do not customarily travel from distant spots to attend a particular church; nor do they generally hop from church to church to sample different services on any given Sunday. Few worship services last two hours. (Calvary Chapel now limits its services to 45 minutes.) And worshippers do not generally mill around the church while a service is in progress.

Greenhouse professes herself “astonish[ed]” by the “ferocity” of Alito’s dissent, which she says “appear[s] oblivious to the facts on the ground, particularly the well-documented role of religious services in spreading the virus.” But the strongest statements in Alito’s dissent are of the nature of “We have a duty to defend the Constitution, and even a public health emergency does not absolve us of that responsibility.” Greenhouse’s own rhetoric is far more fierce. As the excerpt above shows, it’s Greenhouse who seems determined to be “oblivious to the facts on the ground” that Alito spells out. And while I agree that indoor religious services, like comparable indoor activities, present a risk that warrants special measures, the article that Greenhouse links to refers only to “[m]ore than 650 coronavirus cases.” Given that there are more than 4.5 million total cases in the country, that number hardly justifies Greenhouse’s insinuation that religious services have played some special “role … in spreading the virus.” (It’s probably far easier to trace cases that arise from religious services than those that arise from, say, restaurants or outdoor protests.)

Pandering to the biases of her prime audience, Greenhouse also snarks about the Alliance Defending Freedom, the religious-liberty organization that represented Calvary Chapel. ADF, she ridiculously claims, “used to focus primarily on representing people seeking a religious exemption from having to do business with couples in same-sex marriages.” ADF has long defended a broad array of religious-liberty rights.

Law & the Courts

The Supreme Court’s Imaginary ‘Hard Right’ Turn

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A cherub figure with a book, symbolizing learning, at the Supreme Court building in Washington, D.C., July 2, 2020. (Jonathan Ernst/File Photo/Reuters)

There is a persistent effort in some corners to paint the Supreme Court as a “hard right” institution, and Chief Justice Roberts in particular as a relentless partisan. The latest example comes from this op-ed in the National Law Journal by Fix the Court’s Dylan Hosmer-Quint, “In Anonymous Decisions, Supreme Court Opaquely Takes a Hard Right” (subscription required). According to the op-ed, the Court’s per curiam orders rejecting last-minute, judicially imposed changes to election procedures and vacating injunctions against the resumption of federal executions represent “partisan” decisions. “Under the cover of darkness, the chief justice is again steering the court hard to the right,” Hosmer-Quint writes.

There are two major problems with Hosmer-Quint’s argument. First, although the article is ostensibly about the need for greater transparency, Hosmer-Quint simply ignores those “anonymous” per curiam orders and decisions that don’t fit his thesis about the Court’s alleged rightward turn. In multiple unsigned orders, the Court has rejected challenges by religious institutions to COVID-control measures that appear to discriminate against religious assemblies. These decisions were also 5–4, but Chief Justice Roberts joined the liberals to form the majorities each time, so they run directly contrary to Hosmer-Quint’s thesis — and he simply ignores them.

Considering the Chief Justice’s behavior as a whole, one sees a fairly consistent pattern of voting against preliminary injunctions by lower courts. This is what unifies his votes to reject lower-court orders changing election rules and blocking executions with his votes against pleas for injunctions by religious institutions, as I discussed in this Volokh Conspiracy post. There is plenty to criticize in the Chief Justice’s jurisprudence, but such criticisms should not be based upon selective evidence squeezed into preset narratives.

A second problem is that the article characterizes decisions that maintain the status quo as sharp right turns. The Supreme Court has made clear that capital punishment is constitutional, and has repeatedly rejected creative efforts to challenge lethal-injection protocols. Whether or not this represents sound policy, preventing lower courts from erecting new road blocks to executions is hardly a “hard right” turn. Ditto orders rejecting district-court injunctions changing election rules. And, again, Hosmer-Quint simply ignores the “anonymous” orders that do not fit his thesis.

Like it or not, the Chief Justice is a judicial minimalist who generally works to preserve the status quo and resists dramatic change (even in his desired direction). This is frustrating to progressives who want the Court to be the vanguard of social change, as it is to conservatives seeking to restore traditional constititutional norms, or to libertarians urging greater “judicial engagement.” My point here is not to defend Roberts so much as to insist that any criticism be based upon his actual record and not some ideological caricature.

There are strong arguments from greater judicial transparency, which I generally support. Yet Fix the Court does not help that cause by making attacks and unfounded criticisms based upon selective evidence.

Law & the Courts

This Day in Liberal Judicial Activism—July 30

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(Kuzma/Dreamstime)

2003—The seventh cloture vote on President Bush’s nomination of the superbly qualified Miguel Estrada to the D.C. Circuit yields the same result as the first cloture vote nearly five months before: Only four Senate Democrats vote for cloture, and the vote fails to end the filibuster. On September 4, 2003, Estrada withdraws his nomination.

Commenting on the Democrats’ successful filibuster of the Estrada nomination, Senator Chuck Schumer turns faux-originalist: “my guess is that [if] the founding fathers were looking down on the Senate today, they’d smile.” Guess again, senator.

Law & the Courts

Stephen Carter’s Wonderful Review of Scalia Speaks

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A friend has just called to my attention Yale law professor Stephen L. Carter’s wonderful review of Scalia Speaks: Reflections on Law, Faith, and Life Well Lived, the New York Times bestselling collection of speeches by Justice Scalia that his son Chris and I co-edited. I’m embarrassed to say that I somehow missed the review when it was published way back in December 2017. (Either that, or my memory and Google searches are failing me.)

Here are some excerpts from the review, which Carter calls “a fascinating look into the thinking of the most influential justice of recent times”:

Scalia was a great believer in writing clearly — an ability every jurist should possess. So much of what nowadays passes for judicial reasoning is shapeless and obscure; many an opinion lauded by partisans on one side or the other is, analytically, a hopeless mess. In accepting the lifetime achievement award from the American Society of Legal Writers, Scalia explains, correctly, that the most important ingredients of good writing are “time and sweat.”

Exactly. Disagree with Scalia if you like, but his opinions always sparkle. So do the speeches collected here. Brilliance and erudition leap from the pages, and it’s easy to see why Scalia, agree with him or not, will likely go down in history as one of the greats. We meet Scalia the philosopher, Scalia the humorist, Scalia the devout Catholic. Just as important, we meet a jurist who is able to state his philosophy with clarity and verve….

Liberal presidents should not be trying to fill the courts with little lefties, and conservative presidents should not be trying to fill the courts with little righties. Rather, both should be seeking jurists who care about craft and principle, whose reasoning is sharp and transparent, and whose sense of history and process never allows them to forget the norms of their profession. They should, in short, be searching for little Scalias.

While I’m at it, allow me to remind you that the third volume in the trilogy of Scalia work that I’ve co-edited—The Essential Scalia: On the Constitution, the Courts, and the Rule of Law—will be published on September 15 and is available for pre-order now. My co-editor for this volume is Sixth Circuit judge Jeffrey Sutton, who has also written an excellent introduction. The volume also features a beautiful foreword by Justice Elena Kagan. If you want to encounter Justice Scalia’s great legal mind in action, from broad questions about legal interpretation to specific disputes over constitutional provisions, this is the book for you.

In case you’ve forgotten, the second volume is On Faith: Lessons from an American Believer (which I describe more fully here).

Law & the Courts

This Day in Liberal Judicial Activism—July 29

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Justice Stephen Breyer (Chip Somodevilla/Getty)

1994—By a vote of 87 to 9, the Senate confirms President Clinton’s nomination of First Circuit chief judge (and Teddy Kennedy’s former chief counsel to the Senate Judiciary Committee) Stephen G. Breyer to the Supreme Court. Breyer replaces retiring Justice Harry A. Blackmun.

Breyer’s path to the Supreme Court began when President Jimmy Carter nominated him to a newly created seat on the First Circuit on November 13, 1980—after Carter had lost his bid for re-election and after Republicans had won control of the Senate to be formed in January 1981. Less than one month later, on December 9, 1980, the Senate confirmed Breyer to the First Circuit.

2003—Senate Democrats force a third cloture vote on their filibuster of President Bush’s nomination of Texas supreme court justice Priscilla Owen to the Fifth Circuit. With only two Senate Democrats voting yes, the cloture vote fails. Owen, first nominated in May 2001, is ultimately confirmed in May 2005.

Law & the Courts

Who Leaked to Joan Biskupic?

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CNN’s Joan Biskupic has published the first two articles in a four-part series on the Supreme Court’s just-completed term, and those articles are replete with detailed confidential information that has been leaked to her. Indeed, Biskupic appears to signal that at least two of her sources are Supreme Court justices:

In their private conference room in October with only the nine and no law clerks, the justices debated whether and how to provide the same anti-bias coverage for 1 million transgender workers, according to multiple sources familiar with the inner workings of the court.

Who is doing this extraordinary leaking? And what will the Chief do to put a stop to it?

Perhaps none of the justices is culpable, and the leaking has instead been done by law clerks. On that theory, the account in the passage I quote above would be secondhand—relayed by the justices to their clerks. I’m skeptical, though, that any clerk would take the career-ending risk of leaking to Biskupic, nor is it evident why any clerk would have an incentive to do so.

On the matter of incentives, as one recent clerk (not from last term) wrote to me, Biskupic’s first article “was so flattering to the Chief by the Chief’s own criteria that it had to be someone with a strong incentive to please him.” Here are some excerpts from that article that illustrate the clerk’s point:

Chief Justice John Roberts did not flinch.

Roberts exerted unprecedented control over cases and the court’s internal operations.

The chief justice …, in a decision for the ages, rejected President Donald Trump’s extensive claims of “temporary presidential immunity.”

As he closed out his 15th term in the center chair, Roberts demonstrated a new ability to calibrate his views and build coalitions.

Roberts is only 65 and could serve 20 more years. Yet this session and his action on some of the Trump administration’s most visible policy moves will go a long way toward defining his legacy.

This sort of flattery of the Chief would seem to focus attention on the liberal justices. We know that Justice Ginsburg has been indiscreet with Biskupic before—in an on-the-record interview—and she has demonstrated in recent years a remarkable tendency to speak injudiciously on all sorts of matters, so she must surely be a prime suspect. But the level of detail provided Biskupic, as well as Biskupic’s own reference to “multiple sources,” makes me think that at least one of the other liberal justices might also have been a major source.

As for the Chief’s conservative colleagues: With the partial exception of Justice Gorsuch—whose leading role in Bostock gets flattering attention from Biskupic in the second article—I see no reason why any of them would speak to Biskupic. I also see nothing that suggests that any of them (including Gorsuch) did do so. [Addendum/modification (7/30): If Biskupic came to one of these justices with a leaked account about him that was inaccurate or misleading, then I could see that he might respond to her to correct or clarify.]

Might the Chief himself be one of Biskupic’s sources? That strikes me as highly unlikely. However flattering he might find this particular set of leaks, he has a strong institutional interest in discouraging leaks.

(One sidenote: Contrary to my speculation, Biskupic reports that the Chief assigned Gorsuch the majority opinion in Bostock at the outset.)

Law & the Courts

This Day in Liberal Judicial Activism—July 28

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Judge Rosemary Barkett.

2004—In dissent in Williams v. Attorney General of Alabama, Eleventh Circuit judge Rosemary Barkett opines that an Alabama statute that prohibits the sale of sexual devices (which Barkett also refers to colloquially as “sex toys”) violates substantive due process.

You might think that a case involving a challenge to the constitutionality of a statute prohibiting the sale of sexual devices would be about sexual devices. But, Barkett tells us, “This case is not, as the majority’s demeaning and dismissive analysis suggests, about sex or sexual devices.” Rather, “[i]t is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships.”

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