Wednesday round-up

At Supreme Court Brief (subscription required), Tony Mauro reports that “Deputy U.S. Solicitor General Michael Dreeben will detour from special counsel Robert Mueller’s legal team next week to argue before the U.S. Supreme Court in high-profile privacy case,” Carpenter v. United States, which asks whether the government must obtain a warrant for cell-site-location information. At the Washington Post’s Volokh Conspiracy blog, Will Baude explains why “the positive law model” of the Fourth Amendment, under which “it is a search for the government to gather information in a way that a similarly situated private party would not be allowed to do,” provides “an alternative theory” for evaluating Carpenter “that may avoid a lot of line-drawing problems.”

Briefly:

• The editorial board of The New York Times weighs in on two cert petitions the court will consider next week that ask whether sentences of life without parole for juvenile offenders are unconstitutional, arguing that “for the sake of the hundreds of juveniles in [Michigan and Louisiana], many of whom have spent decades rehabilitating themselves, and to reaffirm the court’s role as the ultimate arbiter of the Constitution, the justices should ban these sentences for good.”

• At The Economist’s Democracy in America blog, Steven Mazie suggests that the recent addition of Judge Brett Kavanaugh, a former law clerk to Justice Anthony Kennedy, to President Donald Trump’s list of potential Supreme Court nominees may “be a pinky-promise golden parachute to … Kennedy,” but warns that if “Kennedy considers the fate of his judicial legacy on the Supreme Court, he may think twice,” because, “[l]ike Justice Gorsuch, Judge Kavanaugh is more conservative than his old boss.”
• At Bloomberg BNA, Jordan Rubin looks at the cert petition in Hidalgo v. Arizona, a case challenging Arizona’s death-penalty scheme and the death penalty nationwide, noting that “only two justices have squarely called for a reexamination of the death penalty’s constitutionality,” but that experts suggest that “the justices could—and very well may—elect to just take up the Arizona-specific question and ignore the blockbuster issue of the death penalty itself.”
• At Crime and Consequences, Kent Scheidegger offers his take on the U.S. government’s request to the Supreme Court for a stay of a Hawaii district court ruling blocking enforcement of key portions of the president’s September 24 ban.
• At the Cato Institute’s Cato at Liberty blog, Jay Schweikert discusses Collins v. Virginia, in which the court will decide whether the automobile exception to the warrant requirement allows a police officer to conduct a warrantless search of a car parked on private property near a house; he argues that “permitting such a practice would be squarely inconsistent with the Fourth Amendment’s special solicitude for the privacy of the home.”
• At National Review, Ed Whelan points out that the court’s recent summary reversal in Kernan v. Cuero “marks at least the fourth such reversal of a … ruling” by Judge Kim McLane Wardlaw of the U.S. Court of Appeals for the 9th Circuit.
• At The World and Everything In It (podcast), Mary Reichard recaps the oral arguments in Merit Management Group v. FTI Consulting, which asks when a bankruptcy trustee can unwind transactions made by or to a financial institution, and Patchak v. Zinke, in which the justices considered the separation-of-powers limits on Congress’ ability to direct the outcome of litigation.

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