During President Obama’s first term, the Justice Department defended the Defense of Marriage Act in federal court proceedings brought by same-sex couples seeking to have their relationships treated equally by federal agencies.
In her new book, “Forcing the Spring,” Jo Becker, a reporter for The New York Times, recounts how Obama changed his position on marriage equality and directed officials in the Justice Department to drop their defense of DOMA.
Three cases now before the Supreme Court raise the question of whether the president should step in again and direct the Justice Department to change its position on important legal issues.
The first two cases, which the Supreme Court heard this past Tuesday, involve warrantless searches of smartphones by police investigating allegations of criminal activity by the owners of the smartphones. A federal appeals court in Boston ruled that such searches were covered by the Fourth Amendment, and that, in the words of that amendment, police could not search a smartphone without first getting a warrant “particularly describing” the information alleged to be stored on the phone. A state appeals court in California ruled in favor of the police in a similar case.
In both cases, the Justice Department argued before the Supreme Court that smartphone searches were not covered by the Fourth Amendment’s warrant requirement. According to the government’s brief, “searches of objects found on a person incident to arrest have always been considered reasonable searches within the meaning of the Fourth Amendment,” and there is no reason to make an exception to that general principle in the case of smartphones.
The defendants’ attorneys argued that smartphones are different from most things people carry because they are “devices increasingly necessary to navigate innumerable tasks of daily life and on which people now carry the entirety of their private papers in their pockets.” In their view, the Justice Department’s position amounts to giving the police license to carry out “general warrants,” a type of search the framers of the Fourth Amendment were particularly concerned not be permitted in the United States.
The third case involves James Risen, a reporter for The New York Times who wrote articles, and a book, about CIA activities during the Bush Administration. The Justice Department, under both the Bush and the Obama administrations, attempted to compel Risen to testify in a trial of a former CIA official alleged to have leaked confidential information to Risen. Although Risen’s attorneys were able to convince the federal trial judge that information about his sources was not necessary for the government to prosecute the alleged leaker, the Justice Department appealed, and the federal appeals court in Washington, in a split decision, ordered the reporter to testify.
Risen is asking the Supreme Court to review his case. His attorneys argue that a reporter’s privilege is essential if the press is to perform its important function of protecting the public’s right to know about the activities of government agencies by reporting stories based on information provided by confidential sources. The Justice Department argues that there is no need for a reporter’s privilege, and that the government’s need to control leaks of classified information outweighs any claim the reporter might make to represent the public interest.
In both the smartphone search and the reporter’s privilege cases, the Justice Department has come down firmly on the side of governmental interests as opposed to citizen privacy, transparency and accountability. President Obama, who was once a professor of constitutional law himself, might want to consider directing the Justice Department to reconsider its positions on these issues.
Eric L. Davis is professor emeritus of political science at Middlebury College.