LAW & PUBLIC SAFETY

Former NJ Supreme Court justice discusses travel ban ruling and more

BY Leah Mishkin, Correspondent |

Tuesday, the U.S. Supreme Court handed the Trump administration a major victory in a 5-4 ruling. It upheld the ban imposed on travelers from several predominantly Muslim nations. In the majority opinion, Chief Justice Roberts finding that presidents have substantial power to regulate immigration and rejecting claims of anti-Muslim bias, a contention echoed in a dissenting opinion. Justice Sonia Sotomayor wrote, “a reasonable observer would conclude the proclamation was motivated by anti-Muslim animus.” To address that issue and more, former state Supreme Court Justice Peter Verniero joins Correspondent Leah Mishkin.

Mishkin: Let’s start with the breaking news of the day. The Supreme Court upheld the president’s travel ban, but this is a revised version from its original form. Tell us a little bit about what this version entails.

Verniero: Well, this version earmarks certain countries that the president, in his view, had insufficient vetting, and therefore declared a ban on entry of foreign nationals from those countries. It’s a controversial decision. The court was badly divided on this. The majority looked to the institutional powers of the president and basically upheld that power in a very strong opinion in terms of the institutional power of the president to conduct foreign policy. The dissenters, however, looked at the anti-Muslim language, some of which was wrong and inflammatory that preceded this ban, and for the dissenters they found that was sufficient evidence of religious discrimination so they would have set aside the ban. So, close case, controversial case. I think we’ll be talking about this case for a long time to come.

Mishkin: But, at the end of the day, they’re going based off of the law, so by them ruling in favor of this travel ban, they essentially give this power under the president’s jurisdiction. So, what does this mean about how to proceed ahead? Can he add more countries to this list? Is that within his power?

Verniero: Well, the court didn’t address specifically in terms of adding nations to the list, but if you read the court’s opinion, it’s not hard to imagine that. And also he could take the countries off this list as well, and the court did mention that. In fact, one country had been removed from this list. So, the majority was trying to look at this case from an institutional perspective regardless of who is president. Does the president have this type of authority and the majority said yes. The dissenters said the language used that preceded this case, the inflammatory language, was sufficient evidence to set it aside.

Mishkin: What are your thoughts?

Verniero: Well, I refrain from saying whether I agree or disagree with an opinion. I think both sides have stated their cases very clearly, and it is a controversial case. I certainly agree with the dissent that the language used was in many cases wrong and inflammatory. A question of whether that should factor in to the point where it would intrude on the president’s institutional power. That was the great tension and debate in this case and you saw how it came out with a 5-4 decision.

Mishkin: And I want to shift gears a little bit because there was another Supreme Court ruling on data collection. Just to set it up a little bit, this goes back to a case that started in 2010. There were a string of robberies. Essentially they were able to convict this suspect because of cellphone data, so the question comes into play, the fourth amendment. Tell us a little bit about this.

Verniero: This is really a cutting edge case that the United States Supreme Court decided last week. And in New Jersey, the New Jersey Supreme Court actually decided a similar case five years earlier. In fact, New Jersey was the first state supreme court of any to say that police must obtain a warrant whenever accessing someone’s cellphone location data. And what that means is when you have your cellphone, you are bouncing off signals of cell towers throughout the state, or throughout the country, and law enforcement is able to pinpoint your location with increasing precision. So much precision that it’s almost like a GPS. And both in New Jersey, and now the United States Supreme Court, both courts have said you must have probable cause and obtain a warrant before you can access that personal information.

Mishkin: We’re talking about criminal cases. There are some exemptions to this.

Verniero: Yes, well there are usually exemptions to any warrant requirement for emergencies, if there’s an abduction, if there’s a home emergency and you need to act quickly. Normally the courts will allow police to act under those circumstances. But, if you are doing a typical investigation where you are gathering evidence and so forth as was the case in the U.S. Supreme Court context, then you need a warrant.

Mishkin: Do you think this will change policing and make prosecutors’ jobs a little bit more difficult to convict some of these criminals?

Verniero: Well, technology both will help law enforcement and it will present some issues. Law enforcement has to adapt to the new technologies. They are additional tools for law enforcement, but this case is a reminder that constitutional standards still apply. And that’s obviously a good thing, right? So, we have to give this some time and see how law enforcement will adapt, but in New Jersey they seemed to have adapted quite well. And as I said, in New Jersey this has been the rule for almost five years.

Mishkin: And do you think, just looking ahead again, that this will set a precedent on not just criminal cases?

Verniero: It could. I mean, this was specifically criminal law cases. This was specifically directed to law enforcement. But, the language in the United States Supreme Court decision is so strong in terms of our expectation of privacy with our cellphone that it’s not hard to imagine that this could spill over into civil law or some commercial policy context. The Supreme Court of the United States said our cellphone location data contains the privacies of our life. It’s in the expectation of privacy is so great in someone’s cellphone that it does implicate constitutional standards.