The Curious Ruling In Van Buren v. United States: The Supreme Court Defies Critics With Another Consensus Ruling

Fred Schilling, Collection of the Supreme Court

A curious thing just happened on the Supreme Court when it issued the sole decision of the day. The 6-3 decision of the Supreme Court in Van Buren v. United States is not one of the blockbuster decisions that are being eagerly awaited in the coming days. The case involving computer fraud is interesting to some of us for its says about the intricacies of the federal statute. However, it is even more interesting in what it says about intricacies of the Court. In its line up of justices, the Supreme Court is again speaking loudly to critics who are demanding court packing and radical transformations of the Court. As I recently discussed regarding the release of a series of unanimous decisions, the Court could be speaking as an institution to remind the public that they are not nearly as partisan as their critics.

The decision itself concerns a police officer who ran a license plate for money. The question was whether that act constitutes a violation of the Computer Fraud and Abuse Act of 1986. The Court held that it did not.

The decision does have significance for a wide array of individuals (including journalists and researchers) who could be ensnared in the broad interpretation presented by the Justice Department. The CFAA makes it a crime to “access[] a computer without authorization, or exceed[] authorized access, and thereby obtain[] … information from any protected computer.” The Department of Justice succeeded with a number of lower courts interpreting that language as making it a crime to access information on a computer for an “improper purpose.” The Supreme Court rejected that broad interpretation and held that the law “covers [only] those who obtain information from particular areas in the computer—such as files, folders, or databases—to which their computer access does not extend.”

Obviously, the justices reached their decisions based on the merits and the law. However, the timing of the release of the decision after four unanimous decisions holds an obviously political meaning.

The line up of the majority must have been another disappointment for Democratic members and advocates who are demanding raw court packing. The decision was written by Justice Amy Coney Barrett and joined by Justices Breyer, Sotomayor, Kagan, Gorsuch and Kavanaugh. The first name is important because as the most senior justice, Stephen Breyer, must have assigned it to his conservative junior colleague, Barrett. It is a nightmare for activists: a consensus opinion written by Barrett for three conservative and three liberal justices.

That is not supposed to be the way the Court operates, according to Democratic members and advocates.  It is supposed to be hopelessly and blindly divided along ideological lines.  President Joe Biden called the Court “out of whack” due to its conservative majority. In calling for court packing, Jerrold Nadler, chair of the House Judiciary Committee, declared “We are not packing the Supreme Court, we are unpacking it.” Nadler insisted that such radical action (long opposed by the vast majority of citizens) is necessary because there is a need to “restore balance to the nation’s highest court after four years of norm-breaking actions by Republicans led to its current composition.”

Others have openly threatened conservative justices that they had to either vote with their liberal colleagues or face dire consequences for the Court.  Sen. Richard Blumenthal, D-Conn., told The Hill:

“It will inevitably fuel and drive an effort to expand the Supreme Court if this activist majority betrays fundamental constitutional principles. It’s already driving that movement. Chipping away at Roe v. Wade will precipitate a seismic movement to reform the Supreme Court. It may not be expanding the Supreme Court, it may be making changes to its jurisdiction, or requiring a certain numbers of votes to strike down certain past precedents.”

Blumenthal went as far as to mention specific cases and the expected rulings. This follows raw demands in the confirmation hearing of now Justice Amy Coney Barrett that she promise to rule on particular cases “correctly” as a condition for her confirmation.

Senate Majority Leader Chuck Schumer shocked many in front of the Supreme Court last year when he declared “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”

The Court is expected to issue divided opinions on upcoming cases, but it seems to be frontloading opinions that drive home the fact that most cases are not driven by such ideological divisions.  The fact that Breyer gave the case to Barrett is particularly notable.  Breyer has been the target of a campaign by a Democratic “dark money” group called Demand Justice and others. Breyer warned against any move to expand the Supreme Court and rejected the characterization of the current Court as “conservative” or ideologically rigid. He was denounced by figures like cable news host Mehdi Hasan who called him “naive” and called for his retirement.

Demand Justice is pushing the court packing scheme and had a billboard truck in Washington the next day in the streets of Washington warning “Breyer, retire. Don’t risk your legacy.” (Demand Justice once employed White House press secretary Jen Psaki as a communications consultant, and Psaki was on the advisory board of one of its voting projects.)

The pressure on Breyer to retire could backfire. He could decide that the greatest harm to the Court is not he continuing but his leaving the Court after such a coercive and reckless campaign.

Justices are meant to speak through their opinions and this decision speaks profoundly and clearly to those like Blumenthal threatening the Court and its member with “seimic” changes. It again seems to speak, by accident or by design, that the Court remains unpacked and unbowed in carrying out its constitutional duties.

A shorter version of the column ran of

31 thoughts on “The Curious Ruling In Van Buren v. United States: The Supreme Court Defies Critics With Another Consensus Ruling”

  1. After reading the Court’s opinion I can only conclude that it’s now ok for the police to sell information obtained in computers they have access. I mean what, in this opinion/ruling, prevents this from happening again?

  2. I don’t see how this 6-3 split on a case everyone admits that no one really cares about is proof that the Court doesn’t have some serious issues due to manipulations, not done in good faith, to pick the Court with conservatives. We shall see in cases that matter…

  3. I don’t have a copy, and my local library has been closed for over a year, but someone told me the OED has ten pages on the word “so”. They need to add a few more to incorporate this opinion of ACB.

  4. The Supreme Court should not be assessed by the decisions it makes but, rather, by the process through which it makes those decisions.

    On this point, the justices are in strong agreement and will not sit idly by as politicians, unhappy with certain decisions, attempt to politicize the Court’s decision-making process. In 2021, we have seen the justices close ranks whenever the opportunity has presented itself.

    The Court will always be made up of flawed human beings, which can be frustrating for many Americans from time to time depending on our backgrounds and biases. But it is absurd to think that injecting more politics into the system will have anything but a negative effect no matter your political perspective.

  5. I find the remarks about Justice Breyer’s “legacy” insulting. After decades of service, innumerable written decisions, and all their contributions to the development of legal thought in this country, is the legacy of a Supreme Court justice to be reduced to assuring their replacement is appointed by the same party that appointed them? I’ve long been an admirer of Justice Ginsburg, for her intellect and personal toughness if not for her ideology. Are her 27 years of service to be erased, and her legacy to be reduced to some variation of “traitor to the party” for the sin of dying at a politically inconvenient time?

  6. SCOTUS can always be overturned by the legislature. By the will of the people. After that Cluster fuster called Kelo was handed down, a whole slew of State Legislatures passed State laws to protect Private property from abusive takings. That happened quickly, less than two years before laws were on Governors desks, and still ongoing today. SCOTUS got it wrong and the people acted.
    Same with sticking their nose into abortion. Local and State jurisdictions were handling abortion just like the people wanted. But after Roe, the States had to take back their Constitutionally protected power to self govern. The People elected to State legislatures those that promised to take the power back from an over reaching SCOTUS,

  7. Democrats are sympatico with their heroes, like Venezuela’s Chavez. Chavez rewrote the Constitution and “packed the court” by adding 10 new justices to it. That’s how Chavez turned a country full of natural resources and an educated population into a slum full of gangs with people losing 20lbs on average over the last 10 years because they are starving?

    After Chavez’s agenda was enacted, Venezuela became a country of hyper inflation, lines for groceries, gas, heat, etc. Of course, it didn’t happen within the first 150 days – just slowly while the Venezuelans were sleeping and the Press was supporting it. All based on idea of equity and equality. He’s a perfect example of what happens when you elect a socialist (or a puppet socialist) who said he was a moderate. Sound familiar?

    Blumenthal, Biden, and the Democrat majority worships these fascists like Chavez and will ruin the US just as Chavez ruined Venezuela if they are able to pass their corrupt agenda.

  8. I just read the decision, and it’s a corrupt piece of junk justice. A cop engaged in a covert, corrupt scheme to collect $5000 by using his access to the State’s license database to do private investigation work.

    At trial, a jury of his peers listened to the case facts and law, and found him guilty of “exceeding his authorized access” to the database.
    I mean, c’mon, this is a form of computer hacking — finding someone with technical access by not authorization, and bribing them to do the dirty deed.

    Why was it worth $5000? Because the information sought cannot be legally obtained. The amount of the bribe is prima facie evidence of the riskiness of the transgression sought.

    And this Court overturned the Jury? Despicable! It’s a pro-hacker, pro-police-corruption verdict. I’m flabbergasted at the lawlessness upheld in this decision.

    1. The Law is not there to give you the result you want. It is there to provide certainty about the rules under which our society operates.
      You seem to think that because he did something wrong, we are justified in convicting him on a charge of anything.

      1. Respectfully, I disagree. The Court had to invent a distinction not in the law to overturn. And that distinction now green-lights trusted officials with access to restricted databases to freelance as PIs for pay. The lawlessness upheld as guilt-free is breathtaking.

        That said, there was an strong element of FBI entrapment involved. I’d much rather this conviction be overturned on that basis.

        1. distinction now green-lights trusted officials with access to restricted databases to freelance as PIs for pay.

          Lawyers will have to correct me here. I’m making some assumptions. “Police Officer” here means local police officer? Accessing a State data base,? State DMV records. If there are not laws on the books for abusing that access, now would be a good time to enact some.
          This looks to me like the Feds flexing their muscle were it was not warranted. Why make a “federal case” out of this? Muniuciple, county, and state jurisdictions would be the proper judicial venue to hold a person accountable.

        2. That “strong element” is a howler. The majority said that “somehow” the recording found its way to the FBI? How’s that again? So “somehow” the Feds devised a sting operation for the misuse of a computer – something that Van Buren gave no hint he ever contemplated! – to fashion another excuse to intervene into state law enforcement. With the exception of Thomas – who’d let you pliers out his fingernails before reversing a conviction – the Feds behavior on this “sting” was too much even for liberals.

  9. “You can’t handle the truth!”

    – Colonel Jessup

    The important question in the “court packing” debate is why the communists (liberals, progressives, socialist, democrats, RINOs) are threatening the Supreme Court.

    The answer is that they know their entire American welfare state is illegitimate, illicit and unconstitutional.

    Were a Supreme Court which supported the literal Constitution to suddenly appear, there would be no communists (liberals, progressives, socialists, democrats, RINOs) in America because they, and the principles of communism they espouse and impose, are irrefutably unconstitutional, antithetical and anti-American.

    The manifest tenor:

    Article 1, Section 8, provides Congress the power to tax ONLY for “…general Welfare…,” omitting and, thereby, excluding any power to tax for individual or specific welfare, redistribution of wealth or charity. The same article provides Congress the power to regulate ONLY money, the “flow” of commerce and land and naval Forces. Additionally, the 5th Amendment right to private property is not qualified by the Constitution and is, therefore, absolute, allowing Congress no power to claim or exercise dominion over private property, the sole exception being the full taking of property under the principle of eminent domain.

    The judicial branch has no power to legislate, modify legislation or modify by “interpretation.”

    Government exists, under the Constitution and Bill of Rights, to provide maximal freedom to individuals while it is severely limited and restricted to merely facilitating that maximal freedom of individuals through the provision of security and infrastructure.

    The entire communistic American welfare state is unconstitutional, including but not limited to, affirmative action, quotas, welfare, food stamps, rent control, social services, forced busing, minimum wage, utility subsidies, WIC, TANF, SNAP, HAMP, HARP, TARP, Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc.

    Karl Marx wrote the Communist Manifesto 59 years after the adoption of the Constitution because none of the principles of the Communist Manifesto were in the Constitution. Had the principles of the Communist Manifesto been in the Constitution, Karl Marx would have had no reason to write the Communist Manifesto. The principles of the Communist Manifesto were not in the Constitution then and the principles of the Communist Manifesto are not in the Constitution now.

    The incremental act of “…fundamentally transforming the United States of America…” began in 1860, contemporaneously with the progressive imposition of communism. Marx theorized the elimination of classes from society. “Crazy Abe” Lincoln did it.

    Freedom and Self-Reliance

  10. Off topic but I was wondering whether the reports that Google and Facebook shaped output to move votes to Biden could be treated as an in-kind, undisclosed contribution to a political candidate. Just wondering.

  11. “ the Supreme Court is again speaking loudly to critics who are demanding court packing and radical transformations of the Court. ”

    Turley is against making claims that are not rooted in fact. What he IS saying is what he wants everyone to thing the court is saying.

    Turley is just taking an opportunity to make as assumption into a fact. The court could just be making unanimous decisions because the cases are not ideological, they are cases dealing with minutiae on legal definitions.

    1. You are such a putrid and terrible Progressive liar. Give another example of a Justice whom leans one direction giving the job of writing the ruling to a member whom leans the opposite political direction. If Turley’s suggested idea is not the correct reason, suggest another reason. Did Breyer follow the directions he heard from a filling in his tooth?

    2. they are cases dealing with minutiae on legal definitions.

      How did they get to the supreme Court? Conflict of lower courts. That means that not all legal minds are in lock step. Least of all, 9 Judges who are ruling on party line votes…according to Democrats.


    The SCOTUS model, from 1789, established the number of justices as directly proportional with the docket.

    Juridical objectivity was the original intent, in avoidance of political subjectivity.

    “To limit the geographical area traveled by the justices, the Judiciary Act of 1789 divided the circuit courts into three regions: Eastern, Middle and Southern. The reason that the first Supreme Court had six justices was simple—so that two of them could preside in each of the three regions.”

    – History

    The communists (liberals, progressives, socialists, democrats, RINOs) in America violate the letter and spirit of the Constitution, and steal elections, in order to nullify the American thesis of freedom and self-reliance and impose “the dictatorship of the proletariat” on the American people.

    Failure begets failure. Government was never intended or designed to be so large and commanding in America, and the entire American welfare state is unconstitutional and only exists because of the failure of the Supreme Court to strike it down at each increment of its evolution . The singular American failure has been and continues to be the judicial branch, with emphasis on the Supreme Court, which was charged and sworn by legal mandate to support the literal manifest tenor of the Constitution and Bill of Rights.

    The American Founders gave Americans the one and only thing they could: Freedom. Their genius produced the greatest and most definitive document on self-governance in the history of man. The perpetuation of the principles of the American Founders relies very little on the vote, and almost entirely on the support of its “manifest tenor” by the Supreme Court.

    The Supreme Court has failed.

    “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

    “…men…[will] do…what their powers do not authorize, [and] what they forbid.”

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton

  13. Another example of Turley’s assignment to use every opportunity to bash Democrats. Another point is to try to pre-defend and deflect criticism against the all-but-certain results in the hot-button cases that are in the pipeline. Everyone who knows anything about the SCOTUS knows why Kavanaugh, Gorsuch and Barrett were chosen, and it’s not because of their brilliant jurisprudence. Barrett even wrote a law review article spelling out how to overturn Roe v. Wade, and that’s why she was chosen. Her choice was to get the Evangelicals to the polls to vote Republican. It was Republicans who did the court-packing with ultra-conservatives whose views are far right of the majority of Americans. Now that Republicans have gotten away with packing the Court, they and their enablers, like Turley, scream about Democrats trying to level the playing field by even suggesting that more moderate judges should be added. And, Turley, SCOTUS judges are not meant to “speak” via their opinions, either. That’s not their job.

    For some reason, Republicans have a problem with accepting the basic premise of America, which is that the will of the American people should prevail. All they know is that they want power and don’t want to pay their fair share of taxes. As they lose support, they engage in aggressive gerrymandering. They enact voter suppression laws to make it more difficult for people to vote, especially people of color. They have stripped power from election officials, and would make it easier for someone like Raffensberger, for example, to carry out Trump’s command to turn around certified election results. These laws were not enacted to address any actual fraud because there wasn’t any.

  14. If the Court’s critics would just STFU…Democrats, Republicans, the Media, everyone…..and let the Court do its job and then read the Decisions….like really and carefully read the decisions….before injecting their own ideology into the discussion….we would be far better off.

    We are not all going to be happy with the Court all the time….that is a given.

    What matters is not what the Decision was….but how it was arrived at that matters.

    Did the Court rely upon the Law as written by Congress or the State Legislature balanced against the Constitution and Precedent or not.

    If the majority did….then enough said.

    If they did not…then there is grounds for complaint.

  15. What we are witnessing today, is a civil war between branches of Government. What the Democrats are doing is the most dangerous thing we have seen in our lifetimes. For the executive and the legislative branches to attempt in every way possible, to intimidate the Surpreme Court and even individual Justices, is what can easily bring America down to the level of a third world autocracy. The Court is becoming cohesive, in order to save the Republic from this Democrat onslaught. Only a victory by the GOP in the 2022 midterm elections, can save this Democratic Constitutional Republic, from destroying itself.

    1. Tell that to Natatcha, a far left partisan who thinks she knows more about ConLaw than Turley. It really is silly.

    2. And what happens if the GQP does not win in 2022? Stage a riot? Storm the state capitals? Have judges throw out elections if they don’t like the results? Stand on street corners with AR-15’s? Have 25 recounts for every election that republicans lose? Demand that if republicans win it’s fair, if democrats won it’s fixed?

  16. A decision that turns on definitions. An interesting turn on how everyone sees this. Yet, I wonder why everyone sees this as monumental because this is normal for the court. The vast majority of cases decide by the Court are not hot button issues. This should be one, not because it is a “mixed” opinion, but because it is settling definitions. Yet, the tea leaf reading is saying the Court is putting on a show. Give it a few days and the screaming will start. Then it can go back to “normal” for everyone but the Court. This is already normal for them.

  17. Interesting line up in that decision. Is the Court somehow listening to “public opinion”, much like the Court after FDR proposed packing? Or perhaps they’re trying to show some unity to forestall any packing attempt

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