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Monday, January 23, 2012

What happened in Jones?

SCOTUS decided United States v. Jones today, on the surface deciding 9-0 that placing a GPS device on a car and monitoring the car's movements for four weeks constituted a search requiring a warrant. But a lot more is going on beneath the surface.

Justice Scalia wrote for five justices--himself, the Chief, Kennedy, Thomas, and Sotomayor--holding that a search occurred because the government trespassed in installing the GPS device and adopting a property-based conception of the Fourth Amendment that he argues prevailed until Katz in 1967 and that exists as a complementary approach to the Fourth Amendment. Justice Sotomayor concurred, joining Scalia's opinion and making it a majority, but arguing that Katz lives, explaining why this also constituted a search under Katz's privacy-based approach, and explaining that the physical intrusion "supplies a narrower basis for decision."* Justice Alito wrote a concurring opinion for four--himself and Justices Ginsburg, Breyer, and Kagan--to reject this property-based approach and explain why this was a search under Katz.

I don't know much about the Fourth Amendment jurisprudence. But I do wonder what went on behind the scenes. Is this a first move towards eventually overturning Katz and moving back to a property/trespass conception? Does the "political" divide (three of the four "liberal" justices did not join the majority) reflect a liberal attempt to push back against the attack on Katz? And what was Sotomayor doing? Alito would have had a majority if Sotomayor had joined; what sort of lobbying went on behind the scenes to get her to join one opinion or the other? Did he have the initial majority, then lose it when the opinions began circulating?

     * This is one of those "I-join-the-majority-but-write-separately-to-explain-what-the-majority-means" concurrences.

Posted by Howard Wasserman on January 23, 2012 at 05:28 PM in Constitutional thoughts, Current Affairs, Howard Wasserman | Permalink


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Scalia provided a "property" floor that ala Kyllo would be applied across the board while leaving open the reasonable expectation of privacy approach. This in certain cases can be more protective than Alito's approach which would determine the "reasonableness" of something, not just a literal search or seizure. For instance, a shorter use of the GPS device (he's hazy on how short) might be acceptable to Alito, but it doesn't seem that would matter under Scalia's approach.

Sotomayor got the best of both worlds. Justice Hannah Montana.

Posted by: Joe | Jan 24, 2012 9:18:28 AM

Isn't that, however, what section headings in Supreme Court opinions are for? Seems to me that much could have been clarified had she joined Part V of Alito's opinion, the part that contains his alternative holding - while not joining Part II-B of Scalia's, which contains this language:

"This Court has to date not deviated from the understanding that mere visual observation does not constitute a search.... Thus, even assuming that the concurrence is correct to say that “[t]raditional surveillance” of Jones for a 4-week period “would have required a large team of agents, multiple vehicles, and perhaps aerial assistance,” post, at 12, our cases suggest that such visual observation is constitutionally permissible."

Though to be sure, it goes on to state that it "may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy," and Sotomayor says that "I do not regard as dispositivethe fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques." But a great deal of tea leaf reading could have been saved by joining the two opinions in part instead of in gross.

Posted by: Asher | Jan 24, 2012 1:36:27 AM

I think the Sotomayor concurrence was less "I join the majority but write separately to explain what the majority means," and more "I join the majority but write separately to tell circuit judges who can count to five which way the wind is blowing." The most likely explanation for why Sotomayor joined Scalia's opinion instead of Alito's is that she agrees with both the propertarian and expectation of privacy views of the Fourth Amendment. Since Scalia's opinion allows for both while Alito's disavows the property-based view, her vote makes sense.

Posted by: Rick | Jan 23, 2012 10:11:49 PM

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