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Tuesday, November 25, 2014

Narrowing Precedent and the Digital Fourth Amendment

My new paper, "Narrowing Precedent in the Supreme Court," is now posted online. (Thanks to LTB for publicizing it!)  The basic idea is that the Supreme Court frequently narrows its precedents, including in "liberal" directions, and that doing so is often both legitimate and desirable. In this post, I'd like to make a prediction: in the near future, we are going to see a lot of narrowing in the area of digital surveillance and the Fourth Amendment.

 Here's the paper's abstract, broken into paragraphs:

“Narrowing” occurs when a court declines to apply a precedent even though, in the court’s own view, the precedent is best read to apply. In recent years, the Roberts Court has endured withering criticism for narrowing in areas such as affirmative action, abortion, the exclusionary rule, campaign finance, and standing. This practice— often called “stealth overruling”—is widely condemned as deceptive, as well as contrary to stare decisis.

On reflection, however, narrowing is not stealthy, tantamount to overruling, or even uncommon. Instead, narrowing is a distinctive feature of Supreme Court practice that has been accepted and employed by virtually every Justice. Besides promoting traditional stare decisis values like correctness, fidelity, and candor, legitimate narrowing represents the decisional-law analogue to the canon of constitutional avoidance.

As a rule, an en banc appellate court, including the Supreme Court, engages in legitimate narrowing when it adopts a reasonable reading of precedent without contradicting background legal principles. Under this rule, most if not all instances of narrowing during the Roberts Court are readily defensible—including frequently overlooked decisions by the Court’s more liberal members.

Moreover, prominent cases involving narrowing can be grouped into four categories: experimental narrowing, narrowing rules, narrowing to overrule, and aspirational narrowing. Far from being unusual or unwarranted, narrowing is a mainstay of Supreme Court practice— and a good thing, too.

In the paper, one type of narrowing I discuss pertains to defeasible holdings--that is, holdings that can be read as containing implicit exceptions or limitations. This kind of narrowing is likely to be relevant in future digital Fourth Amendment cases. The reason is that pre-digital holdings are often written broadly, but without digital technologies in mind. Some might cite this circumstance as a reason to conclude that the best reading of the old cases is that they just don't apply to then-unforeseen digital technologies. For people who hold that view, pre-digital cases can simply be distinguished, without resorting to narrowing. In the recent Supreme Court case Riley v. California, the Court seemed to take that view, in that it declined to "extend" a pre-digital case to new digital technologies.

However, many sophisticated lawyers have taken a broader view of pre-digital cases. Before Riley, for instance, many judges, commentators, and scholars believed that precedents like United States v. Robinson empowered police to search any object on the person of an arrestee. Period. For the many people holding that view--some of whom may have been on the Supreme Court--Riley narrowed Robinson by reasonably reading its expressly "categorical" holding as implicitly limited to pre-digital technologies. For instance, in rejecting the argument "that a search of all data stored on a cell phone is 'materially indistinguishable' from searches ... of physical items," the Court didn't parse Robinson or any other precedent. Instead, the Court said: "That is like saying a ride on horseback is materially indistinguishable from a flight to the moon." Because smart phones were "nearly inconceivable just a few decades ago," when Robinson and related cases "were decided," the Court was unconstrained by precedent.

Shortly after Riley, I suggested that the Supreme Court had effectively signaled to lower courts that other pre-digital precedents were susceptible to similar treatment. To be sure, "vertical" narrowing--that is, a lower court's narrowing of a higher court's precedent--is generally more objectionable than the Supreme Court's "horizontal" narrowing of its own precedent. That's partly because the Supreme Court can overrule its own cases, whereas lower courts can't just reject the contents of the US Reports. Yet Riley points toward a special context in which vertical narrowing makes sense. In cases involving new technologies and the Fourth Amendment, trial courts and courts of appeals seem to have special license to draw on Riley's treatment of digital technologies in reading Supreme Court precedents narrowly.

This kind of pro-defendant narrowing is already happening and is bound to accelerate. The most visible recent examples have involved the third-party doctrine. Cases like Smith v. Maryland have long been widely understood to mean that consumers have no reasonable expectation of privacy in their telephone records. Period. But Smith of course predates the modern digital world and so is susceptible to narrowing on that ground. In my view, narrowing provides the best way of understanding recent arguments, like Judge Leon's in Klayman v. Obama, that find Smith inapplicable in light of new technologies. As Judge Leon put it, modern cell phones and the new surveillance technologies that track them "are unlike anything that could have been conceived" when Smith was decided. Therefore, Smith's ostensibly broad holding is defeasible.  We can expect even more decisions in this vein in the years ahead, including from the Supreme Court.

On reflection, there's nothing odd about all this. It's how precedent often changes: visibly, without overruling, and with ample legitimacy.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on November 25, 2014 at 11:30 AM | Permalink


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