Gorsuch dissent is interesting. His position seems to be that the court's decision is not strong enough in its defense against these searches, not that he disagrees that a warrant is needed.
Indeed. It's almost fairer to categorize this as a 5-3-1 decision. Gorsuch tricks you into nodding along with his dissent, which reads very much like a concurrence holding _Katz_ over _Smith_, etc, until bam, there's a dissent.
To my reading, he's saying two things in his conclusion:
* His dissent would be a concurrence if he could have found in Carpenter's favor on propertarian grounds, but Carpenter's lawyers didn't raise any 4A property arguments, so he couldn't
* A finger-wag to future lawyers to please bring him some property arguments so that he can rule the way he wants to.
On the whole though, I honestly think that if he didn't already know that the majority would carry the day with 5 justices, he might have been okay just offering a concurrence.
Yeah, his dissent was a really interesting read. I'd be curious if he would have changed it to a concurrence if there weren't already 5 justices on the other side.
What’s left of the Fourth Amendment? Today we use the Internet to do most everything. Smartphones make it
easy to keep a calendar, correspond with friends, make calls, conduct banking, and even watch the game. Countless Internet companies maintain records about us and, increasingly, for* us. Even our most private documents—those that, in other eras, we would have locked safely in a desk drawer or destroyed—now reside on third party servers. Smith and Miller teach that the police can review all of this material, on the theory that no one reasonably expects any of it will be kept private. But no one believes that, if they ever did.*
Judges are supposed to decide cases based on “democratically legitimate sources of law”—like positive law or analogies to items protected by the enacted Constitution—rather than “their own biases or personal policy preferences.” Pettys, Judicial Discretion in Constitutional Cases, 26 J. L. & Pol. 123, 127 (2011). A Fourth Amendment model based on positive legal rights “carves out significant room for legislative participation in the Fourth Amendment context,” too, by asking judges to consult what the people’s representatives have to say about their rights. Baude & Stern, 129 Harv. L. Rev., at 1852. Nor is this approach hobbled by Smith* and Miller, for those cases are just limitations on Katz, addressing only the question whether individuals have a reasonable expectation of privacy in materials they share with third parties. Under this more traditional approach, Fourth Amendment protections for your papers and effects do not automatically disappear just because you share them with third parties.*
Not a fan of Gorsuch, but I'm positively surprised at that comment, as this has been my thinking since the beginning on this issue, too.
I think it's total BS to think that "users don't have an expectation of privacy" when a company offers a service to hold and process their data. I don't think in any other real-world situation that's similar you wouldn't have an expectation of privacy. It's just the government's twisted logic that's used to justify its mass surveillance actions.
I also agree with Gorsuch's point that the standard should be much higher than "an expectation of privacy". If you have an industry that has "educated" its users to expect constant violations of their privacy and misuse of their data, it doesn't mean that now users should no longer benefit from privacy rights, because the companies and governments are so used to abusing users' data that they might as well be allowed to do it. I don't think that sort of logic makes sense.
The press really distorts what the justices are actually like. Read the opinions -- they are a great example of government explaining itself to the people. Real explanations, addressing the potential shortcomings of their own arguments.
Scalia's writings are a great example of this. Never before have I encountered someone with whom I so strongly disagree on so many things, yet enjoy reading the path of how they reached their decision. My own arguments were sharpened because of it. I can see why he and Ginsburg were friends.
Very true, and I’d like to add my appreciation for this thread. I wanted to read this decision but felt I didn’t have time, now I can’t wait to sit down with the document.
> I think it's total BS to think that "users don't have an expectation of privacy" when a company offers a service to hold and process their data
I sometimes wonder if companies put exactly this wording into their privacy policies if it would make a difference legally. Right now they put all kinds of other verbiage which allows law enforcement to argue around it. But what if companies simply wrote into their privacy policy:
By storing your data with us you can reasonably expect that your data will be kept private from access by any other person
Now how can law enforcement argue that someone accessing the service didn't have a reasonable expectation of privacy?
Of course, a company's lawyers might say that this is something they can't actually deliver given the government can demand to access their information. But it's exactly in this way that it's a self-fulfilling prophecy: it is exactly by giving this guarantee to their users that they create the legal argument they need to be able to deliver it. And it is exactly by not giving this guarantee to their users that they deprive themselves of the legal power to achieve it.
Why not? Unless I’ve missed something important, his legal interpretation and application so far seem to be fair, balanced, straightforward, and non-partisan.
Not the parent, but I'm not a fan of Gorsuch. I don't suspect he is partisan or politically biased. I just think his jurisprudence is totally kooky.
Originalism never made sense to me. The constitution was written by visionaries who intentionally wrote it as a framework to serve as the foundation of a revolutionary new nation. It is vague by design so as to be forever relevant. I strongly suspect the ratifiers themselves would not be in agreement on a whole host of constitutional cases before the courts. Even just the idea that the text holds some singular, original, unchanging intent, seems bonkers. But not only that, originalists justices claim to have some method of knowing what it is!
Not trying to start a fight, but that's why he's not my favorite. Based on his interesting dissent it seems like he and Sotomayor may be the strongest 4A proponents on the court, so there is hope I may like the direction of many of his decisions. Though I may not like how he arrives there.
Agreed that the constitutional ratifiers wouldn't agree on a lot of modern constitutional cases; and that their original intent (what they were thinking of, specifically) when they wrote it would not fully suffice to provide application in modern cases, since they couldn't have thought of all the situations we're dealing with.
However, it's clear that the ratifiers had particular principles in mind, and that those principles are both discernible with careful textual criticism and applicable to modern cases.
> Even just the idea that the text holds some singular, original, unchanging intent, seems bonkers.
To think the text doesn't hold an unchanging meaning seems bonkers to me. How can the principles expressed in a legal document change over time? Sure, its application will change (or it ought to), but IMO to allow a text's interpretation to change is to (a) allow room for the text's principles to be ignored, (b) erroneously conflate legal interpretation and application, and (c) allow ourselves the freedom to "go with the flow" of modern trends and become unfaithful to the text.
I don't see how one can faithfully uphold the US Constitution (or any legal text, for that matter) without interpreting towards the authors' evident intent, analysing the principles behind it, and applying those principles. The text didn't arise out of a vacuum, and our interpretation doesn't have to either. We have a lot of help in the Federalist Papers, letters the ratifiers wrote, etc. -- all of which provide a helpful, reliable commentary.
In attempting to sever the real author from the text, postmodern literary criticism really dealt a hard blow to truth in textual interpretation. "Open text" legal jurisprudence is only one part of the fallout.
I don't think we're so far off. Of course I wouldn't object that there are certain principles in the constitution, that are relatively constant.
But constitutional cases tend to deal with a lot of specifics. How much bail is "excessive"? How long until a trial has not been "speedy?" When is "due process" satisfied? If we were to ask these and similar questions to Madison, I think his answer would be something like, "the courts should figure that out." I don't think the meaning of these things has changed significantly over time. I suspect they were as broad and vague in the mind of Madison as they are to us.
The courts should rule in a way that is in keeping with constitutional principles, but also that creates good outcomes. The first part of that equation comes from the constitution and the past, yes. But the second part requires that we apply knowledge from the present.
Sounds like we agree quite a bit. Even so, I’m often deeply disappointed in outcomes of constitutional cases (and government behavior in general) because it seems like they’re often “thinking too hard” or failing to courageously apply a simple, straightforward, and apparent reading.
I’m a fan of Gorsuch because he doesn’t seem to do that... Originalism as I see it is the opposite of open text jurisprudence, where the text is viewed through modern values and assumptions and made to bend to them.
So what do you think would be the originalist position on cellphone* tracking without a warrant, and how does this square with the dissents in this case?
* Feel free to replace cellphone with "magical device almost everyone carries that constantly reports their precise location to a register that stores it for up to five years". :)
> The constitution was written by visionaries who intentionally wrote it as a framework to serve as the foundation of a revolutionary new nation. It is vague by design so as to be forever relevant.
This in turn makes no sense to me.
Why would they go through the immense trouble to make this constitution, if they thought it could mean anything people wanted in the future?
How would that be different from the normal state of the time, that had no constitution?
Well, to start I'll just say, despite my flippant phrasing above, I am not so naive to think that originalism is a stupid idea. There are people that have forgotten more about law than anyone here will probably ever know on both sides of this debate, so I think there is obviously something to both sides.
But to your point, it's not that they wanted it to mean anything. It's just that the constitution is broad and vague, not because we lack historical context or some window into the mind of Madison, but because it is intentionally vague. Let's take the relevant amendment here:
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause...
That phrase "probable cause." Not very specific to my mind. It can't mean anything at all, but it leaves most questions unanswered. Is an anonymous phone tip probable cause? If an officer pulls over a car and the driver is sweating and nervous, is it probable cause to get a warrant to search his house for drugs? What if the driver smells like drugs? What if he is carrying lots of cash? What if there is blood on his shirt? And on and on...
Without the hundred plus years of case law that have worked to develop tests for what qualifies and doesn't qualify as probable cause, it really might mean almost anything. What good does it do to ask, "What would James Madison have thought about a driver that smells like drugs?" He probably would have thought it was an interesting legal question for the courts, that's what! Judges should figure that out by trying to predict the real world outcomes of their decisions, not reading tea leaves in the Federalist papers.
OK, I can see that that is a place where the interpretation is intentionally left up to future courts and precedent.
Since you can't foresee every possible future circumstance, you try to establish a general principle to apply instead.
But I don't think that means all parts of it was intended to be freely reinterpreted to mean anything the people in power in the future wanted. I think the main purpose of the constitution was to prevent that!
Have you read The Federalist Papers? I used to be skeptical of Originalism but those documents changed a lot of how I think about the law and make it pretty clear that the Founders did not intend for the Constitution to be "just a framework" to be casually interpreted. They understood the dangers of Democracy, and were pretty explicit about it.
He got a pretty good smearing done on his character by the media during his confirmation hearings. That, plus the fact that his name will always be associated with Trump, is probably enough for most people.
The irony there is that there's probably no person on the court more predisposed to ruling against Trump than Gorsuch is.
Of course, everyone will likely feel justified in hating him when the Trump v Hawaii decision is released, unless it's 8-1 or something in favor of Trump.
I mean, he's also sitting on a stolen seat. Not letting Obama nominate anyone was pretty BS. Obviously it wasn't his idea, but he's benefited from it nonetheless.
Frankly, I totally understand the reasoning of not wanting a lame-duck president to nominate a Supreme Court Justice months before a presidential election. The people appointed to that position is a huge consideration in many people's vote. Ones less justice on the court for a handful of months is not a big deal. Let the people decide, or something (and inb4 Trump lost the popular vote).
And it was a gamble, as most of the Republican leadership in congress fully expected Trump to lose, in which case Hillary might have nominated someone considered even more liberal than Merrick Garland.
If that had happened, and that person confirmed, would they be sitting on a stolen seat too?
There was a legitimate method that the Republicans in the Senate could have used to keep any Obama nominee from replacing Scalia. They could have done their Constitutional duty and held a hearing followed by a vote, and then voted "no".
The method they chose instead was illegitimate, and that's why it is a stolen seat.
> Frankly, I totally understand the reasoning of not wanting a lame-duck president to nominate a Supreme Court Justice
That's understandable.
> months before a presidential election
I don't think you understand the definition of "lame duck". It refers to the period between election and inauguration. It is completely unreasonable to treat the entire final year that way.
No, the GOP was planning to block Hillary's nominees as well.
And people did decide... In 2012 when they voted for Obama by like 51%. Lame duck presidents have gotten SCOTUS seats before. Reagan nominated and had a confirmation in his final year by a supermajority.
Of course they were, just as the Democrats attempted to block Gorsuch. Difference is there would be no reasonable excuse to not even letting it come to a vote at that point.
Regan's last nomination was an interesting one. With his first nomination for the seat coming nearly a year and a half before the next election. Then going through another potential nominee, with Kennedy not being confirmed until early 1988.
Regardless, all I'm saying is I understand the reasoning for not wanting to let Obama appoint a SCOTUS justice in his last months. They could have gone the other way and let it come to a vote. Republicans would certainly have had the numbers to block it (and the yays needed 60 then). And then Obama would have appointed someone else, and so on until the election was decided and the next president in office.
Though I have no doubt the Republican leadership would have acted differently if a seat was open during the last days of a Republican administration.
Either way, Gorush's seat is no more stolen than a Hillary appointee would be.
The TLDR answer is that he doesn't believe that the constitution gives the federal government as much authority as they exercise.
I'm mobile, so I'll try to make this brief, but in _Sessions_, for example, he expressed concerns on how vague or poorly written laws afford the government too much power. In _Gutierrez_, he (unusually) wrote the majority opinion, and then also a concurring opinion that I assume he couldn't get other justices to sign on to, which effectively bashed Chevron deference.
_Chevron_ was a case largely believed to have set the stage for much of what people see as abuses of federal authority holding (basically) that an ambiguously crafted statute that does not expressly give a government agency over an authority over an area, but which could maybe sort of be interpreted that way, then you should find in favor of the government, because they're the experts.
Gorsuch believes that giving the government powers that Congress did not expressly intend is an abdication of judicial duty, and that we shouldn't interpret ambiguity as a blank check. He thinks that if Congress intends to give <agency x> authority over a specific domain, then they should say that explicitly.
TLDR, the deference that Chevron establishes as precedent in government cases most largely benefits agencies operating under the executive branch. Trump runs the executive branch, so that cuts in his favor. Gorsuch believes (more than the other justices) that they do not deserve that deference, and that laws should be interpreted to mean what they say.
Unless we're using some standard of 'nonpartisan' I'm not familiar with, I have no idea how you get that. His decisions so far are typical of the ideological firebrand-wing of the FedSoc types, and he hit the ground throwing elbows. (Seems to have learned some manners in the meantime, but that was inevitable.)
There's a stronger case that Thomas is non-partisan than Gorush, Occupant of the Stolen Seat.
There is a big difference between partisan and ideological. In fact, I've come to see them almost as opposites over the last couple years: people who are ideologically Republican-circa-2015 have largely found themselves without a party in 2018, while most people who were Republican partisans in 2015 remain staunchly so today, just with a different ideology. In this way, it seems easier to be partisan if you aren't very ideological. (I believe there are also people who are neither.)
I would agree that Justice Gorsuch is ideological, but he does not seem particularly partisan.
I voted for trump. I voted for him specifically because he published a list of justices that I was more or less OK with, and chose to hold my nose over a lot of other stuff - I think he's kind of a sleaze (in the locker room sense) - but the Supreme Court is so much more important than the presidency.
I am happy about Gorsuch. I am appalled that Trump has continued Obama's use of executive orders to get his way (I was equally appalled when Obama did it). I'm disgusted by the continued irresponsible deficit spending. I'm pleased by the burning pile of regulations that have been axed from the federal register. I'm annoyed by the tariffs, but I will tolerate them -- the aerospace company I work for recently transferred nearly $1Bn in IP to a Chinese JV as a precondition to gain access to the Chinese market. Trump is actually correct about that problem. The border separations were reprehensible, but 'catch and release' encouraged human trafficking of children (a child, any child, was a ticket into the USA) and was an equally bad plan. Would I say that I don't have a party? Well, I do -- the Libertarian party -- but I don't think they'll ever win so I usually vote Republican.
I guess my point is, nobody will ever be completely happy with any president or any political party, and even people with ideologies tend to be pragmatic when it comes time to vote. I think that includes supreme court justices, when they must vote on the outcome of a case.
Sure yeah, I understand your vote, and your slightly positive leaning ambivalence. But in a couple cycles or so when the ideology of the elected officials more closely matches the current ideology of the party's voters, you will find your views unrepresented by either party. Put another way: if (in my opinion, when) President Trump starts chafing at the Federalist Society's dictates on judges and begins nominating authoritarians, it will not be so much as a blip in his support amongst the current Republican voting coalition. That's no longer part of the ideology, it's a transitionary hold-over from the previous ideology.
Normally, that would be an opinion "concurring in the judgement" but not in all of the reasoning.
Here
1. He disagrees with literally all of the reasoning. He doesn't want to affirm the judgement because he thinks it's just plain wrong.
2. It's not clear he would agree with the outcome on this record either. He basically says the record isn't well enough developed on any of his points to figure out what should happen, and that the arguments he would make were forfeited.
That suggests he may actually be in the camp of "i think all of the reasoning here is nonsense and wrong, and you forfeited all other arguments, so you lose".
As a result he's dissented and literally written down "for the love of god, the next time someone appeals a case like this, please make the following arguments"
I'm no laywer, let alone qualified to interpret the SCOTUS, but from what I can tell he disagrees with the whole approach taken, which relies on the "expectation of privacy" test defined in the Katz case, whereas he believes that the court should go back to the Fourth Amendment text itself and review the data (such as the phone's location) under it. Specifically, he seems to be saying that just because the data is currently held by a third-party, that doesn't mean it's not the person's "papers" and as such fully defended from unreasonable searches.
I like that tact for user data, and have mentioned it in the past that our justice system doesn't recognize the modern digital nature of a persons "papers". There really should be a systematic extension of such an interpretation.
This along with Thomas's dissent shows how important it is that we need a bill of rights for the digital age. Especially by Thomas's dissent, we otherwise cant have an expectation of privacy because or "papers" are always stored or transmitted across someone else's property.
That's true, but it fails to mention that there is a very specific partisan reason republican justices won't get behind a privacy finding. Gorsuch isn't standing for abstract principle here, he's refusing to stand on the same ground the found for Roe.
Roe standing on expectation of privacy seems to be a similarly poor analogy.
The real missing piece goes back to the same fear the framers had when enacting the Bill of Rights in the first place — namely that by enumerating some rights it would inadvertantly serve to exclude those unenumerated but equally inalienable rights, such as right to self-determination and ownership of one’s own body.
With respect to Roe v Wade, the expectation of privacy has already been established with your doctor. Since there are legitimate, non-trivial reasons for abortion, and that's a decision between a person and their doctor, the gov't can't ask why someone may need that abortion. Therefore, the gov't is unable to discern between reasons for an abortion, and therefore can't restrict them (up to a reasonable point, which was set non-arbitrarily around 24 weeks). You have a right to patient confidentiality. The gov't has no more of a say in whether you should have appendix surgery than whether you should have an abortion.
However, this doesn't establish a right to abortion. The justices clearly state that it is not a right by saying it's not covered under the 9th.
Thank you for that. Not to get too off topic, but I will need to read more about the reasoning behind the RvW decision.
It sounds to be threading one hell of a needle as a justification to keep government out of elective abortion. I mean, we have databases which track every narcotic prescription written which law enforcement (including the DEA) can access without a warrant.
It's really not a fine line. Narcotic dissemination is a major problem and there are justifiable reasons for tracking them, but I don't believe that tracking forces an individual to justify a decision between their doctor and themselves to the gov't. The justices did say there could be justifiable reasons limitations on abortions as well, just that it is very difficult to enumerate because politicians are not doctors.
Practically, while you can share your prescription medications with another person, abortions are not transferable.
The registry is not supposed to about who has a prescription, but rather, who has more than their legitimate share of prescriptions. It’s also supposed to be used to identify over-prescribing doctors.
Given that the framers were living in a society where that right was distinctly "alienable", and either were themselves or needed to appease interests that insisted that said right be alienable, I'm not sure they considered that one.
A more charitable, and frankly, reasonable explanation would be that Gorsuch places high priority on limiting government power through to take private property and thinks of many problems through that lens. That's a view he expressed at oral argument in this case[0], in other privacy-related cases [1][2], and in cases in other contexts[3][4].
Virtually all non-unanimous supreme court decisions are ultimately trade-offs between conflicting rights and values. Congress's power to regulate drugs vs a citizen's right to use drugs in religious ceremonies (Smith). The documentary-maker's right to free speech vs the population's right to ensure free and fair elections by limiting corporate spending on elections (Citizens United). A citizen's right not to be searched for incriminating evidence without a warrant vs. a police officer's need to prevent destruction of evidence and ensure their own safety (Robinson).
Different justices place different weight on different rights. Kennedy is a famously protective of free speech, so whenever Free Speech is implicated, he tends to side on the defense of it. Alito places a lot of value in ensuring police have workable rules that can be applied in the field. Those priorities determine where they land on tough issues and how they think issues should be resolved.
I think there's a lot of evidence to suggest Gorsuch cares about protecting property rights and that idea is entirely consistent with his reasoning here (without his harboring a secret anti-Roe agenda).
Agreed, and in a hypothetical universe where Gorsuch wrote the majority opinion and 4 justices signed on to his take, we would have even better protections against _Smith_ type privacy infringements than what this current decision might offer.
There's still a lot of gray area though -- it's easy to say that the money in my bank is my property, even where it is in the care and custody of a third party, so by that argument, Gorsuch's property argument gives me more privacy protections for non-warranted searches to my banking data, but on the other hand, it's not clear that my Google Map data is 'mine', since Google provides it as a service to me for free, and uses that data for other purposes.
>It's easy to say that the money in my bank is my property, even where it is in the care and custody of a third party, so by that argument, Gorsuch's property argument gives me more privacy protections for non-warranted searches to my banking data
I didn't understand him to be quite saying that. I understood him to be saying, "information about oneself is property. The government may not take your property without cause even someone else is holding it for you. Ergo, they cannot take the information here."
As you note--there's a debate that would need to be had whether this is your information that you've given them, or their information that they've created about you and the analogy breaks down a bit for me where that isn't perfectly clear.
Roberts seemed during oral arguments like he might have been trying on the information-is-property argument, "This [data] is not simply created by the company, though. It's a joint venture with the individual carrying the phone. That person helps the company create the record by being there and sending out the pings or whatever." That he writes against it here suggests he either didn't like where it led, or possibly couldn't get a majority to sign on to an approach that would uproot Katz when neither party was asking for it.
> it's not clear that my Google Map data is 'mine'
Yep, definitately not clear. But that's why it's a good for courts to start thinking about such things so that principles can emerge out of real-world cases.
My guess is that data-ownership is mostly bunk ("information wants to be free"). But privacy advocates who think in those terms are on to something and "ownership" is just the nearest model we can think of. Over time we can evolve a clearer idea of of what that something is.
It's very sad to see people skewer Gorsuch in this decision - and in general. His opinions are consistently interesting and well-reasoned, and this is no exception.
His views on data ownership seem to roughly align with Europe (it's still "your data" even if other companies hold it), which might be his one bright spot for liberals on this forum.
Data ownership is a tricky topic that humans will need decades of experience to figure out. In the mean-time, evolving the juripsrudence one precedent at a time is a lot saner than big-bang changes.
I would interpret social conservative as anti choice for abortion, anti non man-woman marriage, anti marijuana, etc. How is this also considered civil libertarian?
