Friday, June 18, 2010

Scalia Outflanks the Court on the Privacy Side

In Ontario v. Quon, the Supreme Court unanimously held that the police department of Ontario, California acted reasonably--and thus did not violate the 4th Amendment--when it retrieved private text messages sent by one of its employee officers from his department-issued pager (including some sexting) in order to determine whether overage charges from the service provider were properly billable to the department or should be charged to employees.  The Court is unanimous in the result and unanimous in most of its reasoning, except that Justice Scalia doesn't join one sub-Part of Justice Kennedy's majority opinion.

This time, the language Justice Scalia finds offensive does not invoke legislative history (as discussed here) but Justice Kennedy's broader disquisition on the role of the Court in deciding 4th Amendment cases involving new technology.  Here is the core of the point Justice Kennedy makes:
The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. See, e.g., Olmstead v. United States, 277 U. S. 438 (1928), overruled by Katz v. United States, 389 U. S. 347, 353 (1967). In Katz, the Court relied on its own knowledge and experience to conclude that there is a reasonable expectation of privacy in a telephone booth. See id., at 360–361 (Harlan, J., concurring). It is not so clear that courts at present are on so sure a ground. Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.
Justice Scalia objects that the majority's concern is "exaggerated."  Here is his defense of a more robust judicial role:
Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court’s implication, ante, at 10, that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)—or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions—is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.
Here are three observations about this tiff:

1) It's striking that Justice Scalia is outflanking the Court to the left, without any of the supposedly liberal Justices joining him.  One could readily imagine this language having come from Justice Brennan or Justice Marshall in response to what either might have regarded as a too-feeble judicial effort from CJ Burger or CJ Rehnquist.

2) Although directed at an opinion by Justice Kennedy, I read Justice Scalia here as really taking aim at CJ Roberts' stated preference for minimalism.  As a technical matter, there isn't any real space between what Scalia says here and what Roberts says elsewhere: Channeling Henry Friendly, Roberts says that if it's not necessary to decide an issue, it's necessary not to decide that issue; Scalia here purports to be criticizing only those judicial opinions that don't decide issues that it is necessary to decide.  But still, the tone is very different from the one Roberts has generally struck--and of course Roberts joined Kennedy's opinion.

3) Justice Kennedy's approach closely resembles the argument set forth by GW law prof (and former Kennedy clerk) Orin Kerr in a 2004 article in the Michigan Law Review (pre-publication version available here).  Kerr offers reasons why the judiciary is poorly suited to craft privacy protections relative to the legislature.  His argument is nuanced and subtle--which is not to say that it is necessarily right.  Cornell law prof and DoL blogger Sherry Colb wrote a reply in the same Michigan Law Review (not available free online but readily available from Westlaw, Lexis or Heinonline, at 102 Mich. L. Rev. 889) arguing that Kerr's interpretation of the 4th Amendment focuses too heavily on property, that he presents a false choice between courts and legislatures, and that there are institutional reasons why legislatures might under-protect privacy. I'm not going to referee their debate here, but I will say that it's unfortunate that the Justices didn't cite it.  Perhaps neither Justice Kennedy nor the law clerk(s) who worked on the case for him had read Kerr's article.  If they did, though, citing and invoking the argument would have made Kennedy's own opinion more solid.  And in turn, Justice Scalia might then have invoked Colb's analysis.  Instead, we have an exchange of views that mostly amounts to competing assertions.  Judges often complain that legal scholarship is not relevant to their work--but for this complaint to have bit, one would like to see them citing relevant legal scholarship where it is helpful.


Amos Blackman said...

I would be interested in your take on Scalia's footnote shot at Stevens:

"Despite his disclaimer, ante, at 2, n. (concurring opinion), JUSTICE STEVENS’ concurrence implies, ante, at 1–2, that it is also an open question whether the approach advocated by Justice Blackmun in his dissent in O’Connor is the proper standard. There is room for reasonable debate as to which of the two approaches advocated by Justices whose votes supported the judgment in O’Connor—the plurality’s and mine—is controlling under Marks v. United States, 430 U. S. 188, 193 (1977). But unless O’Connor is overruled, it is assuredly false that a test that would have produced the opposite result in that case is still in the running."

It seems to me, this is just the type of case where the intuitive reasoning of Marks breaks down. Standards are not necessarily concentric circles; here, the O'Connor plurality and concurrence were not more or less narrow than the other. Indeed, one can almost certainly come up with fact patterns in which the three opinions in O'Connor align in every iteration of outcome: 9-0, 8-1, or a different 5-4. I think Scalia implicitly acknowledges this when he says "there is room for reasonable debate" about which approach controls under Marks, ie. which is "narrower."

Nonetheless, Scalia asserts that the other half of Marks—that the options are limited to those supporting judgment—still applies. It seems to me that there is no rational justification for such a limitation if there is no "narrow" opinion; Marks is only persuasive if the situation is such that satisfying the "narrow" approach necessarily satisfies the "broader" approach as well (e.g. strict vs. intermediate scrutiny).

But where that isn't the case, such as here, why throw out Blackmun's approach just because it happened to dictate a different outcome on a different set of facts? Put another way, why should Scalia's approach, which garnered all of one vote in O'Connor, carry any more weight than Blackmun's, which garnered four?

Michael C. Dorf said...

Amos: Excellent point. I agree entirely. Justice Scalia's assumption that there is always a narrowest opinion is related to his assumption w/r/t rights that there is always a narrowest historical tradition recognizing or denying recognition to such rights. Larry Tribe and I critiqued that view in our book On Reading the Constitution.

As for Marks, the academic literature makes much the point that you do. The best treatment is in an article by Larry Sager and Lou Kornhauser, "Unpacking the Court." One way to think about it is to realize that there is no reason in principle why courts wouldn't be subject to Arrovian preference cycling.

egarber said...

And this could be a precedent -- has a Bob Dylan song ever made it into a SCOTUS opinion? :)

egarber said...

How do we square Scalia's apparent push for boldness in the new age, with his advocacy of originalism / textualism? I mean, he makes it sound like we should easily be able to apply the plain meaning of words written in 1789 to the world of Star Trek. A "search" meant something specific to contemporary society when the 4th was written, before electronic technology existed at all. As you say, a liberal judge would start broadly in applying the principle, so there's no problem -- but with Scalia, narrow, time-trapped language is supposed to generate energetic application today in wholly new areas.

It just makes me wonder if even Scalia doesn't fully buy into his core interpretive philosophy.

Michael C. Dorf said...


I actually think that what Justice Scalia is doing here is MORE consistent with his professed jurisprudential approach than some of his other, more traditionally originalist opinions. Scalia has endorsed "original public meaning" originalism, which is often indeterminate, especially with respect to new technology. At that point, as so-called new originalists like to say, interpretation runs out, and courts must engage in "construction"--which is a polite way of saying that they have to make law. That's what he'd do with respect to the Fourth Amendment question of whether a search is reasonable.

The inconsistent bits are when Justice Scalia lapses into what is sometimes called "framers' concrete expectations originalism," which purports to be quite determinate.

egarber said...

Thanks Mike. In basic terms, how does that differ from Thomas's brand of professed originalism? Or does it?

Neal said...


Mr. Zimmerman has already made his way into SCOTUS opinions . Chief Justice Roberts (inaccurately) quoted "Like a Rolling Stone" in his 2007 dissent in Sprint Comm. v. APCC Serv. (2008)