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.