Herding Katz

By Mike Dorf

No doubt many casual observers were stunned by the fact that today's Supreme Court decision in United States v. Jones, invalidating the month-long warrantless GPS tracking of a suspected drug trafficker's car, was unanimous.  But experts were not surprised.  As Professor Colb has observed in a series of columns (here, here and here) and blog posts (herehere and here), there were sound legal arguments for finding that such intrusive GPS monitoring violates the Fourth Amendment, notwithstanding precedents upholding less effective forms of warrantless monitoring.

I'll mostly leave to Professor Colb the task of explaining the Fourth Amendment aspects of the case in a future Verdict column and/or DOL post.  Here I want to focus on what, for me, was a truly important day in constitutional jurisprudence: the day Justice Alito declared that, at least so far as the Fourth Amendment is concerned, originalism is bunk.  (Props to U Texas Law Prof Mitch Berman for an article with the title "Originalism is Bunk").  So far as the underlying interpretive philosophy is concerned, Justice Alito's separate opinion critiquing Justice Scalia's "majority" opinion could have been written by Ronald Dworkin or the late Justice Brennan.  Really.

But first, some context.  The "majority" opinion of Justice Scalia held that the police placement of a GPS tracking device on Jones' car, and its subsequent month-long use of that device to track his every movement, amounted to a "search" within the meaning of the Fourth Amendment -- and thus required probable cause and a warrant -- because it invaded the property interest of Jones.  The crucial precedent for the "majority" was not any decision of the U.S. Supreme Court but the 1765 English ruling by Lord Camden in Entick v. Carrington, which supposedly established that a physical violation of property constitutes a search for which a warrant is required.  (Query how that could be true given that the defendants in Entick had a warrant, but we'll let that pass.)

By now you're probably wondering why I keep putting quotation marks around "majority."  The answer is that even though Justice Scalia's Opinion of the Court garnered five votes, one of those votes belonged to Justice Sotomayor, who wrote a concurrence that was closer in spirit to the position taken by Justice Alito (joined by Justices Ginsburg, Breyer and Kagan).  The crucial divide was over how to understand the Court's 1967 decision in Katz v. United States.   The concurrence by Justice Harlan in that case has long been understood as rejecting Fourth Amendment formalism and historicism in favor of functionalism.  Whether police investigative activity amounts to a "search" requiring probable cause and a warrant, Harlan said in Katz, depends on whether that activity invades a "reasonable expectation of privacy."  Although property interests can be relevant to such expectations of privacy, they are neither necessary nor sufficient.  So say the later cases that adopted the Harlan reasoning from Katz, and so says Justice Alito.

Not so, said Justice Scalia.  Katz involved a case in which there was no property interest and the Court allowed that even absent the invasion of a property interest, police activity could constitute a "search" if it violates a reasonable expectation of privacy.  But, Justice Scalia said, Katz did not dispense with the proposition that police violations of property interests do, ipso facto, amount to Fourth Amendment searches.

From a certain perspective, Justice Scalia's opinion could be said to be more liberal than Justice Alito's.  After all, Justice Scalia could be saying that everything that violates a reasonable expectation of privacy under Katz is a search plus everything that intrudes on a property interest is also a search.  And Justice Sotomayor appeared to read Justice Scalia's opinion that way.  So if one is counting votes, then the case could be read to establish a kind of Katz+property rule.

I don't think that's what Justice Scalia meant, however.  I read his opinion as more interested in narrowing the domain of Katz.  I could be wrong on this point, but it's telling that Justice Alito reads Justice Scalia as making the case turn on when the police attached the GPS to Jones's car--a fact that is relevant under the property approach but not under the Katz approach--and Justice Scalia didn't really contradict Justice Alito on this point.

But I digress.  My core point is that Justice Alito goes to town on Justice Scalia for seeking guidance in the original understanding when the original understanding appears manifestly not up to the task.  Justice Alito says that
it is almost impossible to think of late-18th-century situations that are analogous to what took place in this case. (Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner?)
Justice Scalia responds that, actually, the hypothetical constable is a pretty good analogy.  That in turn leads to the best footnote I have read in a long time.  Justice Alito writes:
The Court suggests that something like this might have occurred in 1791, but this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience.
Kudos to Justice Alito.  Of course, his Jones concurrence in the judgment is officially only a takedown of originalism in Fourth Amendment cases.  Justice Alito is not a thoroughgoing opponent of the use of original understanding in constitutional law.  But then, just about nobody is.  Nearly everybody thinks that original understanding is usually an important starting point.  Justice Alito showed today that he may not give original understanding much more weight than that.

P.S.  I'm well aware that there are versions of "new originalism" that could give the Fourth Amendment its "original semantic meaning" and still come to the view espoused by Justice Alito in the Jones case.  These are respectable academic versions of originalism but they're not what the public imagines when they hear the term "originalism."  Here I'm referring to the colloquial version of originalism.