Gorsuch says he'll repeal and replace the Fourth Amendment with something terrific
As a presidential candidate, Donald Trump offered a vague promise to repeal and replace the Affordable Care Act with “something terrific.” On Friday, Neil Gorsuch, who occupies the seat on the Supreme Court that Senate Republicans held open until Trump could fill it, brought a similar amount of thoughtfulness and coherence to the question of when police should be allowed to conduct a search without a warrant.
Gorsuch’s dissenting opinion in Carpenter v. United States is an odd piece of writing. It reads less like a judicial opinion and more like the sort of essay that an overworked law professor might toss off after they suddenly realize that they have a symposium paper due at the end of the week. After lecturing his colleagues for 20 pages about how he has uncovered a way of interpreting the Fourth Amendment that is more “tied to the law” than the last half-century of Supreme Court opinions on this subject, Gorsuch outright refuses to apply this mysterious new interpretation to the case at hand.
Carpenter asked whether law enforcement can, without first getting a warrant, use cell phone records to pinpoint where a particular suspect traveled over a course of weeks, months, or potentially even years. A majority of the Court — Chief Justice John Roberts plus the four liberal justices — held that the answer to this question is “no.”
Until its final pages, Gorsuch’s dissent reads as if he agrees with the majority’s conclusion — it’s only at the very end that Gorsuch reveals he is casting a vote in favor of the government because the lawyers on the other side failed to anticipate the specific way that Gorsuch wants to repeal and replace a half-century of established law.
To understand Gorsuch’s odd Carpenter dissent, it’s helpful to understand a brief history of how the Supreme Court’s understanding of the Fourth Amendment developed in light of new technology. The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and it requires police to obtain a warrant before conducting certain searches.
The Court first confronted electronic eavesdropping by law enforcement in its 1928 decision in Olmstead v. United States. According to Olmstead, police did not need to obtain a warrant to wiretap a phone call because such a wiretap did not involve an “actual physical invasion” of a person’s property. This decision, which largely left individuals without any Fourth Amendment rights whenever they picked up the telephone, remained good law until the 1960s.
The Olmstead regime came to a close, however, with the Court’s 1967 decision in Katz v. United States, which held that police typically must first obtain a warrant before they listen in on a phone call. In an influential concurring opinion whose reasoning was embraced by a majority of the Court the next year, Justice John Marshall Harlan wrote that an individual’s Fourth Amendment right to be protected from warrantless searches it triggered when they have a “reasonable expectation of privacy.”
At the time, this “reasonable expectation of privacy” standard was considered a tremendous victory for civil libertarians. It gave the Supreme Court a framework it could use to apply the Fourth Amendment to electronic communications that police could easily intercept without physically intruding on someone’s home.
https://thinkprogress.org/gorsuch-says-hell-repeal-and-replace-the-fourth-amendment-with-something-terrific-9238f5568313/
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… Sarandon and her ilk are happy - we are one elderly progressive justice away from abyss.
