In January, the Supreme Court released a decision relating to the placement of a GPS-based tracking device on a private citizen's vehicle. The device was placed there by the FBI and Washington, D.C. authorities in connection with a drug distribution investigation. The opinion, authored by Justice Scalia, has some interesting points, which we discuss below.
U.S. v. Jones1, holds two interesting points of note for fans of Supreme Court trivia. The first is the unusual group of Justices who banded together to form the majority. Justice Scalia, well-regarded as one of the most conservative justices, was able to convince Justices Kennedy, Thomas, and Sotomayor to join in his opinion, as well as Chief Justice Roberts. While the concurrence of Roberts and Thomas is not unusual for an opinion authored by Scalia, Kennedy has often been viewed as a more "moderate" Justice. The outlier, of course, is Justice Sotomayor, who is fairly viewed as more favorable to progressive constitutional interpretation than Justice Scalia. Sotomayor also filed a concurring opinion, where she discusses her concerns about the majority opinion's applicability to electronic-only surveillance.
The second "fun fact" in Jones is that Scalia included his view of Fourth Amendment legal theory with the more modern interpretation found in Katz v. United States2.Scalia's majority opinion is based in what constitutional scholars refer to as "originalism." Originalists read the Constitution and its amendments, and try to determine what was originally meant by the drafters of the document itself. At the opposite end of the spectrum are those who believe the Constitution is meant to be read as it applies to modern life and its unique challenges. Sometimes termed "constructionism," this school of thought was famously summarized by Al Gore in March of 2000, when he stated:
"I believe the Constitution is a living and breathing document and that there are liberties found in the Constitution such as the right to privacy that spring from the document, itself, even though the Founders didn't write specific words saying this, this, and this, because we have interpreted our founding charter over the years and found deeper meanings in it, in light of the subsequent experience in American life of the last 211 years of our republic..."
One unique aspect of Jones is that Scalia borrows from both originalist and constructionalist points of view in crafting his opinion. This blend of old and new is what makes U.S. v. Jones such an important case for the public. The Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The originalist view of this language, as detailed by Justice Scalia, based the application of the Fourth Amendment in property: "Consistent with this understanding, our Fourth Amendment jurisprudence was tied to the common-law trespass, at least until the latter half of the 20th Century."3 Yet Katz and its progeny clearly pronounce that "the Fourth Amendment protects people, not places."4
Scalia's opinion provides, to some degree, a neat integration of both camps. In placing a physical device (the GPS monitor) into the physical confines of Jones' automobile (one of his "effects," or possessions), the government had violated the "common-law trespass" element of the Fourth Amendment. But there remains a problem with trying to apply an originalist theory of "trespass" an application of satellite tracking of an automobile. Scalia recognized this, and the public's interest in having a right to privacy of our "effects" or chattels, including automobiles.
The long-term effects of Jones are unclear, as the four justices who did not join in the majority wrote their own opinions questioning whether "the installation and use of the GPS device" is one issue, as Scalia presented, or two5. But the immediate effect is a marriage of both the historical and modern readings of the Fourth Amendment. Regardless of your stance on constitutional interpretation, that's a result we think you can appreciate.
1.US v. Jones, 565 U.S. (2012) 2. Katz v. United States, 389 U.S. 347, (1967). 3. Jones, 565 U.S.. 4. Katz, 389 U.S. at 351 (emphasis added). 5. Jones, 565 U.S., (Alito, J., concurring in judgment).