Reactions to Jones v. United States: The government fared much better than everyone realizes
on Jan 23, 2012 at 4:07 pm
I think that the correct way to understand the case is to read it as having two separate majority opinions. This odd alignment occurs because Justice Sotomayor agrees with both theories: she agrees with the majority “at a minimum” (Sotomayor op. at 1) and also seemingly agrees with the concurrence’s “incisive” conclusions (id. at 3). Justice Sotomayor does not formally join the Alito opinion, but her sympathy for its finding of a Fourth Amendment “search” in GPS monitoring is fairly obvious, as she expresses a broader view of privacy than any other member of the Court.
Here is the upshot. Five Justices join the holding of the “majority” opinion (per Scalia) that by attaching and monitoring a GPS device the police conduct a “search”; four Justices (those in the Alito concurrence) reject that view. Five Justices join or express their agreement with the portion of the “Alito” opinion concluding that the long-term monitoring of a GPS device violates a reasonable expectation of privacy; four Justices (those in the majority, minus Sotomayor) leave that question open.
That alignment of Justices importantly leaves two questions unanswered. First, does the “search” caused by installing a GPS device require a warrant? The answer may be no, given that no member of the Court squarely concludes it does and four members of the Court (those who join the Alito concurrence) do not believe it constitutes a search at all.
Second, assuming no warrant is required for installation, is a warrant required for short-term monitoring of the GPS device? Again, the answer may be no, as the majority conspicuously avoids addressing this issue and four members of the Court (again, those who join the Alito concurrence) squarely say that the answer is “no” (Alito op. at 13). Justice Sotomayor alone says that this scenario “will require particular attention.”
Note that the government has to prevail on both of those later questions. (If a warrant is required to install the device in the first place, then whether it could be monitored for a short time without a warrant is essentially an academic question.) But I think that there is an excellent chance that it will do so.
The real fight is over the first question of the installation. Only one member of today’s majority has to adopt the view that the “search” of installing the GPS is sufficiently minor to not require a warrant. Whether that happens will depend on whether every member of today’s majority is willing to extend the reinvigoration of a property-rights model of Fourth Amendment privacy to also require a vigorous application of the warrant requirement. Justice Sotomayor is, and I expect Justice Scalia agrees. The others are an open question. If no warrant is required, then it seems quite likely that one member of the majority (which is composed of conservative members of the Court) would join the four Justices in Alito’s concurrence to hold that short-term monitoring is not a search at all.
As a result, I think that although the government lost Jones 9-0, it did far better than everyone has recognized so far. I believe that it is more likely than not to prevail in a later case in which it installs a GPS monitor without a warrant and tracks the individual for only a couple of days.
One of the puzzles of the case is why other liberal members of the Court (Justices Ginsburg, Breyer, and Kagan) join in Justice Alito’s rejection of the majority’s finding that the installation of the GPS device is a “search.” Like Justice Sotomayor, they could have agreed with Scalia on the installation and Alito on the long-term monitoring. I think that the answer is probably a principled one about doctrine. Justice Scalia’s “trespass” theory, they may believe, is a vehicle towards narrowing privacy rights. Justice Sotomayor was apparently persuaded by Scalia’s unequivocal statement that privacy expectations are properly measured by both his trespass analogy and more modern assessments of reasonable expectations of privacy. I’m unclear on why the remainder of the Court’s left was not. The liberals may have concluded that Alito has the better reading of the cases, and because they are less naturally inclined towards property rights, they were swayed by the questions of administrability he raises.
A final note. I think that it will be a long time before people realize that this is one of Justice Sotomayor’s most significant opinions. Justice Thomas has received significant recognition for his willingness to rethink broad areas of the law. Today, Justice Sotomayor indicated her interest in “reconsider[ing] the premise” established in several Supreme Court decisions “that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” Op. at 5. Of course, their approaches are almost diametrically opposed – Justice Thomas is concerned with the meaning of the Constitution around 1812, while Justice Sotomayor would adapt it to “the digital age” of 2012. The way their views develop and the influence they gain will be fascinating.