By Jim Harper

If it bears out, the news my AEI colleague Adam J. White reported recently is good: Judge Ketanji Brown Jackson acknowledges a constraint on judicial reasoning that conservatives have long pushed. “I am focusing on original public meaning because I’m constrained to interpret the text,” she told the Senate Judiciary Committee. Justices and judges should apply the Constitution based on its words and what they meant at the time those words were adopted.

In the area of the Fourth Amendment, though, Judge Brown
Jackson’s entirely conventional views are not textualist enough. She can help
strengthen the Fourth Amendment by outflanking her “conservative” colleagues.
She should out-textualize the textualists.

New technologies create a minor conundrum for constitutional
interpretation. As Judge Brown Jackson noted in the second day of her Senate
Judiciary Committee confirmation hearings, cell phones and GPS devices did not
exist when the Fourth Amendment was adopted. What is a justice to do? “What the
court did,” she explained at her confirmation hearing, “was it looked back at
the time of the founding and determined what the reasonable expectations of
privacy were related to the term unreasonable searches and seizures which
appears in the Constitution.”

That’s a pleasing explanation, stated as well as anyone
might from the nomination hot seat. And it refers to the bar on “unreasonable
searches and seizures” in the text of the amendment. But it’s not exactly
right.

The “reasonable expectation of privacy” test sprang from the musings of one justice 50 or so years ago. Justice John Marshall Harlan II’s solo concurrence in Katz v. United States said:

My understanding of the rule that
has emerged from prior decisions is that there is a twofold requirement, first
that a person have exhibited an actual (subjective) expectation of privacy and,
second, that the expectation be one that society is prepared to recognize as “reasonable.”

According to Harlan, a string of Supreme Court cases had
turned the Fourth Amendment’s inquiry from the reasonableness of government
searches and seizures to the reasonableness of the people in expecting privacy.
He drew this out of the Supreme Court’s past cases, not the text of the
Constitution.

The first phrase of the Fourth Amendment says: “The right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.” Absent doctrine
like Harlan’s, a textualist would analyze its elements as follows:

• Was there a search?
• Was there a seizure?
• Was any search or seizure of persons, houses,
  papers, or effects?
• Was any such search or seizure reasonable?

If there was a search or seizure, if it was of protected
things, and if it was unreasonable, then the right has been violated.

This textualist approach isn’t unchallenged by modern technology. In United States v. Jones, the Court at least tacitly had to recognize as a seizure the minor intrusion on property rights when the government attaches a GPS device to a car. Technology can make the outwardly trivial action significant: That small seizure facilitated weeks-long tracking of a person, which is a search.

In Riley v. California, the Court recognized that the quantum of information stored on a modern cell phone makes it different from a similarly sized cigarette pack. The latter can be searched in the process of securing an arrestee, according to a 1973 drugs case. To search an arrestee’s phone, Chief Justice John Roberts wrote, “Get a warrant.” He also referred to phone-carried digital materials themselves as constitutionally protected “effects.”

Like Judge Brown Jackson and her Senate Judiciary Committee questioners,
many on the Supreme Court are transfixed by the “reasonable expectation of
privacy” test, which is not textual. Justice Antonin Scalia avoided it in the
several important Fourth Amendment cases he authored.

Today’s budding leader in marrying Fourth Amendment textualism to technology is Justice Neil Gorsuch. On the US Court of Appeals for the Tenth Circuit, he wrote an opinion treating an email as a constitutionally protected paper or effect. Opening and examining the email was a Fourth Amendment search, he found, both as a matter of the reasonable expectations doctrine and the “distinct line of authority” he saw emerging from the Jones case noted above. And as a dissenter in Carpenter v. United States, Gorsuch argued that location data produced by cell phones could be treated as a bailment—the placement of one’s property with another for them to safeguard. That adapts common law principles that imbued the founding era with today’s practice of storing our important digital papers and effects with companies that can secure them better than we can ourselves.

It’s grounds for optimism if textualism is becoming the
standard mode of judicial interpretation on the Supreme Court. More so if a
newly installed Justice Brown Jackson can fortify and rationalize Fourth
Amendment law by out-textualizing the textualists.

The post To Protect Privacy, Ketanji Brown Jackson Should Outflank the Court’s Textualists appeared first on American Enterprise Institute – AEI.