It is Alito’s quarrel with Scalia’s originalist approach that is most interesting today, echoing and even amplifying his jab at oral argument in a case about violent video games last year, that “what Justice Scalia wants to know is what James Madison thought about video games.” At argument in that case, Alito went further, observing that such games represent a “new medium that cannot possibly have been envisioned when the First Amendment was ratified” and that it was “entirely artificial” to analogize the Framers’ attitudes to violent books for children to violent games. Today Alito again invokes the artifice of the Scalia approach, poking fun at his obsession with what the Framers would have done with satellites and lasers by suggesting, “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?)” Then to ratchet up the absurdity, Alito answers his own question in a footnote: The teensy constable scenario "would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience."
Alito has developed a 21st-century-size fear of technology and privacy intrusions (so much so that Jeffrey Rosen has dubbed him America’s “privacy cop”). He thus worries not only about surveillance and privacy, but also at the public acceptance of raw deals. He writes that “new technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.” Alito also notes the burgeoning use of video monitoring, automatic toll collection, and smartphones that track the location of their users.
Sotomayor goes further, citing other courts that have found that, using GPS, the government is able to track “trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.” It is she who seems best to understand that this is the real problem the court should be focused on, even though she refuses to address it today.
The critical moment at oral argument in this case came with the chief justice’s question to lawyers for the Obama administration as to whether the police could affix a GPS device to the justice’s own cars. That was when it stop being about fictional Orwellian imaginings and started to be about the justices’ own Pontiacs and Google searches. In a deep way, the fragmented holding today reads as a laundry list of the various authors’ personal Rorschach test. Indeed Alito says as much in his concurrence, noting that the underlying trouble in these privacy cases is that “judges are apt to confuse their own expectations of privacy with those of the hypothetical reasonable person.”
It’s not clear that the court served the reasonable person at all today by handing down an opinion that gives no sense whatsoever of when and how a warrant would be required for government surveillance in the hands-free world of the 21st century, or how long such surveillance could endure before privacy concerns are raised (four weeks = too long!). Maybe it’s enough simply to know for now that at least five justices have a good sense—and a whomping, healthy fear—that what’s barreling down the road requires more than merely wondering what would have happened in a horse-drawn carriage.
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