Are Jones and Riley explained by the Justices imagining themselves as targets?

June 26

Over at the New York Times, Linda Greenhouse argues that the results in United States v. Jones and Riley v. California are explained by the Justices seeing themselves as potential targets of the government in those cases. I’m skeptical of her argument, and I thought I would explain why. First, here’s Greenhouse:

The justices ruled two years ago in United States v. Jones that placing a GPS device on a suspected drug dealer’s car in order to monitor his movements for a month was a search. The vote was 9-0, although the rationale was divided. During the argument in that case, the justices seemed taken aback by the government’s concession — inherent in its legal theory — that they themselves could be subjected to such an intrusion on their privacy.

“You could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month, no problem under the Constitution?” Chief Justice Roberts asked his one-time colleague in the solicitor general’s office, Michael R. Dreeben, who had no choice but to say yes.

I had planned to conclude my discussion of the court and the search cases with a mention of “empathy,” the ability to put oneself in someone else’s shoes, so often missing from the Supreme Court’s criminal law decisions but perhaps on display here. But on reflection, it’s not really empathy. The justices are walking in their own shoes. The ringing cellphone could be theirs — or ours.

I think this kind of argument can have some explanatory force in Supreme Court caselaw generally. But I’m not so sure it explains Jones or Riley. The problem is that if the Justices came out the opposite way on the same facts, you could easily construct a mirror-image narrative to explain why of course the Justices ruled for the government.

Let’s call these hypothetical mirror-image decisions counter-Riley and counter-Jones. In both, the government won 9-0. What explains that? In counter-Riley, you would say that the Justices all ruled for the government because they could never imagine being arrested. After all, Riley applies only when there is an arrest. The Justices voted for the government in counter-Riley because they could never imagine that happening to them. In counter-Jones, you would invoke the trope that there is a drug exception to the Fourth Amendment, by which the Justices rule for the government in drug cases. The Justices ruled for the government in counter-Jones because it’s a drug case, the argument would run, and they can’t imagine ever being the target of a massive narcotics conspiracy investigation. When you can use this kind of argument to explain any outcome, I don’t think the argument is doing a lot of work.

I think the better explanation is that both Jones and Riley are about equilibrium-adjustment, and equilibrium-adjustment has equal appeal across a wide range of perspectives:

Equilibrium-adjustment is a recurring judicial instinct in search and seizure cases. It occurs during different decades, in cases with very different stakes. And it occurs among Justices associated with very different constitutional theories of interpretation. Pragmatists do it. Originalists do it. Living constitutionalists do it, too.

The shared instinct for equilibrium-adjustment narrows the range of disagreement and can create unexpected uniformity:

Shared reliance on equilibrium-adjustment facilitates coherent group decisionmaking over time. The Justices won’t always agree on how or when to engage in equilibrium-adjustment. But agreement on the need for equilibrium-adjustment narrows the range of potential disagreement in ways that increase the chances that group decisionmaking will be coherent. By replacing disparate theories of interpretation with a shared approach, equilibrium-adjustment increases the chances that the case-by-case decisionmaking of Fourth Amendment law will create a reasonably coherent regulatory framework.

An interesting aspect of Jones and Riley from the perspective of equilibrium-adjustment is that the technological change was relatively easy to understand. Everyone has a cell phone and is familiar with smart phones. Most of us have experience with GPS devices in cars. So in Jones, when the Chief asked about putting GPS devices on the Justices’ cars, it’s possible that he really was thinking that the FBI might put him under GPS surveillance. Or perhaps the hypothetical was just a simple and powerful way to showcase the case for equilibrium-adjustment.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.
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