The Washington Post

Supreme Court has shown unity, but little guidance


The Supreme Court’s decision last week regarding GPS tracking of criminal suspects was a very big deal for Antoine Jones, a D.C. nightclub owner and convicted drug dealer who saw his conviction overturned.

What it means for the rest of us is not so clear.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006. View Archive

Similarly, former religious school teacher Cheryl Perich was quite plainly told by the justices earlier this month that she could not pursue a discrimination complaint against her former church and bosses. Perich’s duties and training put her among those covered by a “ministerial exception” that meant the church could fire her without violating the Americans with Disabilities Act.

But which other church employees might be considered “ministers” and which other kinds of suits might be banned were left for another day.

In those two controversial cases and a third — regarding how to draw Texas’s redistricting lines in the face of tremendous growth in the state’s Hispanic community — the court was unanimous in its judgments.

Each decided an important issue. In Perich’s case, it was the court’s first acknowledgment that such a “ministerial exception” is allowed by the Constitution. Jones’s case signaled the court’s concern about the risks modern technology poses for Fourth Amendment rights, and a majority called for Congress to address the issue.

The Texas case reaffirmed that — for now — a state with a history of discrimination may not impose its own redistricting plan without federal approval, while advising courts considering such issues to be mindful of state sovereignty.

Although Texas’s Republican-dominated political leadership got more of what it wanted, both sides claimed some measure of victory. (Settlement talks are now underway in the case, which will have a role in deciding which party controls the House of Representatives after November.)

Chief Justice John G. Roberts Jr. acknowledged the questions left open by the Perich decision, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC . The court, he said, would not adopt “a rigid formula for deciding when an employee qualifies as a minister. It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich.”

In United States v. Jones , there is even less guidance. Without a valid warrant, law enforcement officials tracked Jones’s every movement for 28 days, and Justice Sonia Sotomayor succinctly stated why the case drew such attention from lawyers, law enforcement and those concerned about privacy.

“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations,” Sotomayor wrote. “The government can store such records and efficiently mine them for information years into the future.”

All nine justices agreed the surveillance violated Jones’s rights and mandated overturning his conviction. But they split on the reasoning. The only clear holding from the decision is that five justices — including Sotomayor — concluded the physical act of placing a GPS device on the Jeep Jones drove constituted a “search” under the Fourth Amendment’s protection against unreasonable searches and seizures.

Fourth Amendment experts such as Christopher Slobogin at Vanderbilt Law School found the court’s consideration of the issue important but the decision “a little disappointing.” Most government tracking does not involve planting a device on a car, he said, and the opinion leaves “much up in the air.”

Lori Andrews, a professor at the Chicago-Kent College of Law, went further, saying the decision “provides little guidance about which activities might be considered searches, which require warrants, and which voluntary disclosures to third parties might waive Fourth Amendment rights.”

Lisa S. Blatt, a Washington lawyer who appears frequently before the court, said justices in the cases so far have been content to focus on agreement and reject invitations “to draw lines in the sand.”

Steven R. Shapiro, legal director of the American Civil Liberties Union, said he was “reluctant to read too much” into the court’s unanimous decisions.

“As you will recall, Roberts joined the court promising more unanimity,” Shapiro said. “He delivered in his first year, and it fell apart in his second. Some of this is just coincidental.”

Shapiro said he thought the court “genuinely felt that the boundaries of the ministerial exception could be best worked out through case-by-case adjudication.” And even the four members of the court who felt Jones should be decided on privacy grounds were “wary about laying down rules about future technology and its impact on the Fourth Amendment beyond raising a yellow caution flag,” he said

Justice Antonin Scalia last week told an audience that justices ask so many hypothetical questions during oral arguments because they are not focused on just the outcome of the case at hand. “Millions of other people” will have to live with the court’s precedents, he said.

Taking small steps is one way to approach such decisions. But it may not lend itself to other items on the court’s substantial agenda, including health care overhaul, the case that will define the term.

The Freddie Gray case

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