Thomas and Gorsuch take aim at established Fourth Amendment doctrine in a recipe for pandemonium

Some men just want to watch the law burn.

(Photo of Thomas by Chip Somodevilla/Getty Images; Photo of Gorsuch by Justin Sullivan/Getty Images)
(Photo of Thomas by Chip Somodevilla/Getty Images; Photo of Gorsuch by Justin Sullivan/Getty Images)

If you’re planning on borrowing your buddy’s rental car and loading it up with several dozen bricks of heroin, the Supreme Court gave you good news on Monday. In Byrd v. United States, a unanimous Court held that someone who isn’t listed as an “authorized driver” of a rental car may still have Fourth Amendment rights if they are pulled over by the cops while driving it.

Yet, while the decision in Byrd was unanimous, Justice Clarence Thomas wrote a brief concurring opinion that, if embraced by a majority of the Court, could throw federal law enforcement into chaos. Thomas’ opinion, which was joined by Neil Gorsuch, suggests a wholesale rewrite of the Supreme Court’s decisions governing when police are allowed to intrude on a suspect’s privacy.

It could potentially leave every member of the criminal justice system, from federal judges to the greenest rookie cop, wondering what on earth the law is.

Reasonable expectations

Justice Anthony Kennedy’s majority opinion in Byrd relied on a half-century old legal doctrine governing when someone may claim a right to privacy against police intrusion. The Fourth Amendment protects a person’s right to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” As Kennedy reaffirmed in Byrd, a driver may claim the protections of the Fourth Amendment whenever they have a “reasonable expectation of privacy” in the car.


The “reasonable expectation of privacy” standard derives from Justice John Marshall Harlan’s concurring opinion in Katz v. United States, a decision the Court handed down in 1967. And, in fairness, it’s not the clearest standard the Supreme Court has ever handed down. Ask nine different judges what it means to have a reasonable expectation of privacy, and you are likely to get at least nine different answers.

But Justice Harlan’s standard does have one big thing going for it — the Supreme Court spent the last half-century fleshing out what it means to have a reasonable expectation of privacy. According to the legal database Lexis Advance, Harlan’s four magic words appeared in 84 Supreme Court opinions since Katz, and in tens of thousands of lower court opinions. The courts have spent a great deal of time fleshing out precisely what it means to reasonably expect privacy.

Such clarity is especially important in any Fourth Amendment context. There are more than a million full-time police officers in the United States, and each of them are obliged to comply with the Fourth Amendment.

It is not reasonable to expect every cop in the United States to have to make a judgment call every time they perform a search or seizure about whether they can do so without a warrant — unless there are clear rules governing how police must behave. The Court’s post-Katz decisions do not provide answers to every question, but they provide enough guidance to ensure that the majority of police officers will know how to behave in most situations.

Which brings us to Justice Thomas’ concurring opinion in Byrd.

In the very first line of Thomas’ four-paragraph opinion, the justice states that “I have serious doubts about the ‘reasonable expectation of privacy’ test from Katz v. United States.” He then suggests that a half-century of American law should be replaced with a new test — whether “police interfered with a property interest.”


There’s a robust debate among scholars and commentators about whether people stopped by the police would fare better or worse if such a property-based approach were the standard. Writing in the Daily Beast, Jay Michaelson argues that Thomas’ approach would “erase privacy rights as we know them today.”

It’s hard to see how one’s cellphone records, for example, count as a personal effect (i.e. personal property). Or one’s web browser history, as tracked by an internet service provider. Or digital records of any kind, for that matter, unless they include a specific property interest.

Meanwhile, Orin Kerr, a law professor and a leading expert on the Fourth Amendment, disagrees with Michaelson — arguing that a property-based framework that Gorsuch alluded to in a recent oral argument is likely to provide more protections to criminal suspects.

My view falls somewhere between Michaelson and Kerr’s. In the Carpenter argument that Kerr references, Gorsuch did, indeed, suggest that Fourth Amendment cases can be resolved under a “property-based” approach, and his questions suggested that this approach would lead to more libertarian decisions in certain cases. But Gorsuch also suggested that property rights should be determined by “state law.” That could potentially create a situation where state lawmakers can diminish the scope the Fourth Amendment by tweaking their state’s property law.

Starting from nothing

Even if the Thomas/Gorsuch approach to the Fourth Amendment is superior to Justice Harlan’s framework — at least if we were constructing our law of privacy from scratch — there is nevertheless a profound reason not to switch horses midstream. Judges understand the current reasonable expectation of privacy approach and know how to apply it. Prosecutors and defense attorneys can rely on decades of case law when litigating Fourth Amendment disputes. Cops know what the rules are, at least in the sort of circumstances that have arisen with enough frequency to merit the courts’ examination.


If the Supreme Court tosses all of that out and replaces it with an entirely new framework, it will throw our entire criminal justice system into chaos. Imagine having a million cops on the street — all of them carrying a badge and gun — but none of them knowing how to comply with the Constitution.

Thomas’ rationale for tossing out a half-century of precedent is that doing so would bring the law more in line with “the original meaning of the Fourth Amendment.” Perhaps he’s correct in this assessment. But, again, the immediate result of such a decision would be a wave of unanswered questions.

Recall that the Fourth Amendment protects everyone’s right to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Does the word “papers,” in this context, refer only to physical objects such as books and notepads, or does it extend to any means of preserving information through writing — including electronic records? If electronic records aren’t “papers,” do they count as “effects?” And does it matter whether those electronic records are stored on a personal hard drive or in the cloud?

Does the Fourth Amendment’s use of the word “their” imply that borrowed objects — such as the rented car at issue in Byrd — are never protected? And what of a case like Katz, which involved a wiretap on a public telephone? Can someone ever have a reasonable expectation of privacy when they are somewhere available to the public at large?

If the Thomas/Gorsuch approach takes hold, the courts will eventually get around to answering these questions — and maybe Kerr is right that the courts may reach more civil libertarian approaches than they would have under Justice Harlan’s framework. But the transition will be helter-skelter, potentially leaving many critical questions unanswered for decades. And during this interregnum, one can reasonably presume that many cops will push the envelope with regard to searches and seizures.

Over the cliff

The late Justice Antonin Scalia once distinguished himself from Thomas in a few pithy words. “Look, I’m an originalist,” the conservative icon said, “but I’m not a nut.”

There will be times when a judge — especially a judge who generally views the original understanding of the Constitution as gospel — becomes convinced that a particular line of precedent is at odds with how the framing generation would have read the Constitution. Scalia’s point, however, is that the fact that a judge thinks that prior cases were wrongly decided is not sufficient reason to toss out a long line of decisions.

Precedents build on each other. Lawmakers enact laws, and businesses make investments, based on what they believe to be settled law. Two generations of police officers were trained to comply with Harlan’s “reasonable expectation of privacy” framework. Tossing out such settled law is a recipe for pandemonium.

Nevertheless, Thomas and Gorsuch are not like most judges. They believe that, if they deem a previous decision to be wrong, it doesn’t matter if overruling that decision will run the nation off a cliff. The only proper action is to hit the accelerator and make like Thelma and Louise.

And, lest there be any doubt, these two men are eager to plunge over some very steep cliffs. Thomas’ opinions suggest that federal child labor laws and the ban on whites-only lunch counters are unconstitutional. He believes that children and teenagers have no First Amendment free speech rights.

Gorsuch, of course, has had much less time than Thomas to express his most radical views from his Supreme Court perch. But his existing writings suggest that he takes an exceedingly narrow view of federal power — especially regarding the Environmental Protection Agency’s ability to do much, if anything, to protect the environment.

In other words, should Trump get to fill the Supreme Court with more Gorsuches, much more than the criminal justice system will be thrown into chaos. Huge swaths of American law could simply cease to exist.