Gorsuch says he’ll repeal and replace the Fourth Amendment with something terrific

This is not how judges are supposed to behave.

CREDIT: Tom Williams/CQ Roll Call
CREDIT: Tom Williams/CQ Roll Call

As a presidential candidate, Donald Trump offered a vague promise to repeal and replace the Affordable Care Act with “something terrific.” On Friday, Neil Gorsuch, who occupies the seat on the Supreme Court that Senate Republicans held open until Trump could fill it, brought a similar amount of thoughtfulness and coherence to the question of when police should be allowed to conduct a search without a warrant.

Gorsuch’s dissenting opinion in Carpenter v. United States is an odd piece of writing. It reads less like a judicial opinion and more like the sort of essay that an overworked law professor might toss off after they suddenly realize that they have a symposium paper due at the end of the week. After lecturing his colleagues for 20 pages about how he has uncovered a way of interpreting the Fourth Amendment that is more “tied to the law” than the last half-century of Supreme Court opinions on this subject, Gorsuch outright refuses to apply this mysterious new interpretation to the case at hand.

Carpenter asked whether law enforcement can, without first getting a warrant, use cell phone records to pinpoint where a particular suspect traveled over a course of weeks, months, or potentially even years. A majority of the Court — Chief Justice John Roberts plus the four liberal justices — held that the answer to this question is “no.”

Until its final pages, Gorsuch’s dissent reads as if he agrees with the majority’s conclusion — it’s only at the very end that Gorsuch reveals he is casting a vote in favor of the government because the lawyers on the other side failed to anticipate the specific way that Gorsuch wants to repeal and replace a half-century of established law.

Reasonable expectations

To understand Gorsuch’s odd Carpenter dissent, it’s helpful to understand a brief history of how the Supreme Court’s understanding of the Fourth Amendment developed in light of new technology. The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and it requires police to obtain a warrant before conducting certain searches.

The Court first confronted electronic eavesdropping by law enforcement in its 1928 decision in Olmstead v. United States. According to Olmstead, police did not need to obtain a warrant to wiretap a phone call because such a wiretap did not involve an “actual physical invasion” of a person’s property. This decision, which largely left individuals without any Fourth Amendment rights whenever they picked up the telephone, remained good law until the 1960s.


The Olmstead regime came to a close, however, with the Court’s 1967 decision in Katz v. United States, which held that police typically must first obtain a warrant before they listen in on a phone call. In an influential concurring opinion whose reasoning was embraced by a majority of the Court the next year, Justice John Marshall Harlan wrote that an individual’s Fourth Amendment right to be protected from warrantless searches it triggered when they have a “reasonable expectation of privacy.”

At the time, this “reasonable expectation of privacy” standard was considered a tremendous victory for civil libertarians. It gave the Supreme Court a framework it could use to apply the Fourth Amendment to electronic communications that police could easily intercept without physically intruding on someone’s home.

Less than one year after Katz, however, the voters elected Richard Nixon president — and President Nixon, who campaigned on a “law and order” platform, appointed four new justices in his first term in office.

Though the Court’s new majority retained the “reasonable expectation of privacy” test, they interpreted it to give police broad authority to obtain information about criminal suspects. Thus, in Smith v. Maryland, one of the most significant Fourth Amendment cases of the post-Nixon era, the Court held that police could obtain every single phone number dialed by a criminal suspect without obtaining a warrant.

“A person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,” Smith held. And each of us voluntarily reveals which number we are dialing to the phone company every time we call someone.


Thus, whatever promise the “reasonable expectation of privacy” standard might have had when it was first handed down, it proved to be quite vague and easily manipulated by justices sympathetic to police.

Something terrific

Gorsuch spends the bulk of his Carpenter opinion railing against pretty much everything that has happened in the Supreme Court’s Fourth Amendment cases since Katz, and this part of his opinion gives civil libertarians a great deal to cheer. Among other things, Gorsuch lists some of the truly absurd results the Court reached using the “reasonable expectation of privacy” test.

Take Florida v. Riley, which says that a police helicopter hovering 400 feet above a person’s property invades no reasonable expectation of privacy. Try that one out on your neighbors. Or California v. Greenwood, which holds that a person has no reasonable expectation of privacy in the garbage he puts out for collection.

Indeed, if someone only reads the first 12 pages of Gorsuch’s dissent, they would come away with the impression that the deeply conservative judge is eager to rein in police and undo much of the post-Nixon Court’s efforts to empower law enforcement. But then the opinion takes a weird turn.

“From the founding until the 1960s, the right to assert a Fourth Amendment claim didn’t depend on your ability to appeal to a judge’s personal sensibilities about the ‘reasonableness’ of your expectations or privacy,” Gorsuch writes with his trademark arrogance, “it was tied to the law.” The judge then suggests scrapping Katz‘s entire framework in favor of what Gorsuch labels the “traditional approach” to the Fourth Amendment.


This “traditional approach” asks “if a house, paper or effect was yours under law.” So if police want to search something that belongs to you, Gorsuch’s standard suggests that they need to obtain a warrant. If they want to search something that does not belong to you, they likely do not need a warrant.

In fairness to Gorsuch, the judge spends a good deal of time explaining how this “is it yours?” standard could extend, in some cases, to electronic records. If you “toss your keys to a valet at a restaurant,” for example, the valet still has a legal obligation to respect the car as your property. Similarly, Gorsuch suggests, Google would have a similar obligation to treat your emails as your own property.

But it is unclear how, if at all, Gorsuch’s “is it yours?” test should apply to a case like Carpenter. Recall that Carpenter involved whether police can access cell phone records that allow the cell phone company to track its customer’s locations. Our cell phones constantly ping nearby cell towers and similar sites, revealing much about our location in the process.

Cell phone companies keep records of this geolocation data, often for as long as five years. As Chief Justice Roberts explains in his majority opinion, they use this data to find “weak spots in their network,” to apply “roaming” charges, and to “sell aggregated location records to data brokers, without individual identifying information of the sort at issue here.”

But who owns this data? One possible argument is that I own my own cell phone. Any data it provides to the cell phone company is data that my device shared with them. And thus, like the emails I send through gmail, my cell phone’s geolocation data belongs to me and the government needs a warrant to touch it.

But wait! Doesn’t the cell phone company own its own network? The geolocation data exists, not because my device is broadcasting my location directly, but because my device communicates with a cell tower owned by the cell phone company — and the cell phone company knows where I am largely because it knows which of the many nodes on its network my cell phone has pinged. Under this theory, the data belongs to the cell phone company — it is not mine — and so the government could obtain it without a warrant.

The point isn’t that either of these theories are correct. Rather, the point is that Gorsuch’s theory doesn’t offer any more clarity than the imperfect “reasonable expectation of privacy” standard. Indeed, if anything, it offers far less certainty. Whatever else can be said about reasonable expectations of privacy, there are literally thousands of court opinions examining this standard. Those decisions will offer a great deal more legal guidance than the half-baked idea proposed by Gorsuch.

His Carpenter opinion is vintage Gorsuch. He even acknowledges the fact that his vague new standard offers little clarity — while simultaneously implying that he knows more than all of his colleagues put together. “I do not begin to claim all the answers today,” the judge writes, “but (unlike with Katz) at least I have a pretty good idea what the questions are.”

Well, maybe. But Gorsuch has, at other times, warned against throwing out legal rules simply because a few judges think that they have a better idea.

“Chesterton reminds us not to clear away a fence just because we cannot see its point,” Gorsuch wrote in his dissenting opinion in Artis v. District of Columbia, for “even if a fence doesn’t seem to have a reason, sometimes all that means is we need to look more carefully for the reason it was built in the first place.”

The reason for the “reasonable expectation of privacy” standard Gorsuch disdains is that the real “traditional approach” — the approach used by Olmstead — placed no limits whatsoever on police searches of telephone conversations. Today, it would give cops almost unlimited discretion to track our internet usage.

Gorsuch may no longer see the point of the “fence” that Katz erected around police, but he is still itching to tear it down. And he’s offered only the vaguest legal standard to replace it — a standard that no other member of the Court endorses.

Worse, Gorsuch concludes his opinion by suggesting that the best arguments for protecting the cell phone records at issue in Carpenter is an argument grounded in “positive law” — that is, an argument that such records are protected by state or federal law and not the Constitution itself.

When you strip away all the rhetoric, in other words, the world Neil Gorsuch wants looks a whole lot like Olmstead. State legislatures or Congress can give you privacy rights, but they can also take them away. And the Fourth Amendment will provide little backstop in a case like Carpenter.