Strahilevitz: Ten Thoughts on Today’s Blockbuster Fourth Amendment Decision – Carpenter v. United States

Ten Thoughts on Today’s Blockbuster Fourth Amendment Decision – Carpenter v. United States

Today the Supreme Court decided that the government generally needs a search warrant to obtain historic cell-site geolocation information. You can see Orin Kerr’s post — no doubt the first of many — for a helpful breakdown of the votes and holding, plus thoughtful analysis. In this post I am going to flag ten quick and initial reactions to the Court’s landmark ruling. Matt Tokson will follow-up with thoughts of his own, so you should stay tuned for those.

  1. From a pedagogy perspective, this case is loads of fun, and an editing challenge. If I were in charge of a casebook I’d want to assign most of the Kennedy, Thomas, and Gorsuch dissents, along with the majority opinion, and excerpts from the Alito dissent. Every Criminal Procedure or Privacy professor can look forward to “I can’t believe how much reading you assigned for the Carpenter class” on teaching evaluations.
  2. It’s good to be the Chief. At many points the majority opinions echoes Justice Sotomayor’s concurrence in Jones (and the Chief Justice’s opinion in Riley). I think had Justice Sotomayor written the majority opinion she would have written something that was a lot more intellectually satisfying by tackling some of the hard questions that the dissents raised and by pointing to the scholarship and theory that built the intellectual case for the majority’s bottom line. The dissents, especially the Thomas and Gorsuch opinions, use Fourth Amendment scholarship to explain exactly where they are coming from, whereas the majority opinion very conspicuously avoids that kind of engagement. The result is a majority opinion that’s cryptic, by design. The majority text and approach are consistent with the Chief’s dim views about legal scholarship generally and with his stated preference for minimalist decisions. My suspicion is that none of the other four justices in the majority would have written the opinion like the Chief Justice did, but they were happy to get a hugely consequential win and avoided writing separately for that reason.

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