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Column: Is the Supreme Court Living in the 18th or 21st Century? (New York Law Journal)

by Christopher Dunn

The role that colonial practices should play in constitutional jurisprudence has long been debated, with Supreme Court Justice Antonin Scalia serving as the most prominent supporter of the view that the guarantees of the Bill of Rights must be grounded in the original intentions of the “Founding Fathers.” Yet, with nearly 250 years separating contemporary American society from the Declaration of Independence, the tenuousness of this position becomes increasingly evident.

Two Supreme Court decisions from the recently concluded Term dramatically illustrate the “original intent” tensions in the Court. In one – Town of Greece, New York v. Galloway – the Court invoked 18th century practices to turn back an Establishment Clause challenge to prayers that precede town meetings in a community outside of Rochester. In a second case – Riley v. California – the Court fully embraced 21st century privacy concerns in holding that police officers must have a warrant before examining the contents of the smartphones of arrestees. The analytical gulf between these two rulings leaves one wondering which century defines the Supreme Court’s view of the Bill of Rights.

Prayer in Greece
Greece, an upstate New York town of 94,000 people, has an elected town board that meets monthly, with the public attending and participating. The first part of the meetings is devoted to traditional legislative work, during which members of the public can address the board. Following that, the board has a separate part where it adjudicates various matters, like requests for zoning variances.

For many years, board meetings had been preceded by a moment of silence. That changed in 1999 when, as the Supreme Court explained, “the newly elected town supervisor . . . decided to replicate the prayer practice he had found meaningful while serving in the county legislature.” In the ensuing years, a town employee would call churches listed in a local guide until the employee found someone to deliver the prayer, a practice that meant that only Christian clergy were providing prayers since the guide contained only Christian churches. After the town received complaints about this situation, it announced that anyone, including an atheist, could offer an invocation. Nonetheless, every minister who participated between 1999 and 2007 was Christian.

In its May the Supreme Court rejected an Establishment Clause claim to this arrangement in a decision that is squarely grounded in the 18th century and that presents an amusingly idyllic take on religion and politics. In the very first paragraph of its analysis, the Court offered this view of the two: “As practiced by Congress since the framing of the Constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society.”

With this ode, the Court launched into a review of the long history of legislative prayer, concluding that “[i]n light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society.” While claiming that its precedent “must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation,” the Court in the next breath adopted that very position as the analysis it would apply to the Greece prayer practice: “The Court’s inquiry . . . must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures.”

That tradition insulated Greece’s prayer practice, the Court concluded. The fact that prayers in Greece were explicitly sectarian made no difference because the “Congress that drafted the First Amendment would have been accustomed to invocations containing explicitly religious themes of the sort respondents find objectionable.” As for the impact of 250 years of increasing pluralism in our society, the Court summarily rejected the significance of that: “The decidedly Christian nature of these prayers must not be dismissed as the relic of a time when our Nation was less pluralistic than it is today.”

Finally, the Court was untroubled by the prospect that the prayers would coerce participation by members of the public who would be concerned their non–participation would be frowned upon by town board members before whom they would be advocating. Indeed, the Court found such concerns to be irrelevant to the constitutional analysis given the 18th century practice: “The principal audience for these invocations is not, indeed, the public but lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing. . . . [T]heir purpose is largely to accommodate the spiritual needs of lawmakers and connect them to a tradition dating back to the time of the Framers.”

64-Gigabyte Smartphones
Six weeks after squarely mooring itself in the 18th century with Town of Greece, the Supreme Court confronted a decidedly 21st century issue in Riley v. California: whether the police need a warrant to search the cell phone of a person who has been lawfully arrested. Though principles governing searches of arrestees long predate the Constitution, the Court resolved this issue with a modern approach that differed dramatically from the one it had taken in Town of Greece and from the approach it had taken two years earlier when addressing the Fourth Amendment implications of police attachment of GPS devices to criminal suspects’ vehicles.

Dating back to 1914, the Supreme Court has long recognized a broad exception to the Fourth Amendment’s warrant requirement that allowed the police freely to search the person and possessions of one under arrest. In recent decades the court has gone so far as to uphold the search of the contents of a cigarette pack found in an arrestee’s pocket and has even extended the search-incident-to-arrest exception beyond arrestees and their possessions to permit the search of vehicles in which arrests are made.

Riley marks an abrupt end to that line of cases. Most notably, it demonstrates how contemporary concerns can drive the Supreme Court to do very uncharacteristic things. In this instance, the Court’s unanimous opinion, which Chief Justice Roberts authored, recasts over 40 years of search-incident-to-arrest doctrine in terms far more solicitous of privacy concerns. That welcome recasting was essential because, by its terms, that doctrine fully supported warrantless searches of cell phones.

What drove this highly unusual reinterpretation of Fourth Amendment law was the Court’s full embrace of modern privacy concerns. In perhaps the most-quoted line in the decision, Justice Roberts observed that “modern cell phones . . . are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” For purposes of Fourth Amendment jurisprudence, the Chief Justice might more aptly have invoked a “visitor from The Colonies.”

Regardless of the visitor’s origins, he or she or it would be struck by the Supreme Court’s embrace of the modern privacy threat posed by cell phone searches. At the outset, the Court noted “many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone” and that could “just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” It then noted that the enormous capacity of these devices meant that a vast range of personal information was recorded on them.

But beyond the enormous quantity of information on cell phones, the Chief Justice emphasized the qualitative implications for personal privacy:
Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.

Mobile application software on a cell phone, or “apps,” offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase “there’s an app for that” is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life.

Given these considerations, the Court was willing to ride roughshod over long-standing law. And in doing so, it recognized that a warrant requirement could hinder law enforcement. Nonetheless, it had a response to that concern that should hearten civil libertarians everywhere: “Privacy comes at a cost.”

Notably for purposes of the relationship between modern privacy disputes and Colonial practices, the Supreme Court in Riley took a very different approach than it had taken just two years earlier in grappling with similar privacy concerns raised by a case challenging warrantless attachment of a GPS device to a criminal suspect’s vehicle. While in United States v. Jones all nine Justices acknowledged the enormous privacy implications of GPS tracking, the majority opinion was rooted in the 18th century. Written by Justice Scalia, it cited an English decision from 1765 to find that use of the GPS device triggered Fourth Amendment protections because “[w]e have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted” (my emphasis). And in response to the suggestion that GPS devices had no conceivable counterpart to 18th century situations so as to allow this approach, Justice Scalia compared GPS devices to “a constable concealing himself in the target’s coach in order to track its movements.”

This strained historical approach was harshly criticized, not surprisingly, by Justices Ginsberg, Kagan, and Breyer in an opinion written, quite surprisingly, by Justice Alito. These four Justices persuasively argued that there was no going back to the 18th century to deal with modern technologies that threaten privacy. As for Justice Scalia’s imagined constable secreting himself in a coach for weeks on end, Justice Alito revealed a previously unseen and tart sense of humor: “[T]his would have required either a gigantic coach, a very tiny constable, or both – not to mention a constable with incredible fortitude and patience.” Happily, the contemporary approach advocated by these Justices just two years ago became the majority approach in Riley.

Looking forward
Decisions like Town of Greece remind one that far too often the protections of the Bill of Rights remain captive to colonial times. Nonetheless, the Supreme Court’s willingness in Riley to allow modern advances to drive constitutional doctrine is welcome and encouraging. As more modern privacy disputes head to the Court, it will bear watching how much 21st century concerns trump 18th century constraints.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.

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