The Two Questions of Jones, and the Potential Difficulty of Identifying the Proper Voting Rule

The Justices of the Supreme Court will meet soon to offer preliminary votes in United States v. Jones, the GPS case. We don’t know what the voting alignment will look like: The votes are hard to predict. But it seems to me that there’s a substantial chance that the Court’s opinions might face a puzzling problem of figuring out which voting rule applies. I wanted to explain a bit about why I think that, and why it might matter.

Here’s the problem, at least as I see it right now. There are two issues in the Jones case, and they arise sequentially. The issue that arises first in time is whether the installation of the device is a search or seizure, and if so, whether it was a reasonable search or seizure; the issue that arises second in time is whether the use of the device after it was installed is a search or seizure, and if so, whether it was a reasonable search or seizure. Based on the argument, it was clear there was at least one vote (Scalia) for the view that installation of the device is a search. It was also clear that at least some other Justices are interested in saying that the use of the device is a search or seizure. The tricky question is, what happens if a majority of the Court concludes that somewhere in the process of installing and using the GPS there is a search or seizure, but there is no agreement as to which steps triggers the analysis or what constituties reasonableness?

To frame the issue, consider two common occurrences, each with a different voting rule. First, imagine members of a multi-member court are asked to say whether conduct in a single event is lawful. There are two different theories for why the conduct might be unlawful: Question 1 asks whether the conduct is unlawful because it violates legal theory 1, and Question 2 asks whether the conduct is unlawful because it violates legal theory 2. A majority rules that the conduct is unlawful, but there is no majority view as the reason. How do we figure out the law? We would simply tally the votes for the event. If it’s possible to group the votes into broader and narrower rationales, then the job is easy: The narrowest rationale in favor of the majority result becomes the working rule under a Marks analysis: The law is that the conduct was unlawful for the reason offered in the narrow opinion. If it’s impossible to group the votes into broader and narrower rationales, then we get a result and yet not a precedential clear rule. The conduct is deemed unlawful, but we don’t get a working rule as to why that can guide future caselaw development in the lower courts.

On the other hand, imagine that members of a multi-member court are asked to resolve the lawfulness of two independent events litigated in a single case. Question 1 asks whether the first event is lawful, and Question 2 asks whether the second event is lawful. A majority of the judges rule that one of the events is unlawful, but they disagree as to which event: For each individual event, a majority of judges concludes that the event is lawful. How do we figure out the law? We have the same principle as before: We tally the votes for each event. But the application of the principle is different, as this time there are two events instead of one. So we need to count the votes for each event individually. This ends up with a different voting rule, as now we’re considering votes per issue rather than votes as a whole. The result is that the government’s conduct is deemed legal, as there is a majority vote for lawfulness for each event.

That brings us back to Jones. As I see it, it’s not clear which voting rule applies. Are the two Questions Presented most accurately viewed as presenting two different theories about the lawfulness of a single event? Or are they most accurately viewed as presenting the lawfulness of two different events? It’s not entirely clear, as it depends how you group the events: Is installation and use one event, or two distinct events? The answer might conceivably determine whether GPS usage is legal.

To see why, imagine 3 Justices would rule for the government and say neither installation nor use is a search or seizure; 3 Justices would rule that the installation is a search or seizure but the use is not; and three Justices conclude that installation is not a search or seizure but use is. If you see use and installation as two separate events, then the government’s conduct is lawful: Each event is lawful by a 6-3 vote. But if you see installation and use as a single event, then the government’s conduct is unlawful: Again there is a 6-3 vote, but this time the 6-3 vote is for unlawfulness (albeit on two rationales).

Further, the Justices themselves can disagree on whether the installation and use are one event or two. And that can create real puzzles. To see why, imagine 7 Justices see the installation and use as two distinct events instead of one. Specifically, 3 Justices would rule for the government and say neither installation nor use is a search or seizure; 3 Justices would rule that the installation is a search or seizure but the use is not; and one Justice would rule that installation is not a search or seizure but use is. In contrast, two Justices conclude that installation and use should be viewed as a collective single event and that this one event is a search or seizure. What voting rule applies now, and what rule emerges? I’m not sure there is an answer. Now there is no one event to tally votes: There are 3 votes that installation is a search; two votes that installation and use together is a search; and one vote that installation is not a search but use is. I’m not sure what voting rule should apply given the disagreement as to what counts as an event.

Perhaps I’m just missing something obvious and there is an easy answer to these puzzles. But if there is no majority view in Jones, I would think these puzzles may need to be addressed.