One of the puzzles of Jones is how Scalia’s opinion ended up being the majority opinion of the Court, while Justice Alito’s view is merely a concurring opinion. The puzzle is that the apparent 5th vote for the Jones majority, from Justice Sotomayor, wrote a concurrence strongly hinting that she would accept a far broader rationale something akin to that in Justice Alito’s concurrence in the judgment. The question is, why sign on to Scalia’s opinion instead of Alito’s?
There are a bunch of possible reasons, of course, but one possibility involves the timing of circulated drafts. The Chief assigned the majority opinion to Scalia, who had floated his theory of the case at oral argument. Imagine Scalia circulated his majority opinion quickly, and Sotomayor joined it pretty soon after that. Some time passed, and then Justice Alito sent around his concurring opinion. Justice Alito’s opinion is mostly a criticism of Scalia’s approach, but it then has a relatively brief pro-privacy section at the end that addresses questions not reached by Scalia’s opinion. Imagine Sotomayor read Alito’s opinion and really liked that part of Alito’s opinion. But she had already signed on to Scalia’s draft majority, and it’s considered bad form to un-join an opinion after signing on. It’s especially bad form if you followed the common practice of asking for a few changes to the draft majority opinion as a condition of signing it. Also, while Alito hinted at how he would decide the case, that section is relative brief and quite vague. So Sotomayor might have stuck with Scalia’s opinion as a matter of propriety and good internal court relations, and then written her solo concurring opinion indicating her agreement with much (although by no means all) of Alito’s opinion.
Of course, that’s just one possibility among many.
UPDATE: Over at SCOTUSblog, Tom Goldstein notes a point that I simply missed on my initial reading of the opinions: Alito’s concurring opinion not only rejects the new trespass theory, but further indicates that the installation and short-term monitoring is fine — it’s only long-term monitoring that Alito would say is regulated by the Fourth Amendment. So Sotomayor’s choice wasn’t between a narrow and broad theory, as I had initially surmised, but between two very different theories. Sotomayor joined one and indicated strongly that she would likely favor the other, but she didn’t need to reach that; doing would have required a United States v. Booker-esque combination of two sets of Justices, which in addition to being complicated wasn’t needed because at least the result was settled in this case.
John Thacker says:
Perhaps Justice Sotomayor thinks that both the trespass and the expectation of privacy argument applies. Justice Alito’s opinion spends a lot of time dismissing the trespass argument, whereas Justice Scalia’s opinion merely says that it takes no opinion on the expectation of privacy opinion.
Therefore, if Sotomayor agreed with both reasons to disallow the GPS device, she could sign on to Scalia’s opinion but not Alito’s.
January 23, 2012, 4:25 pmPatty Shundynide says:
She gave the reason: “Resolution of these difficult questions in this case is unnecessary, however, because the Government’s physical intrusion on Jones’ Jeep supplies a narrower basis for decision. I therefore join the majority’s opinion.” Scalia’s opinion was narrower and she’s a minimalist.
[OK Comments: Perhaps, but Sotomayor's opinion suggests a rather dramatic revision of existing approaches to the Fourth Amendment, doesn't it? It's not obvious to me how that is "minimalist."]
January 23, 2012, 4:33 pmSCOTUS: Police Need Warrant For GPS Tracking « Philly Law Blog says:
[...] [16.34]: Orin Kerr at The Volokh Conspiracy has some thoughts about why Justice Sotormayor joined Justice Sca… Share this:TwitterFacebookLike this:LikeBe the first to like this [...]
January 23, 2012, 4:36 pmUgh says:
Sausage making, not just for the legislature anymore…
January 23, 2012, 4:39 pmShag from Brookline says:
So we have 5-4 unanimous decisions?
January 23, 2012, 4:46 pmUrso says:
Through such minutae is created binding nationwide law. A sausage factory indeed.
January 23, 2012, 4:48 pmAnderson says:
So maybe Sotomayor made a rookie mistake – a more experienced justice might not’ve joined an op so soon, but waited to see what came up?
[OK Comments: Actually, it's probably smarter on the whole to join sooner rather than later. A Justice who circulates a majority opinion is more likely to agree to changes early on, when he's not sure he'll get to five. A Justice who already has a majority is a lot less likely to agree to changes.]
January 23, 2012, 4:50 pmWake Up Little Susie says:
The other justices saw the competing theories of the majority and concurrence as an either/or proposition. Justice Sotommayor chose “both” because the choice is a false dichotomy and no one else joining Justice Alito’s concurrence understood that.
It is still not clear to me why Justice Alito thinks the Justice Scalia opinion is wrong, even though he would have preferred the case be decided on different grounds for what (appear to me to be) prudential reasons.
IOW, I understand why Scalia didn’t join in the Alito opinion, but I don’t really see why Alito did not join in the Scalia opinion. Is it bcs he does not want the cops to be liable for the economic consequences of trespassory behavior? Is it bcs he does not want guilty men to go free just because the constable decides to trespass? I mean, c’mon, even the Chief Justice didn’t go there!
To sum up what I think: we have well-developed expectations of privacy when it comes to our vehicles. Not everybody agrees an exactly what unauthorized third parties can do to your vehicle at the margin, but it is an issue that everybody has though about at one time or another, usually sporadically over a long period of years (eg, every time somebody writes in the dirt on the back window of your car). OTOH, we have not, as a society, thought a whole lot about onstant GPS surveillance. Some people have thought about it (the late George Orwell comes to mind) — but I think there has not been enough rela-life-based percolation to really determine how society feels about this kind of informational as a society. Of course, everybody over 40 (even over-40 policemen) thinks that 24/7 government GPS tracking of your vehicle’s location is real bad, but everybody under 25 thinks it is just an unavoidable part of life, like expelling waste or getting a head cold. It is probably the expectations of the younger crowd that are more important over the long run. IOW, I don’t think the Alito-concurrence was ripe because it relies on issues where reasonable expectations of privay have not had a chane to mature into a societal concensus, but the Scalia opinion was ripe. Professor Kerr seemed to be loath to say that everybody knows that you don’t mess around with other ppl’s cars when they are not there. But the fact of the matter is that everybody else knows you don’t mess around with other people’s cars when they are not there. Simples and trues. That was never up for grabs, but it was apparently Professor Kerr’s blind spot which ended up adversely affecting his predictive powers on this case.
January 23, 2012, 4:50 pmSean O'Hara says:
Since her opinion indicates that her own position is more extreme than either the Alito or Scalia opinions, I wonder if her thought process wasn’t, “Well, if I sign off on Alito’s opinion, we’ll just be updating the status quo to reflect modern technology, but if I go with Scalia we’ll add a new layer to 4th Amendment protection. Since this is an issue that’s bound to come up again, we can put off updating the concept of reasonable expectation of privacy for now.”
January 23, 2012, 4:57 pmMJG says:
I think it was trying to have her cake and eat it too. “Sure, sure, Scalia: I’ll take your constitutional floor of the law of trespess, AND I’ll take a broader, more expansive view of the reasonable expectation of privacy (with shades of the mosaic theory in there).”
As Tom Goldstein on SCOTUSBlog asks, maybe the more interesting question is why didn’t Ginsburg, Kagan, and Breyer *also* take this position? His guess is that they are more skeptical of where accepting a property based view of the fourth amendment would lead.
In any event, my guess is that Sotomayor completely agreed with Scalia for *this case* — installing the GPS for purposes of tracking information sounds pretty “search”-y, and property violations seems like a fine way to do it — but Alito had much more interesting things to say about the *next case* which will inevitably involve surveillance without a physical intrusion or installation (i.e. either pre-loaded GPS devices in cars or the receipt of information from smartphones we all already carry).
Thus was Sotomayor was really doing was joining Scalia for *this case* but preemptively joining Alito, Breyer, Ginsburg and Kagan for the *next case*, so if you’re a lower court judge and you get the GPS-like case that doesn’t involve a physical trespass, you basically apply the Alito/Sotomayor opinions.
January 23, 2012, 5:07 pmName Withheld says:
I think this is exactly right.
January 23, 2012, 5:48 pmAdam S says:
Yes, she doesn’t misinterpret Scalia’s opinion either. From an analytic perspective, Scalia’s opinion is a broader 4A approach: Both X (trespass) + Y (invading reasonable expectation of priv) constitute 4th amendment searches. Alito’s opinion is just Y.
January 23, 2012, 5:52 pmAnonymous Cavalier says:
I think this critique fails on its own terms. Minimalism is a theory of judicial decisionmaking, not of substantive Fourth Amendment law. If a judge is practicing minimalism, then she should not adopt her “rather dramatic revision of existing approaches” unless those revisions are necessary to decide the case before her. So if Justice Sotomayor (a) has a very broad conception of the Fourth Amendment’s sweep, but yet (b) thinks the case comes out the same way under a narrower theory, then minimalism would suggest she should join the narrow opinion while candidly explaining the broader views she would consider adopting in an appropriate case.
But I also think the premise is wrong: Some things that interfere with property do not interfere with privacy and vice versa. If Justice Sotomayor wishes to maximize Fourth Amendment protection as you suggest, she should certainly join the Scalia opinion because that will afford greater protection in some cases than the Alito approach (i.e., when property but not privacy is interfered with). In cases where the reverse is true, she can join the Alito team.
In any event, I’m inclined to take her at her word about why she voted the way she did; I don’t think we need to search for palace-intrigue explanations for why she wouldn’t strategically change her vote after Conference to reflect the views that Alito presumably expressed at that Conference. I can tell you’re very surprised by the outcome in this case, but I think you should consider that sometimes the Court does not decide cases in the see-this-case/cf-that-other-case way that I think you think it does.
January 23, 2012, 5:58 pmAnderson says:
Actually, it’s probably smarter on the whole to join sooner rather than later.
Ah so. Thanks!
January 23, 2012, 5:59 pmName Withheld says:
John Thacker: Perhaps Justice Sotomayor thinks that both the trespass and the expectation of privacy argument applies.Justice Alito’s opinion spends a lot of time dismissing the trespass argument, whereas Justice Scalia’s opinion merely says that it takes no opinion on the expectation of privacy opinion.Therefore, if Sotomayor agreed with both reasons to disallow the GPS device, she could sign on to Scalia’s opinion but not Alito’s.
My understanding was as follows:
1. Scalia’s opinion advances the trespass theory of “search/not-a-search” analysis. Scalia acknowledges that the reasonable expectation of privacy analysis endures, but sees it as an alternative rationale for finding a search. Scalia explicitly rejects some parts of Alito’s opinion, specifically the position it takes that actions that are not a search can become a search if continued for two long (4 weeks?) and that this analysis might depend upon the nature of the crime suspected.
2. Alito rejects Scalia’s trespass analysis and argues that the case should have been decided under the reasonable expectation of privacy analysis.
3. Sotomayor agrees with Scalia’s trespass analysis, and wants to elaborate on the effect a rapidly changing technological environment may have on the court’s reasonable expectation of privacy analysis (e.g., maybe we’ll now retain a reasonable expectation of privacy in information disclosed to third parties, given that we pretty much have to tell amazon everything we buy, etc.).
She can’t join Alito’s opinion because she doesn’t agree with it. She joins the Scalia’s view with respect to the trespass theory. So she concurs with Scalia and elaborates.
January 23, 2012, 5:59 pmAsher says:
If Sotomayor likes the trespass theory and Alito’s take on long-term monitoring and Katz, why couldn’t she have concurred only in Part V of Alito’s opinion? That gets her around joining the parts of his opinion that disparage Scalia’s revitalization of trespass. By praising Alito’s opinion’s “incisive[ ] observ[ations]” but not joining any part of it, she makes his Katz analysis a minority view, and when an electronic surveillance case comes up, lower courts can do nothing but apply reasonable expectation doctrine as it existed prior to Jones, plus Scalia’s opinion, however much reading the tea leaves might suggest that a majority of the Court thinks non-trespassory long-term monitoring is a search.
January 23, 2012, 6:04 pmMike Weagley says:
I think Sean O’Hara is right.
The majority opinion is strikingly broad. It’s true that Scalia does some hand-waving about how previous cases bind him to deciding that the installation/use of these GPS devices does not violate a reasonable expectation of privacy. (Does he really believe that, given Kyllo? Maybe; maybe not.) But the big news here is the Court is making the 4th Amendment tougher. After all, they’re adding an entirely new disjunctive prong to the threshold 4th Amendment question.
Sotomayor seems to believe that the use of these GPS devices violates a R.E.P. in many more circumstances than the 4-Justice concurrence does.
Her choice of opinions:
1) Alito, who uses the R.E.P. approach and says only that the length of time the GPS was used was too long
2) Scalia, who says this is good under R.E.P., then greatly expands the purview of the 4th Amendment
Also, we (and Sotomayor) know from Scalia’s Confrontation Clause jurisprudence that he is quite willing to use originalism to restrain government power.
It seems more likely that Justice Sotomayor wants to expand the reach of the 4th Amendment. I see no reason to adopt Professor Kerr’s alternative hypothesis that Sotomayor signed on to Scalia’s opinion out of politeness.
January 23, 2012, 6:11 pmAsher says:
But again, that binary doesn’t quite exist, because she can have it both ways by only joining the parts of Alito’s opinion that use the Katz approach.
January 23, 2012, 6:32 pmOrin Kerr says:
Anonymous Cavalier,
We seem to have different understandings of judicial minimalism.
As for the dynamic I describe, it happened when I was clerking, and realizing that it happened is actually really important to understanding the future of the relevant doctrine. So I thought others might be interested in hearing about that possibility, as it gives us clues as to where the doctrine may go. I understand you would rather not hear of such things, however.
January 23, 2012, 7:18 pmCC says:
Seems to me that Sotomayor didn’t sign onto Scalia’s opinion because in it she sees the possibility of eliminating Katz‘s “reasonable expectation of privacy” test entirely the next time a case like this comes up. Reading between the lines of Scalia’s opinion, it seems clear he disfavors that test. The first step is to reestablish the trespass test as a viable one. That’s what he did in Jones. The second step, next time, is to say it’s the only viable test, and reasonable expectation of privacy is out. Sotomayor saw that and didn’t want to be a part of it.
January 23, 2012, 7:22 pmJohn Thacker says:
This is certainly true. Though it seems like her musings in her concurrence go beyond what Alito’s last section did. Still, I agree, the more interesting question isn’t why she signed onto Scalia’s opinion, but why she didn’t sign on to just the last part of Alito’s.
I’d slightly disagree with Mike Weagley’s #2. Scalia didn’t precisely say that “this is good under R.E.P.” What he said was “this is already disallowed by trespass, so we don’t need to evaluate this under R.E.P. at this time.
That’s a pretty important distinction, useful if you’re trying to keep a majority together.
January 23, 2012, 7:38 pmJohn Thacker says:
Sorry? Sotomayor did sign on to Scalia’s opinion. That’s why it’s a majority. It’s Alito’s opinion that she praised the last section of but didn’t sign onto.
January 23, 2012, 7:39 pmMike Weagley says:
Good point; having re-read the opinion, I see now Scalia never explicitly agrees with the old caselaw on beepers. Instead he distinguishes the facts in those cases from the facts in Jones.
Also, I should have been clearer when I said Sotomayor had two choices. In some sense, whenever they decide a case, each Justice chooses one option from an infinite array of options. But in this case, the Court aligned into two poles: those who wanted to use the old analytic approach and those who wanted to adopt a new one. Sotomayor fell into the latter pole.
January 23, 2012, 8:18 pmNAME REDACTED says:
I agree with Name Withheld and John Thacker.
January 23, 2012, 8:30 pmI think they hit it on the head. The theories really aren’t mutually exclusive.
neil says:
Scalia’s opinion was the narrower, bypassing the need to sedent in 4th amendment jurisprudence. Don’t touch my stuff. Alito went farther, but maybe not as far as Sotomayor would like when setting precedent. So: join the narrow majority, write a concurrence which states that she would join the other 4 on a case challenging the definition of privacy more seriously, unlike Roberts.
January 23, 2012, 8:36 pmAnonymous Cavalier says:
I think we misunderstand each other: I don’t deny that what you describe does happen behind the scenes sometimes. My point is that you have no reason to think it’s what happened in this case, since what the SS opinion says on its face accounts for her need to join Scalia’s opinion.
You say that these hidden maneuvers have real implications for how cases will be decided in the future. Fine, but so what? Sotomayor’s opinion all but says she would join the Alito view if that were necessary to decide the case. We know that from reading the opinion itself; so what would be added to our ability to predict future decisions if we knew that she only came to that conclusion after reading the Alito concurrence? The answer is nothing, right? So I don’t understand the point you’re making.
Second, I am happy to agree to disagree about the meaning of minimalism if you want, but if you don’t agree that it means deciding cases narrowly when possible, could you tell me what it means instead?
[OK Comments: It sounds like my blogging is not measuring up to your standards, Cavalier. My apologies for wasting your time. In any event, given that I'm still at work with 12 hours down and several more to go, perhaps we can save the debate on judicial minimalism for another day?]
January 23, 2012, 10:06 pmC says:
I don’t think she is a minimalist. It is just that she is too new to feel confident that her writing would win over a majority to a broad result.
I’m looking forward to seeing if she writes the Millender majority opinion. That case is on search warrant verbiage.
January 23, 2012, 10:10 pmBeldar says:
A fascinating scenario! Thank you for sharing it, Prof. Kerr.
January 23, 2012, 11:53 pmPatty Shundynide says:
I concur with Anonymous Cavalier: minimalism attends to “what is necessary to resolve particular disputes” and “decide[s] the case at hand . . . not . . . other cases too, except to the extent that one decision necessarily bears on other cases.” Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court 9-10 (2001). Disquisitive dicta flagging — but not resolving — potential problems with other forms of monitoring are just that: dicta.
January 24, 2012, 4:57 amJohn Thacker says:
Orrin’s update makes an important point. Alito, fairly pragmatically, was willing to pull out an arbitrary distinction between “short-term” and “long-term” monitoring, and allow the former but not the latter without a warrant. Scalia’s opinion makes it clear that he has little sympathy for an arbitrary judge-drawn line between short term and long term; “reasonable expectation of privacy” really becomes “a majority of the Justice’s expectation of privacy.”
However, Scalia still seems worried about the implication, but he wants a bright line. For Scalia, the trespass theory provides a useful and clear bright line in a way that Alito’s arbitrary “four days is probably okay, four weeks is no good” does not.
It’s very clear that Alito is a pragmatic Justice, even a sort of “living Constitution” guy. The confirmation hearings were very silly.
January 24, 2012, 7:49 amSupreme Court GPS Tracking Case: Round-up and Resources « GEODATA POLICY says:
[...] Search, What Jones Does Not Hold, What’s the Status of The Mosaic Theory After Jones, Why Did Justice Sotomayer Join Scalia’s Majority Opinion in Jones, and Three Questions Raised by the Trespass Test in US v. Jones, Professor Orin Kerr + comments, [...]
January 24, 2012, 10:21 amdave h says:
It’s easier to be a “living Constitution” guy when it comes to the 4th – the text easily allows for different ideas about reasonableness, and that those ideas might change over time is not surprising. This is a very different situation than phrasings like “shall not be infringed” and “shall make no law”.
January 24, 2012, 4:28 pmReaderY says:
It’s possible she regarded Scalia’s opinion as the narrowest grounds to decide the case, as she said.
I suspect, however, that Sotomayor has the most expensive view of all. And in this case, Scalia’s opinion is arguably more expansive than Allito’s for the fact situation. By joining the Scalia opinion, she expresses her view that even short-term monitoring is, at least when there’s a tresspass, unconstitutional. She can deal with the Alito theory when she reaches a case the tresspass theory doesn’t cover.
January 24, 2012, 9:00 pmChris Travers says:
That’s my reading too. Additionally I thought the majority (and Sotomayor) basically felt that this was a way of avoiding pre-deciding all other widespread public surveillance cases as well. Both the majority and Sotomayor’s concurrence seemed to say “Sure we agree with the concurrence that we think the reasonable expectation of privacy applies, but we think this sets a baseline for all sorts of searches and it is squarely within that baseline. So we can use the concurring-in-judgement’s views on later cases if we want.”
January 25, 2012, 6:22 am