Scalia’s privacy impact will be felt for years to come

Publication Type: 
Other Writing
Publication Date: 
February 15, 2016

One would think privacy was a concept that Justice Antonin Scalia disliked. After all, how could a textualist, who firmly believed in lawyers’ obligation to follow the text, respect a concept as nebulous and blurry edged as privacy? A concept whose very meaning continues to befuddle lawyers, political philosophers and social scientists more than a century after it was introduced into legal jargon by Louis Brandeis, another Supreme Court giant to come? How could an originalist who ordered judges to respect the original meaning of the Constitution embrace a right not mentioned once in the revered text, but rather introduced into American constitutional law through creativejudicial interpretation identifying “penumbras of privacy” in the constitutional text?

And yet Justice Scalia, as his close friend and frequent disputant on the bench, Justice Ruth Bader Ginsburg, said, was “one of the most pro-Fourth Amendment judges on the court.”

In a way, Justice Scalia’s stance towards privacy encapsulates the prevailing approach of the American legal system: suspicion of government surveillance coupled with tolerance for corporate data practices. This tolerance may itself be the result of misgivings about government regulation. In some of his most important Fourth Amendment decisions, Scalia sided with the liberal justices of a split court, delivering opinions that curtailed government power, particularly in light of newly introduced intrusive technological breakthroughs.


The Kyllo rationale is crucial to establishing individuals’ rights in an age where even the most inconceivable technological breakthroughs become a reality in the blink of an eye.


In Kyllo v. United States, Scalia, writing for a 5-4 majority, which included three of the most liberal justices on the court (as well as his conservative colleague Justice Thomas), ordered the police to get a warrant before performing thermal imaging of a suspect’s home. In doing so, he rejected the government’s argument that individuals had no expectation of privacyoutside the confines of their homes. A machine that sees through walls, reasoned Scalia, in order to capture the heat emanating from lamps used to grow marijuana, infringes upon individuals’ reasonable expectation of privacy, even when law enforcement is positioned outside the house. TheKyllo rationale is crucial to establishing individuals’ rights in an age where even the most inconceivable technological breakthroughs become a reality in the blink of an eye, threatening society with a slippery slope of surveillance pervading every aspect of our daily lives.

In United States v. Jones, probably the most important Fourth Amendment case since the 1967 decision in Katz v. United States, Scalia, writing for the majority, required the police to obtain a warrant prior to attaching a GPS tracker to a suspect’s car. While basing his opinion on narrow property grounds, Scalia rejected the government’s claim that individuals had no expectation of privacy while driving in broad daylight on city streets. Besides its erosion of the third-party doctrine, based on the opinion of a plurality of concurring justices, Jones sets an important precedent for the concept of privacy in public, a notion once viewed as paradoxical but now increasingly essential in public spaces monitored by ubiquitous cameras, phones and Internet of Things devices.

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