How Justice Antonin Scalia’s Death Might Affect Our Privacy Rights
By: Lexi Herman
Justice Antonin Scalia spent 30 years on the Supreme Court advocating for bright line rules protecting citizens’ privacy rights in the home, but his unexpected passing in February may affect the scope of privacy rights going forward. After his death, the United States Supreme Court is left with only 8 justices, which means any case that reaches the Supreme Court has the potential to end in a 4-4 tie. This is amplified by the fact that the court is now split evenly between liberals and conservatives. Justice Scalia was known as one of the most conservative justices during his tenure on the bench, which made the fact that he so stringently upheld citizens’ privacy rights even when it might derail a criminal case, noteworthy.
There is no doubt that Scalia’s interest in protecting privacy began long before he was appointed to the Supreme Court, but during his time on the bench, he wrote a number of opinions that demonstrated his dedication to maintaining privacy ,for example; in 2001, Scalia penned the majority opinion for Kyllo v. United States. This case involved federal agents employing the use of thermal imaging technology to determine if the defendant, Kyllo, was using his home to grow marijuana. Scalia was appalled by what he thought was a clear government intrusion into intimate details of people’s daily lives within their homes. As he put it, using a thermal imaging device could allow government agents to know “at what hour each night the lady of the house takes her daily sauna and bath – a detail that many would consider ‘intimate’”. In his holding, Scalia noted that in upholding the meaning of the Fourth Amendment, the Court had a history of drawing a “firm line at the entrance of a house”. In addition, Scalia stated that while no “intimate” details were picked up by the thermal imaging in this case, the court must take “the long view” in protecting citizen’s privacy. By using this phrase, he seems to be insinuating that as technology evolves allowing its users to see things in more detail, so must the Court’s view of what the Fourth Amendment classifies as an unreasonable search.
In 2012, Scalia again stepped up to the plate to protect privacy rights in United States v. Jones. In Jones, federal agents attached a GPS tracker to the undercarriage of Defendant Jones’s car in order to track his movements on public streets. After 28 days of 24/7 surveillance the government was able to indict Jones on multiple criminal counts; including possession of a controlled substance and conspiracy to distribute narcotics. Scalia led a unanimous court stating that a person has a reasonable expectation of privacy in their movements even on public streets.
Seeing Scalia as the leader of these opinions is fairly surprising given he was known as a strict textualist. It is also very unlikely any of the framers ever contemplated thermal imaging or cars, let alone contemplated cars being an “effect” protected under the Fourth Amendment. But, it is clear from Justice Scalia’s use of the phrase “the long view” that, for the remainder of his time on the court, he would have used the Fourth Amendment as a way to protect Americans’ privacy from unlawful invasion. Some may argue that Scalia’s textualist beliefs cannot be squared with his dedication to our privacy, but I would argue it’s just as the framers envisioned the Fourth Amendment would work.
Originally, the Fourth Amendment was created to prevent arbitrary government intrusion on citizens’ privacy via the use of a general warrant. These general warrants, otherwise known as writs of assistance, allowed any official to enter any house without specification to which home they could enter or what they were searching for. These unreasonable intrusions into citizens privacy rights were exactly what the framers were trying to prevent with the Fourth Amendment and, regardless of what one thought of Justice Scalia’s other political views.