8 ms·

That makes me wonder why he didn't sign on and write a concurring opinion then.

icebraining 8y ago
I'm no laywer, let alone qualified to interpret the SCOTUS, but from what I can tell he disagrees with the whole approach taken, which relies on the "expectation of privacy" test defined in the Katz case, whereas he believes that the court should go back to the Fourth Amendment text itself and review the data (such as the phone's location) under it. Specifically, he seems to be saying that just because the data is currently held by a third-party, that doesn't mean it's not the person's "papers" and as such fully defended from unreasonable searches.
- ajross 8y ago
  That's true, but it fails to mention that there is a very specific partisan reason republican justices won't get behind a privacy finding. Gorsuch isn't standing for abstract principle here, he's refusing to stand on the same ground the found for Roe.
  - zaroth 8y ago
    Roe standing on expectation of privacy seems to be a similarly poor analogy. The real missing piece goes back to the same fear the framers had when enacting the Bill of Rights in the first place — namely that by enumerating some rights it would inadvertantly serve to exclude those unenumerated but equally inalienable rights, such as right to self-determination and ownership of one’s own body.
    - Zimahl 8y ago
      With respect to Roe v Wade, the expectation of privacy has already been established with your doctor. Since there are legitimate, non-trivial reasons for abortion, and that's a decision between a person and their doctor, the gov't can't ask why someone may need that abortion. Therefore, the gov't is unable to discern between reasons for an abortion, and therefore can't restrict them (up to a reasonable point, which was set non-arbitrarily around 24 weeks). You have a right to patient confidentiality. The gov't has no more of a say in whether you should have appendix surgery than whether you should have an abortion. However, this doesn't establish a right to abortion. The justices clearly state that it is not a right by saying it's not covered under the 9th.
      - zaroth 8y ago
        Thank you for that. Not to get too off topic, but I will need to read more about the reasoning behind the RvW decision. It sounds to be threading one hell of a needle as a justification to keep government out of elective abortion. I mean, we have databases which track every narcotic prescription written which law enforcement (including the DEA) can access without a warrant.
        Zimahl 8y ago
        It's really not a fine line. Narcotic dissemination is a major problem and there are justifiable reasons for tracking them, but I don't believe that tracking forces an individual to justify a decision between their doctor and themselves to the gov't. The justices did say there could be justifiable reasons limitations on abortions as well, just that it is very difficult to enumerate because politicians are not doctors.
        zaroth 8y ago
        > I don't believe that tracking forces an individual to justify a decision between their doctor and themselves to the gov't. That appears to be exactly what it’s doing though!
        Mtinie 8y ago
        Practically, while you can share your prescription medications with another person, abortions are not transferable. The registry is not supposed to about who has a prescription, but rather, who has more than their legitimate share of prescriptions. It’s also supposed to be used to identify over-prescribing doctors.
    - InitialLastName 8y ago
      > ownership of one’s own body. Given that the framers were living in a society where that right was distinctly "alienable", and either were themselves or needed to appease interests that insisted that said right be alienable, I'm not sure they considered that one.
  - perpetualpatzer 8y ago
    That's one possible explanation. A more charitable, and frankly, reasonable explanation would be that Gorsuch places high priority on limiting government power through to take private property and thinks of many problems through that lens. That's a view he expressed at oral argument in this case[0], in other privacy-related cases [1][2], and in cases in other contexts[3][4]. Virtually all non-unanimous supreme court decisions are ultimately trade-offs between conflicting rights and values. Congress's power to regulate drugs vs a citizen's right to use drugs in religious ceremonies (Smith). The documentary-maker's right to free speech vs the population's right to ensure free and fair elections by limiting corporate spending on elections (Citizens United). A citizen's right not to be searched for incriminating evidence without a warrant vs. a police officer's need to prevent destruction of evidence and ensure their own safety (Robinson). Different justices place different weight on different rights. Kennedy is a famously protective of free speech, so whenever Free Speech is implicated, he tends to side on the defense of it. Alito places a lot of value in ensuring police have workable rules that can be applied in the field. Those priorities determine where they land on tough issues and how they think issues should be resolved. I think there's a lot of evidence to suggest Gorsuch cares about protecting property rights and that idea is entirely consistent with his reasoning here (without his harboring a secret anti-Roe agenda). [0]https://www.oyez.org/cases/2017/16-402 https://www.oyez.org/cases/2017/16-402 [1] http://www.scotusblog.com/2018/01/argument-analysis-rental-cars-reasonable-expectations-privacy-property-rights/ http://www.scotusblog.com/2018/01/argument-analysis-rental-c... [2] https://www.ca10.uscourts.gov/opinions/13/13-7082.pdf https://www.ca10.uscourts.gov/opinions/13/13-7082.pdf [3] https://www.supremecourt.gov/opinions/17pdf/16-712_87ad.pdf https://www.supremecourt.gov/opinions/17pdf/16-712_87ad.pdf [4] https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/03/28/neil-gorsuch-opposes-the-kelo-decision-a-terrible-supreme-court-property-rights-ruling-that-trump-supports/?utm_term=.f98377f16a06 https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...
    - bmelton 8y ago
      Agreed, and in a hypothetical universe where Gorsuch wrote the majority opinion and 4 justices signed on to his take, we would have even better protections against _Smith_ type privacy infringements than what this current decision might offer. There's still a lot of gray area though -- it's easy to say that the money in my bank is my property, even where it is in the care and custody of a third party, so by that argument, Gorsuch's property argument gives me more privacy protections for non-warranted searches to my banking data, but on the other hand, it's not clear that my Google Map data is 'mine', since Google provides it as a service to me for free, and uses that data for other purposes.
  - deleted 8y ago
    [deleted]
  - jeffdavis 8y ago
    How does his opinion undermine Roe, specifically?
- dv_dt 8y ago
  I like that tact for user data, and have mentioned it in the past that our justice system doesn't recognize the modern digital nature of a persons "papers". There really should be a systematic extension of such an interpretation.
  - erikpukinskis 8y ago
    I think you mean tack—“a method of dealing with a situation or problem; a course of action or policy.”
    - dv_dt 8y ago
      yes I did, thank you
- wallace_f 8y ago
  This along with Thomas's dissent shows how important it is that we need a bill of rights for the digital age. Especially by Thomas's dissent, we otherwise cant have an expectation of privacy because or "papers" are always stored or transmitted across someone else's property.
DannyBee 8y ago
Normally, that would be an opinion "concurring in the judgement" but not in all of the reasoning. Here 1. He disagrees with literally all of the reasoning. He doesn't want to affirm the judgement because he thinks it's just plain wrong. 2. It's not clear he would agree with the outcome on this record either. He basically says the record isn't well enough developed on any of his points to figure out what should happen, and that the arguments he would make were forfeited. That suggests he may actually be in the camp of "i think all of the reasoning here is nonsense and wrong, and you forfeited all other arguments, so you lose". As a result he's dissented and literally written down "for the love of god, the next time someone appeals a case like this, please make the following arguments"

I'm no laywer, let alone qualified to interpret the SCOTUS, but from what I can tell he disagrees with the whole approach taken, which relies on the "expectation of privacy" test defined in the Katz case, whereas he believes that the court should go back to the Fourth Amendment text itself and review the data (such as the phone's location) under it. Specifically, he seems to be saying that just because the data is currently held by a third-party, that doesn't mean it's not the person's "papers" and as such fully defended from unreasonable searches.

ajross 8y ago
That's true, but it fails to mention that there is a very specific partisan reason republican justices won't get behind a privacy finding. Gorsuch isn't standing for abstract principle here, he's refusing to stand on the same ground the found for Roe.
- zaroth 8y ago
  Roe standing on expectation of privacy seems to be a similarly poor analogy. The real missing piece goes back to the same fear the framers had when enacting the Bill of Rights in the first place — namely that by enumerating some rights it would inadvertantly serve to exclude those unenumerated but equally inalienable rights, such as right to self-determination and ownership of one’s own body.
  - Zimahl 8y ago
    With respect to Roe v Wade, the expectation of privacy has already been established with your doctor. Since there are legitimate, non-trivial reasons for abortion, and that's a decision between a person and their doctor, the gov't can't ask why someone may need that abortion. Therefore, the gov't is unable to discern between reasons for an abortion, and therefore can't restrict them (up to a reasonable point, which was set non-arbitrarily around 24 weeks). You have a right to patient confidentiality. The gov't has no more of a say in whether you should have appendix surgery than whether you should have an abortion. However, this doesn't establish a right to abortion. The justices clearly state that it is not a right by saying it's not covered under the 9th.
    - zaroth 8y ago
      Thank you for that. Not to get too off topic, but I will need to read more about the reasoning behind the RvW decision. It sounds to be threading one hell of a needle as a justification to keep government out of elective abortion. I mean, we have databases which track every narcotic prescription written which law enforcement (including the DEA) can access without a warrant.
      - Zimahl 8y ago
        It's really not a fine line. Narcotic dissemination is a major problem and there are justifiable reasons for tracking them, but I don't believe that tracking forces an individual to justify a decision between their doctor and themselves to the gov't. The justices did say there could be justifiable reasons limitations on abortions as well, just that it is very difficult to enumerate because politicians are not doctors.
        zaroth 8y ago
        > I don't believe that tracking forces an individual to justify a decision between their doctor and themselves to the gov't. That appears to be exactly what it’s doing though!
        Mtinie 8y ago
        Practically, while you can share your prescription medications with another person, abortions are not transferable. The registry is not supposed to about who has a prescription, but rather, who has more than their legitimate share of prescriptions. It’s also supposed to be used to identify over-prescribing doctors.
  - InitialLastName 8y ago
    > ownership of one’s own body. Given that the framers were living in a society where that right was distinctly "alienable", and either were themselves or needed to appease interests that insisted that said right be alienable, I'm not sure they considered that one.
- perpetualpatzer 8y ago
  That's one possible explanation. A more charitable, and frankly, reasonable explanation would be that Gorsuch places high priority on limiting government power through to take private property and thinks of many problems through that lens. That's a view he expressed at oral argument in this case[0], in other privacy-related cases [1][2], and in cases in other contexts[3][4]. Virtually all non-unanimous supreme court decisions are ultimately trade-offs between conflicting rights and values. Congress's power to regulate drugs vs a citizen's right to use drugs in religious ceremonies (Smith). The documentary-maker's right to free speech vs the population's right to ensure free and fair elections by limiting corporate spending on elections (Citizens United). A citizen's right not to be searched for incriminating evidence without a warrant vs. a police officer's need to prevent destruction of evidence and ensure their own safety (Robinson). Different justices place different weight on different rights. Kennedy is a famously protective of free speech, so whenever Free Speech is implicated, he tends to side on the defense of it. Alito places a lot of value in ensuring police have workable rules that can be applied in the field. Those priorities determine where they land on tough issues and how they think issues should be resolved. I think there's a lot of evidence to suggest Gorsuch cares about protecting property rights and that idea is entirely consistent with his reasoning here (without his harboring a secret anti-Roe agenda). [0]https://www.oyez.org/cases/2017/16-402 https://www.oyez.org/cases/2017/16-402 [1] http://www.scotusblog.com/2018/01/argument-analysis-rental-cars-reasonable-expectations-privacy-property-rights/ http://www.scotusblog.com/2018/01/argument-analysis-rental-c... [2] https://www.ca10.uscourts.gov/opinions/13/13-7082.pdf https://www.ca10.uscourts.gov/opinions/13/13-7082.pdf [3] https://www.supremecourt.gov/opinions/17pdf/16-712_87ad.pdf https://www.supremecourt.gov/opinions/17pdf/16-712_87ad.pdf [4] https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/03/28/neil-gorsuch-opposes-the-kelo-decision-a-terrible-supreme-court-property-rights-ruling-that-trump-supports/?utm_term=.f98377f16a06 https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...
  - bmelton 8y ago
    Agreed, and in a hypothetical universe where Gorsuch wrote the majority opinion and 4 justices signed on to his take, we would have even better protections against _Smith_ type privacy infringements than what this current decision might offer. There's still a lot of gray area though -- it's easy to say that the money in my bank is my property, even where it is in the care and custody of a third party, so by that argument, Gorsuch's property argument gives me more privacy protections for non-warranted searches to my banking data, but on the other hand, it's not clear that my Google Map data is 'mine', since Google provides it as a service to me for free, and uses that data for other purposes.
- deleted 8y ago
  [deleted]
- jeffdavis 8y ago
  How does his opinion undermine Roe, specifically?
dv_dt 8y ago
I like that tact for user data, and have mentioned it in the past that our justice system doesn't recognize the modern digital nature of a persons "papers". There really should be a systematic extension of such an interpretation.
- erikpukinskis 8y ago
  I think you mean tack—“a method of dealing with a situation or problem; a course of action or policy.”
  - dv_dt 8y ago
    yes I did, thank you
wallace_f 8y ago
This along with Thomas's dissent shows how important it is that we need a bill of rights for the digital age. Especially by Thomas's dissent, we otherwise cant have an expectation of privacy because or "papers" are always stored or transmitted across someone else's property.

DannyBee 8y ago

Normally, that would be an opinion "concurring in the judgement" but not in all of the reasoning. Here 1. He disagrees with literally all of the reasoning. He doesn't want to affirm the judgement because he thinks it's just plain wrong. 2. It's not clear he would agree with the outcome on this record either. He basically says the record isn't well enough developed on any of his points to figure out what should happen, and that the arguments he would make were forfeited. That suggests he may actually be in the camp of "i think all of the reasoning here is nonsense and wrong, and you forfeited all other arguments, so you lose". As a result he's dissented and literally written down "for the love of god, the next time someone appeals a case like this, please make the following arguments"