As noted, the end of the term cases are starting to be handed down. These continued some interesting match-ups including one where Stevens joined the conservatives to reject a two person quorum for NRLB hearings and discussion of "judicial takings" where one part of the decision was rejected by four justices (Stevens not taking part) including a Kennedy/Sotomayor concurrence. This desire of Scalia to cloud the waters (via a section only 1/2 the Court signed on to) makes his solo (not even Thomas joining) "typically exaggerating" concurrence in the text messaging case a tad bit hypocritical.
ONTARIO v. QUON dealt with a broad issue (workplace privacy and privacy over modern communication devices) by a narrow decision that managed to get eight votes with Scalia joining in some parts of it as well. This was done by not settling a major debate involving the proper test to apply for workplace privacy and assuming a reasonable expectation was there in this case, but the search was reasonable all the same. Scalia didn't like the asides that in effect seemed to him (reasonably) to hint what it did not actually hold.
Thus, a narrow case -- pagers given to governmental employees with messages examined to determine if the use was truly work related and done in a careful (even if a more privacy protecting way might have been possible) way -- provided hints:
Even if the Court were certain that the O’Connor plurality’s approach were the right one, the Court would have difficulty predicting how employees’ privacy expectations will be shaped by those changes or the degree to which society will be prepared to recognize those expectations as reasonable. See 480 U. S., at 715. Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.
The "self-expression, even self-identification" tidbit is common sense (ask any teenager) and the free expression friend Kennedy is an unsurprising person to toss that in there. The shall we say "passive aggressive" nature of narrow decisions with suggestive dicta is not that uncommon and provides a signal of sorts to lower courts to be careful when deciding questions. Shades of Souter's commencement address, the opinion also was careful in dealing with developing technology, a move Scalia didn't like, but is a sensible "we might see this differently with more experience" path:
Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.
Such prudence and balancing is known as "judging," and along with some interesting justice splits, it underlines simplistic analysis of the job at hand is foolhardy. Something comparable might be considered with the refusal to hear Arar's lawsuit, Sotomayor not participating because of her involvement below. This means even if Kennedy joined the "liberals," a 4-4 uphold would be quite possible, five justices at least giving some succor to the lower court travesty as well. Not taking the case on some level is horrible, but on another, is it not perhaps appreciated?
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* Wikipedia summarizes his case:
The suit charges that Arar's Fifth Amendment due process rights were violated when he was confined without access to an attorney or the court system, both domestically before being rendered, and while detained by the Syrian government, whose actions were complicit with the U.S. Additionally, the Attorney General and INS officials who carried out his deportation also likely violated his right to due process by recklessly subjecting him to torture at the hands of a foreign government that they had every reason to believe would carry out abusive interrogation.
Further, Arar filed a claim under the Torture Victims Protection Act, adopted by the U.S. Congress in 1992, which allows a victim of torture by an individual of a foreign government to bring suit against that actor in U.S. Court. Arar's claim under the Act against Ashcroft and the INS directors is based upon their complicity in bringing about the torture he suffered.
More with some of the usual avoidance of the humanity involved for typical avoidance techniques here.