SCOTUS Watch: Cell Phone Records

A bit more on yesterday.  First, some on the flags that Chevron deference is in trouble.  Net, I agree with the analysis that generally liberals will lose more, especially since they tend to be more supportive of regulation with exceptions likely to raise constitutional implications that can be handled in another fashion (vs. economic regulation).  It just might be the case that a constitutional amendment is needed to clearly protect the administrative state.  Anyhow, the case where Kennedy flagged his concerns also had Sotomayor use "non-citizen," having noted in the past she rejects "illegal alien." 

SCOTUSBlog Summary:

(1) Police need a warrant to get location information from cellphone tower sites (opinion in Carpenter here)
(2) A defendant who consents to sequential trials for multiple, overlapping offenses loses double jeopardy protection (opinion in Currier here)
(3) Simultaneous service by judges on two military courts does not violate the dual-officeholder ban (opinion in Ortiz here)
(4) Damages for overseas infringement of a domestic patent include lost profits for overseas contracts the patentholder would have obtained if the infringement hadn't occurred (opinion in WesternGeco here).

The big news (if expected) today -- the calm before the storm for liberals apparently -- was that Chief Justice Roberts expanded upon a cell phone privacy case that received broad support to cover cell phone location records and this time had 5-4 split.  I wondered why a case argued in November was taking so long.  The fact each dissent was about twenty pages might explain it.  The day after joining three, Roberts in a rare case wrote an opinion only joined with liberals, Justice Kennedy more concerned about privacy rights outside of the criminal context.

The potential reach of this opinion is broad, Roberts accepting that the Fourth Amendment protects "privacy" as well as property. This is notable in part because he joined Scalia's property approach in the U.S. v. Jones GPS case, while Alito took the privacy approach  with three liberals while Sotomayor joined both approaches.  Alito's approach in effect allowed him to use a sort of balancing test and finds ways to differentiate here.  Roberts also underlines something I noted in the past -- even in public areas, the Supreme Court left open the potential of problems for 24/7 surveillance. Cell phone tracking these days can provide pinpoint tracking of location here, which can result in determination of a lot of personal data.

The split is somewhat less complete as it might appear because at least some of the dissenters recognize broad Fourth Amendment protections. Justice Gorsuch, e.g., uses his property approach to question the "third party" doctrine (see Kennedy link) which leads to potential agreement with Sotomayor's GPS concurrence.  Alito would in certain cases recognize a violation of the right to privacy though past cases (such as involving dogs on front steps)  suggests not to rely on him too much.  Orin Kerr has more.

One other important principle, which also was expressed in yesterday's tax case involving e-commerce etc., was how changing developments shifted the proper application of basic principles over time. This is basic so-called "living constitutionalism" which should really be called "law" since that is how things are normally applied over time.  And, Alito's concern about private bodies invading privacy is fine; regulations properly address that and when the state action is involved, the Fourth Amendment kicks in.

"Interestingly enough, Currier is the fifth time Justice Gorsuch has written a majority opinion in a 5-4 decision this term. (That's five out of seven majority decisions he's written this term.)" Other than that, not sure how important the double jeopardy case is, especially since Kennedy didn't join its broadest reach. A reminder about the importance of the stolen seat and Gorsuch's rather active role in his first full year. 

Another strange bedfellows is in the patent case, Thomas writing (he is a common go to for boring issues) but Gorsuch and Breyer (who wrote a book on the courts and the world) in dissent.  It seems like the Supreme Court has handled a reasonable number of patent cases lately.  This is one of those cases that very well might be quite significant if somewhat technical (including for the consumer), but it's a patent case. Like,IDK. The military courts case also appears of some importance by length alone (Kagan -- forty pages, Thomas concurring -- ten pages, Alito/Thomas -- thirty pages). Second big appointments case for Kagan.

SCOTUSBlog has more. Six more cases, probably over two days, next week. Multiple big ones with one or more likely to go badly.