Katz v. U.S.

I talked about Katz v. U.S. in the past, including a curious aspect -- Justice Stewart basically rejected the right-to-privacy approach of Griswold without anyone responding. Justice Douglas, the author of Griswold, noted his support of the opinion. He concurred to address a limited point cited by another concurrence.

The opinion made clear an old ruling that held that warrantless eavesdropping was not a violation of the Fourth Amendment was overruled. It held a warrantless recording of a phone booth (remember them?) was a violation of the Fourth Amendment.

I suppose Douglas and others figured some of the discussion (including about the lack of a lack of a general constitutional right to privacy) was dicta. Still. The opinion cites the dissent of Griswold.

The opinion winds up largely in the same place. Amendments have zones of privacy, including the Fourth Amendment. The Fourth Amendment is applied when someone is arrested in a public place. It channels privacy in a certain way. It's still there:

The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a "search and seizure" within the meaning of the Fourth Amendment.

Roe v. Wade recognized there is a right to privacy. Stewart concurred to say he felt the case involved substantive due process. Privacy remains a principle that is used. You can talk about "liberty" (see Lawrence v. Texas). The point holds. 

The point continues to hold after Dobbs. Multiple amendments fit within a wider whole of privacy. Liberty over questions of family life fits in here. There is something fundamental about privacy overall.

Constitutional rights are regularly not absolute. They address certain things. Free speech doesn't mean libel and advertising for toasters is not treated the same as political speech. A "right to privacy" is not some talisman that answers all questions. 

Nonetheless, it is a useful general constitutional principle. One of the two dissenters in Griswold might not have liked the idea (see his concurrence in Whalen v. Roe in 1977) but how much it mattered at the end of the day is unclear. Justice Black was the lone dissent in Katz. He lost hold of the thread a bit.