Rule of Law

OP-ED: The One Area Where Supreme Court Jurisprudence Is Actually Improving Thanks to Originalism

For decades, the Supreme Court has repeatedly deferred to the police when judging the validity of searches and seizures by the government. For that reason, it is no small feat that, in the recently concluded Supreme Court term, individuals challenging abuse of police authority won every one of the Fourth Amendment cases on the Supreme Court’s merits docket. Surprisingly—but quietly and without much fanfare—progressives have racked up a number of important victories before a deeply conservative Supreme Court, succeeding in reversing a string of lower court rulings that had sided with the police.

This is an important development, one that observers have hardly raised in discussion of a Supreme Court term justifiably dominated by tragically bad rulings on voting rights and other issues. Nevertheless, this story is all the more compelling because it may reflect a shared observance of originalist principles in Fourth Amendment adjudication that has led to progressive outcomes.

The hallmark of this past term’s Fourth Amendment rulings is a form of originalism highly sensitive to the common law at the time of the drafting of the Fourth Amendment. As Justice Elena Kagan observed in Lange v. California, one of the term’s notable rulings, “the Framers’ view provides a baseline for our own day.” By carefully considering the scope of the common law at the Founding, this approach, pioneered by Justice Antonin Scalia, seeks to ensure that individuals enjoy the protections for personal security and privacy that existed at the Founding, even as policing grows in ways the Founders could scarcely have imagined.

This is a significant and potentially far-reaching development. At the Founding, police did not exist and law enforcement of any kind was skeletal. Warrantless searches and seizures were few and far between. An approach that takes seriously the project of ensuring that individuals retain “at a minimum the degree of protection” the Fourth Amendment “afforded when it was adopted” can help to check police abuse of power, curb government surveillance, and shrink the vast footprint of modern policing.

That is what the Roberts Court has begun to do in small but significant ways.

In recent years, the Roberts Court has applied this approach to put constraints on the surveillance state, insisting on the need to keep “attention to Founding-era understandings in mind when applying the Fourth Amendment to innovations in surveillance tools.” In Carpenter v. United States, the Roberts Court held that the government could not acquire cell phone records detailing a person’s movements for a criminal investigation without obtaining a search warrant supported by probable cause. The ruling recognized that new technologies cannot be employed to vitiate the right to be secure promised by the Fourth Amendment.

This past term, the Roberts Court applied this same approach in new contexts, once again taking steps to keep the law in line with the Fourth Amendment’s text and history. Strikingly, justices—right, left, and center—applied an originalist approach to help reinvigorate the protections of the Fourth Amendment. This past term’s cases suggest that the Fourth Amendment might be one area of law where “we are all originalists,” as Justice Kagan put it in her confirmation hearing more than a decade ago. That alone makes these Fourth Amendment developments quite important.

In Torres v. Madrid, Chief Justice Roberts’s majority opinion held that the police had seized Roxanne Torres by firing a gun at her, even though Torres temporarily eluded capture. Roberts drew on the fact that the common law recognized what he called a “mere-touch rule”: the use of force effectuated a seizure, however slight. It did not matter that common law courts at the Founding did not encounter shootings by law enforcement. The Fourth Amendment, Roberts stressed, “preserves personal security with respect to methods of apprehension old and new.”

In dissent, Justice Neil Gorsuch accused the majority of deciding the case based on “penumbras of “privacy” and “personal security,” but the chief justice insisted that “the text of the Fourth Amendment expressly guarantees the ‘right of the people to be secure in their persons” and that a police shooting represents a particular flagrant deprivation of personal security. As Roberts put it, “there is nothing subtle about a bullet.” “We will not,” he insisted, “carve out this greater intrusion on personal security from the mere-touch rule just because founding-era courts did not confront apprehension by firearm.” When the police fire a gun to restrain a person, Roberts insisted, the Constitution’s limits on police violence kick in.

In Lange, the Supreme Court invoked the common law’s protection of the home as a castle—what Kagan called “the idea behind the Fourth Amendment”—to refuse to “print a new permission slip for entering the home without a warrant.” Seven justices signed Justice Kagan’s majority opinion, which held that police officers may not in all cases pursue a fleeing person suspected of a committing a misdemeanor, citing the common law history collected in a brief submitted by the Constitutional Accountability Center. Under the common law, Kagan stressed, officers had the authority to pursue a fleeing felon into a home, but no such exception applied to misdemeanors. Because the common law rule did not give police the same degree of authority when minor infractions were at issue, Justice Kagan concluded that, absent a showing of exigency, “when the officer has time to get a warrant, he must do so—even though the misdemeanant fled.”

In Caniglia v. Strom, another case about police invasion of the home, the Supreme Court unanimously held that the so-called “community caretaking exception” to the warrant rule—which originated in a Burger Court ruling in the automobile context—did not apply to the home. Refusing to create a sweeping warrant exception, Justice Clarence Thomas’s opinion for the court made clear that the police officers do not possess “an open-ended license” to invade the privacy of the home simply because they are performing “caretaking” functions in the interests of the community. The court cabined prior precedent that had swelled police power, insisting that the privacy of the home lies at core of what the Fourth Amendment safeguards.

The court’s rulings in TorresLange, and Caniglia are significant, but they are also narrow and minimalist. Their holdings leave open important questions and admit exceptions, which could be important in the future. Torres held that the police shooting triggered Fourth Amendment scrutiny, but did not clarify the constitutional standard governing police violence or whether the officers were entitled to qualified immunity—issues to which the court has been avoiding giving extended consideration. Lange and Caniglia both made it harder for police to invade the home, but also suggested that, in some circumstances, police may intrude on the security of the home without a warrant in a genuine emergency.

But the trio of originalist rulings during this past term represent a shift from the dominant and deferential approach that has characterized Fourth Amendment doctrine in recent decades. In an angry separate opinion in Lange—labelled as a concurrence but closer in spirit to a dissent—Roberts called the majority’s reasoning “absurd and dangerous,” claiming that it would “override decades of guidance to law enforcement,” impose “risks to officer safety,” while “[a]ffording suspects the opportunity to evade arrest by winning the race.” In past decades, concerns such as these repeatedly led the court to expand police power across the board. Broad invocations of the need to defer to the police, this term’s cases suggest, no longer always carry the day. And this is a good thing.

How far the new Fourth Amendment originalism will go is very much up for grabs. But it will certainly be an area that deserves close attention.