The Roberts Court at 10

Roberts and the Fourth Amendment: A Mostly Pro-Government Vote with Some Important Exceptions | Chapter 8


Some of the snapshots in our yearlong look at John Roberts’s first decade as Chief Justice have focused on areas of the law, such as federal power and race, in which Roberts has written a number of significant opinions himself. But when it comes to the subject of this snapshot—the Fourth Amendment—Roberts has far more often than not joined the opinions of others, although he did write one very significant Fourth Amendment opinion just last year. Nonetheless, examining where Chief Justice Roberts stands on the Fourth Amendment is an important undertaking, not only because of the sheer number of Fourth Amendment cases the Court considers, and not only because of the potential impact those cases can have on the lives of individual Americans, but also because this is an area of the law in which one can never assume that votes will break down along the Roberts Court’s 5-4 ideological axis. To be sure, such 5-4 decisions certainly exist in this context, but there have also been surprises: crossideological votes in some divided cases, not to mention two significant decisions that were decided unanimously (at least as to the proper result).

This is also an area of the law in which John Roberts himself has occasionally been surprising. At Roberts’s confirmation hearing, there was relatively little discussion of his views on the Fourth Amendment, but during his short tenure on the D.C. Circuit, Roberts had established a record of consistently siding with the police over privacy. While Roberts’s votes as Chief Justice have largely followed the same pattern (by our count, Roberts has voted for the government in just under 85% of the Fourth Amendment cases the Court has decided), there have been exceptions. In a couple of cases, his votes, while still cast in favor of law enforcement, have reflected a more nuanced position than that of one or more of his colleagues. Moreover, he has on several occasions voted in favor of more robust Fourth Amendment protections, including in two recent cases involving new technologies; in one of those, he wrote a powerful tribute to the Fourth Amendment’s role in protecting personal information. Given that new technologies will likely be involved in a significant number of Fourth Amendment questions in the years to come, these decisions are especially significant.

Thus, while John Roberts is surely no Fourth Amendment champion—far more often than not, he has voted for crabbed interpretations of the Fourth Amendment and in favor of deference to law enforcement—his votes in recent cases provide reason to hope that when it comes to the Fourth Amendment, John Roberts’s vote is not a foregone conclusion. They suggest that, at least occasionally, Chief Justice Roberts will recognize and respect the important role that the Fourth Amendment, properly understood, plays in protecting the privacy of the American people.

More from Civil and Human Rights