Vol. 28 No. 5 (August 2018) pp. 65-67THE FOURTH AMENDMENT IN FLUX: THE ROBERTS COURT, CRIME CONTROL, AND DIGITAL PRIVACY, by Michael C. Gizzi and R. Craig Curtis. Lawrence, KS: University Press of Kansas, 2016. 188pp. Paper $19.95. ISBN: 9780700622573.
Reviewed by Staci L. Beavers, Department of Political Science, California State University San Marcos. Email: sbeavers@csusm.edu.
In today’s relentless and exhausting “breaking news” environment, publications risk obsolescence even before hitting the presses (or the web). To review a book with a publication date of 2016 in the Spring of 2018 almost isn’t playing fair. But Michael C. Gizzi and R. Craig Curtis’ THE FOURTH AMENDMENT IN FLUX: THE ROBERTS COURT, CRIME CONTROL, AND DIGITAL PRIVACY is holding up well so far. It’s still timely now, given its effective preview of what came to the Court in its most recent term as CARPENTER V. UNITED STATES. CARPENTER focused on warrantless government access to several months’ worth of Cell Site Location Information (CSLI) data and was probably the most highly anticipated Fourth Amendment case of the last several SCOTUS terms. Gizzi and Curtis’ thoughts on other Fourth Amendment controversies now working their way up to the Supreme Court remain to play out over the next several years. As these controversies develop, Gizzi and Curtis’ book can continue to provide helpful context for students as well as readers outside the academic world who are interested in understanding both the Supreme Court’s Fourth Amendment jurisprudence over time and where the Roberts Court may take the Fourth Amendment into the future.
To my own detriment, I got the chance to review this book only after wrapping up my first semester of teaching undergraduate constitutional law after several years away from the classroom. In retrospect, reading THE FOURTH AMENDMENT IN FLUX first would have provided me a solid but quick-read refresher on the evolution of Fourth Amendment jurisprudence since before the Warren era and an excellent update on the Fourth Amendment record of the Roberts Court. The book benefits from bringing together multiple disciplinary perspectives: Michael C. Gizzi is a criminal justice scholar and R. Craig Curtis is both a J.D. and a political scientist.
The authors argue that the Roberts Court is potentially standing at a crossroads with respect to the Fourth Amendment. A majority of the Roberts Court remains committed to and has expanded upon what Herbert Packer (1968) long ago labeled a “crime control” orientation in most search and seizure cases, an orientation which has dominated the Supreme Court since the Burger era. However, those cases implicating technologies widely used by the American public may ultimately push the Court to reconsider the Fourth Amendment’s requirements somewhat more broadly.
Gizzi and Curtis discuss a notable uptick in pro-defendant Fourth Amendment rulings since October 2010. They attribute this shift in part to the thinking of Justices Sonia Sotomayor and Elena Kagan and in part to a shift in the Fourth Amendment thinking of the late Justice Antonin Scalia in the latter years of his life. They caution, however, that most of the Roberts Court’s pro-defendant Fourth Amendment decisions serve primarily simply “to curb some of the excesses of law enforcement” (p. 6) allowed by previous crime control-leaning rulings. They illustrate the Roberts Court’s continued support for crime control principles by noting, for example, that several rulings that find in favor of defendants also provide tips to lower court judges and law enforcement officials to minimize their impact on remand (pp. 140-141) and to avoid dismissals or reversals in future Fourth Amendment cases (p. 76). FLORIDA v. J.L. (2000) provides an example of this latter tactic; here the Court provided guidance to lower court judges on how to allow stops based on anonymous tips by discussing [*66] “what constitutes sufficient indicia of reliability for an anonymous tip” (p. 76).
In contrast, the authors distinguish the Roberts Court’s handling of a small number of recent electronic privacy cases. For example, U.S. v. JONES (2012) saw the Court unanimously reject long-term warrantless tracking of location data obtained courtesy of a GPS device attached to a suspect’s vehicle. Perhaps more significantly, RILEY V. CALIFORNIA (2014) unanimously instituted a warrant requirement to search the contents of most arrestees’ cell phones. Gizzi and Curtis label Justice Roberts’ lead opinion in RILEY “a sweeping endorsement of digital privacy” (p. 98) that went beyond simply curtailing overly aggressive law enforcement and instead “asserted an individual right with potentially broad consequences for other cases” (p. 6). Clearly, these electronic privacy cases struck a nerve (or perhaps even nine nerves) within the Roberts Court. A few unanimous pro-defendant rulings supporting electronic privacy do not make a civil liberties revolution, but these cases demonstrated an openness on the part of the Roberts Court to establishing a foundation of “digital privacy rights” (p. 3). However, the Court’s openness prevailed only narrowly in this most recent term’s CARPENTER v. U.S. (2018) decision. Here, Chief Justice Roberts’ 5-4 majority opinion rejected warrantless access to months’ worth of Cell Site Location Information (CSLI), and the closeness of the vote made clear the fragility of the Court’s support for digital privacy. It is worth noting that Justice Anthony Kennedy found himself in the minority in this case, one of his last on the Court, and Justice Neil Gorsuch’s dissenting vote diverged from the pro-digital privacy track record of his immediate predecessor, Justice Scalia. In short, the progression of digital privacy rights under the Roberts Court may already have crested.
As Gizzi and Curtis frame the matter, the Roberts Court’s Fourth Amendment record reflects the Court’s desire to maintain its political legitimacy and public standing. Tempering the Court’s crime control orientation with a few rulings that protect criminal defendants’ rights allows the Court to maintain “the appearance of judicial neutrality” (p. 16); protecting individual Fourth Amendment rights on high-profile issues such as cell phone privacy also boosts public perceptions of the Court. While the argument is reasonable, the evidence provided here is still thin. The authors do not go far beyond mentioning several NEW YORK TIMES editorials and a piece in a blog called GIZMODO (p. 93) as evidence that these cases have attracted significant public interest or that the public knows much about electronic privacy rights. Scandals uncovered since this book’s 2016 publication, including ongoing Facebook scandals, may well have increased the salience of this issue across the American public, but the extent of such public knowledge and interest could use further development.
Part One’s overview of the historical context for the current Court’s work does a very nice job of demonstrating both elements of the Burger and Rehnquist Courts’ Fourth Amendment decision-making and the impact of their Fourth Amendment decisions on law enforcement and individual rights. For example, while racialized policing is not their primary focus, Gizzi and Curtis draw a clear line from the Burger and Rehnquist Courts’ steady expansion of law enforcement discretion to racial profiling. They discuss the Drug Enforcement Agency’s development of Operation Pipeline and other law enforcement protocols and training tools intended to take full advantage of officers’ judicially granted flexibility about whom to police and how and when. The resulting disproportionate impacts on minorities and the poor should come as little surprise, though some readers may still find themselves shocked at the levels of police discretion laid bare here. While the authors do not touch on immigration enforcement, the reader of 2018 can begin extrapolating how such judicially sanctioned law enforcement discretion can facilitate the Trump Administration’s efforts to follow through on its border enforcement and anti-immigrant rhetoric and the likely resulting impact on minority communities.
Gizzi and Curtis’ argument is unfettered by dense methodological modeling, statistical analyses, or heavy theorizing. While the [*67] authors’ clear, concise writing could make the book useful as a refresher for advanced scholars or die-hard SCOTUS watchers, such readers may find few surprises here. The book instead would make an excellent choice for a range of undergraduate courses in political science, sociology, criminology, and criminal justice. I could easily see incorporating Gizzi and Curtis’ book into my own political science courses on civil liberties and judicial process, and it could also be an excellent fit for a course on criminal procedure. The writing is engaging and would be easily accessible to undergraduates in any of these courses. The authors clearly define their legal terminology, and their concise case backgrounds will contextualize rulings and bring the debates to life for readers who have no background in constitutional law. Moreover, the authors’ use of both the Supreme Court Database (Spaeth et al. 2014) and the papers of several former Justices to demonstrate decision-making patterns and long-term strategizing and maneuvering within the Burger and Rehnquist Courts to dismantle the Warren Court’s Fourth Amendment legacy would introduce students to critically important source materials.
The clarity of the authors’ writing and argument, presented without the ideological bent so prevalent in materials produced for widespread public consumption, should also make this book ideal for non-academics interested in understanding the Fourth Amendment in broader context and in the hands of the Roberts Court. To the extent that such dispassionate, thoughtful readers still exist in today’s polarized climate and that marketers are still able to reach them, books such as this remain critically useful and important.
REFERENCES:
Packer, Herbert. 1968. THE LIMITS OF THE CRIMINAL SANCTION. Palo Alto, CA: Stanford University Press.
Spaeth, Harold J., Lee Epstein, Andrew D. Martin, Jeffrey A. Segal, Theodore J. Ruger, and Sara C. Benesh, 2014 SUPREME COURT DATBASE, Version 2014 Release 01, http://supremecourtdatabase.org
CASES:
CARPENTER V. UNITED STATES, 585 U.S. ____ (2018).
FLORIDA v. J.L., 529 U.S 266 (2000).
RILEY V. CALIFORNIA, 573 U.S. ____ (2014).
UNITED STATES V. JONES, 565 U.S. 400 (2012).
© Copyright 2018 by author, Staci L. Beavers.
