Through the Eyes of Geek / Flickr Our View Politics put Gorsuch on...
Through the Eyes of Geek / Flickr

The Supreme Court’s latest Fourth Amendment ruling, Byrd v. United States, should have been uneventful. All nine justices agreed that even someone who isn’t the “authorized driver” of a rental car may assert Fourth Amendment protections when it comes to searching the car. But a concurring opinion by Justice Clarence Thomas, joined by Justice Neil Gorsuch, laid the groundwork for a different outcome.

Here’s the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The rental-car decision rests on a long-standing principle: The Fourth Amendment applies when someone has a “reasonable expectation of privacy.” This four-word phrase derives from a 1967 decision that, as ThinkProgress’s Ian Millhiser points out, has been cited in 84 Supreme Court opinions since.

The doctrine of stare decisis, meaning “to stand by things decided,” dictates that the Court should follow its own precedent in all but extreme circumstances. But upholding precedent only seems to matter to Roberts Court conservatives when that precedent is favorable to their positions.

Case in point: The Brookings Institute called Citizens United v. the Federal Election Commission, which declared the ban on corporate donations to political campaigns unconstitutional despite decades of precedent, “one of the Supreme Court’s most egregious exercises of judicial activism.” Like, ever.

For some reason, Justice Thomas decided that Byrd was a good vehicle for announcing that, in fact, that last 50-plus years of Fourth Amendment law should be scrapped. Instead, he proposes, the test ought to be whether “police interfered with a property interest.” As that term’s defined now, that could be the end of privacy, essentially.

Then there’s the policy consideration, the fact that changing the entire framework for Fourth Amendment rights with respect to search and seizure would, as Millhiser notes, result in mass confusion—at a minimum—among law enforcement and in courts throughout the country. We’d be right back to where the Court was in 1967, starting from scratch to work out the applications of this new theory of the Fourth Amendment.

We already knew Thomas and Gorsuch are disinclined to follow more recent precedent. Look at Gorsuch’s poison pen dissent in last summer’s same-sex adoption case, joined by Justices Thomas and Samuel Alito. The rest of the court found the decision legalizing marriage equality controlled, even Chief Justice John Roberts. The hyper-conservative trio, however, tested an argument conservatives premiered in Texas: The marriage decision is strictly limited to the declaration that two people are married; it means nothing for rights based on marriage.

Byrd is yet more concerning: While their concurrence could presage change to Fourth Amendment jurisprudence; it definitely signals that Thomas and Gorsuch are ready to set fire to even the clearest and most established tenets of constitutional law.

Liked it? Take a second to support Associate Editor on Patreon!


  1. This is just the beginning folks! They change one thing from our laws and Constitution, they will then want to change it all! It’s terrifying that The Handmaid’s Tale no longer seems like fiction. Stand up FOR something and fight AGAINST oppression!

  2. Trump will never leave office- he has now said it- If the Democrats do not learn how to fight GOP- we have lost our country.

  3. No matter how much indecency is shown by this president; no matter how many lies he tells; no matter how many Obama policies he reverses or treaties he scraps; no matter how many allies he betrays; the most damage he can do to our democracy is the appointment of extreme right wing SCOTUS judges. Gorsuch is just the beginning. Trump could have two or three more appointments before he’s through…meaning it will take decades or even generations to recover from this incredible debacle of government.

  4. These tyrants are just getting started. Vote, people, in November and every election. No matter how long it takes, we must vote and work to take our country back.


Please enter your comment!
Please enter your name here