Ahlin: Rulings were unanimous, but one was inconsistent
Just when we thought every Supreme Court decision issued from an ideologically divided bench would be 5-4, the decisions this past week on searching cellphones for criminal activity and for determining the legality of abortion clinic buffer zones were not split at all. It was as if the justices all bellied up to the great American legal bar to swill the same Kool-Aid. (Who said they couldn’t agree? Why, they could not have agreed more.) Only in the aftermath of the two decisions, do we see that their clear affirmation of constitutional rights came with decidedly human partialities and a heavy dose of “do as I say, not as I do.”
Begin with the search of cellphones by police, searches unrelated to the arrests of the cellphone owners that just happened to produce evidence of further crimes. In a strong opinion for the unanimous decision, Chief Justice John Roberts put the police on notice: get a warrant or forget the search. He said, “Modern cellphones. … With all they contain and all they may reveal, … hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”
The constitutional principle in question is the Fourth Amendment’s guarantee against unreasonable search and seizure, a constitutional right that has been decided for citizens in dozens of ways by other Supreme Courts over the years. And yet this decision about cellphones stands apart. Technology has made intrusion into our personal lives a modern-day menace of such proportion we aren’t able to comprehend its magnitude. To participate in life as it is lived today makes constant exposure to a world of snoopers unavoidable: We will be exposed. The question really becomes the leeway law enforcement is given in compromising privacy rights. The cellphone ruling sets a benchmark – a point of reference of sorts – for all other infringements on our privacy. And that’s good.
With cellphones, the justices are our fellow citizens. They “get” why not having something incriminating on our phones doesn’t mean our personal information should be “fished” by law enforcement officers who happen to have caught us with an insignificant violation, such as outdated license plate tags on our car.
The unanimous opinion in the abortion buffer zone case, also written by Chief Justice Roberts, declared the concrete nature of the 35-foot buffer zone for abortion clinics in Massachusetts to be unconstitutional on the grounds of free speech. No mention was made of the history leading to buffer zones. As Vicki Saporta, president of the National Abortion Federation said, “Since 1977, there have been eight murders, 17 attempted murders, 42 bombings, 181 arsons, and thousands of incidents of criminal activities” at facilities where abortions are provided. Two murders at clinics in Brookline, Mass., preceded the state buffer zones struck down last week.
What the justices did not reveal in the ruling was their own intolerance for free speech. Directly in front of the Supreme Court building there is a 98-foot by 258-foot plaza – call it a buffer zone – where no protests are allowed. The reason given is that visitors to the institution would be inconvenienced and upset if protesters were crowding in, harassing them with leaflets and arguments as they tried to enter the building. (Bad for tourism.)
Much the same way in recent years, the national Republican and Democratic conventions have banished protesters to cordoned-off areas where conventiongoers never see them, much less have to put up with face-to-face bullying and harassment (loving counseling?) on public sidewalks. And of course there are those buffer zones allowed around polling places.
Still, the ruling was unanimous, albeit ironic and inconsistent.
Ahlin writes a Sunday column for The Forum. Email firstname.lastname@example.org