Wednesday, November 25 , 2015, 7:20 pm | Fair 53º

Susan Estrich: U.S. Supreme Court Justices Ring Up Right Call on Cell Phones

By Susan Estrich |

Since the nomination of Robert Bork to the U.S. Supreme Court went up in flames back in 1987, every appointee to the court has understood that when asked at confirmation hearings about how your personal experiences might affect your decisions, the right answer is “balls and strikes.” Just an umpire, they all say, and even though no one — on the left or the right — believes this to be true, we all understand the necessity of the charade.

Consciously and unconsciously, what seems to be objectively “right” is inevitably influenced by the experiences of the person judging.

Years ago, a friend was writing a brief seeking to convince the court to exclude the contents of a locked trunk chock full of marijuana. Much to everyone’s surprise, at a time when virtually every search-and-seizure case to go to the court resulted in approval of police conduct, the court in this case found that the officers had gone too far.

The brilliance of the brief, if you ask me, was that she never called it a footlocker. It was a valise, more like a briefcase, more like the kind of thing justices use to carry draft opinions than the things drug dealers use to transport drugs. Who would want their briefcase — full of personal papers, much less draft opinions — searched without a warrant? Certainly not a majority of the court.

And who would want to see their daughters suffer as the victims of discrimination? Justice Ruth Bader Ginsburg noted years ago that the late Chief Justice William Rehnquist, in what she termed a “delightful surprise,” had written an opinion criticizing “stereotypes about women’s domestic roles” and speculated that his “life experience” — one of his daughters was a recently divorced working mother — might have played a role.

A new study conducted by professors Maya Sen of the University of Rochester and Adam Glynn of Harvard found that having at least one daughter “corresponds to a 7 percent increase in the proportion of cases in which a judge will vote in a feminist direction.” To quote Sen, “Things like having daughters can actually fundamentally change how people view the world, and this, in turn, affects how they decide cases.”

If having a daughter affects how you see the world and carrying a briefcase affects how you view searches of “valises,” then we should not be surprised that having a cell phone, which I think it’s fair to assume all nine justices do, might lead you to think carefully before declaring open season on cell-phone records.

And so the court ruled, notwithstanding that the defendant in the case was a gang member — as we used to say, “not exactly a sympathetic defendant.”

Real-world experience matters. If only one of the justices had run for office in his or her life, or been in charge of raising money for a campaign, we might have some common sense on the subject of campaign finance regulations, instead of the court’s naive view that somehow money that doesn’t go directly to the candidate can’t possibly corrupt the process. Where is Chief Justice (and former California governor) Earl Warren when we need him? The court desperately needs a real-world politician.

In the meantime, cell-phone users can be assured that absent extraordinary circumstances, police must secure a warrant to view your records. But the privacy debate is not likely to end with this ruling.

I’ve never understood why people get so outraged that the government might be reviewing data in its effort to fight terrorism (or stop gangs), but even greater intrusions by private companies raise no hackles. Of course, criminals know when their records have been seized, because the evidence is used against them in court, which is where and how the challenge gets raised. You and I probably have no idea who knows what about us, or how they are using that information, or how to find out, let alone how to challenge its use. But I have no doubt that there are lawyers and hackers figuring that out right now.

Susan Estrich is a best-selling author, the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her or click here to read previous columns. The opinions expressed are her own.

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