Obama's Justices vs. Obama

Obama has appointed to the Supreme Court people who don't entirely share his taste for aggressive statism.

Barack Obama, the law professor who railed against the Bush administration's disdain for privacy, has been to civil liberties what the Hindenburg was to air travel: an unexpected debacle. Time after time, he has chosen to uphold government power at the expense of individual protections.

Warrantless wiretapping in national security cases? For it. Detaining citizens indefinitely without trial? Sure. Assassinating Americans abroad without making public the evidence or the legal rationale? Done. In October 2010, American Civil Liberties Union Executive Director Anthony Romero pronounced himself "disgusted" with the administration's record.

But there is one big redeeming item on his record: He has appointed to the Supreme Court people who don't entirely share his taste for aggressive statism. In two recent major decisions, both Sonia Sotomayor and Elena Kagan have declined to indulge ominous encroachments on personal freedom and privacy.

Their latest stand came in a case where police put a Global Positioning System on a suspect's car and monitored his every move for nearly a month—without a warrant. The Fourth Amendment to the Constitution bars "unreasonable searches and seizures." But the Justice Department said that's irrelevant because attaching the device did not amount to a search.

At that point during oral arguments, Justice Stephen Breyer said, "If you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States"—a prospect he likened to the totalitarian surveillance depicted in George Orwell's "1984." The government's lawyer did not contradict him.

Obama's Supreme Court appointees recoiled at that prospect—along with the rest of the court, in a rare unanimous verdict. Both also indicated a willingness to put tighter constraints on police than some of their colleagues might prefer.

Kagan signed onto an opinion by conservative Justice Samuel Alito taking the view that modern technology demands a new interpretation of what constitutes a search. In this instance, police can acquire far more extensive information about far more people than would have been imagined two centuries ago, when the Fourth Amendment was written.

In cases like this, Alito said, "society's expectation of privacy has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual's car for a very long period."

To do that without a warrant violates the Fourth Amendment. The same, he suggested, might hold true for other new sources of information, such as outdoor video cameras and automatic toll equipment. Kagan agreed with all this.

Sotomayor took an even warier view of police use of modern data-collection systems. Under past Supreme Court decisions, you can unwittingly surrender your privacy by doing business with a bank, insurer or other company. The government can commandeer those records without a warrant—on the odd theory that they are not private because you've already let someone see them.

Of course, the fact that you have to contract with a cell phone provider to function in the modern world doesn't mean you have no stake in keeping your call log strictly between you and Verizon. Sotomayor said the existing, government-enabling doctrine "is ill suited to the digital age." Her position, if shared by other justices, could lead to sensible new constraints on cops.

The Obama justices also firmly rebuked the government when it trampled on freedom of religion. The administration had taken the side of a religion teacher at a religious school who claimed she had suffered employment discrimination.

Ministers and other religious leaders are normally not covered by such laws, on the theory that the government has no business telling sectarian bodies who should lead the faithful. But the Justice Department not only said the teacher was not covered by the "ministerial exception"; it said there should be no such exception.

How did that argument work out? During oral arguments, Kagan called it "amazing," and the court rejected it 9-0. The religion clauses of the First Amendment, it said, "bar the government from interfering with the decision of a religious group to fire one of its ministers."

Obama would like to extend the government's reach into that as well as other places that were once off-limits. When he tries, though, he can't assume his justices will have his back.

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