Analysis of Justice Alito’s dissenting opinion

Much of Justice Alito’s dissenting opinion in Carpenter vs. United States can be summed up in five words:

I love subpoenas duces tecum.

This opinion also goes on for many, many pages. But where Justice Thomas’ dissent was mired in the history at the time of (and preceding) the Founding Fathers opinions on property rights, this opinion is mired very much in the history of the subpoena.

It leads Justice Alito to conclude that subpoenas are not circumscribed by the Fourth Amendment. The irony of his seeming conclusion is lost on him when he gives a clear example of a court case in the 1760s of a subpoena duces tecum failing due to the to attorney client privilege.

So privileges may defeat a subpoena, but not probable cause determinations in the Fourth Amendment?

In fact, I haven’t seen the word “surveillance” in his opinion once. I looked. If you see it and I’ve missed it, let me know.

The other major theme of this dissent other than the wonders of a subpoena is that he also appears to believe the sky will fall in criminal investigations based on this opinion.

And one more thing regarding the Founder’s thinking.

He claims that concepts of “reasonable expectations of privacy” and “property interests” don’t apply to any records of any kind (except maybe that Alito doesn’t want his emails read) because he can’t locate a case from the 18th Century or further back that led to that conclusion.

He writes:

“As the Court well knows, the reason that we have never seen such a case is because—until today—defendants categorically had no “reasonable expectation of privacy” and no property interest in records belonging to third parties. See Part II, infra. By implying otherwise,
the Court tries the nice trick of seeking shelter under thecover of precedents that it simultaneously perforates”

The problem with Alito’s whole discussion regarding our Founding Fathers, as well as his detailed discussion of a 1940’s Department of Labor case about subpoenas called Oklahoma Press Pub. Co. v. Walling (327 U.S. 186) (you must read this case if you ever appear in front of Justice Alito) is that none of these cases ever dealt with the issue of mass surveillance of the populace.

The liberal Justices, Chief Justice Roberts, and I suspect Justice Gorsuch all recognize one basic tenet:

The Founding Fathers, or at least most of them, each would have had a litter of puppies if anyone suggested that the Government can have these powers of mass surveillance of the populace.

This seems to be one of our best themes as we push forward.

With other Justices other than Alito, I think.

And Thomas. He joined this dissent. Curious that Kennedy did not.

Next up: Gorsuch’s dissent (of sorts).

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