The Clinton Herald, Clinton, Iowa

Opinion

July 4, 2014

Life experience and judging

How did the Supreme Court manage to agree unanimously that police must obtain a warrant before searching cellphones, yet split on whether employers must offer contraception as part of their health care plans?

My explanation, slightly crude but perhaps compelling: All the justices, presumably, have cellphones. Only three have uteruses, and you know which way they voted.

Of course, a uterus is not a prerequisite for understanding the importance of access to birth control. See, e.g., Justice Stephen Breyer, who voted with Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan to uphold the contraceptive mandate.

But let’s be clear — it helps. Justices are people, not legal robots mechanistically applying laser-sharp rules. They bring to the job an understanding of the world shaped by their experiences.

That background, in turn, informs the task of applying capacious constitutional phrases (”unreasonable searches and seizures”) to circumstances unimagined by the framers (not just telephones, but telephones smart enough to contain the digital entirety of a life), or of balancing competing claims (the religious freedom of employers versus the governmental interest in assuring wide access to contraception).

The cellphone and contraceptive cases offer reminders of this fundamental truth. In the cellphone case, the court could have applied its long-standing exception to the warrant requirement for a search “incident to an arrest.” After all, if an arrested suspect happens to be carrying his diary, police do not need judicial approval to read it.

But the justices understood, correctly, that smartphones are different. “Modern cellphones,” observed Chief Justice John Roberts, “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Written, perhaps, as the father of teenagers?

“A decade ago police officers searching an arrestee might have occasionally stumbled across a highly personal item such as a diary,” Roberts wrote. “Today, by contrast, it is no exaggeration to say that many of the more than 90 percent of American adults who own a cellphone keep on their person a digital record of nearly every aspect of their lives — from the mundane to the intimate.”

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