Taking up the thread from my colleague, Professor Friedman, I too think now is a good time to think about some of the themes that we can see in Justice Stevens’ writings. Like Professor Friedman, I too see a consistent effort by Justice Stevens to resist an overly formalistic approach to constitutional jurisprudence. While many who favor formalism do so in the belief that this is the best way to curb judicial activism, Justice Stevens’s writings illustrate how such a goal can prove illusory when it comes to cabining the authority of judges.
There is no better example of this than in the contrast between Justice Stevens’s and Justice Scalia’s opinions in Kyllo v. United States. In Kyllo, the police, using a thermal imaging device, observed the suspect’s home from across the street. The police suspected Kyllo of illegally growing marijuana in his home and they hoped that the thermal imaging device would help them detect any excessive heat emanating from the house. The police scan revealed that Kyllo’s roof and a side wall were relatively hot. Based on this and other information, the police obtained a search warrant and discovered marijuana and evidence of a growing operation in the house.
The issue for the Court was whether Kyllo had a reasonable expectation of privacy in the heat emanating from his house that could be detected by this special imaging device. Concerned about the impact that advancing technology can have on privacy rights, a majority of the Court, in an opinion by Justice Scalia, held that Kyllo did have a reasonable expectation of privacy and the observations by the police constituted a warrantless search of the home. Critical to Justice Scalia’s analysis was his concern about protecting the sanctity of the home, the very core area of Fourth Amendment protection, from invasion through technological advances. He attempted to draw a bright line by ruling that sensory-enhanced observations that reveal information regarding the interior of the home that would not otherwise be observed without physical intrusion constitute a search, where the technology is not yet in use by the general public.
In his dissent, Justice Stevens took a less formalistic approach to the problem, noting that the heat waves observed by the thermal imager were not in fact information about the interior of the home. Rather, the device detected heat emanating off of the walls of the home, and that same information could be observed in any number of ways. Justice Stevens also saw the formalistic bright line rule that the majority hoped to craft as illusory. Most significantly, Justice Stevens noted that by linking the Fourth Amendment protections to the availability of new technology, Justice Scalia was setting the stage for a reduction in privacy protections once the technology achieves a certain level of general use.
At the end of this dissenting opinion, Justice Stevens states that, rather then resolving the rather mundane issue before it, Justice Scalia and the majority attempted to craft an all-encompassing rule for the future. According to Justice Stevens, the Court departed from the “tried and true counsel of judicial restraint.”
It is quite a role reversal to have Justice Stevens accusing Justice Scalia of excessive judicial activism, but his dissenting opinion in Kyllo demonstrates well one of the key guideposts of his jurisprudence. Wary of formalism and cognizant that an excessive devotion to bright line rules can produce benefits that are more perceived then real, Justice Stevens frequently opted for a different, more nuanced and, in many cases, a more common sense approach to the constitutional problems that confront the Court.