A New Look at Olmstead

14Feb10

One of Louis Brandeis’ most famous opinions is his dissent in Olmstead v. US, 277 US 438, in which he railed against government use of wiretaps. It’s the source of the quote, “Our government is the potent, the omnipresent teacher…” that Rob Shetterly used in his portrait of Brandeis. That quote is the centerpiece of a new article by Harvard professor Carol S. Steiker. The article was her presentation in a symposium called Great Debates in Fourth Amendment Cases. It was printed in the Fall 2009 issue of the Mississippi Law Journal, but it’s also available online.

While acknowledging Olmstead‘s historical importance, Professor Steiker questions how much precedential value the opinion has, at least in Fourth Amendment cases. Brandeis’s dissent seemed to have been upheld in John Marshall Harlan II’s concurring opinion in Katz v. US, 389 US 347 in 1967, and more recently in Scalia’s rejection of the use of thermal imaging technology to randomly find people growing marijuana in their homes (Kyllo v. US, 533 US 27). But Steiker argues that most post-Olmstead decisions have declined to find privacy as the basis for Fourth Amendment protection. Instead, even in decisions that seem to follow Brandeis’ dissent (such as Katz and Kyllo) the reasoning is usually based on much narrower grounds.

Instead, Steiker argues that Brandeis’ dissent’s claim to greatness lies in its warning to governments that lawless actions on their part will lead to lawless actions from the citizenry and that the government has an obligation to lead by example. Another idea that the Supreme Court has not always agreed with…

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