Part I of this series explained the Supreme Court’s decision in Riley v. California, and why it represents so dramatic an evolution from prior cases where the Court failed to grasp the implications of digital technology for the privacy values pervading the Bill of Rights. This follow-up post explains the social forces animating the decision, with crucial implications for any number of social issues going forward.
Where it came from: is the Court “in front,” or behind?
It remains important to recognize how a broader social debate made possible last week’s decision in Riley v. California. Only in examining the influence of mass debate on elite legal discourse can we understand how digital privacy — or other contested rights — will evolve in the future.
A long-running debate among legal theorists questions whether, and how, courts are influenced by broader public debates beyond the courtroom. On the one hand, courts are inherently reactive institutions.
On the other hand, courts have occasionally advanced justice while the political branches remain mired in majoritarian prejudice: in Brown vs Board, the Court — not Congress — forced desegregation on the South, just as Goodridge v. Dep’t of Public Health placed a Massachusetts court near the front of the marriage equality movement (disclosure: I was part of the legal team representing the mayor of new Paltz, NY in a 2004 marriage equality case).
Brown vs. Board is relevant not only in demonstrating an example of the Court’s occasional proactivity, but also in rejecting “separate but equal” systems for people of different races. Lost in most commentary about the Riley decision has been an awareness of its serious implications for race, which in turn help reveal whether Riley reflects a Court “out in front,” or instead, one lagging behind American society.