Katz at Forty: A Sociological Jurisprudence Whose Time Has Come

Jonathan Simon*

The Warren Court was vigorously accused of relying on sociological jurisprudence by enemies of its Brown v. Board of Education decision. This charge embodied a highly pejorative view of sociological jurisprudence as a strategy of judicial arbitrariness and social engineering. Furthermore,as many defenders of Brown pointed out at the time, it was not accurate. If the Warren Court can be said to have formed a sociologicaljurisprudence, Katz v. U.S. is a much better example. This Article argues that this promising jurisprudence was largely abandoned due to inconsistency on the demand side by the U.S. Supreme Court, and inability by lawyers on the supply side, to deliver the kind of empirically oriented advocacy that Katz invited. I try to reconstruct this jurisprudence, which I term a "jurisprudenceof the social," to distinguish it from the pejorative view articulated by the historical and contemporary enemies of Brown. Properly understood, a jurisprudence of the social can help the Fourth Amendment as a whole to avoid judicial arbitrariness,and the danger of instability in constitutional protections which many have accused the Katz framework of leading to. Moreover, the rise of empirical legal studies today suggests that this is a jurisprudence even more promising now than in the 1960s.

TABLE OF CONTENTS 1. EMBRACING THE SOCIAL: KATZ AND BROWN ...... 937 A. Brown as "SociologicalJurisprudence" ...... 938 B. Katz and the Architecture of Privacy ...... 945

Associate Dean for Jurisprudence and Social Policy, Professor of Law, University of California at Berkeley, Boalt Hall School of Law. The author is grateful for the research assistance of Ashley Aubuchon, doctoral student in Jurisprudence and Social Policy, UC Berkeley, and for the editing of Anjuli Fiedler and her colleagues on the UC Davis Law Review.

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II. RECOVERING THE JURISPRUDENCE OF THE SOCIAL IN KATZ ...... 948 A . K atz and the Social ...... 949 B. Telephone Booths and the Structure of Social Meaning ...... 950 C. Losing Our Place: The Diminished Sense of the Spatial in Post-War Social Analysis and Policy ...... 955 III. GARBAGE, FLY-OVERS, AND CARS: LOST CHANCES TO SOLIDIFY THE JURISPRUDENCE OF THE SOCIAL ...... 959 A. Plastic GarbageBags and the Secret Lives of American H om es ...... 9 6 0 B. Flying Over the Social ...... 962 C. The Exceptional Autom obile ...... 964 D. Without Reflection: Moments When Courts Get It A ny w ay ...... 96 7 IV. REDISCOVERING THE ROAD NOT TAKEN AFTER KATZ ...... 968 A. Katz and the Warren Court's Anticipation of N eoliberalism ...... 970 B. The Age of Empirical Lawyering ...... 974 C ON CLU SIO N ...... 9 76

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Many acute observers have come to believe that the Katz doctrine should first be eulogized then buried as a noble effort to increase the protections of the Fourth Amendment for private life under modern social conditions.' These critics view the Katz doctrine as, at best, an obstacle to modernizing those protections.2 This Article argues that Katz, in its most promising aspects, was never fully developed by the U.S. Supreme Court, and that there has been no time as promising as the present for revitalizing these features of Katz (and with it the reformist potential of the doctrine). To do so, I will recover and reclaim that which, in 1967, was one of Katz's most ambitious and vulnerable claims: to bring constitutional analysis into an engagement with an empirically informed analysis of social life. Often scorned as "sociological jurisprudence,"3 this engagement between constitutional and sociological analysis deserves new consideration, and possibly, a revitalization of what I would prefer to call a "jurisprudence of the social."

I. EMBRACING THE SOCIAL: KATZ AND BROWN The charge that the Warren Court was going sociological emerged earlier than Katz in the great controversy unleashed by the Court's school segregation decisions, especially the foundational Brown v. Board of Education I in 1954.' From its inception, many critics of Brown, who dared not attack its ruling on the merits, chose instead to castigate it as an example of sociological jurisprudence, i.e., little more

They include Professor Erik Luna's perceptive article in this Symposium. See Erik Luna, The Katz Jury, 41 UC DAVIS L. REV. 839 (2008). Another recent voice questioning the relevance of the Katz doctrine (even if not avowedly calling for its reversal) is Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 MICH. L. REV. 799, 838 (2004) (stating that we should not expect Fourth Amendment alone to provide adequate protections against invasions of privacy made possible by law enforcement's use of new technologies); see also Peter P. Swire, Katz is Dead - Long Live Katz, 102 MICH. L. REV. 904, 905 (suggesting Court rather than Congress should come up with new principles) 2 Luna, supra note 1. 3 See, e.g., ROBERT A. HEINEMAN, AUTHORITY AND THE LIBERAL TRADITION: FROM HOBBES TO RORTY 129-32 (1984) (asserting sociological jurisprudence was unnecessary in Brown v. Board of Education in light of availability of judicial precedents); GARY J. JACOBSOHN, THE SUPREME COURT AND THE DECLINE OF CONSTITUTIONAL ASPIRATION 12- 13, 34 (1986) (explaining Warren Court's use of science in constitutional adjudication, and critiquing general popularity of sociological jurisprudence since Justice Oliver Wendell Holmes). 4 347 U.S. 483 (1954).

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than sociological reasoning masquerading as constitutional argument.' Even a Life magazine article on Brown summarized such criticism as suggesting that "its reasoning was based not only law but on sociological considerations. '"6 While Brown's defenders largely ran away from the decision's invocations of the social, the Warren Court's criminal procedure jurisprudence showed a continuing interest by the Court in investing that relationship with doctrinal authority. This interest was particularly evident thirteen years later in Katz, wherein the majority looked to the very existence and design of telephone booths to draw the boundaries of the specific privacy right that required protection. Specifically, in Katz, the Court offered a reading of the telephone booth comparable to the work of anthropologists and sociologists.7

A. Brown as "SociologicalJurisprudence" Earlier in the 20th century, the term "sociological jurisprudence" signified optimism about the ability of social science to help modernize American law.8 By the time it was leveled at the unanimous decision of the Supreme Court, though, criticism of sociological jurisprudence sounded several specific grievances against what was seen as an abandonment of a legally purer form of judicial reasoning. These grievances included criticisms of sociological jurisprudence's inclusion of empirical sources of knowledge, its reliance on speculative theories of the social sciences, and its apparent readiness to engage in social engineering.9 Calling Brown's

5 Edmond Cahn, Jurisprudence, 1954 ANN. SURV. AM. L. 809, 816 (Illn the months since the utterance of the Brown and Bolling decisions, the impression has grown that the outcome... was caused by the testimony and opinion of the scientists . . . .1). 6 The Warren Court, LIFE, July 1, 1957, at 33, quoted in Louis H. Pollak, The Supreme Court Under Fire, 6J. PUB. L. 428, 436 (1957). 7 Katz v. United States, 389 U.S. 347, 352 (1967). Katz never drew on social science scholarship, but its style has resonance with some of the leading works of the same period. See, e.g., PIERRE BOURDIEU, AN OUTLINE OF A THEORY OF PRACTICE (1977) (showing how built environment links agency with structure, providing source of shared meanings and possibility of change); ERVING GOFFMAN, ASYLUMS: ESSAYS ON THE SOCIAL SITUATION OF MENTAL PATIENTS AND OTHER INMATES (1971) (describing way institutions of confinement use techniques of organizing people, space, and procedures to accomplish quite different goals, ranging from punishing criminals to projecting military power). 8 N.E.H. HULL, ROSCOE POUND & KARL LLEWELLYN, SEARCHING FOR AN AMERICAN JURISPRUDENCE 278 (1997). 9 See infra notes 10-20 and accompanying text.

HeinOnline -- 41 U.C. Davis L. Rev. 938 2007-2008 20081 Katz at Forty 939 jurisprudence "sociological" provided critics with an economical way to condense these several related but distinct meanings. The Brown opinion was much criticized for relying on empirical studies, including psychologist Kenneth Clark's doll studies,10 the rigor and reliability of which was questionable.'" Such critics ignored the fact that the "separate but equal" standard overturned in Brown was itself an invitation to empirical evaluation; how else could courts discern whether separate schools were, in fact, equal? While Brown was no more decided on the basis of empirical studies in the record than are most appellate court decisions that depend on the factual findings made by the trial courts, it showcased the rising ambitions of post-World War II social sciences to shape public policy as much as physics and chemistry had since the war. Brown was also criticized for ignoring the traditional sources of constitutional interpretation in favor of sociological speculation about the consequences of segregated education.1 2 The most famous example of this was the late Professor Herbert Wechsler's article, Toward Neutral Principalsof Constitutional Law, in the Harvard Law Review.13 Wechsler did not reject the outcome in Brown, but he accused the Court of failing to produce reasons for this outcome of a sufficiently general nature, instead relying excessively on the social facts of the case.' 4

10 In the 1939 experiment conducted by Kenneth Clark and Mamie Clark, preschool-aged African American children offered a choice of black or white dolls preferred the white dolls overall. The Clarks interpreted that to be evidence of school segregation causing damage to self-esteem. See Kenneth Clark & Mamie Clark, The Development of Consciousness of Self and the Emergence of Racial Identification in Negro Preschool Children, 10 J. Soc. PSYCHOL. 591, 596-98 (1939). The Clarks' study was among the scientific evidence cited by the Brown Court in support of the finding that segregated education damaged children in the plaintiff class. See Edgar G. Epps, Impact of School Desegregation on Aspirations, Self-Concepts and Other Aspects of Personality, in THE COURTS, SOCIAL SCIENCE, AND SCHOOL DESEGREGATION 303 (Betsy Levin & Willis D. Hawley eds., 1977). 11 Cahn, supra note 5, at 81 (noting emerging myth that Brown was decided on social science evidence and rejecting it). 12 Pollak, supra note 6, at 435-36. 13 Herbert Wechsler, Toward Neutral Principals of Constitutional Law, 73 HARV. L. REV. 1, 35 (1959). 11 Id. at 15. Brown's defenders did not so much as defend the use of social science as they articulated the kind of neutral principals that Wechsler called for. See Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE. L.J. 421, 421 (1960); Louis H. Pollak, Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler, 108 U. PA. L. REV. 1, 1-2 (1959).

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Later, Brown was criticized for opening the door for courts to engage in "social engineering."' 5 In this sense, "the social" was meant to invoke technologies of power that some considered illegitimate because they went beyond remedying specific harms to specific parties and sought instead to 1alter6 the operation of whole institutions, affecting the mass public. Criticism of Brown as too social, or too sociological, seems in retrospect to have done little to impede the case as either a legal or a cultural matter. For the social sciences, the 1950s were, in fact, a period of unprecedented ascendance in both popular acceptance (e.g., a sociologist on the cover of Time magazine 7 ) and as a form of governmental knowledge. 8 There was an inherent irony in this context. During its takeoff on American university campuses during the early 1900s, sociology was sometimes associated with a strong defense of the racist status quo in America on the grounds that positive law could not be expected to alter evolved social norms like segregation.19 By the 1950s, however, sociology was already coming to be associated with liberal positions on the race question.2"

'5 A. James Gregor, The Law, Social Science, and School Segregation: An Assessment, 14 W. RES. L. REV. 621, 630 (1963). The icon of social engineering was invoked just this last term by Justice Thomas in his concurrence to the race conscious school assignment policy cases, noting tersely in a footnote, "we are not social engineers." Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S.Ct. 2738, 2779 n.14 (2007) (Thomas,J., concurring). 16 To its defenders, this new approach to public law was an essential tool for courts to enforce constitutional guarantees in conditions of modem society. Abram Chayes, The Role of the judge in Public Law Litigation, 89 HARV. L. REV. 1281, 1282, 1284, 1304, 1307-09 (1976). 17 David Riesman, whose iconic study of 1950s society, The Lonely Crowd, became a national bestseller, appeared on the cover of Time Magazine. TIME, Sept. 27, 1954. 18 Jonathan Simon, Law After Society, 24 LAw & Soc. INQUIRY 143, 144, 150 (1999). 19 See, e.g., WILLIAM GRAHAM SUMNER, FOLKWAYS: A STUDY OF THE SOCIOLOGICAL IMPORTANCE OF USAGES, MANNERS, CUSTOMS, MORES AND MORALS 75-18 (1906) (asserting priority of informal norms over positive law); see also Steve J. Shone, Cultural Relativism and the Savage: The Alleged Inconsistency of William Graham Sumner, 63 AM. J. ECON. & Soc. 697, 697-98 (2004) (noting that Sumner appears contradictory to contemporary political categories because he embraced ethnocentrism and cultural relativism, while simultaneously accepting Social Darwinism). Sumner was politically conservative, a Social Darwinist, and in some ways a Libertarian. Id. at 697. 20 See JAMES B. MCKEE, SOCIOLOGY AND THE RACE PROBLEM: THE FAILURE OF A PERSPECTIVE 257 (1993) (arguing that 1950s saw sociology shift from conservative to liberal reform approach to race).

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But if criticisms of Brown for sins of sociological jurisprudence are unpersuasive, there is an important respect in which the Warren Court can be rightly regarded as having charted new ground in articulating constitutional norms in explicit relation to "the social" as a source of legal knowledge and meaning." Here, "the social" does not mean sociology per se, but the domain of relations, norms, and institutions which have indeed been the focus of sociology (and other "social" sciences) since the late nineteenth century.2 2 "The social" in this sense has also been a focus of governmental and private sector strategies (this was the original domain of philanthropy) since at least that time.23 U.S. courts, especially the Supreme Court during the first third of the twentieth century, often seemed to be the sector of government most inclined to ignore or even deny the importance of the social, a factor that surely contributed to the perception of the courts as solidly conservative and pro-business in the era. 4 The jurisprudence supporting judicial hostility toward acknowledging social relations, norms, and institutions, came under increasing assault from the broad family of academic legal writing under the banner of "legal realism."2 5 While individual Justices since Holmes and Brandeis had voiced this criticism and invoked the social in various ways in their opinions (occasionally for the majority), the majority that emerged during the New Deal fight never articulated a doctrinal expression of the social to accompany their overturning of formalist precedents. 6 The Warren

21 Charles L. Black, Jr., The Segregation Decisions, 69 YALE L.J. 421, 427 (1960) ("The issue is seen in terms of what might be called the metaphysics of sociology: 'Must Segregation Amount to Discrimination?' That is an interesting question; someday the methods of sociology may be adequate to answering it. But it is not our question. Our question is whether discrimination inheres in that segregation which is imposed by law in the twentieth century in certain specific states in the American Union. And that question has meaning and can find an answer only on the ground of history and of common knowledge about the facts of life in the times and places aforesaid."). 22 NIKOLAS ROSE, POWERS OF FREEDOM: REFRAMING POLITICAL THOUGHT 119-20 (1999). 23 JACQUES DONZELOT, THE POLICING OF FAMILIES 88-89 (1979). 24 This peiception of the Supreme Court as monolithically hostile to modernizing attempts to use law to manage the social has been challenged by recent historians. The most infamous example that lent its name to the whole era was Lochner v. New York, 198 U.S. 45 (1905) (holding that New York law regulating bakery employee hours violated due process). 25 See HULL, POUND & LLEWELLYN, supra note 8, at 35. 26 The closest must be United States v. Carolene Products, 304 U.S. 144, 153 n.4 (1938).

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Court, beginning with Brown, included in many of its important decisions broad invitations to the bar and bench to incorporate knowledge about social relations, norms, and institutions (collectively, "the social") into the analysis of constitutional rights.27 While the able defenders of Brown largely ran away from the charge of sociological jurisprudence, I intend here to defend it, rephrasing it slightly differently (to loosen the connection to legal scholar Roscoe Pound and early twentieth century realists) as a "jurisprudence of the social." This title fits important aspects of the Warren Court's constitutional jurisprudence, including Brown. The Court cited the doll studies and other empirical data in Brown28 to support factual findings about the damage to plaintiffs, rather than to interpret the law of the Fourteenth Amendment. But the Court based its recognition that education is vital to determining a person's standing in the community on its analysis of modern social relations, norms, and values, not on an a priori discussion of education as a human activity in the abstract.29 Here, constitutional and other legal authority are not derived from sociological claims, but rather as applied to individual cases in an analysis informed by knowledge of "the social." But from this perspective, Brown is not the exemplary case after all. In general, the Warren Court's criminal procedure decisions stand out as among the best examples of the Court's effort to articulate the relationship among legal subjects, rights, and social formations. Nowhere is this jurisprudence of the social better exemplified than in Katz v. United States,3° where the Court tied one of the gateway questions of Fourth Amendment analysis, i.e., whether government surveillance of some particular sort has intruded into an area or activity protected by the Fourth Amendment's requirement that 3 "searches" be reasonable, to the question of what "society" is prepared to recognize as reasonable.

27 See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966) (analyzing Fifth Amendment rights in context of police interrogation); Gideon v. Wainwright, 372 U.S. 335 (1963) (analyzing Sixth Amendment rights in context of adversary system of criminal justice). 28 See Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 494 n.l (1954). 29 Id. 30 389 U.S. 347 (1967). 3' This may mean that the police have to obtain a warrant, or at least probable cause that a crime has been or is being committed, and that related evidence is likely to be found (there are many exceptions to the first and many to the latter requirement, however).

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For reasons well articulated by other participants in this Symposium,32 Katz has been increasingly criticized as an unreliable instrument for defining the all-important concept of a "search" under the Fourth Amendment.33 In ways that now resonate with some of the "sociological jurisprudence" criticism of Brown, Katz's socially reasonable expectation of privacy analysis is seen as tying constitutional meaning to the fickle and superficial domain of social significance, thus opening the door to unlimited judicial imposition of subjective preferences.34 Unlike criticism against Brown, however, this criticism is not generally inapt to the case and its progeny. In a long list of decisions excluding police action from being analyzed as searches, the Warren Court, and even more so its successors, has narrowed the scope of the Fourth Amendment.35 This has led some to suggest that the Katz analysis be replaced altogether, perhaps by returning to a revitalized conception of property rights.36 I suggest that by reading Katz as a strong endorsement of a jurisprudence oriented toward knowledge of social relations, norms, and institutions, we can recover an essential component of that decision in both Justice Potter Stewart's opinion for the majority and the celebrated concurrence by justice John Marshall Harlan, which was lost almost from the beginning. A stronger embrace of the role of social knowledge in Katz offers a solution to some major criticisms of the "reasonable expectations of privacy test," including that it offers little substantial constraint on judicial preference, and that it is subject to rapid downward shifts in protection during periods of public acceptance of government intrusion (whether due to fear, cynicism,

31 See generally Luna, supra note 1 (suggesting that Katz be replaced by jury judgments as to reasonableness). 33 See AKHIL AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 40 (1997); see also Kerr, supra note 1; Swire, supra note 1; Sherry F. Colb, What is a Search? Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy, 55 STAN. L. REV. 119, 121 (2002). 11 See Note, A Reconsideration of the Katz Expectation of Privacy Test, 76 MICH. L. REV. 154, 154-56 (1977). " See, e.g., California v. Greenwood, 486 U.S. 35 (1988) (holding that examination of garbage in plastic garbage bags taken from suspect's curtilage is not search); California v. Ciraolo, 476 U.S. 207 (1986) (holding that aerial surveillance by fixed wing aircraft is not search); Oliver v. United States, 466 U.S. 170 (1984) (holding that aerial surveillance by fixed wing aircraft is not search); United States v. White, 401 U.S. 745 (1971) (holding that undercover agent with microphone infiltrated among suspects is not search). 36 See Orin Kerr, Searches and Seizures in a Digital World, 119 HARV. L. REV. 531, 576-84 (2005).

HeinOnline -- 41 U.C. Davis L. Rev. 943 2007-2008 University of California,Davis [Vol. 41:935 intimidation, or all of the above).3" Indeed, what I term a "jurisprudence of the social" may also provide a more robust source of Fourth Amendment protection during such periods like the present "War on Terror" than either the Court's current version of Katz38 or a return to a property-based regime. 39 This is especially true when our already decades-old war on crime is being expanded and exceeded by a "War on Terror."4 ° Katz went beyond previous decisions by confronting the degree to which "the social" should enter into the consideration of the specific boundary of constitutional protections. In doing so, the Katz majority demonstrated confidence in the ability of courts, and by implication lawyers, to imagine the social significance of the key aspects of a challenged police practice, and where available, to utilize evidence of the social meaning, applicable norms, and institutional roles of specific privacy rights in contemporary society. This confidence turned out to be misplaced, though not necessarily mistaken. Despite significant