On her NY Times Blog:
The question is what this shift in public attitudes might mean for the courts, the Supreme Court in particular. The Supreme Court operates inside the mainstream culture — which is, after all, where the justices live — influenced not by the “weather of the day” but by the “climate of the age,” as Justice Ruth Bader Ginsburg likes to say, quoting the great constitutional scholar Paul Freund. So does it matter, for example, that recent polls have found a decided movement in public opinion toward protecting privacy and civil liberties and away from the government’s anti-terrorism priorities? In cases concerning GPS searches and drug-sniffing police dogs, the justices have been expressing increasing skepticism about law enforcement tactics that evade the traditional warrant requirement. During the new term, the court is likely to take up a case on warrantless searches of cellphones, a case that could gauge the justices’ readiness to recalibrate the balance between privacy and security.
Rights shouldn’t depend on the country’s prevailing opinion, unless that opinion is expressed through an amendment to the Constitution. As far as GPS and drug sniffing dogs are concerned, the recent opinions addressing them should have been, as they were by Thomas and Scalia, decided based on the Fourth Amendment’s original intent.