The upcoming retirement of U.S. Supreme Court Justice Anthony Kennedy, just days after a major ruling from the court on individual privacy, sets the stage for a landmark nomination to the court by President Trump that could have privacy implications for American citizens for decades to come.
Justice Kennedy, 81, will retire this summer, after serving the court for 30 years. He was nominated by President Ronald Reagan in 1988, and has served as a conservative-leaning swing vote for the high court.
Earlier this week, the Supreme Court ruled on the side of personal data privacy, in a decision that requires law enforcement to obtain warrants for cell phone location data. While Kennedy has a history of being the swing decision, it was Chief Justice John Roberts who broke rank from his Republican-nominated counterparts to determine the court’s 5-4 ruling.
The case revolved around Timothy Carpenter, who was convicted for a series of armed robberies that occurred in 2011. Prosecutors tied Carpenter to the robberies based on mobile location data from his cell phone.
The FBI used cell-site location information, or CSLI, from wireless carriers collected over a period of 127 days. However, that information was collected with a court order — not a warrant.
While the court felt the unique nature of cell phone information necessitated warrant, Kennedy, in siding with the conservatives on the court, wrote in his dissent that a person’s discrete movements are “not particularly private.”
“The Court’s newly conceived constitutional standard will cause confusion; will undermine traditional and important law enforcement practices; and will allow the cell phone to become a protected medium that dangerous persons will use to commit serious crimes,” Kennedy wrote.
Kennedy’s impending retirement sets up a showdown between the Trump administration and Democrats, who feel they were slighted by Republicans who refused to hear President Obama’s nomination of Merrick Garland to the Supreme Court. Instead, Republicans waited until after the 2016 presidential election, which enabled Trump to successfully nominate Justice Neil Gorsuch — and led critics on the left to contend Gorsuch’s nomination amounted to a “stolen” Supreme Court seat.
With those wounds still fresh, and with high-profile matters including personal privacy and data privacy hanging in the balance, Republicans and Trump will likely attempt to fill Kennedy’s seat as soon as possible, before the 2018 midterm elections in November.
OWI Insight: It remains to be seen what kind of nominee Trump will put forward. Considering the four dissenting votes in Carpenter v. U.S. were all Republican-nominated seats, it’s possible that a conservative nominated by Trump could continue to reflect the opinions of Kennedy on data privacy. However, it’s also possible that the nominee could prove to be a swing vote, in the likes of Roberts, who penned the majority decision for Carpenter v. U.S. As data privacy concerns continue to grow, a new Supreme Court justice will likely have a say in the handling and protection of personally identifiable information for decades to come.