Two weeks ago, in Maryland v. King, the Supreme Court was deeply split on a case pitting wider access to a government database for purposes of more thorough law enforcement versus fears about intrusion on privacy and unprofessional standards among law enforcers. Today, in the drivers’-license-database case Maracich v. Spears, the Court was once again pulled 5-4 between those two contending poles. And here’s the remarkable thing: every single Justice switched sides.
In Maracich, as in the earlier case, Justice Anthony Kennedy wrote the majority opinion on behalf of three fellow conservatives plus Justice Stephen Breyer, while three liberal justices joined by Justice Antonin Scalia dissented. (This time it was Justice Ruth Bader Ginsburg, rather than Scalia, who wrote the dissent.) And today it was the conservatives-plus-Breyer who chose to display a delicate regard for privacy and professionalism, while the liberals-plus-Scalia were suddenly the ones who didn’t want to tie the hands of law enforcement.
Now, to be sure, there are some fairly huge differences between the two cases. Maracich v. Spears, unlike Maryland v. King, was not a “big” or closely watched case, except perhaps among auto dealers and trial lawyers, and it raised no Constitutional issues under the Fourth Amendment. Instead it was a narrow case of statutory construction involving the precise scope of the Driver’s Privacy Protection Act of 1994 (DPPA), which forbids outside access to drivers’ license databases operated by state DMVs except for one of a specified list of reasons. In general, DPPA forbids access to drivers’ identities for purposes of commercial solicitation (sending new car owners a coupon for a free car wash, for example). But it does permit queries for the purpose of preparing for legal proceedings, including specifically the “investigation” that may precede the filing of a lawsuit. So the question is: does it allow database queries by lawyers looking for contact information so as to solicit car owners to join a lawsuit against car dealers? Does a commercially motivated query that would otherwise not be okay become okay because solicitation can serve as a stage in lawyers’ preparation and “investigation” of a lawsuit?
When every single justice switches sides you may suspect that ideology has played some role, and you might be right. Plaintiffs’ lawyers as a class in certain ways serve as the police or prosecutors of the civil justice system, launching a stream of enforcement actions some of which prove valid and non-abusive and others not. A durable feature of the ideological split between conservatives and liberals in law is that Justices (and professors and news commentators) who are suspicious of the motives of police are often considerably less suspicious of the motives of plaintiff’s lawyers, and vice versa. Thus Justice Ginsburg’s dissent leans over backwards to give the lawyers the benefit of the doubt, pointing out that the suit against car dealers that was promoted by the solicitation did obtain a settlement (from which we are presumably to deduce that it had some merit under South Carolina consumer protection law) and suggests it could be too hard for judges to distinguish legitimate investigational queries from mere solicitation (though in the episode at hand the lawyers’ letter was blazoned with a prominent label “SOLICITATION,” which might be one clue). Similarly, Kennedy’s majority opinion (which ruled that solicitation as such was not protected under the investigational or “in-connection-with” exemptions and sent the case back for further consideration in light of that) likewise went out of its way to warn about letting private lawyers on fishing expeditions gain access to sensitive database information about drivers’ Social Security numbers or disability status, though there was no indication at all that the South Carolina lawyers had used or misused any such aspect of the data.
As I say, Maracich by itself isn’t that big a deal, since if Congress thinks the Court has made DPPA too strict it can always go back to widen the exceptions a bit. But one can still daydream about a future bench equally sensitive to privacy menaces whether from police departments or the private bar.