Say, this is different -- a court decision that actually protects our privacy:
It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information....
The text of the Fourth Amendment reflects its close connection to property...
Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century....
Our later cases, of course, have deviated from that exclusively property-based approach. In Katz v. United States, 389 U. S. 347, 351 (1967), we said that “the Fourth Amendment protects people, not places,” and found a violation in attachment of an eavesdropping device to a public telephone booth. Our later cases have applied the analysis of Justice Harlan’s concurrence in that case, which said that a violation occurs when government officers violate a person’s “reasonable expectation of privacy”....
Something else is different, too. It's not the usual five-member "conservative" bloc voting in favor. Scalia's opinion was joined by Roberts, Kennedy, Thomas and Sotomayor. And there was really no dissenting opinion, just a concurring one written by Alito and joined by Binsburg, Breyer and Kagan.
The one thing that keeps it from being a three-cheers decision is Alito's criticism of the majority for using "18th century tort law" to interpret the Fourth Amendment. So we have a supposed Originalist hinting that he might see something in the Living Document approach to the Constitution?
