United States v. Graham: The Fourth Circuit Rejects the Privacy Concerns of a Broad Range of Groups with Often Conflicting Interests
To appreciate the range of constituencies concerned with threats to privacy in this country, one need only examine the diverse array of amici supporting the appellants in United States v. Graham, No. 12-4659 (4th Cir., May 31, 2016) (en banc). Amici from the Conservative Legal Defense and Education Fund to the ACLU and from the Gun Owners of America to the Reporters Committee for Freedom of the Press lined up to voice their concerns in connection with the Fourth Circuit’s en banc review of its panel’s decision ruling that the government had violated Defendants’ Fourth Amendment rights when it obtained from their cellphone carriers’ records personal cell-site location information (“CSLI”) without a warrant supported by probable cause.[i] The Fourth Circuit nevertheless overturned the ruling.
In order to obtain the CSLI at issue — seven months of cell phone records and 30,000 calls and texts for each defendant — the Stored Communications Act, codified at 18 U.S.C. § 2703, required the government only to obtain an order for its release by the defendants’ cellphone carrier based on “specific and articulable facts showing that there are reasonable grounds to believe that . . . the records . . . are relevant and material to an ongoing criminal investigation.” Neither a warrant nor probable cause was required.
The en banc panel issued three separate opinions: the opinion for the Fourth Circuit, written by Judge Motz; a concurring opinion written by Judge Wilkinson; and a dissenting opinion (concurring, however, in the judgment) written by Judge Wynn and joined by Judges Floyd and Thacker. According to Judge Motz’s opinion, “the question before [the court was] whether the government invades an individual’s reasonable expectation of privacy when it obtains, from a third party, the third party’s records, which permit the government to deduce location information.” Slip Op. at 9. Answering in the negative, the opinion for the court reasoned that “an individual can claim ‘no legitimate expectation of privacy in information that he has voluntarily turned over to a third party.’” Slip Op. at 10, quoting Smith v. Maryland, 442 U.S. 735, 743-44 (1979) (emphasis added).
“There is,” the opinion continues, “little question that cell phone users convey CSLI to their service providers ‘voluntarily’ . . . and that [l]ogic compels this conclusion.” Slip Op. at 17. Accordingly, the defendants “did not have a reasonable expectation of privacy in,” or, therefore, Fourth Amendment protection for, CSLI records that their cellphone carriers created in connection with communications originated or terminated on their cellphones. Slip Op. at 11. Because “the [Supreme] Court has long held that an individual enjoys no Fourth Amendment protection ‘in information he voluntarily turns over to [a] third party,’” the Court’s precedent “mandates this conclusion.” Slip Op. at 5, quoting Smith, 442 U.S. at 743-44. Rather, a “search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Slip Op. at 6 (quoting Kyllo v. United States, 533 U.S. 27, 33 (2001)) (emphasis added).
The en banc court’s opinion casually and uncritically shifts terminology, making no distinction among “legitimate,” “subjective,” and “reasonable” expectations of privacy. Arguing point by point with the dissent, it essentially essays to explain why, measured by Supreme Court and circuit court precedents, the expectation of privacy that the defendants contended they had was, indisputably, in the court’s mind, not reasonable. Finally, characterizing its perception of its role in expounding law, the court, perhaps revealing some doubt about its answer to the question before it, admonished:
The Supreme Court may in the future limit, or even eliminate, the third-party doctrine. Congress may act to require a warrant for CSLI. But without a change in controlling law, we cannot conclude that the Government violated the Fourth Amendment in this case.
Slip Op. at 6.[ii]
Judge Wilkinson, concurring, wrote only for himself to “emphasize [his] concern that requiring probable cause and a warrant in circumstances such as [in Graham] needlessly supplants the considered efforts of Congress with an ill-considered standard of our own.” Slip Op. at 38. According to Judge Wilkinson:
[B]y effectively rewriting portions of a federal statue under the guise of reasonableness review courts run the risk of boxing the democratic branches out of the constitutional dialogue. For good reason, developing constitutional meaning has always been a collaborative enterprise among the three departments of government.
Id. “Formulation of constitutional guidance, in other words, is a collaborative enterprise, ‘with each branch encouraged to recognize its own institutional limitations and to respect the superior competencies of the others.” Id. at 41, quoting Johnsen, Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning?, 67 Law & Contemp. Probs. 105, 120 (2004). At the same time as he called for equal faith in the legislature and executive to determine “constitutional meaning,” however, Judge Wilkinson also acknowledged “the government’s indigenous tendencies to intrude upon our privacy.” Slip Op. at 44.
Judge Wynn, dissenting (though concurring in the court’s judgment), took the majority to task for its dogmatic analysis.[iii] Pointing to the “array of concurring and dissenting opinions that have been issued by federal appellate judges on this subject,” Judge Wynn questioned the majority’s view that “Supreme Court precedent mandates” and “logic compels” the conclusion that cellphone users voluntarily disclose CSLI to their carriers. Slip Op. at 49. His opinion goes on to argue that in all of the Supreme Court decisions involving a “voluntary” conveyance of information, “the defendant knew he was communicating particular information” and “acted in some way to submit the particular information he knew.” Slip Op. at 50-51. Judge Wynn concluded that neither of these preconditions existed with respect to the Graham defendants and, therefore, that they made no voluntary disclosures defeating Fourth Amendment protections. Slip Op. at 58. Finally, recognizing that his finding that the defendants had not voluntarily made disclosures did not itself mean that the Fourth Amendment had been violated, he determined that “[b]y acquiring vast quantities of . . . information, spanning months,” without a warrant, the government had violated the Fourth Amendment. Slip Op. at 63.
A critical reading reveals that neither of the dissent’s two preconditions for voluntary action ultimately protects the Graham defendants or, certainly, privacy, at least in the foreseeable future. It is hardly disputable that in this age of burgeoning digital communication and information storage there is growing public awareness that the use of cellphone and other digital devices involves a high potential for information disclosure to third parties. Just the publicity of the risks attendant with the use of credit cards has raised such public awareness.[iv]
Nor does this risk ever really exist on account of non-volitional actions by participants in the digital age. It can always be argued that some form of voluntary action on the part of the person the disclosed information concerns is involved. In Graham, it was the use of cellphones to send and receive communications. See Smith, 422 U.S. at 744 (“When he used his phone, petitioner voluntarily conveyed numerical [pen register] information to the telephone company . . . .”) (emphasis added).[v] Couple the ease with which action (as opposed to consequences) may be characterized as voluntary with the inevitability of knowing that there now exists an ever increasing risk of disclosure, and there will be no place where anyone can function with any subjective expectation of privacy.[vi]
Though failing to recognize the vulnerability of even its own criteria for “voluntary” action, the dissent recognizes that:
Today, the majority saddles us with a rule that does not distinguish between information an individual himself conveys and information that computerized devices automatically record, generate, and transmit. In other words, the majority’s expansive interpretation of [United States v.] Miller[, 425 U.S. 435 (1976),] and Smith will, with time, gather momentum – with effects increasingly destructive of privacy.
Slip Op. at 57-58 n.8. Plainly, something more is needed to protect privacy than contentions about the reasonableness of subjective expectations or when disclosure of information occurs voluntarily. Even the Graham majority acknowledged that “[t]he quantity of data at issue in this case . . . unquestionably implicates weighty privacy interests.” Slip Op. at 29.[vii] How so, however, if that data, regardless of its dimensions, was voluntarily relinquished by the defendants, as it all was (according to the majority’s view)? Or does the majority’s bow to the growing concern that the government’s exponentially increasing ability to amass and access data — beyond an individual’s control but not his or her most personal interests — suggest that it is only the logic of truncated or misdirected analysis that “compels” or “mandates” the court’s decision disfavoring privacy?[viii]
Upon careful analysis of the opinions in Graham, one may discern the duality that exists in judicial thinking and the law with respect to the standard of “reasonableness” and the role of courts as expounders of the law. That duality and that role are significantly related. In many contexts, the law recognizes that the standard of “reasonableness” has both an empirical and normative dimensions, for example, the standard of reasonable care in negligence actions, subject, however, to the judicially imposed constraints on the scope of reasonableness effected through the availability of judgment as a matter of law.
In one sense, were the government to place cameras in every home, people surely would not, in fact, be able thereafter to subjectively expect to have privacy in their homes. It is the facts that are the determinant of what is reasonable in the empirical sense. Who, on notice that the government had or would, at its discretion, place cameras in their homes, could contend that they expected they would have privacy in their homes? Yet, under constitutional law, as it has developed, and under argument grounded more deeply in discourses on ethics and psychology, it would still be argued that people should be categorically entitled to expect privacy in their homes. Such considerations are the determinant of what is reasonable in the normative (or, sometimes, “objective”) sense.[ix]
The quest under the Fourth Amendment, overlooked or simply missed by all of the opinions in Graham (and leaving, instead, doctrinally confused statements in their wake), has often been and should ultimately be to judicially ascertain and define the boundaries of a range within which government conduct with respect to privacy is acceptable and, otherwise, unacceptable to society. There is no new insight here. Regardless of whether the involved individual’s conduct facilitating the disclosure of information is in some sense voluntary, the courts should consider whether certain areas or activities should be normatively off limits to intrusion by government, that is, as areas where, as a matter of law, individuals should be able to expect absolute privacy and protection from intrusion, except pursuant to a search warrant or its equivalent supported by probable cause.[x] The home and bedroom are two areas long recognized as such.[xi] Whether, because of their now ubiquitous and, consequently, essential use, cellphones should be added to the list is the question around which the opinions in Graham danced but with which they never directly engaged.[xii]
The difficulty in defining normative boundaries for privacy comes in the diversity of human nature on a cultural and individual basis, as well as in the competing interests of the individual and government. The diverse array of amici in Graham objecting to the Government’s search or — for that matter, the dissent by three judges arguing, based on the precedents cited by the majority, that defendants’ expectation of privacy was reasonable — is telling. Were all of these amici and judges really unreasonable in their contentions?[xiii]
Consider also that conduct is voluntary in the legal sense only so long as an individual has a meaningful, not Hobson’s, choice in deciding between alternatives. Isn’t that, at the very least, the informed, ethically and constitutionally evolved meaning with which “voluntary” has come to be understood? It is this consideration, for example, that is at the heart of the unconstitutional conditions doctrine, which precludes conditioning the availability of certain government benefits on the relinquishment of core individual rights. See Agency for International Development v. Alliance for Open Society International, Inc., 133 S. Ct. 2321 (2013); Elrod v. Burns, 427 U.S. 347 (1976); Insurance Co. v. Morse, 87 U.S. 445 (1874). Likewise, did Sophie in William Styron’s novel Sophie’s Choice really voluntarily choose between her two children for death by the Nazis? Is it truly that “logic compels [the majority’s] conclusion,” as Judge Motz said of the voluntariness with which the Graham defendants relinquished their CSLI through their “choice” to use cellphones?[xiv]
To be sure, the choice between communicating or not by cellphones is not so horribly burdened as the mother’s decision in Sophie’s Choice, but what about the choice between living in one’s native country, where it is widely known that the government electronically surveils homes at its discretion in the name of national security and crime prevention — that is, where there is no empirically reasonable expectation of privacy — or leaving that country for one where that intrusion will be doubtlessly prohibited under its legal system, no matter how strongly and broadly the government announces its intrusive policy? In some countries, that is the “choice” today. In the digital electronic age, that may be the choice in this country tomorrow.[xv]
To recognize that there can be sensible argument about what is or is not a reasonable expectation of privacy and, moreover, that there are normative and empirical components to that argument, hardly answers the question in any given case, including Graham — but it does introduce into the argument deeper, more fundamental considerations of the interplay between the needs of government and society, on the one hand, and the needs of the governed and individual interests, on the other. Such an analysis thereby permits taking a clearer and more precise account of current and changing circumstances that bear on those considerations. None of the opinions in Graham makes this distinction between the empirical and the normative, concepts that are, to be sure, often conflated.
Indeed, even the Supreme Court itself observed in Kyllo, on which the Fourth Circuit’s decision relied, that a “search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Slip Op. at 6, quoting Kyllo, 533 U.S. at 33 (emphasis added). If the reasonableness of an individual’s expectation of privacy is subject, however, to what society recognizes as reasonable, then what is really at issue has nothing to do with the individual’s subjective expectation. Rather, an objective — that is, normative — determination, society’s sense of the matter, as divined by judicial process, is the controlling undertaking.
This brings us to a few observations about the seemingly conflicting roles of the judiciary bandied about by the various opinions in Graham. The majority, abnegating any role for itself in shaping or influencing the debate, tells us of its obligation to follow the precedent of a higher court and, worse, claims its decision is compelled by logic. (This, in the face of three other judges and a host of amici who were being, what, illogical? Really?) Rather than what seems like a veiled apology for its decision, would not it have been more constructive and illuminating, if the majority did have its own doubts, to, at least, clearly say so, even if it believed it was bound by the views of a higher court, rather than suggesting that the decision in Graham was preordained?[xvi]
For his part, Judge Wilkinson finds another also ultimately defective excuse for declining to exercise — or, at least, express — judicial judgment. He advances not merely expounding the law generally but also, in particular, a collaborative effort of the three branches of U.S. government in the high calling of ascertaining constitutional meaning. Today’s Congress, competent? To construe the Constitution? Rightfully, the dissent pithily answers that “although I appreciate my colleague’s civics lesson on the institutional competence of Congress, I would remind him of one of our own: judicial review.” Slip Op. at 66 n.14, citing Marbury v. Madison, 5 U.S. 137, 178 (1803), alluding to Justice Marshall’s pronouncement, speaking particularly of the Constitution, that “[i]t is emphatically the province and duty of the Judicial Department to say what the law is.” Id. at 177.
The reasonableness of a search depends “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977), quoting United States v. Brignoni-Ponce, 422 U.S. 878, 878 (1975). When what is at stake is the constitutionally protected interest of an individual or minority against the interests of the majority, the Supreme Court itself acknowledged decades ago that the Judicial Department was best situated to balance those interests in any given case. See United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1934) (recognizing a need to consider “whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”).
The ultimate prerogative to choose, responsibly and thoughtfully exercised, between the individual and the majority (or society) is only safely left to the Judicial Department — itself, over time, beholden to the majority, but still the branch of government least subject to the vagaries of time and circumstance.[xvii] In this regard, whether or not one agrees or disagrees with the majority’s decision in Graham, it (complemented by Judge Wilkinson’s cheering for a nouveau view of relationships among the departments of government in determining constitutional meaning) dangerously loses sight of the Judicial Department’s and, indeed, each judge’s, place to tell us, when important rights are stake, at least what the law should be, not what shifting winds tell us at the moment that it is.
[i] United States v. Graham, 796 F.3d 332 (4th Cir. 2015). There are two type of CSLI: historical CSLI, such as that involved in Graham, which is historical information stored in a cellphone user’s account records maintained by the user’s cellphone carrier, and real-time CSLI, which allows a cellphone to be used as a real-time tracking device of its user. The panel’s decision below in Graham was the subject of an August 21 post by Jonathan Biran.
[ii] As of this posting, no petition for writ of certiorari had been filed in the Supreme Court.
[iii] Explaining his dual position, Judge Wynn stated:
In accordance with the practice of my colleague, see United States v. Graham, 796 F.3d 332, 378 n.1 (4th Cir. 2015) (Motz, J., dissenting in part and concurring in the judgment), I have styled this opinion as a partial dissent. Even though I would affirm the Defendants’ convictions under the exclusionary rule’s good-faith exception, I take issue with the majority’s determination that there was no Fourth Amendment violation, a conclusion which “will have profound consequences in future cases in the Fourth Circuit.” Id.
[iv] It is highly doubtful today that the average citizen is not aware of the risks to privacy attendant with the use of a cellphone or other digital devices; yet, at the same time, the average citizen likely desires some level of privacy protection in connection with such use. The highly publicized and recent cell phone encryption battle between Apple and the United States government evidences this. When users learned that their iPhones stored months of locational data without encryption, Apple, besieged by consumer complaints, revised its operating system to protect consumers’ location information. Apple Inc. Press Release, Apple Q&A on Location Data (April 27, 2011). Thereafter, Apple refused to comply with a court order to create software allowing government access to such information, subject to judicial approval. See Testimony of Bruce Sewell, Encryption Tightrope: Balancing Americans’ Security and Privacy, Hearing before the House Comm. on the Judiciary, 114th Cong. (March 1, 2016); Timothy B. Lee, Apple’s Battle with the FBI over iPhone Security, Explained, Vox (Feb. 17, 2016); see also Riley v. California, 134 S. Ct. 2473, 2488-89 (2014) (“Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.”).
[v] Because it is doubtful that the petitioner in Smith was aware that the numbers he dialed could be detected with a pen register, it is difficult to reconcile the level of user knowledge that sufficed for “voluntary” action in Smith with the level of user knowledge that the dissent in Graham would require for conduct to be voluntary. Rather, the petitioner in Smith surely had no more knowledge of pen registers than did the defendants in Graham of CSLI.
[vi] In this regard, although the matter of voluntary disclosure was not squarely before the Supreme Court in Riley v. California, Graham is implicitly at odds with that decision, which recognized that the Fourth Amendment protects the privacy of all information stored through the use of cellphones, even though such use often and unavoidably entails the storage of not just locational but also content information in (and, arguably, therefore, disclosure to) the network servers of telecommunications carriers and other third persons. 134 S. Ct. at 2491 (“Cell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference.”). In Riley, the Supreme Court held that, absent some other recognized exemption from the warrant requirement, a warrant supported by probable cause was required to search a cellphone found on a person even incident to arrest.
[vii] See also Riley, 134 S. Ct. at 2490 (“[I]t is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives – from the mundane to the intimate.”).
[viii] Compare United States v. Jones, 132 S. Ct. 945 (2012), in which the Supreme Court found unconstitutional conduct in the government’s secret and four-week installation of a GPS tracking device on a suspect’s personal but openly accessible vehicle. Suppose that the government had simply secretly tailed the suspect’s vehicle instead? Under the majority view in Graham, there would be no constitutional violation, because there is a difference between government surveillance (using GPS technology) and an individual’s voluntary disclosure of information to a third party (driving in public). See Slip Op. at 30, but citing Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring), 964 (Alito, J., concurring in the judgment), to distinguish long-term tracking of conduct in the open (unconstitutional) from short-term tracking of such conduct (constitutional). Why? Is it not just as much the suspect’s choice to drive around for weeks in the open (rather than leave his car in the garage) as it is to use a cellphone?
[ix] It is in the normative sense that the Supreme Court spoke in Riley v. California, when, after emphasizing that “the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’” 134 S. Ct. at 2482, quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006), the Court restated that “[w]here a search is undertaken by law enforcement . . . , reasonableness generally requires the obtaining of a search warrant.” 134 S. Ct. at 2482, quoting Veronica School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995).
[x] Because “[t]he Fourth Amendment protects people not places . . . what [an individual] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 361 (1967) (search occurred where FBI agents overheard and recorded defendant’s conversations from inside a public telephone booth) (emphasis added); see also Kyllo v. United States, 533 U.S. 27, 33-34 (2001) (“It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology. . . . The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.”) (emphasis added). Likewise, while Graham was pending en banc review, the Maryland Court of Special Appeals decided State v. Andrews, 227 Md. App. 350 (2016), holding that the use of cell cite simulators to stimulate cellphones to transmit real-time CSLI (see discussion, supra, n.1) constituted a search for Fourth Amendment purposes. Because, according to the court, “the Fourth Amendment protects people and not simply areas, Katz, 389 U.S. at 353, we conclude that people have a reasonable expectation of privacy in real-time cell phone location information.” 227 Md. App. at 393. More to the point, the court “determine[d] that cell phone users have an objectively reasonable expectation that their cell phones will not be used as real-time tracking devices . . . .” Id. at 394-95 (emphasis added). The Andrews decision was the subject of an April 15 post by John Grimm.
[xi] In this respect, though apparently not argued by the defendants in Graham, substantive due process may also inform the normative limits of reasonable searches and seizures under the Fourth Amendment. As the Court observed in in Lawrence v. Texas, 539 U.S. 558 (2003), overruling Bowers v. Hardwick, 478 U.S. 186 (1986) (declining to recognize a substantive due process right to engage in homosexual sodomy):
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.
Lawrence, 539 U.S. at 562.
[xii] It bears emphasis that without a normative recognition of privacy for personal cellphone transmissions, whether metadata (e.g., locational data) or content data, readily accepting arguments that the use of cellphones is voluntary, would, in most, if not all, circumstances, protect government from claims of an unlawful search when it intrudes on those transmissions without a warrant or its equivalent. Acquisition of locational data can be just as intrusive as acquisition of content data. See Riley, 134 S. Ct. at 2490 (“Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building. See United States v. Jones, 132 S. Ct. 945, 955 (2012) (Sotomayor, J., concurring) (‘GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.’)”).
[xiii] Consider also the recent and unanimous panel decision for the Maryland Court of Special Appeals in State v. Andrews, discussed supra, n.x.
[xiv] Even as far back as Katz, at the dawn of modern telecommunications technology, the Supreme Court stated that “[t]o read the Constitution more narrowly is to ignore the vital role that the . . . telephone has come to play in private communications.” 389 U.S. at 352.
[xv] As Supreme Court Justice Douglas presciently observed decades ago:
We are rapidly entering the age of no privacy, where everyone is open to surveillance at all times; where there are no secrets from government. The aggressive breaches of privacy by the Government increase by geometric proportions. Wiretapping and “bugging” run rampant, without effective judicial or legislative control.
* * * * *
Taken individually, each step may be of little consequence. But when viewed as a whole, there begins to emerge a society quite unlike any we have seen— a society in which government may intrude into the secret regions of man’s life at will.
Osborn v. United States, 385 U.S. 323, 340-43 (1966) (Douglas, J., dissenting).
[xvi] Because precedent, at most, only binds their decisions, not their reasoning expressed on the road to decisions, even lower court judges may lead as well as follow in the work of establishing what the law should be. See Riley, 134 S. Ct. at 2490-91, analogizing the search of one’s home incident to an arrest to the search of a cell phone incident to an arrest by quoting Learned Hand in United States v. Kirschenblatt, 16 F.2d 202, 203 (2d Cir. 1926) (Hand, J.) (“a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.”).
[xvii] Likewise, as the second Justice Harlan thoughtfully and prudently observed in his dissent to the Supreme Court’s avoiding, in Poe v. Ullman, 367 U.S. 497 (1961), a decision on the question of whether a state law restricting contraception was unconstitutional:
[T]hrough the course of this Court’s decisions [substantive due process] has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. . . . The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.
Id. at 542 (Harlan, J., dissenting). With its adoption by the Court in Planned Parenthood v. Casey, 505 U.S. 833, 848-49 (1992), Justice Harlan’s words now have precedential weight.