Sklansky's Postscript on Katz and the Surveillance of Homosexuals

David Alan Sklansky, University of California, Berkeley School of Law, has posted A Postscript on Katz and Stonewall: Evidence from Justice Stewart's First Draft, which is forthcoming in the UC Davis Law Review 45 (2012).  Here is the abstract:

In an article published in 2008, I suggested that anxieties about homosexuality and its policing lay behind and helped to shape the criminal procedure decisions of the Warren Court - in particular, the landmark Fourth Amendment ruling in Katz v. United States. Katz is the telephone eavesdropping case in which the Supreme Court famously declared that the Fourth Amendment protects "people, not places"; it is the basis for the modern rule that whether police activity constitutes a "search" under the Fourth Amendment depends on whether it intrudes on a reasonable expectation of privacy, not on whether it involves a physical trespass. I argued in 2008 that when deciding Katz at least some of the Justices may have had, in the back in their minds, the then-widespread police practice of spying on men in public toilet stalls to detect homosexual sodomy. Katz plainly helped to end that practice. I suggested that this result was one that the Court, or at least some of its members, would have foreseen and welcomed, but that it was not something the Court felt comfortable addressing directly.

When my article was published, the papers of Justice Potter Stewart, the author of the Court's opinion in Katz, were still under seal. Pursuant to Justice Stewart's directions, they became public with the retirement of the last Justice to have served with Justice Stewart. That turned out to be Justice Stevens, who stepped down from the Court in 2010. The Stewart Papers include the first draft of what eventually became the Court's opinion in Katz, and that draft contains a small bit of additional support - suggestive but very far from conclusive - for the argument I made three years ago. This short paper describes the new evidence and includes, as an appendix, a photographic reproduction of Justice Stewart's first draft in Katz.