The Supreme Court's 'Reasonable Expectation of Privacy' Test Defies Expectations
What the left has said
Inferred left“Courts' Weak Privacy Standard Leaves Americans Exposed to Government Surveillance”
From a civil liberties perspective, the 'reasonable expectation of privacy' test has been a slow-motion failure, retreating ground every time a new surveillance technology becomes widespread enough that courts declare privacy expectations unreasonable. Left-leaning commentary on this issue tends to foreground who bears the cost of that erosion: low-income communities, communities of color, and political dissidents who face the most aggressive law enforcement attention. The structural critique is that the Katz framework handed the government a self-fulfilling prophecy. Normalize mass surveillance long enough and no court will find a reasonable expectation against it. That Gorsuch, a conservative justice, is raising the alarm creates an unusual coalition moment, but left-leaning advocates emphasize that the fix needs to be durable and grounded in genuine protection rather than a property-rights framework that could leave renters and others with fewer protections than property owners.
What the right says
Lean right“Gorsuch Targets Flawed Privacy Test That Empowers Government Overreach”
For Reason and the broader libertarian-right tradition, Gorsuch's critique of the Katz 'reasonable expectation' standard is exactly the kind of originalist course-correction the Court should be making. The argument is straightforward: a test that defers to evolving social norms rather than fixed constitutional text gives judges and prosecutors too much room to rationalize expanded government power. Gorsuch's property-rights alternative appeals to readers skeptical of judicial improvisation, anchoring privacy protection in the kind of concrete, historically grounded rights that don't evaporate when the FBI buys a new surveillance tool. This framing casts the current doctrine as a product of activist jurisprudence from the 1960s that has been stretched ever further to accommodate the surveillance state. The solution, in this view, is not more judicial discretion but less, returning to a constitutional baseline that government agents cannot cross regardless of what surveillance technology makes technically possible.