How Defenders Of NSA Dragnet Surveillance Are Stretching A 1979 Ruling To Pretend It's Constitutional
from the not-quite dept
Defenders of the legality of the NSA’s dragnet approach to surveillance often point to the concept of the third party doctrine, and specifically to the case Smith v. Maryland, in which the Supreme Court said that it was okay for law enforcement to get phone records without a warrant because the information was held by a “third party” and the original caller had no expectation of privacy in data given to that third party. We’ve questioned the legitimacy of the third party doctrine for years, and folks like Al Gore and Alan Grayson have discussed why it’s a stretch to say that the ruling applies to the NSA hoovering up all phone call data.
Jim Harper, who has spent more time than anyone I know thinking about the third party doctrine over the years, has a good post explaining some of the history and why it’s a huge stretch to say that Smith v. Maryland means the NSA can scoop up all data:
On the question of whether surveillance of every American’s phone calling is constitutional, Lee notes how the government and its defenders will rely on a 1979 case called Smith v. Maryland. In that case, the government caused a telephone company to install a pen register at its central offices to record the numbers dialed from the home of a suspected robber. Applying doctrine that emerged from Katz v. United States (1967), the Court found that a person doesn’t have a “reasonable expectation of privacy” in phone calling information, so no search occurs when the government collects and examines this information.
It takes willfulness of a different kind to rely on Smith as validation the NSA’s collection of highly revealing data about all of us. Smith dealt with one suspect, about whom there was already good evidence of criminality, if not a warrant. The NSA program collects call information about 300+ million innocent Americans under a court order.
More importantly, however, Harper points out that the Supreme Court’s more recent decisions suggest that it is moving away from the third party doctrine as established in that Katz case that the court relied on for Smith v. Maryland:
And the Supreme Court is moving away from Katz doctrine, having avoided relying on it in recent major Fourth Amendment cases such as Jardines (2013), Jones (2012), and Kyllo in 2001.
In other words, the facts of the NSA dragnet are extremely different than the facts in Smith v. Maryland, and the Supreme Court itself appears to at least be less willing to immediately give the stamp of approval to any collection of “third party” data as somehow being immune from the 4th Amendment. Defenders of the NSA spying like to just say “Smith v. Maryland” and act like that settles everything. However, it’s far from clear that it applies at all in this case.
Filed Under: 3rd party doctrine, nsa, nsa surveillance, privacy, supreme court
Comments on “How Defenders Of NSA Dragnet Surveillance Are Stretching A 1979 Ruling To Pretend It's Constitutional”
how’s about getting the names of those supporting the NSA (and others) surveillance and keeping the list ready for election time? surely people wont vote back in someone they know doesn’t think that citizens deserve freedom and privacy, will they?
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I know you weren’t trying to be funny, but HA HA HA HA HA.
Seriously, people will “vote Democrat because I’ve always voted Democrat” or “if I don’t vote Republican, the socialists will win”.
Or, “if I vote Republican, they’ll take away my right to kill my baby…Hail Satan” (http://njtoday.net/2013/07/11/opinion-hail-satan-the-new-pro-choice-mantra/)
Or, “if I vote Democrat, they’ll force me to marry a homosexual”.
Voting on an actual issue outside of the hot buttons? Haven’t seen it in my lifetime.
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People need to let go of the two party dichotomy. We’re in this mess because we put ourselves there, allowing them to divide and conquer us over issues they pretend are important to them.
Anyone who honestly believes that no Republican ever had an abortion and that they’re all straight and religious is deluded. And they don’t work any harder than the rest of us.
Anyone who thinks that all Democrats are atheist liberal moonbats who want to make it legal for us to marry homosexual camels or whatever is also deluded. And they’re no more lazy or prone to claiming welfare than the rest of us.
It’s all about control. What they give us is the illusion of choice. The actual choice is between which philosophy, when applied, will hurt the most vulnerable (those unable to move to another state to get away from it).
Let me put it another way: would you like increased welfare payments and the right to control your own body with your surveillance?
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It’s really a beautiful system if you’re a statist. They’ve managed to convince everyone that the two sides represent a balance somehow in spite of the massive evidence that both parties always grow government and government power. They just take turns adding money and power to different parts of government and insist that’s ‘balance’ and people buy it.
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Hoo boy. This whole “statist V Libertarian” trope has been exposed any number of times as a ruse by the Koch brothers, etc., to dismantle state-provided protections from rapacious corporations ? who receive the biggest welfare payments of the lot as subsidies.
You’re not fooling anyone who can see through that B.S.
I should also point out that if we didn’t have a state we’d create one to provide the services we need. That’s why minarchists will always be a tiny minority of pretentious jerkoffs (fanning and faving Von Mises or any other proponent of the Austrian School does not make you an economist) who want freedom and security but want to treat the providers as charities or a private enterprise that they can opt into using ? or not. It doesn’t work.
Don’t get me started on returning to the Articles of Confederation or the Gold Standard. I live in the real world.
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Any true libertairan is against welfare payments in the form of subsidies to corporations so you’ve kinda fallen completely flat right out of the gate here.
See through what bs exactly? Are you seriously going to argue that one of the two major parties in the US are actually in favor of reducing the size and power of government? No? Then it’s not BS. You’re just arguing that I’m only espousing that position in bad faith. That’s what’s known as an ad hom argument which you top off later with name calling and, if I may be so bold as to borrow the phrase, you’re not fooling anyone who can see through that B.S.
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Don’t even get me started on the ludicrous sequence of events that is complaining about the illusion of choice in the two party system and then attacking someone for agreeing with you. I mean you literally wrote the same things above only using different words. Apparently I made the grievous error of describing it as ‘statist’ which is some kind of trigger word for you where, after hearing it, you descend into childish tantrums of ad homs and name calling no matter how much someone was agreeing with you.
Re: A list
I agree and recently posted this: “The public needs to know who is ultimately behind this surveillance, the I.R.S. targeting certain groups, and those supporting the eroding of our freedoms. I?m convinced they are one and the same. A list compiled of these politicians, corporations and those with agendas that run contrary to our freedoms. No conspiracy theories even needed here just a list of names of those supporting this erosion of our freedoms under the guise of domestic terrorism. I?m working on such a list.”
It's time...
It’s time for a third party! The democrats and republicans are playing the same old game – they are two men standing under the same umbrella. It’s time to get wet and get under that guys umbrella who just walked by. You know, the successful God fearing constitution following man in the blue suit. He’s right there! America just do it!
Seriously I am done with both parties. We were told that Ross Perrot would have been bad or even dare I say Ralph Nader. Any of them. Well the truth is unemployment is really 20%, inflation is really 8% and debt is off the charts “officially” at 17 trillion. The government is out of control. The police state is here. Things are bad now! A Ventura or a Ron Paul wouldn’t do any worse and would actually restore some of our republic. I would rather have freedom over all else any day.
Re: It's time...
Don’t blame me, I voted for Gary Johnson.
When I sign up for a Gmail account, there is a checkbox which states “I agree to Google’s privacy policy”.
What is included in the privacy policies of websites should indicate the actual expectations of privacy that users have when using those services.
It seems grossly inappropriate to use 1979 phone call expectations of privacy and apply them to modern methods of communication when services using the modern methods of communication have their own privacy policies which indicate the expectations of privacy a user will have from using that service.
Mike–
I know you’re just regurgitating what others say about, and I know you personally don’t understand it well enough to have an educated opinion of your own, but these arguments are really weak.
It takes willfulness of a different kind to rely on Smith as validation the NSA’s collection of highly revealing data about all of us. Smith dealt with one suspect, about whom there was already good evidence of criminality, if not a warrant. The NSA program collects call information about 300+ million innocent Americans under a court order.
How does the number of people matter? Each of those “300+ million innocent Americans” willingly turns over their information to third parties. No language in Smith v. Maryland implies any limitation on the third party doctrine that turns on the number of people willingly turning over information to third parties. Nor does the fact that “there was already good evidence of criminality” have anything to do with the reasonableness of the government obtaining the information. The pen register was not a search because there was no reasonable expectation of privacy in the information that had been willingly turned over to a third party. Whether there was a reasonable suspicion or probable cause was irrelevant since it wasn’t even a search.
And the Supreme Court is moving away from Katz doctrine, having avoided relying on it in recent major Fourth Amendment cases such as Jardines (2013), Jones (2012), and Kyllo in 2001.
That’s a huge stretch. You’d have to give us a lot more than this conclusory statement that lacks any sense of nuance. I know such arguments are good enough for backwards-working folks like yourself, but I need more.
In Kyllo, it was a search because the government used technology to see inside of a home. What you do deep inside your home is not willingly turned over to third parties, so it’s not like Smith v. Maryland. A person who keeps something locked up and hidden from view in his home is manifesting a subjective expectation of privacy. A person who willingly turns over information to a third party is not. Besides, the majority in Kyllo cited Smith v. Maryland and Katz approvingly and explained how Kyllo is consistent with them. That’s hardly “moving away from Katz doctrine.”
In Jones, the Court held that physically attaching a GPS monitor to a car was a search. The majority discusses how Katz and its progeny added to the already-existing tresspassory reasonable expectation of privacy test. Since there was a physical intrusion in this case by the placement of the GPS monitor, the Court was able to find that a search had occurred without the need to apply the more recent Katz doctrine. The Court does approvingly cite Smith v. Maryland, but only to say that it needn’t go down that avenue since a physical search had occurred.
Your best arguments for the NSA surveillance to be searches, though, is going to come from the two concurring opinions in Jones. There appears to be five votes for some kind of “mosaic theory” of the Fourth Amendment. Those votes are in the context of a GPS censor attached to a car, so you have a bit of work to do to translate that to other contexts such as cell-site data or telephone metadata. But I think this line of attack has merit.
In Jardines the issue was whether using a drug-sniffing dog on someone’s front porch was a search. It was. The majority again applied the traditional trespassory theory of searches. And again, the Court approvingly cites Katz and its progeny, explaining that it merely adds to, and not subtracts from, existing doctrine. Just because the Court uses the trespassory test to determine it’s a search doesn’t mean that it’s taking away from Smith v. Maryland.
Sorry, Mike, but this, like so many of your voluminous articles about the NSA surveillance, is just a bunch of conclusory, backwards-worked, and underdeveloped phooey. I think there are good arguments for why the NSA is violating the Fourth Amendment, but you aren’t really engaging with the doctrine and drawing them out.
I think I can add much to your discussion about these issues, but you, of course, are blocking me in some futile attempt to censor me. It’s stupid, bro.
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Oh good, you’re back to your occasional burst of sanity! How long will this one last before you return to inane spam?
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Well, as long as Mike is acting like a Chinese dictator, desperately trying to squelch dissenting views, I think I’ll keep reminding everyone about it. As far as I can tell, Mike has published more words about the NSA surveillance than any other human being on earth. I challenge anyone to name someone who has published more. Mike did the same thing with Swartz and SOPA. That’s great that he’s passionate about these things, but I’ll never understand the publish-more-anyone-else-but-refuse-to-engage-on-the-merits approach that he employs. I haven’t been engaged in “inane spam,” in my opinion. I’m engaged in trying to get Mike to slow down and to discuss the issues he cares so deeply about on the merits. The fact that he’s so dismissive of dissenting views–to the point of literally trying to censor me–tells me that he’s not interested in the truth.
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Go away AJ. It’s just more of the same with you.
Your posts get blocked because YOU…
– insist on spamming,
– insist on trollish and childish behavior.
These posts of yours weren’t censored because they aren’t spammy. But, they will be reported and collapsed by the community because you insist on acting like a dick.
When YOU GROW UP, things will change around here for you.
Not. One. Minute. Sooner.
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Go away AJ. It’s just more of the same with you.
I bring a lot more substance to this discussion than the vast majority of Techdirt posters. And as long as Mike is childishly blocking my IP address, I’ll continue to point out what a censoring douchebag he is.
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You have engaged in inane spam. The person who defines spam is not the person sending it, but the person receiving it. Pretty lame, even for you.
And again, no one is trying to censor you!
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No one is trying to censor me? LOL! Tell that to Mike who is deliberately blocking me from posting because he can’t stand that I’m critical of him.
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Yet you failed to address the other part of my post. Must stand as true then. You are a spammer.. and a liar.
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How does the number of people matter? Each of those “300+ million innocent Americans” willingly turns over their information to third parties. No language in Smith v. Maryland implies any limitation on the third party doctrine that turns on the number of people willingly turning over information to third parties.
What does the number of articles Mike writes about the subject have to do with anything? If the number of people involved doesn’t matter, neither do the number of posts mike writes about it.
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That he’s so prolific on the subject shows that he really cares about it. That’s great. That he won’t discuss any of it on the merits shows that he’s just being an alarmist/extremist who is milking it for clicks. I see no indication that he cares about truth.
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How do you move carrying that massive martyr complex around all day?
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I’m not a martyr. Mike pretends like he’s Mr. Free and Open Internet, Defender of the Anonymous Man Criticizing Those in Power. But when the anonymous critic criticizes him, he blocks IP addresses, keywords, MACs, links, etc. He’s been going apeshit trying to keep me from criticizing him. What he won’t ever do is discuss my criticisms on the merits like a man.
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I see you going “apeshit” trying to declare mike is going apeshit but I, like many others, don’t see mike going apeshit at all. Your posts are here, for all to see..
Its really easy to make a liar out of you.
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Actually, what you do deep inside your home is being turned over to third parties, ALL THE TIME, and we do that with the expectation that the government WON’T be hoovering it up. When i search google, deep inside my home, i am giving info to a third party. Not the government. And I don’t want the government getting what the government has no right to. Just because I willingly hand my info to a third party, doesn’t mean I approved of the government then getting that information from them. Its not a huge stretch of the imagination.
You know, we have an amendment that guarantees our privacy. That includes the government not taking information that doesn’t belong to them. We give our phone records to the phone company, not the government. We give our search queries to the search engines, not the government. The government has no right to ask for that information, collect it, harvest, or whatever.
And again, you aren’t be blocked, you are being caught by a automated system. Stop the stupid spam and it won’t get you caught in a filter. (Willful ignorance isn’t your strong suit)
And the first quote you mention specifies there was likely a warrant. Why was that issue, which to me was the crux of the argument, not addressed, but every other point was? You conveniently left that part out? No?
And again, the Court approvingly cites Katz and its progeny, explaining that it merely adds to, and not subtracts from, existing doctrine.
The argument wasn’t that it subtracts from the existing doctrine. The argument is that they avoided relying on it. No one is saying it was added to or subtracted from. Not sure how you got from one to the other. They aren’t even talking about the same thing, so non-sequitor. So in this case, they used traditional trespassory theory and not the third party doctrine. Not really sure what you are arguing about here.
Sorry, AJ, but this, like your voluminous pastebin dump, is just a bunch of conclusory, strawman, non-sequitor phooey. If you think there are good arguments for my the NSA is violating the Fourth amendment, maybe you should engage with the doctrine and draw them out.
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Actually, what you do deep inside your home is being turned over to third parties, ALL THE TIME, and we do that with the expectation that the government WON’T be hoovering it up. When i search google, deep inside my home, i am giving info to a third party. Not the government. And I don’t want the government getting what the government has no right to. Just because I willingly hand my info to a third party, doesn’t mean I approved of the government then getting that information from them. Its not a huge stretch of the imagination.
Yes, and even the phone calls made by the defendant in Smith were from deep within his home. The difference between Kyllo and Smith is that the defendant in Kyllo did not willingly turn over information about what he was doing deep within his home to third parties, while the defendant in Smith did. As far as disagreeing to a third party turning over what you tell them to the government goes, I don?t think that?s very reasonable. You always know that there?s a chance that something you tell someone else will then be shared by that person to another. If I tell you in confidence that I killed someone, I know that there?s a chance you?ll turn around and turn me in to the cops. The problem I see with this argument is that you?and Mike as well?are trying to constitutionalize the issue. You want to say that it violates the Fourth Amendment rather than just say that it?s a bad idea. A lot of things you share with third parties is protected by either statutory law or contracts with the third party. You don?t have to constitutionalize everything.
You know, we have an amendment that guarantees our privacy. That includes the government not taking information that doesn’t belong to them. We give our phone records to the phone company, not the government. We give our search queries to the search engines, not the government. The government has no right to ask for that information, collect it, harvest, or whatever.
Lots of Amendments have been cited as providing protection for our privacy. The information that you turn over to third parties doesn?t belong to YOU. I think that point gets lost on Techdirt. You have neither ownership nor possession of it. You?re not giving your phone records to the phone company. The phone company is giving its own phone records to the government. You have no possessory interest in them.
And again, you aren’t be blocked, you are being caught by a automated system. Stop the stupid spam and it won’t get you caught in a filter. (Willful ignorance isn’t your strong suit)
The truth is my strong suit. Mike is willfully and intentionally blocking me from posting. I?m not caught in some automatic spam filter. For a while there he was blocking even phrases that I tend to use, like ?run away? or ?bawk.? Those blocks were lifted as of yesterday, but the IP blocking remains in place. He was also blocking IP addresses as fast as I could switch to a new one. That wasn?t automated. That was deliberate censorship. I?m using a service now with tens of thousands of IPs. If he is still playing whac-a-mole, I don?t know. I do know that he blocks many, many anonymizing services, including TOR, despite pretending to care about a free and open internet.
And the first quote you mention specifies there was likely a warrant. Why was that issue, which to me was the crux of the argument, not addressed, but every other point was? You conveniently left that part out? No?
If there was a warrant in Smith, then there would have been no need for the Court to discuss whether there was a search and a warrant was needed. Think about it. There was no warrant in Smith. That was the whole point. The article Mike quoted that suggests otherwise is just confusingly drafted.
The argument wasn’t that it subtracts from the existing doctrine. The argument is that they avoided relying on it. No one is saying it was added to or subtracted from. Not sure how you got from one to the other. They aren’t even talking about the same thing, so non-sequitor. So in this case, they used traditional trespassory theory and not the third party doctrine. Not really sure what you are arguing about here.
They didn?t avoid relying on it. They used another test that they thought fit better. When there is in fact a trespass, there is no need to look past the traditional trespass theory of search. The argument being made in the article Mike quoted is that the Court is moving away from the Katz test. That?s nonsense. That?s like saying, in the copyright context, that if the Court decides a case based on the first sale doctrine, then the Court is moving away from fair use. It?s a stupid argument. They are different tests, and they will apply differently under different sets of facts.
Sorry, AJ, but this, like your voluminous pastebin dump, is just a bunch of conclusory, strawman, non-sequitor phooey. If you think there are good arguments for my the NSA is violating the Fourth amendment, maybe you should engage with the doctrine and draw them out.
My pastebin post in case people don?t get the reference: http://pastebin.com/5VUv7utm
I can post that link now, but up until recently it had been blocked by Mike?s censorship brigade. Funny how he goes out of his way to block dissenting views and you guys all support him on it.
As to your point, my pastebin post is anything but conclusory. Mike did in fact say that the crime Dotcom et al. was charged with is not really even a crime. I pointed out that this was wrong, and cited chapter and verse the exact crime he is charged with. Mike then changed his story and said that even though it?s a crime in theory, that crime can?t be proved in Dotcom?s specific case. I responded to this, pointing out the exact specific criminal infringing act that is alleged in the indictment. Mike then ran away from the conversation rather than engage in any rebuttal.
If you want to discuss that pastebin post on the merits, I?m game. Can you actually refute even one single sentence from it? I’m happy to discuss it with you, Mike, or anyone else. I won’t run away and won’t spout weasel words.
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The information that you turn over to third parties doesn?t belong to YOU.
Which is why I find Ashdown’s comments re-assuring:
When you trust your data with XMission, it becomes my ?papers and effects? and I will not turn over any information without a proper court-signed warrant.
( http://transmission.xmission.com/2013/06/10/the-nsa-and-xmission )
Why aren’t the phone companies demanding specifically targeted warrants.
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That’s the right question, I agree. Though, if memory serves, corporations don’t have the same Fourth Amendment rights as actual persons. If XMission is a corporation, then it may want to consider the extent to which the Amendment applies to it.
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If citizens united holds that the government cannot restrict corporations from speech via the 1st amendment, how does a corporation not get the same protection of the 4th amendment?
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If you’re being blocked, how come I could see this lucid moment of yours, AJ?
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How do Chinese dissidents get their voice heard when their oppressive dictator goes apeshit trying to silence them? I’m just following their lead.
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Just how much “privacy” exists in a public setting? Katz stated “actually, quite a lot”. Smith has always seemed to me to be a narrowing of Katz’s broad principle.
Not at all clear to me how one draws a line between Katz’s broad proscription and Smith’s narrow exception to conclude that Katz is falling out of favor and 4th Amendment doctrine now reflects “Katie, bar the door”.
I can discern nothing in recent SCOTUS decisions that “trespass” is now the guiding principle and Katz is past-tense as precedent.
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It matters because the problems the third party doctrine presents really shines bright when the doctrine is used to spy on everybody.
The third party doctrine means that there is literally no such thing as privacy, and the government can legally access everything. How can that be constitutional?
Also, how an the third party doctrine even make sense if there’s a privacy policy? If a company says “we’ll keep you data secret unless we get a court order”, doesn’t that create an expectation of privacy? And yet, according to the third party doctrine, it does not. That’s just crazy thinking.
of the lawyers, by the lawyers, for the lawyers
meh secret court of love
Hey agent 001 , “i got an idea , see how vague this ruling and law is ?”
Agent 002 , “ya what of it…:
Agent 001: “well we could get all our buds jobs and become super powerful blackmailers and make the world do as we want….teehehee”
Agent 002: “can i get rich and have a hotty wifey”
Agent 001: “yup just dont tell anyone we are doing it ok”
meh secret court of love( part 2)
Agent 001 : “Hey judge howz it hanging bro”
Judge 003: “not bad dont seem ot be doing as much to justify a wage increase these days…..”
Agent 001:”Hey me and Agent 002 had an idea we make a secret court and get you guys all the cash you need (wink wink ) and you do it for us too….”
Judge 003: “hrm might not be legal, but if its secret or national security the suckers won’t know right ( nudge nudge )”
Agent 001: nods, “hehe ya bro now ya got it….”
What I Thinks...
I would tell you what I think of this whole mess, but I’m afraid of the NSA. – ITWARZ
meh secret court of love( part 3)
Agent 001: “hey agent 001 this site techdirt they giving us bad pr”
Agent 002: “want me to go beat up and arrest someone do ya”
Agent 001: “na we just get some dum people we cna brainwash to post stuff we like heard and seen”
Agent 002: “ahh then it will look like everyone is on our side”
Agent 001: “yup and its cheaper then tossing the buggers into gitmo”
@24
How do you handle all the pay cheques form the nsa….wiht a good moral mind?
The whole “expectation” is such a flimsy concept anyway. Dear NSA, I expect my communication to be private and only shared with indented recipients. There is my expectation of privacy straight from the horse’s mouth, so please stop spying on me.
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Sorry thats not “reasonable”
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It’s an outright scam. Once someone violates your privacy in a particular way, you no longer have a “reasonable expectation” of privacy there. So the line of thinking guarantees that we are stripped of all privacy in the long run.
I DO expect a certain amount of privacy by “turning over” information to Verizon, as a Verizon customer bound by contract to THEIR published privacy policies.
(I do not in fact “turn over” any information, I simply use a service that “collects” this information about me. I never actually gave them anything, they just took it as they say they will in their policy below)
“Information Collected When You Use Verizon Products and Services:
We collect information about your use of our products, services and sites. Information such as call records, websites visited, wireless location, application and feature usage, network traffic data, product and device-specific information, service options you choose, mobile and device numbers, video streaming and video packages and usage, movie rental and purchase data, and other similar information may be used for billing purposes, to deliver and maintain products and services, or to help you with service-related issues or questions. In addition, subject to any legal restrictions that may apply, this information may be used for other purposes such as providing you with information about product or service enhancements, determining your eligibility for new products and services, and marketing to you based on your use of your products and services. This information may also be used to: (1) manage and protect our networks, services and users from fraudulent, abusive, or unlawful uses; and (2) subject to consent practices described in this policy, help us improve our services, research and develop new products, and offer promotions and other services. This type of information may be aggregated or anonymized for business and marketing uses by us or by third parties.”
http://www22.verizon.com/about/privacy/policy/
Unless the NSA intends to market its products or services to me, I see a breach of their own stated policies.
Isnt your government supposedto represent you?
You know the apathy of the rest of the world wont last forever…
“How Defenders Of NSA Dragnet Surveillance Are Stretching A 1979 Ruling To Pretend It’s Constitutional”
How can a supreme court decision be unconstitutional? Isn’t that kind of why they are there?
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The legal fiction is that what the supreme court says is constitutional actually is. But it’s just a fiction — we all pretend that this is so out of practical reality.
However, there have been many instances where the supreme court has ruled that a prior decision that something was constitutional was wrong, and that thing is not actually constitutional.
In the end, the only thing that determines what’s really constitutional is the constitution. The constitution was intended to be clear enough that we don’t need it to be “interpreted” by the government (requiring that makes the whole point of the constitution moot).
So, yes, supreme court decisions can absolutely be unconstitutional. But since there’s no court to appeal to, this has little effect in the legal world.
As citizens, though, it’s really important that we don’t forget that the court is very fallible.