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Thursday, March 23, 2006

People of Reason, Men of Results, and the Man with the Power

In Georgia v. Randolph, a 5-3 decision decided yesterday, John Roberts stood with Scalia and Thomas to argue for limited Fourth Amendment protections. The court's four "liberal" Justices -- liberal only when considered relative to the far-right bloc of Roberts, Scalia, Thomas and Alito (who did not get to vote in this case due to his too-recent appointment to the court) -- sided with the conservative, yet comparatively moderate Justice Kennedy in the majority. The Court held that warrantless searches of home executed with the consent of one co-occupant violate the Fourth Amendment when another co-occupant expressly refuses police entry at the front door.

This heartening case is noteworthy in muliple aspects.

First, it was Chief Justice Roberts' first dissent. Predictably, he showed himself to be a strong ally of the Scalia/Thomas wing of the bench, as I told everyone on this blog would be true 7 months ago. He also showed himself to use crass politics as a way to distract people from the way he was undermining our rights -- the classic "shell game" trick of far-right conservatives. Roberts argued that the majority's decision would harm women and help domestic abusers by making it harder for police to enter their homes. This is not only a false argument, but it is a Rehnquistian results-oriented one that implores the Court to disregard the law in order to "punish the bad guy." The argument is false because if there really is domestic abuse apparent, the police can constitutionally enter to protect the woman without going upstairs to search for drugs (such as is the case here.) Roberts deceptively acts as if a search and an entrance to protect a victim of abuse are the same thing. The argument is further false because the police can still search upon probable cause or upon exigent circumstances, something that is likely to exist if abuse is clear. Roberts is no champion of women's rights and I trust that we will see further examples of this in the future that will make his dissent in this case look like utter hypocrisy.

Second, the far-right conservatives continued their long march to divorce the warrant clause from the Fourth Amendment. As a general rule, police searches without a warrant violate the Fourth Amendment. Any reasonable search without a warrant must fit into one of the many exceptions to the warrant clause. When a resident in his own home explicitly and unambiguously denies police entry, they should have to have either 1) a warrant or 2) probable cause. These exceptions have already been expanded too far and the Court did a great thing in denying yet another exception, especially when it would have led to more intrusive searches in the privacy of one's home.

This situation is distinguished, and rightfully so, from when a resident would have denied police entry but wasn't around to do it. It's ok for a person to allow the police into their home to search, even if there are co-occupants not nearby to consent as well, but the situation changes drastically when the police receive an explicit denial from a co-occupant. Such is at the very core of the Fourth Amendment. In this modern era of alternative living situations, the idea that the permission of one co-occupant is enough to make a search reasonable despite the explicit denial of all others in the home would severely erode the Fourth Amendment. Where would this line be drawn? Would it be ok for children to consent to home searches? For the elderly? For the mentally-challenged? For the vindicitve roommate?

The police are still free to search these homes; they just need to have probable cause or a warrant. Without either, the adoption of the dissent's "free pass" theory would lead to massive fishing expeditions and a marked decrease in the protections and privacy of the home. When you consider that the Supreme Court has already established that consent searches are valid even if the one who gives consent is not a true co-occupant as long as the police reasonably believe that person to be a co-occupant, the results of the dissent's position are frightening. Not only can strangers give permission for police to enter your home, but now they could do it over your explicit objections while you stand in the front door. Fortunately for those of us who love liberty and despise tyranny, the majority did not adopt this radical position.

Finally, and most importantly, the reality that the Supreme Court is now controlled by the whims of one man displayed itself to the public. That man is Justice Kennedy. Although the so-called "liberals" are really moderates who often side with the conservatives (Souter and Ginsburg are simply not liberal in their view of the criminal justice system, for example), and we cannot yet be certain of the idiosyncrasies of Alito and Roberts, the situation for the most part is a court divided 4-4-1. In the 90s we had a court divided 4-3-2 with O'Connor and Kennedy in the majority for most decisions. As a result, these two Justices alone literally rewrote entire swaths of Constitutional Law. With O'Connor gone, the balance of power lies only with Kennedy.

Justice Kennedy is a Republican appointee and lifelong conservative. People remember his protection of the right to choose in Casey, his unilteral decision to allow future gerrymandering claims despite the lack of a standard and his opinion in Lawrence v. Texas, and assume that Kennedy is some kind of liberal. Not true. He's also been a vehement opponent of affirmative action, a supporter of ambiguous "partial birth" abortion laws, and violated his oath of office when he wrote a patently fraudulent opinion in Bush v. Gore. (Note -- although Kennedy is not listed as the author of the unsigned majority opinion, is the author according to the book Closed Chambers.) The fact that this great nation's future lies in the hands of this man gives me no comfort. We deserve a court of nine reasonable people, unencumbered by politics and bound only to the law. The polarizing events of recent times have effectively given us a court of one. The results are usually going to be bad and victories such as Georgia v. Randolph should not get us too excited.

FINAL NOTE: I want to thank my friend, colleague and study partner James Fox Corpuz for his kind mention of this blog in his sublime column "The Procrastinator," featured in the official newspaper of USF School of Law, The Forum. James singlehandedly is responsible for The Forum's publication of my article on the horrible consequences of the Alito nomination. James is the rare person who is funny in person and in writing. As longtime readers of this blog will assure you, I am incapable of inserting humor into blogging. Also I hear James plays pretty mean basketball for a short dude. I pray for the day that James sees it fit to unleash The Procrastinator on the web and allow the entire planet access to his irreverent thoughts.

Comments on ""


Blogger Tran said ... (10:41 AM) : 

While I agree with everything you have said, and have often stated the same, in an attempt to be optimistic I cite an old cliche: with great power comes great responsibility.

We can only hope that Kennedy will become aware of the tremedous power that he has been given and take an O'Connor-esque approach. Our constitution was a written compromise among individuals/states of widely varying ideaologies; Kennedy should be aware of this and temper his opinions, subduing his conservative nature, with that compromise in mind.

Optimistically, I am of the belief that all men (and women) can come to have a better nature through the appreciation of their circumstance. While it is highly possible that Kennedy will become the dark lord of the court, pushing forth the conservative agenda, I optimistically hope that in recognizing his new-found power, Kennedy also comes to recognize that his obligation is to all people of this country.


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