March 22, 2006

"Reveal[ing] the strains behind the surface placidity and collegiality of the young Roberts court."

The first dissenting opinion written by Chief Justice John Roberts provides an occasion for Linda Greenhouse to portray the mood of the Court.

UPDATE: Orin Kerr -- who promises much more blogging on the case, Georgia v. Randolph -- theorizes about four models of Fourth Amendment interpretation.

24 comments:

downtownlad said...

Rather scary that three Supreme Court justices think that some random roommate can override my 4th Amendment rights . . .

Troy said...

This was especially rich coming from Souter:

"We have, after all, lived our whole national history with an understanding of the ancient adage that a man's home is his castle," Justice Souter said. "Disputed permission is thus no match for this central value of the Fourth Amendment."

...unless a private developer wants to seize your property for a strip mall to raise sales tax revenues. (I know 4th/5th A. blah blah).

MadisonMan said...

....some random roommate can override my 4th Amendment rights

Who has roommates that are random?

When I've become/looked for roommates, the process was long and involved. It's true that we didn't discuss search and seizure issues, but I had a good idea of where they stood on many issues, and vice versa, before roommate-ness began. If you have roommates overriding your Constitutional Rights, that's probably the least of your worries.

Reggie said...

"Rather scary that three Supreme Court justices think that some random roommate can override my 4th Amendment rights."

I think it would be more unfair if I couldn't give police access to MY apartment because my druggie roomate didn't want to get busted. As a college freshman, I got stuck with a drugged out loser of a roomate, and to say that I couldn't have let the cops in to MY place, because my roomate wants to hide his drugs infringes on MY rights.

You've got two people fighting over control of shared property. Which side to err on? Side with the one who will almost always have a bad motive, or the one who is more likely a victim, or is doing the right thing by exposing the crime of his roomate?

Too bad for all you battered wives.

faster said...

This non-unanimity should surprise no one; it was bound to happen sooner or later. I find it interesting how the commenters so far are so eager to have the cops search their home. Of course there are occassions when I might want the same, but as a general rule shouldn't we err on the side of privacy?

Goesh said...

I'm troubled with residency being on equal footing with ownership. I own a home, invite my lover to live with me, her name is not on the property deed nor the utility and insurance contracts, she moves in and the next day I find her crack cocaine in my home and call the cops. She tells the cops she doesn't want them in 'our' home and they have to leave? Better yet, if after the cops leave, I order her to leave, we argue and she calls the cops saying I was intimidating and threatening to kill her, they respond and take me out of my home on a warrantless arrest. According to Souter, a remedy for domestic violence was still provided by this ruling.

Darn right this is a set-back for battered women. If a call originates from outside the home, and many do, all the batterer has to do is meet the cops at the door, intimidate the spouse into staying out of sight, tell the cops all the neighbors have been harassing and hateful and are trying to cause trouble again, the wife is tired and asleep and they are not wanted or needed in the home. End of story.

cokaygne said...

Maybe it is because I'm not a lawyer, but I don't think that this issue offers an easy answer. In this instance the SCOTUS should just decide the case and move on. Whoever they side with on this one is OK with me. That's what we pay them to do. The one thing they should not do, however, is engrave this decision in stone and make it apply all the time to all similar cases. That is what gets them in trouble.

How hard would it be for Congress or a state legislature to write a statute that simplay says, "in cases where more than one person (any exemption for children?) occupies a dwelling all (a majority?) must give consent to a warrantless search" or, if you prefer, "the consent of only one is required"? That is, after all, what we pay legislators to do.

So, Roberts was on the losing side, big deal. Media wouldn't have much to write about if 9 people agreed all the time on everything.

Too Many Jims said...

"Too bad for all you battered wives."

Did you bother to read the article that our hostess linked to? Did you bother to read Breyer's concurring opinion?

Seven Machos said...

Crazily, I don't remember this kind of article about fissure on the court being written when, say, Ginsburg was a first-year justice. Why do you suppose that is?

SippicanCottage said...
This comment has been removed by the author.
Balfegor said...

I find it interesting how the commenters so far are so eager to have the cops search their home. Of course there are occassions when I might want the same, but as a general rule shouldn't we err on the side of privacy?

I have not read the opinion, but from the comments here, I don't think it's strictly a privacy issue. It's that two people share joint control and access over a particular space, and one of them is willing to allow the police in, while another is not. That is, they have a shared "privacy" over that space, in a sense, and if the one chooses to waive that privacy, then the other's privacy (the same privacy interest) is in effect waived as a result. We could compare the situation with a partnership, where all the partners can act to bind the partnership. Or with vampires, where the vampire can't come in until you invite him, but once he's in, he's in for everyone, not just the one who invited him.

Balfegor said...

Why do you suppose that is?

Because it was still the Rehnquist Court at the time? Now we've got two new justices in a matter of months and the Chief Justice has changed over. It's the Roberts Court now.

Nathan Hall said...

I love how the reporter tries to psychoanalyze the Justices as if they'd had some personal falling out. They're debating the merrits of different positions, and stating their respective cases as strongly as they can. But I see no evidence in any of the opinions, concurrences or dissents of any personal strain. This is a non-story (except that the case itself is rather interesting).

Freeman Hunt said...

a man's home is his castle

But apparently not, in this case, his wife's castle.

I don't understand the reason for reliance on social convention, and I agree with Roberts that the social convention cited is not hard and fast. I think it's pretty common, especially among couples who don't get along, that someone invites someone else into the house over a spouse's protests.

Goesh said...

Roberts said the police were given no guidance via this ruling. To my non-lawyer brain it raises major probable cause issues for the police and domestic violence situations. Calls from neighbors are hearsay until the cops can gain admission to a residence. Neighbors do call you know when they hear screaming and what sounds like a body being bounced off the walls. If the cops hear no commotion upon arrival, see no disarray from the doorstep looking in nor signs of violence upon the person answering the door, they have no recourse but to leave if so requsted by the adult resident of the home answering the door. In short, any woman beaten in the back bedroom, ordered to stay there and be quiet with the perpetrator acting calm and rational with the police, remains a victim and has no recourse to protection. She could be bloody and half dead and as long as the cops don't see her or any evidence of violence they cannot enter without permission of the perpetrator. Domestic violence literature is rife with documentation of the police historically being reluctant to intervene in domestic violence. Who can imagine the police taking issue with this ruling? Get real - where's the guidance? Mr. Roberts goes to Washington and dissents to himself while standing at the urinal in the men's room...he may as well be pissing in the wind.

brylin said...

Isn't the "norms" model a very subjective standard?

Whose "norms" are appropriate?

Yours or mine?

brylin said...

Let me suggest a fifth model:
that the decision is political, based on the political leanings of the justices.

And didn't Kerr clerk for Kennedy?

So under the political model theory, Kerr will find a way to support Kennedy's decision.

Seven Machos said...

Golly, balfegor, I'm sure you are right. If you'll just show me how Judge Alito contributed to this decision, or has contributed to any decision since his confirmation, I'll be satisfied.

I'll be waiting.

Balfegor said...

Golly, balfegor, I'm sure you are right. If you'll just show me how Judge Alito contributed to this decision, or has contributed to any decision since his confirmation, I'll be satisfied.

Your sarcasm notwithstanding, I don't see how my explanation of why people are interested in seeing a new era and a new tone in the court is in any respect unreasonable. There are two new justices, and there is a new chief, and a new reign-name (or whatever the term for it is), and peoples' thoughts turn naturally to the shift and the change. No?

Seven Machos said...

Why wasn't the press so interested in the jurisprudence of Ginsburg? I mean, I think she's pretty mediocre and that there's little to write about, other than her fringe-belief that other countries can somehow influence what is written in our Constitution.

The fact is: the press wants to write about the new Court because they think it will be more conservative, and they think this is really bad, and they expect there to be some spectacle. Even Gashouse over at the New York Times expects to see fireworks or something.

The cases thus far have been nothing earth-shattering at all.

MadisonMan said...

The fact is: the press wants to write about the new Court because they think it will be more conservative, and they think this is really bad, and they expect there to be some spectacle.

My equally plausible and similarly unsubstantiated theory is that they write these stories because they (or their editors) think the stories will sell papers.

stealthlawprof said...

Alas, some of my fellow conservatives are so eager to support law and order that they ignore the Constitutional text. There is a clear textual preference for warrants before searches. I realize there are necessary exceptions, but to claim consent when the fellow is standing there objecting is bizarre. The arguments that her consent should override his are built on hypotheticals that don't fit these facts and would raise independent grounds for a warrant exception -- exigency, destruction of evidence, etc.

Give credit where credit is due -- Breyer got this one correct. The police could have (and should have)secured the premises and gotten a warrant. Traipsing into the house over the husband's objection, with no applicable warrant exception, the police erred.

Seven Machos said...

Oh, and for the record, I -- another conservative -- also agree that the 5-3 ruling was correct.

Does anyone really think that writing about the Supreme Court sells newspapers? That could the most elitist claim I have ever heard.

Fritz said...

Hello??? This decision is Lawrence v Texas, the cafeteria constitutionalists are getting ready for their European vacations. This was the 4th Amendment right of privacy to do your coke. Precedent was the liberal buzz word during the confirmation hearings, yet that falls to the wayside when the Greenhouse gasses are present. Even my 16 year old son recognized the relevance of the cocaine. Roberts was forced to point out the obvious contradiction in this case. The legislators don't like drug laws, had she mentioned a gun, this case would have never made it to the Court.