So Much For Collegiality...

A catfight broke out at the Supreme Court today.

Today's Supreme Court opinion in Georgia v. Randolph addresses whether the consent of one co-occupant, over the objection of a physically present co-occupant, permits a warrantless entry by police to seize evidence. The Court, in a 5-3 Souter decision (Justice O'Connor participated in the initial argument, but her vote (or that of Justice Alito for that matter) was irrelevant to the outcome of the case), held that it did not. The majority consisted of Souter, Stevens, Breyer, Ginsburg and Kennedy, while Roberts, Scalia and Thomas dissented.

Whether or not you are interested in Fourth Amendment law, this opinion is worth a read because the liberals and conservatives got into an intellectual brawl. Souter and Roberts, who wrote the primary dissent, go back and forth attacking each other.

Souter takes a shot at Roberts in footnote 4:

In the dissent's view, the centuries of special protection for the privacy of
the home are over. The principal dissent equates inviting the police into a
co-tenant's home over his contemporaneous objection with reporting a secret,
post, at 13-14 (opinion of Roberts, C. J.), and the emphasis it places on
the false equation suggests a deliberate intent to devalue the importance of the
privacy of a dwelling place. The same attitude that privacy of a dwelling is not
special underlies the dissent's easy assumption that privacy shared with another
individual is privacy waived for all purposes including warrantless searches by
the police.

Damn, S!

Then, in footnote 8, Souter notes that Roberts took issue with the fact that the majority had not addressed the constitutionality of a search involving a third person (only two people were involved in Randolph). Souter dismisses Roberts' concerns by derisively noting "We decide the case before us, not a different one."

Take that, Chief!

Roberts fights back, spending a fair portion of his dissent arguing over a point essentially irrelevant to the Court's holding. He disputes whether Souter's assertion is accurate that a person who is told to enter a home by one occupant but instructed not to enter by another would then leave and choose not to enter. However, later on in the opinion, Roberts himself engages in his own assumption about human behavior:

Under the majority's rule, there will be many cases in which a consenting
co-occupant's wish to have the police enter is overridden by an objection from
another present co-occupant. What does the majority imagine will happen, in a
case in which the consenting co-occupant is concerned about the other's criminal
activity, once the door clicks shut? The objecting co-occupant may pause briefly
to decide whether to destroy any evidence of wrongdoing or to inflict
retribution on the consenting co-occupant first, but there can be little
doubt that he will attend to both in short order.

Roberts then goes on to take explicit issue with the holding itself:

Rather than draw such random and happenstance lines--and pretend that the
Constitution decreed them--the more reasonable approach is to adopt a rule
acknowledging that shared living space entails a limited yielding of privacy to
others, and that the law historically permits those to whom we have yielded our
privacy to in turn cooperate with the government.

Near the end of his dissent, Roberts throws another punch:

Perhaps one day, as the consequences of the majority's analytic approach become
clearer, today's opinion will be treated the same way the majority treats our
opinions in Matlock and Rodriguez--as a "loose end" to be tied up.

Smack!

Just when you think the fireworks are over, Justice Stevens decides to concur solely to take a gratuitous pot shot at originalism. Stevens observes that:

In the 18th century, when the Fourth Amendment was adopted, the advice would
have been quite different from what is appropriate today. Given the
then-prevailing dramatic differences between the property rights of the husband
and the far lesser rights of the wife, only the consent of the husband would
matter. Whether "the master of the house" consented or objected, his decision
would control. Thus if "original understanding" were to govern the
outcome of this case, the search was clearly invalid because the husband did not consent. History, however, is not dispositive because it is now clear, as a matter of constitutional law, that the male and the female are equal partners. Reed v. Reed, 404 U. S. 71 (1971).

In your face, Justice Scalia!

Not one to take anything lying down (not even if he's duck hunting with the Vice President), Justice Scalia writes a separate dissent not to address Souter's majority opinion, as he joins Roberts' dissent, but solely "to add these few words in response to Justice Stevens' concurrence." Scalia responds that "Justice Stevens' attempted critique of originalism confuses the original import of the Fourth Amendment with the background sources of law to which the Amendment, on its original meaning, referred."

He goes on to argue that Stevens' celebration of female equality is undermined by the Court's decision:

Finally, I must express grave doubt that today's decision deserves Justice
Stevens' celebration as part of the forward march of women's equality. Given the
usual patterns of domestic violence, how often can police be expected to
encounter the situation in which a man urges them to enter the home while a
woman simultaneously demands that they stay out? The most common practical
effect of today's decision, insofar as the contest between the sexes is
concerned, is to give men the power to stop women from allowing police into
their homes--which is, curiously enough, precisely the power that Justice
Stevens disapprovingly presumes men had in 1791.

Whap!

And what about Thomas, you might ask? He separately dissents to argue that no search actually took place so the Fourth Amendment doesn't apply. (Sigh.)

After reading an opinion like this, I wonder even more about Justice Breyer's recent public comments that, "Under Roberts, closed-door conferences on cases now before the court are more open and free-flowing."

But the best news about this opinion is, in the midst of all the vitriol and back-and-forth, Justice Kennedy silently placed himself with the majority on the left. And I think that should take some wind out of the sails of those on the right who have been triumphantly celebrating the Roberts and Alito confirmations. Without Tony, they can't count to five.
- posted by Joshua @ 8:12 PM