Christmas Time at the Supreme Court
It is Christmas time at the ol' SC. Yes Christmas in spring. This is the time that the court starts handing down its decisions that it heard in the fall. What makes it particularly interesting this year is we will begin to see glimpses of just what we got in John Roberts and to a lesser extent Sam Alito (only because he participated in fewer cases). It will be like unwrapping Christmas presents and seeing exactly what President Bush and the Senate gave us citizens. Will it be someone who upholds the rule of law and the written fixed nature of the Constitution or will they turn out to be one or two more "squishy" judges who enjoy altering the Constitutional text on a whim as fits their personal views of justice or societal standards.
Take a look at Georgia v. Fitzgerald which recently came down. Check out Robert's dissent, it is very promising. Scalia and Thomas are worth reading as well.
There is a point of caution in this case...yet again Kennedy drifted to the left on this case...I predict and fear that he is moving solidly into the Souter, Ginsberg, Stevens, Breyer camp...I would be surprised if he were a vote to overturn current abortion laws on future cases. That still leaves the Roe majority in place with 5 votes if I am reading tea leaves correctly.
THE CASE: The case involved whether or not an "unreasonable" search was conducted by police when the wife agreed they could search the premises but the husband refused. The Police entered on the wifes permission and found drugs and the husband was convicted.
THE MAJORITY: The Majority ruled that this was an unreasonable search because "widely shared social expectations" should govern police conduct here. They argue that if a welcome is mixed then social expectations should dictate that a guest would stay out. As such this search was "unreasonable" and violated the husband's constitutional rights.
ROBERTS DISSENT (excerpts):
The Court creates constitutional law by surmising what is typical when a social guest encounters an entirely atypical situation. The rule...provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room. And the cost of affording such random protection is great, as demonstrated by the recurring cases in which abused spouses seek to authorize police entry into a home they share with a nonconsenting abuser.
...
This exception is based on what the majority describes as “widely shared social expectations” that “when people living together disagree over the use of their common quarters, a resolution must come through voluntary accommodation.” Ante, at 6, 9. But this fundamental predicate to the majority’s analysis gets us nowhere: Does the objecting cotenant accede to the consenting cotenant’s wishes, or the other way around? The majority’s assumption about voluntary accommodation simply leads to the common stalemate of two gentlemen insisting that the other enter a room first.
Nevertheless, the majority is confident in assuming—confident enough to incorporate its assumption into the Constitution—that an invited social guest who arrives at the door of a shared residence, and is greeted by a disagreeable co-occupant shouting “ ‘stay out,’ ” would simply go away.
...
The fact is that a wide variety of differing social situations can readily be imagined, giving rise to quite different social expectations. A relative or good friend of one of two feuding roommates might well enter the apartment over the objection of the other roommate. The reason the invitee appeared at the door also affects expectations: A guest who came to celebrate an occupant’s birthday, or one who had traveled some distance for a particular reason, might not readily turn away simply because of a roommate’s objection. The nature of the place itself is also pertinent: Invitees may react one way if the feuding roommates share one room, differently if there are common areas from which the objecting roommate could readily be expected to absent himself. Altering the numbers might well change the social expectations: Invitees might enter if two of three co-occupants encourage them to do so, over one dissenter.
The possible scenarios are limitless, and slight variations in the fact pattern yield vastly different expectations about whether the invitee might be expected to enter or to go away. Such shifting expectations are not a promising foundation on which to ground a constitutional rule, particularly because the majority has no support for its basic assumption—that an invited guest encountering two disagreeing co-occupants would flee—beyond a hunch about how people would typically act in an atypical situation.
I will post more on this decision as I digest it...
Take a look at Georgia v. Fitzgerald which recently came down. Check out Robert's dissent, it is very promising. Scalia and Thomas are worth reading as well.
There is a point of caution in this case...yet again Kennedy drifted to the left on this case...I predict and fear that he is moving solidly into the Souter, Ginsberg, Stevens, Breyer camp...I would be surprised if he were a vote to overturn current abortion laws on future cases. That still leaves the Roe majority in place with 5 votes if I am reading tea leaves correctly.
THE CASE: The case involved whether or not an "unreasonable" search was conducted by police when the wife agreed they could search the premises but the husband refused. The Police entered on the wifes permission and found drugs and the husband was convicted.
THE MAJORITY: The Majority ruled that this was an unreasonable search because "widely shared social expectations" should govern police conduct here. They argue that if a welcome is mixed then social expectations should dictate that a guest would stay out. As such this search was "unreasonable" and violated the husband's constitutional rights.
ROBERTS DISSENT (excerpts):
The Court creates constitutional law by surmising what is typical when a social guest encounters an entirely atypical situation. The rule...provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room. And the cost of affording such random protection is great, as demonstrated by the recurring cases in which abused spouses seek to authorize police entry into a home they share with a nonconsenting abuser.
...
This exception is based on what the majority describes as “widely shared social expectations” that “when people living together disagree over the use of their common quarters, a resolution must come through voluntary accommodation.” Ante, at 6, 9. But this fundamental predicate to the majority’s analysis gets us nowhere: Does the objecting cotenant accede to the consenting cotenant’s wishes, or the other way around? The majority’s assumption about voluntary accommodation simply leads to the common stalemate of two gentlemen insisting that the other enter a room first.
Nevertheless, the majority is confident in assuming—confident enough to incorporate its assumption into the Constitution—that an invited social guest who arrives at the door of a shared residence, and is greeted by a disagreeable co-occupant shouting “ ‘stay out,’ ” would simply go away.
...
The fact is that a wide variety of differing social situations can readily be imagined, giving rise to quite different social expectations. A relative or good friend of one of two feuding roommates might well enter the apartment over the objection of the other roommate. The reason the invitee appeared at the door also affects expectations: A guest who came to celebrate an occupant’s birthday, or one who had traveled some distance for a particular reason, might not readily turn away simply because of a roommate’s objection. The nature of the place itself is also pertinent: Invitees may react one way if the feuding roommates share one room, differently if there are common areas from which the objecting roommate could readily be expected to absent himself. Altering the numbers might well change the social expectations: Invitees might enter if two of three co-occupants encourage them to do so, over one dissenter.
The possible scenarios are limitless, and slight variations in the fact pattern yield vastly different expectations about whether the invitee might be expected to enter or to go away. Such shifting expectations are not a promising foundation on which to ground a constitutional rule, particularly because the majority has no support for its basic assumption—that an invited guest encountering two disagreeing co-occupants would flee—beyond a hunch about how people would typically act in an atypical situation.
I will post more on this decision as I digest it...
posted by Lil' Mermaid | 10:58 AM
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