Eminent Domain

What happened this weekend? Was there some Lefty memo that went out, "Time to start whining about the Supreme Court"? Gregory Stanford of the Milwaukee Journal Sentinel joins Ted Kennedy in this weekend's "Roberts and Alito Suck" parade. I read this early this morning before work and have been thinking about it since then. Let's get on with it...

Let's start off with the requisite kiss-up to Justice Kennedy...

The saving grace for the bench in the recently concluded term was Justice Anthony Kennedy, a Reagan appointee who slowed Roberts' and Alito's drive to pull the conservative court further to the right.

The liberals in the media are making a smart move here. Kennedy loves praise. He worries about his image. Keep telling him that he's the savior of the Court and nation, and he just might drift further.

This part drove me insane...

No, I'm no lawyer. Don't even play one on TV. A sis' and a nephew are lawyers. I'll just leave to them and their profession the evaluation of the legal arguments that come before the high court. The rest of us, however, can rate what the Supreme Court does from the point of view of what's good for the nation. Does a ruling advance or thwart the nation's ideals? American principles and American laws do correlate, don't they? If not, "the law is a ass - a idiot," to quote Charles Dickens' Mr. Bumble.

What? Oh, I see. Stanford thinks this is still the Warren Court, you know, the "Court" that was really just a higher house of Congress. It's all about policy creation, right? No. The Supreme Court is about legal arguments. That's what the decisions should be based on, and that's how the decisions should be evaluated.

Stanford, like Ted Kennedy, cares only about the results. To Hell with the text of the law or the Constitution. Stanford wants his Justices to vote based on policy, on "what's right for America," as he sees it. He ignores the fact that we have two elected branches of government, and one of them gets to enact laws and shape policy directly. They even have the mandate of being popularly elected. Of course, Stanford is ignoring this fact because the branches aren't run by the Democrats right now.

Then there is this bit of analysis...

For a non-lawyer, I happen to read many Supreme Court opinions - one reason I view askance the claim that Bush is fond of making about his nominees: namely, that they strictly adhere to the letter of the Constitution, as if its framers specifically wrote instructions on how to deal with child porn on the Internet. "Strict constructionist" is just code for "likely to interpret Constitution in a way that pinches freedom, favors corporations and protects government authoritarianism."

This must be willfully simplistic (I hope that's the excuse for it). "Strict constructionist" is a broad term, probably too broad to use with any sort of accuracy. Stanford may be shocked to learn that Justice Scalia is not a strict constructionist. He says in A Matter of Interpretation that he is "not a strict constructionist, and no-one ought to be;" he goes further, calling strict constructionism "a degraded form of textualism that brings the whole philosophy into disrepute." Scalia has also said, "the Constitution, or any text, should be interpreted [n]either strictly [n]or sloppily; it should be interpreted reasonably." Scalia is an originalist (usually... he has deviated, sometimes sharply, in the past) and a textualist. Justice Thomas is an originalist but not exactly of the same stripe as Scalia. Roberts and Alito are not originalists, at least, they haven't showed that yet. Trying to paint all four of these Justices as having the same philosophy is just shoddy, superficial analysis.

Stanford also talks about a few cases...

In Hudson vs. Michigan, Alito and Roberts helped form a 5-4 majority that, in a drastic departure from past rulings, gives police a virtual license to seize evidence illegally.

Ted Kennedy touched on Hudson also. Both men claimed that the majority opinion by Scalia was a huge U-turn by the Court, ignoring precedent. I disagree, and so does Prof. Orin Kerr...

According to Scalia, automatic suppression for a knock-and-announce violation is inconsistent with precedent...
As a doctrinal matter, it seems to me that Justice Scalia's majority opinion has it basically right. First, Fourth Amendment rules traditionally have focused on the facial validity of the warrant -— the requirements of probable cause and particularity - rather than its execution. So long as the evidence discovered is within the scope of the warrant, the execution of the warrant traditionally receives very little constitutional scrutiny. Second, even where the Court has announced a constitutional suppression remedy, that remedy is typically limited by all sorts of exceptions such as good faith and fruit-of-the-poisonous tree doctrine. As every practicing criminal lawyer knows, when the police have a warrant the evidence is probably coming in even if the defense can find some technical violation along the way. So if the question is which rule fits most naturally into the preexisting framework of Fourth Amendment law, it seems pretty clear that it's the majority's rule, not the dissent's. Put another way, Scalia's opinion essentially restores the constitutional status quo.

I guess this wouldn't interest Stanford though. Who cares about that pesky legal analysis when looking at Court opinions?

How about one more case...

In Georgia vs. Randolph, Roberts wrote a dissent arguing that one spouse could overrule another and give police permission to search their quarters for contraband - which would have eroded the principle that a person's home is a person's castle. Alito did not participate in that decision.

Isn't the home the spouse's castle too? Or do all castle decisions have to be unanimous?

I'm a little confused why these op-eds are coming now. The Court has been out of session for quite a while. These pieces are hardly timely, and based on the content, could've been written very quickly. Maybe it has something to do with this...

Kennedy, the second swing vote before O'Connor retired, has emerged as pivotal. But what happens next term, when abortion, affirmative action and environmental law are on the agenda? What happens should Bush get another vacancy to fill?

I think it is now unlikely that a vacancy will occur this Summer, unless it is an illness or a death. The clerks are hired and some very big cases have been granted cert. Still, I think people like Ted Kennedy and Gregory Stanford are stricken with the fear that another vacancy will come before 2008.