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Wednesday, July 12, 2006 

Splintered Opinions

Orin Kerr had a great post a few days ago concerning the Supreme Court and splintered opinions. Cases this term like Randall give us all nightmares. There are like six or seven separate opinions, the Justices are only joining parts of other opinions, the dissenters are concurring in some parts, it's just a mess. Not only are these opinions hard to read, they make the law very unclear. Prof. Kerr highlights one of his favorite splintered cases, Walter v US...
The Court split 2-2-1-4, with the fifth vote a real doozy. Two Justices, Stevens and Stewart, said that the private viewing had only eliminated privacy protection for what the private parties had seen: Thus the FBI's viewing of the rest of the film violated the Fourth Amendment. Two Justices, White and Brennan, said that the private viewing made no difference at all, and that the private viewing had not eliminated any Fourth Amendment rights. On the other side, four Justices, Blackmun, Burger, Powell, and Rehnquist, took the view that the private viewing had eliminated all Fourth Amendment rights. The deciding vote was Justice Marshall'’s, but Marshall didn't join or write any opinion at all. Although he was the "swing vote," Marshall chose not to express his view. The U.S. Reports simply records, "MR. JUSTICE MARSHALL concurs in the judgment." So the Fourth Amendment was violated, but no one really knows why. Hmm, how helpful.
What a mess. That line up was probably one of my least favorite Courts in recent history. The only Justice on there that I liked was Rehnquist. White was decent at times, but the rest of them... forget about it. I hope the Court will do more to keep this from happening in the future. It's just a headache for the rest of us.

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