Thursday, March 23, 2006

The Expert at Dissenting Opinions

The US Supreme Court issued an opinion yesterday in a Fourth Amendment case. The holding was fairly case specific (it applies to limited fact situations), but it was notable for the tones of the opinions expressed by the justices. The NY Times presents the story in a reasonably straightforward manner.

A Supreme Court decision on Wednesday in an uncelebrated criminal case did more than resolve a dispute over whether the police can search a home without a warrant when one occupant gives consent but another objects.

More than any other case so far, the decision, which answered that question in the negative by a vote of 5 to 3, drew back the curtain to reveal the strains behind the surface placidity and collegiality of the young Roberts court.

It was not only that this case, out of 32 decided since the term began in October, provoked Chief Justice John G. Roberts Jr. to write his first dissenting opinion. He had cast two earlier dissenting votes, and had to write a dissenting opinion eventually. And although there has been much commentary on the court's unusually high proportion of unanimous opinions, 22 so far compared with only 27 in all of the last term, few people expected that rate to continue as the court disposed of its easiest cases and moved into the heart of the term.

Rather, what was striking about the decision in Georgia v. Randolph, No. 04-1067, was the pointed, personal and acerbic tone in which the justices expressed their disagreement over whether the Fourth Amendment's ban on unreasonable searches was violated when the police in Americus, Ga., arriving at a house to investigate a domestic dispute, accepted the wife's invitation to look for evidence of her husband's cocaine use.

...The dissenters, in addition to Chief Justice Roberts, were Justices Antonin Scalia and Clarence Thomas.
[Emphasis added]

First of all, Justice Alito was not a member of the court when the case was argued, so he did not take part in the decision. Even if he had voted with the dissenters, the outcome (which would have been 5-4) would not have been different.

The dissenting opinion by Chief Justice Roberts (who has some experience in writing them) was indeed quite acerbic, with some of the strongest language reserved for the footnotes that usually serve for explanatory material. Naturally, the majority responded in kind, but what was surprising is that the greatest heat came from Justice Souter, one of the milder-mannered justices this court has ever had.

The decision might very well be an indication of what we can expect as the Court begins to tackle the more contentious cases on the docket (abortion rights, habeas corpus and illegal pre-charge, pre-trial detention). Mr. Souter may very well turn out to be the new swing vote, taking over for Sandra Day O'Connor.

The next several months are going to be very interesting and very important for the direction of this nation.


Blogger karmic_jay said...

Interesting. I can't remember where I read this, may be it was on KOS. They thought this was a battle for the soul of Kennedy who they thought will be the new O'Connor?

6:00 AM  

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