Thursday, March 23, 2006

[Supreme Court]

The Charming Radical.

The New Yorker recently featured an article describing Senate hearings as theater. (I can find no reference of it online, so there's a chance it 1) wasn't actually in the New Yorker, 2) was a particularly vivid dream I had. In the latter case, I should write the article myself; it was really good.) The writer compared the Supreme Court hearings of Justices Alito and Roberts, noting that, while Roberts might have been a radical, it didn't matter: he was so charming that even the Dems didn't seriously consider trying to stop the nomination. Alito, on the other hand, evasive and flat, provoked enough ire that his performance raised the question of whether the Dems might be able to block his nomination.

Well, two decisions in, and the dashing Justice Roberts--who at 52, is likely our Chief for the next 30 years--has proven himself cut from the radical robe. He stood in dissent on the Oregon Death with Dignity case, which challenged Oregon's assisted suicide law (siding with the feds against the state), and yesterday joined the dissent on a case involving police searches. There he sided again with autocratic power and against individual rights.

To add insult to dissent, Roberts, writing for the minority, tried to cast his opinion as a defence of women:

The ruling upholds a 2004 decision of the Georgia Supreme Court but still makes a significant change in the law nationwide, because most other lower federal and state courts had previously said that police could search with the consent of one of two adults living together.

Now, officers must first ask a judicial officer for a warrant in such cases. Quarrels between husbands and wives, or boyfriends and girlfriends, keep police busy around the country; in the District, almost half of the 39,000 violent crime calls officers answered in 2000 involved alleged domestic violence....

"The majority's rule apparently forbids police from entering to assist with a domestic dispute if the abuser whose behavior prompted the request for police assistance objects," he wrote.
"Apparently" is the key word. Justice Souter, writing for the majority, dismissed this disingenuous claim thus:
"[T]his case has no bearing on the capacity of the police to protect domestic victims," Souter wrote. "No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists."
How obvious is Roberts' mendacious reasoning? He was joined, predictably, by Scalia and Thomas (Alito wasn't on the court when the case was heard)--both of whom have regularly been antagonistic to individual liberty generally, and women's libery in particular.

The court has jumped a notch to the right with the addition of Alito and Roberts. Now Anthony Kennedy is the swing vote on decisions that would have, like this one, have had pretty clear 6-3 majority support. The cases that swung 5-4 with Sandra Day O'Connor are now 5-4s to the right, with Kennedy swinging the court.

I wonder if the Dems who voted for Roberts were as charmed by his last two decisions as they were by his clever banter in the Senate hearings?


The Manly Ferry said...

This one caught my eye as well, Jeff. My reaction to it was close to yours.

Given the way the article that The O ran was structured, Roberts' argument about domestic violence didn't seem so outlandish - until you read Souter's cover on that one. It sounds like that's been addressed.

But what did you make of the case that the ruling assigns a rather arbitrary standard to how a roommate denies consent for a search? As one of the justices said (probably Roberts), if the legal requirement is someone standing in the door saying "NO!" to entry, that kind of leaves the person napping in their room or away from the house a bit screwed.

As much as I applaud the general ruling, I think Souter's standard screwed up in this regard. The cops are covered in the case of an emergency - and that's a good thing because of the domestic dispute angle, plus a few other scenarios. But I would have liked to see Souter take a harder line with regard to warrants for multiple occupant housing.

And that brings me to something else that's difficult to square: the "roommate" dynamic between a husband and wife is nothing like what one would get between, say, five college buddies. I'm almost surprised they didn't treat the cases separately.

Anyway, I'm glad you posted on it - and it was a good one.

Jeff Alworth said...

Hey Mr. Head, aka JB, aka CO. Good to see you up and running again with the new blog. I've been by, but haven't had time to comment.

I told you you couldn't resist blogging's dark allure.

The Manly Ferry said...

Such kinds of predictions can only come from the dark sources, which leave me to assume you're an evil, evil man....

iggi said...

i'll vouch for his evil-ness...

Absent Mindful said...

Hence the "Black & Scaleys"?