Still a little tired from the late night last night, as I always feel drained after a Steelers Monday Night Football appearance. If we wing, I am so keyed up I can’t go to sleep, and if we lose I am so upset I can’t go to sleep. At any rate, I still didn’t fall aleep until 2:30-3:00 am. But at least we won.
On to Alito. First, the most unintentionally humorous headline on Alito comes from the NY Times:
Abortion Case From 1991 May Be Central in Confirmation
Ya think? Thanks, guys!
Yesterday, when I asked you all what areas we wanted to cover, these were the most popular answers:
1.) Right to Privacy
2.) Limits/Extent of Executive Power
3.) Church/State Separation
4.) Private Property Rights
5.) Commerce Clause
6.) Police Powers/Due Process
I think that is a pretty wide list, so we will start with that. Now, what needs to be done is we need to go through the 300 decisions he has made (as well as his writings), and try to categorize them. I am not a lwayer, and I doubt many of you are, but this should be an entertaining project, nonetheless.
What I want you all to do is whenever you see a discussion of Alito (or if you are handy with findlaw or whatever the tools are), see if any specific decisions are mentioned. If they are, and they have a description, come here and categorize, summarize, and label the decision. I will put them all together.
Then, once we go through and get that done, we can argue about the summaries and the implications of the decision.
Again, we are not lawyers (most of us, anyway), so this will be interesting.
p.lukasiak
A good starter set appears on Scotusblog (Links to opinions in most cases cited can be found at the original source — notably, a link to the Planned Parenthood v Casey is absent).
p.lukasiak
Another good source is the Preliminary Fact Sheet from People for the American Way. Its 24 pages…their summary of key cases is below…
Geek, Esq.
We should probably tackle Doe v. Groody first. That is going to be the most controversial case not dealing with abortion, and it deals with privacy, executive power, and police powers.
Link here: Doe v. Groody
This decision was appealed, but the SCOTUS denied cert.
The essence of the case, as defined for the SCOTUS appeal:
The facts of the case are pretty clear. Whether applying for a search warrant or a court order, a party requesting action from a court customarily will include a “proposed order” or something along those lines–if the court grants the request, it’ll just have the judge sign the proposed order or warrant.
Here, the police did that, submitting both an underlying affidavit/application listing what they hoped to get, as well as a proposed warrant. They wanted a search warrant for a suspected drug trader’s apartment.
In their application, they expressed a desire to search not only the subject, but everyone and everything found in the apartment.
However, they screwed up. The actual form for the warrant itself–the document to be signed by the court–specifically listed the suspect and only the suspect as a person subject to search.
Crucially, the only document with legal force is the warrant itself. That document, and that alone, provides the police authority to search persons and places. The application itself has no legal force–it’s a request, not a court order.
The police, acting under this warrant, went ahead with this raid and (as all are aware) wound up strip-searching the suspect’s wife and 10-year old child–despite the fact that the warrant was specifically limited to the suspect himself.
Of course, they sued. The majority, finding for the wife and child, held that the warrant was unambiguous–there was a section for listing persons to be searched, and in that section they listed one person and one person only–the suspect.
Alito found that the warrant did authorize a search of the wife and child, despite the fact that the warrant was crystal clear on the subject as to whom the authorities could search. There was a section to list the person or persons subject to search, and the warrant listed only one person–the suspect himself.
Alito’s finding was grave error. It is a FUNDAMENTAL tenet of legal reasoning that, when faced with a writing such as a warrant, contract, or statute, one should stick with the text of that writing. ONLY IF that writing is ambiguous on its face should one turn to collateral documents and sources to determine meaning.
This is something every first year law student encounters in contracts with the parol evidence rule.
This isn’t a matter of controversy. This is something that even ‘leftwing activist’ judges hold firmly.
And Alito screwed it up. He attempted to bootstrap his finding by pointing out that other sections of the warrant did refer back to the affidavit/application. However, that is not a valid argument for letting the entire affidavit trump the language of the warrant. If sections (a) and (c) refer back to the affidavit, it’s clear that for the issues raised in those sections, one may refer to the affidavit for support. However, that does not mean that sections (b) and (d) incorporate the affidavit. Indeed, it means the exact opposite.
Geek, Esq.
Folks will also want to look at another activist opinion authored by Alito–Barnhart v. Thomas.
That decision was reversed 9-0 by the SCOTUS in a stinging opinion written by Scalia.
Juicy bit:
Defense Guy
re: Barnhart v. Thomas
Alito wrote the majority opinion on this case.
Geek, Esq.
A majority opinion that was reversed 9-0 by the SCOTUS.
Doug
Nice summary of Groody, Geek, Esq.
Even beyond the issue of searches and police powers, consider what this case implies for how Alito will interpret the Constitution. Here is a warrant, clear on its face, that it only applied to a search of the subject himself. Apparently not happy with that result, Alito went beyond the clear meaning of the text to consider external sources that might cast doubt on the clear meaning of the text and lead to a different result.
This ought to be anathema to strict constructionists. Will Alito look beyond the plain meaning of a statute? Will he say, “sure the statute clearly says ‘X’, but I looked at the Federal Register and read the legislative history and it’s my opinion that the statute really means ‘Y'”? Same thing with the Constitution.
If he does not feel constrained to strictly construe something as simple as a warrant, he is going to be all over the map on more ambiguous writings such as the Constitution or federal statutes.
Defense Guy
You said as much in your summary.
Defense Guy
An interesting one that could fall under Church/State, but ends up as a case on the standing of the plantiffs to bring the case.
The plantiffs bring suit against the town of Wall over a holiday display at town hall. On appeal, the decision is that the plantiffs lack standing to bring the case and vacates the lower court ruling.
Source
Defense Guy
A link for ACLU v. Schundler, which was listed above. Also dealing with Church/State.
Geek, Esq.
To be honest, the church/state stuff is kinda inconsequential on the margins. A small town with a creche and a menorah really doesn’t get my dander up.
Ancient Purple
I wonder if his reasoning would also extend to the federal minimum wage law.
demimondian
I don’t agree. The question of special rights accorded to religious persons, both individual and corporate, is likely to emerge as an important one over the next few years. Already, there are rumblings of using the First to get around size and height zoning rules for megachurches, for instance.
Geek, Esq.
Just mention that such jurisprudence would mean that Charles Johnson et al would have to have giant mosques in their neighborhoods, and the conservative base will rally against such absurdities.
Jack Roy
This should provide most of what you’re looking for. Who knows how far back the site archives, but it looks pretty good from my (very cursory) initial examination.
Defense Guy
I’m glad it doesn’t get your dander up. I’m adding them to the list as Church/State seperation is one of the 6 areas of interest listed in the post. I agree with demimondian that it will be important over the next few years, and that the topic itself is as important as any other regarding the Constitution.
demimondian
Actually, that’s not anathema to strict constructionists. How can a Constitution which talks about a press grant or restrict the powers to regulate, say, web logs on the the Internet? The original language doesn’t consider the freedom of any other mass distribution medium except printed paper, and the Framers had absolutely no reason to believe that any other would ever exist. No one within the judicial mainstream would try to assert that the First didn’t provide the protections accorded to the press to, say, Balloon Juice, though.
p.lukasiak
Alito went beyond the clear meaning of the text to consider external sources that might cast doubt on the clear meaning of the text and lead to a different result.
Alito also relied on non-relevant facts, i.e. that drug dealers (supposedly) use their children and spouses as places to hide drugs. This may well be the case when transporting drugs, but this was a search warrant involving a surprise search of someone’s home.
Of course the real issue here is the strip searching of a ten year old child, and the “reasonableness” of strip searches in general. The incredibly intrusive, degrading, and humiliating nature of a strip search demand that it be employed only when it has been established that such a search is necessary.
Because of this, I question the assumption that the failure to include “all occupants” on the search warrant was unintentional.
I have a question for the lawyers here…. is it required that individuals who are expected to be at a site for which a search warrant has been issued be listed individually? Quite honestly, if the police had said that they wanted to strip search a ten-year-old girl, I would expect the courts to demand specific evidence indicating that such a search would be justified, rather than just the “we have evidence of drugs on the premises” kind of stuff that would result in a search warrant being issued…
Bob In Pacifica
I hear he’s not so hot about workers’ rights. But I guess that’s a given, eh?
Fuck ’em over at work, look through their windows at home, and when they’re used up, throw the buggers on the slag heap.
Hello, slag heap!
Geek, Esq.
The question is the degree to which the text actually addresses the subject matter.
In the case of a search warrant, there is a complete lack of ambiguity.
Q: “Whom can we search?”
A: “John Doe.”
Q: “Does that mean we can search his wife and kid too?”
A: “Learn to read, dumbass.”
Geek, Esq.
I’m not sure on the fine details of that–I know that certain states disfavor such sweeping language.
I’m not a full-time criminal lawyer–Jeralyn Merritt at Talkleft would have a much better handle on that.
rilkefan
“I am not a lwayer”
Thank g*d. It’s reassuring to know that.
p.lukasiak
In the case of a search warrant, there is a complete lack of ambiguity.
I would also suggest that the issue of “reasonable expectations” is important. The police had every reason to believe that the wife and child would be in their own home — in other words, the whole “the founders didn’t anticipate the internet” argument falls flat on its face because the police had every reason to “anticipate” the presence of the wife and child.
Bob In Pacifica
Back in the fall of 1967, I was kicked out of my high school for growing a beard. It wasn’t much of a beard, but it was enough to get Keyport High School’s principal in a dander.
The ACLU wanted to take up the case. There had been a case about mustaches at the time, but not beards. I took the train up from the Jersey Shore to Newark to talk with them.
But my parents wouldn’t back me up. They didn’t want me to have a beard either.
I found out later that there was a gang of reactionaries in downtown Keyport looking for me so that they could hold me down and cut off my Beatle haircut and shave me. Would that have been a mess.
A few years later I’m in the army shorn of all hair, and all the punk-ass tools of oppression who wanted to make me fit in were wearing long hair and beards, smoking grass and listening to “In-A-Gadda-Da-Vida” on the 8-tracks in their Mustangs and Camaros and telling me how cool I had been to be so ahead of the curve.
This is what I remember when I see the forces of reaction and fascism gathering strength. On one hand, they will eventually fail. On the other hand, at what cost? And in the meanwhile, most people just don’t get it.
Doug
Well, the police did request that they be allowed to search “anyone else who might be on the premises.” But, the warrant didn’t grant that authority. It granted authority only to search “John Doe.” If the court had granted authority to search “John Doe and anyone else on the premises,” the police probably would have been o.k. But, the majority in that opinion notes that “search everyone” warrants are disfavored.
Alito argued that the failure to include “search everyone” language on the warrant was merely an oversight. The question is, how many “oversights” would Alito be able to find in the Constitution.
demimondian
Go back and read Alito’s majority opinion in _Blackhawk v. Pennsylvania_. I may be wrong, but it seems to me that the reasoning in that case would lead to Charles Johnson having supermosques in their neighborhoods. (What a lovely image…)
Jeff B
A list of 3rd Circuit opinions on religion issues written by Supreme Court nominee Samuel Alito is given at the Religion Clause blog
Kirk Spencer
I’d like to kick off another subject – let’s call it commerce clause though as before that’s probably not quite right. The case is US v Rybar. (In case the link doesn’t work, that’s http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/us_v_rybar.txt )
Ryber was a federally licensed firearms dealer. He went to a gun show in his state of residence. There, he sold a Chinese Type 54 and an M3 to someone else. He was subsequently charged with two counts of illegal possession of a machine gun and two counts of illegal transfer of unregistered firearms. The first court dismissed the latter charge as, since it was illegal to possess it was impossible to register, and charges for failing to conduct an impossibility were wrong. (note, I’m summarizing – read the entirety for specifics). The lower court declined to dismiss the other two counts for two reasons:
1) Restriction of possession was “a valid exercise of the
authority granted to Congress under the Commerce Clause”; and
2) Not a violation of the 2d amendment “because this defendant’s possession of a machine gun was not reasonably related to the preservation or efficiency of a well-regulated militia.”
The majority in this case separated the two points, and supported the lower court in both. Alito dissented, and that’s where I’ll step into more detail.
Interestingly, Alito did not address the “right to bear” issue. Instead, his comments were almost in their entirety addressed toward the lower court’s second point – the validity of the law under the commerce clause.
Basically, what he said was that the federal law restricting transfer of firearms being used to restrict INTRASTATE transfer of firearms was an abusive use of the commerce clause. Commerce law should apply only to interstate economic transfers. In addition, he noted that intrastate was applicable if it posed a threat to interstate commerce (ie, if the guns had been sold for the intended use of hijacking or destroying vehicles conducting interstate traffic). Finally, he said that neither congress nor the executive had failed to demonstrate that stopping transfer of firearms would have a positive impact on interstate commerce.
It’s the last that got the most ridicule from his peers. Their counterstatement (to which Alito objected) was that Alito was requiring, “either Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute.” IOW – show this law does something beneficial, or we’ll toss it out.
As sum, Alito appears to have three core tenets one of which applies to the list. That one is that the commerce clause is currently over-used and should be curtailed. Additionally he appears to be but cannot be demonstrably proven as supportive of an opinion on the second amendment in line with the stance of the NRA. Finally, anyone calling for an end to “judicial activism” should face that he is calling for just that in his third test. But as noted elsewhere, it’s only judicial activism if it goes against your stances.
p.lukasiak
Basically, what he said was that the federal law restricting transfer of firearms being used to restrict INTRASTATE transfer of firearms was an abusive use of the commerce clause
hey, if we can get him on the bench and apply the same logic to drug laws, the rest of this century will be one long party!
The Disenfranchised Voter
Speak for yourself please. I, for one, think the Constitution should be respected, even in small matters such as government displays. If a judge sees nothing wrong with violating the founding ideals of the nation, he doesn’t deserve to be a judge.
Lee
He would probably attribute A4 as an oversite ;)
This is an excellent thread.
demimondian
I’ve heard a couple of variations on this in this thread:
That’s really not true. The Constitution, as a whole, is not of uniform importance. For instance, the Interstate Commerce clause is only two sentences long — yet it’s been the source of more legal opinions in the last century than anything else except perhaps the second part of the Fourteenth Amendment.
The reason I think that the establishment clause is so important is that I expect to see a move by the religious right to drive their agenda forward in the courts. The Establishment Clause of the First Amendment is their natural tool, just as the Equal Protection Clause of the Fourteenth Amendment was the natural tool of people seeking…well, seeking equal protection for all citizens.
Geek, Esq.
Let me clarify:
The creche/menorah cases have a much lower weight/heat ratio than subjects dealing with interstate commerce and federalism, and the right to privacy.
The Disenfranchised Voter
Care to explain how it is their tool? The establishment cause is in direct violation to what they believe. It is what makes us a secular country.
Kirk Spencer
Another big case – the one against the Family Leave act – pretty well confirms Alito’s stance on the Commerce Clause.
Though he made several points in his dissent, a predominate one was that the universality of the act was wrong. That small businesses should be exempt as they were not interstate and so the Commerce Clause (used as partial base of the act) did not apply. Essentially, he said (as in Ryber) that Congress was abusing the Commerce Clause. In this case the supreme court reprimanded him not least because size of a company does not impact its ability to operate interstate. And yes, Rhenquist’s opinion did specifically reprimand Alito.
Due to these two cases cited in specific, I will submit that Alito’s position on the Commerce Clause is that it’s overused if not abused and laws which rely upon it need review and possible restriction.
demimondian
Not exactly. The Establishment Clause is one of my favorite examples of how the Constitution “cuts both ways”. We all know that it requires that the government not create an established church — but what does that mean?
Well, first and foremost, it means that laws which explicitly target, say, Jews, are clearly unconstitutional, of course. But then things get kind of hazy.
For instance, drug law is impacted by religious practice. If I’m Rastafarian, do I have a federally protected right to smoke ganja, since smoking pot is a part of core religious practice? If I’m from one of the Southwestern tribes which use Peyote in their rituals, do I have the right to possess peyote *for religious purposes*?
What about zoning regulations? If I worship by building very tall steeples or minarets, does the state have a sufficiently strong interest to forbid my building those structures using zoning laws?
Like all great laws, the First Amendment cuts both ways, protecting both good speech and bad speech, both Rosa Parks’ funeral and Nazi marches, and, in this case, secularism and religiosity.
The Disenfranchised Voter
I completely disagree on this point and I think that is a misunderstanding of the establishment clause.
The first amendment reads…
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Notice the first words in this amendment. It states: “Congress shall make no law respecting an establishment of religion.” That means there shouldn’t be any law that respects any establishment of religion. Many argue that this means only that there should be no state religion, unfortunately for them, they are mistaken.
If that is what the founding fathers meant then they would have wrote “no law respecting THE establishment of A religion.” It does not say that however, and thus clearly the word “establishment” is synonomous with the word “institution”. Therefore the amendment means: “Congress shall make no law respecting an institution of religion” That means, not one single law that derives from a religious institution.
Defense Guy
I agree with you that this seems to be Alito’s stance. I tend to agree with him, as I thought the most recent medical marijuana decision, coached in terms of this clause, was an abhorant overreaching of federal power. It appears, to me at least, that this is the clause often used to circumvent the Constitution.
demimondian
Not true. The First sentence clearly balances the use of “establishment” with “free exercise” (which is the basis of the usual interpretation.) All the arguments I gave above fall into the “free exercise” half.
Shygetz
demimondian–I think you are conflating the Establishment clause with the Free Exercise clause. The religious right loves to use the Free Exercise clause, and their opponents use the establishment clause.
The Disenfranchised Voter
Free exercise can be used as a balance in my interpretation as well though…
The congress shouldn’t make any religious beliefs into laws and they also shouldn’t interfer with the free exercise of religious beliefs.
Patrick Lightbody
John – that would be great. I’ll be looking forward to it and, hopefully, pitching in as well. Maybe you can even assing some “homework” and get a lefty and a righty to both look in to a case and report back. :)
Horshu
Is there a listing somewhere that shows federal judges together along with the rates of dissention with opinions of higher courts? By that, I mean, is there an easy way to see if, for instance, Michael Luttig has had less of his decisions, upon appeal, wind up in disagreement with the final SCOTUS decision than Alito or Roberts? It’s a metric that I’m curious in seeing for various well-known legal minds, but the closest I’ve seen is an “Activist Index” which uses overturning of law as the factor.
The Comish (sic)
Demimondian:
Sure they did. If you keep reading that clause, you’ll see that the Framers also protected “freedom of speech.” Speech was another mass distribution medium.
Moreover, the growth and expansion of the printing press were one of the biggest catalysts for the American Revolution. So although I doubt the Framers foresaw the advent of the internet, I don’t think you give the Constitution enough credit if you think it leaves blogs unprotected.
The Comish (sic)
Geek, Esq.:
Something else that every first year law student encounters is an emphatic instruction to read the case, and not rely on secondary authority. If you had read the case, you’d see something else that every first year lawyer encounters with contracts: incorporation of another document.
The parol evidence rule applies only when you try to use an outside document to change or enlighten the descriptions in the primary document. When the secondary document is specifically incorporated into the primary document then the parol evidence rule does not apply.
Here, we were dealing with two documents. First, we have an affidavit. The affidavit is filled out by someone under oath and sets for the reasons that a judge should issue the warrant and the subjects of that warrant. Second, we have the warrant itself. The warrant is also filled out by officers, who are typically not lawyers. The judge reviews the affidavit. The judge can sign, revise, or refuse to sign the warrant as he or she sees fit.
The warrant at issue here had a box for the name and description of whom or whatever the officers wanted to search. The officers gave the name and a detailed description of the primary suspect and his residence. This information filled up the box. So the officers specifically incorporated the affidavit, which included a request to search everyone else in the house in three separate paragraphs.
The officers got to the scene and, believing that the warrant gave them the authority to search everyone on the premises, performed strip searches on the primary suspect, as well as his wife and 10 year old child. Naturally, after the searches were performed, the defendants sued the city, the state, a couple of boroughs, the attorney general, the police department, the county drug task force, and all the officers involved in the search for violation of their civil rights.
It’s undisputed that everyone involved thought the warrant gave the officers the right to search everyone at the premises. We’re not talking about officers who decided at the scene that they wanted to expand the search, so they just ignored the warrant. We’re talking solely about whether a warrant can incorporate an affidavit that’s attached to the warrant. The majority said no; Alito said yes.
So Geek, Esq. has it backwards: Alito wanted to apply normal contract law to a warrant. The majority said that normal contract law does not apply to warrants. So the only “grave error’ is Geek, Esq.’s characterization of the case.
In my opinion, the most important passage to understanding Alito’s judicial philosophy is the last paragraph. There, he says that he has a “visceral dislike of the intrusive search of John Doe’s young daughter.” However, he points out, the warrant was legal, and it allowed the searches that were challenged. So the question that he was forced to resolve wasn’t whether he personally agreed with the searches. He was bound by the law, and he enforced it without regard to his personal feelings on the issue.
And that’s exactly what I want from a judge.
The Comish (sic)
Doug:
No, he didn’t. If you’d read two whole sentences of Alito’s opinion, you’d see this is totally false.
Doug:
No, it didn’t. Even the majority opinion says that it granted more than that.
Let’s try not to get too wrapped up in partisan lies here. If you’re going to discuss the case, I strongly recommend you read it before spouting what you heard on Air America.
The Comish (sic)
The Disenfranchised Voter:
Uhhh, no. If that’s actually what they meant, then why do you suppose that one of the first official acts of the first official Congress was to set a salary to pay a pastor to open their sessions with prayer? And why do you suppose that so many of the first states actively gave money to churches? And how was it Constitutional for every President through FDR to celebrate a Day of Prayer and Thanksgiving? Do you suppose the folks who wrote and passed the First Amendment just misunderstood it?
Plus, your definition requires us to read the word “respecting” as synonymous with “deriving from.” Those two words aren’t synonyms. And it requires us to assume that the words “establishment of” were not merely nouns (apparently meaning “religious establshment”), but extraneous verbiage.
“Establishment of religion” does indeed refer to setting an official state religion. However, the word “respecting” means “regarding or relating to.” So the 1st AMendment prohibited the establishment of an official state religion, as well as all laws that regard or relate to the establishment of an official state religion. So Congress can’t take the big step of establishing a state religion, nor can it take the little steps that would lead to the establishment of an official state religion.
If you’re wondering where that draws the line between what’s permissible and what’s not, you’re not alone. The Supreme Court’s jurisprudence is an absolute mess. According to the Supreme Court, it is constitutional for the government to pay for bus transportation to and from parochial schools, but not for the state to fund bus transportation from parochial schools to museums or other field trip destinations. Similarly, the state is allowed to loan parochial school students textbooks, but not workbooks in which the students will write, or maps and globes.
But one thing that the Supreme Court has always agreed on: The government is not required to be completely secular. As the Supreme Court has said, some government involvement in religion is undavoidable. The Framers not only expected it, they engaged in it.
Geek, Esq.
I’m well aware of incorporation as a concept. I can see where you’re going with this, but I’ll let you hang yourself.
I see a faulty assumption in your future.
So far so good. But here comes that sinking feeling that someone didn’t read the case very carefully.
And there it is–the bassackwards assumption.
You see, some sections referenced the affidavit, while others did not.
Guess which category the “who is subject to search” section fell under.
Well, considering a woman and child were strip-searched without authorization from a warrant, they had reason to.
Ummm hmmmm.
It looks like someone didn’t read the case very carefully.
No one is arguing that a warrant can’t incorporate an affidavit.
Actually, you completely missed the major point of dispute.
The majority ruled that the warrant didn’t incorporate the affidavit as a whole. They pointed out that there was no language in the warrant expressing an intent to incorporate the entire affidavit. Moreover, the warrant DID refer back to the affidavit for at least two of its sections. Obviously, the police officers were conscious of the need to refer back to the affidavit where it was necessary to do so. They simply failed to include this language in the warrant.
Alito disregarded this fact, and he was wrong to do so.
And I would know–since I researched this very issue for an amicus brief submitted to the SCOTUS.
See, e.g., U.S. v. Naftalin, 441 U.S. 768, 773 (1979) (in response to the suggestion that a requirement contained in one section of a statute be read into another, the Court noted “The short answer is that Congress did not write the statute that way.”)
Here, the drafters of the warrant did not express in writing their intent to incorporate the affidavit’s sweeping scope regarding which persons could be searched, nor did they express in writing their intent to incorporate the affidavit as a whole.
The warrant, on its face, was unambiguous both as to the degree to which the affidavit should be incorporated as well as which persons could be searched.
Unless his feeling were to “cut out boys in blue a break.”
Beej
Geek, Esq and The Commish,
Excellent arguments from both of you. I would only add that Alito specifically quotes SCOTUS (can’t remember the name of the case right now) to the effect that warrants should be interpreted in a “common sense” fashion, and that by specifically incorporating their claim of probable cause, which included reasons for needing permission to search everyone to be found at Groody’s address, the police officers reasonably believed that the warrant did allow them to search everyone.
This is actually a very close question. The majority of the 3rd Circuit comes down on the side of a strictly technical reading of the warrant, certainly a reasonable conclusion. However, Alito’s conclusion is also a reasonable one, if hedged slightly toward a more comprehensive reading of the warrant and accompanying affidavit. Was he right? Maybe not, but it seems to me that his dissent is quite firmly grounded in precedent and not some wild-eyed attempt to allow the police to run rampant over the 4th Amendment.
Altogether a very interesting and well argued thread here!
Geek, Esq.
The ultimate problem with Alito’s theorizing is that it would make the form of a warrant virtually meaningless. The bottom line is that courts issue warrants, not common sense.
goonie bird
What he should do if he become the new cheif justice OVERTURN ROE VS WADE,DECLRE THE ENDANGERED SPECIE ACT UNCONSTITUTIONAL DELARE ALL GUN CONTROL LAWS UNCONSTITUTIONAL INDITE BILL CLINTON FOR TREASON and i,ll bet this is wy the demacraps oppse him
The Disenfranchised Voter
Evidence of this claim please.
States rights perhaps?
It isn’t. You seem to be committing the old fallacy that the Constitution isn’t a secular document because of events in the country’s history that say otherwise. This is akin to saying “How can we be a secular country when the plegde has “under god” in it. Just because the relgious fanatics in the country have gotten away with not respecting our Constitution does not mean that their actions were/are alright.
No I feel the ones who disagreed with it just didn’t give to shits. And considering that at the time, the country was composed of a vast majority of Christians, noone spoke out against it for fear of the reprocussions.
Might wanna check your Thesaurus there bud…
Well by those guidelines, there is plently of “extraneous verbage” in the Constitution.
I’m glad you gave some evidence to back up your claim…You know isntead of just saying “This is what it means because I said so”. Oh, wait nevermind that is what you just did.
Oh brother. Always agreed on? You might be able to bullshit some people but it isn’t gonna work on me. The Supreme court has not “always” agreed on this, there are plenty of dissenting opinions. Don’t attempt to misled people. It’s not going to get you off on the right footing here.