Thursday, March 23, 2006
Dueling Justices
Today’s has an article showing the two schools of thought that now take residence inside our Supreme Court.

The dueling opinions themselves were relatively straightforward; as has
often been the case in the court's recent past, although not so far this term, the justices revealed their real feelings in the footnotes.

Writing for the majority, Justice David H. Souter said the search was unreasonable,
given the vocal objection of the husband, Scott Randolph. True, Justice Souter said, the court had long permitted one party to give consent to a search of shared premises under what is known as the "co-occupant consent rule." But he said that rule should be limited to the context in which it was first applied, the absence of the person who later objected.

The presence of the objecting person changed everything, Justice Souter said, noting that it defied "widely shared social expectations" for someone to come to the door of a dwelling and to cross the threshold at one occupant's invitation if another objected.

"Without some very good reason, no sensible person would go inside under those conditions," he said.

"We have, after all, lived our whole national history with an understanding of the ancient adage that a man's home is his castle," Justice Souter said. "Disputed permission is thus no match for this central value of the Fourth Amendment."


"The fact is that a wide variety of differing social situations can readily be imagined, giving rise to quite different social expectations," Chief Justice Roberts said. For example, he continued, "a guest who came to celebrate an occupant's birthday, or one who had traveled some distance for a particular reason, might not readily turn away simply because of a roommate's objection."

Noting that "the possible scenarios are limitless," he said, "Such shifting expectations are not a promising foundation on which to ground a constitutional rule, particularly because the majority has no support for its basic assumption — that an invited guest encountering two disagreeing co-occupants would flee — beyond a hunch about how people would typically act in an atypical situation."

I find the differences in interpreting the law by these two groups to be quite interesting. The majority opinion seems to take into account the Constitution and its original goal of protecting the people. This isn’t surprising to me, because of the judicial philosophy of the dissenting justices. They believe that the law should only be established exactly as is written in the Constitution. I find this to be a dangerous philosophy. The world has changed a lot since the drafting of this document and will continue to do so… forever. We must look at real world situations and think about the ways the Constitution would apply to them, even if it isn’t completely spelled out.

The Roberts/Scalia types seem to still be in the minority. Hopefully God will not answer Pat Robertson’s prayers to get rid of one more judge, allowing Bush to appoint a third.


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