Tag Archives: scalia

McArdle on Scalia

Blog-favorite Megan McArdle has a column on replacing Justice Scalia, which largely tracks what I wrote yesterday. The reason she’s a blog-favorite, though, is the insight she adds about the political process:

But [getting your way through the court rather than legislature] doesn’t fix the political problem. It only moves it to the question of how the justices are picked, a question that is about to catapult our political system into a new, and more dangerous, level of crisis. For if you leave people no way to work through the system, they are apt to start working against it instead.

I failed to point this out yesterday, but she’s right that the fights you would normally have in the legislature through voting and lobbying (on abortion, gay marriage, campaign finance, etc) are now fights about stacking the federal courts. Getting your way on an issue here or there is nice for the people involved, since it’s difficult to pass constitutional amendments on a contentious issue, and also rare that SCOTUS overrules an important precedent quickly. However, The same goes on issues you lose on, so for most people in the political mainstream it’s a wash. (Worse, making something constitutional law is an inflexible approach, while democratic legislating is at least adjustable.)

Now, instead of having to lobby for a law, you have to make sure to elect senators who will approve judges you like. All the issue-specific voting and lobbying is now transferred to the legislative level. This has led to higher and higher polarization as all issues, effectively, are handled this way, rather than one-by-one. Meanwhile, the energy and money spent on lobbying has to go up because each election is so much more consequential.

Basically, this is a stupid system.

Just The Tip: The Supreme Court Circumcizes The Fourth Amendment

The US Supreme Court decided Navarette v. California today and rendered what I consider the worst decision since NFIB v. Sebelius. The tiniest silver lining of this decision is an excellent dissent by Justice Scalia (in which, oddly, all female Justices joined), but the case gives police a huge loophole around the Fourth Amendment. Jonathan Adler and Popehat have more.

In the case, police received an anonymous tip that a pick-up truck had run the tipster off the road, and a police car found a truck matching that description in the approximate area where the tipster indicated it would be. Police followed the car for five minutes but it violated no traffic laws. Police went ahead and stopped the car, ultimately finding marijuana. The tipster was never identified and was not involved in the case.

The majority decision is baffling, finding that because the tip is enough for a stop because the anonymous tipster (1) called shortly after the alleged incident, (2) correctly identified where the truck might be, and (3) called 911, the tip is credible. Of course, a lying tipster who wanted your car stopped because he hates you could also call “shortly after” a fabricated incident, identify where your car might be because ANY OBSERVER COULD, and call 911 from a pay phone or a burner.

What you can expect immediately are a lot more anonymous tips that meet these criteria, alleging a single traffic violation and permitting police to pull over the alleged violator. Many of those tips will come from the police* or their allies, calling in tips to allow police searches that would otherwise be constitutionally impermissible. I’d do it myself if it weren’t wrong, even though I’d like to have everyone who agrees with the decision harassed for no reason.

*Fun fact: the tipster in this case provided the truck’s full license place number, a fact that bothers me because I can’t picture someone memorizing it while being run off the road by a truck that speeds away. The 911 call could not be traced to a location – the police don’t even know in which county the call originated. In a mystery novel, it would eventually emerge that the police placed this anonymous call because they knew of the marijuana through illegal means.

Scalia’s dissent is a classic Scalia Fourth Amendment dissent, careful to use case law to bolster its findings but readily attacking the majority’s decision with hypotheticals and likely consequences of this case. Scalia makes no mention of this, but the Fourth Amendment is being gutted constantly (hi, NSA), and this is just the next step. I’ll let Scalia close:

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunken­ness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point his word is as good as his victim’s.

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.