Georgia v. Randolph: "A warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident."
The ruling was 5-3, CJ Roberts dissenting, Alito not participating. A reasonable assumption would be that if he did, he would have joined his ideological brethren. Thus, 5-4. Kennedy provided the swing vote.
The ruling was a narrow one, but it does answer some who think that the 4A is dead now that Alito is on board. The case concerns the right of one owner/leaser having the right to block entry to the police, even if the other consents. They do: if they are at the door when the police arrive. If they are sleeping in the next room, things change. I think this is a bit too narrow, though there was probably no majority for a broader test, one that might be a bit more messy in practice. Still, if the police knows a husband is in the next room, not asking his consent as well is a bit ridiculous. But, the dissent alternative of going to the other extreme is worse.
Justice Souter wrote the opinion and was a bit sharp concerning the Chief Justice's disrespect for privacy. The ruling also concerns modern expectations of privacy and the pragmatism of clear rules in 4A law. Meanwhile, Stevens and Scalia snipe at each other in separate largely gratuitous opinions, concurring/dissenting. In the NYT, Linda Greenhouse used the cases to suggest the possibility of hard feelings and divisions on the Court, while the sniping was seen as pretty playful -- old foes raising their usual arguments. It is notable how such opinions tend to be a way for the judges (and their clerks?) to not only dryly note legal reasoning, but do so in a way that suggests this stuff affects them personally as well. Sometimes, arguably, laying things a bit thick.
But one case, but perhaps somewhat symbolic of what will come. One might also note Justice Breyer's concurrence, which suggests that his concerns for domestic violence cases* made him a possible vote for the Chief Justice (making it 4-4, and the case of no precedential value), and tendencies to split the baby. In this fashion, he too is a potential swing vote, and his tendency toward centrism belies cries that he is some kneejerk liberal. On that front, in fact, Justice Souter might be more consistent -- in a liberal Republican sort of way.
Liberal Republican? Sort of like the unicorn, huh?
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* Another potential application of this theme, which Justice Souter rightly suggests is makeweight here (if there is a chance the wife is at risk, personal safety supplies an exception to the rule), arises in a pending case. The case involves the use of 911 calls in trials without allowing the defendants to crossexamine the person who made the call. This is suggested as a legitimate exception to the right to confront your accuser, since the person is not really "testifying" when they made the call.
I really do not see how this follows, besides the fact that the calls can very well in various cases be fraudulent or in some fashion confused/untrue. The very reasons we allow confronting accusers -- a principle that even arises in some fashion when the quality of a machine used to incriminate (such as a breathanalyzer) is at issue.
Nonetheless, I just heard a preview of a talk show that suggests requiring confrontation here would threaten the fighting of domestic violence. To the degree constitutional rights do so, I guess that is correct.