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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Thursday, January 22, 2009

Herring Case Dishonors Privacy Rights

And Also: The Jets' QB wasn't selected on merits to go to the Pro Bowl, though like the All Star Game, that is partially based on celebrity / past glory. So, it is nice really -- especially with his late season problems -- that Kerry Collins will go in his place. Today would be a symbolic day to do it, see below, but Obama should honor Roe's anniversary soon enough.


The corrupt election of 2000 brought many things, but one was the ability of the winner (after re-election that was fruits of the poisoned tree) to nominate two key justices to the U.S. Supreme Court. Consider if Al Gore won and was able to pick a new Chief Justice and a replacement to swing vote O'Connor, instead of someone who assisted in preparation of the wrong side in Bush v. Gore and the one person who decided to not show up for some reason when Obama/Biden visited the Supreme Court. Two people, who will likely be with us for some time, maybe even twenty years or more. Furthermore, the immediate concern is but replacement of "liberal" justices. That is, holding the line. It is on some level a tad bit depressing. So, like the Dixie Chicks say, I'm not ready to make nice. Sorry, Obama, I'm looking to the past too.

The importance of just the O'Connor vote is suggested by how her replacement voted in two areas: the deciding vote in the "partial birth" abortion case and in the continuing abridgment of the exclusionary rule. Justice O'Connor concurred in a predecessor to the recent case on this subject to reaffirm that she agreed with its importance, even in the area of computer databases. It is often a risky bet to decide how she would vote, but one very well might think the 5-4 Herring v. U.S. (thus federalism wasn't particularly at issue) would have gone the other way with her on the Court. Surely, if there were two Gore justices, it probably would have. The school choice case a couple years back also very well might have been different. And so on.*

Herring is yet another ruling that in effect bad mouths the exclusionary rule while admitting it is still around. In the "no-knock" warrant case, Justice Kennedy concurred in part to send a message that Justice Scalia's bad mouthing should not be assumed to mean that it no longer is relevant. All the same, the breadth of such a "message" is unclear, in that Kennedy after all concurred with the majority. Still, it's helpful for lower courts to have such things to hang on to when they decide matters where there is some wiggle room. And, faux or not, Roberts minimalism at the very least provides an opening that Scalia/Thomas often wish to slam shut. Concurring opinions and such are all part of a chess game, not just a chance for judges to hear themselves talk ... though they can be interesting on that level alone.

Anyway, Herring continued the bad mouthing, talking about the "marginal" value of the rule in various cases and how it really isn't constitutionally required, just a remedy for violations. As noted in this essay, we hear of it being a "last resort," a clear wink that one should bend over backwards to ignore this "technicality." And, furthermore, as the headnotes suggest: "The fact that a search or arrest was unreasonable does not necessarily mean that the exclusionary rule applies." So, even if there is an "unreasonable" search or seizure, the resulting evidence might be admitted. The opinion emphasizes how various key rulings involved particularly heinous practices, clearly suggesting some sort of balancing test, not a rule against warrantless searches were involved. This is simply spin that Roberts might have learned from his predecessor, who was known to play precedent this way too. [See, e.g., The Brethren.]

It is left to Ginsburg this time to remind what exactly is at stake here, what exactly is the logic behind a rule that a majority -- to different degrees -- of the Court simply doesn't much like. She was down this road before,** as was Breyer [no knock warrant dissent], Stevens, and many others. Lest we forget Mapp v. Ohio was written by a former Attorney General, one conservative (e.g., dissenter in Miranda) in various respects. Or, how about a predecessor, Robert Jackson [per Stevens, who has a longer quote]:
Courts can protect the innocent against such invasions only indirectly and through the medium of excluding evidence obtained against those who frequently are guilty. . . . So a search against Brinegar's car must be regarded as a search of the car of Everyman.

As Mapp noted, sometimes the guilty is let free, but the law does it. The exclusionary rule was firmly applied to the feds almost a hundred years ago, in part because the judiciary should not be tainted with illegal evidence. Justice Holmes repeatedly made that point, including in his own dissenting opinion in the famous Olmstead ruling. A criminal should not benefit from his/her crime, even if it is the government. Justice Ginsburg reminds us that the exclusionary rule also reflects the deterrent effect of tort law, including when dealing with the acts of underlings. Schools are liable for discriminatory acts of teachers after all. And, as Justice Stevens once noted: "Society, rather than the individual officer, should accept the responsibility for inadequate training or supervision of officers engaged in hazardous police work."

Today is the anniversary of Roe v. Wade, the most infamous recognition of a constitutional right to privacy. Its infamy in some quarters is in part a reflection of the lack of respect or even understanding of the underlining principles at stake. This connects to my recent citation of an article discussing how woefully uneducated we as a society are about scientific matters. The seminal case in this area, of course, is Griswold v. Connecticut. The case was not just new law. See, e.g., the concurring opinions in Roe itself and Doe v. Bolton as well as the dissents in Poe, and Griswold itself. It honored a "right to privacy" based on precedent, including Mapp v. Ohio (whose author joined Douglas' opinion in Griswold), which applied the exclusionary rule to the states. As with Roe, the security of privacy there was no less important because the path to recognizing it is not blazingly obvious.

If the Supreme Court will consider an important security of the privacy specifically honored in the Fourth Amendment as largely of "marginal" importance, privacy overall is in danger. Herring's application of this trend to computer databases, of growing concern as shown by acts of the Bush Administration and its congressional enablers, only makes it oh so more topical. As Obama noted respecting openness of presidential records, just because the law might allow the opposite, we should not ignore that the opposite path should be our default. Restraining violation of our privacy and governmental action that threatens it should not be a "last resort." As with Obama taking the oath a second time because a word was said out of order, better safe than sorry.

The dangers of governmental officials, especially the police, making mistakes (and the Court here didn't even think some negligence was enough) because of bad computer data is well known to "Everyman." But, the majority was fleshed out by justices appointed by an Administration with somewhat different priorities. Elections apparently matter.

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* The judgment there was rather unsatisfactory. The case turned on Justice Kennedy's vote, one that rejected the plurality's stronger opposition to race conscious programs. But, he ultimately relied on relatively narrow concerns in striking down the programs at issue, concerns that Justice Breyer answered in dissent ... with no reply from Justice Kennedy. One was thus left with lack of clarity of what exactly would be allowed. I'm sympathetic to Kennedy's concerns, but he did not really answer Justice Breyer's strong dissent ("I must dissent") either.

Justice O'Connor would have probably had a stance around that of Kennedy, probably a bit more liberal, thus the result would have been noticeably different. Anyway, given Kennedy was the swing, he should have wrote the opinion, since his stance is in effect the law of the land anyway. The plurality claimed to have decided things on more narrow grounds, but its rhetoric -- which Kennedy rejected -- made such "minimalism" ring false.

** She dissented there, the same case where O'Connor concurred separately as noted above, specifically to address the Supremes going out of its way to strike down a state ruling, in the process setting forth a national rule of conservative flavor. Stevens has long opposed this path (see citation of Michigan v. Long, another Fourth Amendment case), including when accepting cert. might have led to liberal results (see citation of McCray v. N.Y., racially based peremptory challenges). Some consistency there.