Kagan Does Her Thing

[I felt the dog sniff ruling decided yesterday generally sound, but wish to reaffirm that the overall use of dogs as a means to search cars is a problematic enterprise. I agreed with the two dissenters in Illinois v. Caballes and even if the dog is not "wrong" in that s/he smells something that was there, such smells should not always warrant a search of a car.  Passing thru a park where people were smoking pot or the like could provide probable cause to search a car.  But, the ruling decided a narrower question and I think it was a reasonable ruling on that level.]

Yesterday, there was an interesting split of Scalia and Thomas, Breyer joining Alito and his pal in dissent. Today, Kagan and Sotomayor (who wrote a 8-1, Alito dissenting, opinion herself on a narrow double jeopardy issue) split on the proper rule for retroactively applying a rule (more Teague fun).  Don't really wish to determine who is correct (Ginsburg joined Sotomayor in dissent), but either way, Kagan's straightforward talk showed up:

The separate opinions in Padilla objected to just this aspect of the Court’s ruling. Dissents have been known to exaggerate the novelty of majority opinions; and “the mere existence of a dissent,” like the existence of conflicting authority in state or lower federal courts, does not establish that a rule is new. But the concurring and dissenting opinions in Padilla were on to something when they described the line the Court was crossing. “Until today,” JUSTICE ALITO wrote, “the longstanding and unanimous position of the federal courts was that reasonable defense counsel generally need only advise a clientabout the direct consequences of a criminal conviction.” Or again, this time from JUSTICE SCALIA: “[U]ntil today,” the Sixth Amendment guaranteed only “legal advice directly related to defense against prosecution” of a criminal charge. One need not agree with any of the separate opinions’ criticisms of Padilla to concur with their view that it modified governing law. [some cites omitted]

I particularly like the "on to something" bit.  Along with CJ Roberts, Kagan has a refreshing down to earth style.  Alito and now Sotomayor has a more workmanlike style, Sotomayor relaxing it when writing her autobiography, noting the two media follow different rules. Kagan has already showed her verve, including in dissent, not as blunt as Sotomayor at times can be (seen mention that Alito and Sotomayor are in effect the "enforcers" of both sides) but in her own Manhattan Jew sort of way.*

Thanks for theses justices, President Obama. Anyway, another day, another bunch of some narrow rulings, some helping defendants a bit.

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* I am from NY and have my own ethnic connections, so think I can say that.  The "Jew" part might sound stereotytpical, but come on -- she does have that sort of schtick at times.  Seinfeld and Nanny Fine would understand.