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May 26, 2009

Justice Alito Politely Twits Liberal Justices for Hypocrisy

What is it, Law Day around here? Sheesh.

This morning the Supreme Court issued a decision (PDF) which overturned a 23 year-old precedent which held that police officers cannot continue to question a defendant once he has requested an attorney. The Court split 5-4 with Kennedy siding with the conservative justices. I'm not sure they came to the right conclusion, (I tend to think that once a defendant asks for a lawyer the police should not continue to badger him into confessing; he has a right to an attorney) but ignore that for now.

Whenever the the Court is asked to reconsider precedent--aside from whatever substantive issues a case may involve--there is always a lot of quiet infighting. The idea of "superprecedent" and Roe v. Wade is never far from the justices' thoughts. So Justice Alito's concurring opinion today, where he is joined by Justice Kennedy, makes interesting reading.

The short version is that he bitchslaps the liberal justices for hypocrisy on the issue of precedent. The funny part is that he uses a technique common among bloggers: he does the old switcheroo to use the the justices' own words against them. Alito's concurring opinion begins on page 24 of the PDF. I've tucked the important part (edited to remove citations) below the fold:

Earlier this Term, in Arizona v. Gant, 556 U. S. ___ (2009), the Court overruled New York v. Belton, 453 U. S. 454 (1981), even though that case had been on the books for 28 years, had not been undermined by subsequent decisions, had been recently reaffirmed and extended, had proven to be eminently workable (indeed, had been adopted for precisely that reason), and had engendered substantial law enforcement reliance. The Court took this step even though we were not asked to overrule Belton and this new rule is almost certain to lead to a host of problems.

In light of Gant, the discussion of stare decisis in today’s dissent* is surprising. The dissent in the case at hand criticizes the Court for “[a]cting on its own” in reconsidering Michigan v. Jackson, 475 U. S. 625 (1986). But the same was true in Gant, and in this case, the Court gave the parties and interested amici the opportunity to submit supplemental briefs on the issue, a step not taken in Gant.

The dissent faults the Court for “cast[ing] aside the reliance interests of law enforcement,” but in Gant, there were real and important law enforcement interests at stake. Even the Court conceded that the Belton rule had “been widely taught in police academies and that law enforcement officers ha[d] relied on the rule in conducting vehicle searches during the past 28 years.” And whatever else might be said about Belton, it surely provided a bright-line rule.

A month ago, none of this counted for much, but today the dissent writes:

"Jackson’s bright-line rule has provided law enforcement officers with clear guidance, allowed prosecutors to quickly and easily assess whether confessions willbe admissible in court, and assisted judges in determining whether a defendant’s Sixth Amendment rights have been violated by police interrogation."

It is striking that precisely the same points were true in Gant:

“[Belton’s] bright-line rule ha[d] provided law enforcement officers with clear guidance, allowed prosecutors to quickly and easily assess whether [evidence obtained in a vehicle search] w[ould] be admissible in court, and assisted judges in determining whether a defendant’s [Fourth] Amendment rights ha[d] been violated by police interrogation.”


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posted by Gabriel Malor at 11:41 AM

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