Wednesday, March 22, 2006

The Chief Justice

According to a majority of his colleagues, Chief Justice Roberts and his legal reasoning are "silly." His argument is "improbable," and a "red herring."

Roberts argued that police should be allowed to search a house without a warrant when two residents are present and only one gives permission, the other refuses. A five member majority disagreed, holding that two homeowners both present at the time of a voluntary search must both consent to the search. I agree.

The majority took the more libertarian view, Roberts and his new friend Scalia took the authoritarian view that a tie should go to the police, slicing away the individual liberties of citizens. This will be the Bush legacy on many levels, a step closer to a police state and less room for individual citizens to control their own lives.

There's also a fascinating back and forth between Justices Stevens and Scalia about the nature of originalism. In the end, Scalia seems to agree that, at best, originalism gives only ambiguous guidance to interpreting statutes. Stevens pointed out that 18th century law gave men exclusive power over their property, and argues that a woman alone might not have had the power to permit a voluntary search in that era. Originalism would then reach a result we find bizarre and unacceptable today.

Scalia counters by saying that originalism is tricky and doesn't give a clear answer.

Which is precisely the problem.