The Fourth Amendment Under Roberts

If Thomas, Scalia, and Roberts had had their way, our Fourth Amendment rights against warrantless searches would have diminished earlier this week. This editorial from the Roanoke Times is a little crude, but get the principle right. And this part puts the “conservative” justices’ argument in a nutshell:

The court Wednesday ruled 5-3 that police without a warrant may not search a home when a resident expressly denies permission, even if a different resident grants it.

Chief Justice John Roberts joined Antonin Scalia and Clarence Thomas, arguing “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” unless someone else who lives there says it’s OK.

I suppose not only Roberts but a whole generation of right-wing lawyers starts from a presumption against the rights of the individual — and in favor of government. This is not news, of course, but it’s always dismaying to see this judicial philosophy in action. From the left you get judicial taxation and busing, from the right you get warrantless searches and deference to executive power. Nothing like a Jeffersonian perspective has a voice on the court. But this time, at least, the liberals did the right thing.


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