March 25, 2006
My Thoughts on Georgia v. Randolph
In Georgia v. Randolph, a case decided this week, the Supreme Court held that when one co-occupant of a residence consents to police entry into the home, and the other co-occupant, who is present on scene, objects, the police may not enter the home.
My first thought is that it will be unusual for circumstances analogous to those in Georgia v. Randolph to occurr. How often is the co-occupant present when the police arrive? The dissent is concerned about the impact upon victims of domestic violence. Putting asside the issue of whether Roberts and Scalia are not being true to their conservative judicial philosophy by permitting their fourth amendment analysis to be bent by concerns over a popular, albiet important, social issue, the dissent just has no idea how domestic violence cases are investigated. When a purported domestic abuse victim calls 911 reporting that the alleged abuser is in the house, responding officers know what to do to ensure their entry into the home is justified by the "exigent circumstance" of preventing further domestic abuse or by preserving evidence of domestic abuse. In practice, it is fairly easy for officers responding to a domestic violence call to either obtain the needed consent, or to adequatly justify their entry into the home. Right or wrong, the courts seem very willing to listen to an officer's justification for the entry.
Posted by Tim Warriner at 06:54 AM
June 08, 2005
Some Thoughts About Raich
I am not surprised at the result reached by the Suprememe Court in Raich given how easy it is to justify congressional action under the commerce clause. What is interesting about Raich is that the opinion expressed genuine concern for the needs of the patients, and suggested that the government's actions were unwise. While medicinal use is not a defense in federal court, language from Raich may potentially be used as a basis for sentencing departure.
I am afraid the court's concern will not carry much weight as medicinal use proponents seek a law prohibiting federal interference with state medical marijuana programs. One danger of congressional action in the medical marijuana field is the potential for federal preemption. In other words, congress could impose burdensome requirements upon medical use programs, or could punish states that have such laws by denying federal funds. For that reason, congressional inaction may actually be the best course.
Posted by Tim Warriner at 05:57 AM
April 03, 2005
The New Yorker on Justice Scalia
Margaret Talbot's piece about Justice Scalia ("Supreme Confidence") in the March 28, 2005 New Yorker provides some excellent insights. Talbot does a great job explaining Scalia's "originalist" jurisprudence. While he is a man of great intelligence, his rigid judicial philosophy has created conflict on the court, particularly with O'Connor. The exception to this is apparently Justice Ginsburg, with whom he maintains a friendship. Talbot writes that "despite Scalia's failure as a politician, he has influenced the way the Rehnquist Court approaches jurisprudence. . . . Under Scalia's brusque tutelage, the other justices have paid closer attention to the language of particular statutes." Talbot has written an interesting and readable profile of this enigmatic jurist, and I would highly recommend it to you.
Posted by Tim Warriner at 09:27 AM