Somehow, I’m not terribly surprised that this discussion has veered from a discussion of Alito’s opinions to a discussion of his opponent’s motivations.
But for the sake of pissing in the wind, let me state for the record that the “strip-searching” case to which Evil Captor refers does bother me, a hell of a lot, and yes I have read the opinion thank you.
Alito said, to paraphrase, “No the warrant didn’t include the persons of the mother and child who were strip searched, but that’s okay because we can reasonably assume the magistrate who signed the warrant knew that the police intended to search them if necessary.”
Got that? According to Alito, warrants mean what judges like him think that the judges who signed them meant, after the fact.
Kneecapping the 4th Amendment is what I consider an “extreme position”.
This issue comes down to the fact that affidavite attached to the warrent did reference the need to search others in the household, and whether or not the cops REASONABLY could have expected that the warrant gave them that authority. That was the issue.
I may very well have ruled with the majority on this case, but Alito’s decision wasn’t pulled out of thin air, nor was it unsupported by precedent.
I think it’s unreasonable to expect that you would agree with every ruling of a judge in order to endorse him. We don’t know how the SCOTUS would have ruled in this case, since it didn’t go further. But, let’s look at his opinion in *Casey *(the spousal notification of abortion case), which is often cited as an “extreme” position. Four sitting SCOTUS justices agreed with Alito. Saying that his opinion makes him an extremist is absurd, in light of that fact. If, OTOH, he had a fari numnber of decisions that had been overuled by a unanimous (or near unanimous) SC, then we might reasonable consider him an extremist.
So the text of the warrant means nothing, then? The warrant only means what the cops can reasonably expect it to mean?
To quote from Alito’s own words in the dissent:
He is literally reading the mind of the magistrate after the fact to try and argue that the warrant meant something other than what it actually said! He cites United States v. Ventresca which says that warrants are to be read “in a commonsense and realistic fashion” and then does rhetorical backflips for two pages to conclude that “commensense” means “reading things that aren’t there”, all because that’s what the police must have really meant and the actual text of the warrant be damned!
It’s not a matter of me not agreeing with every ruling of Alito’s. It’s a matter of me realizing that Alito has no trouble bending over backwards to stick a knife in the ribs of the 4th amendment…you know, the one that says “and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”. Ignoring the text of the warrant in favour of what he supposes after the fact that the police and magistrate actually meant: that’s an extreme position.
jshore’s article in post #52 is very interesting. The NY Times has no idea what judicial activism is! (Or maybe they’re trying to change the definition?)
Overturning the congress is the job of a judge. If congress passes an unconstitutional law, then it’s their duty to overturn it. It’s the job of the court to act as a break pedal for the congress overstepping it’s authority. It doesn’t surprise me a bit that conservative judges overturn congress more often. They tend to be better judges!
Guess what… I agree with you on something. I served on a jury to put one of these crank dealer types in jail. I share yours and Alito’s disgust with the sort of people who make and distribute, and who don’t care about ther well being of any children unfortunate enough to have to live there.
As it stands now - Alito has experience as a judge. He has the training (obviously). He has a paper trail of opinions and rulings that we can actually see (as opposed to “trust me” Miers). He is qualified. I looked at some anti-Alito sites, and they looked to me like “attack editorials”, based on my very cursory first glance. If he rules according to what The Law says, and what The Constitution says, then that’s ALL we should expect or ask. If he goes into “penumbra mode” and makes overbroad decisions based on his own personal ouija board, then he will be overstepping his bounds.
You’d be right if there was absolutely no reference to other occupants. But that’s not the case. The affidavit, which is referenced on the warrant, specifies other people on the premises. In fact, the officers note that there simply wasn’t room on the form to list other names, which is why the noted that 3 separate times on the affidavit. Why do you consistently ignore that part-- because you didn’t read it, or because it doesn’t support your cause?
Like I said, I might disagree with this particular ruling, but there is no attempt at mind reading, as you claim, and there is no attempt undermine the 4th amendment.
Here is what Phyllis Schafly had to say in a column about “judicial activism”:
And so forth. This has been the general tone of the conservative argument, i.e., that liberal judges overturn the Democratic decisions of the legislature on the basis of some vague Constitutional right.
However, what that study shows is that in fact the more conservative judges are striking down acts by Congress more often than the liberals. Thus, it seems like the conservatives are fine and dandy with the democratic will of the people being overruled provided they happen to agree with the decision!
Now, you might come back and try to argue why you think that it is somehow less activist to vote to overturn more of the laws of Congress on the cases that have reached the Supreme Court. So, have at it.
Otherwise, it seems like “activist” is a synonym for judges ruling the way you happen not to like.
Far be it from me to defend Schafly, and I don’t know that I’d agree with her interpretation of “judicial activism”, but you might note that most of her examples are instances of state law overturned by Federal Judges. As I noted in the other thread. one would expect non-activist federal judges to overturn more federal than state laws, since the federal constitution places much more constraint on Congress than it does on the States. That’s the key that I think you are missing.
Well, now, there is that word “particularly”, meaning, as I understand it, a specific and discrete entity or entities. “Joseph Blow, Jesse Blow, little Joe Jr.” is specfic, “whoever happens to be there when we get there” is not.
And this stuff about the affidavit. Does that really matter? Does the warrant say “whoever is named in the affidavit”? Or is the affidavity intended to inform that issuer of the warrant of the allegations involved, and the warrant is a seperate legal entity entirely? (Jeez, lawyers gotta think this way all the time? No wonder they drink.)
There is another important issue* that I think is being missed. If the police violate procedures, but didn’t willfully do so, then you don’t get to claim they acted illegally. In this case, the police claim they concluded that the warrant DID give them the authority to search “anyone on the premises”, due to the attachment of and reference to the affidavit. The question then becomes, did the police abuse their authority knowingly, or did they act in good faith?
Okay, fair enough. So really, as it applies to judges on the Supreme Court, the argument about judicial activism really has nothing to do about this mumbo-jumbo about usurping the power of the legislature…It has to do about an argument about federal vs. state rights? If that is the case, I think it would be nice if:
(1) …someone would go back and show that the reason why you get this positive correlation between a judge’s conservativism and voting to overturn Congress is that many if not most of the cases involved federal vs. state authority and if you removed such cases, you would no longer see this correlation (and perhaps see a negative correlation?). In other words, you have a reasonable hypothesis but has not yet been shown to be true.
(2) …those conservatives who believe that judicial activism has nothing to do with whether or not a judge overturns the legislatures decisions would jump on those conservatives who phrase it as an issue of the Imperial Judiciary running roughshod over the will of the people as expressed through their legislatures.
The affidavit references other occupants. The warrant did not. And while the warrant did refer to the affidavit when discussing probable cause, it did not refer to the affidavit when discussing who and what was to be searched. If it had…if the warrant had said “all persons and places discussed in the attached affidavit” or somesuch…then this wouldn’t be an issue.
But it didn’t. The warrant, in the section describing who and what was to be searched, described John Doe and John Doe’s residence. Period.
Apparently the 4th amendment is trumped by the size of the forms available to police officers. Silly me.
Because it’s irrelevant. The 4th amendment doesn’t say “and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized, unless the police officer’s forms are too short, in which case whatever’s written on the affidavit or whatever we think the magistrate meant after the fact is fine.”
No, because a police officer doesn’t have to have a warrant to search you, he just has to have probable cause. Since the cops referenced the affidavit in the “probably cause” section of the warrant form, and the magistrate accepted the warrant w/o modificiation, it is REASONABLE that the cops felt they could assume they had established probable cause. You may disagree with that, but it’s not an outrageous position. See my last post (directed at elucidator) for more details.
I’ll let that part stand on its own.
See my post above concerning probable cause. If want to continue arguing that Alito would have crippled the 4th amendment with his decision, then we’re done here, because that is plainly not the case. I’m sure if this is as you see it, it will come up in the confirmation hearings and we’ll get the whole story.
I think, if the police were searching a crack house, then even though I disapprove of strip searching toddlers (to make it sound more dramatic), then there was probable cause to search anyone on the premises. People are not there for tea and biscuits after all. Feel free to call me a reactionary conservative freedom hater now
I’m not sure if you are just being polite and avoiding the obvious circumstances this is aimed at, but isn’t this most likely going to involve occasions where the husband is not the father? Should the woman be compelled to discuss it with her husband then? Why?
Going purely by the text of the 4th amendment, I’d say there’s no reason at all to think other people on the premesis can’t be searched without being named on the warrant. It’s seizure that requires that each person or item be specifically named.
Any lawyer dopers care to tell me where I’m off-base on this, or what Court decision (at least prior to the case we’re discussing in which Alito dissented) states interprets it to mean that each person in a place named on a warrant must have their names on the warrant as well in order to allow the police to search them?
Let’s be serious. Do you honestly think it is ever going to be “clear” that any nominee, including Alito, will overturn Roe? These guys are smarter than that…
But you do know that polls can be tricky and it depends on how one asks the question, right? How many people think that Roe being overturned = abortion becomes illegal?
