Your link says nothing about the ability of police at a DUI checkpoint to “…search you and your vehicle any time they want to, without probable cause or a search warrant.”
I ask again: in what jurisdiction can police search you and your vehicle any time they want to, without probable cause or a search warrant?
…and? In what specific way does the brief stop occasioned by a DUI checkpoint violate the right of the people to be secure in their persons?
How so?
I wasn’t aware that the criticism of Scalia was that he was a traditional conservative. That’s not how I see him but if so, I withdraw my objection. After you cite that assertion, of course.
I won’t blame you if are unwilling to take the time to provide evidence for your opinion here. I don’t care to look for evidence of my opinion that those three justices are merely less conservative than the others or that the goal of the owners of the Republican Party in packing the courts are enhancing their economic prospects. That’s why I’m careful not to make those assertions.
[QUOTE=Scalia, J, dissenting]
Whether a drunk driver drives drunkenly, the Court seems to think, is up to him.
[/QUOTE]
My favorite quote of the opinion. And I heartily agree with Scalia. The next time I want to screw with someone I’m following, I’ll call in their vehicle description and license plate number. Bam! Reasonable suspicion for a DUI stop.
Consider that the principle of analysis he favors is conservative, not simply some objective, unassailable philosophy, and incorrect
Consider that the liberal outcome is the correct one
That’s why people give him crap
This is one of those things you can get away with once…twice…maybe three times… But if a pattern occurs and you abuse it, it might get traced back to you, and I don’t think prosecutors would be at all reluctant to take it to the hilt.
Not too long ago, in Los Angeles, someone “SWATted” a house, calling in an emergency situation, shots fired, hostages taken, etc. Oh, how fun, to watch the major police response, blocking off the street, deploying, shouting through loudspeakers, etc. Just a cute harmless prank…
This is the NSA era… “Anonymous” phone calls might not be as untraceable as we think…
SWATing someone - calling in a fake call that there is something immediately dangerous going on is giving a false report. It can be determined that you are lying. Calling in a tip about a driver would be impossible to falsify. “I saw him swerve into other lanes and it appeared he was drunk”. I can shout that at the top of my lungs, give you my home address 7 days a week and there is nothing you can falsify about that. It’s my word against someone else’s and that is ripe for abuse.
Guy cuts you off for some reason or no reason, simply call 911 and report his license plate and say that he appeared to be drunk. Now he’s having a bad day.
I would prefer that the police at a minimum observe some action on their own that would justify a stop. Beginning observation based on an anonymous tip is no problem.
This is not the first time I feel impelled to thank you for your honesty. I am firmly convinced you are far from the only participant here who believes this, but I think you’re the only one who is willing to eschew feigning adherence to a process and acknowledge that what you find valid is the liberal outcome, and as long as it’s reached, that’s correct.
But I don’t agree that’s true, especially when it comes to the courts.
The liberal outcome is not like physics or chemistry. Two atoms of hydrogen and one atom of oxygen form a water molecule, and no one who claims they form bronze or brass is correct. This isn’t a matter of any dispute.
But the liberal outcome is a matter of preference. It’s not unambiguously correct. It’s something that arises by accepting certain postulates about the proper role of government and the proper balances of individual freedom against the welfare of society.
In this country, we say that we vest ultimate sovereignty in the people, and that they exercise that power generally by electing leaders to act on their behalf. In this framework, we create a set of rules that are unchallengeable except by supermajority, other rules that are more susceptible to change by lesser majorities, and processes by which conflicts in these rules can be resolved.
Even if the liberal result is not reached, these processes should be honored. The reason is obvious: the liberal result is not correct in the same way as the molecular composition of water is correctly described. These processes, that framework, represent our collective agreement about how to handle disputes in ideas of governance.
Now, I readily admit that even those processes are not as well-defined as the composition of water. There is room for disagreement about the correct application of judicial philosophy.
But there should be something other than, “Determine the correct liberal result, then craft a rationale to adopt that result.” That philosophy means that judges become legislators, that the agents we have agreed would have the role of arbitrating conflicts in law are conceded to also be a super-legislator with the ability to create substantive law.
That’s not what we say we’re about.
The opinion is even worse than that. An anonymous tipster doesn’t have to say word one about the driver being drunk. Simply saying that he “ran me off the road” is enough to give a police officer reasonable suspicion that the driver is drunk. As Scalia pointed out, there are 100 other possible reasons why this may (or may not) have happened, and drunkenness is an extreme minority of those causes.
Yet the Court holds that it is reasonable suspicion to believe that drunken driving is afoot.
I should point out that “reasonable suspicion,” is a level of suspicion below that of probable cause. It simply requires that all the facts and circumstances, taken together, give the officer specific, articulable facts that support the belief that criminal activity may be involved. Reasonable suspicion allows only a brief, investigative detention, not a search or an arrest. And the purpose of that brief detention is to assemble additional information that will either confirm or dispel the suspicion.
Correct. But it is also “more than just a hunch.” This ruling allows hunches. I’m sure that there are a non-zero number of drivers who have swerved because they dropped a lit joint in their laps. Is an anonymous tip that a car swerved a reasonable suspicion that the driver possesses marijuana?
And how does an anonymous tip provide articulable facts? I know the opinion relied on the totality of circumstances and assessing whether the tip was accurate - but in this case there need be no observation of criminal activity. The totality of the circumstances being observed consists of legal activity - being in a certain place at a certain time - hardly suspicious of criminal activity.
I’m always honest, except when I’m not 
Are you saying you would never, ever use the word “correct” to describe a political side? This isn’t a ‘gotcha’ question, even if you did, I’m not going to search through the boards to point it out, I’m sure you try to adhere to a certain philosophy and misspeak sometimes.
I disagree. With philosophies dealing with measurable outcomes, one can certainly say that one belief or another is correct or incorrect if we use as a litmus test the predicted outcomes of some particular system. Liberals are correct, then, if we predict that by raising taxes on the rich, the average middle-class wealth of Americans will increase and then it actually happens.
What you are talking about seems to be more metaphysical. We can say with certainty in science that 1 + 1 = 2, but we cannot say that Marxism is bad, because the universe doesn’t have an objective standard of “bad” to define Marxism again. Its moral relativity 101. When you talk about preference, when you say that its a balance of one force against the other, what you are talking about is human created constructs with no objective, physical ideal. What I am talking about is not that but rather the accuracy of differing philosophies to achieve a targeted outcome.
How do you feel it should apply here? Should I not have based Scalia because I think he’s a conservative? Should I have bashed him, but only if I disagree with his logic and not his philosophy? What’s your goal here with those 2 paragraphs?
Should it? Even if I consider empirical evidence to support liberal results as correct and preferable most of the time? Why should I give conservative arguments the time of day if, to me, they are wrong most of the time?
I have no problems with that as long as they come to a correct (ie. preferable) conclusion
And how’s that going to work? Only Democratic presidents are allowed to nominate justices?
My approach would always be to try to use “correct” only in a clear context… (“The correct textualist analysis would reveal XXXXX.”) In other words, I hope I wouldn’t ever say that a particular political position was unambiguously, literally, correct. Because while I am absolutely convinced that my ideas are wiser than liberal ideas, I also acknowledge that this is the kind of determination that is not objectively provable.
Agreed.
I’m trying to draw the distinction between a judicial philosophy in which a judge is an umpire, applying the rules someone else wrote to the facts without trying to nudge a result one way or the other. A baseball umpire may feel that the strike zone should be narrower than the rules define it, but he should not put that philosophy into effect on his own…and he certainly shouldn’t do it only when it helps his favored team.
But here’s the problem: our system has legitimacy because we all believe that the rules are followed. If you legitimize the practice of judges picking the “correct” outcome from a political standpoint, you lose the ability to convincingly argue against your opponents’ use of the same tactic.
I couldn’t agree more. That way leads to anarchy. The reason why adherence to the rule of law is important is nothing short of the fact that it lets us sleep at night in peace. We aren’t all rioting in the streets and shooting people who slight us because we have confidence that if someone wrongs us, there is a peaceful way to resolve it. We know that even though the system isn’t perfect, it is still for the most part fair and plays by a set of predefined rules.
If I am a plumber and a customer doesn’t pay his bill, I don’t need to get my friends to go beat him with a baseball bat. I know that there is a court system that is open and fair in which I can be heard and recover money according to the rules. Maybe the customer declares bankruptcy and I still don’t get paid. Well, that sucks for me, but it is part of the rules that we as a society agree to follow.
That starts breaking down when judges become results oriented. If Judge Smith decides that he doesn’t like plumbers and refuses to recognize my contract on a whim and tells me that I don’t get paid just because he doesn’t like me, then I don’t feel that same security. I start thinking about getting my buddies with a baseball bat next time.
That would be a good way. Not realistic, but are we arguing reality or what we want?
Ideally it would work that way, but in reality, I think it almost never works that way. We have “liberal” and “conservative” justices for a reason, because given generally accepted definitions of what’s liberal or conservative, we have a degree of certainty that the 9 would each rule a certain way. Sometimes they surprise us, but not often. Your distinction that you try to draw is then simply excusing someone like Scalia for, in my opinion, factual wrongness because you don’t want to see he’s wrong or you don’t want to admit he might be wrong (or less accurate, or his views have less predictable reliability, or something)
If you are contending that Scalia is simply umpiring the law, then I think you are too idealistic. To me, he’s actively using his conservative biases to shape law by determining conservative outcomes first then finding a rationale for it. Of course nobody can prove that since it happens in his mind, but that is my belief. Contrast that with my disagreement with conservative philosophy, and you have a reason why I hold him and others out for scorn.
That’s if you think all sides deserve equal balance. I can simply say that only liberals should make rules. That doesn’t make me a hypocrite when I complain conservatives are. And since I don’t hold rules out to be some objective standard that must be followed simply because they are rules, then I feel no qualms about it. As for legitimacy, our system has legitimacy because people believe in it, like money has value because people believe a colorful piece of paper has value. I would like people to believe liberals making liberal rules as legitimate, I won’t apologize for that. And ultimately, I consider my arguments convincing if they are logical outside of political discourse. So if I say 1 + 1 = 2 and a conservative says its 3, then I believe that legitimizes my argument despite the fact that I am admittedly biased.
This would seem to make sense if only you didn’t post it in a thread discussing how Scalia sided with three liberal justices and would have created a liberal outcome in this case had he been in the majority. If what you said was true, Scalia would have crafted a rule to send these evil pot smokers to jail.
An anonymous tip that claims a specific car ran you off the road would seem to provide reasonable suspicion for reckless driving.
I think he is simply umpiring the law. That explains the times he sides with the “liberal wing,” even though other conservative justices do not.
The judicial philosophy he uses is textualism: the idea that a law means what it says, and is generally not possessed of penumbras, emanations, or additional non-textual material. This is associated with conservatives only because liberals are much more often seeking to expand the law’s protections and powers, and conservatives are generally not.
Some like Ginsburg or Sotomayor, whose opinions always end up on the liberal side, would be a fair target for the charge that they determine the outcome and then find a rationale. But Scalia’s record of sometimes favoring the liberal outcome suggests that he’s NOT picking the outcome first. He’s just saying that the text tells us what the law says, and if that text compels a liberal result, he may not like it, but he follows it.
But why should conservatives agree? Why can’t conservatives say that only conservatives should make rules?
The ultimate result of that standoff is our system: an agreement on how rules are made, and an acceptance of their validity when made thusly.