Tag Archives: Supreme Court of the United States

SCOTUS: Amply Serving Law Enforcement’s Interests versus Society’s

U.S. Supreme Court building.
U.S. Supreme Court building. (Photo credit: Wikipedia)

On June 23 the US Supreme Court ruled, in Birchfield v. North Dakota, that police officers may require suspected drunk drivers to take breathalyzer tests without warrants as required by the US Constitution’s Fourth Amendment and under criminal penalty should they refuse. The court did go so far as to leave the constitutional warrant requirement intact for blood tests. Associate Justice Samuel Alito, writing for the majority, lays out the chilling logic for differentiating between the two:

“Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. No warrant is needed in this situation. ”

Searching the shed behind my house would certainly be “significantly less intrusive” than searching my closet or requiring me to open the lock box in which I keep important personal documents. Does this mean that the police should be free to poke around in my shed without procuring  a warrant based on probable cause to believe I’ve committed a crime, if doing so happens to “amply serve their interests?” No, it doesn’t. The Fourth Amendment’s prohibition on unreasonable searches and seizures isn’t there for the convenience of law enforcement. It’s there to protect everyone else’s rights from abuses BY law enforcement.

And the thing is, it’s never been easier for the cop on the street to get a warrant within minutes, or to prove that the warrant application is (or was) justified. Most jurisdictions have  judges  “on call” to handle warrant applications 24/7. Between radios and cell phones, police officers are almost never unable to communicate with their departments or with those judges. Cell phone video, dash camera video and, more and more lately, body camera video are all available for reference to establish that probable cause exists (or, in retrospect, existed).

Laws requiring drivers to acquiesce in breathalyzer tests absent warrants — as well as other unconstitutional excesses such as random “DUI checkpoints” where drivers are stopped and interrogated absent any reason at all to believe they’ve committed crimes — aren’t about fighting drunk driving or making the roads safe.

These laws are about making law enforcement’s job easier. Which sounds nice, but gets things backward. A peace officer’s job is to keep the peace by the rules, easy or not. Absent those rules, cops become the public’s enemies rather than its servants.

These laws are about greasing the squeaky wheel. Mothers Against Drunk Driving (MADD), a tired special interest group that has long since fulfilled its founder’s purpose, is now mostly interested in keeping its revenues (more than $30 million per year as of 2013) coming by lobbying against the rights of those Americans who aren’t among its 400-plus employees.

And yes, these laws are at least a little bit about reminding the serfs just who’s in charge.

What these laws are not is constitutional. And that should be the only thing the Supreme Court considers in its deliberations.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

Election 2016: The Courtpocalypse and How to Delay It

English: President Barack Obama and Vice Presi...
English: President Barack Obama and Vice President Joe Biden with the members of the Supreme Court and retiring justice David Souter (Photo credit: Wikipedia)

Presidential election campaigns tend to follow a predictable issues timetable, but certain events can upset that timetable in a big way. The death of US Supreme Court justice Antonin Scalia is precisely such an event, and its consequences will be felt in November.

By the time Scalia’s body reached the funeral home, US Senate Majority Leader Mitch McConnell (R-KY) had already handed Democrats a great talking point and turnout motivator with his announcement that he intends to put off Senate confirmation of any replacement for Scalia for a full year, until a new president has been elected and sworn in.

The usual tactical approach when a president of one party nominates a candidate for approval by a Senate of the other party is basically brute obstructionism — dragging out the committee investigations, perhaps pushing back with the discovery or manufacture of scandals, and so on. McConnell could have almost certainly pulled that off. There would have been grumbling, but heck, there’s always grumbling.

Alternatively, a “consensus” appointee acceptable to both sides of the aisle might be allowed to run the gauntlet. In this case, the likely pick would be DC Court of Appeals judge Srikanth Srinivasan, who clerked for “conservative” justice Sandra Day O’Connor, worked in the Solicitor General’s office during the Bush administration, and was confirmed by a 97-0 Senate vote when Obama appointed him to his current post.

Instead, McConnell laid out an entirely new doctrine: When the Senate doesn’t like the sitting president, he says, it will just hold off on confirming Supreme Court appointments until it gets a president it DOES like.

Why is that such a big deal? Because the implications stretch far beyond the replacement of Scalia.

At least three more SCOTUS justices — Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer — are, as was Scalia, in their late 70s or early 80s. Along with Scalia, they cover the whole range from “liberal” to “conservative.” And like Scalia, there’s every reason to believe that they will each retire or die during the next presidential term.

The Supreme Court is soon to be re-made in a big way, almost certainly altering the “liberal/conservative” balance. Scalia’s death puts that re-making front and center in the presidential race.

In a normal election year, presidential primary candidates talk to their parties’ “bases” about appointing hardcore conservative or liberal justices. Then during the general campaign they move toward the center, avoid ideology, and claim their only concern is finding  “qualified” justices. Scalia’s death and McConnell’s declaration of war on the confirmation process have the effect of keeping everyone in their initial corners for the long haul. If you worry about polarization in American politics, welcome to the Courtpocalypse.

But let me suggest a grand bargain to defuse the situation. Congress has changed the size of the Supreme Court before. Why not pass legislation reducing the number of justices to seven, contingent upon Ginsburg agreeing to retire? That would preserve the balance and put the whole question off. For a little while, anyway.

Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

Religious Liberty: Some Unsolicited Career Advice for Kim Davis

RGBStock Holding Hands

One of the jobs of the County Clerk in Rowan County, Kentucky is to issue marriage licenses to couples who meet the legal standards for such licenses. Recently, those standards changed, and now same-sex couples can license their marriages.

That new standard conflicts with Rowan County Clerk Kim Davis’s religious belief that marriage is only valid between one man and one woman. No problem. There’s a simple way to handle that situation. If she isn’t willing to do the job, she should quit the job.

Instead, Davis asserts that her religious belief entitles her to continue holding the title, and continue collecting her $80,000 annual salary from Rowan County’s taxpayers, without doing the job.

She stopped issuing (and allowing her deputy clerks to issue) marriage licenses two months ago after the US Supreme Court’s ruling in Obergefell v. Hodges. Not just to same-sex couples, but to everyone.

As of this writing, she continues to refuse to issue marriage licenses even after multiple courts have ordered her to do so and after the US Supreme Court has denied her appeals of those orders.

In a statement issued through Liberty Counsel, the Christian organization representing her in those appeals, Davis states that “some people have said I should resign, but I have done my job well. … It is a matter of religious liberty …. I intend to continue to serve the people of Rowan County, but I cannot violate my conscience.”

Not doing one’s job at all is not doing it “well.” Refusing to serve the people of Rowan County is not “serving the people of Rowan County.”

Religious liberty is an important thing. Important enough, I think, that we shouldn’t willfully twist its meaning.

No, religious liberty does not entitle Kim Davis to a continuing government position with a very nice paycheck for declining to do the job she was elected to do and promised to do.

Kim Davis is not a martyr for religious freedom. She’s a layabout, a no-show, collecting a paycheck for work she refuses to do. Martyrs make decisions on principle and accept the consequences of those decisions.

If the requirements of the job have become, as Davis calls them, a “Heaven or Hell decision,” then she should make that decision and act accordingly. She should resign her position as Rowan County clerk and go seek other employment —  employment which doesn’t conflict with her religious beliefs.

Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY