No Shocker Here

Today, in a closely contested 5-4 decision (Hudson v. Michigan), the Supreme Court held a criminal trial court should not exclude evidence obtained when police violate the Constitution by entering a home with a warrant but without knocking and announcing their presence. Justice Scalia wrote the majority opinion, joined by Chief Justice Roberts, Justices Thomas and Alito, and in large part by Justice Kennedy. The decisive votes of the newest Justices, Roberts and Alito, should come as no surprise. Each one, and particularly Justice Alito, had a well-documented record of being extremely cool toward Fourth Amendment rights prior to ascending to the high court. Indeed, in 14 split decisions involving Fourth Amendment rights during his 15 years on the 3rd Circuit, Justice Alito never took a position more protective of Fourth Amendment rights than his colleagues, siding almost invariably with the government.

Despite the unsurprising result, the case remains particularly noteworthy because it had to be reargued after Justice Alito's confirmation to the court and likely would have gone the other way had Justice O'Connor not retired. At the initial argument, Justice O'Connor expressed serious skepticism about the state of Michigan's arguments.

In an exhaustive, strongly worded dissent joined by Justices Souter, Ginsburg and Stevens, Justice Breyer openly worried that by taking a chunk out of the Fourth Amendment's exclusionary rule, the majority was giving a green light to “invasions on the part of the government … of the sanctity of a man’s home and the privacies of life.”

Whether or not you agree with the Court's decision, one thing you gotta love is that in the majority opinion -- authored and joined, mind you, by several justices whose nominations AFJ opposed -- Justice Scalia cited a publication by AFJ's very own founder and president, Nan Aron. Very rich. We'll be sure to let Justices Scalia, Thomas, Alito and Roberts know that if they ever need other decisional input, AFJ stands ready, willing and able to provide it.