Civil Liberties

5-Justice Bloc Imperils Rights


GAIL ATWATER, WHO SUED her town for false arrest after she got thrown in the slammer for driving without a seat belt, says the experience has changed her from a liberal to a conservative. "I want to limit the government's power as much as possible," she has told The New York Times.

How ironic, then, that Atwater was handed a defeat late last month by the conservative bloc on the US Supreme Court: Chief Justice William Rehnquist and Justices Antonin Scalia, Clarence Thomas, and Anthony Kennedy, joined by the usually liberal David Souter. By a 5-4 vote, the court ruled that the Fourth Amendment prohibition on unreasonable searches and seizures does not forbid warrantless arrests for petty offenses that are not punishable by jail and cause no public disturbance. Atwater's humiliating ordeal – she was hauled away in handcuffs in front of her two small children and taken to the police station, where she was ordered to take off her shoes and jewelry and empty her pockets, forced to pose for a mug shot, and kept in a jail cell for an hour – was dismissed as merely "inconvenient."

The majority opinion acknowledged that the police officer exercised "extremely poor judgment" but stated that it wasn't such a big deal as to require constitutional protections, particularly since there was no evidence of an epidemic of trivial arrests. (So constitutional protections are needed only against epidemic problems?) The matter, the court concluded, was best left to police discretion.

Most police officers, most of the time, won't abuse their powers. But our system of checks and balances is based on the principle that we cannot simply entrust our freedoms to the good will of public servants.

Timothy Lynch, director of the Criminal Justice Project at the Cato Institute, an organization often described as conservative, finds the court's decision alarming. In his view, "the Fourth Amendment's warrant clause is disappearing before our eyes – and so is our liberty."

The Atwater case is the latest in a series of rulings in which the high court, led by its conservative bloc, has limited citizens' protections from police and prosecutorial powers. In recent years it has held that visitors in another's home can be searched without a warrant unless they're staying overnight; that the belongings of a car passenger can be searched if there is cause to suspect the driver, though not the passenger herself, of illegal activity; and that a person's property can be confiscated if somebody else uses it for a criminal purpose without the owner's knowledge. If the conservative triad of Rehnquist, Scalia, and Thomas had prevailed, it would also be legal for the government to seize a suspect's property without notice and for the police to search motorists for drugs at random checkpoints.

So much for limiting the powers of the state. Conservatism's libertarian impulses, it seems, clash with the authoritarian ones. Lynch points out that both conservatives and liberals tend to be selective when it comes to the Bill of Rights: Liberals stress separation of church and state, free expression, and protections for the accused, while conservatives stress the right to bear arms and property rights (though not, it appears, when property is seized on mere suspicion that it was used in the commission of a crime).

"Unfortunately," says Lynch, "we don't have a justice on the high court who consistently defends the constitutional rights of the individual across the board." At least Justice Thomas – a somewhat less consistent law-and-order hard-liner than Rehnquist and Scalia – seems to be aware of the paradox. The wording of some of his opinions shows obvious discomfort with the state powers that he ends up endorsing. In the case upholding the confiscation of an innocent owner's "tainted" property, Thomas noted that "the federal Constitution does not prohibit everything that is intensely undesirable."

Wary of reading new rights into the Constitution, he tends to give the stingiest interpretation possible to the rights that are already there. Law enforcement and public order are, of course, legitimate priorities. Some civil libertarians are inclined to reflexively view cops as the bad guys and to forget that the rights of individuals can be violated by criminals, not just by the government. But many conservatives are all too willing to forget that the threat to our liberties from the expansion of police powers is real.