Antonin Scalia

'A Freedom-Destroying Cocktail': Justice Breyer Keeps Siding with the Cops in Fourth Amendment Cases

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In his 2010 book Making Our Democracy Work: A Judge's View, Supreme Court Justice Stephen Breyer urged the federal courts to adopt a broad posture of judicial deference towards the other branches of government. Judges must "take account of the role of other governmental institutions and the relationships among them," Breyer wrote, and thereby "maintain a workable relationship between the various braches of government." Breyer's preferred solution was for judges to give government officials the benefit of the doubt in most cases.

The implications of that deferential approach were made plain last week in the Fourth Amendment case Navarette v. California. At issue was an anonymous phone call made to 911 about a dangerous driver. That call prompted a traffic stop and resulting drug bust by the police. According to the majority opinion of Justice Clarence Thomas, "the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated." Among those who joined Thomas in granting wide leeway to law enforcement was none other than Stephen Breyer.

Justice Antonin Scalia, by contrast, in a dissent joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, rejected the Navarette majority's pro-government stance. "The Court's opinion serves up a freedom-destroying cocktail," Scalia declared, one that privileges an anonymous and uncorroborated tipster over a core constitutional right. "All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police." That troubling scenario, Scalia declared, "is not my concept, and I am sure it would not be the Framers', of a people secure from unreasonable searches and seizures." Translation: Take your "workable relationship" and shove it.

Navarette was not the first time Breyer cast his lot with a "freedom-destroying" interpretation of the Fourth Amendment—and sadly, it won't be the last. In 2012's Maryland v. King, for example, Breyer joined Justice Anthony Kennedy's majority opinion allowing police to conduct warrantless DNA swab tests incident to arrest. "Make no mistake about it," fumed Justice Scalia in dissent, joined (as in Navarette) by Ginsburg, Sotomayor, and Kagan. "As an entirely predictable consequence of today's decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason."

The Court's 2013 ruling in Missouri v. McNeely provides yet another telling example. The dispute in that case stemmed from the police obtaining a warrantless and non-consensual blood sample from a suspected drunk driver. For a majority of the Court, that action was too invasive to pass constitutional muster under the Fourth Amendment—but Breyer was apparently untroubled. He joined the police-accommodating dissent filed by Chief Justice Roberts.

It's common these days for progressives to embrace Justice Breyer as one of their biggest heroes on the Supreme Court. And perhaps he is. But any assessment of Breyer's merits must also reckon with his overwhelming deference to the police in Fourth Amendment cases. Is that a progressive virtue?

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  1. But any assessment of Breyer’s merits must also reckon with his overwhelming deference to the police in Fourth Amendment cases. Is that a progressive virtue?

    That was probably intended as one of them “rhetorical questions” but I think we all know the answer to that question is yes

  2. But any assessment of Breyer’s merits must also reckon with his overwhelming deference to the police in Fourth Amendment cases. Is that a progressive virtue?

    Deference to authority and the collective? Hell yes that’s a progressive “virtue”.

  3. The higher a judge rises, the less he/she understands real life. Supreme Court justices have absolutely no clue.

  4. Scalia better be careful or one day he might just possibly begin to have the faintest inkling of a shadow of a doubt about the quality of the New Professionalism.

  5. It’s common these days for progressives to embrace Justice Breyer as one of their biggest heroes on the Supreme Court. And perhaps he is. But any assessment of Breyer’s merits must also reckon with his overwhelming deference to the police in Fourth Amendment cases. Is that a progressive virtue?

    Only if you’re utterly confused about what Progressive Virtues are. In my view, Breyer is entirely consistent with progressive virtues.

    1. I can’t imagine how the State would possibly use this to keep down a whole class of people. Based on, just for argument’s sake, the color of their skin. Or their religious beliefs. Imagine a world where the President had to send the 101st Airborne to enforce the law because local police refused. I definitely want the LEOs to have broad deference under the law if I’m in that exposed class, don’t you?

    2. Only if you’re utterly confused about what Progressive Virtues are

      You mean like when they refer to themselves as liberals?

  6. It’s common these days for progressives to embrace Justice Breyer as one of their biggest heroes on the Supreme Court.

    Stalinists have always been that way. This should be no surprise to anybody.

    And perhaps he is.

    WTF?

  7. Is that a progressive virtue?

    How can it be assured that all comrades, conform, if they can’t be forced to?

    So, yes.

  8. Overall, I think I prefer FYTW over “because the court says you have no rights, that’s why.”

  9. That face gets an Honorable Mention in the “E.J. Dionne Memorial Punchable Face of 2014 Contest.

  10. But any assessment of Breyer’s merits must also reckon with his overwhelming deference to the police in Fourth Amendment cases. Is that a progressive virtue?

    Yes. AUTHORITAH is the highest of virtues. Order is the greatest good. Security is the noblest ambition.

  11. Judges must “take account of the role of other governmental institutions and the relationships among them,” Breyer wrote, and thereby “maintain a workable relationship between the various branches of government.”

    Is this breathtaking naivete or simply another prime example of the banality of evil?

    If you’re going to defer to the other 2 equal branches of the state, what in the holy fuck are you doing there? Killing time in a black robe until retirement?

    1. Killing time in a black robe until retirement?

      And drawing a paycheck.

  12. If the courts are supposed to be deferential to the other two branches of government, what’s the use of them?

    I mean, it’s not like there’s anything about having three different branches of government in the constitution, or anything about checks and balances.

  13. Stephen Breyer urged the federal courts to adopt a broad posture of judicial deference towards the other branches of government.

    Well, we’ve all seen how branches being “deferential” to each other works – just look at when the Congress defers to the Executive when the Exec assumed powerz and authoritah specifically ENUMERATED to the Legislative Branch – to say nothing of the powerz teh Executive just TAKES or MAKES UP from wherever.

    Look how much better things work out when that branch allows that to happen follows Justice Breyer’s advice? Super good thinking, Justice Ice Cream!

  14. “Making our democracy work…” is the name of his book??? Huh?

    ‘shall guarantee to every State in this Union a Democratic Form of Government’

    Yup, just checked, that’s what the Constitution says!

    … not.

    1. I came back to this thread just to say that we do not have a democracy.

      What is it with these proggy fuckers and their constant references to us as a democracy?

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