Supreme Court update and other stuff
Although most states, including Ohio, give a passenger standing to assert the illegality of a stop of the vehicle, a few states don't. California joined them last year. The case involved a stop of a vehicle to check the registration, the state admitting that there was no basis for the stop. Drugs had been found on the passenger, though, and the California Supreme Court narrowly upheld his search, saying that he was free to leave after the stop, and therefore wasn't "seized" for 4th Amendment purposes.
Yesterday, the US Supreme Court unanimously reversed that determination in Brendlin v. California. The reversal was widely predicted, so it didn't come as much of a surprise. And if you're a passenger in a vehicle that's pulled over, you exit the vehicle, give the nice police officers a friendly wave and say, "I guess this is my stop," and stroll off, it shouldn't come as much of a surprise if they beat you stupid with their truncheons. I have no idea what the California court could have been thinking on this one.
The spate of unanimous decisions, though -- there were five last week -- shouldn't obscure the fact that the Supreme Court is much more narrowly divided, especially in the area of criminal decisions. More typical was the decision in Bowles v. Russell, a case with a local flavor. A Cleveland attorney had intended to appeal from a habeas denial here in Federal court, and the judge put on his entry denying relief that the appeal had to be filed within seventeen days. Turns out that the rules provide for only a fourteen-day period, and the 6th Circuit dismissed the appeal on jurisdictional grounds. The Supremes affirmed that last week by a 5-4 vote, over Justice Souter's dissenting observation that, "It is intolerable for the judicial system to treat people this way."
In fact, Professor Dorf over at the blog Dorf on Law posits the theory that we're seeing the "Karl Rovification of the Supreme Court." Rove is famous for his theory that winning elections depends not on reaching out to the center but on maximizing the support of the base. (How's that working for you now, Karl?) Dorf suggests that, similarly, when the four conservative justices -- Scalia, Thomas, Roberts, and Alito -- can corral Kennedy, they don't care what Souter, Ginsberg, Breyer, and Stevens think. There's no longer any effort to reach a consensus, but merely to grab the five votes necessary to form a majority.
In that light, Jeffrey Toobin wrote an article for the recent New Yorker which does a good job of pointing out the political stakes in the presidential election next year:
At this moment, the liberals face not only jurisprudential but actuarial peril. Stevens is eighty-seven and Ginsburg seventy-four; Roberts, Thomas, and Alito are in their fifties. The Court, no less than the Presidency, will be on the ballot next November, and a wise electorate will vote accordingly.