Linda Greenhouse looks at what Dahlia Lithwick describes as Antonin Scalia's "Living Originalism."
A 1981 decision, Edwards v. Arizona, held that once a suspect has been advised of his rights and has refused to talk, the police may not reinitiate questioning unless the suspect either has a lawyer or comes forward spontaneously. In that case, the second interrogation followed the first by one day — too soon, the court concluded then, to remove the coercive impact of a renewed interrogation. In the new case, all nine justices agreed that the Edwards precedent was not controlling when the break in questioning had lasted for more than two years.
But if two years was obviously long enough for the police to wait, what would be the shortest period of time that would permit a new effort at questioning? “It seems to us that period is 14 days,” Justice Scalia said for the court.
Fourteen days? Where did that come from as a constitutional principle? Fourteen days, Justice Scalia explained, provide “plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.” That sounds an awful lot like constitutional policy, not constitutional interpretation.
This is a great example of Scalia arbitrarily fishing for the outcome he wants, but it's also fairly common -- the other example that comes to mind is Scalia's whining dissent in Lawrence v. Texas complaining that Americans passing anti-sodomy laws are merely "protecting themselves and their families from a lifestyle that they believe to be immoral and destructive." You have to go wandering down some pretty dark penumbras to find a justification for that in the Constitution.
As Scott Lemieux noted earlier this week, Scalia recently indicated that he had backed down the broad interpretation of the commerce clause he used to justify the government cracking down on dirty hippies and their pot smoking by joining Justice Clarence Thomas' dissent from the Supreme Court's decision not to hear a case involving selling bulletproof vests to ex-felons. That decision foreshadows Scalia's almost certain vote against the constitutionality of the Affordable Care Act. Lithwick also has a great piece this week quoting Scalia and his colleagues as they try to figure out how they get around that pesky Fourth Amendment so that cops can -- again with the pot-smoking -- make sure they can use the fruits of warrantless searches to arrest someone for smoking weed in the privacy of their own home. Freedom!
I'm sure there was a time when the courts weren't this predictably partisan and results-oriented -- I look at an independent Republican-appointed judge like John D. Bates, and I see hints of a time in the past when the judiciary wasn't like this. But I was 18 when the Supreme Court handed down its decision in Bush v. Gore, so for about as long as I've been politically aware, the judiciary has appeared to me as a partisan institution. And I really think the only difference between conservatives and liberals is that conservatives started thinking about it that way about 30 years earlier.
