The Supreme Court's originalism, as any libertarian can tell you, runs into a serious hippie problem whenever marijuana is involved. That is, it doesn't really matter what conservative theories of the Constitution say when there's an opportunity to punch a dirty hippie in the face. The Fourth Amendment affirms the "right of the people to be secure in their persons, houses, papers, and effects," unless government officials have obtained a warrant.
Today, the court opened up a massive hole in the Fourth Amendment's protections with an 8-1 ruling in Kentucky v. King, broadening the circumstances under which police can claim "exigent circumstances" and obviate the need for a warrant. The exception usually applies only when "there is an imminent risk of death or serious injury, or danger that evidence will be immediately destroyed, or that a suspect will escape." To protect the innocent, evidence obtained through unlawful means is normally not admissible in court.
Dahlia Lithwick explained the circumstances of the case a few months ago:
In 2005, undercover cops in Lexington, Ky., chased a suspected dealer into an apartment building. The dealer went into one apartment. The cops mistakenly trailed him to the door of another apartment. Smelling marijuana, they knocked and announced themselves. Upon hearing "noises," they feared evidence was being destroyed, so they knocked down the door and arrested Hollis Deshaun King for drugs. The suspect they were chasing, however, was in the other apartment. The cops had no warrant to enter the wrong apartment. The question for the court: Can cops claim "exigency" when they created the exigent situation by knocking on the door, then busting in when they thought evidence was being destroyed? The Kentucky Supreme Court said this type of evidence was inadmissible.
The Supreme Court ruled instead today that "exigent circumstances" exemption applies even when the police create the exigency, in this case by knocking on the door. Police will now be encouraged to violate your constitutional rights since, as long as they can produce a similar set of circumstances, any evidence obtained will be admissible. Disappointing, but this outcome was entirely predictable if you know how the conservative justices on the court feel about pot-smoking hippies. They hate them. What I didn't expect though, was that the moderate wing of the court would go along, producing a disturbingly lopsided ruling.
One of the last times originalism clashed with the conservative justices' hatred of pot-smoking hippies, we ended up with Justice Antonin Scalia's decision in Gonzales v. Raich, in which he determined the commerce clause gave the federal government the authority to stop an individual for growing marijuana for their own personal medical use because "Congress may regulate noneconomic intrastate activities only where the failure to do so 'could ... undercut' its regulation of interstate commerce."
That's about as broad as interpretations of the commerce clause get -- and conservative judges trying to discern an intellectual route to overturning the Affordable Care Act that's consistent with existing case law have attempted to tailor their objections to an argument that's consistent with Raich. That's how they came up with the spurious "inactivity/activity" distinction. They probably don't have to worry about Scalia, though; since the Affordable Care Act doesn't stop any hippies from rolling up a blunt, he's unlikely to deviate from the emerging conservative orthodoxy on the subject.
The fact that most of the "liberal" justices went along is a disheartening surprise, but one that should dominate the discussion over the next vacancy on the Supreme Court if Obama is still in office. Both of his appointees voted with the majority. The high court's lone dissenter was Justice Ruth Bader Ginsburg, formerly a staffer at the American Civil Liberties Union. Keep this in mind next time someone refers to the "liberal" wing of the court, as opposed to "moderates" or "Democratic appointees." As if it wasn't painfully obvious before, this court is badly in need of a justice with some experience as a defense attorney.
