The proper and Constitutional approach would be to hand off many of the decisions to juries. In many cases, the reasonableness of a search is a factual matter which may likely affect the outcome. Like all factual matters, it should thus be put before a jury. While judges should withhold evidence against the defendant from juries in cases where the conduct surrounding such evidence was patently unreasonable, it should be up to juries to decide whether to accept evidence which was gathered under dubious circumstances.

Under current practice, if some judge decided that in some earlier case it was reasonable for cops to start battering a door fifteen seconds after announcing themselves, then in any other case a cop who starts bashing a door fifteen seconds after some sort of announcement is acting “reasonably”. Never mind the fact that such decision was made without a defendant’s being allowed to argue against it–the decision that the cop’s action was “reasonable” was made by someone with no idea whatsoever what the actual circumstances of the cop’s actions would be.

BTW, allowing juries to examine searches would also alleviate the problem of judges who rubber-stamp warrants. If the police really have probable cause for a search, genuinely supported by oath or affirmation, a prosecutor should have no trouble convincing a jury of that (it should be an easier burden than having to show the defendant’s guilt). On the other hand, if cops routinely get baseless warrants rubber-stamped by a judge, they’ll find that many jurors won’t give them much credence.

Thomas does, indeed, believe that schools have a great deal of power over students. That is not entirely indicative of his beliefs about the rights of children in other situations, or liberty in general.

He argued that children deserve no rights while at school. None. That’s not subtle. He also just argued that school officials should be allowed to strip search children under any circumstances. That’s not subtle either.

That’s why libertarianism is neither liberal nor conservative. Limiting the power of government is anathema to both.

Sure, broadly speaking, the cases were about the extent government power. But if you just look at rulings and classify them as “pro government power” and “anti government power”, you’re going to miss a lot of what’s going on. The government has a lot of different powers, and the justices have different views about what the proper extent of each of them should be. For instance, Scalia, who is in favor of government power in many situations, believes in a strong reading of the Confrontation Clause, which is almost always a limit on government power.

(Also, Thomas’ views on liberty in general, and children’s liberty in particular, are rather more nuanced than you give him credit for; while he does comes down on the side of government power, this is often because he’s more concerned about avoiding ad hoc rules. While I agree that he’s much too willing to restrict liberties along these lines, the approach he’s fighting—vague, case-by-case readings of constitutional rights—may well have caused much more long-term harm to liberty.)

Micheal Jackson and Farrah Fawcett are dead.

#10 | Chuchundra | June 25th, 2009 at 6:21 pm
Roberts continues his unbroken streak of ruling against the rights of criminal defendants

non-police persons accused of crimes.

Pardon the correction, but I think it’s more accurate this way.

Drunk off-duty cop pistol whips innocent person, found not guilty (what a surprise) of all charges.

Just for my own edification, has Roberts ever come down on the side of individual liberty over state power?

The specifics of each issue are different, for sure. But generally speaking, these cases were about state authority to do as it pleased. The court found overwhelmingly that the state cannot strip search a child, but then struggled to barely conclude that defendants should be allowed to question those giving evidence against them.

(As for Thomas, he views children as, at best, property. That’s all you need to know about his views on “liberty.”)

(I’d add that, while Thomas was wrong on the strip search case, many of his criticisms of the majority opinion were correct; the majority opinion was a flaky, half-hearted rejection of the strip search which concluded that in this particular case it was wrong, but suggested that it would be okay in other cases, without making it at all clear when it would be okay. Thomas rightly rejected that ambiguity, and then sadly concluded that the wrong rule should always apply.)