96. What if they mean it?

Ten years ago, Justice Scalia wrote that "this Court's Constitution-making process can be called 'reasoned adjudication' only in the most formalistic sense."  Now, that's a pretty extraordinary thing for any judge to say about his own court.  What if he's right?  Isn't that something we ought to be concerned about?

In Georgia v. Randolph, the recent Supreme Court decision holding that the Constitution forbids wives from inviting police officers into their homes if the man of the house objects (see post 91), Justice Souter said the issue before the Court was "the reasonableness of police entry in reliance on consent by one occupant subject to immediate challenge by another". 

Now, "reasonable" isn't exactly a high standard.  It means only:

1. Capable of reasoning; rational: a reasonable person. 2. Governed by or being in accordance with reason or sound thinking: a reasonable solution to the problem. 3. Being within the bounds of common sense: arrive home at a reasonable hour.

Justice Souter had the benefit of decisions from four federal Courts of Appeals.  Panels of three judges from each of the courts had considered exactly the same legal issue over the course of nearly 30 years.   All four courts reached the same conclusion.  All four decisions were unanimous, meaning that 12 federal judges agreed that it was reasonable for police to enter a home when invited to do so by one of the owners. 

But they were all wrong, Souter declared.  In his view, the police officers who accepted Mrs.  Randolph's invitation were incapable of reasoning, or were irrational, or were not governed by reason or sound thinking, or maybe weren't even capable of remaining within the bounds of common sense.  That's scary enough.    I mean, we give these guys guns and immunity from most tort actions and it turns out they're crackers in more senses than one. 

But then, who would have guessed that when twelve federal judges, chosen at random, are given the task of distinguishing rational from irrational behavior, all twelve should prove themselves  inadequate to the task?    Shouldn't we worry that maybe Justice Souter is right, and that our federal bench is filled with people incapable of making even the most basic of all intellectual distinctions, that between rationality and irrationality?

Or should we instead be thinking through the implications of our Supreme Court issuing opinions in a secret language, using common English words to signify things quite different from those words' dictionary meanings - and doing so, moreover, under the pretense that the Framers (whoever they were) spoke and wrote in the same made-up language?  Should we, in fact, be taking Justice Scalia's phrase - "this Court's Constitution-making process" - seriously?

Comments

[me-mo]

As always, I enjoy your blog. That being said, a defense of that decision in result (if not in reasoning).

Step 1.
A legitimate expectation of privacy “must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas v Illinois (1978) 439 U.S. 128, 143-144 fn. 12.

Step 2.
To successfully rely on third party consent, the prosecution must show “mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.”
United States v. Matlock (1974) 415 U.S. 164, 171 n.7.

Step 3.
The rights of co-habitants to waive the other co-habitants privacy rights is function of agency.
See Stoner v. California (1964) 376 U.S. 483 for the agency theory of third-party consent.

Step 4. Does a co-habitant retain *agency* to waive the other co-habitants 4th Amendment rights when the other co-habitants objects? I think the answer is clearly no. In effect, the co-habitant does not have the *authority* to consent for the objecting co-habitant. Moreover, the search over the co-habitant consent clearly indicates that the objecting co-habitant has NO REOP in that area.

The contrary result result must be justified somehow. How would you propose to *legally* justify that result?

[Joel Jacobsen]

A grown-up can invite anyone she wants to into her house. Even cops.