Bob Barr

Roberts Turns His Back on Roots
The Atlanta Journal-Constitution

March 29, 2006

During his confirmation hearings last year before assuming the exalted position as chief justice of the United States, John Roberts made a point of assuring the Senate and the American people that he would be a true conservative—deciding cases based purely on the law and a strict reading of the Constitution.

Republicans cheered. They would have a Supreme Court justice who would sooner walk barefoot over hot coals than decide a case based on policy concerns. Even if it resulted in a decision with which they might disagree on policy grounds, their man would not stray from deciding every case on the law and a strict reading of constitutional intent.

So much for confirmation hearings. In his latest opinion—in which for the first time he wrote for the dissent—the new chief justice has revealed himself as little different from so many other high court arbiters over the years.

In a somewhat rambling opinion long on policy and relatively short on strict legal authority, Roberts upholds the proposition that police power to search a person’s home must be supported, no matter what. While most Republicans probably will cheer such a result—and lament that the opinion was in the minority rather than the majority—they honestly will not be able to do so based on the notion that they have a new chief justice who will never allow his constitutional reasoning to be contaminated by policy concerns.

The case that offers insight into the future course of the chief justice’s predispositions is an unlikely one; at least the defendant is an unlikely anti-hero for the Republican faithful. Scott Randolph, an attorney practicing in Americus in 2001, was going through a marital dispute with his then-wife, Janet. Unfortunately, disagreement led the wife to summon the police; not because she was in danger of abuse, but because she was angry at her husband.

Unfortunately for Randolph, the lawyer had a habit that is a no-no, even for an esteemed member of his profession. He was addicted to cocaine. In perhaps his most stupid lapse in judgment, Randolph let his estranged spouse know where he kept his white-powder paraphernalia.

When the authorities showed up at her request, the lawyer’s wife dutifully informed them that hubby had a nasty habit, and that she’d be delighted to show them evidence thereof. Husband protested, but to no avail. Based solely on the wife’s consent, the police entered, found the evidence, and Randolph’s life quickly unraveled.

Rather than let the case recede, Randolph’s lawyers argued that the drug evidence seized at the residence that formed the basis for his indictment had to be suppressed because, as a lawful owner and occupant of the house, Randolph refused to consent to its search by the police without a warrant. Both the Georgia Court of Appeals and Georgia Supreme Court agreed, and the evidence was tossed. The government, of course, appealed.

Five years later, we have the answer to a question frequently asked but until now undecided by the U.S. Supreme Court—if one spouse consents to a police search of the marital abode while the other who is there objects, the police cannot enter for purposes of searching for evidence; unless, of course, they have probable cause to suspect criminal activity other than the consenting spouse’s saying so, or if there is suspicion that a person (including the consenting spouse) is in danger.

While true constitutional conservatives hailed the 5-3 decision by the Supreme Court as reflecting the clear meaning of the Fourth Amendment’s respect for the privacy of one’s home against unsubstantiated police searches, the new chief justice took exceptional umbrage. In a dissenting opinion replete with the biting sarcasm frequently found in Justice Antonin Scalia’s opinions, Roberts stretched and pleaded with the facts to justify the minority’s decision to uphold the police power of the state to search a citizen’s home even if that homeowner physically and unequivocally objects to the warrantless evidence-gathering.

The intensity with which he would stray from his avowed strict constructionist roots was most evident in Roberts’ reliance on fear of spousal abuse to justify the warrantless police search. Even though there was nothing in the majority opinion indicating that one spouse’s refusal to consent to a search might preclude police from entering the home to protect the other from abuse—in fact, the majority’s opinion clearly distinguished such a situation—Roberts unashamedly played the spousal abuse card.

In this, his first written dissent, we have the key to the probably long future of Roberts’ legal thinking. Unfortunately, it’s not in the direction of individual liberty and limitation on the power of the government to invade one’s privacy.

Mr. Barr occupies the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union Foundation.