Yes, sometimes pigs fly. In re: Kentucky v. King, decided by the Supreme Court on Monday, I found Justice Alito’s majority opinion (8–1!) not only unconvincing but downright scary, whereas I thought Ruth Bader Ginsburg got it exactly right. From my New York Post column today:
“Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless . . . search that may ensue.”
What planet is Alito living on? The whole point of the Bill of Rights is to restrict authority. The Founders, who suffered under the British system of “general warrants” and “writs of assistance” — i.e., fishing expeditions — wished to ensure that no American home could be searched without probable cause and a duly issued warrant specifying exactly what police are looking for.
The case has been remanded to Kentucky, to sort out whether the circumstances were truly “exigent.”
But Alito’s interpretation is an open invitation to abuse — as Justice Ruth Bader Ginsburg emphatically warned in her dissent:
“The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down — never mind that they had ample time to obtain a warrant. I dissent from the court’s reduction of the Fourth Amendment’s force.”
Even worse is what’s going on in Indiana, where the top court recently ruled that citizens may not resist police intrusion into their homes — with or without a warrant — under any circumstances.
I’m currently reading Rick Brookhiser’s excellent book What Would the Founders Do? and would love to pose the question to him — what would they think about these diminutions of the Fourth Amendment?