The Fourth Amendment is not dead yet...

...not even in cars. See Arizona v. Gant, decided today (holding that police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest).

The lineup of Justices is interesting -- Scalia votes with the majority while Breyer dissents. I think that right now Justice Scalia might be the most pro-defendant Justice on the Court. No joke.

In other news, check out this editorial in the DBR by Patricia Acosta in which she discusses the recent administrative order allowing reporters to bring in their cell phones, but prohibiting them from using them inside the courtrooms. Here's the conclusion:

A thawing of the federal freeze on electronic access? Hardly. The order — citing federal policies and rules adopted when television cameras were the size of refrigerators and blinding lights were needed to make them work — spells out that while the devices can be brought in, they cannot be used. Use, the order says, would “violate the sanctity of the courtroom and disrupt ongoing judicial proceedings.” Past administrative orders banned only the use of cell phones and cameras inside courtrooms but said nothing about text messaging or e-mailing. This bring-don’t-use rule does not, in my opinion, reasonably advance a legitimate judicial interest nor is it required by the old policies or rules. It assumes that texting is the same thing as 1960s-style broadcasting when that plainly is not the case. It also sets the stage for real disruption when all those BlackBerry-toting scribes rush for the exits after each key development to knock out a few lines, then try to get back in to see what they’ve just missed. The truth is that tapping text on silenced electronic devices is no more disruptive of courtroom proceedings than scribbling on a piece of paper, whispering in someone’s ear, a yawn, or a nod of the head in reaction to a ruling or a critical admission. No significant noise is created by the mere act of pressing the keys of a device to create or view a message. Federal judges themselves type electronic messages throughout trials and hearings. They know this does not disrupt the proceedings. Why then, the rule? It’s obvious. Once the tweeting starts, we’ll have real time, electronic reporting on big federal trials. This won’t harm the dignity of the proceedings, but it will further the case for letting video cameras in the door as well. Of course, the case for allowing that to happen was proven not only 30 years ago but also throughout the last 30 years of Florida state court history, so federal judges ought not be afraid that if they now allow a little twittering to go on, it will force them to do what they should have done long ago. We finally have reached the era where knowledge can be transmitted at the speed of light from almost any place. This technological advancement is here to stay and makes the world a better place. In the courtroom, it allows the journalist instantly to report the defendant’s gasp and the relative’s tears as the freshly rendered verdict shocks through the air. Thirty years ago, the spirit of openness drove seven courageous Florida judges to embrace a bold new technology that made our democracy better. Their federal colleagues need to start down that path somewhere. Tweet.

"That's a nasty, impolite question."

That was Justice Scalia yesterday speaking to the Palm Beach Bar Association. From the Sun-Sentinel article:

In a room filled with some of Palm Beach County's most powerful people, it took a 20-year-old political science student to throw off U.S. Supreme Court Justice Antonin Scalia on Tuesday afternoon.Student Sarah Jeck stood in front of 750 people and asked Scalia why cameras are not allowed in the U.S. Supreme Court even though the court hearings are open, transcripts are available and the court's justices are open enough to go "out on book tours." Scalia was at the Kravis Center for the Performing Arts in part to do a book signing and wasn't happy at the question."Read the next question," Scalia replied. "That's a nasty, impolite question."Scalia's trademark mixture of humor, confidence and combativeness was on full display Tuesday at a luncheon put on by the Palm Beach County Forum Club and Bar Association.

***

After the luncheon, Jeck said she wasn't offended by Scalia's chilly response and was excited to see him speak. But that doesn't mean she agreed with him."I don't think that it should be up to him what parts the American people can and can't see of the judicial process," she said.

The DBR has more here. And Palm Beach blogger Grey Tesh has this:

Scalia on why there should be no cameras in the courtrooms, particularly in the trial (district) courts:"There's something sick about making entertainment out of people's problems."Maybe. but what about the public learning about minimum mandatory sentences for non-violent drug offenders? About the government not turning over crucial documents until the witness has testified? About how the agent gets to sit in and listen to everybody's testimony before he testifies? About how the snitch (the most culpable defendant) got 3 years for his "cooperation" testimony while his co-defendants are facing life for their minor roles?It's not just entertainment, it can be an education. That's what the American public will get if cameras were in the federal trial courts.Scalia also said "I should be the pinup boy for the criminal defense lawyers."

Happy Valentine's Day, loyal readers!

Well, not much going on in the District the last couple days except that Dore Louis (of Go, Dore, Go fame) was on federal jury duty. I hear that even though he's a former prosecutor, the government struck him! No matter, the jury (in front of Judge Martinez on a misdemeanor case of bringing a knife into a federal building) acquitted in about an hour.

In other news, the WSJ blog posts this interview by the BBC of Justice Scalia. Enjoy:

On physical interrogation:
Smacking someone in the face could be justified. You can’t come in smugly and with great self satisfaction and say ‘Oh it’s torture, and therefore it’s no good.’

On assuming that the Constitution’s ban on cruel and unusual punishment applies to torture:
Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution? . . . . It would be absurd to say you couldn’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be? And how severe can the infliction of pain be?

On Europe’s view of capital punishment:
If you took a public opinion poll, if all of Europe had representative democracies that really worked, most of Europe would probably have the death penalty today. There are arguments for it and against it. But to get self-righteous about the thing as Europeans tend to do about the American death penalty is really quite ridiculous.

Sparring with Scalia

One of my former (and one of my favorite) law professors, Arthur Miller, took a shot at Justice Scalia during an oral argument today and Scalia took a shot back. Here's the Washington Post's coverage of the fun exchanges:

A Bit of Brooklyn in the Supreme Court
Thursday, March 29, 2007; A17
Deference, with maybe just a touch of obsequiousness, is the rule for lawyers taking their cases before the nine justices of the Supreme Court.
So when Harvard law professor Arthur R. Miller yesterday mixed it up a little with the court's ever-ready pugilist Antonin Scalia, some of those in the packed courtroom later talked about it as one of those did-you-hear-that moments at the court.
Miller, whose white hair and dark, bushy eyebrows are familiar from his legal commentaries on ABC and his debate-style shows on PBS, is representing investors who want to sue Tellabs, alleging securities fraud. [Story, Page D3.]
Congress has set a high bar for such lawsuits: Plaintiffs must show not just credible allegations but a "strong inference" that the company acted with wrongful intent.
The justices wondered whether you could assign a percentage to such a "strong inference," a 33 percent chance plaintiffs could convince a jury the allegations were true, a more than 50 percent chance?
"I think it's 66 2/3 ," Scalia said, pulling another number out of the air.
"Is that because you never met a plaintiff you really liked?" Miller asked the conservative Scalia.
The room erupted in laughter. Scalia smiled. A little.
Miller backpedaled. A little. "I took a liberty there with the justice," Miller said.
But it was not over.
Scalia's chance came later, when Chief Justice John G. Roberts Jr. prepared to pounce on one of Miller's arguments. Miller stopped him first.
"Don't take me literally on that," Miller said. "For heaven's sakes, I'm from Brooklyn. I'm very colloquial. I'm very sorry about that.''
"Let me write that down," Scalia said with a satisfied smile. "We should not take you literally. All right."
Roberts was set to rule. "Okay, you two are even now."
-- Robert Barnes