United States v. Jones, A Step Back for Rights

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7 Responses

  1. Ken Rhodes says:

    Professor Hutchins, I share your disappointment that the case and decision were not more far-reaching, but I respectfully disagree with you in re what the court should/could have done. I think the court did what it was asked, and required, to do–it ruled on the case before it, not an issue so broad as to ensure a divisive split. Anytime you can get a 9-0 ruling, you’ve got a good decision.

    I feel the same way about your concern with Justice Scalia’s opinion. What he wrote didn’t *revoke* the earlier precedent you cite. Rather, I think he wrote a simple incontrovertable answer to the specific case before the court.

    In times of 5-4 decisions, with much speculation on who will be the single justice to “really” make the final decision, I think we should be glad they were able to make an easy disposition of this case and move on to other more difficult cases.

  2. Daniel Solove says:

    I have just posted my take on Jones. I agree with your views about Justice Scalia’s opinion, but overall, when looking at the concurring opinions, I find a lot to like in the case.

  3. PrometheeFeu says:

    My understanding of the opinion was not that Scalia wants to shrink the 4th Amendment here. My understand of the opinion is rather that the 4th Amendment at least protects you against trespassory search. So they look at the trespass and it is now a search. No need to carry the analysis any further.

  4. Joe says:

    Scalia might wish to restrict 4A rights except in certain narrow cases (Kyollo is an example where his approach can have libertarian results) with easily parodied (see Alito) originalist reasoning, but he didn’t have five votes.

    Kennedy and probably Roberts would sign on to various opinions Sotomayor and the Alito (!) Four would write that goes much further than he wishes to go. The result is good since it set forth a basic rule and a clear majority to go further in various cases.

    9-0 cases aren’t always great (a few arguably are simply wrong) & they can be too minimalist, avoiding hard questions, but given the significant questions here, going slow makes sense.

  5. Jim Maloney says:

    “Anytime you can get a 9-0 ruling, you’ve got a good decision.” [Ken Rhodes]

    Wickard v. Filburn, 317 U.S. 111 (1942)???

  6. Ken Rhodes says:

    “Anytime you can get a 9-0 ruling, you’ve got a good decision.” [Ken Rhodes]

    Wickard v. Filburn, 317 U.S. 111 (1942)??? [Jim Maloney]


  7. Joe says:

    Some, even though it is unanimous, find Wickard a bad decision. I’m not sure what you mean by a “good decision,” but many people can point to some opinion that they think was “bad” in some fashion even if it was unanimous.