As I predicted here two weeks ago, important decisions rendered by the Supreme Court today and over the last week have clarified the jurisprudence of Chief Justice John Roberts and dashed hopes that he might not be an activist, ultra-conservative ideologue in the mold of Justice Antonin Scalia.
When Chief Justice Roberts was nominated for the Court most liberal lawyers, myself included, opposed his confirmation, but harbored some hope that he might be less ideological than Scalia and Thomas, or at least less willing to overturn well established precedent. Three cases decided in the past week rendered that faint hope even fainter. One involved the exclusionary rule in criminal cases; a second, the sufficiency of newly discovered evidence of innocence to provide habeas corpus relief from a wrongful conviction; and the third, the protection of wetlands under the Clean Water Act.
In the exclusionary rule case Roberts joined with Scalia, Thomas and new Justice Samuel Alito in ruling that evidence seized by the police in admitted violation of long standing interpretations of the Fourth Amendment prohibition of unreasonable searches of ones home could nevertheless be introduced in evidence. In this case Justice Kennedy joined with the gang of four to achieve a 5-4 majority. Legal scholars fear that this is merely the first step in eliminating the exclusionary rule all together, thus ensuring a dramatic increase in unjustified and unlawful invasions of the privacy of the persons and property of all Americans.
Similarly, in the other two cases Roberts joined in opinions calling for reversal of a long standing interpretation of the Clean Water Act which had preserved tens of thousands of acres of wetlands from development and for denial of habeas corpus relief to a man sentenced to death despite newly discovered evidence of his innocence so strong that even Justice Kennedy found that no reasonable juror, hearing of it, could have found the defendant guilty beyond a reasonable doubt.
If there was any good news from the Court, it was that even the very conservative Justice Kennedy refused to go along with permitting the execution of a man who is almost certainly innocent, and wrote a concurring opinion in the Clean Water case which goes a long way toward alleviating the harm that could have been caused by the opinion of the frightful four.
Next term the Court will hear at least two cases on abortion (a second challenge to the Federal "partial birth abortion" law was accepted this morning.) Next week I will discuss why, after years of relative political indifference to the subject, every person in this country who cares about retaining the right to an abortion somewhere in America had better gear up for this fall's elections, especially in the Senate. That's right - I didn't say everywhere - I said somewhere.