Roberts Dissent Reveals Strain Beneath Court's Placid Surface

By Linda Greenhouse
The New York Times

Thursday 23 March 2006

Washington - A Supreme Court decision on Wednesday in an uncelebrated criminal case did more than resolve a dispute over whether the police can search a home without a warrant when one occupant gives consent but another objects.

More than any other case so far, the decision, which answered that question in the negative by a vote of 5 to 3, drew back the curtain to reveal the strains behind the surface placidity and collegiality of the young Roberts court.

It was not only that this case, out of 32 decided since the term began in October, provoked Chief Justice John G. Roberts Jr. to write his first dissenting opinion. He had cast two earlier dissenting votes, and had to write a dissenting opinion eventually. And although there has been much commentary on the court's unusually high proportion of unanimous opinions, 22 so far compared with only 27 in all of the last term, few people expected that rate to continue as the court disposed of its easiest cases and moved into the heart of the term.

Rather, what was striking about the decision in Georgia v. Randolph, No. 04-1067, was the pointed, personal and acerbic tone in which the justices expressed their disagreement over whether the Fourth Amendment's ban on unreasonable searches was violated when the police in Americus, Ga., arriving at a house to investigate a domestic dispute, accepted the wife's invitation to look for evidence of her husband's cocaine use.

The dueling opinions themselves were relatively straightforward; as has often been the case in the court's recent past, although not so far this term, the justices revealed their real feelings in the footnotes.

Writing for the majority, Justice David H. Souter said the search was unreasonable, given the vocal objection of the husband, Scott Randolph. True, Justice Souter said, the court had long permitted one party to give consent to a search of shared premises under what is known as the "co-occupant consent rule." But he said that rule should be limited to the context in which it was first applied, the absence of the person who later objected.

The presence of the objecting person changed everything, Justice Souter said, noting that it defied "widely shared social expectations" for someone to come to the door of a dwelling and to cross the threshold at one occupant's invitation if another objected.

"Without some very good reason, no sensible person would go inside under those conditions," he said.

"We have, after all, lived our whole national history with an understanding of the ancient adage that a man's home is his castle," Justice Souter said. "Disputed permission is thus no match for this central value of the Fourth Amendment."

Justices John Paul Stevens, Anthony M. Kennedy and Ruth Bader Ginsburg joined the majority opinion, as did Justice Stephen G. Breyer, who explained himself in a concurring opinion notable for its ambivalent tone. Justice Samuel A. Alito Jr. did not vote, as he was not a member of the court when the case was argued.

The dissenters, in addition to Chief Justice Roberts, were Justices Antonin Scalia and Clarence Thomas. In his opinion, the chief justice took aim at the majority's description of social custom, as well as its reliance on that description to reshape "a great deal of established Fourth Amendment law."

Every lower federal court to have considered the issue, as well as most state courts, had concluded that one party's consent was sufficient. The Georgia Supreme Court, in its 2004 decision that the justices affirmed, was in the minority, ruling in this case that the evidence of Mr. Randolph's cocaine use was inadmissible.

"The fact is that a wide variety of differing social situations can readily be imagined, giving rise to quite different social expectations," Chief Justice Roberts said. For example, he continued, "a guest who came to celebrate an occupant's birthday, or one who had traveled some distance for a particular reason, might not readily turn away simply because of a roommate's objection."

Noting that "the possible scenarios are limitless," he said, "Such shifting expectations are not a promising foundation on which to ground a constitutional rule, particularly because the majority has no support for its basic assumption - that an invited guest encountering two disagreeing co-occupants would flee - beyond a hunch about how people would typically act in an atypical situation."

The majority missed the point, the chief justice said; the fact is that someone choosing to share space has also, already, chosen to share privacy.

"Our common social expectations may well be that the other person will not, in turn, share what we have shared with them with another - including the police," he said, "but that is the risk we take in sharing."

That was the analysis, and then came the footnotes.

Justice Souter, usually mild-mannered to a fault, said in Footnote 4 that "in the dissent's view, the centuries of special protection for the privacy of the home are over." By invoking a "false equation" between inviting the police into the home and reporting a secret, he said, the chief justice "suggests a deliberate intent to devalue the importance of the privacy of a dwelling place."

Chief Justice Roberts responded in turn. The majority had mischaracterized his position on privacy and "seems a bit overwrought," he said in a footnote.

In a concluding paragraph of his dissent, he said: "The majority reminds us, in high tones, that a man's home is his castle, but even under the majority's rule, it is not his castle if he happens to be absent, asleep in the keep or otherwise engaged when the constable arrives at the gate. Then it is his co-owner's castle."

Justice Souter also attacked as a "red herring" a warning by Chief Justice Roberts that the rule the court was adopting would hamper the ability of the police to protect victims of domestic violence.

Justice Souter said the law was clear on the right of the police, despite any objection, to enter a home to protect a crime victim. But that issue "has nothing to do with the question in this case," he said.

The discussion by Chief Justice Roberts of the implications for domestic violence cases might have been an effort to win, or a failed effort to hold, the vote of Justice Breyer.

When the case was argued on Nov. 8, Justice Breyer raised the issue of domestic abuse. Addressing Mr. Randolph's lawyer, Thomas C. Goldstein, he said, "I haven't seen anything on your side that wouldn't prevent many cases of domestic spousal abuse from being investigated." He added, "Quite frankly, it bothers me a lot."

In his concurring opinion on Wednesday, Justice Breyer noted that in this case, the police were searching "solely for evidence," and domestic abuse was not at issue. While he pronounced himself satisfied by "the case-specific nature of the court's holding," he said the outcome might well be different in the context of domestic abuse, in which police entry even over one spouse's objection could be reasonable.

This case was the oldest undecided case on the court's docket, and it is likely that Justice Breyer's vote was in play until the final stages. One indication was Chief Justice Roberts's reference in his opinion to Justice Breyer's having joined "what becomes the majority opinion," an odd present-tense locution suggesting that the outcome had once been otherwise.

The case also produced dueling opinions by Justice Stevens, concurring, and Justice Scalia, in dissent, over how a true believer in interpreting the Constitution in light of the framers' original understanding would have resolved the issue. There was a tone more of banter than anger to this exchange between the old adversaries, as if after some months of forced and unaccustomed unanimity, they were now free once again to acknowledge their differences.