The nomination of an anti-choice supreme court nominee is undoubtedly important, but we here at OliverWillis.com will prove that unlike the mainstream media - we can walk and chew gum at the same time. So, about the White House senior staffer indicted for five counts of perjury and obstruction of justice…
>> Here’s What You Can Expect
>> Time For Cheney to Come Clean
>> Samuel Alito s America
>> And people need to shut up with the “Democrats need to be careful” talk. Enough of the “advice”.
He argued that the law did not place a legally “undue burden” on the wife based on previously settled law. There was no restriction placed on the woman to prevent her from receiving an abortion.
Except for PAULINE THOMAS v. COMMISSIONER OF SOCIAL SECURITY
Alito clearly shows in the link provided by Think Progress:
[T]here is no doubt that the search warrant application sought permission to search all occupants of the premises. Indeed, the affidavit made this request in three separate paragraphs.
I’m not familiar with the other cases cited. However, actually reading what Alito has written demonstrates that he is not some sort of anti-abortion, pro-discrimination, strip-searching fascist.
Democrats are going to look foolish trying to paint him as an extremist if people actually bother to read his opinions.
This is going to be fun!!!
Bring on the filibuster!!!
Would you libs be happier if Alito came to the hearings in black-face and wearing a dress?
Who would bother to read his opinions? It’s much more fun to regurgitate the talking points and make derogatory quips.
Ahh, its no longer the best of times for the left. Its now the worst of times. They shot their whole wad on the likes of Democratic partisans Cindy Sheehan and Joe and Valerie Wilson and have an indictment of the VPs chief of staff to show for it. Bush is emboldened by the Dems fizzle (perhaps advised by an intact Rove), returns to his base and nominates an excellently qualified, experienced conservative judge that will be confirmed by the end of the year. We get a second conservative judge, you guys get a trial of the VPs chief of Staff for a couple of minor gotchas. Good trade. Dean and Reid are serving you guys well.
Robert Dugger’s America, With Abortions in the Back Alleys, Where they Belong
Apparently, since the time that he was approved for the Bench by the Democratically controlled Congress, he has undergone a radical tranformation.
He argued that the law did not place an undue burden on the wife &
Leaving aside the obviously insulting implications that women need a husband s approval for a medical procedure (here abortion), Alito s view was rejected by the Supreme Court in Casey including and most prominently by Justice O Conner. Significant language:
Section 3209’s husband notification provision constitutes an undue burden, and is therefore invalid. A significant number of women will likely be prevented from obtaining an abortion just as surely as if Pennsylvania had outlawed the procedure entirely.
Regarding strip search of 10 year old girl, the opinion describing that search is unclear if the procedure was the typical strip search, that is a cavity search or something less invasive, but be that as it may apparently the warrant FAILED to provide the language quoted by JWG. In fact, the warrant itself in describing the persons to be searched only mentioned the adult suspected drug dealer. The AFFIDAVIT for probable cause to search apparently contained the quoted language. These are two separate and distinct things and as stated by the majority, it is a difference of significance. A state magistrate reviewing a search warrant affidavit might well draw a line at including unnamed all occupants in the affidavit because Pennsylvania law disfavors all occupant warrants. Judge Alito believed that despite that omission and contrary to the state law and the findings of the District Judge and Alito s appellate court colleagues that the police could reasonably believe they had such authority when it came to strip-searching an unnamed and unmentioned ten year old girl.
I m not sure how a social security disability benefits case (Pauline Thomas) where Alito held that an Administrative Law judge misapplied the law in analyzing statutory requirements of the Social Security Act applies in the context of disability based discrimination in the work place. Perhaps JWG could explain how the rationale expressed in the Thomas case applies, particularly when it comes to interpreting the Constitution in the context of employment discrimination.
Whether Democrats will try to paint Alito as an extremist remains to be seen. There are many cases he has been involved in deciding that would have to be analyzed before that judgment could be made. But the defense offered up by JWG and the right so far as to the particular cases referenced here is weak at best and certainly doesn’t show that anyone would look foolish in depciting Alito as out of the mainstream of American public and legal thinking.
You meant to write “tell her husband” according to the law as it was written. That made it constitutional, which is all his position required him to determine.
I may not like more government intrusion, but that’s different from arguing whether it’s constitutional.
That’s what people keep misunderstanding. The judiciary has a different role than the legislature.
BTW, why do you assume I’m a winger? I never said I agreed or disagreed with the spousal notification law. I just pointed out the Alito did not either. He just determined its constitutionality.
But citing a case that supposedly “supports” discrimination is proof enough. In reality, showing cases that he’s determined “in favor” of each “side” demonstrates that he can apply the law according to the merits of each case, without resorting to mindless partisanship.
The warrant specifically listed a search of all occupants in three different places. The police obviously should have done a better job dotting all the i’s. They explained that there wasn’t enough room to list everyone in the one place under dispute (hence, they added additional paperwork).
The left is trying to claim he supports fewer civil liberties like protections from “unreasonable” searches. That’s demonstrably absurd.
JWG:
I read the materials from Groh. The court’s opinion is based on a direct reading of the evidence. Alito’s dissent is based on “common sense”…in other words, his “interpretation.” Basically, the court ruled that the officers didn’t follow the letter of the law, and Alito defended them for keeping to its spirit. More or less. Isn’t that kind of thing what the right keeps moaning about?
Regarding disability-based discrimination, the problem is not that he would disallow it completely. So citing one case in his favor isn’t going to save you. The problem is that based on Nathanson, he’d set the bar so high that virtually no one would be able to get their case heard. (Note the “virtually” there…it’s important.)
As for Planned Parenthood v. Casey, the law as written required that a married woman seeking an abortion affirm that she had informed her husband of her intent to abort. Correct me if I’m wrong, but that’s a restriction on her ability to get the procedure. Period. Either she has to ask her husband, or lie and place herself in an actionable position.
Once again, isn’t that exactly the kind of nose-poking you wingers keep insisting the government stop engaging in? I’ll bet right here that if a law was proposed doubling the frequency of OSHA inspections of meatpacking plants, you’d decry it as more government intrusion, even though it would save lives. But if it’s someone’s reproductive habits getting questions, well then, that must be okay.
No, the warrant didn’t. The request for the warrant did. The warrant itself cited only John Doe. Go read the case. The court ruled that the officers violated the limits of the warrant itself.
Well, in the absence of further evidence, it surely isn’t the most convincing argument. I’m still automatically suspicious of rulings that give the police more latitude, as a matter of principle. Not saying they’re never justified, just that they deserve close scrutiny.
Granted. And my apologies if the assumption was incorrect.
Still, the majority of the court determined that the spousal information provision constituted an “undue burden.” Alito somehow arrived at the conclusion that it didn’t. I disagree — a husband has no right to exercise control over his wife’s private health care decisions, and making such exercise (even by “informing”) a prerequisite for the obtaining of that care is an undue burden. Alito got it wrong. Badly so, IMO. While I think that in 99% of cases the woman ought to talk to hubby about it, I don’t see how you can possibly set that up as a requirement. (Also, as far as I can see, “tell” and “inform” are the same thing…I wasn’t quoting.)
As I read it, the case I noted indicates where he would like to set the bar for all cases, not just the one in question. And I think that has wider applicability.
Sorry…to be specific, the warrant cited John Doe and his residence.
Dugger;
” returns to his base”
Works for Republicans, can’t work for Dems.
Dugger
Bush didn’t worry about re-election during 1st term?
Semant,
Precisely the point. Bush is in power and no longer has to worry about reelection. He can return to his base and the cost of say, offending Rinos, is negligible. The bases are diffrent.
Dugger
“Would you libs be happier if Alito came to the hearings in black-face and wearing a dress?”
That’s hilarious. If he came in blackface the right wouldn’t bat an eye. If he came in a dress on the other hand, whoa nelly. James Dobson would shit himself.
“Scalito” is the latest “gravitas”. Duh!! The libs once more switch to autopilot, and I love it!!!
I did read the case. The affidavit that described all the people to be searched was attached to the warrant because there wasn’t enough room in the warrant’s description box. However, your more specific description is more accurate.
I suppose law enforcement officials all over the country should redesign their warrants, and I don’t begrudge a strict tolerance for following a warrant.
But this is a ridiculous case to use as an example of Alito’s supposed attack on civil liberties. The police described who they wanted to search and a magistrate signed it without any changes. The police knew what it meant and the judge knew what it meant. The police weren’t trying to bypass any legal barriers and had legally planned for the searches ahead of time.
RIR and Rory;
Only idiots and/ or degenerates would think this is going to be fun and lovin’ it
Well, it’s even murkier than that, JWG.
The case you’re talking about didn’t determine whether or not the search was justified. The point being argued was weather the conduct by the officers was so egregiously wrong that they shouldn’t be afforded the immunity that comes with doing their jobs.
One can believe that the search of the wife and daughter (by a female officer, BTW) is wrong without thinking that the police officers ought to be liable for civil damages.
“The police described who they wanted to search and a magistrate signed it without any changes. The police knew what it meant and the judge knew what it meant.”
This analysis exhibits a serious misunderstanding of the case and search warrants in general. A magistrate does not sign a warrant application (the affidavit) nor does he make changes to the affidavit. Only the police can do that. A magistrate signs the warrant, which in this case only delineated one person to be searched. Thus the language of the majority that I quoted above (i.e., that a magistrate could have balked at the broader search undertaken by the police had it been asked for in the warrant). The police could have incorporated the affivdavit and it’s request by reference into the warrant and if the magistrate had approved there would have been no problem, but the police didn’t do that. Hence, the affidavit couldn’t be used to justify expanding the scope of the search sought in the warrant. That a judge would stretch the limits of applicable search law as Alito did in this case does indeed call into question his commitment to civil liberties. That doesn’t mean that he is attacking said liberties, perhaps this case is an anomaly. But it does give one pause as to what direction he would try to take the court on the issue and it is entirely justifable to hold this case up for scrutiny on the issue.
And still arrived at the wrong conclusion.
If you infered this from my writing, then I might not have expressed myself clearly enough. The police write both the affidavit and the warrant. The magistrate signs the warrant after reading both. The magistrate in this case signed the warrant unchanged. Both the police and the magistrate knew who was to be searched based on the affidavit and the way in which it was incorporated into the warrant. Based on these facts, Alito argued based on previously settled law that the police had a reasonable expectation that their searches were legal.
I am not disappointed that the case determined that the warrant itself should have been more explicit. But Alito used previous case law to defend his position in detail and to explain why the majority’s use of case law did not apply. He was very clear, detailed, and referenced the law, which is the proper basis for determining if someone is qualified for the court rather than his political affiliation.
“But Alito used previous case law to defend his position in detail and to explain why the majority s use of case law did not apply. He was very clear, detailed, and referenced the law…”
He also used a very loose interpretation of Fourth Amendment law and sloppy legal reasoning to come to a decision that allowed a strip search of a ten-year-old girl. That’s troubling.
But if the words in the affidavit had been transferred directly into the warrant rather than referenced (because they didn’t fit) then it would be OK?
In other words, there would have been no dispute about the strip search if the girl’s name had appeared directly on the warrant, right?
So the fact that she was 10 years old has nothing to do with it.
BTW, what was “sloppy” about the reasoning, specifically?
Semant, Don’t understand the point. Bush did worry about re-election first term and IMO did not get too close to his conservative base. Now that there is no re-elction, he more closely approaches that base. I make the theoretical argument that the ‘fizzling’ of the palme affair and the harsh rhetoric from the left may have convinced him to move to his base.
Dugger
That is an ideological opinion. It has nothing to do with his qualifications.
Sloppy legal reasoning:
1. Alito (and you by extension) uses a fallacious argument that there was no room to list all possible persons to be searched and therefore incorporating the affidavit into the warrant itself (though unexpressed in the warrant or affidavit) was reasonable. First of all, as pointed out by the majority no such rule of law exits or exited. Secondly, if you have a passing knowledge of search warrant practice (I have been involved in several hundred cases involving warrants from drug searches to homicides) one would know that it is common to set forth in the affidavit the justifications for searching all who might be present on the premises but are presently unknown to the officers (i.e., those who might be on the premises buying drugs) and then inserting one sentence for which there was no doubt ample room, asking for permission to search such persons. The magistrate could then judge whether the justifications given were sufficient. That was not done here. And again, the simple inclusion in the warrant of a sentence incorporating by reference all language in the affidavit could have easily been accomplished, but wasn t.
2. Much of Alito s opinion is based on what the magistrate THOUGHT without really knowing what the magistrate thought or how he decided what he/she did. For example, Alito says, The warrant indisputably incorporated the affidavit with respect to the issue of probable cause, and the magistrate signed the warrant without alteration. The magistrate must have understood that the officers& believed the warrant, if signed, would give them authorization& This is specious. The affidavit and warrant are two separate things. A magistrate signs the warrant believing that what is contained in the warrant is what the officers are asking permission to do. If permission to search all on the premises was not specifically asked for in the warrant a magistrate does not have to bother him or herself with deciding if that request is overbroad or unwarranted. Since the police did ask for such permission to search all persons within the context of the warrant the magistrate did not have to deal with that issue. There is no way of knowing in this case if the magistrate would have approved a search all on the premises request as pointed out by the majority. This is the crux of the problem no one knows what the magistrate would have authorized on this point.
3. The officers reasonable belief that they had permission to carry out the search. As pointed out by the majority, there was no precedent allowing a warrant to be expanded on the basis of an unincorporated affidavit and much precedent that would disallow it. Yet, Alito would have expanded that authority and contrary to your assertion he points to no cases on point that would allow for such expansion (in fact, he points to very little relevant case law in his dissent supporting any of his arguments for the good reason that there isn t any on his side. This makes one wonder how much he values precedent and legal reasoning or is he simply engaging in a result oriented process). Alito also claims that despite the warrants deficiencies and the officers failures that the search was justified on the basis of good faith. That is the officers believed in good faith that they had the authority to search. Again, Alito appears to engage in some legal sleight of hand here. The cases say that where an affidavit requesting such authority is incorporated by reference to the warrant and the affidavit’s request is not modified by the magistrate (since the affidavit in such a case becomes part of the warrant) then the police can reasonably believe they had authority to search. That incorporation as stated previously, was not done. Further, to get to this point Alito would read the incorporation requirements as established by the case law differently than the majority (which is ok), but his interpretation has no precedent supporting it (which is not ok).
4. You say that the fact, the girl was 10 years old had nothing to do with it . But it does for this reason. Judge Alito says in effect that sometimes drug dealers use children to carry drugs. Perhaps that is true, but nowhere in the warrant application (affidavit) nor in the warrant itself nor in the evidence referenced in the opinion does any evidence of this assertion appear. Where does he pull that out? A strip search usually implies a body cavity search and is far more intrusive than a simple pat down or clothed search of a person. It is not typically the type of search that is done or allowed by the simple language allowing a search of all persons present at the scene of a search. As I said in an earlier post, it s not clear if a cavity search was undertaken here, but even if the child was required to simply strip naked that is far more intrusive than a simple search of the person. It takes more justification for that type of intrusion. So we have a far more intrusive search than is normally carried out done a minor without any evidence that it was allowable or necessary. Furthermore, had the magistrate been made aware that a strip of a minor child was contemplated he or she might have had reservations to allowing that on the basis of the facts presented in the application. Judge Alito on the other hand without any evidence or precedent to support his position would allow that, at least with respect to granting immunity to the officers in a law suit against them for the improper search.
Sorry for the length, but you asked.
Thank you. It was an interesting read and very clear. You did a good job.
I’m wondering what the point of the affidavit is if the magistrate is only concerned with what the warrant says.
The point of the affidavit is to establish probable cause (a sufficient legal justification) for the search. The warrant will set forth the parameters of the search. All the evidence that the police have that they feel justifies the search is put in the affidavit and can be a number of pages long. The warrant is quite often a simple one or two page document in the form of an order saying the police have the authority to search whatever is set forth in the warrant. That’s why it’s important to deliniate the requested parameters. The magistrate will determine from the affidavit if probable cause has been established to approve the search and the scope requested (that’s why it’s common to incorporate the affidavit by reference into the warrant itself so if the warrant is deficient the affidavit might save it). If the magistrate determines that probable cause has not been established for any particular request contained in the warrant he or she can strike out the offending portion.
What I was referring to in the part you quoted was a basic legal principal that judges don’t rule on things they are not asked to rule on. In this case the warrant presented to the magistrate for signature didn’t include the authority to search all persons present (even if the affidavit attempted to establish probable cause to do so). A magistrate wouldn’t have to decide in such a case, if a more expansive search was justified or not. He or she would only decide if the parameters set forth in the warrant were justified by the contents of the affidavit.
Thanks.
JWG:
Actually, no. That was the majority opinion of the court.
Look, the affidavit is, to quote another commenter, nothing more than the cops’ “wish list.” The warrant specifies what they get. The legal differentiation between affidavit and warrant is sharp and clear.
What Alito said is that the magistrate “must have understood” this, that and the other about what the cops “meant.” That’s horseshit. If we’re just going to give the cops creative license and carte blanche, why even require the warrant at all? Why not just let them write up the affidavit and go to town?
Because a judge rides herd over the cops. That’s one of the protections between the law and the citizenry. Sure, I find it offensive that a 10-year-old kid got strip searched. And since you’re evidently okay with Alito’s line of reasoning — that the magistrate “must have understood” what was meant — perhaps we can apply similar logic in another direction. Had the warrant specified the search more clearly (and please don’t feed me the cops’ line about “there wasn’t room”…any form will hold the phrase “premises and all occupants”), do you think perhaps the magistrate might have asked who the occupants were, and perhaps balked at strip-searching a 10-year-old?
What’s more offensive than the actual search is the fast-and-loose interpretation Alito applied to the case law and the facts. I disagree that “fast and loose” is an appropriate characteristic in a Supreme Court justice.
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