Ever since the nomination of Judge Robert Bork and most recently with the nomination of Judge Sonia Sotomayor, our media and political discourse on the Supreme Court have become saturated with reports describing that institution in unabashedly political terms. References to the “conservative” bloc or a nominee’s effect on the court’s “ideological balance” treat the Supreme Court as an institution whose members decide cases not on the basis of faithful application to neutral principles but instead on the basis of competing partisan agendas where opportunities for logrolling, horse-trading and coalition building abound. As someone who had the honor of working at the Supreme Court for a year and who subsequently has appeared before it as a lawyer and has followed it as a law professor, I have found those characterizations terribly inaccurate and thoroughly destructive. A recent decision hopefully helps to dispel those poisonous misconceptions.
Arizona v. Gant concerned the circumstances under which the Constitution allowed law enforcement officers to conduct a warrantless search of an automobile in connection with an arrest. If the “conventional wisdom” about the “conservative” and “liberal” blocs on the Court were accurate, predicting the outcome should have been easy. The “conservative” justices Roberts, Scalia, Thomas and Alito would have upheld such searches as part of a pro-prosecution law-and-order agenda. The “liberal” justices Stevens, Souter, Ginsburg and Breyer would have found such searches unconstitutional as part of their unwavering effort to expand criminals’ constitutional rights. Justice Kennedy, as the “swing” justice magically moving into that role once Justice O’Connor retired would have provided the critical vote.
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