Making The Nasty Sausage of Constitutional Rights

There is an implicit assumption that arguments before the United States Supreme Court involving constitutional rights are presented by the best and brightest, the fully prepared, the lawyers who have earned the right to stand before the nation’s highest court and present a branch of government with the strongest, most sound, arguments possible.  After all, the rights of every American are at stake, and what could be more important?

Sit down. I have something to tell you, and it’s going to make you sad.

The justices of the United States Supreme Court are at their best when united against a common foe. It’s much easier to put aside doctrinal differences and work together when an attorney at the lectern sounds like a clodhopping amateur trying out for the moot court team. On Wednesday, in a critically important Fourth Amendment case, not one but two advocates performed so terribly that the justices effectively gave up and had a conversation among themselves. The result was a deeply uncomfortable 70 minutes during which the clash between state power and individual autonomy took a back seat to jokes about night court and hillbilly judges.

And this was, without a doubt, a critically important Fourth Amendment case, Birchfield v. North Dakota, addressing the issue of whether states may impose criminal penalties upon drivers who refuse to be tested for drunk driving.  Not only does this issue touch a great many lives of ordinary citizens, but it begs three further issues, whether the “privilege” of driving can be used to impute consent, and whether it is different for breath tests or blood tests.

Danny Birchfield, who was arrested for refusing to take a blood test, argued that these laws violate the Fourth Amendment, which typically requires a warrant before police can conduct a search. North Dakota says motorists give consent to chemical tests when they drive in the state. Birchfield says legally mandated consent is no consent at all.

Birchfield was, of course, drunk as a skunk, as if that matters. He still had the good sense to refuse the test (because if he wasn’t drunk, what would he have to hide, right?). And his case, together with some joined cases, made it all the way up to the big bench to decide these rights for all of us.

Rothfeld must defend all his clients, so he has to say that a breath test is “a significant intrusion on personal integrity” and a search of “deep-lung air,” which is apparently very intimate air indeed. But it’s pretty clear that the court will write off the Breathalyzer issue as a reasonable search incident to arrest, leaving only the blood test on the table.

That’s it? Deep-lung air? How about, “there is nothing particularly intimate about asking a person to breathe into a straw, and yet the Constitution cannot compel a person to forfeit his right not to cooperate in his own criminal demise.” The question isn’t the authority of police to gather evidence of drunk driving, but of the individual to say no. So, cops get an insta-warrant and that’s that. But the right of the individual not to consent remains intact.

Nope. Didn’t happen. Say bye-bye.

Chief Justice John Roberts, who’s sometimes amenable on privacy rights, is pretty sure that anybody who refuses a chemical test is definitely sozzled. “If you’re not drunk, you’d be happy to be tested, right?” he asks Rothfeld, who looks fleetingly aghast. 

You didn’t see this coming? You haven’t answered this dopey question a million times? If you can’t hit this out of the park, step away from the plate.

So does this mean it’s curtains for the Constitution? Not quite yet, as the other team sucked just as bad.

McCarthy really only has one job: to explain why states should be allowed an exception to the Fourth Amendment just because they decline to create an insta-warrant regime. Justice Samuel Alito notes that, unlike New York, North Dakota doesn’t have “night court going all the time.” McCarthy agrees: “There aren’t judges or magistrates on ­­duty all the time in North Dakota,” he tells Alito. There are judges “on call, reachable somewhere, typically by phone, but it often takes a while, especially in rural jurisdictions.”

Apparently, and I didn’t realize this until now, telephones work worse in rural areas than urban areas.

McCarthy says the process can take up to an hour in populous districts and even longer in rural ones.

“Why is it harder to get somebody on the phone in rural areas than in big cities?” Justice Anthony Kennedy asks. “I would think people in the rural areas were sitting waiting for the phone call.”

Kennedy is such a city slicker.

McCarthy defends North Dakota, insisting that it has a “lack of resources and manpower.”

“So that excuses you from a constitutional requirement?” Justice Sonia Sotomayor says. “We’re now going to bend the Fourth Amendment?”

But then, things got worse. That’s right. I keep telling you the alternative to bad isn’t necessarily good. See?

When McCarthy’s time runs out, he is replaced at the lectern by Kathryn Keena, who is, to everybody’s astonishment, even worse than McCarthy. Keena begins by summarizing her autobiography. “Having grown up 20 miles from the North Dakota border and attending college in the Fargo-Moorhead area,” she tells the justices, who look visibly confused and irritated, “I’m very familiar with what the realities are in the rural area. And yes, it may be possible to get a search warrant in every case. But if that’s what this court is going to require, in Minnesota, we are going to be doing warrants for blood draws in every case. And that is not what this court wants.”

Protip 1: The court doesn’t care about your childhood. No one does except you.
Protip 2: Don’t tell the court what it wants. It get to decide that for itself.

While Mark Joseph Stern’s Slate post is fabulously funny, there’s nothing funny at all about a few blithering incompetents arguing the rights of millions of people before the Nine Eight.  Bear in mind, the authority to conduct an anal probe upon being jailed for an unpaid traffic ticket is conclusively the law, for lack of sound advocacy.

One of the most common questions is how the law ended up the way it is. We blame the institution, that the Supreme Court is too political, the justices too doctrinaire. But what we fail to consider is that the lawyers arguing the cause may be incompetent buffoons, unprepared, just ignorant. And with them go our rights. But hey, how cool is it to argue before the Supreme Court, even if you lose on behalf of America because you sucked?

13 thoughts on “Making The Nasty Sausage of Constitutional Rights

  1. Richard G. Kopf


    Oh, yes. Dumb lawyers. Smart Justices.

    We learn this from the “fabulously funny” Mark Joseph Stern from Slate who “covers the law and LGBTQ issues.” Great combination for criminal law cases.

    One question for Mark Joseph Stern, he who “covers the law and LGBTQ issues”: If the Justices were so fucking smart, why did they take the breath test part of the case?

    Guess they had nothing better to do in late April than determining whether blowing into a tube warrants Constitutional scrutiny ’cause of the sanctity of the body and all that is really hard stuff. But what do I know? I don’t write about “law and LGBTQ issues” for Slate.

    Mark Joseph Stern you may be fabulously funny. But, in the end, you’re a fabulously funny insignificant prick who writes about “law and LGBTQ issues” for Slate.

    All the best.


    1. SHG Post author

      While I’m no fan of non-lawyers lawsplainin’, in general, and Stern, in particular, the “official” source of SCOTUSBlog offered this nugget:

      Rothfeld countered that even a breath test is a “significant intrusion on personal integrity.” But that argument seemed to fall on deaf ears. “I didn’t say” that the breathing required by the test was “ordinary,” Breyer retorted, but “why is it so intrusive that the Constitution insists on a warrant?”

      So without the fabulously funny Stern, we would be left with the fabulously official SCOTUSBlog, and have no clue what a total fiasco this oral argument turned out to be. What we don’t seem to have is honest, critical analysis. And why did the Supremes grant cert to the breath test piece of the issue if not to address the implied consent aspect, since that’s the only issue that wasn’t a foregone conclusion.

      1. Richard G. Kopf


        With respect, the implied consent question could have been addressed regarding the blood test issue. If the oral argument was fucked up, it is because the Justices failed to properly narrow the issues in the case.

        All that aside, Stern’s piece was mainly a hit job on hicks and a cheap and easy one to boot. This from a guy who consistently models malevolence for lesser beings. The supremely smart Slate readers slurp it up. That is because Stern’s writing reinforces their world view that there is a big black hole that sucks up all light and it can be geolocated in the middle of this country.

        All the best.


        1. SHG Post author

          Well, yeah.


          And, of course, you’re right, the issue on cert was a botch. Still doesn’t forgive the lawyers for incompetence, and when the opinion comes out and forms the foundation for the 50 years of constitutional mischief, no one will remember that it was all the product of a massive failure by all involved.

  2. Jim Tyre

    When I was a young lawyer (so long ago that you weren’t yet a lawyer), CJ Burger was making lots of noise about imposing some sort of competency requirement as a condition to argue in SCOTUS. Scared the crap out of a lot of lawyers, but in the end, sound and fury, signifying nothing.

  3. Jay

    I argued the implied consent for breath testing issue before the idaho supreme court and lost, though implied consent died, the court decided that a breath test could be done warrantlessly. I was really looking forward to this argument and was similarly nonplussed by the performance of defense counsel. I thought the Stern article, as Judge Kopf notes, was awful, mostly because it pretends defense counsel was ok.

    But I wanted to say that as a guy who has been practicing for only five years and raised this issue after only practicing for one year, at no point did I ever think to myself, “Self, you should go argue this before SCOTUS.” If a client had wanted to do that, we would have found them good counsel. Rothfeld is private counsel I think, but come on guy. You should have realized how out of your league you were.

    That being said, he generally seemed to remember the point he was supposed to make eventually, even if he was flummoxed originally by every question he got. Here’s hoping SCOTUS really means it about technology changing how courts should think about the necessity for a warrant. Next issue up- automobile searches.

    1. SHG Post author

      The Supreme Court, as you know, takes very few cases. Lots of petitions, few granted. When cert is granted, it’s a big deal. A very big deal.

      When you blow an argument, it’s bad. Horrible. Any time you blow an argument, it’s a terrible thing. But blow an argument and screw a nation? There’s no excuse.

      Oh, and automobile exception. I’m ready.

      1. OEH

        Why wouldn’t Rothfeld bow out? Simple hubris? Glamour? And the Supreme Court is less willing than the appeals courts to allow speaking amici; do the justices really want to hear an argument that impacts the entire nation from a lawyer who has no obligation beyond to his own client? They can’t really believe that each year they hear 200 private disputes between private parties, can they? (no answers expected; I’m just wondering aloud).

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