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?