After the hubbub following the Supreme Court’s Herring decision, and debate as to whether it’s the end of the world or just an acorn falling from an old, ugly, nasty, gnarly oak, we could use a break.  We didn’t get it.

Two decisions issued yesterday, both of which affirm a singular notion: The government is all-powerful.  The individual is dog meat.

Van de Camp v. Goldstein

As previously discussed, this case involved a systemic failure to keep track of the deal of some jailhouse snitch, so that Goldstein, an innocent man who spent 24 years in prison because he was denied Giglio material, never knew that the snitch who testified against him was a liar and was paid off for his testimony.  So he sued the District Attorney under section 1983 for its administrative incompetence in having no mechanism to keep track of the deals it cuts with its snitches. From the syllabus:

Because better training or supervision might prevent most prosecutorial errors at trial, permission to bring suit here would grant criminal defendants permission to bring claims for other trial-related training or supervisory failings. Further, such suits could “pose substantial danger of liability even to the honest prosecutor.” Imbler, 425 U. S., at 425. And defending prosecutorial decisions, often years later, could impose “unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials.” Id., at 425–426. Permitting this suit to go forward would also create practical anomalies. A trial prosecutor would remain immune for intentional misconduct, while her supervisor might be liable for negligent training or supervision. And the ease with which a plaintiff could restyle a complaint charging trial failure to one charging a training or supervision failure would eviscerate Imbler. Pp. 8–11.

Yes, it would most assuredly be a burden on prosecutors to be held responsible for their administrative incompetence.  Heck, everybody would like to be able to say, “So what?  I goofed.”  Especially defendants.  We now learn, however, that when it’s the government that “goofs”, such a burden would be “intolerable”.  And why is that?

Moreover, were this claim allowed, a court would have to review the office’s legal judgments, not simply about whether to have an information system but also about what kind of system is appropriate, and whether an appropriate system would have included Giglio-related information about one particular kind of informant. Such decisions—whether made before or during trial—are “intimately associated with the judicial phase of the criminal process,” Imbler, supra, at 430, and all Imbler’s functional considerations apply.

So the “intolerable” part is that the Court fears that it might compel lower courts to become involved in picking out office systems?  Oh, come on.  They need not solve the prosecutions’ administrative issues, but merely determine if they are reasonably effective to fulfill their function.  Beyond that, it’s entirely up to the government to do its job competently. 

The lesson, loud and clear, is that saving prosecutors from responsibility for incompetence is more important than innocent lives or providing incentives for the prosecution to do its job well.  We can joke all we want about our low expectations of government being constantly met, but this really isn’t funny.  It is about the protection of incompetence and failure from scrutiny and responsibility.  It is about the court protecting prosecutors who fail to fulfill their constitutional responsibilities from consequences.  It diminishes our respect for government by embedding the principle that government incompetence and failure is beyond reach.

Arizona v. Johnson

Not that there was much left to protect when it comes to the 4th Amendment and cars, but this decision fills a gap left behind in the destructive wake of Mimms and its progeny.  Here, a car was presumptively lawfully stopped, and an officer engaged a passenger in discussion because he wore a blue bandanna, which she thought to be gang colors.  She then “asked” the passenger to get out of the car, frisked him and found a gun. 

The opinion, written by Justice Ginsburg of all people, slides right down that slippery slope of offering up any hope of physical autonomy to police when a car is involved.  To the extent that one might have thought that a passenger in a car stopped for a traffic violation, might retain some semblance of personal freedom, forget it. 

It is true, the Court acknowledged, that in a lawful traffic stop, “[t]here is probable cause to believe that the driver has committed a minor vehicular offense,” but “there is no such reason to stop or detain the passengers.” Ibid. On the other hand, the Court emphasized, the risk of a violent encounter in a traffic-stop setting “stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop.” Id., at 414. “[T]he motivation of a passenger to employ violence to prevent apprehension of such a crime,” the Court stated, “is every bit as great as that of the driver.” Ibid. Moreover, the Court noted, “as a practical matter,the passengers are already stopped by virtue of the stop of the vehicle,” id., at 413–414, so “the additional intrusion on the passenger is minimal,” id., at 415.

This isn’t a rationale, but a value judgment that holds police officer safety higher than the right to be free from unreasonable searches and seizures. Because of the possibility that a violent encounter could, theoretically, come from a traffic stop, and because the Court has deemed the need for police officers to control the scene more important than the right of passengers to be free from the “minimal” additional intrusion of a frisk, the Court has nailed down the coffin top good and tight.

The trade-off here is obvious, but less than clear.  What this decision says is that since a passenger in a car lawfully stopped for a traffic infraction is already seized anyway, as in he’s not really free to leave even though he hasn’t done anything wrong whatsoever, subjecting the passenger to a frisk as well just isn’t that big a deal.  Consider that trade-off next time a cop rubs his hands all over your body after stopping you for speeding, just to be sure you’re not packing.

The problem, of course, is that the evisceration of rights by baby steps invariably leads to the evisceration of right.  Sure, each baby step seems like such a little thing when contrasted with the rights already lost, and calling it minimal makes it far more palatable then if the Court were to announce, the People have given up all rights to personal freedom when they get into a car.  That would sound just awful, yet by doing the same thing bit by bit, they’ve arrived at the same place.

So no, yesterday was not a good day at the Supreme Court.  Not a good day at all.

Update:  I’m informed by a reliable source that my posts sound rather morose today, so I’ve decided to try a more positive take.

On Van de Camp, this is great news for prosecutors who need no longer waste valuable time worrying about their liability for incompetence, and can now put that time to better use trying to avoid truly malevolent violations of the Constitution.  Woo hoo!

On Arizona v. Johnson, at least we have a new weapon to assure that cops finish their shift safer than before by protecting against the auto passenger who might pull out a gun.  This is good, as we certainly don’t want to see anyone shot.  And as for cops wives having the hands of other cops touching them all over their bodies because they happened to be a passenger in a car stopped for tinted windows, they can always flash the PBA card that will give them a pass when another cop feels constrained to “cop” a feel of the Missus.  And as long as your wife or daughter isn’t the one getting poked, it really is a minimal intrusion, right?

See how I’ve turned my frown upside down?  Happy now?

Update 2:  From the dark side, Kent at Crime and Consequences offers the prosecutorial perspective on the day at SCOTUS.  He calls it two wins for law enforcement.  It’s a shame that two wins for law enforcement has to come at the expense of two losses for Americans.  But if there was any doubt that there are two sides in the battle, Kent makes it clear that the battle is between cops and prosecutors, on the one hand, and the rest of us on the other.  Odd that the pro-law enforcement side never considers the possibility that it exists and serves for the benefit of the very people it trashes and seeks to subjugate.