Legal News

The Law Blog’s Laugh-In At the Supreme Court: Wow

By Peter Lattman

The big news out of the Supreme Court yesterday concerned what they didn’t do. The justices declined to hear an appeal of a D.C. Circuit ruling that terminally ill patients who have run out of medical options have a constitutional right to try experimental drugs that have not yet received FDA approval. Here’s the NYT story and prior Law Blog coverage.

On the lighter side, let’s bring back a Law Blog feature in very low demand — The Law Blog’s Laugh-In At the Supreme Court! The decidedly unfunny issue on the docket yesterday: federalism. The question, as stated by the Times: What happens when a state chooses to give criminal suspects more protection than the federal Constitution requires?

Leave it to Justice Scalia to make federalism funny. Yesterday, he asked Stephen McCullough, a lawyer for the state Virginia, about the line between valid and invalid state searches. With that, an avalanche of laughter ensued. Get ready to giggle, Law Blog readers!

Justice Scalia: Mr. McCullough, the proposition that you’re arguing, does it apply at the Federal level as well? Suppose — suppose I think that my neighbor next door is growing marijuana and I have probable cause to believe that, all right? So I go in and search his house; and sure enough, there is marijuana. And I bring it to the police’s attention, and they eventually arrest him. Is that lawful search?

McCullough: If there is State action –

Justice Scalia: I’m a State actor, I guess. You know –

(Laughter.)

McCullough: If you have State actors –

Justice Scalia: You know, a Supreme Court Justice should not be –

(Laughter.)

Justice Scalia: — should not be living next door to somebody growing marijuana. It doesn’t seem right.

McCullough: That’s not a smart neighbor.

(Laughter.)

McCullough: If you have State action and you enter into someone’s home, then the Constitution affords a heightened level of protection. But –

Justice Scalia: Don’t dance around. Is it — is it rendered an unreasonable search by the fact that I’m not a law enforcement officer at all?

McCullough: I don’t think the fact of — no. The fact that –

Justice Scalia: So any Federal employee can go crashing around conducting searches and seizures?

McCullough: So long –

Justice Scalia: So long as he has probable cause?

McCullough: That’s correct.

Justice Scalia: That’s fantastic.

(Laughter.)

Justice Scalia: Do you really think that?

McCullough: I think if there is State action, it doesn’t matter that you’re wearing a badge or that you’ve gone through the police academy.

Justice Scalia: Or that you are an administrative law judge at the, you know, Bureau of Customs? It doesn’t matter?

McCullough: I think that’s right. That if you have — if the State -

Justice Scalia: What about a janitor? You’re a janitor, a federally employed janitor.

McCullough: Your Honor –

Justice Scalia: His neighbor is growing marijuana, and he’s just as offended as a Supreme Court Justice would be. Can he conduct a search?

McCullough: I think if he’s doing it on behalf of the State, the answer is yes.

Justice Scalia: Wow.

Full post as published by Law Blog - WSJ.com on January 15, 2008 (boomark / email).