The Washington Post has a write-up of yesterday’s unusual second round of oral arguments in the Hudson v. Michigan case (see my summary of the case and its implications here, Cato’s amicus brief in the case here [pdf]). The case was almost certainly reargued because it ended in a 4-4 tie the first time around, meaning that new justice Samuel Alito is the likely tie-breaking vote. To that end, there’s reason for pessimism:
The case may have a different outcome without retired Justice Sandra Day O’Connor. She seemed ready, when the case was first argued in January, to rule in favor of a Detroit man whose house was searched in 1998.
Alito was confirmed to replace O’Connor before the case was resolved. The new argument was scheduled apparently to give Alito a chance to break a tie vote.
Alito, a former appeals court judge and government lawyer, seemed more sympathetic to police. He asked tough questions of the lawyer for Booker Hudson Jr., who was convicted of cocaine possession based on evidence found in the search. Alito had no questions for government lawyers.
According to the Post, if one were to judge by the oral arguments the first time around, the justices lined up in a neat left-right split, with Scalia, Roberts, Thomas, and Kennedy on the state’s side, and Stevens, Ginsberg, Souter, and Breyer for the defense. The Post suggests Kennedy may be hedging:
Another justice who could be crucial to the outcome is Justice Anthony M. Kennedy, a moderate swing voter. During the January argument, Kennedy called the issue “troublesome,” but seemed most supportive of police. He also appeared conflicted Thursday.
I’d like to think Thomas will continue his libertarian growth on the bench and find for the defense in this case. But the tone of the questioning in the second round of arguments suggests otherwise. What’s clear is that Bush’s nomination of Alito may very likely tip the outcome. O’Connor seemed ready to side with the defense:
During the January argument, O’Connor worried aloud that police officers around the country may start bursting into homes to execute search warrants. She asked: “Is there no policy of protecting the home owner a little bit and the sanctity of the home from this immediate entry?”
In the last election, I seem to remember hearing lots of lecturing from conservatives, telling libertarians they should overlook President Bush’s big-government record and support him, if for no other reason than for the Supreme Court justices he’d appoint.
Still waiting for that payoff….