Unexpected Developments for 2004

December 20, 2004 • Commentary
This article appeared in Legal Times on December 20, 2004.

In the constitutional area‐​where politics is most likely to trump a few developments surprise any longer. But from the Cato Institute’s libertarian perspective, the Supreme Court’s last term did surprise. Our annual Cato Supreme Court Review usually finds a few decisions coming out right. Yet this year, out of 14 essays treating particular cases (most came down in 2004), only one found that the Court got it right. Crawford v. Washington restored the confrontation clause at last Otherwise, it was mighty bleak.

Take Hiibel v. Sixth Judicial District Court of Nevada. If an officer with “reasonable suspicion” questions you, you must answer; but if your answer incriminates you, you may then remain silent Or Maryland v. Pringle, which eviscerated the individualized conception of probable cause.

To be sure, the war cases — Hamdi v. Rumsfeld, Rumsfeld v. Padilla, and Rasul v. Bush — put something of a brake on the president’s extraordinarily broad claims about executive power. But the opinions were· so vague that they could be read just as one wanted — which is exactly what the administration has done.

We had hoped that the Court’s recent revival of federalism would do it credit again. Alas, in Sabri v. United States. Not only did the court miss a chance to reinvigorate the necessary‐​and‐​proper clause, but also it continued to speak of the chimerical “spending clause,” by which it meant taxing clause. In this same vein, the title that Robert Levy gave his essay on Tennessee v. Lane says it all: “How Illegitimate Power Negated Non‐​Existent Immunity.”

But can any opinion beat McConnell v. Federa; Election Commission for sheer inscrutability — to say nothing of error? Perhaps the best that can be said is that it came down in only 298 pages, compared with the lower court’s 1,638. Thus do we measure progress.

About the Author