Monday, June 17, 2013
What Does Justice Stevens Think of Gant?
Justice Stevens's remarks at ACS this weekend have gotten some attention in the blogosphere. But one interesting point I haven't seen noted has been what appears to be a slight revision in his view of Arizona v. Gant. Gant restricted the ability of police officers to search the entire body of a vehicle after arresting somebody who had been it. That broad search ability had been thought justified by a case called Belton, written by Justice Stewart, in which Justice Stevens concurred in the judgment.
In Gant, the majority opinion by Justice Stevens went out of its way to claim that the new, narrower, rule was how Belton should have been understood all along. The Court's opinion said that there was "the textual and evidentiary support" for a narrower reading of Belton; it described itself as rejecting a "broad reading of Belton," not overruling it; and it explicitly noted that Justice Stevens had once concurred in the judgment in Belton. Justice Scalia wrote separately to call Justice Stevens's construction of Belton implausible ("I read those cases differently"), though he ultimately "acced[ed] to what seems to me the artificial narrowing of those cases adopted by Justice Stevens," and joined the majority.
Justice Stevens's comments on Gant in his speech sound very different. He now says that he "dissented from Potter Stewart's opinion in the Belton case," (not technically true -- though maybe this is merely an infelicity in the prepared text). He says that he "enjoyed" reading Justice Scalia's footnote that suggested that Gant had rejected Belton, and says that "in the Belton case, I remember being particularly offended because the majority's rule allowed an arresting officer making a traffic stop to search through the driver's briefcase," which is precisely the kind of search that the broad reading (rejected in Gant) would had allowed.
Now, these passages are not pellucidly clear, but it seems like Justice Stevens is now closer to Justice Scalia's view of Belton. If Stevens meant what he wrote in Gant, one would expected him to say that Belton was a good decision that had been misunderstood, not that it was offensive and led to bad results. And recharacterizing his Belton concurrence (as Gant had emphasized) into a dissent seems like another clue. Maybe I'm reading too much into this, but I thought it was noteworthy.
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I'm shocked, shocked to find that gambling is going on in here!
To point out more game-playing on the same issue, two years later in Davis, the same Justices who in Gant read Gant as ovrerruling Belton instead accepted the view that Gant merely corrected a misinterpretation of Belton -- at least when it served their interests to make that characterization. Compare Alito dissenting in Gant, ("Today’s decision effectively overrules [Gant], even though respondent Gant has not asked us to do so. To take the place of the overruled precedents, the Court adopts a new two-part rule.") with Alito writing for the majority in Davis, slp. op. at 18 ("Davis argues that Fourth Amendment precedents of this Court will be effectively insulated from challenge under a good-faith exception for reliance on appellate precedent. But this argument is overblown. For one thing, it is important to keep in mind that this argument applies to an exceedingly small set of cases. Decisions overruling this Court’s Fourth Amendment precedents are rare. Indeed, it has been more than 40 years since the Court last handed down a decision of the type to which Davis refers").
Posted by: Orin Kerr | Jun 17, 2013 8:49:03 AM
It's true that Justice Stevens was concurring in Belton, but referring to his "dissent" in that case is reasonable. The Belton opinion was issued on the same day as Robbins v. California, another case involving a warrantless motor vehicle search. Stevens' brief concurrence in Belton states that he would have resolved Belton and Robbins "in the same way." In his dissent in Robbins, in turn, he tells us he would have applied the "motor vehicle" exception to the warrant requirement in both Belton and Robbins, and goes on at length to explain his objections to the expansion of the "search incident to arrest" doctrine adopted by the majority in Belton.
Posted by: Marc Falkoff | Jun 17, 2013 12:29:38 PM