From Your Lips…

Let’s hope Walter Dellinger is prescient about yesterday’s big Fourth Amendment case:

Thirdly, the court may no longer be the head cheerleader for the war on drugs. The Supreme Court decisions from the 1970s that gave the green light to oppressive police investigative practices were to a large degree driven by the perceived need to suppress the supply of drugs. Consider for example United States v. Robinson (1973), which allowed law enforcement officers to search without a warrant a crumpled cigarette package (that turned out to have drugs). Decided at the height of the national drug frenzy, cases like Robinson were the handmaiden of mass arrests. Because it would have been too costly and complicated to obtain warrants every time the police did of a sweep of low level street dealers, intrusive searches without warrants were a key part of drug control efforts that rely on mass arrests.

In today’s Riley decision, the court notes, almost as an aside: “We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime”—a fact that does not seem all that troubling to the justices, at least not as troubling as it would have been in prior decades.

To my mind, the mass incarceration that resulted from the misguided war on drugs has been the great unappreciated civil rights issue of our time. The court, like much of the country, may finally be war-weary and may have come to the realization that the cost in human suffering, civil liberties, and community disruption has been far too great to justify any positive results.

I’m always skeptical about the possibilities for cross-partisan rational compromise, but that Riley was near-unanimous is at least one reason to be cautiously optimistic.