It seems to me that Q and I agree on the following propositions: 1, both the dissent and the majority opinions in Groody are plausible, even if one is more convincing than the other. 2, Alito does indeed seem to be reasoning in favor of original understanding rather than text here.

Now what does this mean for Alito's civil liberties jurisprudence? I think that in search warrant cases being a functionalist rather than a formalist about warrant interpretation will tend to work out badly for the criminal defendants. This is because the warrant process is an ex parte proceeding by overworked police officers, and because technicalities at this stage almost always work to let the criminal go free when the constable blunders. What is unclear is what kind of trend we are going to have across the board of "civil liberties" more generally. But this is a testable question, so there's no need to resolve it until we get to the later cases.

For example, Alito's majority opinion in Saxe v. State Area College School District, where Alito struck down a hate speech ordinance on First Amendment grounds. . .

UPDATE: A reader points out, inter alia, that Groody itself arises on a 1983 claim for damages, not an exclusionary-rule claim. (So references above to criminal defendants should be taken generally, not as references to this case.) That is an interesting matter too-- judges opposed to the exclusionary rule might be expected to be nicer to damages claims by the innocent than to exclusion-claims by the guilty-- but I don't have much hay to make there.

After reading Will's thoughtful comments, I feel like I should clarify some of my thinking about Groody. I don't feel that the argument which Will describes as Alito's "best" is necessarily a bad argument: I ultimately disagree with it, as explained previously, but it is certainly plausible. My problem is much more with the way that Alito made that argument: he assumes too much, reasons too little, and doesn't adequately distinguish contrary precedent. Even if one ultimately agrees with him, rather than Chertoff, it still does not seem to me to be a powerful dissenting opinion.

For example: I realize that both Alito and Chertoff are former prosecutors. My point in bringing that up, and the point I was objecting to, was the felt implication in Alito's opinion that the majority simply didn't understand the level of legal knowledge of police officers and the conditions under which they work, and that the majority expected too much out of the police and magistrates as a result. From my standpoint, that implicit argument would carry much more weight were it not being made against a former prosecutor.

In terms of Will's argument about Alito's jurisprudence more generally: I think the point about text vs. understanding is insightful (and he certainly has my interpretive tendencies pegged). I would take issue, though, with his point about civil liberties. My reasoning was not simply based in the disagreement about the validity of the warrant, but again, on the way in which the disagreement played out in the opinion. That is, Alito's poor (and more to the point, conclusory) reasoning in favor of the warrant, particularly in combination with his failure to consider broader Fourth Amendment policy concerns implicated by this case (and canvassed in the majority opinion), led and lead me to believe that he is not and will not be a judge who is a strong defender of civil liberties. This impression may yet be controverted by his opinions on free speech cases and the like, and it is certainly not set in stone. Yet it is there nonetheless.

First off, thanks to Q for the first battery of thoughts (facts, law, and implications) on Judge Alito's jurisprudence. Now, a few quick thoughts on why I disagree on his take on Groody.

As I understand Alito's best argument, it's this: The officers clearly asked for (in the affidavit) a warrant that applied to everybody on the premises. They then wrote a proposed warrant, and that's what the magistrate signed and agreed to. The "commonsense" approach would be to assume that the officers wrote a warrant that gave them what they asked for, and that when the magistrate signed it that's what he meant to give them.

Now this interpretation of the text of the warrant may be wrong, but it hardly seems like "Relatively poor reasoning". Note also that while Chertoff is indeed a former prosecutor, so is Alito, so the question of practical expertise is a wash.

What does this case really tell us about Alito? The dispute between Alito and our guest-blogger Q is actually a dispute about the roles of text and original understanding.

Alito wants to interpret the warrant according to what he thinks was its original understanding: The officers proposed the text of the warrant so it's likely that they proposed a warrant that would give them what they asked for in the affidavit. The magistrate signed the warrant that the officers proposed, so it's likely he meant to give them what they asked for. Therefore, we should resolve textual ambiguities in favor of what was likely the shared understanding of the officers and the magistrate.

Q, on the other hand, places a heavy emphasis on text (which I happen to know he does in other legal contexts too). The warrant doesn't necessarily say that, he protests. Indeed, the careful enumeration in the warrant of facts about one subject raise questions about why other subjects were not enumerated, and so on.

Now it seems to me there are legitimate arguments about whether one ought to emphasize the text or the original understanding of a warrant, but it does seem to me that that's what at issue here. If Groody is representative, and if this philosophy carries over to the interpretation of other documents (which it very well may not) we can suspect that Alito will interpret statutes a little more functionally and a little less literally.

This would be fascinating, if true, but doesn't tell us that much about Alito's general position on civil liberties. When Q blogs about hate speech and other such cases, we can discuss Alito's civil liberties jurisprudence more.

If you put aside the potentially-sensationalistic facts (strip-searching ten-year olds and the like) for a moment, this is a relatively “small” case turning on a narrow factual dispute. Yet at the same time, I think it’s also a revealing case. One thing that struck me, reading Judge Alito’s dissent, is the extent to which it very much felt like Alito reached a decision and then came up with arguments to support it. The dissent is filled with assumptions and conclusory statements rather than argument. It provides little if any reasoning why his assertion about the meaning of the “Probable Cause” reference to the affidavit is correct and the majority’s wrong, never mind how the numerous precedents cited in the majority opinion are inapposite or used incorrectly.

This is not to say that no fair-minded judge could have agreed with Alito, merely that Alito reached a very conservative result via relatively poor reasoning. Note, for example, that the judge whom Alito claims is unfair to the police because he doesn’t properly credit the nature of police work and search warrants is (former prosecutor) Michael Chertoff. This does not strike me as the strongest possible argument.

From a substantive point of view, the extent of deference which Alito is willing to give the police in search-and-seizure cases is also quite striking: as long as a person or thing is mentioned in some part of an accompanying affidavit, a warrant should be read to authorize the search of that person, no matter its literal terms, if it refers to the affidavit as a whole for probable cause. That strikes me as greatly weakening the constraints on police power which a warrant is supposed to create, and not particularly in keeping with the principles behind the Fourth Amendment. Or, to put it slightly differently: Alito doesn’t strike me as someone who would be a very pro-civil liberties justice. I find that troubling.

In deciding Doe v. Groody, the Court of Appeals was answering two questions: was the search warrant valid? And if it was invalid, should the officers nonetheless receive qualified immunity from suit? I personally feel that the latter issue is a much closer question than the former, telling us less about Judge Alito; this post accordingly spends more time on the question of the validity of the warrant.

Everybody on the panel agrees that the warrant, standing by itself, did not validly authorize the search of Ms. Doe and her daughter, but that if the relevant sections of the warrant incorporated all of the facts contained in the affidavit, it would so authorize. The major disagreement between Judge Alito and Judges Chertoff and Ambro is whether, and in what ways, the warrant incorporated the affidavit.

Judge Alito’s basic contention is straightforward: the affidavit requested permission to search all occupants of Mr. Doe’s residence, and provided supporting facts for probable cause; the warrant expressly incorporated the affidavit’s claim that there was probable cause to search all occupants; and it therefore should be read as authorizing the search of all occupants, as well as Mr. Doe. That the warrant did not expressly incorporate the affidavit in the “Persons to be Searched” section is immaterial.

I should mention at this point that I have not been able to find a copy of the affidavit or warrant in the case, so the following is somewhat conjectural. Nonetheless, I think there are some distinct problems with Alito’s argument and the manner in which he makes it.

First, Alito conflates the issue of probable cause to search Mr. Doe and his residence with probable cause to search all occupants as well. He repeatedly asserts that when the warrant referred to the affidavit in the “Probable Cause” box, that it meant probable cause to search all occupants. However, he never explains why the warrant should be read that way. One can make a case that this was what was intended, to be sure; yet one can just as easily make a case that the warrant’s reference was to the evidence backing the search as a whole (consider, for example, that the discussion that Alito points to is no more than three paragraphs in a 20+ paragraph, multi-page document, the bulk of which presumably discussed the other evidence). Alito provides no real argument to support his reading, other than saying that this is what the officers “must” have intended and that it is the “common-sense, realistic” reading of the warrant. Why?

There are at least a couple of arguments against this reading. If the warrant incorporates everything in the affidavit merely by gesturing to it in the “Probable Cause” section, why mention Mr. Doe in such detail in the “Persons” box? The warrant gives a full physical description of Mr. Doe, and adds in his date of birth and even Social Security Number for good measure. Yet if one follows Alito’s argument through, presumably all of the relevant facts about Mr. Doe, as contained in the affidavit, have already been incorporated into the warrant; why mention them again?

One might say that the second mention of Mr. Doe was simply to make absolutely clear that the warrant applied to him (since he was the main target of the search); yet if that is the case, why not simply say in the “Persons” box that the warrant applies to John Doe “as described in detail in the affidavit”? While there might not have been room in the little box to describe him and all other occupants in detail, I find it hard to believe that a one-sentence reference to the affidavit would not have fit. Yet as Judge Chertoff points out in his majority opinion, the only reference to the affidavit is in the “Probable Cause” box.

Alito’s contention is that such an analysis is “formal,” “technical,” and “legalistic,” rather than “common-sense.” Note that he doesn’t explain why the common-sense reading of a warrant that explicitly says it authorizes the search of one person is that it really authorized the search of three. But beyond that, his interpretation of the warrant is inherently ambiguous; there is no compelling reason that the “Probable Cause” reference to the affidavit must have referred to one aspect of that affidavit, rather than another. It is only through reading this reference in the context of the rest of the warrant that one can derive a convincing reading, yet putting the reference into context (rather than seeing it as enough by itself) is the approach which Chertoff employs.

It seems to me that, given the function of warrants as eliminating ambiguity and providing ex ante constraints on the police, the common-sense reading of a warrant ought to be that which eliminates, rather than maintains, ambiguity. Chertoff’s reading, not Alito’s.

I thought that I would start off by considering Judge Alito’s dissenting opinion in Doe v. Groody (3d. Cir 2004); the case has obviously drawn a lot of contrasting attention, and I think one can also learn quite a bit about Judge Alito's approach to police powers in Fourth Amendment cases and his jurisprudence as a whole.

Since the outcome of this case rested so heavily on particular facts in the case, I’ll confine myself in this first post to laying out the relevant facts, which are generally clear and undisputed: Pennsylvania police, in the course of conducting an extensive investigation into methamphetamine use and distribution, had concluded that one John Doe (a plaintiff in this case) was heavily involved in the sale of meth, both from his house and his car. They submitted an search warrant request with accompanying affidavit that set out the evidence for Mr. Doe’s involvement, requested permission to search him, his house, and his car, and also requested permission to search any other occupants (residents and non-residents) of the premises at the time of the search.

The warrant request, as signed by the magistrate, referred specifically to the affidavit in the “Probable Cause” box. This incorporation of the affidavit in the warrant is apparently standard under state and federal caselaw. The “Persons to be Searched” box, however, referred only to Mr. Doe (specifically describing him and his residence), and did not mention the affidavit. In the course of executing the search of the premises authorized by the warrant, the police did not encounter any visitors, but did see, and search, Mr. Doe’s wife and ten-year old daughter (that search was conducted by a female officer). The Does filed an action alleging that the search, particularly of Ms. Doe and their daughter, was illegal. The police officers in question filed a motion for summary judgment on the grounds of qualified immunity, which the District Court denied; the appeal from that denial is the issue in this case.

I'd like to start, as a longtime fan of Crescat, by thanking Will for being gracious enough to invite (or pester) me to blog here.

Personally, I'm a Northeasterner by birth and education, though currently living elsewhere. I share the consensus Crescat view on the matters of Tom Stoppard and Robert Penn Warren, count myself unconvinced on hats and chickens, and am a longtime, long-suffering, supporter of the Mets. I am not actually a member of the Society of Friends.

In legal matters, I am (currently) an educated layperson rather than a practitioner or student; my thoughts on Judge Alito will be on that basis, from a generally center-left perspective.

I'm happy to announce that an anonymous Friend of Crescat will be guest-blogging here for a little while to ruminate about the nomination of Judge Alito. I'll let him mention whatever details of his life he deems relevant