Tale of Two Justices: Justice Thomas Was Right On Strieff
June 24, 2016 (Fault Lines) — Justice Thomas gets a lot of attention. He was a key player in two documentaries, Confirmation and Anita. He grew up in the Jim Crow South, compared affirmative action to Jim Crow, almost entered the priesthood, married a white woman, and has suffered through having his blackness questioned, is religious, among other things. And when he asks a question during oral argument, every person in the world remembers where he or she was at when it happened.
Justice Thomas is hated by liberals, or as Slate understates it—disliked. Comparing affirmative action to Jim Crow was just one of many possible reasons. There’s his statement that legal slavery did not take dignity away from those enslaved. And there was Thomas’ dig at the secular messiah President Obama. Also, there’s his harsh take down of cross burning, leaving some liberals who hate him perplexed by agreeing with him. Justice Thomas has lived a life full of obstacles, upheaval and enemies.
It’s always a dangerous thing to try to understand someone’s internal life from their biography and actions, but it seems that Thomas’ worldview became something unshakeable in his life. He doesn’t let anyone tell him what it means to be black or how the law should be interpreted; Thomas just stays true to himself. And that’s probably even more of a reason why he’s hated. Because people who cannot be shamed into doing what the media elites want are powerful people.
As his own man of rather well-defined principles (love them or hate them), Justice Thomas is willing to go it alone in Taylor v. United States and say that the commerce clause is not the American legal equivalent of Kaiser Wilhelm’s blank check:
To avoid giving Congress a general police power, there must be some limit to what Congress can regulate. But the substantial-effects approach’s aggregation principle “has no stopping point.” Id., at 600 (THOMAS, J., concurring). “[O]ne always can draw the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on commerce.” Ibid.
Under the substantial-effects approach, Congress could, under its commerce power, regulate any robbery: In the aggregate, any type of robbery could be deemed to substantially affect interstate commerce.
By applying the substantial-effects test to the criminal prohibition before us, the Court effectively gives Congress a police power. That is why the Court cannot identify any true limit on its understanding of the commerce power.
Although the Court maintains that its holding “is limited to cases in which the defendant targets drug dealers for the purpose of stealing drugs or drug proceeds,” ante, at 9, its reasoning allows for unbounded regulation. Given that the Hobbs Act can be read in a way that does not give Congress a general police power, see Part I, supra, we should not construe the statute as the Court does today.
Justice Thomas objected here to the federal prosecution of attempted robbery of marijuana.
You may remember back to Raich v. Gonzales too, where the court re-examined the substantial effects doctrine, and despite the ultimate result being one that would favor drug dealers, there too Thomas stuck to his principles.
So, if Justice Thomas alone has concern about federal overreach in criminal matters, what gives in Utah v. Strieff? It’s the case were some guy gets stopped illegally, is forced to hand over his identification, and gets arrested after a warrants check.
Intellectually, Thomas has to understand that the local cop on patrol potentially has a lot of unchecked power already. And if he’s concerned about giving Congress a blank check, then why is he not concerned about giving the local police officer more power. Again, he lived in the Jim Crow South and certainly had to be aware that unchecked authority can give rise to abuse. One does not seem to fit with the other.
Federal law enforcement and military invention in the south hastened the end of Jim Crow, and federal intervention during Reconstruction held off some of the first attempts to establish Jim Crow. Perhaps he views the power of the sword as all about the hand who wields it.
Also, it’s worth recalling that Thomas has a unique view of the Confrontation Clause:
In Crawford, the Court explained that “[t]he text of the Confrontation Clause . . . applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’ ” Id., at 51 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)).
“‘Testimony,’ ” in turn, is “ ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” 541 U. S., at 51. In light of its text, I continue to think that the Confrontation Clause regulates only the use of statements bearing “indicia of solemnity.” Davis v. Washington, 547 U. S. 813 –837, 840 (2006) (Thomas, J., concurring in judgment in part and dissenting in part).
This test comports with history because solemnity marked the practices that the Confrontation Clause was designed to eliminate, namely, the ex parte examination of wit- nesses under the English bail and committal statutes passed during the reign of Queen Mary. See id., at 835; Bryant, 562 U. S., at ___ (Thomas, J., concurring in judgment) (slip op., at 1); Crawford, supra, at 43–45.
Accordingly, I have concluded that the Confrontation Clause reaches “ ‘formalized testimonial materials,’ ” such as depositions, affidavits, and prior testimony, or statements resulting from “ ‘formalized dialogue,’ ” such as custodial interrogation.
And Justice Thomas routinely joins cases where the state wins criminal by resolving errors in arrest in the state’s favor, typically under the good faith doctrine. You could say his overriding view is that formality and process matter most, and, if done properly, they will forgive execution errors. At least, I am suggesting that as a possibility.
In Strieff, Justice Thomas refers to good faith, but does not really invoke the doctrine. It would be novel to do so here, as it usually starts with the officer’s ex ante belief that there is a warrant. And, as Orin Kerr points out, it does not really work factually here in any event. But the fact remains that somewhere, some magistrate signed an arrest warrant. The formalities to arrest Strieff had been obeyed, and it would now be proper for the agents of the state, i.e. police officers, to arrest Strieff. Indeed, Justice Thomas says it was obligatory:
In this case, the warrant was valid, it predated Officer Fackrell’s investigation, and it was entirely unconnected with the stop. And once Officer Fackrell discovered the warrant, he had an obligation to arrest Strieff. “A warrant is a judicial mandate to an officer to conduct a search or make an arrest, and the officer has a sworn duty to carry out its provisions.” United States v. Leon, 468 U. S. 897, 920, n. 21 (1984) (internal quotation marks omitted).
Officer Fackrell’s arrest of Strieff thus was a ministerial act that was independently compelled by the pre-existing warrant. And once Officer Fackrell was authorized to arrest Strieff, it was undisputedly lawful to search Strieff as an incident of his arrest to protect Officer Fackrell’s safety. See Arizona v. Gant, 556 U. S. 332, 339 (2009) (explaining the permissible scope of searches incident to arrest).
This appears to be the heart of the decision.
What he appears to be saying is that after the issuance of a warrant, law enforcement officers are vested with the authority to arrest, regardless of whether each officer is individually aware of the warrant. The officer’s knowledge, or lack thereof, is immaterial to the state’s right to have someone like Strieff seized by way of a warrant. And the warrant authorized the officer’s arrest of Strieff, which is what happened—end of story.
While it was good fortune for the officer that the warrant existed, the stop ultimately burdened Strieff no more than had the officer been aware of the warrant or informed of the warrant by way of a license plate reader or a computer check of the license plate. In other words, the lack of the officer’s knowledge of the valid warrant put Strieff in a no worse position than he was already. Presumably, sooner or later the stop and arrest was going to happen.
The Brown framework deployed was an ill-fit here, but it was a convenient precedent that did the job. And the analysis of the third factor, regarding flagrancy, was really all about explaining how the result is not unjust. As Orin’s piece discusses, it’s a strange consideration.
Justice Kagan would be right to be concerned if her premise had been correct: “The question here is whether the prohibition on admitting evidenced is solved if the officer discovers, after making the stop but before finding the drugs, that the person has an outstanding arrest warrant. Because that added wrinkle makes no difference under the Constitution, I respectfully dissent.” But the warrant made all the difference, even if the majority opinion obscured that with ill-fitting case law.
While the officer may have lucked out, Strieff got his just deserts.