Shorter John Roberts

When a cop who has a personal animus against someone looks for an excuse to search his enemy, thinks he’s found an excuse, searches him, finds contraband, but turns out to have been wrong about the excuse for the search, the victim of the unlawful search goes to prison just the same.

Roberts wins bonus points for intellectual dishonesty: he says that the very use of the term “probable cause” implies the possibility of error. So it does. Often a search done on valid grounds will discover nothing of interest; there was only probable cause, not certainly, behind the belief that evidence or contraband might be present. Roberts absurdly carries that over to mean that the very existence of the cause itself, rather than the inference drawn from it, need be only “probable.” That’s a pun, not an argument.

Extra extra bonus points for Roberts’s dishonesty in not mentioning the officer’s animus against the person unlawfully searched, who had accused the officer of involvement in a murder.

It’s not as if tossing a felon in possession of a handgun in prison bothers me much (and there’s no racial angle here); it’s the lawlessness of the cops that’s at issue. And even a Supreme Court Justice should be able to see that decisions like this one are an open invitation to lawlessness under the guise of carelessness.

Yes, the usual lineup: four Justices, five Injustices. Maybe if this is the quality of the Court’s work-product, the root problem is overwork, think how much faster things would go if the task of opinion-writing could be spread eleven or thirteen ways rather than nine.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: